Gian Giacomo Fusco
“This study is, in one sense, about two words, or rather a family (or two) of words. By its nature, it is inevitably a fragmented juxtaposition (rather than a mapping) of the uses of the words nómos and nomós and the family of words to which they belong, subject to a number of evidentiary and other limitations. In another respect, this study is about the idea of the words nómos/nomós: that is, about their uses, which cannot be separated from the word(s) and vice versa. We can call this method, if it is one, a genealogy, if we agree that words do not have ‘core’ meanings, but rather uses (and that these uses cannot be distinguished from the existence in which they are experienced).”
With these words, Thanos Zartaloudis (University of Kent & Architectural Association) condenses the scope of his latest book The Birth of Nomos (EUP, 2019). It is not common, in these days, to come across a book possessing the structural breath and analytic rigour of Zartaloudis’ labour. By mixing with rare precision linguistic, historical, philological and philosophical analyses and evidence, he narrates, we could aptly say, the epic story of one of the decisive terms of what we conventionally call ‘Western culture’. Through a critical-analytical and direct engagement with ancient Greek literary sources, along with the examination of the linguistic and philological traditions of interpretation, The Birth of Nomos advances a “genealogy” of the word(s) nomos that rethinks anew its established (and arguably too easy) identification with a rather modern understanding of “law”.
GGF: You define your research a “genealogy”; however, in your book, you do not keep to a “typical” genealogical approach, that is one that aims at providing a historical (or hermeneutical) lineage of the word nomos. The reader, rather than follow a determined genealogical path, finds itself immersed in the narration, obliged, in a way, to orient itself in autonomy.
TZ: Thank you very much for the kind opportunity to say a few words on my work. My approach is genealogical in a twofold sense. First in the more obvious sense that I am not tracing a linear historical evolution or mere derivation of the word(s) nomos or the ‘contexts’ in which they are enveloped. In fact, one of my findings is that we cannot sustain this linearity (still popular in non-specialist circles and especially so among the progressive lawyers of the left or the ultra-conservative right, often shrouded in evolutionary or crypto-evolutionary understandings of ‘law’, ‘culture’, ‘progress’, ‘institutions’ and so forth). Things are not and cannot be straightforward, let alone evolutionary. This is not to say that there aren’t connections, tracings, relations of sorts across eras, but it is to say that the usual way in which whatever precedes modernity in the so-called West is said to presume and assume the very same dress of the modern law or the sovereign king or emperor (including modern democratic images, apparatuses and institutions) is misleading when one looks or thinks about the ancient cultures in question. It is also genealogical in another, but closely related, sense in that apart from non-linearity one finds surprising evidence and relations between literary (and not only) evidence and one cannot claim to be looking at neither mere unrelated individual fragments, nor at a totally coherent form. Finally, the second main sense in which I think my work was genealogical, borrowing of course again from Foucault’s and Agamben’s approaches in philosophy, lies in that the modern image of law as agenealogical (in the literal sense of being ‘without father’ or ‘origin’ other than itself; an image that is much older than we think) is posited here implicitly both historically and theoretically as a problem. I think that is precisely one aim of genealogy to posit a problem or a question by depositing another which usually claims that the question that is posed is not possible or verifiable.
Immersion is a word you use, incidentally and this should not be accidental. The absence of a guiding narrative or conclusion is such on purpose; epistemologically as well as in terms of thinking we need to learn to get immersed especially today when mediatised learning compromises thinking or solidifies it, at most times. I think a narrative or a conclusion would veer an attentive reader away from the experience of the very approach that aims to destabilise our conventional understanding and allow one to begin anew as much as it is reasonably possible (that is, by the way, my only purpose here in my relation to the readers, to enable them to start anew, to take a thread or a piece of literary evidence to another direction as they wish). As long as this is done analytically and with attention to the evidence, rather than in the name of some ethereal and fashionable criticality something interesting will emerge usually.
The main focus of your work is on the different uses of the word nomos in pre-classical Greece that is before such word entered the semantic sphere of normativity and “law”. One of the hypotheses from which your research takes its cues is the recognition that scholar’s understanding of the functions and meanings of nomos has been influenced by a juridical conception of this term. To situate the archaic uses of nomos, scholars used the lenses of the law, considering them as a sort of pre-law (Schmitt is a clear example of such attitude), the development (or progress) of which led to the emergence of something like a “nomos-law”. You consider this approach misleading. There is not a pre-law of the law: rather something like a “nomos-law” emerged from a rich and complex family of meanings, as a specific “use” of the word. Why is this order of considerations important in the economy of your research?
One of the preliminary things that I should perhaps clarify briefly is that while my focus is in the archaic period, along with whatever comparative or referential context of the pre-archaic period, the classical period is excluded in this book from direct consideration as far as ‘Greek Law’ is concerned and nomos-as-law in the conventional reception of this use. But I do take the analysis to the time of the Tragedians, and of course, I refer to Plato frequently. I do this both for reasons of indicating some continuity as simultaneous to some change, but mostly to emphasize the significant coexistence of multiple uses (something that is extremely obvious and yet crucial I argue to our understanding of these uses). Another work would be needed, though there are already very reliable monographs and interventions, to look into nomos-law in the classical and Hellenistic periods. I do plan for such an intervention but indirectly, for my next book will examine (allow me to announce) “The birth of physis”.
A further preliminary thing I need to briefly clarify, as I do also in the book, is about certain generic terms, for e.g. ‘law’ and ‘normativity’. I have little doubt that the archaic Greeks had an understanding of binding habits, patterns, ‘rules’, ‘norms’ or whatever you wish to call them. What I am disagreeing with is both the reactive, retrospective and ultimately conservative and narrow understanding of nomos and its uses as centred on some kind of normative, juridical sense(s), and, further, with the projective, progressive and ahistorical evolutionary perspective of a linear development, an almost from time-immemorial inherent normativity or juridicization of the cosmos and of living. I prefer the approximations of the evidence to be understood as non-uniform and the early days, let’s say, of habitual and social normativities to be understood precisely as made, as indissociable from their living experience and as non-systematized in the way we tend to presume in late modernity (after all we should never forget that, in this sense, modernity in itself is a juridical product). The irony is that when we moderns make such grand, juridicalized, statements about the past, we at the same time hide from view that these statements would still need scrutiny as descriptions of the present in the present, but while that is another conundrum I do hope some readers will be led to rethink what ‘law’ may mean to them.
You mention Schmitt, with whom I have never had an agreeable relation as a reader, but I do engage with his understanding of nomos and its philological presumptions, given that his interpretation has influenced so many and in so many fields. Ultimately one should not read Schmitt, as many have done (also perhaps because of the relative lack of research on nomos in English over time) within the legal field and of course outside it, as a guide, in any conceivable sense, to the meanings of nomos in their Greek uses. Schmitt is doing political theory and politics with this philological creativity of his and his theoretical speculation remains for those that sympathise with him or who at least wish to engage with him on this particular proposition. Agamben for that matter borrows much from this line of understanding of nomos in order to construct his own political-philosophical point, though with very different politics in mind and indeed only at a political-philosophical level.
Ultimately, to directly answer I hope your question, I do not know if there can be a clear answer as to the so-called ‘birth’, or some would say ‘origin’, of nomos-law, that is why in a way the book is titled The Birth of Nomos (and not The Birth of Law). There are competing theories and philological analyses (both are crucial to me) as to the ‘development’ of the sense nomos-law in one way or another and I consider them in as much detail as I can afford in this book. There remains much more to be said of course and specialists in classics have already done a lot of this work which I admire and often borrow and re-read. So, you are right in suggesting that the economy of the work is influenced by this admission, and so is the absence of a conclusion. Current threads of great interest, as I explain, with regard to how nomos was eventually related to legislation (and perhaps in particular written legislation and only) range from what some would call ‘religious’ practices and practices of sharing/distributing portions of land in the new settlements (or ‘colonies’). Much remains to be seen and I am excited towards the new work that is to come on these and more, as well as the archaeological evidence that may alter our understanding, and which constantly is challenged it should be noted against any static ideologeme of interpretation; and so I hope that my work is a modest offering in the direction of keeping one’s mind open to the various, probably co-existent, possibilities.
One of the main points, around which the arguments of your book, in a way, rotate is the coexistence of “nómos and nomós”, two terms differentiated by the accent (oxytone and paroxytone), entailing different and numerous uses. Could you tell us more about the substance of this difference in its relation to the usages and the historical evolution of the word nomos?
I think there is no ‘substance’ to this difference in the strict sense, precisely that is the point I would like to put forward. There are many different uses of the two different words (which is often missed by non-specialists, including well-known thinkers) and there are also direct or indirect relations. It is not as simple as saying these words were of the same family or entirely different. One has to appreciate this linguistically first and to pay respect to the archaic language, to observe again and again how advanced is the Greek by the time we receive the Homeric epics in written form, their very own etymological derivations and the poeticity and musicality of language and words and most crucially the practices, as we say in modern terms, while of course there is no such thing for the Homeric Greeks, that is, of the living uses (where language or mousikē and life are non-distinguishable). So, I try to take all this into account gathering together as much literary evidence as possible, some archaeological insight and a lot of brilliant work by specialists in order to reopen the mapping of the uses. I don’t think there is anything spectacular about that, what perhaps there is, is the realization that a mere redrawing of the content we have (and the manner of our reading of it) can bring fresh eyes to the questioning and perhaps some even, equally valuable, contingent reinterpretations and speculations. Every chapter in the book attempts to tell this untitled story, and each time I think it reposits the opening that others expect to be a so-called ‘whole’, or so I hope.
There is a term that recurs often especially in the first part of your book: ethological. With your research, you demonstrate that in pre-classical Greece there is not sufficient evidence of the ‘nómos-law’; most of the usages of the term nomos are in direct connection with the way of life of communities, which you defined as an “ethological pluriverse based on custom and tradition”. I found interesting the fact that you chose to describe human living in terms of ethology, which usually refers to the study of animal behaviour. Are there particular reasons for this choice?
I use this term frequently, though in the book it remains implicit and undeveloped as it was not my primary focus. Yet you are probably right in suggesting that perhaps it should have been! In a way, it occurs again and again in an attempt to distance my analysis from the preconception of nomos-as-law or, further, of archaic society as if it is one with the classical (believe it or not that often happens outside specialist literature). Neither the archaic society nor the classical in my view were nomological societies in the sense of juridicalized systematicity. Which is not to say there was not nomos, logos and system or organizing principles of sorts, but it is to say that once more we should not read the ‘Greeks’ as if they are the ‘Romans’ (having said that, the connections between them are more than fascinating and I hope one day to be able to look on that much more than I have so far especially during the first 3-4 centuries).
So, I use the term ethos as, in fact, encountered in some of the literary evidence I examine but also more widely at times as when I coin the ethological sense you mention, in order to also indicate something that my intuition suggests as accurate, that is, the non-separability between living and way-making or even rule-making to use a modern term. This is not to say that the Greeks, let me repeat, do not have ‘laws’; on the contrary, it is the manner in which they make and ‘have’ them, i.e. they live them, which is of great interest to me. And it is this thread of analysis that I encountered eventually with personal fascination also because I believe it confirms some of the speculations of the philosopher Giorgio Agamben whose work as you know has formed a very significant part of my own thinking and learning. I was very moved to know that when he read the book he thought this to be possibly the case.
You dedicate a section of the book to Agamben’s nomos basileus, in which you scrutinise his understanding of the Pindaric verses. In light of your earlier research commitments and of the methodology of your last effort, has Agamben played a role in your decision to undertake this research of nomos?
In a way, I have already told you, but there is no doubt that Agamben’s work and thought and let me add his overall manner in study and conversation played a key role in my own understanding and attitude towards study. I wrote my dissertation on Heidegger’s dasein and then one day halfway through my thesis-writing I found by happy accident a copy of Agamben’s Language and Death: the place of negativity in a second-hand bookstore in Paris. I don’t think I slept that night while reading it, and it influenced my thesis more than considerably, it revealed to me a problem in Heidegger’s analysis of dasein and linguistic-being as it intersects with non-linguistic being, it reminded me that Hegel can be read anew by the way and so much more. It changed everything. And then some years later my first monograph, following the translation of his The Coming Community into Greek, was dedicated to Agamben’s thought and my attempt there, immature as it were, was simply driven to show (and I think I was the first to show) that Agamben was misread by the legal and political philosophers in his early reception because to put it simply, they were only reading the then thin-volumed Homo Sacer series and they were missing his crucial manner of thought entirely and when they got frustrated they would later complain that he either is not describing the reality they see or that he does not solve the problems they perceive. I would not be surprised if someone, say in the field of law, reads the book and complains that I have not determined the exact birth of law once and for all.
So, of course, my study of and with Agamben has played a key role in my learning, but I am not a disciple and I do not think it helps anyone to be such (Agamben, or whomever, cannot be applied to this or that). With his work, it was more a matter of genuine love for the manner of thinking or rediscovering what thinking and reading can do, and that drives my work, including the book on nomos. Speaking of a labour of love I would say that the nomos book, to the extent that I can know that, emerged as something that I have been thinking of pursuing for more than 20 years now, from my early fascination with the traditions of poetry, law and religion in my teenage years, and with the Greek literature and philosophy in particular, to the early days of my doctoral study and my work on Heraclitus’ fragments and the work of Kostas Axelos (another of my key influences in life and thought whose reading of nomos in Heraclitus was refreshing to me).
Readers of the nomos book rightly tell me that it is closely in conversation with Agamben’s work even though I only make direct reference to Agamben (or to philosophy as such for that matter!) in specific moments and sections, all of which are relatively very brief. I have to admit that I was aware of this influence but not conscious when writing the book, which is interesting in itself at least for me. It is not, in my view, as one rather idiotically could say forgive me, an Agambenian book, it just seems to confirm at times some of Agamben’s thinking about ‘law’. That to me is more important and I would be honoured if that connection can be made. In the section on Pindar’s poem that is though a slightly different matter, for Agamben’s engagement with the poem on nomos basileus is distinctive and the most important reading of our time, in my view. I had to devote a significant section and my ‘scrutiny’ as you say largely confirms his intuition and analysis, while it places my own reading a bit more closely to the complex range of classical philology on the matter, but that was not his purpose to be fair.
Even though with this book, you do not advance a “theory of law”, and not even a theory of the “origin of law”, your research seems to be an invitation to look at the law from a different angle. In the end, every research on the past of an object is also a questioning of the same object. Do you see your genealogy of the word nomos as opening up new paths for an alternative comprehension of the law’s form?
I do not expand on this in the book itself but I think you are right in raising it because of course, we cannot ignore the past as some would have us do (I was once told in a seminar ‘Forget Foucault!’ – and I’d rather not). I was once also told ‘why do we need history studies in law?’ – I remain as baffled by the narrow-mindedness of this question today as I was then. Naturally to the extent that my academic life involves me in legal studies, and most of the time unhappily I have to say, my interest genuinely lies with the “past futures” of this and other related notions (I am equally interested in the notion of ‘institution’ and that of ‘tradition’, for that matter). But my primary aim is to study the so-called future that lies in the past I have to emphasize.
I have a lot less interest now than I did when I was younger in theorising, or let me say I have found a happier place to be in the classics and in philosophical thinking along with what I can draw from the ancient (literary and non-literary) sources. This is where all my work in the future will take place, I believe. But whether it takes me into the direction of directly expressing a rethinking of modern understandings of law I am not sure yet. Who knows!? Perhaps someone else should do that, and I would like to read it! One thing that however is possible for me to say is that there is a lot, if not most things, that we can learn about the law today as a phenomenon by studying its many past incidences. And crucially, the way, the mode in which we are to study the plurality of these pasts remains in need of great care and a process of unlearning in the first place. I hope to have contributed to that myself.
On the political side of things, or what you call critique, I would say we need to say few words and do much more in our practical living: the key here that emerges is that the intimate relationship between law and life has to be regained and it has to be redirected towards the happier life, our common nomos, an ethology in that sense. Which is not to disregard the technicality of law and its modern necessity or the way our societies are functionally differentiated and complex but it is to remind us that there is a reason why one wakes up after all and that it has to be so that one’s laws make one’s (everyone’s) life happier, rather than not. I am not sure we have achieved that or whether we will.