Resurrecting the Law: State Formation and Legal Debates in Nineteenth-Century Greece

Abstract

This paper discusses the legal debates of nineteenth-century Greece and the attempts to produce a legal framework following the establishment of the modern Greek state. These debates had both a practical significance since such a framework was essential for the creation of a modern state, and an ideological one since the chosen framework would be a statement about how the new state perceived itself, its history, and its place in Europe. These questions were particularly relevant in the case of civil law as Greek legal scholars contemplated whether to accept the use of customary law, or to reject it, and if so what laws should replace it. In this paper, I examine this debate within the context of European legal developments and the process of codification undertaken throughout Europe from the late eighteenth to the nineteenth centuries, as well as the ideological and practical implications of the debate. I argue that, despite the belief that the efforts of Greek legal scholars led to the elimination of the use of customary law from the Greek judicial system, my research in the archival material of the Appeals Court of Athens indicates that customary law was still dominant a generation after the establishment of the modern Greek state. I conclude that a re-examination of the role and practices of the Greek courts in the nineteenth century is much needed as their flexibility thirty years after the creation of the Greek state is closer to the legal pluralism of the courts of the Ottoman period than to the model advocated by the contemporary legal scholars who demanded a ‘modern’ judicial system to assist the renaissance of the Greek nation.