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§1. Isonomia. Tradition has forgotten Cleisthenes; of all the great ‘legislators’ of ancient Greece, however, he is doubtless the one whose decisions have produced the most serious consequences – and have enjoyed the most enduring legacy. Unlike his predecessors Draco or Solon, he left just a spectre of his existence; we know of his life only through Herodotus’ account – and of his laws only through the criticisms of his opponents. But it is a spectre that has forever haunted the history of Europe, as though, at a moment that was as crucial as it was unexpected, it had bestowed on it the decisive direction towards what, for modern man, it was destined to become. When we speak of Greek ‘democracy’, of the political moment when, suddenly, a new concept bursts into the history of governance and breaks the old equilibrium of aristocracies, it is really of Cleisthenes that we are speaking. Because it was Cleisthenes who, in order to block the attempt to establish an oligarchy in Athens after the tyrant Hippias had been forced out at the beginning of the fifth century bce, decided, for the first time, to call on the demos. Where the former equilibrium had been based on a familial logic, in order to reform the city’s institutions so that no tyranny could ever return, Cleisthenes chose to embrace a geographical logic. Until then, Athens had been governed primarily by the aristocratic members of the four major Ionian tribes; from now on, it would be governed by the inhabitants of the one hundred ‘demes’ into which he divided the city’s territory. To this new equilibrium, the name ‘isonomia’ was given – equality in the attribution to each of the share to which they were entitled in the city’s governance, guaranteed by the institutions that Cleisthenes had created to this end. We should even, perhaps, be more precise: isonomia did not just define a form of equality in the attribution of stakes; most importantly, it defined a form of equality before the instrument of this attribution. An instrument for which Cleisthenes invented the name, at the same time that he revealed, through the reforms he conducted with its support, the principles that governed it – the name ‘nomos’, the name of ‘Law’.

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§2. Thesmos. Contrary to a common misconception, the invention in Greece of what we still call ‘Law’ was a phenomenon as belated as it was localized – a kind of exotic singularity, belonging to Cleisthenes’ reforms. Before them (before, say, 507–506 bce), no one in the Greek world had ever paid sustained attention to the word ‘nomos’, or imagined that it could signify something like a ‘Law’. This is not to say that the word was unknown: a great variety of usages have been noted, going back to Hesiod (it does not exist in Homer) and encompassing a large proportion of ancient Greek literature, extending to Pindar and Aeschylus. Notwithstanding this diversity of usage, however, none implied the very peculiar form of normativity that has habitually been associated with the idea of ‘Law’, and which Cleisthenes helped instigate. Before his intervention, the Greeks were not familiar with the idea of ‘Law’; they knew only a constrained form of decision or commandment which they called ‘thesmos’ – ‘that which is posited’. When, a century before Cleisthenes, Solon recalled the decisions he had made during his archonship, congratulating himself on the wisdom they demonstrated, he did not employ the word ‘nomos’, but rather ‘thesmos’. It would have been absurd to consider the matter any further: since Homer, this was the word that had been used to refer to the results of the political activity of the city’s leaders inasmuch as it was a matter of an activity focused on positing something. As Émile Benveniste once noted, the Indo-European root *dhè– (which is also found in ancient India, in words such as dharma and dhaman) indicates the foundation, establishment in existence. But this foundation and this establishment never operate generally; they cannot be dissociated from the place [lieu] in which they operate – you only posit in the setting [milieu] of that which posits: thesmos is both the posited and that which posits. Neither Law nor constitution, it is institution in the most original, elementary and rigorous sense; it is the fiat by which what did not exist suddenly appears in the world, finally obtaining the existence that, until then, it lacked.

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§3. Rhêtra. Nothing was more opposed to the idea of institution than the idea of ‘Law’, than the word ‘nomos’ that Cleisthenes had made the cornerstone of his reforms: in no sense did ‘Law’, as he conceived it, aim to ‘institute’. But neither did it aim to ‘constitute’, in the sense that it would have sought to provide the city with something like a charter summarizing the fundamental principles governing its operation. The Greeks had a separate word for this too: the word ‘rhêtra’ – or the ‘thing said’ (rhêtra is linked to the verb ‘to say’, rhêto), that which has been pronounced once and for all, and to which it is no longer necessary to return. It was a word occurring even more rarely than the word ‘nomos’, and seems only to be confirmed in the case of the Spartan ‘constitution’, as discussed by Plutarch in the Life of Lycurgus (VI, 1–3) – which may have been authored by Lycurgus. The ‘Great Rhetra’, as Plutarch called it, took the form of an oracle given by the Apollo of Delphi, which Lycurgus was said to have taken back to Sparta, to make it the foundational text on which to base the order of the city. In contrast to thesmos, which depended, so to speak, on the demiurgic power of the individual delivering it, rhêtra enjoyed a privileged link with the world of the gods – coming, as it did, from the mouth of one of them. The order of the city discovered in the divine order a kind of indirect origin, which conferred on it a ‘sacred’ dimension – an extraordinary quality establishing the rules by which it was defined in a dimension no longer accessible to everyone. It was no longer a question of a singular fiat, the work of a ‘thesmothete’ like Solon; but rather of a normative emanation of the divine, for which the legislator was just a humble spokesperson, bound by it like everyone else. When he decided to establish a form of isonomia in Athens, however, this was not what Cleisthenes was thinking: the nomoi he passed were claimed to be neither the emanation of another order, nor the simple result of a legislator’s desire. Cleisthenes had a completely different conception of ‘Law’ in mind, one where the main player in the legislative act would no longer be a god or a legislator, but the city itself.

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§4. Nemô. Along with the idea of ‘Law’, there also appeared in Greece the idea that the decisions taken by the leaders of the city required justification – a justification that did not simply take the form of a short circuit with the divine world. The word ‘nomos’ itself conveys the different significations that its history has introduced into it, all of which turn around what we might refer to as ‘measurement’. Nomos comes from metrology: it deals with the weighing of rights and duties within the city, just as, in music, it could signify the temporal unity with which participants must coordinate in order to play together. Because the ‘measurement’ in question is a shared [partagée] measurement – as suggested by the Indo-European root *nem, from which the verb nemô, meaning ‘to distribute’ (which gives us ‘nomos’), is, it would seem, derived. A measurement that was not shared would not be a measurement; it would be a kind of hapax, an incomparable singularity, incommensurable with any other, as arbitrary and without justification as a caprice. The irruption of the word ‘nomos’ into political and juridical discourse signals, therefore, the inauguration of an order of measurement, of a shared mechanism that would at last allow for the measurement of measurements. Nomos is what allocates to each the share to which they are entitled, the sum of which establishes the sharing of the city; it is the medium for ordering the order specific to the city, and of what is shared there. When he sought to institute isonomia in Athens, Cleisthenes did not intend anything but this: to confer on each their share – or to ensure that everyone received their due in the order of Law. Isonomia was the equality of Law and equality before the Law; it announced that from now on there would be a rule shared by all, and no longer only the unilateral imposition of the will of a few. This is the reason why many have seen here the first democratic moment of ancient Greece – and, to the extent that we continue to believe in the ‘Law’, in nomos, it is a moment that is still today our legacy.

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§5. Philosophy. A banal observation: the philosophical tradition followed immediately in the steps of Cleisthenes and his reforms, producing countless meditations on the theme of nomos, which we still read today. The best known of these are by Plato and Aristotle – but they are incomprehensible if we do not keep in mind that they were conceived in response to theories produced by the Sophists. In fact, at the beginning of the fifth century bce in Athens, the debate on the nature of nomos gave tangible form to the fault line that for a long time would delineate the opposition between philosophy and its outside. The nature of this outside is at first difficult to define – but we can say that, in the Sophists, it finds an incarnation through which it can be approached. Were they politicians, lawyers, lecturers or jurists? Maybe a bit of all at once; what is certain, however, is that, in contrast to the philosophers, the Sophists seemed to think that the invention of nomos brought little change to the order of the city. The invention of ‘Law’ was little more than a civilized, polite and dressed-up version of something the inhabitants of Athens had always respected without question – namely, custom, tradition or practice. If Plato and Aristotle decided to follow the change in political vocabulary put forward by Cleisthenes, each in his own way seeking to establish its meaning, it was because they thought otherwise. The order of the city could not be left to customs, traditions or practices, even if its administration should somehow find in them something like an origin or a limit. Be it Plato or Aristotle, after Cleisthenes’ reforms, the philosophers all moved in the same direction: what interested them most in the concept of nomos was not variability, but permanence. For Greek philosophy, the innovation introduced by the idea of ‘Law’ was not only that an order existed, but that this order found all the justification it needed in itself. The order, in other words, before being the result of the imposition of a force on the population, and before being a collection of principles enacting its inequitable division, was an idea.

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§6. Order. The first to have made the ideal nature of the concept of nomos perceptible was doubtless Heraclitus, one of whose fragments took up the connection that, according to him, existed between human nomos and divine nomos. This connection was not one of participation, as might have been the case with the Great Rhetra of Sparta; it was a connection rooted more in analogy, in a structural relationship between the two forms of nomos. Heraclitus wrote: ‘τρέφονται γἀρ πάντες οί ἀνθρώπειοι νόμοι ὑπὸ ένὸς τοῦ θείου’ – that is: ‘For, all the nomoi of men are nourished by that of the gods.’ Unlike the oracle of Apollo brought back to Sparta by Lycurgus, human nomos was not the simple word of a god, whose meaning it was then a matter of implementing in the city context. It was in fact the same thing as the divine nomos; it was equivalent to it inasmuch as the divine nomos was the model of all order, that which embodied the ideal of order – or rather the ideal order. The best proof of this was certainly the fact that Heraclitus spoke of the divine nomos in the singular: there was only one divine nomos; the divine nomos was the one Law, the one order, from which the multiple human nomoi drew their inspiration. As many scholars have noted, this analogical relation with the divine nomos was, paradoxically, what permitted the claim that human nomoi were in no way rooted in the sphere of the sacred. The ideal is not the sacred or the divine; it is that whose transcendental incarnation is sometimes supplied by the sacred and the divine – without ever, for all that, exhausting its structural richness, or even supplying its terminus ad quem. In distinguishing between two domains of nomos, Heraclitus simply highlighted the existence of two manifestations, among other possible manifestations, of what the idea of order was in the first place: an ideal category. Order was an abstraction; it constituted the regulatory universe within which every concrete ‘Law’ must take place, and so indicated, by necessity, its eternal form; order was a category of order. Following Cleisthenes, this is what Plato and Aristotle effectively countersigned when they decided to adopt the vocabulary he had introduced into Athenian juridical life.

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§7. Polis. Law is indistinguishable from order; order and Law are one thing, and the word ‘nomos’ affirms their irreducible identity, their perfect superposition: Law is Law of order and order is order of Law. This identification of Law with order is what distinguished the word ‘nomos’ from the word ‘thesmos’, which did not in any way encompass a general dimension of order, but rather a singular dimension of will or force. Legal historians have suggested an explanation for this slow drift towards the acceptance, in Athens, of the generalization and abstraction of Law as order – together with the gradual progress of legislation towards the written form. This explanation goes as follows: as Cleisthenes had intended, the development of a logic of order was a way of withdrawing jurisdiction over disputes from the great families, so that it could be handed over to the city. Indeed, for a long time, the resolution of disputes had been the recognized competence of all those in a position to judge, on a case-by-case basis, between the opposing parties. Anyone who had a degree of authority (based on their age, reputation or the simple choice of the parties involved) could play this kind of mediating role, without having to make clear the reasons for the decision they made. In the age of nomos, on the other hand, the power to establish Laws and protect order would no longer belong to the great families, nor even to the leaders of the city, but to the city itself, by means of its institutions. Rather than an imprecise and uncertain bundle of decisions, it was now necessary for the state of the legislation in force to be verifiable – singular and concrete forms that could be apprehended in the general and abstract form of order. But this verification could only exist insofar as control of what order meant was taken away from just anybody (namely the citizens) and given over to something transcending them (namely the City, the polis). The rule of Law, as the rule of order, was therefore the rule of the City; it was the City considered as such, which is to say as superior to its citizens, that established the true meaning of the structural abstraction of order.

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§8. Thémis. In fact, gathering in a single conceptual gesture the ideas of Law, order and City was a radical departure from the conception the Greeks had had, until that time, of order. If, as Benveniste maintained, the concept of order belonged to the most elementary and most fundamental register of Indo-European vocabulary, then their very language was marked by it. The root *ar–, found in a whole series of Greek locutions (like arariskô, to adjust, to harmonize), and which suggested the idea of articulation, adjustment, sequencing [ordonnancement], opened a first path. But it was another root, belonging to the same linguistic constellation, that was, according to Benveniste, to prove decisive: the root *dhè–, of which we have already spoken in the context of thesmoi. Thesmos was not, in fact, the decision of just any leader; in ancient Greece, it was the measure decreed by the one who, as the head of a family, a genos, warranted the title ‘themiste’. This was a bifid title: on the one hand, the one who had the power to deliver thesmoi was considered a ‘themiste’; but, on the other, this power flowed from a superior power, which was called ‘thémis’. The concept of thémis has most commonly been translated as ‘justice’ – but the ‘justice’ in question had nothing to do with the kind of ethical value the concept has come to embody. It was a question of the ‘justice’ of the home, of the family, of the genos – of ‘justice’ as a characteristic feature of the order of the home, as opposed to that which does not participate in it, and is of the order of dikè. ‘Justice’ was the quality proper to the genos, which, because it was under his direction, was also guaranteed by the ‘themiste’; it was the quality of the fact that the family existed – and that this family was ordered. But this quality was not abstract; it served to define the singular and concrete group, where the themiste, even though he was its chief, was only a more eminent member. Ultimately, ‘justice’ indicated nothing other than the ‘nature of things’ that the law of the family professed to regulate.

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§9. Phusis. When they started to critique the idea of nomos in the name of phusis, of the ‘nature of things’, the sin committed by the Sophists was perhaps, therefore, one of excessive nostalgia, or blindness to the changes taking place in front of them. To defend phusis against nomos was effectively to defend the order of the genos against the order of the polis, the concrete order of the family against the abstract order of the City, by which it had, moreover, been intentionally consigned to history. Indeed, where, in the age of ancient thémis, before it became an ethical value, order had been regulated according to criteria coming from a reality external to what was to be regulated, it now regulated itself. Nomos had become its own regulation, since the order that had produced it was precisely the one it was establishing, and for which it was claiming to define the programme – at the same time as it was defined by it. There was something closed, shut off, tautological, in the establishment of the idea of Law: the tautology that always accompanies an abstraction when it seeks to constitute its own stratum of reality. It was this tautology that the Sophists (with Protagoras first in line) attempted to critique through recourse to phusis, without grasping the desperate nature of this attempt. The order of nomos was of such novelty that everything based in a former configuration had lost all purchase on it – this being precisely what it wanted to rid itself of. It was pointless to confront it with the necessity of rediscovering the concrete ground of the judicial decision, of reconciling itself with the familial unity of the former jurisdiction, or of taking up again a thesmotic conception of regulation. From the moment it became a question of smashing the former order of justice that the great families had hoped to see endure, as had been Cleisthenes’ goal with his programme of reforms, it became equally necessary to abandon, or at least reinvent, all the categories that were rooted in. And for Cleisthenes, as for Plato and Aristotle, this reinvention could take but one form: a form, authorized by the invention of nomos, that decisively affirmed the superiority of the City over everything it contained – starting with the citizens.

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§10. Anomia. The pre-eminence, in ancient Greece, of the city over the citizens, of the polis over the politès, was not, moreover, a matter of simple chance; it too belongs, if we are to believe Benveniste, to the very structure of the Greek language. In the history of the language’s development, he recalls, the word ‘politès’ must be considered a derivation from the word ‘polis’ – a direct linguistic consequence of its establishment. From the perspective of language, there is no possible ‘politès’ prior to the existence of the polis, because the word ‘polis’ is the linguistic kernel of the word ‘politès’, which is only the result of its extension. This means that the citizen, in ancient Greece, was supplementary to the City; he was accessory to the essential City; he issued from and depended on the polis, which was ‘necessary and sufficient for defining the politès’. Without the City, the citizen, beneficiary of the rights it accorded him and recipient of the offices and privileges it bestowed on him, did not exist; he was just a nameless and unattached individual, drifting in a hostile, chaotic and dissolute world. To bring order to the world, and so that the individual could benefit from it, an entity had to exist through which all order was established – because it constituted its primary embodiment. But this entity, Benveniste adds, was embodied ‘in neither a structure, nor an institution, nor an assembly’; it was an ‘abstract body’, existing by itself, independent of men. For the Greeks, the city was the abstract idea of order; the city was nomos; the city was archè, the principle without which everything was in danger of sinking into anomia, into illegality, which was also disorder – and vice versa. It is, therefore, as the central category in a political ecology based on abstraction and generalization that we should consider the idea of nomos, the Greek invention of ‘Law’, and its defence by the philosophers. This is particularly troubling as the whole juridical culture of the West has chosen to follow them and to make the idea of nomos into a transcendental category serving to articulate its understanding of Right [droit]. Just as the pre-eminence of the city over the citizens is still the motto of political vocabulary, so, for juridical vocabulary, the omnipotence of Law remains the most indisputable truth.