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Book V: Law
Chapter 1. Thémis
The root common to Skt. r̥ta, Iran. arta, Lat. ars, artus, ritus, which designates “order” as a harmonious arrangement of the parts of a whole, did not provide any juridical term in Indo-European.
“Law” is in Skt. dhāman and in Gr. thémis, and the term means literally the rule established (root *dhē– ‘to bring into existence’) by the gods. This rule defines family law: thus thémis is opposed to díkē ‘interfamily law’.
The general structure of society, defined in its broad divisions by a certain number of concepts, rests on an assemblage of norms which add up to “law.” All societies, even the most primitive, and a fortiori Indo-European society (we have seen that it had a rich material civilization and a no less rich culture), are governed by principles of law relating both to persons and goods. These rules and these norms are traceable in the vocabulary.
By what means can we gain knowledge of the juridical organization of Indo-European society? Is there a term which goes back to the original common period and denotes “law”? To a question posed in these terms which imply both the generality of the notion and all the languages concerned the answer must be in the negative. There are numerous terms for “law,” but they are all confined to one of the separate languages. However, the chief terms concerned are connected with elements of the common vocabulary and may be evidence for special legal terms going back to Indo-European times.
It will be necessary to study both the origin of the terms attested in historical times and their evolution, which, starting from common terms, has specialized their sense so that in the end they developed into names for institutions.
We can in the first place posit for common Indo-European an extremely important concept, that of “order.” It is represented by Vedic r̥ta, Iranian arta (Avestan aša, by a special phonetic development). We have here one of the cardinal notions of the legal world of the Indo-European, to say nothing of their religious and moral ideas: this is the concept of “Order,” which governs also the orderliness of the universe, the movement of the stars, the regularity of the seasons and the years; further, the relations of gods and men; and finally, the relations of men to one another. Nothing which concerns man or the world falls outside the realm of “Order.” It is thus the foundation, both religious and moral, of every society. Without this principle everything would revert to chaos.
The importance of this notion is shown by the considerable number of lexical forms drawn from it. It would be pointless to enumerate in full all the Indic and Iranian derivatives of r̥ta and arta, both in the vocabulary and proper names. That the term belongs to an ancient stratum of Indo-Iranian is shown by certain archaisms of morphology: the one “who is faithful to arta, who is morally accomplished” is called in Sanskrit r̥ta–van, feminine r̥ta–varī; similarly we have in Iranian artavan, artavarī. This remarkable difference between the masculine and the feminine of the suffixal form –van, –varī is explained by the ancient mode of declension which is called “heteroclitic,” which has left traces in the declension of Greek húdōr, húdatos and Latin iter, itineris.
Moreover in the Avesta this notion is personified: we find a god Arta. With the aid of an abstract suffix –tu-, Indo-Iranian formed the stem Vedic r̥tu-, Avestan ratu-, which designated “order,” particularly in the seasons and periods of time, and also “rule” and “norm” in a general sense.
All these forms are referable to a root ar-, which is well-known because of numerous formations outside Indo-Iranian which belong to several of the formal categories just mentioned. The root is that of Greek ararískō ‘fit, adapt, harmonize’ (Arm. aṙnel ‘make’), which is connected with a number of nominal derivatives. Some are formed with the suffix –ti-, e.g. Lat. ars, artis, ‘natural disposition, qualification, talent’; others with –tu-, e.g. Lat. artus ‘joint’ and also, with a different form of the root, ritus ‘rite’; Gr. artús (Arm. ard, genitive ardu ‘order’), as well as the present tense artúnō ‘arrange, equip’; with *-dhmo-, Gr. arthmós ‘bond, league, friendship’; and finally with *-dhro-, Gr. árthron ‘joint, limb’.
Everywhere the same notion is still perceptible: order, arrangement, the close mutual adaptation of the parts of a whole to one another, even though the derivatives have undergone different semantic specialization in the different languages. We thus have for Indo-European a general concept which embraces, by numerous lexical variants, the religious, legal, and technical aspects of “order.” But within each domain distinctive terms were found necessary. This is why “law” was given more precise expressions which must be studied each in their proper sphere. We limit our study to some of the most important.
In Vedic Sanskrit we find first the term dharma-, neuter dharman, which is equivalent to “law,” but the proper sense is “what is maintained, held fast” (from dhar– ‘to hold’), and, according to the context, “custom, rule, usage.” It is a term of great importance in religion, philosophy, and also in law, but it is confined to India.
This Indo-Iranian root dhar– ‘hold firmly’ corresponds probably to that of Latin firmus, which has a formation in –m– like dharman. The “law” as thus named is “what holds firmly, what is solidly established.”
Another way of looking at it is reflected in Skt. dhāman ‘law’,and also “seat,” “place.” The formation of dhāman is parallel with that of dharman, but it comes from the root dhā– ‘place’, ‘put’, Indo-European *dhē– ‘put, place, establish’, to which Latin facio and Greek títhēmi are also traced. It should be noted that the strict sense of *dhē is “to put (in a creative way), establish in existence,” and not simply to leave an object on the ground. The derivative dhāman thus designates “the establishment,” both what is placed and created, and the place of the “putting” or “establishing”; in other words it designates the domain, the site and also the thing put or created in the world. Given this basic meaning, we see how the meaning of “law” is also defined by dhāman: law is in the first place an “establishment,” an institution that is founded and so takes on existence.
This conception is not confined to Indo-Iranian. We also find in other languages terms derived from the same root which are connected with the vocabulary of law. We have several of the greatest importance in Greek. First, thesmós (Doric thethmós, tethmós, an old reduplicated form *dhedhmo-) ‘that which is laid down, law, ordinance’. But the most notable term is thémis.
The formation of thémis is close to that of thémethla (in Homer themeília) which is a building term meaning “base, foundation.” Thémis presents an archaic type of declension: in Homer the genitive is thémistos and the plural thémista, but later we have the normalized forms genitive thémitos, accusative thémin. The word was probably an ancient neuter. At the moment the Mycenaean form ti–mi–to can contribute nothing, either morphological or semantic, to our problem, though it has been compared with thémis.
Apart from the quantity of the root vowel, thémis is exactly comparable to the Avestan dāmi– as regards its formation, and this equation is remarkable because suffixation with –mis, like that seen in dúnamis, is extremely rare. This makes it probable that thémis is a word of great antiquity and that it has undergone morphological modifications which tended to normalize an archaic mode of declension.
The Avestan dāmi-, on the other hand, has become an agent noun and means “creator.” If we look for a word corresponding to thémis which has the same sense, we find it in the derived neuter in –man made from the same root in Indo-Iranian: this is dhāman ‘law’, the precise sense of which is, within the order prescribed by Mithra and Varuna, an ordinance relating to the house and to the family. This is an important specification, because it shows the sphere of application of this law. Now, what does thémis mean? Here we have a striking correlation: thémis designates family law as opposed to díkē, which is law that holds good among the families that make up a tribe. 
This point must be stressed, for the dictionaries take no account of this distinction. Further, thémis is of divine origin. Only this sense enables us to understand and unify uses which look very different. In the epic, what is understood under thémis is the prescription which lays down the rights and duties of each person under the authority of the chief of the génos, whether in everyday life or in exceptional circumstances: alliance, marriage, war.
Thémis is the prerogative of the basileús; it is of heavenly origin, and the plural thémistes stands for the sum total of these ordinances, which is a code inspired by the gods, a set of unwritten laws, a collection of dicta, of oracular responses, which determine, in the conscience of the judge (in actual fact the head of the family), how to proceed every time the order of the génos is at stake.
The specific characteristics of this notion can be found in the most stereotyped expressions. Let us consider the stock phrase hḕ thémis estín, which is usually translated “as is meet and right.” An example is Il. 2, 72-73: “First I will make trial of them with words, hḕ thémis estín.” Here Agamemnon is speaking in his capacity as basileús responsible for his army; he is their chief, and he exercises the thémis, which prescribes the way he has to proceed and the usages to be observed. This thémis is manifested by thémistes, which are decrees, or ordinances. In Book 16 of the Iliad, l. 387, we see “the anger of Zeus towards men who in the assembly judge crooked thémistes through violence,” that is, those who deliver, by the use of violence, unjust decrees.
Sometimes the context is indispensable for the understanding of the sense. Patroclus rushes into the fray and lays low a succession of opponents; but his death is being prepared, although he does not know it, for Phoebus Apollo himself comes to meet him in disguise.
From his head Phoebus Apollo smote the helmet and as it rolled it rang loud beneath the feet of the horses … and the plumes were befouled with blood and dust… Not until then had it been thémis (ou thémis ē̂en) for the helmet with the plume of horse-hair to be befouled with dust, but it guarded the head and comely brow of a godlike man, of Achilles; but then Zeus granted it to Hector to wear on his head.
It is expressly stated: it was in virtue of a divine order that this helmet which belonged to Achilles must never be sullied with dust. This is because Achilles is a “godlike man” (anḕr theîos, l. 798); he is a member of the divine family and even his arms enjoy this divine privilege.
This social organization and the thémis which is operative within it is better brought out by the inverse picture which the poet sketches in his description of the land of the Cyclops. These, he says, are athémistes; among them there are neither deliberative assemblies nor thémistes; each one lays down his own law (themisteúei) to his wife and children and none has regard for the others (Od. 9, 106-115). This provides an illuminating definition of the concept of thémis. Where there is no génos and no king there can be no thémis or assembly. Each family lives according to its own law. These Cyclops are certainly savages.
We now turn to a text which presents a correlation between the two terms thémis and díkē so that the study of one leads on to that of the other. Odysseus has been received by Eumaeus without being recognized by him and he thanks him for his hospitality: “May Zeus and the other gods grant you all you desire.” Eumaeus replies: “Thémis does not allow me (oú moi thémis ést’) to do outrage to a guest even if one came to me even more wretched than you. For all guests come from Zeus and beggars too” (Od. 14, 53ff.).
Thus a stranger is received within the family because of thémis, because he comes from Zeus. Eumaeus continues: “I can give you only a paltry gift but I give it gladly; for that is the díkē of slaves, always in fear when new masters have power …” He is thinking of the tyrannical, capricious and brutal domination of the suitors. This time the use of díkē shows clearly that it goes beyond the confines of the family and concerns relations with other groups. Justice and law are strictly defined by the limits of the domain within which they apply.
Everything reminds us that this thémis, these thémistes were not invented or arbitrarily laid down by those who have to apply them: they are of divine origin. As Nestor says to Agamemnon, son of Atreus: “You rule over numerous laoí, to you Zeus has entrusted the scepter and the thémistes, so that you can guide their deliberations” (Il. 9, 97). The king, designated by Zeus, is invested with these two attributes: one, the scepter, is material; the other is knowledge of the thémistes.
At the other social extremity, the swineherd Eumaeus, a man of the humblest status, also invokes thémis to do better honor to his guest who comes from Zeus. Everywhere we find proof of this relation between the order within the génos and divine decisions. Outside Homeric civilization we find in Indic dhāman a precise correspondent of thémis: it is the order within the house and the family established by divine will, that of Mitra and Varuṇa.
[ back ] 1. The history of these two terms, their exact meaning and their relationship have been studied in an excellent work by Gustave Glotz, La solidarité de la famille dans le droit criminel grec, Paris, 1904 (see especially p. 21).