The Myth of the Priority of Procedure over Substance in the Light of Early Greek Epos

Law can be shaped or considered ineach of the two following ways: on theone hand, as a ‘system of rights’, so thatactions are just the remedies created– on the subsidiary level of procedurallaw – to uphold them; on the other hand,as a ‘system of actions’, so that legalprotection comes conceptually and operativelybefore legal acknowledgment,since, if an action is made available, thatmeans that simultaneously an implicitright is given. In the light of such a basicdistinction, some general questions ipsoiure arise on the ground of both ‘jurisprudence’and ‘history of ancient Greeklegal systems’. Is it exact to assume thatthe above mentioned difference is onlyone of emphasis? Is it exact to supposethe chronological priority of procedurallaw over substantive law? Is it exact toconsider the State and its legal processas the essential requirements to meet inorder to consider a given system of rulesa very legal system? As regards the legalconcepts emerging from Homer and Hesiod,the communis opinio interprets thesign dike at first as ‘settlement or decisionbetween two parties’; consequentlyonce he one assumes that the so called‘forms of actions’ are the primeval pillarsof the archaic Greek legal systems,and that the ‘judge’ (or better the ‘arbiter’)is the prototype of the institutionalizedcreator of legal rules. Through theexegesis of early Greek epos, this articleaims at demonstrating: the incorrectnessof the analysis that considers the antithesisbetween substance and procedure asa mere question of emphasis, and, aboveall, the original Greek monism (giventhat the opposite view, supporting thepriority of procedure over substance,is just an anti-historical and aprioristicone, since it is deeply – perhaps unconsciously– influenced by the so calledRoman ‘aktionenrechtliches Denken’and it is founded on a partisan readingof the sources).