GREEK LAW in its Political Setting Justifications not justice

GREEK LAW

in its Political Setting

Justifications not

justice

Edited by L. Foxhalk and A. D.E. Lewis

CLARENDON PRESS · OXFORD 1996

-iii-

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British Library Cataloguing in Publication Data Data

available

Library of Congress Cataloging in Publication Data

Greek law in its political setting: justification not justice

edited by L. Foxhall and A. D. E. Lewis. Includes

bibliographical references.

I. Law, Greek. I. Foxhall, Lin. II. Lewis, A. D. E. KL

4121.G 74 1996 340.5.38 -- dc 20 95-4-1087 ISBN 0-19-

814085-1

1 3 5 7 9 10 8 6 4 2

Set by Hope Services (Abingdon) Ltd. Printed in Great

Britain on acid-free paper by Bookcraft (Bath) Ltd.,

Midsomer Norton

-iv-

Contents

List of Figures

vii

Notes on Citations and References

viii

- I: Introduction

2: Written in Stone? Liberty, Equality, Orality and the

Codification of Law

- 3: Deconstructing Gortyn: When is a Code a Code?

- 4: Oaths and Dispute Settlement in Ancient Greek

Law

- 5: Even Dogs Have Erinyes: Sanctions in Athenian

Practice and Thinking

- 6: Plato on the Treatment of Heretics

- 7: Lysias Against Nikomachos: the Fate of the Expert

in Athenian Law

- 8: The Law and the Lady: Women and Legal

Proceedings in Classical Athens

List of Contributors

153

List of References

155

Index of Sources

167

General Index

171

-v-

List of Figures

2. Matrix of Penalties in lC IV 72 col.

3. IC IV 81

4. IC IV 43

5. Family Relationships of the

Persons involved in Demosthenes'

Inheritance Dispute Demosthenes

27-30)

145

6. Family Relationships of the

148

Persons involved in Lysias 32

-vii-

Note on Citations and References

In a book which draws on a wide range of

interdisciplinary scholarship, and which is itself

intended to be accessible to a broad readership from

several backgrounds, the editors have avoided

abbreviating titles of journals and ancient sources. For

ancient literary sources, full English titles have normally

been used in text references. References to inscriptions

have been cited as standard Harvard-system references

whenever possible. However, the standard collections of

inscriptions and papyri, which form the basic

foundations for the study and use of epigraphical and

papyrological sources, and whose reference numbers

uniquely identify individual inscriptions and papyri,

have been cited using the normal conventions:

IG Inscriptiones Graecae ( Berlin, 1873- )

SEG Supplementum epigraphicum Graecum

IC Inscriptions Creticae; IC IV = Guarducci ( 1950)

P.Oxy.

The Oxyrhynchus Papyri ( London, 1898- )

-viii-

Introduction

LIN FOXHALL AND ANDREW LEWIS

This volume examines some of the many ways in which

law integrated with other aspects of life in ancient

Greece, and explores the extent and the limits of that

integration. The idea for the seminar series, held at the

Institute of Classical Studies in 1989, in which this work

originated, arose from our sense of discontent with the

formalist and evolutionist approaches which have played

a major part in the traditions of Greek legal studies. The

papers presented in that seminar and collected here

reveal a number of different pathways between law and

political, social, and economic life in Greek societies.

Emanating from different scholarly traditions of the

study of ancient law, these papers offer a range of

contrasting but complementary insights rarely collected

together. The editors, an ancient historian with some

background in anthropology and a lawyer specializing in

legal history, are eager that the volume should

communicate with readers interested in the history and

development of law from a wide range of backgrounds.

To this end we have made efforts to keep both classical

quotation and legal jargon to a minimum and to explain

those technical terms used in the text. For further

assistance we would refer the reader to the excellent

glossary in Todd ( 1993); there is a less full glossary in

Cartledge et al. ( 1990).

To abandon formalism is not to reduce law to social

history. Indeed, it is impossible to write social history

directly from law (the recent attempts by Sealey 1990

and just 1989 are not really successful), for law focuses

on the exceptional, the difficult, and the ambiguous parts

of social life, rather than the ordinary. Cohen's recent

work ( 1991) admirably demonstrates the difficulties of

relating lived moral systems to the legal 'rules'. Clearly

he has seen the intellectual pitfalls of trying to

reconstruct social systems directly from legal sources,

and adeptly avoids them by categorizing his

-1-

work as 'an exercise in historical legal sociology' ( Cohen

1991: 5), in an allusion to a modern classic of English

legal positivism (Hart 1961). Surviving laws and legal

information from ancient Greece, even when we possess

large so-called 'codes' like the famous example from

Gortyn, in fact cover only a very limited number of

aspects of social, economic, and religious life (see Davies,

this volume). Laws are not norms, rather they are

strategies for dealing with difficult situations. Whose

strategies, then, becomes a crucial issue.

Law in classical and archaic Greek cities appears as a set

of systems that are, in certain respects, self-contained.

Lawcourts have their own regulations, procedures, and

even logic. Laws exist as formal and formulaic entities,

whether as written texts or in other forms (see Thomas,

Todd, this volume). Legal specialists are recognized (see

below and Todd, this volume). Yet law and litigation in

the world of the polis (city-state) are not nearly so self-

contained, autonomous, and detached from other realms

as in the industrial (even in the Roman) world. Legal

language was also 'the language of the street' ( Todd, this

volume; Todd and Millett 1990: 17): though courtroom

language often used ordinary words with context-specific

technical meanings, technical terminology used

exclusively in law was never developed. Lawcourts

themselves were also often political bodies, for example

the Athenian boule, 'council' (which examined officials

when they finished their terms of office or held pre-trial

hearings for officials accused of misbehaviour while in

office), or the Areopagos (the council of ex-archons,

which, among its other duties, also tried cases for

homicide). Behaviour in legal actions, in court, often had

ramifications for behaviour, reputations, and

relationships outside the courtroom (Foxhall, this

volume). In short, law in Greek cities was pre-Roman

and yet not primitive. To study only the formal aspects

and the procedural details of legal life in Greek cities is

to miss the full impact of law and litigation within Greek

societies.

This approach must necessarily side with Todd and

Millett ( 1990: 7-11) in the long-standing debate about

'Greek law'. We agree that as a coherent entity it does not

exist. Indeed, if law in Greek cities only takes on its full

meaning in context, from the ways in which it interacts

with other spheres of life in specific times, places, and

circumstances, then resorting to a notion of 'Greek law'

for explanations is unhelpful. But the structural

consistency of legal behaviour within the wide range of

Greek times and places covered

-2-

in the papers here suggests that a notion of 'Greek law',

or perhaps rather 'Greek legal behaviour', as variations

on a theme does remain analytically useful (see

especially Debrunner Hall, this volume; Foxhall 1989).

While not thus advocating a return to the notion of

'Greek law' as explanation ( Mitteis 1891), we would not

dismiss it as a category of useful enquiry (cf. Finley 1986:

134-46).

A number of recent works by classical scholars have

focused on law in conjunction with 'social control' and

dispute settlement ( Gagarin 1986; Fisher 1990, 1992;

Carter 1986, Sealey 1990, Hunter 1994). Conflict may be

seen in itself as a means to achieve social order ( Todd

and Millett 1990, following S. Roberts 1979). In so far as

'social control' provides a useful explanation for

behaviour (which is debatable, see Foxhall, this volume),

it frequently occurs outside legal systems in Greek cities.

On the other hand, it has been convincingly argued by

Todd ( 1993) and Todd and Millett ( 1990: 6-7, 16-17)

that legal debate and laws in Greek cities centre almost

exclusively on procedure rather than substance. The

contributors to this volume would support that

proposition (see Thomas, Thür, Debrunner Hall, Todd,

this volume). This brings into focus a problem raised by

Todd and Millett ( 1990: 15-16) and explored in some

depth by Todd ( 1993): that of the close relationships

between law and politics in ancient Greece. Both these

works restrict the terms of the debate largely to classical

Athens, though variations on the theme occurred in

other Greek cities ( Todd 1993: 158). In democratic

Athens, as Todd ( 1993: 153) perceptively points out,

access to the processes of law was important not only in

terms of participating as a litigant but, probably more

significantly for most men, in terms of participation as a

'juror' (dikastes). Political and social control of legal

procedure (both its formulation and access to it in all

senses) must therefore have been an ongoing discourse

with other systems for the distribution and

fragmentation of power, and these systems varied

considerably among Greek city states. Here again we are

back to the question of whose strategies, whose terms of

argument, are represented in Greek discourses of law

and political power?

For early Greece different aspects of this problem are

considered here by Thomas, Thür and Davies. Davies

deals with the specific example of Gortyn between the

sixth and fourth centuries BC and, by a careful analysis

of the laws which are not part of the 'Great Code',

provides a convincing explanation for the function of the

-3-

numerous inscribed laws from that city (including the

'Great Code' itself). Significantly, his explanation places

these laws firmly in a political framework, which

eliminates the necessity to explain 'codification' as a step

in the evolution of 'social control'. That the overriding

aim of legal codification is dispute settlement then also

becomes questionable.

Similarly, Thomas's argument is that the development of

a distinguishable sphere of written laws, which came to

be considered 'the law' (fixed procedural rules to which

anyone could refer), in Greek cities occurred over a long

period. Indeed, the distinction in the fifth and fourth

centuries BC between 'written' and 'unwritten' laws is

only meaningful once people have become accustomed

to considering written laws as 'normal', and she presents

considerable evidence to show that earlier this was not

so. Again, this leaves open the likelihood that 'social

control' frequently happens outside the law (in so far as

that is even meaningful as a separable category in early

poleis, 'city-states'). It also cast further doubt on the idea

that legal 'codification' in early Greece was the product of

literacy and was stimulated by the need for increased

social control and the settlement of disputes -- her

arguments suggest that for these purposes written law

made little difference.

Thür's analysis of Homeric trials emphasizes the central

importance of settling an issue (though not necessarily

the dispute) by agreeing upon a suitable procedure for

determining it, here an oath to be sworn by either party.

The problem, as he makes clear, comes when an oath is

technically correct, but is 'crooked' (skolios). That is, it is

technically 'just', but the result achieved is not perceived

as justice by at least one party. Here again, the spillover

of grievances out of the legal sphere into the social and

political is obvious -- the 'bribe-eating' kings of Hesiod's

Works and Days provide one example.

What emerges clearly is that law and the control (and

use) of legal procedure in both archaic and classical

Greece are not only closely linked to political power, but

only take on their full meaning in a broadly political

context. Political power, like so much of public life in

classical Greece, is competitive and agonistic. Moreover,

competition in any one of these arenas -- political, social,

economic, legal -- has implications for the success of

competitors in all of them (cf. Todd 1993: 159; E. Harris

1994, whose citation of the conflicts between Aischines

and Demosthenes provides a good

-4-

Athenian example of this phenomenon). Here, Thomas's

discussion (in this volume) of the powerful political roles

of the officials in various cities who were responsible for

remembering laws or legal judgements is important --

clearly this knowledge was power. This contrasts

interestingly with the very different situation in Athens

at the end of the fifth century BC analysed by Todd (this

volume). In this case, the codification of laws (in a sense

the first proper legal codification in Athens) by an ad hoc

board of officials can be seen to have occurred in a highly

politicized setting. From the attack on one of these

officials in Lysias 30 it is not easy to understand the

political or social positions of the various players. But it

is clear that Nikomachos (the official under fire) was

accused of using his specialized knowledge illegitimately

for his own personal and political ends, yet it is also

implied that the possession of such specialized legal

knowledge was comparable to the mastery of a mean and

servile trade (and thus implied his social inferiority).

Knowledge, at least in some contexts, is disrespectable

power?

Competition for power and prestige is characteristic of

many aspects of communal life in Greek cities, though it

is best documented for classical Athens. The papers by

Foxhall and Todd touch on the ways in which

competition at law is part of this larger ethic of

competition, which dominates most other aspects of life.

From this point of view, disputes may lie in wait to be

created and expanded, rather than settled, in the

lawcourts ( Todd 1993: 153). So, for example, Foxhall

here discusses the ways in which disputes involving

women may come to appear in our sources as disputes

between men in the courts. She shows how events in the

lawcourts (from which women were largely excluded)

come in turn to affect women's lives in other contexts.

There were many areas beyond the reach of law in

Greek-city states. Obviously this is true of all societies,

not least our own. But the particulars of what the law

touches and what it does not are revealing about the

nature of Greek societies as a whole and especially in

terms of how the realm of 'private life' interacts with the

male 'public' and civic world (see Cohen 1991: 7097). A

good example of the differences in this regard between

classical Greece and other societies, both ancient and

modern, is the treatment of murder as a private religious

offence for which the prosecutor can only be a close

relative of the victim. This has, in turn, interesting

consequences for punishment ( Debrunner Hall, this

volume).

-5-

Todd's paper addresses the issue of professional legal

specialists of the sort familiar from Roman times up to

our own, who claim technical mastery of the details of

written law, and who advise laymen on these

technicalities. They must also have acted as guides

through the complex, interlocking regulations and court

procedures, for advocates appearing on behalf of clients

did not exist in classical Athens, nor anywhere else in

classical Greece as far as we know. The nearest we have

to such characters is Nikomachos, whose very command

of technicalities could be used by his opponents to cast

him in an unfavourable light (see Todd, this volume).

Instead, the specialists, evidence of whose work we

possess in some abundance, concentrated on techniques

of performance, not technicalities of law. Proof consisted

of persuasion (and performance contributed greatly to

persuasiveness), rather than precedent and strict

application of regulations ( Worthington 1994; E. Harris

1994). Though laws are often cited in forensic speeches,

precedents are not. Even when laws are quoted, it can

sometimes be shown that they are irrelevant or incorrect

in the particular case (see Foxhall 1990: 94, and this

volume). Truly valuable legal knowledge, then, is

method, not content; procedure, not substance. The path

to this knowledge is provided by élite education,

particularly in rhetoric, through which the rich and

powerful can appropriate the law and mobilize it as one

of their political strategies, this even in democratic

Athens where the masses of ordinary citizens had

undoubted access to the processes of law.

What is largely absent in Greece is any sense of law as an

autonomous discipline, divorced in practice from all

political, religious, or social considerations. The

autonomy of law, a notion which permeates modern

legal systems and gives rise to such notions as the Rule

of Law and the Separation of Powers, is an idea first

found amongst the Romans. It is among the many

aspects of the Roman legal tradition in Western thought.

Itself a product of the rise in late Republican Rome of a

discrete body of men with a monopoly of legal expertise

which could seemingly transcend the collapsing political

and social structure, the autonomy of law was fostered in

the Imperial age by a government anxious to be seen to

preserve Republican virtues. Whilst these jurists affected

independence, they were largely dependent upon

government for their political and economic

advancement. This did not prevent their developing

sophisticated and relatively value-free techniques of

-6-

legal analysis, which contributed in large measure to

form the characteristic robustness of Roman law and

which served to endear it to subsequent generations. The

complex story of how Roman law came to underlie most

of the legal systems of Europe lies beyond the scope of

these pages (for a recent collection of views see Lewis

and Ibbetson 1994). It cannot be too heavily emphasized

how different the legal conceptions thus generated in the

modern world are from those appropriate to an

understanding of classical Greece.

Of course the very characterization of legal systems as

exhibiting autonomy is challenged. Autonomy grants the

legal expert an apparent immunity from criticism on

moral grounds and appears to privilege the system from

political pressures. However central and even essential

the notion of autonomy is to the workings of modern

legal systems, to the lawyers' images of themselves and

their function in society, it must be doubted whether

such abstraction from the pressures of ordinary political

life is ever achievable. The ancient Greek experience

demonstrates the extent to which sophisticated social

structures, and moreover ones which generated

philosophical and scientific conceptions which remain at

the heart of Western experience, could flourish without

any such understanding of the workings of law. Law, for

the Greeks, was a tool not a master.

Indeed, as Debrunner Hall points out, in classical Athens

it was quite possible to be punished for an offence

covered by no specific law, in part because of the wide

range of available procedures under which prosecution

might be made for any particular offence ( Osborne

1985). In these circumstances, punishment itself, like

law, is inextricably intertwined with the class, status, and

economic position of the offender, as Debrunner Hall

stresses. In other words, it is politized. The contrast

between Debrunner Hall's paper on punishment in

classical Athens and how it compares to punishment in

other Greek cities, and Saunders's work on punishment

for impiety in Plato's ideal state, raises many interesting

questions about what Greeks thought official state

punishment was. Deterrence, revenge, avoidance of

pollution (essentially religious), and the preservation of

household and male individual autonomy all seem to

enter into ideologies of punishment (and other

sanctions, see Thomas, this volume) in classical Greece.

Significantly, reform of offenders has no place, except in

Plato's ideal state.

Law and legal action in archaic and classical Greek cities

-7-

represent a specialized arena in which the normal

conflicts and contests inherent in these societies take on

particular and important forms and significance. Access

to this arena was in some ways (and some times and

places) quite restricted, though in others less so. A

number of dynamic tensions govern the relationships

between this semi-autonomous legal arena and other

spheres of life. An ideology of equality before the law was

juxtaposed with a practical reality of individuals' unequal

abilities to cope with it. A sense of uncertainty about the

roles of performer and audience, judges and contestants,

seems characteristic of the Athenian courts we know

best. It is hard to draw firm lines between the settlement

of cases in court and the spillover of legal actions into the

agora, the streets, the fields, and the houses of Attica. In

these circumstances it is hardly surprising if justice gives

way to justification.

-8-

Written in Stone? Liberty, Equality, Orality and

the Codification of Law

ROSALIND THOMAS

1. INTRODUCTION

In late fifth and fourth century Athens it was a platitude

that written law brought justice for all alike, and thus

that it was the basis for the democracy. As a character in

Euripides' Suppliants says (433 f.), 'when the laws have

been written down both the weak and the rich have equal

justice'. Gorgias also saw written law as the guardian of

justice ( Diels and Kranz 1951-2: 82, fr. 11a, § 30

(Palamedes)). This close relation between justice,

democracy, and written law was apparently confirmed

still earlier by Solon's codification of the laws in writing.

As he says himself in one poem, 'I wrote down laws alike

for rich and poor, fitting straight justice to each' (frag.

36W = Aristotle, Constitution of the Athenians 12. 4).

Aristotle criticized the Spartan ephors because they

determined cases by their own judgement and not by

written law (kata grammata kai tous nomous): there is

an implicit comparison with the rule of law at Athens

(Politics 1270

28-31). The Cretan leaders receive the

same criticism a little later (Politics 1272a36-9): 'their

arbitrary power of acting on their own judgement and

dispensing with written law is dangerous'.

Why, then, did the Greeks begin to write down laws? If

we may believe the tradition, the earliest lawgivers,

Zaleukos and Charondas, were active in the seventh

century BC, Zaleukos perhaps as early as the middle of

the century ( Zaleukos' laws are traditionally dated to

662 BC); Drakon wrote down laws at Athens in the

second half of the century. The earliest stone record of a

law found so far is the law from Dreros on Crete limiting

tenure of the main

____________________

I would like to thank Sally Humphreys, Robin Osborne,

Trevor Saunders, and the editors of this volume, who

all read and improved an earlier draft of this paper.

-9-

office, of perhaps 650-600 ( Meiggs and Lewis 1988: no.

2). By Solon's time the custom of written law was well

established, though single laws may have been more

common than full-scale codification. But can we read

back to this early period the aims and implications of

written law visible in classical Athens? On a more

general level, is written law obviously and inherently

more just than a legal system which does not rely on

written law? Or what is it about written law that checks -

- or is thought to check -- arbitrary judgement and

inequality of treatment? I find it hard to believe that

seventh century Dreros was particularly enlightened,

despite its fine inscribed law, let alone that all or even

most of its citizens could read the inscription. And while

Crete is famous for its extensive inscribed laws, it was

precisely Cretan officials that Aristotle criticized for their

use of arbitrary judgement.

Various explanations for the origin of Greek written law

have been advanced: perhaps most commonly, that it

was the result of popular pressure in which the people

demanded that customary law be stabilized and freed

from arbitrary interpretation by the aristocracy ( Bonner

and Smith 1930: 67, in mistaken analogy with Rome). Or

that it had more conservative aims: it has recently been

argued that written law in both archaic Greece and Rome

was an aristocratic attempt to freeze the current legal

and political conditions before revolutionary demands

could erode any more of the traditional way of life ( Eder

1986; Humphreys 1988: n. 9; Camassa 1988). Or that the

laws were simply written down to fix them because

memory and oral tradition were weakening: but once

they were written down, a literate mentality developed

which by its very existence enabled people to perceive

inequality. Thus instead of written law being the product

of popular demand for equality, it helped create it ( C.

Thomas 1977: 455-8). More puzzlingly, Gagarin's recent

book sees the writing down of laws as corresponding to a

'clear and obvious need' ( Gagarin 1986: 62, partly

against the idea of Eastern influence). Since these laws

were publicly inscribed, he argues that the first written

laws reflect the development of the polis and its

increasing interference in the lives of its citizens: 'The

decision to write down a set of laws was in effect a

decision to enact legislation.'

(But since he thinks law

must by definition be written law, this is surely a circular

argument.) He

____________________

Gagarin ( 1986: 136). This perhaps causes him

difficulties when determining the relation of

procedural to substantive law: see Ruschenbusch

review ( 1989).

-10-

implies (p.78) that written law demonstrated the power

of the polis and gave it more control over penalties.

Yet there is little reason to think that written law is in

itself inherently democratic or egalitarian -- or even

simply a check on arbitrary judgement. Totalitarian

regimes have been just as prone to extensive codification

as democracies. And even if the laws are themselves just,

the judicial machinery and political administration must

correspond in order to transfer the equality of the laws to

the society. Written law still needs interpretation. As

Finley ( 1983: 30) has pointed out succinctly:'the

application and efficacy of all law codes depend on the

interpretation by magistrates and courts, and unless the

right of interpretation is "democratized", the mere

existence of written laws changes little.' In his indirect

and rhetorical way, Demosthenes (21. 223-4) seems to

have been aware of this when he proclaimed that the

force of the laws -- which were merely written letters --

were made authoritative only through the demos.

Even in classical Athens, there was no automatic

machinery to ensure that the written laws were adhered

to -- at least till the establishment of the nomothetai in

403, who in fact controlled new laws. Much was left to

the individual knowledge of Athenian citizens: evidence

that individuals did go and look at the laws is

surprisingly rare, and laws could be ignored partly

because no one knew of them. At the same time the

'unwritten laws' -- the laws of the gods, unquestioned

rules that, for example, one should look after one's

parents -- commanded the highest respect in the fifth

century BC So even in the Athenian democracy, attitudes

to written law were ambivalent and the relation of

written law to the 'unwritten laws' curiously enigmatic.

After 403 BC, the use of 'unwritten laws' was banned for

Athenian magistrates, yet there seems to have been no

statute specifically banning incest, which obviously

remained prohibited by the force of social disapproval.

Aristotle (Politics 1287

) could still say that 'customary

laws (hoi kata ta ethe) have more weight and relate to

more important matters that written law, and a man may

be a safer ruler than the written law, but not safer than

customary law'.

The Near Eastern law codes may offer a salutary

counterbalance. On closer examination, they appear

even further from legal codes

____________________

Elsewhere Aristotle stresses that even once laws have

been written down, they should not always remain

unaltered, Politics 1269

8-12; cf. 1286

9-20 on those

who argue against a government acting according to

written laws.

-11-

in the modern sense than we might expect. For example,

the actual function(s) of Hammurabi's Code are

controversial: perhaps it represented an ideal of

judgements, or it intended primarily to reinforce the

image of Hammurabi as promoting justice, rather than

to promulgate an established series of rules which

everyone must adhere to. What is clear is that the 'code'

is not cited by judges in court as one might expect of a

document intended to create an authoritative code of

law; and the very form of pronouncement, with cases

often being given in the past tense, is also puzzling. It is

hard to avoid the impression that the code in its written

form was serving some kind of political or religious

function ( Bottéto 1982; Finkelstein 1961; see also for

Hittite law codes, Koroŝec 1957: 93 ff.).

In other words the mere fact that laws or legal

pronouncements have been written down is hardly

enough to determine their significance and role. We can

go further: the role and implications of writing -- and

therefore of written law -- seem to be closely related to

the society that is using it, and not simply to some

inherent qualities of the written word ( Street 1984; R.

Thomas 1989: ch. 1). It is surely anachronistic to

attribute characteristics of written law or written

codification -- which we take for granted now to much

earlier periods. The effect of writing in any society can

vary immensely and is partly determined by previous

customs, and by any earlier system onto which the

writing is being grafted. These previous customs must

include extensive oral communication, perhaps even oral

law. We therefore cannot understand the full

significance of early written law in Greece without

grasping the oral background: for example the extent of

oral communication, of customary or oral law, and the

role of those early officials called mnemones and

therefore of sheer memory in legal procedures. When

writing was first used to record a law, it was used against

this background and must have been influenced by it.

The meaning of these early written laws must also be

determined by other elements than the mere fact that

they were written (and public): for example, the

character of the judges and other officials, the

mechanisms by which the law was translated into the

practical giving of justice, the relation of the written law

to oral and customary law. In closer connection with the

written aspect, we also need to know who could check

the written law, whether enough people could read to

ensure it was kept, the role of scribes, and perhaps

-12-

most important, the contemporary attitude to writing. It

must have been this view of the use of writing, whether

magical, functional, or communicative, which lay behind

the attempt to write up the laws in the first place, and

behind their significance once they had been written up.

We stray here into highly treacherous areas where the

evidence is sparse or partial and invariably slanted in

favour of what was written in stone. But they are worth

exploring, partly because much that is written about

Greek law (especially its early forms) seems to be

influenced by ideas about written law and documents

more appropriate to the modern world.

Most emphasis

is in fact usually laid on the act itself of writing down

laws, as if, once written, the laws would immediately

gain a certain and obvious character.

Secondly, some recently published inscriptions

concerning scribes and written laws are beginning to

suggest a different slant to the role of writing and written

law in Greece. Yet still the picture is confused. An

excellent collection of papers on writing edited by

Detienne ( 1988a) includes stimulating but directly

opposed pictures of the place of written law in Greece

from much the same evidence. Detienne ( 1988b) for

instance, stresses the essentially public nature of Greek

documents and how Greek written law made for justice,

equality, and democracy (as opposed to the secret and

tyrannical use of writing). Yet later in the volume

Camassa ( 1988) tentatively discusses aspects of the

social and political context which make this view hard to

maintain without considerable modification, and Ruzé (

1988) can point to the immense power of scribes in

archaic Greece and stresses the power of writing, which

should undermine any reassuring picture of openness

and public written law accessible to all citizens. We seem

to be left with a stark choice: was writing in early Greece

a source of power or a source of openness? These two

different views surely correspond to opposing views

about the nature of writing. Clearly the role of those first

written laws, as of writing itself, must be more complex

than is usually thought.

To give this subject its due would involve much of

archaic and the use of writing during that period, as well

as the background of

____________________

e.g. the idea that law is by definition written law, as in

Gagarin ( 1986), or cf. Goody ( 1986: ch. 4), on how

writing has affected our concept of law; Stratton (

1980) is over-impressionistic.

-13-

oral communication. I concentrate here on a few aspects

which must lie behind the first public use of writing and

therefore the role of early written law: oral law in Section

2, unwritten law in Section 3, mnemones and scribes in

Section 4; then I return in Section 5 to written law itself.

I try to avoid archaic Athens as much as possible, since

Athens and Solon tend to dominate discussion and may

be rather exceptional. I will be using epigraphic evidence

down to the mid-fifth century BC. It may be that my

suggestions here are based on equally unusual regions,

but I hope they will at least pose the possibility of a

considerable variety and complexity in the development

of Greek written law.

2. ORAL LAW

Did Greece have such a thing as oral law, that is, a body

of rules that were not written down? It is sometimes held

that, by definition, law cannot be oral, for only writing

would be able to set law apart from other customs (

Gagarin 1986);

or that the effect of writing down

customs is to dissociate laws from custom, making law in

effect primarily written law ( Goody 1986: 135 ff., 144).

Gagarin and others have recently insisted that the

Greeks did not have oral laws as such. Yet the word

nomos did not refer only to written law in Athens until

after 403. Greek writers were quite happy with the

concept of oral or unwritten laws, and we should take the

implications of this seriously.

There is a surprising amount of evidence for early laws

being sung ( Camassa 1988: 144 f.; Weiss 1923; Piccirilli

1981; Mühl 1929; Cerri 1979). Sung laws are obviously

set apart through poetry, therefore can be registered as a

separate body of rules.

They also solve the problem of

transmission and preservation without writing; or if they

present laws which were also written down, they solve

the problem of transmission amongst a population

which might be illiterate.

Thus the laws (nomoi) of one of the earliest lawgivers,

Charondas, were said to have been sung by the

Athenians when

____________________

Gagarin ( 1986: 10, 131) accordingly underplays the

existence of 'oral laws' (though he notes the

'lawspeaker' in Iceland).

This would deal with the objection that without writing

you cannot have an authoritative and definable body of

rules.

-14-

drinking.

He enforced the singing of his laws at festivals

just after the paeans 'so that the ordinances should

become ingrained',

and according to Strabo (12. 2. 9),

the Mazakenoi in Cappadocia still used his laws and had

a nomodos, (υοΛδ) or 'law-chanter'. The use of music for

educating citizens in the laws crops up in Crete, where,

according to Aelian (Varia Historia 2. 2 9; cf. Strabo 10.

19c. 482), free Cretan children had to sing the nomoi.

Terpander is said to have sung the laws of Sparta,

and

some thought Solon tried to put his laws into verse (

Plutarch, Life of Solon 3). In a piece of folk etymology,

pseudo-Aristotle thought sung nomoi (i.e. 'nomes', a

kind of melody) were so called 'because before men knew

the art of writing they used to sing their laws in order not

to forget them, as they are still accustomed to do among

the Agathyrsoi' (Problemata 19. 28, 919

-920

). In

contrast to these late and motley sources, no less sober

an authority that Cicero seems to have sung the laws in

his youth: he blandly recalls that, unlike nowadays, they

used to learn the Twelve Tables as boys, as a 'compulsory

song', a carmen necessarium.

So the existence of sung or chanted laws was accepted

without a qualm by later ancient writers. The

educational value of music and poetry was taken for

granted in archaic and classical Greece. Plato

particularly favoured the way music infiltrated the soul

(e.g. Laws 65

1-2, 669

5-670

6; 802

6). Archaic poets

were the educators and thinkers of society. Against this

background of music and poetry, nothing could be more

natural that the oral transmission -- and performance --

of laws.

The implications for written law are intriguing: if

Charondas made elaborate preparations for having his

laws sung as well as writing them down, then he was

clearly not relying on the written text alone for

transmission or even preservation. Oral transmission

continued to be fundamental even once laws were

written down. So there was probably no sudden change

in behaviour when laws

____________________

Cicero, De Legibus 2. 23, 59; cf. ibid. 2. 4. 9,

which also

discusses the status of written law. Cf. Martianus

Capella 9. 926 ( 5th century AD): 'Graecarum quippe

urbium. multae ad lyram leges decretaque publice

recitabant', 'many of the Greek cities used to recite laws

and public decrees to the lyre'.

Hermippus fr. 88 Wehrli = Athenaios, Deipnosophistai

619b. Against the emendation of 'Athenians' to

'Catanians', see Piccirilli 1981.

ι+ εΛΦU03C5σιω+τι κστω+ τα πααγγ

λµατα,

Stobaeus 4. 2. 24 (Hense 1911-12: 154-5).

According to Clement of Alexandria,

Stromata

1.78(Syllburg 1688: 133. 14).

-15-

were written down (and illiteracy did not always matter).

But sung laws would also help stabilize and preserve a

coherent body of customary law. Could they help us

recreate the atmosphere before the laws were written

down? In other words, there is a distinct possibility that

some of the earliest lawgivers fixed, or worked from, a

corpus of laws which had already been transmitted

orally.

3. UNWRITTEN LAWS

There is also a wealth of evidence for the concept of

'unwritten law' (agraphos nomos). One would think this

too showed (a) the existence of oral laws which were

regarded as 'laws' in every important sense, and (b) that

the Greeks were content with the concept of unwritten

law. Both points have been challenged on the grounds

(among others) that the term only appears in the late

fifth century BC (e.g. Gagarin 1986: 25 and n. 21).

Ostwald makes an elaborate analysis of all occurrences

from the Antigone onwards, to find that each reference

refers to something slightly different, thus that there was

no (unified and coherent) concept of unwritten law (

Ostwald 1973, against Hirzel 1900). But the evidence

shows a great deal more than this. When we find that the

first references to unwritten law occur in the Antigone

performed c.442 (agrapta nomima, Antigone 454 f.), in

the Periclean funeral speech of Thucydides (Thucydides

2. 37), and in Aristophanes' Acharnians of 425

(Acharnians 532), it is worth wondering if they do not

simply reflect contemporary consciousness and debate

about written law -- and debate specifically related to the

political development of Athens rather than of Greece as

a whole.

You do not distinguish unwritten laws from written until

you are beginning to see written law as a definite

category. The fact that 'unwritten law' only begins to

appear in our sources in the second half of the fifth

century BC presupposes the development of a concept of

written law, perhaps about the same time. Ostwald (

1969) tried to argue that the use of nomos to mean

specifically written law or statute began with Kleisthenes

and the Kleisthenic democracy ( Solon's laws were

thesmoi not nomoi). But the first attested use of

____________________

Though much depends on what the oral laws were

about. Camassa ( 1988: 141-3) thus argues that there

has to be a corpus of orally transmitted norms/'laws'

before the fixation of a written code, and hints that this

was so in Crete, where Eastern craftsmen may have

had some influence (cf. Boardman 1980: 56-62, and

Boardman 1970: 18-23).

-16-

nomos to denote what is apparently written law is in

Aeschylus' Suppliants (387-91) (not absolutely certain,

in fact) and Prometheus Bound (149 f., 402 f.), the

Suppliants belonging to the 460s, the Prometheus rather

later. As Ostwald ( 1969: 47) also admits, Euripides is the

first tragedian to refer to written nomoi specifically and

to see them as a protection against injustice

(Suppliants433). The term nomos continues to be used

sometimes of unwritten law, and is the standard word

for 'custom' throughout the fifth century. Mostly no

distinction is made in the sources between written and

unwritten rules: again, as Ostwald admits, even in the

mid-fifth century BC, 'nomos might or might not refer to

written legislation; in other words, the question of

writing is immaterial to the definition of a political

nomos.'

What was important was that it was regarded

as binding. Nomos does not primarily denote written law

till the very end of the fifth century BC, and as Sally

Humphreys ( 1988: 473) has pointed out, the first

certain use of nomos as written law on an Athenian

inscription is as late as 418/17 (IG I

84).

Not only is

the use of nomos to mean written law rather late in the

history of Greek law, but it is also extremely blurred.

Nor should we neglect the background of intellectual

debate. The sophists and those influenced by them in the

late fifth century BC were much preoccupied with the

many connotations of nomos: from law to custom, from

merely human laws to divine ones, from custom to 'mere'

convention. It looks as if the distinction between written

and unwritten nomoi is in fact largely a product of this

latefifth-century Athenian and sophistic debate ( Guthrie

1971: 117-31; rather differently, Humphreys 1988: 473 f.;

cf. Ostwald 1986: 250-73). The most famous example

occurs in Sophocles' Antigone (especially 450 ff.), where

there is conflict between the laws of the state (i.e. Kreon)

and the unwritten laws of the gods -- here the right of

burial -- which have higher moral value.

The discussion may well have been influenced, indeed

focused, by the ability of the Athenian demos (citizen

body) to make law

____________________

Ostwald ( 1969: 44), cited aptly by Andersen ( 1989:

84).

Though Humphreys ( 1987) argues that nomos in the

5th century BC refers rather to something old and

accepted as opposed to new.

Cf. the blurredness of Plato's discussions: Ostwald (

1973: 95 ff.)

Sophocles has been seen as a champion of unwritten

law, unlike Euripides: Hirzel ( 1900: 69-71); but cf.

Guthrie judicious discussion ( 1971: 127-8).

-17-

under the radical democracy.

It is at this time that we

first find written law expressly linked with justice, in

Euripides' Suppliants and Gorgias' Palamedes (fr. 11a, §

30: written nomoi are the guardians of the just).

Xenophon records a conversation between Pericles and

Alcibiades about the nature of law in which Pericles

defines law as what is written down by the people -- and

then, with prompting from Alcibiades, he includes even

what is written down by oligarchs, as long as the citizens

are persuaded, not forced, to accept these rules

(Memorabilia, 1. 2. 40-6). Further on in the

Memorabilia the sophist Hippias questions whether

justice can be simply equated with keeping the law, since

the same men can reject or alter the very laws they have

just made, whereas the unwritten laws are the divine

ones which are kept everywhere, such as the law that you

should look after your parents (Memorabilia 4. 4. 13 ff.;

cf. also Plato, Hippias Maior 284d-e). Hippias' image of

written law hints at the criticisms made of the radical

democracy and the demos's tendency to change its mind.

We can probably go further and associate the

manipulation of 'unwritten laws' with the late-fifth-

century oligarchs (some of whom were sophists anyway):

the very vagueness of the concept made them all the

easier to exploit. Some of the more disreputable

arguments of certain sophists about the promptings of

nature (which were unwritten laws too) further

discredited them.

Plato, hardly a democrat, comes up

with some of the same ideas about controlling the

citizenry through education, custom, and 'unwritten

laws' rather than written laws, as were attributed to the

mythical Spartan lawgiver Lykourgos (Laws 793

5).

Sparta prided herself on not needing written laws (

Plutarch, Life of Lykourgos13. 3.; this is an image of

Sparta more appropriate to the classical period than

earlier, since the Spartan rhetra was clearly a written

law: perhaps the later ideal was developed in reaction to

the Athenian democracy). The decrees of the Athenian

assembly, on the other hand, were written, and usually

published on stone (decrees/psephismata and nomoi

were not formally distinguished till after the revision of

laws in 410-399 ( Hansen 1978); and not

____________________

Cf. Humphreys ( 1988: 473-6), noting also an implicit

contrast between making law and applying it.

Cf. Guthrie ( 1971: 22 f., 117-131). As Sealey ( 1984: 83)

points out, a sinister remark was also attributed to

Pericles, that in cases of impiety not only should the

written laws be enforced, but the unwritten ones (

Lysias6. 10).

-18-

altogether consistently then ( Humphreys 1987)). Fifth-

century decrees were inscribed 'so that anyone who

wants can see'. This association of written publication

with the demos's laws, an Athenian peculiarity, probably

helped still more to set the 'unwritten laws' in a sinister

light.

Finally, when democracy was restored in 403, it was

expressly enacted that magistrates should not apply an

unwritten law ( Andokides 1. 85, 87), clearly a measure

against the oligarchs' unscrupulous use of unwritten law,

and the final binding declaration that the democracy was

run on written law only.

This sanctified the close

identification of written law with democracy, which,

despite Solon's laws, seems largely a product of the

climate of politics and discussion at Athens and the

democratic ideal of publicity in the second half of the

fifth century BC.

We can be reasonably certain, then, that in the archaic

period what we call law and custom were barely

distinguished from each other as concepts. What is

distinguished in archaic and early classical inscriptions

is 'what is laid down', ho thesmos (as Solon refers to his

laws), or 'what is announced', the rhetra and very often

simply 'the writing' (ta grammata), to distinguish what

is written down from other norms and rules. The idea of

law as a body of written rules seems to have developed in

close conjunction with the political and legal experiences

of fifth-century Athens.

4. MNEMONES AND SCRIBES

The officials variously called mnemones and

hieromnemones must form a linchpin in the transition to

written law. Here we can observe both the continuation

of 'memory' even after writing has been introduced to

record certain laws, and the importance of personnel for

the role of written law when it comes. We begin to hear

of mnemones or 'remembrancers', of course, only in

inscriptions, therefore once the Greek cities have begun

to record public business in writing. But the very name

suggests that these officials were at

____________________

Ostwald attempt ( 1973: 91) to argue this away on the

grounds that 'unwritten law' now only meant laws

which were inscribed after the revision of the laws (as

Andokides tries to argue) is surely over

legalistic, given

the lively use of the term 'unwritten law' before this,

and indeed after. Andokides is trying to argue, for his

own purposes, that the law precludes those not

recently inscribed, but the law as he cites it simply

prohibits the agraphos nomos. Cf. Humphreys rather

different interpretation ( 1988: 476 f.), that

codification was a conservative reaction.

-19-

first responsible for 'remembering' -- perhaps

remembering judicial cases, a living archive (as Busolt

1920 Put it), sacred or secular rules, perhaps 'oral law'.

By definition we are unlikely to find evidence for them

until public inscriptions begin in the seventh century BC.

Thus the earliest attested example is the hieromnemon

in the late-seventh-century inscription from Tiryns

recording some kind of sacred law (SEG 30. 380, 34.

296). Hieromnemones occur later at fifth-century Argos

(c. 475-425 BC: Mitsos 1983: 243-9; SEG 33. 275),

Mycenae, Crete, and Delphi. Mnemones occur in the

Peloponnese (Nemea: twice in inscriptions, c.330-300

BC, SEG 34. 282. 11 and 34. 283), at Halikarnassos in

the fifth century BC ( Meiggs and Lewis 1988: no. 32),

and in Crete, especially at Gortyn. Knidos has a council

of anamnamones, and the aisimnatai of Megara and East

Greece may have had the same function ( Jeffery 1990:

20 f.; see also Busolt 1920: 362, 372 ff., 488 f.).

What do these mnemones do once writing spreads to

their communities and is used for public record? Many

of them end up as scribes-at least in Hellenistic

inscriptions.

But do they simply become scribes and

guardians of the written word? Far from it. Our

evidence, scanty though it is, indicates (a) that they were

often important officials down to the classical period,

and (b) that they often combine their previous role as

'memorizers' with the new one of writing. Thus this is

another example where writing does not take over public

record completely, and where there is a more complex

overlapping of memory and written record than is

usually admitted.

Thus the hieromnemon of seventh-century Tiryns is

doing more than merely remembering. Whatever else is

unclear in this obscure inscription, he is definitely able

to impose fines (on the platiwoinoi, whoever they are).

The mnamon (the Doric form of the word, used in Crete)

in the fifth-century Gortyn Code is most interesting. He

appears once alongside the judge as possible witness for

a case

____________________

Simondon ( 1982: appendix); Jeffery and Morpurgo-

Davies ( 1970: 150); Edwards and Edwards ( 1977:

139); Willetts ( 1972: 97); Lambrinudakis and Wörrle (

1983: 333 f.); cf. Kiessling ( 1932); Busolt ( 1920: 488

f., 550).

See Lambrinudakis and Wörrle ( 1983: 328-44) for the

most detailed discussion of mnemones for the

Hellenistic period.

Simondon ( 1982) takes memory as merely a relic of

the mnemones' archaic function, which envisages too

strict a division between memory and written record.

Camassa ( 1988) is almost alone in noting the gradual

nature of the transition to written law; the sceptical

remarks of Andersen ( 1989: 83-4) are also relevant.

-20-

which has already been judged ( Willetts 1967: Col. IX

.31 ff.); and an adopted son, whose (adoptive) father is

renouncing the adoption, is to receive money from the

father through the court and the mnamon (col. XI. 10 ff.;

cf. also col. XI 53, and IC IV 42 B where the mnamon

and judge swear an oath, and Thür, in this volume,.

Later inscriptions also mention mnamones (IC IV 231,

261). The mnamon is closely attached to the judicial

processes and to the judge himself, and if he and the

judge are witnesses for the result of a past case, this hints

that part of his role was to remember court proceedings

(there are clearly no written court records: in another

place the judge alone has to decide on oath how long it

was since an order had been issued, Col. I 38).

Neither

example suggests that the mnamon was a simple clerk,

and while he did have secretarial duties by the fifth

century BC, he clearly did much more.

In fact, though

fifth-century Gortyn was by now well accustomed to fine

and extensive inscriptions of laws, the mnamon still

remembers, the judge and mnamon act as witnesses for

past cases. We must also compare the mnemones who

appear on an inscription from Halikarnassos from the

first half of the fifth century BC: as the inscription states,

'what the mnemones know is to be binding' ( Meiggs and

Lewis 1988: no. 32. 20-1). The powerful position of the

mnemon could not be more explicit.

These observations are crystallized in the person of

Spensithios, the scribe from a community in Crete,

C.500 BC, whose honours have been discovered

inscribed, for some reason, on a bronze mitra or

abdominal guard ( Jeffery and Morpurgo-Davies 1970;

also Edwards and Edwards 1974, 1977; SEG 27. 631).

Spensithios is to be scribe or 'poinikastas' to the city,

and the office is to be hereditary. Much ink has been spilt

on the word poinikastas and its relation to the

Phoenician origin of the alphabet (but since ta

phoinikeia

____________________

Thus as Willetts ( 1967) comments (comm. ad loc.) on

col.IX 32: 'he recorded in his memory facts relevant to

the conduct of cases before the practice of writing had

become widespread, esp. as here (we may presume),

when cases occurred of more than usual difficulty'; or

simply for any cases needing authoritative information.

Ruzé ( 1988: 84-5) is puzzled, unnecessarily, that the

secretary should be so ordinary at Gortyn while he was

a novelty in Spensithios' community. No other word

occurs in the Gortynian inscriptions to denote a

secretary until Roman times, when grammateus

appears, IC IV 257.

See further, Lambrinudakis and Wörrle ( 1983: 333 ff.)

on the early mnemon and his 'knowledge'. Simondon (

1982: 301) takes this inscription from Halikarnassos

a quite exceptional survival of the mnemon's original

function.

-21-

means 'writing' anyway, there is little problem here).

Less attention has gone to the radical implications of the

inscription for the place of writing and scribes in the

Greek City.

First, his functions. His duties as 'recorder' are spelt out

thus (lines 3-5, A): θ κα πóθι τα δαλóσισ τά τε θιια καו

τανθω+πινα ποινικ+εν τε κα λναλονεהν (and this is

repeated in the next clause). Poinikazein means 'to

write', mnamoneuwen recalls the office of mnamon

common in Crete and elsewhere and is usually

interpreted as meaning 'to remember'.

So he is 'to

write down and remember the affairs of the city, both

secular and divine': he seems to be in control of all past

records of the city, written and unwritten, secular and

divine.

But why both writing and remembering? The initial

editors and others suggest that the 'remembering' is his

old function, which is now being superseded by the use

of writing, and this is his new function.

But is it really

being superseded? Surely he now continues to do both.

The overlap, rather than merging, of written record and

memory in one individual could hardly be clearer (cf. R.

Thomas 1989: sect. 1.2.2 for examples from Athens). I

would guess this overlap occurred elsewhere in Greece.

When these communities began to use writing in the

public sphere, the name mnemon was retained, memory

continued to be important, and writing did not take over

public business completely. As we saw in

____________________

Almost unique at the time, poinikastas has n

ow been

joined by [ph]

oinikographeon ([ΦοινικογΡαΦων),

SEG 31. 985 from Teos. poinika[ (ποινικα[) occurs at

Eleutherna, IC II 120 11, 3. ta phoinikeia (τα

Φοινικ

ια) at Meiggs and Lewis 1988: no. 30B.37 from

Teos; phoinikographos in two Hellenistic inscriptions

from Mytilene, IG XII 2. 96 and 97, of which the

official in 97 is connected with a cult of Hermes.

On the

translation of ta phoinikeia (τα Φοινικια) as 'writing',

see e.g. Edwards and Edwards ( 1977); Jeffery and

Morpurgo-Davies ( 1970: 152); Jeffery ( 1967: 153 ff.)

See, however, Ruzé ( 1988) and Camassa ( 1988);

though Crete itself may have been highly unusual in its

approach to writing: see Stoddart and Whitley ( 1988).

For the original editors of the inscription, the verb, not

attested in Crete before, may mean 'serve as mnamon';

Raubitschek ( 1970: 155-6) suggests the whole phrase

(poinikazen te kai mnamoneuwen) simply means

'record and recite' but cites no linguistic parallel for

mnamoneuwen meaning 'read aloud' only, merely the

duty of the Athenian scribe to read out old decrees. Cf.

van Effenterre ( 1973), who interprets it more broadly

as the conservation of religious rules and prescriptions.

Jeffery and Morpurgo-Davies the original editors, go

rather further 1970: 150, suggesting that he was

probably meant to formulate properly polis decisions

which were to have the force of law; he would then

draft them on the wall of the main precinct or wherever

was usual.

Jeffery and Morpurgo-Davies ( 1970); Willetts ( 1967:

74); Edwards and Edwards ( 1977: 139) consider the

terms to be probably near synonymous, the difference

being that mnamon originally used memory alone.

-22-

the Gortyn Code, judge and mnamon had to supplement

the very scanty amount of written record. It may well

have been hoped that the mnemon's memory might

ensure a certain consistency in the judicial process. But if

officials were such that their very word (or oath) was

enough, that was not going to change overnight with the

use of writing -- or of written law. The function of this

writing was affected strongly by the previous customs of

city and officials.

The same combination, so strange to our eyes, recurs on

a recently published Tean inscription of c.480-450 (SEG

31. 985 D; Herrmann 1981; cf. also Lewis 1982 and 1990,

Merkelbach 1982), which, characteristically for that city,

carries another set of imprecations directed against

certain officials (timocheon or tamieuon) who 'do not

read out the writing on the stele to the best of their

memory and power': λ ναγεεν τα γεγΡθλνα εν τηι

[α]τγU05D5ι πו λνλהι καו δυν+λει. It probably

goes on to curse anyone who does not write the words

up, or spoils the stone (it mentions a secretary again,

[ph]oinikographeon, before it breaks off). The other

Tean curses threatened the direst punishment on anyone

who broke the stelae, cut out the letters, or made them

invisible ( Meiggs and Lewis 1988: no.30). Analego

meaning 'to read out' is not so far attested on

inscriptions ( Herrmann 1981: 11), and the inscription

might be envisaging reciting from memory. Either way

we are faced with an element of memorizing -- 'reading

out according to memory and power', or 'reciting'. Here

there is a written text, yet the officials are working from

memory: were they perhaps supposed to learn the

inscription by heart anyway, or more loosely, were they

simply not bothered about the text (cf. instances of such

casualness in Athens, R. Thomas 1989: sect. 1.2.3)?

Public inscriptions have not forced out a use of memory

reminiscent of the mnemones elsewhere.

Evidence is too scanty to know how common this

phenomenon was, and Teos was perhaps particularly

neurotic about stating everything on the inscription. But

if reciting the laws was fairly frequent, it mattered less if

people could not read the inscriptions. However, there is

also an element of fear here: the common archaic fear

that the officials may transgress their duties (the Teans

elaborately curse anyone who defaces the writing and

also the official who does not read out the writing, cf.

Debrunner Hall, this volume). This brings us back to the

Spensithios phenomenon and the vower of the scribe.

-23-

The other astonishing thing about Spensithios is his

power. It has long been a commonplace that Greece was

unlike the Near East in avoiding 'scribal literacy': Greek

scribes were not a specialized caste or a privileged group,

for literacy was widespread, the written word was not

jealously guarded, and -- crucially -- writing was used for

casual, everyday purposes from the start ( Goody and

Watt 1968, for the classic statement; Detienne 1988b).

Yet Spensithios here receives a misthos or salary, and

immunity from taxes, and he is to be present at and

participate in sacred and secular affairs in all cases

wherever the kosmos (or higher official) may be. He also

makes the public sacrifices for certain cults where

(perhaps) there is no individual priest, and his privileges

are to be hereditary. Not only is Spensithios an

exceedingly important individual but he is to father all

future secretaries. How fair could written law be when so

much was in the hands of a grand master scribe and his

descendants?

The relatively sophisticated ideals of classical Athens

seem very alien in this context. The Cretan mnamones

down to the fifth century BC were full-scale officials, not

mere clerks: emphasis on the problem of meaning tends

to obscure the fact that Spensithios was an exceedingly

powerful man. Fifth-century Teos did its best to ensure

that the inscriptions were preserved and properly

disseminated. And Erythrai, not mentioned so far, took

extreme measures, probably in the fifth century BC, to

prevent secretaries from serving the same magistrate

twice and in various other ways to curb their power.

There is certainly no easy confidence in any of these

cases that public inscriptions would safeguard the laws

and justice (note the Elis decree, however, which

protects the grapheus, c.475-450, Hainsworth 1972: no.

19; SEG 29. 402). Indeed they have recently been

analysed by Ruzé ( 1988) to show that the Greek cities in

the early stages of the public use of writing were acutely

aware of the power of writing, the power of the scribe,

and the power of anyone who had control of the records.

One must probably accept this, at least in some cases.

Archaic secretaries, including those at Athens, were

magistrates or officials rather than clerks.

____________________

The idea of the Near Eastern 'scribal caste' may,

however, be exaggerated: see Charpin ( 1986).

Engelmann and Merkelbach ( 1972: i, 2, 17), with Ruzé

( 1988: 89-91). It is unclear how far this was simply a

function of the secretaries being officials.

Detienne ( 1988 b: 64 ff.) also stresses their extreme

importance -- but that might undermine the

democratic and public nature of Greek law. Note the

high status of secretaries at Athens, in the 6th century

BC W. V. Harris ( 1989: 50).

-24-

It is common elsewhere to find scribes with much wider

functions than writing, for example in the Old

Testament, or the English 'Recorder'.

Perhaps

Spensithios was given such honour because scribes were

fairly rare. But if they were like other officials, their

power then had to be controlled. If officials are forced,

on pain of being cursed, to read out the inscription, it

also looks unlikely that the demos were expected to be

able to read it themselves (lurking amongst these

inscriptions are hints that only the officials could read

anyway). But it is surely not just a matter of who can

read. The mnemones in their early form as

'remembrancers' were extremely powerful too, like the

Halikarnassian mnemones whose very 'knowledge' is to

be binding ( Meiggs and Lewis 1988: no. 32). So this

control over the community's past records (written and

unwritten) was passed on when writing began to be used

by the polis, not created from scratch from writing alone.

The effect of written record was partly, if not entirely, a

function of the kind of officials who used it.

The roles of mnemones and scribes would suggest, then:

(1) that writing was not regarded as an unmixed blessing,

since scribes were often controlled; (2) that public

inscriptions were not regarded as adequate guardians of

the laws by themselves; and (3) that there was no sudden

and simple change-over to writing. Memory continued to

back up writing, literate mnemones continued many

functions unconnected with writing. Writing, and

therefore written law, did not take over completely.

5. THE WRITTEN LAWS

Are we any closer to understanding the significance of

these early written laws or the intentions behind them?

Here at least are some suggestions.

First, let us consider what actually gets written down. To

judge from our evidence, very seldom is anything

approaching a written code produced. The lawgivers are

credited with something close to codifying activities

('writing down the laws', as if complete). But

____________________

See Edwards and Edwards ( 1977: 136-8) for

importance of the scribe as wider official, and his

frequent connection with lawcourts. For the recorder:

ibid. 136-7) , but, as Andrew Lewis has pointed out to

me, these developed from municipal clerks who

acquired legal business because they were the only

members of the corporation with legal training.

-25-

the epigraphic evidence suggests a much more gradual

process, and the extent of wholesale codification,

whatever that means in a system of customary law, has

probably been much exaggerated, in optimistic analogy

with Solon's law-giving. At Gortyn there was a long

succession of individual laws, and even the 'Great Code'

is far from complete (cf. Davies, this volume). At Dreros,

we find individual laws written in stone at various times.

We can probably assume that the seventh century law

about kosmoi was the only written law of Dreros at the

time. Drakon of Athens probably did not produce a

lengthy 'code': his homicide law as preserved by later

Athenians may even have been an isolated

pronouncement, if its opening clause really reads (as

Gagarin 1981 argued) 'even if a man kills someone

unwillingly, he is to go into exile'. It was therefore

supplementing unwritten law -- and presupposing its

existence -- rather than supplanting it.

Similarly, the evidence of the inscriptions does not fit at

all well with the literary evidence about the lawgivers. On

the inscriptions themselves, procedural law is dominant:

it looks as if what gets written on stone is not usually

substantive law but procedural (as Gagarin 1986 shows,

but see n. 2 above; cf. Debrunner Hall, this volume).

That is, it must be assuming the background of

substantive law -- what should and should not be done --

and is primarily adding procedure, fines, and penalties.

Therefore oral law is in effect continuing long after the

first laws are written up in stone: written law does not

spell the end of oral law. There is no mass writing down

of customary law (though one can see how the later

traditions came to attribute all to a single lawgiver). This

also suggests that writing, or at least public writing on

stone, was specifically and deliberately used for the

judicial side of the polis, for controlling procedure and

magistrates, but not for the values and beliefs that could

be easily held orally. This is visible even in Sparta. The

'Lykourgan laws' which supposedly governed the

peculiarly Spartan way of life were the unwritten

customs enforced by her educational system; the great

Spartan rhetra, which somehow got written down, was a

law about procedure, albeit important constitutional

procedure.

So written law on stone was perhaps intended to fix the

kind of law or pronouncement which was not universally

recognized.

____________________

It is unclear, however, how easy it would be to discern

change in customary law, if that was even an object:

was it actually believed to be unchanging (as

-26-

There could hardly be a more efficient way of preserving

and fixing an enactment than setting it in stone. The

Gortyn 'Code' refers obsessively to 'the writing': judges

are to judge 'according to the writing' or they must

'decide on oath' (references to 'what is written' occur at

least twenty-four times in the Great Code, Ruzé 1988: 85

n. 9). Stringent punishment is therefore threatened if

anyone defaces the stone.

Even if most people could

not read them, the inscriptions could at least be seen in a

public place, and if officials had to read them out, their

content could be widely known. (However, there was still

much that was not written down at all, and it is

important to ask who it is who decides to fix the law.)

But how could they have enforced procedure, or

controlled magistrates, if this was their desired effect?

(Most discussions seem to imply that writing up the

rules was enough.) As we have seen, cities did attempt to

control their officials, including the scribes, who were

evidently not always trusted. But what were the real

sanctions against disregarding a law? And were there

any real mechanisms to deal with an offender? Solon was

probably most unusual in setting up a mechanism by

which any citizen could prosecute, the graphe, as

opposed to the dike which was initiated primarily by the

wronged person himself. But many of the earliest laws

on stone seem to leave no room for such a procedure.

Often the wronged person is to fall back on 'self-help'. So

the law is only stating an ideal. Or, as in a Chios law (

Hainsworth 1972: no.74 = Collitz 1884-1915: no. 5653), if

a guilty official fails to enforce a fine, he has to pay it,

and if he does not, it must be paid by the next officials up

('the fifteen'), and if they don't pay, they are to be cursed.

So the law is in effect enforced by superior officials.

Remarkably often, however, the sanctions seem rather to

be religious ones. The sanctions are frequently in the

form of oaths: for example the seventh-century Dreros

law regulating ambitious kosmoi ends with a list of those

who are 'sweaters'. It is not clear if they were swearing to

obey or to enforce the law, but this oath was surely the

main hope of enforcing the law (and those forced to

swear would presumably be the main potential

transgressors of the

____________________

Camassa 1988: 148 suggests)

or was it mainly penalties

which became disputed? In fact change may only

become visible once law is written down.

Meiggs and Lewis 1988: no.17. 7-10 ( c.500 BC); no.

30.35-41 (Tean curses); Mitsos ( 1983). Cf. also the

curse on the later Parian inscription, Lambrinudakis

and Wörrle 1983: lines 7 ff.).

-27-

law). Or else the sanctions are in the hands of the gods.

The enthusiastic use of curses at Teos actually represents

the enlistment of religious sanctions against secular

offenders.

Indeed when the officials in Teos are to

'read out the stele according to their memory and power',

they are in effect to read out the curses, and the

inscription is more the record of a curse than a law. The

Lokrian law about settling new territory ( Meiggs and

Lewis 1988: no. 13) begins tethmos hode, 'this law' (=

thesmos), but this law is to be sacred to ' Pythian Apollo

and the gods that dwell with him': 'may there be

destruction on those who transgress it but may the god

be kind to him who observes it' (lines 14-16). Or in a

couple of treaties we find a sacred fine ( ibid. no.17,

c.500 BC ), or that the guarantors of the treaty are to

include Zeus and Apollo (ibid. no. 10).

The fact that these inscriptions may state a decision of

the polis is often emphasized as showing the beginning

of state apparatus, the polis's legislative power, and the

polis's self-awareness. What is less often noted is how

often these laws (right down to the fifth century BC) are

actually under the protection of the gods. Many also

begin with an invocation to a god ( Dreros, the

Spensithios inscription). In other words it is not the

writing in stone that is to make these laws effective and

enforceable, but the gods, the curses or other sanctions

which belong rather to the realm of what Gernet ( 1976)

called 'pre-law'. Detienne has stressed how often these

early inscriptions are under divine protection.

Yet

surely that divine protection sets the fact of their written

form in an unexpected and peculiar light. The fact that

they are written law does not seem to be enough to make

the laws valid, as is so often implied. There is a conscious

effort to include non-legislative sanctions.

One wonders, then, whether the writing itself was seen

in a superstitious light? Should we perhaps say that the

writing of a law on stone helped to crystallize the

religious sanctions or perpetuated the curse in a more

authoritative way? Or that writing was seen as a way of

making the law into a physical object that was more

____________________

On public imprecations, Ziebarth ( 1895), who stresses

the use of curses as sanctions well beyond the classical

period, and Vallois ( 1914), are important;also Latte

1964: 68-77); Lambrinudakis and Wörrie ( 1983: 310-

13); Wilhelm ( 1951: 86); Humphreys ( 1988: n. 22).

Hainsworth ( 1972: no. 74) also mentions a 'customary'

set of curses.

Detienne ( 1988b: 51-3; see 52 n. 80 for other

references). Cf. also the use of religious sanctions in

Roman law: for example, Williamson ( 1987: 174-8).

-28-

easily put under the protection of the god, even

dedicated in its material form to the god?

What is clear

is that early public writings (i.e. laws) are often

associated with temples, written up on temple walls or

set in the precinct. And one of the earliest uses of writing

in Greece, attested by 650-625 BC, is for writing curses

which are then left in a sanctuary ( Langdon 1976: 42,

Hymettos; cf. the early graffiti on an aryballos from

Cumae of c.675-650 cursing whoever steals it, IG XIV

865; Jeffery 1990: 238, no. 3). The other common use is

for dedications. Attitudes to writing are highly variable

and help determine its very use. Perhaps the

monumental stone inscription in the sanctuary was an

attempt to give political and procedural rulings the

status of the unwritten laws, heavily buttressed by divine

authority.

We are, at any rate, far from the democratic Athenian

ideal of written law. Not only does the epigraphic

evidence suggest that laws were often written down

gradually and in piecemeal fashion, but their role and

intentions cannot be deduced merely from the fact that

they were written. Behind these early inscribed laws lay

customs and ideas which must partly have been

inherited from the realm of customary and oral law and

the mnemones; also certain attitudes to the written word

which differed from those in later periods and perhaps

from polis to polis. What emerges above all is the

strikingly sacred context of so much of early public

writing and written law.

6. CONCLUSIONS

Most discussions of the role of early Greek law look

down the centuries from periods where written law was

well established and writing paramount. I have tried to

put archaic written law more firmly into its

contemporary context and have approached it from the

other side: this involves not simply the political

background but the role of writing and the usually

invisible presence of oral or customary law (which did

indeed exist).

In later Greece written law was indeed held to be a check

on arbitrary judgement, and in Athens was central to the

democracy. The original reasons for writing down law,

whatever they were, do not

____________________

Cf. Jensen suggestion ( 1980: 93-4) that when the

Delians put the Homeric Hymn to Apollo (1. 320-21)

on a whitened board and presented it to the goddess,

this was simply to give it physical form so that it could

be dedicated.

-29-

alter this. Written law can be -- and often is --

fundamental in checking arbitrary judgement: when

justice was in the hands of a few elders and governed by

unwritten law, it was clearly open to arbitrary judgement

and inconsistency. The fact that so many archaic

communities were determined, once they had a set of

laws, that they should not change, suggests that one

anxiety had been that the laws might indeed change:

writing down a law on stone was meant partly to stabilize

it for evermore.

But there must be more to it than that. In the archaic

period written law probably represented the first

encroachment of writing into the sphere of public life.

Given the complexity of writing and its possible uses, it is

reasonable to expect that the archaic use of writing for

laws was influenced by customs and ideas already

present; that writing did not change everything

immediately, and that attitudes to the new medium were

tinged with contemporary concerns and beliefs, not later

ones. Thus, as we have seen, unwritten law often

continued alongside written law, rather than being

forced out by it. Officials responsible for their memory

and 'knowledge' continued to be so long after the first

laws were written down. Similarly the first scribes

inherited their predecessors' (oral) responsibilities

alongside the new duties connected with writing. Scribes

were treated not as neutral repositories of records (as

many modern scholars would have it) but just like other

officials. Some cities were highly conscious of the scribe's

power, but was this through fear of the power of writing

itself, or because the scribe was seen as yet another

official who, in true archaic fashion, must be closely

supervised? At any rate, the role of writing was affected

by the society already there. The officials concerned with

written record were as powerful -- and perhaps as

distrusted -- as their predecessors. Writing down the

laws alone cannot therefore have created equality before

the law.

As for the laws themselves, not only does the epigraphic

evidence suggest that laws were often written down

gradually and in piecemeal fashion, but their role and

intentions cannot be deduced merely from the fact that

they were written. Behind these early inscribed laws lay

customs and ideas which must partly have been

inherited from the realm of customary and oral law and

the mnemones. Too many examples suggest that written

law supplemented rather than superseded unwritten law

for us to ignore the possibility that only certain kinds of

law got written down in the

-30-

first place. So we need to ask not only about

contemporary attitudes to writing -- which may also

have varied from polis to polis -- but also whether

writing, or writing on stone specifically, was reserved for

particular types of legislation, and why. What emerges so

strikingly is the sacred context of so much of early public

writing. (As Connor ( 1988) has recently emphasized,

civic and political activity is permeated even in the

classical period by sacred ritual and concern for the

divine, which would suggest that this sacred context

would be a further expression of the convergence of

sacred and secular in the good running of the state.) The

legislators were not relying on the written form alone to

make the laws effective: these laws seem rather to be

guaranteed by the gods or other religious sanctions. So

why were they so elaborately written out on stone? What

I have tentatively suggested is that the monumental

inscription of a law was intended not only to fix it

publicly in writing, but to confer divine protection and a

monumental impressiveness on just those kinds of law

which did not receive the time-honoured respect

accorded the unwritten laws and customs. In later

Athens, the inscribing of decrees on stone symbolized

publicity and democratic decision-making. In earlier

times the inscription added weight and divine

protection. It was precisely laws about procedure and

constitution which so desperately needed them.

This chapter originally appeared as an article in the

Bulletin of the Institute of Classical Studies, 40 ( 1995).

-31-

Deconstructing Gortyn: When is a Code a Code?

JOHN K. DAVIES

1. INTRODUCTION: THE 'LAW CODES' OF

GORTYN

Discussion of Greek law beyond Athens has tended to

look first, for good reasons, at Gortyn in Crete, the only

alternative source of extensive documentation in the

classical period. Even so, and in spite of Margherita

Guarducci's exemplary publication of the material in

1950, detailed study of it has been very thin on the

ground till recently,

with the honourable exception of

the series of studies by Ronald Willetts which

culminated in his re-edition of the Great Code in 1967.

Some more recent work, notably by Michael Gagarin, has

advanced the discussion, but it remains concentrated

very largely on the Code, whether as documentary

evidence of substantive law or as the reflection of social

customs and values.

Such an approach leaves major questions unasked. In

this paper, following a lead given by Lemosse ( 1957) but

subsequently neglected, I shall attempt to subvert it in

favour of the following propositions: (a) that the Code

has to be seen as part of a corpus of documentation; and

(b) that its format has to be seen within a framework of

revision of law which moves both towards and away

from codification.

It is convenient to begin by reviewing the evidence. No

fewer than a quarter of the surviving Greek inscriptions

of Crete come from Gortyn, that superficially

unexceptional town at the upper (eastern) end of the

Mesara plain which the experienced Roman eye

____________________

The only relevant references (i.e. to IC IV 1-159) in SEG

are: 12. 402-4; 13. 468; 15. 574-5; 16. 533; 18. 393; 19.

605-6; 23. 585-7; 24. 1162; 25. 1041-3; 27. 731, 734,

736; 29. 825; 30. 1110; 31. 811; 32. 867-8; 33. 731; 35.

982-3; 36. 810; 37. 744-5; 38. 899; 39. 960-2; 40. 772-

3. There is an equally thin harvest in Bulletin

ápigraphique.

For a (hopefully complete) list see the bibliography and

Bile ( 1988: 26-7). There are warning notes against

some of Willetts's assumptions in Meyer-Laurin (

1969).

-33-

for landscape picked, on as the capital of the province of

Crete and Cyrene. Among these inscriptions, notoriously,

is the Great Code (IC IV 72), but it does not emerge from

nowhere. Within Crete Gortyn is only one of eight cities

from which fragments of early codes survive (Jeffery

1990: 310: the others are Axos, Dreros, Ellynia, Lyttos,

Eleutherna, Prinias, Knossos). Within Gortyn itself the

Code is only one, albeit by far the largest, of a lengthy

series, grouped by Guarducci as IC IV 1-159, all written

retrograde or boustrophedon, all dating from the archaic

and classical periods, and all save one (IC IV 50)

concerned with public law in one way or another. Even if

we leave aside some eighty six of these documents (IC IV

18-19, 24-9, 31-40, 48-9, 54, 59-61, 66-70, 92-140, 151-9)

as being such miserable scraps that the subjectmatter

cannot be discerned with certainty or at all, there remain

seventy three substantive documents. That they vary in

script, format, and find-spot shows that they were not

created as a unity but are to be distributed throughout

the period from the first publication of documentation

on stone (early sixth century BC?) till the early or middle

fourth century BC: at that time there appears to have

been a clear horizon of public sensibility, marked alike

epigraphically by the abandonment of boustrophedon

writing, and in subject-matter, by the increasing rarity of

documents which are laws rather than treaties or decrees

or letters (IC IV 160 is transitional -- though it is law it is

not boustrophedon). We may with Guarducci put that

horizon somewhere in the early or middle fourth century

BC, and may account for it in various's ways, but it is

real, and requires that discourse be about a group of

documents promulgated over 200-250 years. The

questions which pose themselves are therefore not those

generated by a single document in isolation, but must

above all be those generated by a series, viz. about their

interrelationship to each other and especially to IC IV 72;

about changes in law or in social and political values;

and about the nature and purpose of the sort of

archivization of public action which is represented by the

promulgation of documents in a public and long-lasting

format.

We have only the documents themselves to guide us, and

must therefore begin with them. They vary enormously

in size. At one extreme is the Great Code, with its twelve

columns, all but the last comprising about fifty-five lines

each; at the other is the apparently complete but

enigmatic IC IV 22B, with all of five

-34-

words.

Clearly, however, IC IV 72 was not the only

large-scale document planned as a unit. For our

purposes there are two kinds of comparanda:

Archaic documents

comprising (probably) a single

ordinance but spread over 15 stones (IC IV 8), or 13

(IC IV 9), 9 (IC IV 11), 18 (IC IV 12, 14), 12 (IC IV 13),

or even, at the extreme, 44 (IC IV 10), which was set

out as one or two lines of writing going round the four

sides of the steps or the walls of a building such as the

temple of Pythian Apollo. These are documents

significant indeed for what they reveal of a

(presumably sixth century BC) taste for the

monumental, instinct for permanence, and

competence in planning; but they are less relevant for

us than

Those set out (like IC IV 72) in columns. Those

surviving in this category are no fewer than twenty-

two. Most of them, inevitably being fragmentary,

present evidence only of two columns,

but two (IC IV

53 and 77) had at least three, and two others (IC IV 75

and 41) had four or more.

In this last group, IC IV 75, a document to which we shall

return, presents four columns, of which A lays down

procedure to deal with the case of land erroneously

marked off as security for a loan; B lists goods, mostly

household goods, and is interpreted in the light of

Diodoros. 1.79. 5 as a list of goods which could not be

seized as pledges; C provides for the procedure whereby

a proxy can act in pledge proceedings; and D is wholly

unclear. The positive indications are therefore that IC IV

75 presents systematic regulations about

pledging/security, but since regulations on various

aspects of pledging are found not only in two contexts of

IC IV 72 (cols. I and VI 46 ff.) but also on ten other

documents (IC IV 30, 41; V/VI 43A, 45, 47, 81, 85, 86,

91, 102) we most certainly cannot say that IC IV 75 is the

Gortynian law about pledging and security.

The remaining complex document is IC IV 41, which had

at least eight columns. Of those, the extreme right-hand

column is hopeless; column I deals with compensations

for an animal injured or

____________________

IC IV 22B: πςóΘεσι µη [πο]δικάαµη πάµ[óσαι.

Translation not certain. Either '(the relatives of a dead

person) may not avoid his laying out, either by seeking

court action or by entering an oath of denial', or

'(persons) may not evade statutory time limits, either

by seeking court action or by entering an

oath of

denial'.

IC IV 42, 43, 45-7, 52, 54, 65, 73, 74, 76, 82, 90, 103,

107, 110, 140. IC IV 51 is also said to have been laid out

in columns.

-35-

killed by another animal; II deals specifically with equids

which are injured or killed; III may start by dealing with

damage wrought by dogs, but then deals with penalties

for the non-return of animals and birds which have been

lent -- a theme which may continue into IV but then

there is an abrupt switch to fugitive slaves, while V and

VI switch equally abruptly to nexus (debt bondage), V

laying down the responsibility for acts committed by a

person who has pledged himself, VI splitting between

him and his creditor damages for hurt inflicted upon

him; and VII starts off about (damaged?) goods and

animals being brought to a temple, and then shifts to

detailing who should compensate for damage inflicted by

a slave whose ownership is changing hands.

It would just be possible to see IC IV 41 as a document

conceived as a whole and dealing in general with

responsibility for damages, but that is not the most

obvious reading of it, not least because the amount of

text lost at the top of each column is wholly uncertain: it

is safer and wiser to see IC IV 41 and perhaps IC IV 75

too, if not others, as being documents like IC IV 72, i.e.

assemblages of rules on various matters put together as a

single utterance in virtue of some principle of unity

which it is our business to try to discover.

2. HOW CODIFIED IS THE GREAT CODE?

What I have said so far is intended to provide a

framework of reference, partly for the Gortynian legal

inscriptions in general, partly for the Great Code in

particular. I now turn to the latter in rather more detail.

At first and second sight its format is exceptionally lucid.

Topics, though not flagged by any heading such as one

might find in Athens,

or by any indentation or fresh

line-start as on some of the older boustrophedon

inscriptions of Crete ( Jeffery 1990: 311; Willetts 1967:

4), are clearly identifiable, as the summaries of Willetts

1967 and Gagarin 1982 reveal, while individual sections

on identifiable topics are separated by asyndeton

(conjunctions and other linking words are absent).

Whether, as Gagarin argues ( 1982: 138 ff.), vacats

(spaces left deliberately blank) indicate sys-' tematically

thought-out subsections within a section, rather than

____________________

e.g. the headings pemptei ('on the fifth day'), hektei

('on the sixth day'), etc. in the Great Calendar of

sacrifices ( Oliver and Dow 1935: 8-32, nos. 2-3, lines

3-4, 6, and 23-4), or the subheadings on the 4th-

century-BC navy-lists (e.g. IG II

1613, lines 6o-I, or IG

1622passim).

-36-

faults in the stone (as Willetts 1967: 4 believes), is

perhaps more moot, but even without that it is very tidy.

What is more, if admittedly we discount three intrusive

topics at the turn of columns VI and VII (Willetts's items

12-14; Gagarin's items 18-20), and if we discount most of

column 1, which is about rules for the seizure of persons

of disputed (slave/free) status, then it is possible to say

with Gagarin ( 1982: 135):

The structure revealed by asyndeton on the one hand

confirms the traditional view that the Code is not a

systematic and comprehensive set of laws: on the other

hand, however, it reveals a greater organization of

provisions than is sometimes acknowledged. . . Thus

about two-thirds of the main body of the code consists of

regulations about the family and its property, and some

attempt was clearly made to group together related

sections.

The trouble is that this will not do: not only is the

material which one has to discount in order to reach

such a conclusion very substantial, but there are other

even more intractable obstacles. Let me set them out

systematically.

1. The first is purely formal, that columns XI 24 ff. to the

end are cut in a different hand from the main body of the

document (cf, Fig. 1 or the facsimiles of Guarducci (195o)

or Willetts ( 1967) for the different lambdas and thetas).

However, what the facsimiles also make clear is a point

which has been insufficiently weighed in the literature.

Columns I-XI all begin at the same level/course of

stones: the absence of the stone which carries the top of

X is pure accident, and there are extant fragments which

may come from it ( Willetts 1967: 4a). Column XII in

contrast seems to start one course down-I say 'seems'

because one cannot be quite certain that the original

stone (stone L), rather than the replacement which now

figures in photographs, was anepigraphic, but column

XII makes sense as it stands, and what is more, the top

left-hand corner of the stringer which starts column XII

carries the letters 'IBA' (= 12a). That is to say, it was the

first stone of the column and was numbered as such

when the stones were re-used in the first century BC (

Willetts 1967: 4a; Keyser 1987). The problem is whether

one infers from this simply that there was already

something in the space occupied by stone L, such as a

window ( Guarducci 1950: 126) or an existing

inscription, or whether one infers that XI 24 ff. and XII

were inscribed after columns I-XI had

-37-

FIG. 1. IC IV 72 cols. X-XII

-38-

-39-

already been planned and cut as a unit. Given the

content of the additional material, which largely

comprises amendments to earlier sections, the latter

hypothesis seems to me far more likely, thereby posing

immediate questions about the processes of formulation

and validation.2. The second obstacle is that the degree

of systematization is extremely variable.

(a) At one extreme stands the law on adoption, cols.

33 to XI 23. This begins in a general statement (X 33-

4): 'adoption is to be from wherever one wishes', the

determining social importance of which I need not

emphasize, and goes on to specify procedure (11. 34-

9) and the obligations incumbent upon the adoptee

(II. 39-48), a section which refers to, and

incorporates, pre-

existing legislation ('as is written for

legitimate children', II. 44-5., 46). Lines 48 ff. pick up

the logic of lines 41-2 to lay down what happens if

there are legitimate children of the adopter; lines 49-

52 if there are males, lines 52 to XI 6 if females. Lines

XI 6-10 envisage the circumstance of the adoptee

himself dying childless, lines 10-17 envisage the

circumstance of the adopter renouncing the adoptee,

and the section ends with restrictions on the capacity

to adopt (II. 18-19) and with a clear prescription of

validation of property held in terms of earlier

arrangements (II. 19-23). This really is codification: a

general principle is enunciated, whether enabling or

prohibitory (here enabling), a cross-reference to

existing law is inserted, and the likely circumstances

arising from its application are envisaged and

systematically provided for -- altogether a model of a

modern major general law.

(b) In contrast, lines II 2-45 on rape, seduction, and

adultery are really rather a mess. First of all, we have

varying phrases for the sexual misdemeanour under

discussion: κάρτει οι+πεî, kartei oipei (I. 3); κάρτει

δαµάσαιτο, kartei damasaito (II. 11-12);

ε+πιπε+ρεται epiperetai oipen (I. 17); µοικíο,

moikion (II. 21, 44) -- but the differences between

these acts are nowhere defined., even though the

variations in p

enalties are extreme, ranging as far as

the possibility of lynching (II. 34-6) (see fig. 2).

Granted, the definition of terms is something almost

wholly foreign to Greek law,

so the degree of clarity

to be expected is limited, but even so we might exect

some distinction between (say) seduction and rape.

____________________

Though the Code does actually define an heiress at one

point: IC IV 72 Col. VIII. 40-2.

-40-

Victim

Rapist

________________________________

_____________

free man slave male serf

free man

100 St. (2-4) 200 St. (5-7)

free

woman:

100 St. (2-4) 200 St. (5-7)

10 St.

relative's

house

another's

house

apetairos

10 St. (4-5)

wife of

apetairos

male serf

5 dr. (7-9) 5 St. (9-10)

female

serf

5 dr. (7-9) 5 St. (9-10)

household

slave:

virgin 2 St. (11-16)

already

seduced

by day

1 ob. (13-15)

already

seduced

2 ob. (13-15)

Victim

Rapist

________________________________

_____________

free man slave male serf

by night

St. = stater; dr. = drachma; oh. = obol

6 obols = 1 drachma; 2 drachmai = 1 stater

numbers in () = line numbers

FIG. 2 Matrix of Penalties in IC IV 72 Col. II

-41-

Secondly, and more substantially, the matrix of penalties

set up by the social necessity to take account of the range

of possible legal statuses of offender and victim is only

very patchily filled out -- not all possible combinations

are included (see Fig. 2, retaining the units of measure of

the text). The difficulty is to decide whether the gaps

derive from unsystematic thought, from the unlikelihood

or non-penalizability of the offence, or from the

existence elsewhere of complementary rules. The lack of

specified penalty for adultery by a free man with a slave,

for example, can hardly be due to nonpenalizability,

since (a) lines 27-8 show slaves are envisaged as capable

of being the victims, and (b) the act should presumably

count as damage to another person's property anyway.

Likewise serfs are not explicitly envisaged either as

agents or as victims of adultery, though they are of rape:

and yet, as is patent on Fig. 2, the matrix for rape is just

as full of gaps as that for adultery. Thirdly, the provisions

in lines 28-45 for ransoming the adulterer caught in the

house are equally untidy. In lines 28-33 the only statuses

envisaged for such an adulterer are free (implicitly) or

slave: but in lines 36 ff., envisaging the contingency that

the arrested adulterer may claim that he has been

captured by subterfuge, the statuses named are

apetairos ('not full citizen)

and serf (II. 40-2), while the

category described in lines 38-9 as 'a case involving 50

staters and more' does indeed cover four of the cases in

the adulterer matrix but leaves the adulterer of the wife

of an apetairos in limbo. Either all this is crass

incompetence, or the authors of these laws are not

setting out to be as systematic and complete as we think

they are or ought to have been.

3. A third obstacle to reading the Great Code as a code,

or at any rate as a successful code, comes from the

content of the apparent additions and corrections to the

main body of the Code in columns XI-XII. In the

following section I shall survey it very briefly, but none

the less in some detail for reasons which will become

apparent.

3. SUPPLEMENTARY/EMENDATORY

MATERIAL (COLS. XI-XII):

____________________

For the problems involved in translating apetairos

, see

Willetts ( 1967: 12-13) and Laurencic ( 1988).

-42-

3. SUPPLEMENTARY/EMENDATORY

MATERIAL (COLS. XI-XII): THE PROBLEMS

Lines XI 24-5, brief but fundamental, are seen by the

commentators ( Willetts 1967: 34. 18(a); Gagarin

1982:131, sect. 31 (30)) as supplementing partly I 2 if.

('whosoever may be likely to contend about a free man or

a slave [i.e. about his status] is not to seize him before

trial') and partly X 25-32, which protect a pledged man,

or one engaged in legal process, from being bought.

Collectively it all amounts to a Habeas Corpus Act

protecting men whose legal status is the subject of

contention, but the lack of crossreference, and the

introduction of the new element of 'receiving in asylum'

(if that is the right interpretation of epidekesthai), raise

the question to what extent lines XI 24-5 were envisaged

as supplementation rather than new laws.

Lines XI 26-31 ( Willetts 1967: 34. 18(b); Gagarin

1982:131, sect. 31 (31)), on the two distinct functions of a

judge, are again fundamental. They are new and have no

correlate anywhere in the Codes.

The provisions in lines XI 31-45 ( Willetts 1967: 34.

18(c); Gagarin 1982: 131, sect. 31 (32)), quite clearly pick

up and supplement IX 24-40 on obligations owing from

a dead man. The basic gist in column IX was that

creditors should bring suit within the year (whether

before the end of the official year or before twelve

months have elapsed is not clear), with details about

procedure. Column XI in contrast lays out the various

choices for the heirs (accept the inheritance and pay the

debt, or receive neither).

Lines XI 46-55 ( Willetts 1967: 34. 18(d); Gagarin 1982:

131, sect. 31 (33)) are more closely connected with what

has preceded. The section from II 45 to III 16 comprises

a very clearly laid-out set of rules about what a wife may

take away with her in case of divorce. Part of them stated

(III 5 ff.): 'But as regards things which she denies (i.e.

having taken away), the judge is to adjudge (dikaksai)

that the woman take an oath of denial by Artemis.' At

this point the drift of the supplement before us in

column XI is obviously to clarify this element of

procedure, partly by laying down a timelimit for that

oath to be taken, partly by building in an interval of

notice of suit and by requiring a witness of some age and

standing.

The brief provision in lines XII 1-5 ( Willetts 1967:

34:18(e); Gagarin 1982: 131, sect. 31 (34)) can be plugged

in even more

-43-

closely and satisfyingly. Lines X 14-20 lay down a limit of

100 staters for gifts from son to mother or husband to

wife. Column XII reaffirms that, with a cross-reference,

while withdrawing the possibility of suit over

arrangements, even if different (i.e. larger), made before

the law was passed.Lastly under this heading, lines XII

6-19 ( Willetts 1967: 34. 18(f); Gagarin 1982: 131, sect. 31

(35)), which adds yet more to the longest section of the

Great Code, that on heiresses (really girls with no father

or brothers) and their property, and does so in a

thoroughly subversive way. The jumping-off point in the

main Code for our purposes is lines VIII 42-53, which lay

down rules for who administers the property of an

heiress until she is of age to marry. Here it is stated quite

lucidly that the pecking order starts with (a) the father's

brothers, the heiress taking half the produce of the

property. However, it is implicit that one of the father's

brothers is likely to be the groom elect in terms of the

provision at VII 15: 'the heiress is to be married to the

brother of her father, the oldest of those living.' Hence

the provision in VIII 47 says in effect (though not

specifically) that (b) if there are no father's brothers,

then the girl herself is in charge as beneficial owner,

brought up by her mother, but that (c) if she has no

mother, then her mother's brother inherits and becomes

groom elect.Column Xll varies this in three respects:

It introduces officials called orpanodikastai ('orphan-

udges'), but via the peculiarly illogical route of saying

that these regulations apply if there are none in post.

The new provision does not specify what is to happen

if these officials are in post;

It replaces stages (b) and (c) above with a provision

for joint administration by a paternal and a maternal

relative (if the interpretation is right), who are tons

egrammenons (written, registered, nominated?); and

It lays down a minimum age for marriage.

Even apart from the lengthy section on heiresses in the

Code, there are at least two other documents which

certainly or probably regulate their circumstances (IC IV

44, 56), though regrettably too small and fragmentary to

reveal their substantive provisions. Historically, i.e.

socially and politically, this was clearly an area of major

friction and of change in Gortyn in the sixth and fifth

centuries BC. I am not here concerned primarily to trace

and explain

-44-

the direction of that change (see Willetts 1967: 23 ff.),

but only with the consequences for statutory provision.

Specifically what we seem to have here in columns VII-

IX and XII is a major piece of clarifying codification

initially comparable in format and quality of thought to

the section on adoption, which then has to be remuddled

in order to incorporate new ideas and new officials.

Though of course this is pure hypothesis, it looks to me

as if the political process, i.e. public opinion/prejudice as

represented by the assembly, has wrong-footed the

lawmaking process in two ways:

(a) by declining to accept the eventuality implicit in the

provisions outlined in the Great Code that the

administration of an heiress's estate could be taken over

by her mother's family completely if there were no

father's brother available, and instead insisting that the

paternal family keeps a foothold somehow; and

(b) by creating, or resuscitating memory of, the officials

called orpanodikastai, who appear nowhere else in the

Code, even in contexts like lines III 44 to IV 23 on

children born after divorce or born out of wedlock,

where they well might, nor anywhere else in extant texts.

In consequence the lawmakers have incorporated these

points in an amendment while rescuing as much of the

original formulation as they could.

I have dwelt on columns XI-XII at some length as being

procedurally the most revealing piece of the Code. I am

obviously taking as true the proposition that the items in

these columns are amendments or subsequent additions,

and am trying to elicit from them some hint of what the

processes and pressures were which led to the Great

Code (i.e. the whole document which we have)

presenting simultaneously the appearance of a

movement towards codification and systematization and

the appearance of a movement away from it. For the last

section, on heiresses, I have just suggested feedback

from the political arena as the source. For others, such as

the quasi-jurisprudential section on the twin functions of

judges, there is no basis for even guessing. For the

remainder, where positive law is concerned and where it

is a matter of defining a grey area or making procedures

explicit, the possibility should at least be aired that we

are dealing with a form of case law. It could

____________________

I do indeed wonder whether via the words tons

egrammenons they are referring not to a process of

registering the guardians of the property (still less

'nominating', Willetts 1967: 34. 18(f), for which the

word egrammenons is wholly inappropriate), but to

other statutory provisions which they had hitherto

disregarded, by accident or design: but my argument

does not depend on that speculation.

-45-

be argued that the application of columns I-XI to actual

suits had revealed gaps or loose edges here and there,

which are remedied via formulations which are

patchwork but which are generally applicable law, not

one-off decisions.

4. LAWMAKING AND CODIFICATION: THE

EVIDENCE OF OVERLAP, REPETITION, AND

FORMAT

At this point it may be appropriate to do a large

Herodotean loop before returning to the Code and to

questions of its promulgation and validation. If, as is

generally and surely rightly assumed, behind large-scale

systematizations such as we have in IC IV 41 and IC IV

72 lie older, perhaps less well thought-out or less closely

interconnected sets of regulations, then the question

must be whether the epigraphic records outside the

Great Code allows us to see the processes of law-creation

at work. Up to a point they do, if we look at overlaps,

repetitions, and the general questions of format and

grouping.

First, then, overlap and repetition, there being one clear

example of each. The example of overlap is all the more

revealing for linking a column of the earlier code (IC IV

41) with the later Great Code (IC IV 72). Both passages

deal with damages or injury brought about by a slave

who has changed hands by purchase, the problem being

to sort out which owner should have the responsibility

for making good the damages. The earlier passage in IC

IV 41 col. VII runs:

[µενoς_________] -----------------..]ν[.........]τ+αι

ρηνµατα ε+σι+ ναò ε+σι διóµεν[oν]  ε+πεοευσ

αντα ε θ+[. . . . . .]στα[

·] οo[. . .]α[. .] πεπθ+αι

τoυτoν [. . . . .]ια[. . ·]λε[. .]·α+[τò]µ πρια+µ ενoν+ [τoîς

µεµπ]ọ[µε+ νoις τōν] ιρηα+τōν τα+ν

ταν ιατ[ι]σ+στα+[µ]η+ν 

ι] εια+στO+014D γρατται, ι αì τòν νδρ+ ατòν

ε+πì

-46-

τoîς [µ[εµε+oις ōν ιρηµα+τōν 0µην+ αι+ ι

α µ περα6óōσε6 0 ια πρíα 15

ται ε+ν ταîς τρια+ιoνι µU+0B5+ ραις. α δε ια

συνγνôντι τ ν δε+κ µερν µ περαιóσ η]ν, νδoι°ν

δε ιαì

A rough translation of the relatively complete section,

lines 7 ff., might be:

... the man who purchased (a slave) is to make good the

damage of the articles to the complainants as is written

of each (article?), and the man

himself is to be in the

power of (epi) the complainants of the articles, if (the

purchaser) does not rescind the agreement, from when

he shall have purchased, in the thirty days. But if they

(i.e. the vendor and purchaser of the slave) should agree

within the ten days not to rescind the agreement and

surety also. . .

This is to be set against a short passage in the relevant

section of the Great Code (IC IV 72 Col. VII 10-15):

If someone has bought a slave from the market-place

and has not terminated the agreement within sixty days,

the one who has acquired him shall be liable, if (the

slave) has done any wrong before or after (the purchase)

Placed as it is, as one of three short sections ( Willetts

1967: 34. 12-14; Gagarin 1982: 131, sect. 31. 18-20)

sandwiched between two long ones, on the sale and

mortgage of family property ( Willetts 1967: 34. 11;

Gagarin 1982: 131,sect. 31, (17)) and on heiresses (

Willetts 1967: 34. 15; Gagarin 1982: 131, sect. 31, (21)), it

looks again like a piece of generalized case law. However,

I remain wholly uncertain whether the provision in the

Great Code (IC IV 72) was conceived independently of

the provisions in IC IV 41 col. VII, or is an amendment to

them. In the latter case it presumably extended the

period in which it was permissible to rescind the

contract, in the same way (but without cross-reference)

as the provisions of IC IV 41 col. VII themselves refer

back to still earlier regulations. What is clear, I think, is

that it is very hard to suppose that the two passages

represented valid law simultaneously.

My second example under this heading is repetition:

virtually

____________________

Interestingly the word andra, 'man' is used here for a

slave.

-47-

the same text appears on IC IV 75A and on IC IV 81. The

topic, which crops up repeatedly in extant laws, is the

taking of goods or property as a pledge, or security for a

debt. Here the law specifically deals with goods movable

or immobile which have been seized as a pledge, but are

claimed by the debtor not to be his. The relevant

portions of the texts are:

IC IV 75A IC IV 8I

- - - - - - - - - - - - - - - - - - - -

- - - - - -

δενδρε+O+006Fν ιαì

oιιíας [. . .

. .]τι τo µóρoν

ε+ν+νε+0341α o

ε+πα+νιιστα

πεπαµε+νoι, ·[. .

k+ạδ[ε+ν ντì µαιτυρōν

δυ

. . .ι]αλε+ν αννì µαινúρō

oν πρóτριτoν τòν]

ε+νειυρ

ν δυôν πρóνρινιν νòν π[. .

α+ισαντα

mudot[ε+τε+σιóµειρ

. . .]σαννα µετρσιóµενo

 δε ια µε ει+ε+σιο

µενo α

α δε ια µε++ ει+ε+ι

ιαλíoν[τι ι

ι γατται α[τoς

µετサ+ταρτ

γρ]αται, ατòς

µετρε+Θíoν[τι ι

ε ιαì πρoπōνε++τ]o

πρνε+ναρν

ιαì πρπōνε++τō

πρoτε+τατ]τoν

oν ντì µαιτυ[ρoν δυôν

παρε+

〄

+

ν]τµαιτúρōν δυôν

παε++µε+

µε+ν ε+νς γoρ]ν.

µνúµε+ν δε

ν ε+νσ



γoρα+ν.

µνúµε+[ν δ

ε+ µ° τoúτō µ[ε++ν

ε+στι ßλoπí

ε ε+]µ°ν τoúτō µε+ν

ε+στι ßλo

αι διιαíōς πρìν]

ōλε++σΘαι τ

πíαι διιαíōς πρìν

µōε+σΘ[Θαι

[°ν δíιαν, 

ε+νειúραισαν]

τ°ν] δíιαν, ε+νειúραισαν

[µε

µεν______________]

µε++ µε+ νιιν νερα+

o [λí

ερ ]µóσoντι. να

A rough translation of the common portion might be:

(concerning?) trees and house (if?) nine of the

neighbours possessing land nearest by swear, [let the

lawsuit go forward?]: but he is to summon three days

beforehand in the presence of two witnesses the counter

party [or: the person who has taken the pledge]

order to mark off (the property allegedly pledged): but if

the latter should not be (present) to his summons, as has

been written, let him mark off (the property) himself and

let him enjoin upon (the creditor) four days beforehand

to appear in the agora before two witnesses. They are to

swear that (the land) is verily (the property) of the

summoner without damage justly before the suit was

brought, but the person who took it as pledge (is to

swear) that it is not (the summoner's property):

whichever way the majority swear is to win the case.

____________________

"The counter party", IC IV 81, restoring

π[οµολε+]σαντα with Guarducci: or 'the person

who has taken the pledge', IC IV 75.

-48-

FiG. 3 IC IV 81

The text clearly deals with third-party actions to settle

the questioned ownership of property which a creditor

has taken in pledge. The wording is almost identical in

the two documents.

Candidly, I do not know why we

have two parallel texts. The simple answer, looking at the

last lines of IC IV 81 (not reproduced) with its new

sentence ending in mid-air, is that it is a duff copy

replaced by IC IV 75. In spite of an Athenian parallel (IG

459, 458) that is not very convincing, if only because

the expedient of deletion and overwriting is certainly

found in this body of material. A more complex answer is

that IC IV 81 was a singleton regulation, subsequently

incorporated word for word into a broader regulation.

The format of IC IV 75 is compatible with that

hypothesis, since at least

____________________

The participles denoting the creditor in IC IV 75A 2-3

and IC IV 81. 5-6 are certainly different.

-49-

columns ABC (D is beyond hope) are all dealing with the

pledge procedure, B listing objects which may not be

taken as pledges for debt, and C allowing a proxy to act

in pledge-taking. But if that were the case, we should

expect IC IV 81 to be deleted, either by complete erasure

or by the sort of 'cancellation' with pointed chisel marks

which we do have attested elsewhere in the Gortyn

material, not least by the right-hand column of IC IV 81

itself, as Fig. 3 (IC IV 81) shows clearly. The second

answer is therefore no more attractive that the first.

There must be other possible answers, but I cannot think

of them.

The final document I adduce is IC IV 43, which shows

neither overlap nor repetition but is none the less highly

indicative of procedure in various ways.

Θιo τα+ν ε+[ν] ησóραì

ι+ λōς δ

α+ ε+µ ∉άλαι πυαλια+

[[ε]]

íιōς ε+νει[νρ

δōιαν  πóλις πυνεûσαι. α

03ACι]σανς µη ι

ι+ νις ναúναν πρíαινo ε ια

αρπōσεν[αι, τ

ναΘε[î]νo, µη ιανε+ιεΘαι νo

α+ς τιµα+νς τô

ι παµε+νōι να+[ν]να+ν µη

ε+νει

ν νειúρōν ι

υ ε+[τα+]ν ια[ιά]Θεσι µη

αταστασεî ι

ε+νει

υράδδεν αι+ µη

ε+πι[µ]ετρ[θ+Ğ+03B9] τα+

ειάστō γρ

ν ε+Πιιαρπíαν. να.

ατται.

Θιo τô πoταµô αι ια ιατα+ τò

ι+ ια δòλoν ε

µε+ττoν τα+ν ΘιΘθ+ν (ι

δóλαν U03B4íιōς

ατα+ τò òν αατô,

ΘιΘεµε+ε+νōι 

ε+νειυράισει

πατoν µην. τα+ν δ ρ+oα+ν

λεíπ

ε ε+δúσει ε π[oλ

εν ττιν ιατε+ιει  ε+

γoρ

úσεται, ε+ις µ

ι δε+πνρα ε πλíoν, µεîoν δ

µη·

íνας ιαταστα

Σεî ι τôι ε+λ

ευΘε+ςōι γρα

τται, τα+ δ τρÍ

τρα τ[ς] ηµα

ς ιαì τς νπ6δη

µας ιπερ[τ]ôι

ε+[λευΘε+ςōι

Aa If (someone) having unjustly taken a threshing-floor

in pledge shall not have gathered the harvest from it, he

shall make good the values of the pledges as is written

for each.

-50-

Ab If (someone) has unjustly taken in pledge a male

slave or female slave, or has taken away (his/her) clothes

or ornaments, he shall make good (the loss) as to half of

what is written for the free person, but the third parts of

(the value of) the clothes and the ornaments as (is

written) for the free person.

Ba Gods. The city gave the orchard/vineyard in Keskora

and in Pale to cultivate. If anyone should buy or

mortgage this land, neither the purchase nor the

mortgage is to lie [i.e. to be valid?]: nor is anyone to take

it in pledge unless he measures out the usufruct [i.e. the

usufruct may be taken in pledge?].

Bb Gods. If anyone makes the flow of the river run from

the middle of the river towards his own (property), it is

without penalty for the person so doing. (He is) to leave

the flow as wide as the bridge at the agora holds, or

more, but not less.

First, its format consists of two columns (Fig. 4) of text

of unequal width, each presenting two documents which

appear to be complete in themselves. Given the way in

which the letters in the righthand column (col. A) are

squashed, particularly towards the bottom, there were

clearly physical constraints for the mason laying out the

text. It is pretty clear that the two columns were not

planned at the same time, though there are no

differences in lettering to suggest that two masons were

at work, and it is even moot which column was cut first.

Also noteworthy are the faintly visible letters across the

middle of the stone between Aa and Ab and between Ba

and Bb (Fig. 4). They cannot be made to yield sense

consistent with the documents published as IC IV 43.

Though Guarducci seems strangely nonplussed and does

not make the comparison, there is no doubt in my mind

that we are dealing with a reused stone, an earlier

document having been almost totally erased in a way

much more clearly visible on the stones which Guarducci

publishes as IC IV 47 and IC IV 48. I mention this

because one can interpret such erasure and reuse in two

different ways:

As a deliberate way of overcoming the difficulty

sketched above in respect of IC IV 75A and IC IV 81,

that of ensuring that superseded provisions were not

left standing, ready to mislead litigant and judge: or

As a means of economizing on the use of prepared

surfaces, especially when, as is frequently the case at

Gortyn, we are dealing with stones which were

already parts of standing structures when

-51-

FIG. 4 IC IV 43

the inscriptions they bear were cut, as distinct from

the Athenian pattern of creating a new self-standing

stele for each new enactment. I do not know which of

these explanations is right.

Leaving that question open, the format constrains us to

accept that each pair of enactments was seen as

belonging together in some sense. Yet, as text and

translation show, it is quite unclear in what sense they

might belong together. Aa and Ab could indeed be said to

be closely linked in subject matter, in that each deals

with an aspect of taking something in pledge unjustly

and with having to make restitution. Yet that may be a

bit superficial, in that each explicitly refers to, and builds

on, previously existing written regulations. Certainly

neither of them can possibly be seen as a full

-52-

statement of the law on taking pledges. I would rather

take them both as further examples of the sort of item

which I discussed above (Sect. 3) on columns XI-XII of

the Great Code: formulations emerging from the

necessity to sort out actual cases in court which are seen

to expose gaps or inequities in existing statutes.

If so, two consequences follow. First, the way they arise

makes them into aspects both of untidying existing law,

and of providing the raw material of subsequent re-

tidying. It is therefore a little unlucky that though col. I

of the Great Code (IC IV 72) does indeed deal with

subject-matter not far away from that of IC IV 43 Ab, its

main preoccupation is with persons of disputed status,

so that we cannot follow the fortunes of the provision at

IC IV 43 Ab further into recodification. The second

consequence is that their collocation in IC IV 43 A does

not have to be a consequence of their being, as it were,

first cousins in subject-matter: it could just as easily

result from the chance that the cases which presented

these difficulties appeared before the courts at roughly

the same period. Certainly the pairing of the two

documents in IC IV 43 B fits that hypothesis, for they

have nothing whatever in common with each other as far

as subject-matter goes and can only have been inscribed

together if some principle other than subject grouping

was at work.

5. CONCLUSIONS ON CODIFICATION

The most rapid way of formulating that principle lies via

a further question: who promulgated these documents,

whether the extended 'codes' such as IC IV 41 or IC IV 72

or IC IV 75, or the smaller items such as IC IV 43? Since

specific officials such as nomothetai ('lawmakers') are

conspicuously absent from the list of magistrates at

Gortyn ( Guarducci 1950: 31-2), good method enjoins the

least adventurous hypothesis. It is likely that they were

promulgated by the main magistrates, the kosmoi and

gnomones with or without their subordinates the

mnamones (see Thomas, this volume), for it remains

wholly unclear to me whether the person or persons

called dikastai, 'judges' (IC IV 41 col. V; IC IV 42B; IC IV

72 passim), need be anything more than a kosmos

wearing a judge's wig. However, it would not affect the

argument even if the dikastai were a separate

magistracy, for what matters is that we have to do with

office-holders who hold office for a finite term (how long

is not known) and may not hold office again until a

specified period has

-53-

elapsed (IC IV 14 g-p 2: three years for a kosmos, five for

a xenios kosmos, ten for a gnomon). Suppose then that

we say the principle of unity behind all the documents

which we have been surveying is chronological. That is,

each of them, whether big 'code' (IC IV 72), little 'codes'

(K IV 41 and IC IV 75), or minor groupings (IC IV 43), is

the document issued by (let us say) the relevant

magistrates at the end of their period of office setting out

the changes in the law which they

proposed/instigated/proclaimed/approved during their

period of office.

This hypothesis would explain various things. It would

explain, for example, (a) why the documents vary so

much in length. This variation might be related to a

number of different factors, for example to the nature of

the problems which presented themselves in court, to

the political atmosphere, and to the degree to which the

board of magistrates in post were dead-beats or had a

Lord Denning's creative genius for legal systematization

and innovation. It would also explain (b) why the same

topic can recur in various documents, and why the same

document or dossier (I think here of the Great Code,

obviously) can include such a spectrum of topics, treated

at such varied length and with such a range of difference

between (at one extreme) amendments on specific points

and (at the other) a thoroughgoing recast of the entire

corpus of law on a particular subject. It further explains

for the validity of a regulation (IC IV 72 col. V 4-6: 'when

the Aithalian startos, Kyllos and his colleagues, were the

kosmoi'), and (d) why, as I have already tried to suggest,

amendments to the main body of the Great Code, IC IV

72, can themselves be part of IC IV 72. Lastly, and

fundamentally, it helps to explain why both IC IV 72

itself and the rest of the Gortynian legal material show

evidence of the two contradictory processes, of

codification and one-off amendment/replacement, in

equal measure.

However, there are two objections to this hypothesis.

Both challenge the twin assumptions, implicit within it,

that such inscribed statutes as we have at Gortyn were

genuinely meant to guide what the courts did, and were

applied in practice. The first objection, based on the texts

themselves, is that for all their ostensible detail they

were unusable in practice. Cross-references, for

____________________

Various forms of them were put by members of the

seminar and by Dr S. C. Todd. I am most grateful to all

concerned.

-54-

example,

usually in the form 'as is written' (ai

egrattai), were so unspecific that no one not already

fully cognizant of the material could find his way about.

Documents are not dated (IC IV 72 col.V 1-9 is the sole

exception), so that there was no means short of deletion

of knowing which provision has superseded which other.

The absence of any formula for amendment comparable

to the Athenian 'in other respects, in accordance with' (ta

men alla kathaper) is incompatible with the need for

integration and consistency which any mature set of

genuinely applicable rules should show. More generally,

we cannot be sure that the reason for deletion was to

ensure statutory consistency rather than to suppress old

social statements in favour of fresh ones which

corresponded more closely to current values, prejudices,

or ideals -- at which point we join the current exploration

of law as discourse about the state of society rather than

as a set of rules intended to keep the social system

working ( Humphreys 1988: 465; 1985).

These points are scarcely fatal. The final point embodies

a false disjunction, for any legal system must be both,

while no one will deny that the extant material reflects

intense social debate, especially about the details of

inheritance and about the taking of pledges as security

for debts. The other points apply not so much to the

intention of the lawmaking and recording process as to

its competence. Limited though the cross-reference

technique was, it was probably an adequate aide-

mémoire for the kosmos or dikastas concerned, and

indeed showed more sophistication that was lacking in

Athenian documentation, then or later, with

consequences in the form of muddle, overlap, and

contradiction which Nikomachos and his colleagues had

to face (see Todd, this volume). Likewise the procedure

for amendment, on my view deriving from 'case-law',

may have been clumsy and may have failed to integrate

new regulations with the main body of law. But it was

more workable with a single judge

known to be

responsible, who needed his decisions validated and

protected, than it would have been in a system

administered by mass juries. Indeed, one may go further

and observe, first, that texts such as IC IV 72 cols. V 1-9,

IX 16, XI 19-23, and XII 1-5, specifying that this or that

provision is to be

____________________

IC IV 72 cols. IV 30-1, VI 31, IX 23-4, XI 27-9, XII 1-5,

leaving aside cols. IV 45-6, 48, 50-1 and cols. VIII 29-

30, 35-6. 40 as being internal cross-references. Apart

from the Great Code, cf. also IC IV 56.

Plus assessors, if Kyllos' startos really had that

function.

-55-

valid from year X, or from the inscription of the law,

make sense only in a context of practicality, and, second,

that laws were not worth changing if they were not the

actual basis of judgement or decision.

The second objection, based on comparative evidence,

would be more subversive if sustained. One major strand

in the study of the great Mesopotamian codes has been a

growing willingness to entertain the idea that they are

not, as they purport to be, codified statute law, or a

collection of decisions on the facts of a number of cases,

or even practical guidance for judges, so much as a

literary creation whereby the king presents himself,

retrospectively, as he wishes to be seen.

Without

testing the idea in depth, for which I lack any expertise,

we may still ask if the hypothesis is worth transferring to

Gortyn. Hardly so, for two reasons. First, neither the

extremely high level of detail throughout the

documentation, nor the concentration on socially edgy

areas of law, nor the heterogeneity of topic within the

same 'document', encourages the idea that specifically

literary norms were paramount. Secondly, there is no

identifiable person or group whose glory is magnified by

these texts. Even if Kyllos and his colleagues did draft

the Great Code (IC IV 72), they are hardly prominent

therein, while otherwise, with the shadowy exception of

Thaletas ( Guarducci 1950: 18-19), the lawyers of Gortyn

are singularly anonymous.

We are left, therefore, with a hypothesis: that the legal

material from Gortyn is real and shows two

contradictory processes, that of codification or

systematization, and that of continuous amendment or

decodification via generalized case-law, in operation at

the same time. Legal historians familiar with the English

common law should find no difficulty therein: all it need

do is to warn us against using the word 'code' too easily.

____________________

Main references: Kraus ( 1960); Finkelstein ( 1961);

Bottéro ( 1982). References to other comparative

material can be found in Humphreys ( 1988: 483 n. 2).

-56-

Oaths and Dispute Settlement in Ancient Greek

Law

GERHARD THÜR

1. INTRODUCTION

As a lawyer I feel a little uncomfortable when addressing

historians. Our common interest is, generally speaking,

human behaviour. The historian is interested in its

descriptive aspect, 'as it is or was', the lawyer in a

normative one, 'as it ought to be' (cf. Foxhall, this

volume). A legal historian falls between the two stools;

myfield of study is law as part of everyday life in Greek

antiquity --'law as it was'. Naturally I am also concerned

with the ideas the ancient Greeks had about what law

ought to be. One might expect to find such ideas in the

writings of the Greek philosophers, but in fact the Greek

philosophers never considered everyday legal problems

in the ways ancient Roman jurists did and modern

jurists continue to do. Consequently one has to

reconstruct both the details and the principles of Greek

law by studying every available source: literature

(including philosophy), inscriptions, papyri -- evaluating

every piece of evidence in its special local and temporal

context. The socalled legal texts -- laws (nomoi),

contracts, judgements, and forensic speeches -- are no

more significant than epic, lyric, tragic, or

historiographic writings. References to the principles of

Greek law as an everyday phenomenon may be found in

all sorts of statements of ancient Greek contemporaries.

From the beginning of this century legal historians,

particularly Ernst Rabel and Hans Julius Wolff, have

emphasized that modern legal categories are not

adequate tools with which to understand ancient Greek

legal sources.

To reveal the disguised structures of individual human

communities is the common task of both legal history

and anthropology. Why should they not be combined?

Louis Gernet, who was above

-57-

all a superb classicist, achieved it very successfully.

Efforts are now being made by David Cohen and Michael

Gagarin, in very different ways, and also by Uwe Wesel.

Some of these adopt approaches which appear to me to

be dangerous. There is in particular a risk in turning to

anthropological analysis before all the evidence of the

Greek sources has been exhausted. It is easier to consult

an anthropological textbook for quick information than

dozens of Greek lexicons and indexes, even if these are

computerized. Similarly, comparative legal history, for

instance the ancient Near Eastern cuneiform law, is

increasingly ignored. Serious legal anthropology in the

field of ancient Greek law must, therefore, be kept within

reasonable bounds, whilst home-made and second-hand

anthropology must be kept outside them. What is

required for legal history is firsthand discussion between

the two disciplines.

I am first going to deconstruct some reconstructions of

legal procedure in Homeric times. Dispute-settlement

theories are closely linked to theories on the beginnings

of the state, the polis. Here too some ideas need to be

deconstructed. Secondly I will try to reconstruct early

Greek dispute settlement in a more convincing manner,

but whether this should lead to a reconstruction of the

origins of the polis is beyond my purpose here.

2. DECONSTRUCTION

The central sources to be discussed are Homer, Iliad 23

and 18, the law of Drakon, and the code of Gortyn,

ranging from 700 to 450 BC. Before considering these

texts, however, I will summarize the three main streams

of interpretation which have held sway during the last

hundred years. Until 1946 the common opinion was as

follows: in order to settle disputes in prehistoric times

individuals could voluntarily waive self-help and resort

to arbitration. Gradually, under the influence of public

opinion, the litigants were deprived of the use of private

force and compelled to submit their disputes to the

authorities. The leaders of the primitive community were

determined on as the arbitrators. After the consolidation

of the state, this jurisdiction became a legal institution

and passed from the early monarchs to aristocratic city

magistrates before finally falling to the popular courts.

What a wonderfully evolutionary picture! The main

authority is Homer, Iliad 18. 501: 'and each desired to

win the case on the word of an istor' (äµφω

δU=1F31θηδU+03COι)

-58-

(ιστορι U+03COεîρρ λ3σθι), where istor is

understood to mean 'arbitrator'.

In a pioneering article Wolff ( 1946) objected that it

seemed unlikely that a mere tendency towards

arbitration would have been sufficient for successfully

suppressing anarchy. If, on the other hand, such a

success had been achieved, why should the state have

troubled to put its authority behind a working system of

private arbitration? Further, Wolff drew attention to the

fact that everywhere in the Greek polis self-help had

existed for a long time even up to the historic period. In

his opinion the princes had never acted as arbitrators.

They ensured social peace by granting an accused person

a kind of temporary 'police protection' from acts of

revenge. The princes, as public authorities, controlled

self-help; after examining the legal position they would

either permit or prevent recourse to self-help. Wolff

supposed a direct development from Homeric times to

the classical polis. In his opinion the istor of Iliad 18. 501

is not an arbitrator but a person with direct knowledge of

the facts who is a means of bringing about an immediate

decision.

Wolff's theory won considerable support amongst legal

historians. The first objection was raised by a philologist,

Hildebrecht Hommel ( 1969).

For Hommel Iliad 18.

501 can only be understood as a voluntary submission to

arbitration. In the Homeric polis disputes were settled

by compromise; each litigant had to meet his opponent

half-way. They both had to choose from amongst several

settlements proposed by the elders (gerontes). The

dispute was settled when the litigants both accepted one

of the proffered settlements. In 1970 I made some,

apparently ineffective, objections to Hommel's theory (

Thuür 1970; cf. now, Thür 1989 and 1990). How can the

method of dispute settlement he assumes work if each

plaintiff compromises whether right or wrong, and more

or less automatically obtains a half of what he demands,

for simultaneously the defendant loses to the same

extent? My proposed solution, differing from both Wolff

and Hommel, was that normally disputes were settled by

decisory oaths. Further discussion, by amongst others

Talamanca ( 1979), has followed this particular path.

Recently two scholars, Gagarin ( 1986) and Stahl ( 1987),

have

____________________

Hesiod, Works and Days35-6, is taken to represent an

intermediate stage of obligatory arbitration' found

especially in Boeotian society.

Hommel ( 1928) first advanced this view; see now van

Effenterre ( 1994) and Thür ( 1994).

-59-

independently returned to Hommel's arbitration theory.

The main difference from Hommel is that neither relies

on nineteenth-century evolutionary models but rather

upon anthropology: forced by public opinion, litigants

voluntarily submitted their dispute to the elders of

Homeric society. Jointly both litigants chose one of the

proªD posed settlements to decide the dispute. Gagarin (

1986: 20) under stands this arbitration to be a 'formal,

public procedure', whilst Stahl calls it a 'pre-state

procedure' ( 1987: 167) -- the difference seems mererly a

matter of definition. Gagarin may have in some ways the

better case, but I do not want to insist on this. More

important is the manner in which both deal with the

question of the oaths.

Gagarin discovered some examples of oaths of denial. In

his list of eight main elements of procedure in what he

calls 'pre-writtenlaw society', oaths figure as number 6:

'an oath of denial may be sworn or asked for by one of

the parties, though this oath does not necessarily decide

the case' ( 1986: 43). One should note, though, that a

lawyer only speaks of an 'oath of denial' or exculpatory

oath when the defendant is automatically exonerated by

swearing it. Gagarin is correct to say that no early

literary source explicitly states that a certain oath, if

sworn, will be decisive. He gives only one example of an

oath of denial sworn by a defendant and, as he says, this

does not settle the case ( 1986: 40). But this is not at all

conclusive. In the Homeric Hymn to Hermes the new-

born god does not swear the great oath of innocence as

Gagarin implies but is only said to be ready to swear it (

4. 383). Hermes clearly does not interrupt his speech for

a swearing ceremony. So we, may ignore Gagarin's non-

decisive oath of denial.

Stahl ( 1987: 166, 168) explains the oaths of his 'pre-state

procedure' in another way: as in classical Athens, in the

earlier procedure each party had to swear a preliminary

oath. Consequently, these two opposite oaths sworn at

the commencement of an arbitration could by no means

be decisive. But Stahl is not able to provide a single piece

of evidence for such preliminary oaths in Homer. I shall

demonstrate later that the double oath is nothing other

than a relatively late institution created especially to

avoid the decisory oath taken by one litigant only. It is

very unlikely to date back to Homeric times.

To sum up, Wolff's argument that there is no

development from Homer to the self-help in the later

Greek polis is conclusive against.

-60-

the various theories based upon arbitration.

Furthermore, the proposition that in Iliad 18 the

litigants themselves jointly choose a settlement from

amongst several proposed has no parallel in legal

anthropology. So far as I can see, Tiv litigants -- quoted

by Gagarin ( 1986: 31) as his best comparative example -

- go around from one elder to another until they find a

convenient person, not a settlement. Just as

unconvincing are the 'big men' cited by Stahl ( 1987: 169

-- without a source; perhaps a quotation derived third-

hand from Wesel)

. I On the other hand Wolff's theory

that in early Greek society the authorities granted the

defendant temporary police protection has no better

support. In later times sanctuaries protected accused

persons by giving them asylum, and, as mythology

teaches, this was an old custom.

3. RECONSTRUCTION

I now proceed to adduce evidence for a better theory,

which goes further than my previous attempt. First I

shall briefly summarize. Voluntary resort to arbitration

or compromise did no doubt play an important part in

early Greek society and later on as well. If no peaceful

agreement could be achieved the prosecutor was allowed

to use private force against his opponent; but before he

was allowed to do so some authority had to decide in a

formal procedure whether self-help was legal or not in

that case. In democratic Athens the magistrates brought

the cases before a popular court. By voting the defendant

guilty the jurors opened the way for the private use of

force. In contrast, in early Greece magistrates did not

decide cases themselves. Rather they would formulate an

oath and decide which of the litigants was to submit to

taking it. This -- as I shall show -- is the meaning of

dikazein ('to decide'). Dikazein in fact means to swear to

the facts of the case by an appropriate deity, sometimes

with the addition of sanctions for falsity. If the oath was

successfully taken the party swearing won the case and

no further judgement was necessary. Technically I call

this type of judgement a Beweisurteil, for which the term

'medial judgement' has been used in analysis of the early

common law. It is so called because.

____________________

Gagarin is generalizing his model. But starting from his

own premisses, there could never be an unjust

judgement of the kind of which Hesiod (

Works and

Days

219, 250), for example, speaks. How can a

judgement be 'crooked' if either party is free to reject it.

-61-

the magistrate does not decide on guilt or innocence but

only gives a judgement about the oath-formula which, if

taken, will automatically resolve the dispute. Wolff

understood dikazein differently: the authorities 'allowed

or forbad self-help' after a formal proof. In my opinion,

self-help was not controlled by police protection or any

question of permission or prohibition by any authorities.

A prosecutor was only allowed to use private force after

he had obtained divine legitimation by an oath.

Punishment by an offended god was real threat to people

in archaic times.

What evidence can be provided for my theory that oaths

played a substantial part in early Greek dispute

settlement? Before discussing the earliest sources it

might be of some interest to ask how Greek authors of

the fourth century BC saw their own legal history. Both

Plato and Aristotle wrote about early dispute settlement.

One must keep in mind, however, that in their time

dikazein was used merely for the verdict given by a

popular court. No Athenian magistrate was competent to

dikazein a lawsuit. Terminology and principles of legal

procedure certainly had changed during the 350 years

since Homer. Did fourth-century writers know more

about it than we do? Clearly they knew a lot, but they

may have misunderstood much also.

The source generally considered the most important is

Aristotle, Constitution of the Athenians 3. 5 (but cf. also

Politics 1298a9-31):

κυριοι δ +σδδ ν+ι τàς δκς

ν+τοτελει++ς κρδειδ κι ον+χ +σπερ νûν πρ

ονκρινειν

They also had the power to give final judgement in

lawsuits and not as now merely to hold a preliminary

trial.

In the fourth century BC there were two stages leading to

a verdict by a popular court: first, the litigants had to

meet before a magistrate in a preliminary session, called

anakrisis (examination) or prodikasia (preliminary

hearing) -- Aristotle combines both words in a neologism

proanakrinein (preliminary examination); second, the

litigants pleaded before a popular court of at least 200

jurors, who have their verdict by voting simply 'yes' or

'no'. Before Drakon, Aristotle says-and modern

scholarship agrees with him -- the Athenian archons

(magistrates) had the authority to settle disputes within

their own competence: krinein (to decide). Solon was the

first to introduce the decision by a popular court, the

Heliaia. But to me

-62-

it seems suspicious that Aristotle does not use the word

dikazein which we find in the law of Drakon ( IG 1

104.

10-11); furthermore a law of Solon entitles the archons to

act as dikastai, judges' ( Demosthenes 23. 28). So we

should expect to find dikazein in Aristotle too. It seems

probable that some of the detail given by Aristotle is also

misleading.

In the third book of his Politics (1285

9-12) Aristotle is

dealing with the monarchy. In ancient times, he says,

kings also gave judgements in lawsuits; krinein ('to

decide') again.

κυριοι δ +σδδ τǼ3ς τν κτ



πóλεµον ηγεµον7ς

κι τν θνσιν σι U+0η νρτικι κι προς

τουτοιςτàς ικς κρνου του+το  0ποιουν ο0 µεν

ο+κ ε+µνυοντες ρ  εµνοες   ρκος +ν

του+ σκηπτρου ε+νU+0áτσις And they held the

supreme command in war and had control over all

sacrifices not in the hands of the priests and moreover

decided lawsuits; some gave judgement without an oath

some on oath, the oath was taken by holding up a

sceptre.

Here the philosopher goes into some detail. Judgement

is said to be given partly on oath. Such an oath taken by a

judge is known only from a single archaic Greek source,

the law code of Gortyn( IC IV 72), e.g. col. 117-24:

 3  ẳνπι óλοι ποιοντι πονιοτες ϝεκáτερος µεν

α µν κα µαι++τυς ẳποπονι κατà τον µαιτυρα

ικáεν α ε  ẳνποτερις ẳ0οπονιοντι  µε1τερι

τον 9καστàν ε+µνυντα κρινεν

And if they are in dispute about a slave each declaring

that it is his, the judge is to give judgement according to

the witness, if there be witness but the decision is to be

on oath if the evidence be for both or for neither.

The Cretan dikastas (judge) belongs to the board of

supreme magistrates, the kosmoi. In matters uncertain

or of minor importance he is allowed to decide the case

by giving a judgement on oath: omnynta krinein(I 21-4).

If there are good witnesses on one side or the case is

more important the magistrate has to give a dikazein,

judgement (I 18-21). Aristotle, above, may be referring to

an archaic system of legal procedure like that of Gortyn.

In the very next line he calls the king dikastes, judge. The

parallels in Gortyn suggest that omnyon krinein 'to give

judgement on oath' is but a subsidiary way of settling

disputes. In the usual way judgements are 'not on oath',

the dikazein which Aristotle never mentions.

Although Plato does not use the verb dikazein, in one

passage in

-63-

the Laws ( 948b) he gives an exact account of it. Until

now this evidence has been ignored. The mythical king

Rhadamanthys made short work of disputes: he imposed

an oath on the litigants and so disposed of the matter.

Because in his time people did not commit perjury his

method succeeded. In the following lines Plato

complains that in his own time both litigants had to

swear, so that in every lawsuit there must necessarily be

one perjurer. Consequently in his state Plato forbids the

double preliminary oath. Rhadamanthys must therefore

have imposed an oath on only one party. Dispute

settlement by imposing a decisive oath is well known

from the law code of Gortyn. Lines III 1-12 forbid a

divorcee to carry away anything belonging to the

husband. If there was a dispute the dikastas had to

impose on her an oath of denial (III 5-9). Artemis, whom

women had reason to fear above all, was the deity

competent to guarantee her oath. The verb used here is

dikazein: the magistrate decrees what kind of oath has to

be taken and which of the litigants or whose witnesses

have to take it and what the consequences should be. It is

not unlikely that Plato had similar ideas about the

judgements of Rhadamanthys. He might have avoided

using the verb dikazein because his fellow Athenians

were likely to understand it as referring to the verdict

given by the popular court, the dikasterion. Significantly,

the Platonic myth seems to offer better evidence of

Heroic times than the scholarly efforts of Aristotle.

The crucial texts, however, are the dispute between

Antilochos and Menelaos and the lawsuit depicted on the

famous shield of Achilles, Iliad 23. 573-85 and 18. 497-

508 respectively. In both cases we find dispute

settlement by dikazein. On the basis of my earlier

considerations one may supplement the wordless scene

pictured on the shield with the epic narrative of the

other.

ΛΛ äγε ργεν γητοες µε+δοντες ες µε+ςδν

µοτε+ροιςι δικςςατε, µηδπ+ ρωγη++

µη ποτε+ τις εΐπη+ςιν Xαιω+ν

XαUΛκοκιτωνων

575

ντοXον ευδεςςι βιηςáµενος MενεΛαος οΐXεται ΐππον

äγων τι οΐ ποΛυ Xερονες +ςαν ΐπποι αυτος



ε

κρεεω½ ẳρετ+U03B7++ τε βη+U0302+ τε

____________________

draw attention in passing to King Minos,

Rhadamnathys' colleague. In the Odyssey ( II. 569-71)

we find him 'laying down the law', themisteuein.

Neither dikazein nor oaths are mentioned. But he is

holding the sceptre like the other authorities who

dikazoun.

-64-

εä ε+γω½ αυος γιáςω κα ο τινá Άηµι äΛΛον

ε+πιπΛηζειν ∆ανω+ν ι+ΘεΓα γàρ ςτι

ντιλοχ, επι διγεδευρο δευρο διοτρεφεζ η++

περ τò πρóδθεν 2λυνεζ,

580

ι+ππων ψµενοζ, η περ τò πρóσθεν λυνεζ,

ω+0304µνυθι µή µèνεκων τò µòν δóλω+ ρµ

πεδησι.

585

Come now, ye leaders and rulers of the Argives, judge

aright betwixt us twain having regard to neither lest later

some of the brazen-coated Achaeans say: 'Over

Antilochos did Menelaos prevail by lies, and left with the

mare for though his horses were the worse he himself

was mightier in worth and power.' But I myself will

decide rightly and none of the Danaans will reproach me

for my judgement will be straight. Antilochos, come

forward, beloved of Zeus, as is customary, stand before

thy horses and chariot taking the whip wherewith you

did drive and laying thy hand upon the horses swear by

the holder and shaker of the earth that not of thine own

will did thou hinder my horses by guile.

Antilochos had overtaken Menelaos in the chariot race

by means of a foul trick. In the presence of the Achaean

assembly Menelaos claims the second prize, a mare, of

which Antilochos has taken possession. Menelaos,

sceptre in hand, addresses the other kings. Most striking

in this speech is that Menelaos first asks the leaders to

give judgement (dikazein) and then gives a judgement

(dikazein) himself in his own cause. For this reason

Wolff regards the controversy as remaining throughout

within the context of self-help. Gagarin and Stahl do not

like these two references to dikazein at all. They each

stress that the episode as a whole is an illustration of

dispute settlement by compromise. However, at the start

we have quite a normal lawsuit. The dikazein of

Menelaos is irrefutable: he formulates an oath, which

everybody would regard as the correct way to settle a

dispute about a chariot race. Poseidon is to charioteers

and their horses what Artemis is to women. Perjury

would be dangerous, Poseidon would not allow a

perjurer further success in chariot racing. So Antilochos

gave in and did not risk the god's punishment. The

judgement 'Antilochos is to swear' would have been the

result of the session, since none of the other leaders had

'blamed' Menelaos ( l. 580). Such blame could have

prompted a

-65-

new dikazein, judgement: for instance that Menelaos

was to swear rather than Antilochos. But Antilochos at

once withdrew, so Menelaos' judgement remained at the

stage of a proposal. To sum up, the two dikazeinin this

text seem to harmonize best if we assume that the other

leaders formulated oaths too, as Menelaos did. An oath

according to the dikazein sworn by one of the litigants,

would have settled the dispute. The best parallel is the

dikazein, judgement, in the law code of Gortyn ( ll. III5-

9).

In the shield scene we find dikazein in line 506 and

diken eipein (to propose judgement) in line 508. We are

not told of one word spoken by the judges, but we can

witness the scene.

λοι δ ειν γορη εσν ẳθρóοι ενθ δε νεικοζ

ωρωρει δο δ νδρεζ ενεικεον εινεκ ποινζ νδρòζ

ποκτµενου ο µεν ευχετοπáντ ποδοûνι

δηµω πιφσων  δ ẳνινετο µηδεν ελεθι

500

µφω δσινπι ιστοισιν επιU ιστορι πειρρ ελεθι

λοι δµφοτεροισιν πηπυον ẳµφιζ ẳρωγοι. κηρυκεζ δ

ρ λòνρητυον οι δε γεροντεζ

η+τ πιζεστοισι λιθοιζ ιερ+ νι κκλω,

505

σκηπτρ δε κηρκων ε νερσ χον ηεροφωνων ροιιν

πειρ ισσον, ẳµοιßηδιζ δε δικζον κειρο δ ρ εν

µεσσοισι δο χρυσοιο ρλνρ, ρ δóµεν ζ µερ

ροισι δικηνιθνρρ ειποι

But the people were gathered in the assembly place, for

there strife stirred, for two men struggled over the blood-

price of a man slain, the one entreated that he had paid

everything, proclaiming to the community, but the other

refused to take anything; and each desired to win the

case on the word of an istor. And the people cheered

both, being supporters of each side in turn. But the

heralds restrained the people. And the elders sat on

polished rocks in the sacred circle, and they held in their

hands the sceptres of the loud-voiced heralds. Then they

would dart out and give judgement (dikazon), each in

turn. And there lay in the middle two talents of gold, to

give to whoever among them should speak the

straightest judgement (dike).

Two men have brought their dispute before the assembly

of the elders sitting in a sacred circle in the agora. Most

probably the issue is whether the defendant had paid

blood money or not. After the litigants have pleaded,

some elders, holding their sceptres, stand up and give

their judgements. An award is to be made for that elder

who speaks dike, the straightest way. I will discuss three

questions

-66-

only: (I) who wins the award ( ll. 507-8)? (2) what is the

meaning of dikazein (l. 506) here? and (3) who is the

famous istor (literally 'one who knows') of line 501?

I. We are on relatively firm ground in answering the

first question. Larsen ( 1949) has shown that in

Homeric assemblies the leaders went on discussing a

problem until no further objections were made and

one proposal prevailed. Gagarin ( 1986: 31, 36)

provides some anthropological parallels. We do not

need Hommel's artificial solution that the litigants

themselves jointly designated the winner.

2. The meaning of dikazein is more speculative. In

order to maintain his theory of arbitration Gagarin

constructs some sophisticated issues the litigants

might have been quarrelling about. He cannot

imagine how on such a simple question as whether a

poine

(sum of blood money) has been paid or not

there could be any competition between the elders of

the city. Gagarin thinks nobody pays except -in the

presence of witnesses. In my opinion only the most

simple events harmonize with the idyll of peaceful life

Hephaistos modelled on the shield. Considering line

499: 'the one entreated that he had paid everything',

dispute may have arisen for instance about some of a

number of beasts, the usual fine for killing. Some of

them may have been sick or stolen property, or have

run back to their former owner, or perhaps payment

might simply have been partly postponed. No

dramatic issue at all, but amongst peasants reason

enough for a quarrel. More serious is the question

how could the elders compete in giving the best

answer if the dispute admitted of only two,

alternative, answers? Wolff's suggestion that much

depends on the reasoning given for 'each solution

cannot satisfy. For me, it seems best to follow the

meaning of dikazein discussed above: the elders

formulated different oaths, each trying to reflect most

appropriately the details of this particular case. The

question whether the fine was paid or not admits of

only two answers. But the elders were not concerned

to answer this question at all. They simply competed

for the best way to find the right answer. More

exactly, their problem was which of the litigants

should swear and to what form of oath? In the same

way Menelaus proposed an oath about a question in

the alterative: should he or Antilochos carry away the

mare? Here several oath-formulations were possible;

one leader may blame the other. The shield scene

makes clear that

-67-

oaths are proposed until one is indisputably accepted.

This is the straightest' way to settle the dispute.

3. Up to this point my interpretation has found no

room for the istor. There is a general assumption that

he is to be found amongst the elders: the istor will be

the one who wins the award. That each litigant

resorted to the istor is by no means an argument for

voluntary submission to a

rbitration. Wolff correctly

pointed out that the same words would be spoken

within a context of public control over self-

help. There

was no other way for the defendant to obtain

protection or for the plaintiff to obtain permission to

resort to private force than to go before the

authorities. If litigants of today say 'let's go to law'

nobody thinks in terms of voluntary arbitration. So

the solution depends upon the meaning of the word

istoritself. Gagarin's translation 'arbiter' relies on

Iliad

23. 450-98, a passage he has clearly

misunderstood. In the chariot race Ideomeneos and

Ajax disagree as to who is in first place at the

moment. Ideomeneos proposes laying a bet on it and

appointing Agamemnon as istor ( 23. 486-7). Gagarin

( 1986: 37 n. 37) says: 'Presumably Agamemnon

would decide the outcome of the race.' In my opinion

there is nothing to decide: in the event everybody will

be able to observe who is actually first. Agamemnon's

only task will have been to hold the stake money and

hand it over to the win

ner. Therefore he does not have

to act as arbitrator, rather he is a guarantor for the

bet's being enforced correctly. In some accord with

the meaning 'guarantor' is the scholion to line 486

(Maas 427): istora] synthekophylaka (depositary of a

contract). Indeed, on inscriptions from Boeotia of the

third century BC there is mention of istores

at the end

of private documents. But these do not, of course,

explain the istor on the shield of Achilles.

Wolff relies on etymology: istor is an expert, the one who

knows. Nevertheless his theory that the elder winning

the award decides the case 'on the ground of (his)

knowledge of the facts involved' seems to be far-fetched.

Nowhere else in Greek law do we have parallels to the

Anglo-Saxon jury Wolff presumes to find in Homer.

My solution is to disassociate the istor from the elder

winning the award. If the winning elder has to formulate

a decisive oath, diken eipein or dikazein cannot be the

end of the trial. Only when the oath which has been

formulated is taken is the dispute between the parties

settled. Consequently, the peirar, the end (l. 501), must

-68-

the dikazein and take place beyond the scene depicted on

the shield. None of the elders is to be identified with the

istor. Rather I would suggest linking the istor of line 501

with the istores known as gods who 'witness', that is to

say guarantee, archaic oaths. Examples are the famous

Athenian ephebic oath ( Lykourgos I. 77; cf. Tod 1948:

204) and the Hippocratic oath. The istor in the shield

scene is none other than the deity or deities by whom the

litigants are going to swear. Having pleaded their case (l.

499-500) each litigant has asked the elders to award him

an oath, the exact wording of which he has suggested.

Litigants' resorting to oaths commonly occurs as a theme

in epic literature. Hermes, for instance, offered an oath

of denial: 'I did not drive the cows to my house' (

Homeric Hymns 4. 379 ff.). Because he had hidden them

in a cave the oath could have been truthfully sworn. But

it is a good example of a 'crooked dike' of the type we

later find in Hesiod. On the contrary, the dikazein of

Menelaos is certainly a 'straight dike' ( Iliad 23. 580).

From the shield scene we learn that each party proposes

an oath favourable to his own position. The elders have

to decide which of them is 'straight' and may even

propose 'straighter' ones; the 'straightest' will win the

award. The Hermes story makes clear that in such a

system of litigation much can depend on a single word.

Generally people will not have wished to perjure

themselves. But their relations with the gods were very

formal. A screwed but true oath would not result in

harm. To settle disputes, the authorities of the early polis

must have kept in their minds a considerable repertory

of oath formulae. Beyond that they required great skill to

adapt them to particular situations. During the

negotiations to find the straightest oath a litigant must

often have seen his case disappear. Like Antilochos,

many others will have resorted to compromise. Dispute

settlement by imposing a decisory oath strongly

encouraged peaceable agreement.

Leaving aside Aristotle I have followed a trail leading

back from the Platonic myth of Rhadamanthys, where I

found a decision made by imposing an oath, to the law

code of Gortyn, where in the fifth century BC this

procedure was practised and labelled dikazein, and

finally to the two crucial Homeric texts. Neither

voluntary arbitration nor control of self-help by police

power was the principle of early Greek dispute

settlement, rather control by supernatural means, by the

imposition of decisive oaths. The authority of the

-69-

leaders consists in their exclusive competence to utter

the correct formulae for these oaths.

These findings are by no means surprising. Ries ( 1989)

has recently published a detailed survey of early

Babylonian medial judgements. In the cuneiform

documents he finds two types of judgement: only if the

defendant confessed his guilt or the plaintiff produced

documentary evidence would the lawcourt immediately

give its verdict. Normally a judgement imposed on one of

the parties was a decisory oath to be sworn some time

later in a sanctuary. Oriental influence on the early

Greek polis is not impossible; the well-known

Beweisurteil of the old German customary procedure, on

the other hand, suggests the possibility of independent

parallel development.

By way of conclusion I will summarize the advantages

and disadvantages of this system, which was finally

transformed either as democratic jurisdiction as in

Athens or within aristocratic models as, for example, in

Gortyn.

Hesiod's Works and Days deserves a full and

independent treatment. It is beyond dispute that the

work reflects a deep distrust of the jurisdiction

administered by the authorities, the basileis. There are

some references to 'medial judgements', but they cannot

be followed up here. The main dangers of jurisdiction by

giving an oath to one litigant were that the magistrates

might favour one of the litigants by imposing upon him

an oath he could swear without any risk (for example by

imposing upon Hermes the crooked oath that the cows of

Apollo were not in his house), and, secondly, that the

litigant might simply commit perjury. Against both these

risks the archaic Greek poleis took measures.

In Gortyn, as we have seen, the system works on the

basis of full trust being placed in the supernatural force

of the oath. The only problem was to prevent the

magistrates in charge of the jurisdiction indulging in

arbitrary acts. This is the political background to the

codification of the law in the first half of the fifth century

BC. The law code strictly regulates the dikazein of the

magistrate, as in the example (IC IV 72 Col. 117-24)

quoted above. If two persons contend about a slave the

dikastas is ordered to decide that the witness produced

by one of the parties has to take the decisive oath. If both

parties produce a witness no double oath is allowed: the

dikastas has himself to give the final decision (krinein)

on oath. This system presupposes that perjury hardly

ever occurs.

-70-

About 150 years previously the Athenians had discovered

a different solution. From very early on they distrusted

oaths sworn by litigants. In every lawsuit each party had

to take an oath formulated by the magistrate. Afterwards

in special session a jury voted whose oath was the better.

These two stages are the basis for Drakon's law of

homicide of 621 BC. First we have a dikazein by the

kings, most probably the archon basileus (magistrate)

and the leaders of the four phylai (clans/tribes), then a

diagignoskein (resolution) by the fifty-one ephetai

(court). Wolff assumed that the kings announced the

verdict given by the fifty-one ephetai; dikazein for him

was 'the final and authoritative admission of the

execution'. Recently ( Thür 1987) I have shown that

nowhere in ancient Greece did a magistrate announce a

verdict given by a jury. I am suspicious also of the

assumption that direct control prevails over self-help

here. Rather this text fits with those already discussed.

Additionally in the fifth and fourth centuries BC in

homicide suits each party had to take a solemn oath,

called diomosia (oath), which was sworn in a

preliminary procedure before the archon basileus. The

name given to this procedure, prodikasia (preliminary

hearing), reflects dikazein. In the main hearing the fifty-

one ephetai had to decide which of the two oaths was the

better. Going back to Drakon, we can assume that in his

time also the magistrates imposed the diomosia on both

litigants -- dikazein -- and afterwards the ephetai gave

the final decision. There are a few hints that, homicide

cases apart, dikazein, imposing double oaths by an

archon (magistrate), and diagignoskein, the final

decision by a jury, were the most common way of settling

legal disputes in archaic Athens ( Demosthenes 23. 28;

Lex. Seq. ( Bekker 1965) 242. 119-22, both purporting to

date from the time of Solon).

The notion of giving the final decision to a jury of fifty-

one citizens, after imposing a double preliminary oath,

almost perfectly remedied the abuses complained of by

Hesiod. As each party had to swear, neither of the oaths

can have been decisive, so no magistrate could favour a

single party and perjury does not automatically result in

a wrongful judgement. On the other hand an upstanding

person would have avoided lawsuits as far as possible so

as not to incur the risk of perjury. Again, legal procedure

was the last resort. We have seen that the double oaths

date from the time before Drakon, so this procedure was

not originally connected with democracy. But it led

directly to the popular courts of democratic Athens.

-71-

Double oaths on the one hand and codification of the law

on the other were the first steps taken to break down the

divine power of the leaders in the early poleis. I do not

see an evolution from anarchy to the early Greek state. A

more realistic picture is a transition from a sacral to a

more secular government. It is amazing to observe how

the institutions of legal procedure remained in principle

unchanged during this period.

____________________

I am grateful to the participants of the seminar I

addressed in London for discussion and comments,

and especially to the editors of this volume, my

colleagues Lin Foxhall and Andrew Lewis, for

assistance in the preparation of the final version of this

paper.

-72-

Even Dogs have Erinyes:

Sanctions in Athenian

Practice and Thinking

MARGARETHA DEBRUNNER HALL

1. INTRODUCTION

In the conclusion of their seminal book on the history of

punishment from the Middle Ages to the earlier

twentieth century, Rusche and Kirchheimer emphasize:

'The penal system of any given society is not an isolated

phenomenon subject to its Own special laws. It is an

integral part of the whole social system and shares its

aspirations and its defects' ( 1939: 207, cf. 57). A penal

system, that is a network of sanctions intended to cover

all possible offences which have themselves been clearly

defined, did not exist in ancient Greece.

Nevertheless,

the study of the preoccupations and shortcomings of

existing penal regulations is an interesting angle from

which to understand the Greek mind. In particular,

threats of sanctions can shed light on the values

considered worth protecting.

The scanty nature of our evidence only really allows the

development of a meaningful general model for Athens,

and even there only for the epoch in which court

speeches provide us with information additional to the

inscriptions on which we are almost completely reliant

elsewhere in the Greek world. This paper sets out to ask

what late fifth- and fourth-century Athenian practices

were when prescribing and enacting sanctions.

Whenever possible the results will be compared with

material found elsewhere. Two separate questions will be

discussed: I. Did the fact that Athens was a democracy

influence the nature and severity of the punishments it

imposes? 2. Did the Athenian reputation for mildness

(praotes)

____________________

Macarius 3. 54.

For example, what is meant by terms such as hybris or

asebeia? In a decree like that of Kannonous,

mentioned by Xenophon ( Hellenika I. 7. 20), it is not

even clear who should be punished.

-73-

which is often remarked upon ( Lysias6. 34; Aristotle,

Constitution of the Athenians22. 4; Demosthenes19.

104; 58. 55) affect their administration of justice?

I shall concentrate mainly on the forms of punishment

Athens prescribed and applied, and leave aside some

related but relevant questions concerning penal law: the

evidence will not permit us to maintain a clear

distinction between laws which merely prescribe

sanctions and the reality of force.

A modern mind

might too easily take it for granted that a sanction laid

down in law would be enforced and that punishment

would only be meted out if there was a law prescribing it.

In Athens, however, the principle 'no penalty without a

law' in its strict form was not maintained, and it was

conceivably possible to punish someone for a 'wrong'

which no law had defined as such. This peculiarity has to

be seen against the background that the Athenians in

general were much less concerned with defining offences

than they were with procedure, a fact long recognized

but deserving emphasis ( Todd and Millett 1990: 5,

quoting Sir Henry Maine in 1883). An attempt therefore

to distinguish mere prescription from force in Athens

would not only considerably reduce the basis for any

model, it would also distort the picture.

In principle there were three ways a penalty could be

determined in an individual case. For some offences the

law permitted immediate seizure and summary

execution, either prescribing these sanctions through

magistrates or by endorsing self-help. In classical Athens

I believe this hardly ever happened. Once a case was

brought to a regular court there existed two types of

verdict. In the first type, the 'unassessed case' (agon or

dike atimetos), the law contained a mandatory penalty

for those convicted. In the second type, the 'assessed

case' (timetos), after a condemnation the court had to

hold a second vote to choose between the proposals for a

suitable punishment suggested by both parties ( Lipsius

1905-15: 248-52

____________________

The frequency with which Demosthenes has to argue

that sometimes this mildness does harm(for example,

it works for the wrongdoers in 21. 184; it is all right in

private laws but not in public ones, 24. 69, 192 f.; it

encourages other criminals, 24. 218, 51. 12) indicates

that in general the Athenians prided themselves on it

as part of their democratic life-style(cf.

Demosthenes24. 69).

To take a modern example, arson in Her Majesty's

dockyard was punishable by death in British law until

quite recently. But since in the last few decades nobody

had been found guilty of this particular offence most

people would have said that Britain had abolished the

death penalty.

-74-

cf. Plato, Apology36-38b). I do not attempt a systematic

discussion of the relationship between these three ways

of fixing a penalty.

A third area to which I can only make passing reference

is the relationship between the nature and gravity of the

offence and the punishment meted out for it. A study of

this problem would have to give special consideration to

this society's reaction to homicide and its complex

development. But Cohen ( 1983a) is right in saying that

the relatively rare incidence of culpable homicide has up

to now attracted a disproportionate amount of interest,

to the detriment of 'other areas which would be more

useful in exploring the Athenian conception of crime,

criminality and public offenders' ( Cohen 1983a: I n. 3).

In accordance with the theoretical guidelines suggested

by Cohen, I will analyse forms of punishment in terms of

how they fit the Athenian image of their own democratic

behaviour and the mildness of which they were so proud.

2. THE RANGE OF ATHENIAN PENALTIES

2.1. Fines

Probably the most common form of punishment in

classical Athens was the imposition of fines, varying

proportions of which went to the injured party, the

public purse, or informers, depending on the offence (

MacDowell 1978: 257 ff.; cf. Gernet 1936 1981b:247).

Many fines were the consequence of not fulfilling a

contractual obligation such as finishing a building by a

certain date, or the nonpayment of debts (e.g.

Demosthenes 56. 27, 38; 53. 10; see also Lipsius 1905-15:

688 ff., and outside Athens, 689 n. 42). Such cases often

must have been resolved out of court, either by: (I)

seizure of securities by the creditor ( Isaios 5. 22-4,

MacDowell 1978: 153), or (2) with the help of minor

magistrates such as the astynomoi ( Harrison 1971: 25),

or (3) one of the official or unofficial arbitrators in

Athens ( Aristotle Constitution of the Athenians 53. 4-6;

see also Demosthenes 21. 92 33. 31-3). whose activities

are only rarely mentioned in the sources though they

might have been quite extensive.

A whole network of regulated payments to the courts

protected them from being unnecessarily burdened with

private financial quarrels: for example some cases were

only dealt with after both sides had paid a deposit fixed

according to the value of the disputed sum. The loser

would then have to pay the deposit for both

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( Demosthenes 47. 64; Harpocration, s.v. prytaneia;

Harrison 1971: 179-83; cf. Böckh 1886: 415-39; Lipsius

1905-15: 824-8). This amounted to a fine for misusing

the courts. Likewise in most public cases, all of which

depended on someone volunteering to prosecute (the

boulomenos), the accuser could expect as a reward part

of the fine extracted from the person convicted if his suit

were successful, but he also risked a fine of 1,000

drachmai and atimia (disenfranchisement, see below,

Sect. 2.3) should he convince less than one-fifth of the

jurors that the accused was indeed guilty.

The sources give us a little more information about the

cases decided by courts, and occasionally also tell us

which offences were fined and how heavily (for examples

see Bückh 1886:439-54). The spectrum is very wide and

too scanty to allow a systematic and statistically

meaningful study of patterns. The following examples

can nevertheless show the kind of information provided

by laws prescribing fines.

In an action for abusive language (dike kakegorias) the

plaintiff could make his adversary pay 500 drachmae, of

which 200 were claimed by the city ( Lex. Cantabr., s.v.

kakegorias dike, see Lipsius 1905-15: 646-54) In light of

the mutual mud-slinging normally found in court

speeches it is perhaps surprising how few such cases are

attested. Were they often settled by arbitrators, as in

Demosthenes 21. 32? Was the law allowing such an

action just a feeble attempt to limit excesses?

The unauthorized removal of sacred olive trees from a

sanctuary led to a fine of 200 drachmae, half for the city

and half for the informer (Demosthenes 43. 71). Like

many other laws, this one provides what seems to be a

generous incentive for volunteers who bring offences

against the state's interest to public notice: half the fine.

Intentional material harm (blabe) was punished by

imposing a fine of double the value of the actual damage,

as opposed to nonintentional damage where restitution

only was granted ( Lipsius 1905-15: 652-63). This

reflects, as Demosthenes said ( 21. 43), the principle that

the intention of the offender matters for the question of

how severe a punishment he deserves. The significance

of intentionality for guilt in homicide cases has long been

recognized ( R. Loening 1903; Maschke 1926). It need

only be noted here that it also had implications for

relatively minor matters such as material damage.

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The violation of a free woman, according to Plutarch (

Life of Solon 23. 1), was punished by a fine of only 100

drachmai, of which half was paid into the public

treasury.

Lysias. ( I. 32) says the punishment was only

'double the damage' for the rapist (as in the case of

intentional material damage), whilst the seducer

(moikhos) had to face the death penalty, since the

lawgiver believed that the seducer had corrupted the soul

of the woman. Although this passage is problematic and

its interpretation is controversial, if the Athenians

indeed punished rape with a fine and considered it a

form of 'damage', it indicates the weak position of

women within Athenian law.

A demarch who neglected to bury the body of a foreigner

found in his deme was liable to a fine of 1,000 drachmae.

Compared with the examples mentioned so far this is a

large sum. The same fine, though, was prescribed for a

choregos who smuggled a foreign dancer into his chorus

at the theatre of Dionysos ( Plutarch, Phokion 3o), and

for an archon in charge of weights and measures who

neglected his duties (in a law from about 100 BC, IG II

1013). Each member of the boule who failed to exact

money for the lease of the land of the temple of Kodros,

Neleus, and Basile was to have been fined 1,000

drachmai. The archon who failed to do his duty in the

same context faced a fine of 10,000 drachmai (

Sokolowski 1969: no. 14 = IG 13 81, from 418/7 BC). This

very high sum makes one doubt that this fine was ever

imposed: its inclusion in the law might merely mean that

the legislator wanted to convey that this was a serious

issue. One might even go further and say that the threat

of such a large fine is in effect an expression of

powerlessness, of hope that the law would act as a

deterrent rather than an expectation that sanctions could

be imposed if flouted.

Or does this evidence suggest that in general abuse and

neglect of official duties were punished more severely or

at least considered more serious than offences by private

individuals in Athens? If so this would tally well with a

central feature of democracy, namely

____________________

An attempt to co

mpare this sum with those for the

same offence in the famous laws of Gortyn IC IV 72

Col. II 2 ff. is impossible. How are we to compare 100

staters in Gortyn with 100 drachmai in Athens (if we

can believe Plutarch's figure at all)? It is noteworthy

that in Gortyn the law does not distinguish the rape of

a man from that of a woman; the penalty is the same.

On the problems of interpretation of the Lysias passage

and the distinctions between rape and adultery see

Cohen ( 1991, 1983b;) E. Harris ( 1990); Cantarella (

1991); Foxhall ( 1991).

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the rigorous accountability of all officials to the demos,

the people ( de Ste Croix 1981: 285; Aristotle, Politics

1282b26; Herodotos 3. 80). In the absence of public

prosecutors elsewhere in Athens it is remarkable that

only here, for the control of officials, do we find regular

procedures which in practice functioned as a form of

institutionalized prosecution. Once each prytany, an

apocheirotonia (a vote against any office-holder,

amounting to a vote of no confidence) could depose any

of the 700 or so officials immediately. A deposed official

could then be accused under a procedure such as that

ofeisangelia(perhaps best viewed as a kind of

impeachment), and was liable to be punished by

anything from a fine to exile and death. At the end of the

year each of the officials had to undergo an audit of his

conduct, theeuthynai. Should any irregularities come to

light the procedure would have automatically led to a

trial against him. These regulations were more than a

preventive means to guarantee proper conduct in office.

Generals especially were often tried and condemned to

heavy fines or worse (for example, Timotheos, Isocrates

15. 129). Demosthenes ( 4. 47), who claimed that in

Athens for a general the risk of being sentenced to death

was greater than the risk of being killed in battle, was not

far from the mark ( Hansen 1975: 59-64; J. Roberts

1982).

The most extreme form of fine, the confiscation of an

individual's entire fortune, is often just an addition to the

more severe punishments of death or atimia, but can

occasionally occur on its own ( Harrison 1971: 178 f.;

Lipsius 1905-15: 595 n. 18).

In practice there must have

been a big difference between imposing a mere fine and

confiscation of everything. After a fine one's reputation

was somewhat damaged but otherwise one could

continue to live as a citizen among fellow citizens. But

taking everything from a person was, in actuality,

excluding him from his life as he lived it up to then.

2.2 Imprisonment, detention, and corporal

punishment

The other common form of punishment today,

imprisonment, was very rare in Athens and some

scholars have doubted whether it was ever a punishment

as opposed to mere detention until a case was tried or a

debt paid ( Lipsius 1905-15: 932; Harrison 1971:

____________________

It is right, though, to doubt the interpretation of

Demosthenes 20. 40 as implying full loss of fortune for

refusal to take on a liturgy.

-78-

177; MacDowell 1978: 257; Ruschenbusch 1968: 13, 27-

47).

An interpretation of this fact without a careful

study of the 'prehistory of punishment' (to use

Cantarella's 1984 title), especially the emergence of some

kind of police to guard prisoners, must remain

incomplete. However, in comparison with penal

institutions which have used their prisoners as

productive labour, as the Romans sometimes did,

might be noted that the idea of using convicts as labour

seems not to have occurred to the Athenians. (This does

not need an explanation. What does need an

explanation, as Foucault 1977 and others have shown, is

why this practice has occurred in modern times).

Two passages seem to attest the existence of some sort of

stock as an additional punishment for some thieves, but

otherwise punishments which primarily dishonoured the

punished, such as the pillory, are not documented for

ancient Athens (cf. Latte 1968a: 310). Equally

noteworthy is the absence of corporal punishment and

torture for citizens. Only the whipping of slaves, for

offences for which free men paid fines, is known. For

example, IG II

1362 (= Sokolowski 1969: no. 37), a late-

fourth-century law protecting the trees around the

sanctuary of Apollo Erithaseus, provided a fifty drachma

fine for free trespassers and fifty strokes with the lash for

slaves. Unfortunately the evidence does not allow us to

see whether the Athenians in this regard were different

from other Greek cities.

2.3 Atimia ('Disenfranchisement')

The term atimia covered a further wide spectrum of

Athenian forms of punishment ( Hansen 1976: 55-90). It

is the 'total or partial loss of rights' and by definition 'as a

penalty only pertinent to citizens' ( ibid. 56 ). Atimia

could either be automatically imposed if a law provided

immediate imposition (as for example disobeying the

call-up for military service, Demosthenes 24. 103-5), or

it could be inflicted by sentence of a court. Sometimes

atimia was temporary: state debtors immediately

regained full citizen status upon payment of their debt,

or, on the other hand, their debt along with the atimia

____________________

For the wider Greek context see Latte ( 1968a: 295).

For the Roman use of convict labour, see, Digest 48.

19. 28. 6 (Hadrianic). On the context see Burdon 1988.

The closest to a long-term sentence as working

prisoners occurred in the quarries of Syracuse ( Latte

1968a: 295), though the source ( Aelian, VH 12. 44)

does not explicitly say that these men and women

worked.

-79-

could be inherited by their sons. Permanent atimia,

sometimes even extending to the whole family, could be

imposed on traitors or people who had proposed the

abolition of certain laws ( Hansen 1976: 71). A

connection between all offences punished with atimia is

impossible, but Hansen ( ibid. 72 ) shows that they seem

to be mainly 'for not complying with an injunction rather

than for defying a prohibition'. These delicts were in the

largest sense neglect of civil duties, though not offences

against property or acts of violence ( ibid.72-4 lists

offences punished by atimia, with the supporting

evidence ). With the threat and imposition of atimia the

Athenians could in theory make sure that the citizens did

indeed perform their duties. The efficiency of these

provisions depended though on the enforceability of the

punishment, a problem to which I shall return in Section

2.4 The death penalty

The gravest penalty the Athenians could impose was of

course death. Information about actual executions is

scarce and difficult to interpret ( Latte 1968: 393-415).

Many studies taking a historicalanthropological

perspective have tried to account for different means of

communal killing attested in the Greek world ( Gernet

1981b; Loraux 1984; Gras 1984; Cantarella 1987, 1988;

Berneker 1971; Whitehorne 1989). One aspect of the

thorny question when, how, and for which offences the

community imposed and enforced the death penalty is

discussed with exemplary clarity by Thür ( 1988). For my

question, whether the Athenians were particularly mild,

humane, and democratic in their penal laws, I can leave

aside these problems and ask how did Athenians in the

later fifth and fourth centuries BC normally kill

offenders? Everybody knows that Sokrates was given

hemlock. Letting him thus commit suicide was an

exceptional privilegel

in what may have been a

____________________

Allusions which show that the poison and its effect

were well known ( Aristophanes, Frogs124, 1051, CL

Plato, Lysias 219e) are no proof that it was a penalty

administered by the state. The only attested executions

by hemlock are those of Sokrates and Theramenes (

Xenophon, Hellenika 2. 3. 56). Both are cases of

prominent men in exceptional political circumstances.

Andokides 3. 10 is probably also an allusion to

Theramenes, and perhaps to a few other victims of the

Thirty. There is no evidence to support the view of

Bonner and Smith (1938: 285) that hemlock was

introduced by the Thirty as the normal form of death

penalty. The 'expert' who brought Sokrates: the cup

(Plato, Phaedo 117a) remains a problem. In Rome the

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very exceptional situation in any case: even in homicide

trials

the accused had the option to go into voluntary

exile unharmed after the first of the two speeches

allowed to the defence (Demosthenes 21. 43; 23. 45; 23.

69 f., but excepting patricides: Antiphon 5. 13; Pollux 8.

117, Lipsius 1905-15: 811). It seems a plausible

assumption, therefore, that anyone awaiting a trial and

expecting a death penalty who had the means to

establish an existence outside Athens will have preferred

exile. In other words, the actual execution of even only

moderately wealthy citizens condemned to death by a

court must have been very rare. Is this an indication of

particular mildness on the part of the Athenians or of the

weakness of Athens? I think neither, but before I can

defend my view a few words on summary execution are

necessary.

The laws on kakourgoi ('evil-doers') covered in

particular thieves and burglars (Kränzlein 1963: 138-43;

Hansen 1976; Cohen 1983a: 52-61). These when caught

red-handed could be brought before the Eleven and were

executed right away. They were given a court hearing

only if they denied committing the crime of which they

were accused. If the court then found them guilty after

all they were killed without the option of going into exile.

How often such executions really took place can only be

guessed. Cohen ( 1983a: 8) thinks that probably the

majority of thieves were dealt with by a summary

procedure before the Eleven. Even allowing for the fact

that such offences as theft and burglary were probably

relatively petty felonies of which only the minority of

cases was ever brought to justice in court (rather than

being settled out of court in other ways), it seems likely

that such executions were the most frequently

administered form of death penalty in ancient Athens.

Who were the convicted? The large majority of them

must have come from the lower social classes (Hansen

1976: 121) or were even foreigners, non-citizens, or

slaves. Hence they had fewer means to defend their lives.

Even if they got a court hearing as opposed to a mere hue

and cry procedure, they could not afford to employ a

Lysias or an Antiphon (Cohen 1983: 7). In light of this

the suspicions of the rich, that the popular courts were

biased against them,

____________________

choice between suicide or exile seems clearly to have

been a privilege for people from the upper classes

(Kunkel 1962: 67-78). For the interpretation of

hemlock as 'permitted but controlled suicide' see

Gernet( 1981a: 255. Further discussions of the problem

can be found in Bonner 1973.

Except for patricides (Pollux 8.117), which must have

been unusual in Athens; I know of no attested

examples.

-81-

appear in a different light. The wealthy at least had the

opportunity of ready access to the courts. Athenians

exercised to some extent a class justice.

The image of Athens' mildness receives an even more

severe blow when we ask how these petty offenders died.

The method employed was not straightforward hanging

or beheading but a form of crucifixion, the

apotympanismos.

After being fixed naked onto poles

with iron clamps around their necks, wrists, and ankles

(like Aeschylus' Prometheus in Prometheus Bound on

his rock, see Cantarella 1984: 52-9), the victims were left

in the open air (where exactly we do not know) to die

from thirst and exhaustion. This could take several days,

since unlike crucified men who had pierced hands and

feet, these men attached to poles did not lose blood (

Gernet [ 1924 1981: 254). How quickly death came about

also depended on whether the poles were upright (see

Ducrey 1971). I do not enter the discussion of when and

how the Athenians began this practice,

but wish to

emphasize that this slow and cruel method of execution

was the normal way of punishing kakourgoi at the

period with which I am concerned.

Why then apotympanismos? Was it for religious

reasons, to avoid the shedding of blood and the ensuing

pollution? Then hanging and strangulation might have

done.

Was the idea that by exposing the body to nature

(heat, thirst, hunger, wild animals) the community was

merely ensuring that death would ensue rather than

actively bringing it about (Thür 1988: 148)? But then this

could have been done this less publicly, as Kreon locked

Antigone up in her tomb.

____________________

For the wider context of crucifixion see Hengel (1977:

70 ff.), and generally on apotympanismos.

Gernet : 1981a: 52-76) discussed at length the

implications of Kermapoullos's 1923 archaeological

discovery of a mass grave at Phaleron of the 7th

century BC containing the skeletons of 17 people who

had died by apotympanismos, with the clamps still on

their bodies. Thür (1988: 148 f.) is certainly right in

doubting an interpretation of this find as the result of a

death penalty for murder, and he refers to further

literature on the problem (ibid. n. 24).

Known cases of apotympanismos

with their number in

rackets in Hansen's catalogue (1976: 122-43): Lysias

13. 67 f. (6); 13. 55-7 (II). Execution attested, method

not specified but apotympanismos possible: Lysias 13.

1-4, 39-42, 82-97 (12). Apotympanismos mentioned:

Demosthenes 8. 61; 19. 137; Aristotle, Rhetoric 2.

1383a5.

Though Loraux (1984) argues that strangulation,

whether imposed or as suicide, was seen as a

particularly female way to die and was considered

particularly shameful.

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One cannot escape the impression that the slow, painful,

and public nature of death was deliberate and was also

intended to humiliate (see also Gernet's interpretation,

1981a: 264; 1981b: 243, of the pillory as a milder form of

apotympanismos). The way it was used as a punishment

appears to be a very strong statement about how

importantly private property was valued, and by

implication the significance of the integrity of the oikos

(household) for the Athenians. Another piece of evidence

shows clearly that a high priority was given to protecting

private property: the first thing the new eponymous

archon did in Athens was to announce that whatever

anybody owned before he, the speaker, took office, the

owner would keep until the end of his year as archon (

Aristotle, Constitution of the Athenians 56.2, see also

Jones 1956: 198, 207).

The death penalty could be made particularly severe by

denying burial in Attika afterwards, though this was, I

believe, a very rare occurrence and possibly limited to

the most serious political crimes. (I follow Whitehorne

1989 in disputing that to throw somebody into the

barathron (pit) was to deny him burial.) At least two of

the leading members of the coup of 411 BC,

Archeptolemos and Antiphon, were executed by the

Eleven. They and their families were declared atimoi and

the family fortune was confiscated by the state. In

addition to this they were denied burial in Athenian

territory ([Plutarch], Lives of the Ten Orators 834a and

b). Another oligarch, Phrynichos, was tried

posthumously and his bones dug up and removed from

Attica ( Lykourgos, Against Leokrates II3). His

murderers received public honours ( Meiggs and Lewis

1988: no. 85).

2.5 Athenian punishment: a summary

With my survey of the main Athenian forms of

punishment complete, I can now give preliminary

answers to my original questions, though new questions

are raised. (I) If indeed officials were punished more

severely than others, this should be linked with the

democratic principle of official accountability, and the

penal regulations do thus reflect Athenian political

principles. But to defend such a view one would have to

show that in this regard Athens differed from other

Greek cities. (2) The virtual absence in Athens of

corporal punishment, and the use of penalties whose

main aim was to disgrace without severe injury, seems to

be a sure sign of a fairly humane society. But again, was

Athens here exceptional? (3) Was

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atimia, the partial exclusion or expulsion of those who

failed to conform with the legal expectations of civic life,

a sign of Athens' mildness? Did it exist elsewhere?

Certainly apotympanismos, the harsh form of death

penalty for kakourgoi, and possibly also for atimoi,

seems offensive and barbaric to modern eyes. It is hard

to reconcile with our idea of a society priding itself on its

mildness.

3. PUNISHMENT IN OTHER GREEK CITIES IN

COMPARISON WITH ATHENS

Sokolowski's three volumes of 'lois sacrées' (1955, 1963,

1969) provide a useful starting-point for approaching the

question of whether particularly heavy fines or other

penalties for officials were a specifically 'democratic'

feature of Athenian law. The editor does not explicitly

define the criteria which make a text a loi sacrée. His

collected inscriptions are all loosely linked with

regulating cult practices. They are not concerned with

metaphysics or beliefs. They provide a handy selection of

geographically and chronologically ( sixth century BCto

second century AD) widely spread examples.

Among the sanctions prescribed the large majority are

fines or related forms of material loss, such as losing an

animal to the temple which has been allowed to graze

without permission on temple land ( Sokolowski 1969:

no. 79), or having to dedicate to the goddess the

excessively luxurious dress worn for the cult festival (

1969: no. 68; 1963: no. 32). A substantial number of

these fines were prescribed for officials who neglected

their duty, especially that of maintaining the laws and

collecting fines from trespassers ( 1955: nos. 33., 52, 53.,

70; 1963: nos. 24, 32, 44, 121; 1969: nos. 66, 83, 91, 93,

115., 122, 144, 173; and from Athens, 1969: nos. 3. 53, 14;

1963: no. 12). Punishments for not taking steps against

culprits can be the same or even higher than those for

the primary.offender.

Some of these laws even regulate

which body was to supervise and punish the magistrate

who was in charge of initiating procedures and had to

impose sanctions. For example, a fourth-century law

from Euboea protecting a sacred grove threat-

____________________

Fine the same for primary offender and official

responsible for enforcing the law: Sokolowski ( 1969):

nos. 66, 115, 144. Fine doubled for the enforcing

official: Meiggs and Lewis ( 1988): no. 2; Buck ( 1955):

no. 61; Sokolowski( 1969): no. 91. Relationship

between fine for offender and fine for official unclear:

Buck ( 1955): nos. 16, 61; Sokolowski( 1963): nos. 3, 12,

24.

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ened trespassers with a fine of 50 drachmai, while the

demarch who did not make sure this fine was paid or an

oath of innocence sworn was punished with a fine of 500

drachmai, and the hieropoioi who failed to exact

payment of fines were liable to double the sums (

Sokolowski 1969: no. 91; compare also Buck 1955: no. 61,

from Elis before 580 BC). It therefore becomes evident

that strict laws and punishments for officials were not

limited to Athens, and democra tic accountability does

not sufficiently explain the phenomenon.

A convincing interpretation would have to set these laws

in the context of what was probably the central problem

of penal law in Greek city-states, namely enforcement.

After the first hurdle in bringing a culprit to justice,

which was to ensure that someone brought the case to

the notice of the relevant official, the community had to

make sure that the official did indeed properly initiate

procedures. This was not as straightforward a matter as

it might seem. If the accused person was an influential

man or a personal friend of the official or just offered a

bribe, the temptation simply not to get the legal

procedures started might sometimes have been quite

strong, hence the necessity to threaten heavy fines for

yielding to this temptation. The severity of these fines

expressed how important the community thought it was

that their officials behaved justly. There must have been

a real worry that they might abuse their position (

Humphreys 1983), not so much in doing wrong as in not

doing their duty and thereby blocking the course of

justice, causing social tensions, and endangering the

possessions and lives of the citizens. The fact that laws

containing threats against officials occur at all, and

continue to crop up in many places right through the

Classical and Hellenistic periods (for example Buck 1195:

no. 120.29 lines ff., Dreros third to second century BC)

reveals that there was a perceived need for these laws

based on a strong awareness of how much a community

depends on keepers of order fulfilling their duties.

Corporal punishment for free men seems to have been

absent from the Greek world ( Latte 1968a: 295). Athens

was not a laudable exception here. Whipping slaves

instead of fining them is also attested elsewhere besides

Athens ( Sokolowski 1969: nos. 37, 53, 84, 125, 149;

Klaffenbach 1954: col. IV 184-96). Apart from being an

expression of inferior social status this distinction

probably had a practical reason: it was the only way to

punish slaves.

____________________

The punishing of slaves could also be seen as a way of

educating them, Aristotle, Rhetork 2, 1380

17. Cf.

Debrunner ( 1988: 680 f).

-85-

Their death would have been a material loss for the

owner, atimia would have been pointless, and only a

small minority would have had any money to pay a fine.

For atimia in the sense of exile, parallels can be found

from outside Athens ( Latte 1968a: 297). In light of the

limited evidence it is more difficult to find out whether

the concept of atimia could have so many facets

elsewhere as it had in Athens. It is also hard to know

how frequently it was administered elsewhere. In

Amphipolis in 357 BC we find 'eternal exile' (aeiphygia)

( Buck 1955: no.12 = Tod 1948: no. 150). Does this imply

that there was temporary exile as well in the local laws?

A Lokrian law of the early fifth century imposed atimia

for non-payment of taxes ( Buck 1955: no. 57, lines 14

ff.), and the same text threatened magistrates who did

not do their duty in bringing criminals to justice with

atimia and confiscation of property. Thus even a

superficial glance at texts from elsewhere reveals similar

features to those found in Athens. An Athenian might

have argued that atimia was the most Athenian form of

punishment. It is hard enough to be exiled from

anywhere, but losing the rights and privileges of

Athenian citizenship is particularly disadvantageous. Not

only does an Athenian citizen have more rights to

exercise in participating in public life, but also Athens'

sphere of influence is very wide and the options for a life

away from Athens are therefore especially limited.

Citizen rights are particularly good in a democracy and

the threat of losing them is an effective way of making

people actively maintain the laws. Whether these sorts of

claims would have been justified is hard to know,

because comparable evidence for civic pride in other

cities is lacking.

Finally let us turn to the drastic death penalty of

apotympanismos. It is difficult to find texts anywhere in

Greece which specify the way convicted men and women

were actually killed.

As Loraux ( 1984: 195) shows, this

might be explained with a general 'Greek tendency to

euphemize death in all its forms' (see also Hengel 1977:

69-83). It seems, however, that apotympanismos is once

____________________

A search for non

-Athenian laws on stone prescribing

the death penalty in Tod ( 1948); Meiggs and Lewis (

1988); Sokolowski ( 1955, 1963, 1969), and Buck (

1955) yielded one single instance: a late fifth-early-

fourth-

century law from Mytilene ( Buck 1955: no. 25 =

Tod 1948: no. 112), the famous coinage agreement with

Phocaea in which it is prescribed that an official who

was found to have intentionally debased the metal

value of the coins should be executed. On the death

penalty in Greece in general see Latte ( 1968b).

-86-

attested outside Athens, in this case for a slave who

killed his master and burnt the house ( Latte 1968b: 400;

Robert and Robert 1983: 261-3). The date, second to first

century Bc, suggests Roman influence ( Hengel 1977:

76). Even without comparative evidence which might

have shown other Greek cities to have even nastier forms

of execution, and even if it could be proved that the

death penalty in Athens was applied much less often

than elsewhere, Athens was not as mild and humane as

the Athenians generally liked to perceive their city to be.

This fact has obviously worried Bonner and Smith (

1938), whose seminal book conveys a general picture of a

humane Athens. In an attempt to salvage this image they

wrote:

This harsh and inhumane law was part of an ancient

legislation which, for general traditional reasons in later

times, the Athenians preserved with reverence and

firmness as a shield of their democratic organization. It

seems preferable, however, to regard death as brought

about by strangulation, rather than by bloodless

crucifixion. ( Bonner and Smith 1938: 281, emphasis

mine)

Bonner and Smith then quote three texts to support this

view. The first, Aristophanes' Thesmophoriazousai 1053

f., describes how Mnesilochos is tied onto a board by a

Scythian archer and how he laments. This might indeed

be a parody of an apotympanismos ( Gernet 1981a:260

agrees, Latte 1968b: 401 f. and Colin Austin (pets.

comm.) are doubtful). Mnesilochos complains in

particular of 'throat-cutting pain' (λµοτµη çχη

laimotmet' ache), and says that he is on the way to

Hades on 'fiery sticks' (ολ U+03COδρεí pyreia).

The adjective aiolos is taken by Bonner and Smith to

mean "quick', and hence they take the passage to express

the speed of death by apotympanismos. This is possible,

but aiolos could equally well mean 'slippery', and in any

case the text of the passage seems to be corrupt. This

alone would not be a sound basis for a whole theory of

Athenian penal practice.

The second passage ( Aristotle Rhetoric 2.1385a10 ff.) is

no more helpful in supporting the view that

apotympanismos involved humanely quick

strangulation. The episode takes place in Syracuse,

where the poet Antiphon is about to be executed by the

tyrant of the city Dionysios. One of his fellow convicts

hides his face, and Antiphon ask him, 'why do you hide

what tomorrow everybody will see?' This does not prove

that the man will be dead, only that he will not be able

any longer to hide his face.

-87-

The third passage is a comment of Plutarch's (Life of

Perikles 28. 2 f.) on Perikles' behaviour in Samos in 439

BC. Samian officers were fastened onto planks and

exposed to the public for ten days, then their skulls were

crushed. Plutarch doubted this report by Douris of

Samos: it was, he said, invented to discredit the

Athenians. Bonner and Smith ( 1938) argued that had

apotympanismos without strangulation been the normal

death penalty, this treatment of the Samians would not

have been noteworthy. But they fail to consider the rest

of the passage in Plutarch: Perikles forbade the Samians

to bury the men who had thus died. It is this which

makes the execution exceptionally cruel, not the long

exposure ( Gernet 1981a: 267, who argued that some

kind of burial after apotympanismos was normal). In

short, the desperate attempt of Bonner and Smith (

1938), which has been implicitly and explicitly followed

by many other scholars, to salvage the image of a

humane Athens clearly fails.

4. CONCLUSIONS

I have argued that the Athenians did not differ

significantly from their fellow Greeks in other cities in

the ways they punished or threatened malefactors. In

this area their claim to be especially mild and

particularly democratic cannot be maintained (for a

particularly dark view of the Athenian administration of

justice see Hansen 1976: 119-21).

However, two features of Athenian penal practice made

the city unusual among Greek cities in the eyes of

modern observers. First, Athens seems to show a

particularly intense preoccupation with procedure. One

could argue that the provision of a range of procedures

to get redress allowed access to the courts (and in

principle to justice) openly to all citizens alike and was

thus more democratic ( Osborne 1985). Second, there is

the apparently unique institution of the mass courts and

the elaborate procedures to prevent them from being

corrupted ( Aristotle, Constitution of the Athenians 63. 4

ff.). To have so many judges will have reduced the

danger that individual prejudice or bribery influenced

the administration of justice. Indeed, the accused who

was able to plead his case well may have stood a better

chance of being acquitted. This could be understood as

courts with a milder disposition. So if there is a claim for

Athens to be different, more democratic, and milder in

its crim-

-88-

inal justice, it could only be justified by referring to the

modes of procedure, not the nature and severity of the

forms of punishment.

A further factor marked Athens out from other cities.

Here, mainly in the court speeches of the fourth century

BC, we find the earliest explicit comments on the nature

of punishment, reflections on its function as satisfying

the psychological need for revenge, restoring justice, as a

deterrent, and thereby protecting the contemporary

order (for example, Aischines 1. 34, 36, 113, 186 ff., 3.8;

Demosthenes 21. 7 f., 30, 34). These are, in fact, the

main tenets of all later penal theory. But it might be just

the distribution of our evidence, coming mainly from

Athens, which conveys the impression that only there

did people begin to reflect on the philosophical problems

of punishment. It seems more likely that these ideas

emerged from the sophistic movement, and indeed the

first major theorist of penology was probably Protagoras,

who influenced not only Plato and Athenian thinking in

general, but also people all over the Greek world ( Plato,

Protagoras323c-324d; also Mackenzie 1981; Saunders

1987 and this volume). We simply do not have court

speeches from, for example Syracuse. If any had survived

they might have contained instructive incidental remarks

on penology too.

In conclusion, the Athenians did not differ from other

Greek cities in their choice of punishment, their severity,

and their thinking about the fundamental ethical

problems of punishing ( Debrunner 1988: 685, 692-4).

Neither can their claim to a milder or more humane

administration of justice be substantiated by a study of

their penal practices. The mildness upon which

Athenians prided themselves should not lead modern

historians to confuse democratic laws and political

structure with particularly humane behaviour. Athens

was in many ways unique but it was nevertheless also an

ancient Greek polis, no better nor worse than any of its

neighbours.

-89-

Plato on the Treatment of Heretics

TREVOR J. SAUNDERS

1. PLATONIC PENOLOGY

Before embarking on this summary the reader needs to

be made aware of the key features of Platonic penology.

In his Laws and elsewhere Plato argues, in a radically

utilitarian spirit, that punishment ought not to be

inflicted with an eye to the past, retributively and

vindictively, but solely with a view to the future: it should

be so calculated as to 'cure' the offender, not merely by

brute deterrence, but by affecting his mental state and

moral outlook for the better. But efficient 'cure' demands

efficient diagnosis; and at many points in the model

penal code he describes in the Laws Plato therefore pays

close attention to the analysis of many different criminal

states of mind. The chapter here summarized is a study

of how in pursuit of this reformative policy he adopted

and adapted the Athenian legislation on 'impiety'

(asebeia); we observe a philosopher working creatively

on the raw material of contemporary law.

2. ATHENIAN AND PLATONIC IMPIETY

On a strict view, it is not possible to compare the

Platonic law of impiety with the Athenian. The gods of

Greek popular belief were human beings writ large:

immortal and more powerful than we, sometimes

benevolent and sometimes malign, with an unstable

devotion to moral virtue. The bulk of the Athenian law of

impiety therefore concerned a wide variety of acts

supposed to be likely to attract the gods' hostility: (i)

infractions of ritual, (ii) insulting language or behaviour

to themselves or their property or images.,

____________________

This is a summary of a paper originally delivered as

one of the series collected in this volume. An expanded

and more deatiled version of the argument presented

here was subsequently published as a chapter in

Saunders 1991: 301-23. For further evidence and

argumentation the reader is invited to turn to that

book.

-91-

(iii) revealing the 'mysteries' of certain cults, (iv)

entering holy places when in a state of atimia

('disfranchisement'), and (v) introducing new or foreign

divinities. When (vi) it forbade the advancing of opinions

about the gods, notably atheism and certain doctrines

about the physical nature of the heavenly bodies, it was

to protect the popular view of gods as personal beings

able to harm men or benefit them, especially by ignoring

or condoning offences, in return for sacrifices and

prayers.

Plato's gods are by contrast wholly incorruptible. They

are always benevolent to us; divine punishment is

intended, as legal punishment ought to be, to make us

morally better, and therefore, in the Sokratic/Platonic

view, happier. The wise man ought therefore to strive to

imitate the gods, and make his own character like theirs.

Plato accordingly concentrates on a set of beliefs and

practices which tend to rob the gods of their role as

protectors of moral virtue. His law has very little to say

about (i)-(v) above; but its provisions for (vi), heretical

opinion, are of enormous length and elaboration.

3. THE ATHENIAN LAW

At least some of the prosecutions of Sokrates and other

intellectuals for impiety seem to have taken place under

the 'decree of Diopeithes', which probably dates from the

43os and may have been recast later in the century as a

regular graphe asebeias, suit for impiety (Cohen 1991:

203-17). According to Plutarch ( Life of Perikles 32. 1),

the decree provided, vaguely enough, that 'those who do

not recognize the divine things, or who teach doctrines

about the things in the sky', should be impeached

(eisangellesthai). To judge from the accounts of the

individual cases, the penalty was assessed by the court;

instances of fines, exile, and death are reported. Plato's

law against impiety thus has solid Athenian antecedents;

for he too wishes to suppress expressions of atheism and

merely mechanical explanations of the workings of the

heavens.

4. THE PLATONIC 'HERESY' LAW

In book 10 of the Laws Plato identifies three heresies: (i)

atheism; (ii) the gods' indifference to the human race;

(iii) their willingness to be won over by prayer and

sacrifice ( Laws 885b; all subsequent

-92-

references to Plato are to the Laws). His law, like

Diopeithes' decree, is directed not against the mere

holding of heretical opinions in one's own mind, or even

against their casual expression, but against their

propagation. It has two chief features (907d until the end

of the book).

(i) It is cast in terms of damage. The

heretic who persuades a man that the gods do not punish

vice, because they can be deflected by bribes in the shape

of sacrifices or supplications, encourages him in

immorality, and therefore diminishes his happiness, his

self-fulfilment as a human being. Heresy therefore, if

propagated, inflicts harm. (2) What then becomes

important in assessing a heretic's punishment is less his

heresy itself, than his character, demeanour, intellect,

and his mastery of the arts of persuasion.

Plato accordingly distinguishes two categories of

heretics. The first is naturally just, lives uprightly, and

hates scoundrels; he is humorous, frank, and ultimately

foolish; but if he is not punished, he will make converts.

The second, described by Plato at passionate length,

lacks control over his pleasures and pains; he is powerful

intellectually, and is full of guile. He is beast-like, and

despise and bewitches his hearers, by promising to

bewitch the dead and persuade the gods by recourse to

sacrifices and charms. He tries to wreck individuals,

whole houses, and indeed states, for the sake of money.

Such heretics typically become magicians, tyrants,

popular orators, generals, and plotters in private rites.

Plato's law is rich in penological interest, and can be

analyzed as presenting ten problems, not all of them

soluble.

4.1 Problem I: opinion and action

Plato's diffuse exposition makes it hard to establish how

far a distinction between (i) holding and propagating

heresy, and (ii) acting on it, is functional in the law. On

close examination, the text provides penalties for heresy-

inspired actions entirely separately from those for

propagation of opinion. The heresy law proper concerns

only the latter; and it focuses on the character, belief,

and reformability of the offenders.

4.2 Problem 2: six or two categories of heretics

(908b ff.)?

Initially, Plato distinguishes six categories: the amiable

and the vicious, each of whom may hold any one of the

three heresies.

____________________

The refutation of the heresies in the earlier part of the

book constitutes the law's 'preface'.

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These six need 'dike (justice or penalty) which is neither

equal nor similar'. However, this promisingly full

analysis seems to be without penological effect: the

prescription of penalties relies exclusively on the twofold

distinction. Presumably any elaboration will have to be

at the discretion of the judges.

4.3 Problem 3: eironikon, as a description of the

second type of heretic (908e2)

Eironikon, 'ironic', seems to imply not mock-modesty,

but a contrast with the frank outspokenness of the first

heretic. The 'ironic' heretic conceals the premises of his

argument, and dresses up his views in some sort of

plausible reasoning which makes them sound like

intellectual and religious orthodoxy. For instance, he

persuades us to regard 'squaring' a god as fair,

reasonable, and pious; in fact he knows (in his heart?)

that it is impious. Eironikon thus suggests not wit or

rhetorical play, but intellectual tricksiness.

4-4 Problem 4: psychagogia, 'soul-leading'

(908b)

Some of the dissembling heretics engage in 'soul-

leading'; but Plato does not define the term. Probably he

means the 'bindings' or 'incantations' by which one could

expect to harness against one's enemy the souls of the

dead. His disapproval of this belief generates a problem

for him, as we shall see.

4.5 Problem 5: conditions of release of the

'curable' heretic

The amiable and merely misguided heretic is to be sent

for a period of at least five years (908e ff.) to the 'reform-

centre' (sophronisterion), which is situated near the

meeting-place of the Nocturnal Council (the supreme

governing body of the state). Plato words the provisions

for release confusingly; but the logic of the text seems to

indicate (i) that after the minimum period of five years

the heretic is released not by a court but at the discretion

of officials: his sentence was effectively 'indefinite'; (ii)

that even after release, he is on a kind of probation.

4.6 Problem 6: re-education (908e-909a)

Precisely how is the amiable heretic to be reformed in

the sophronisterion? Plato distinguishes a 'compelling'

and a 'teaching' element in punishment (862d). The

nature of the former is in this instance fairly clear:

isolation from society, psychological pressure,

-94-

and contact only with such sterling characters as the

members of the Nocturnal Council, who 'associate' with

them for purposes of 'admonition' and the 'safety of the

soul'. Plato attempts to exploit the formative power of

association. But what does the 'teaching' consist of?

Readings from Laws 10? Daily? Monthly? Something

intellectual seems called for, but Plato does not even

begin to describe it. At any rate, his treatment of the

amiable heretics is based on his estimate of their

psychological state, and thus far he is concerned with

their welfare. But the social dimension is strong: though

this category of heretic inflicts less harm on society than

the other, recidivism is very harshly treated, by the

penalty of death.

This legislation is remarkable, and sharply different from

anything in Athens, where so far as we know the impiety

law did not formally distinguish psychological states (

Cohen 1991: 203-17). Plato requires the top officials of

his state to spend five years in reintegrating somewhat

foolish persons into society; and that is consistent with

his general policy of rehabilitating criminals wherever

possible.

4.7 Problem 7: why are the heinous heretics not

killed?

Heretics of the second class are to be imprisoned for life

in a remote prison (908a, 909b-c) whose name is to be

suggestive of timoria (vengeance). The very word

suggests incurability, which would in terms of Plato's

penology demand the death penalty (728bc, 862e-863a,

957e-958a). Yet they are not executed. Why? Are they

residually curable in principle, but too clever for the

dialectic of the Nocturnal Council? Do some of them

believe at any rate in the existence of gods, so that they

are not entirely beyond redemption? Or have they

committed no concrete offence, but only talked? Does

the line between curability and incurability lie here,

between speech and action? Does Plato believe that

mental states are finally assessable only by reference to

acts? Perhaps he regards the mark of incurability as the

solidification of fluid opinion by the habituation of

action. It is after all good Platonic doctrine that one

attains a certain moral character by doing actions of that

character. If that is indeed his reason, we have in his

heresy law a startlingly rigorous and consistent

application of a moral and psychological doctrine.

4.8 Problem 8: private shrines (909

3-910

Plato prescribes simply that no one is to possess shrines

in private houses; for it is undesirable that shrines

should be founded all over

-95-

the place at the whim of persons wishing to thank or

supplicate the gods for some benefit, or because of fear

arising from a vision in sleep. One supposes that such

practices are undesirable because they encourage a belief

in a commercial, reciprocal relationship with the gods,

divorced from considerations of virtue and genuine

desert. A slightly obscurely written passage (910a6-b6)

may suggest that such impious actions infinitely increase

the impiety of impious opinions, and this lends some

support to the suggestions in Section 4.7, on the

relationship between belief and action. Plato now lays

down the penalties for possessing and worshipping at

private shrines (910b8 ff.). There are two categories of

offenders:

(1). Those guilty of no great act of impiety, who are to

be reported to the authorities, and their shrines

removed to public places. Cases of disobedience are to

be punished (by fines?) until the shrines are so

removed. By an implication in (2). the offenders are

acting childishly.

(2). Those guilty of an act of impiety typical not of

children but of adults, either by founding a shrine on

private property, or by sacrificing to 'whatever gods'

(foreign ones?) in public places. These offenders are

to be executed, as sacrificing in a state of pollution.

The law has no counterpart in Athens, where the

founding of private shrines seems to have been largely

unregulated (but cf. Sect.2). Again, there is emphasis on

psychology: childish acts, even if repeated, attract only

repeated minor penalties, not death.

The distinction between trivial and serious offenders

recalls the distinction between the amiable and heinous

heretics. The problem is to know whether the lesser

heretic is the same person as the childish offender, and

the greater heretic the 'adult' offender. It is hard to see

how the heretics who make converts by scoffing at the

religion of others would be likely to found shrines; on the

other hand, the serious offenders could well be (i) such

heinous heretics as put their beliefs into practice, and (ii)

certainly those nonchildish persons who act on their

teachings. The two pairs, of heretics and offenders, seem

therefore to be only partly on all fours.

5. ASSESSMENT OF PLATO'S IMPIETY LAW

Plato's law of impiety is a highly distinctive product of

his theology and moral theory. He acts within the

tradition of Athenian anti-

-96-

intellectual impiety legislation, but with radically

different assumptions and purposes, and with a far more

sophisticated analysis of heretics' intellectual and

emotional states. Like Diopeithes, apparently, he is

concerned not with casual or occasional expressions of

heresy, but with its persistent or systematic propagation.

In particular, his law seems to embody the crucial

distinction between opinion and speech on the one hand,

and action on the other; only the more serious actions

(and the recidivist 'amiable' heretic) attract the death

penalty. However religiously horrible your opinions, and

however assiduously you urge them on others, you are

executed only if you act on them. But although heresy

seems a natural area in which a penology aiming to cure

psychic states could come into its own, by deploying

reasoned persuasion, the scope of the reeducation

envisaged by Plato is a much more limited operation

than a swift reading of the final pages of book 10 would

suggest. It does not touch the more dangerous type of

heretic. Finally, the provisions for the release of the

naïve heretic seem to embody the principles of indefinite

sentence., terminable by officials rather than by a court,

and of probation.

6. MEDICINE AND MAGIC

We now turn to book 11, and in an intriguing set of laws

(932e1-933e5) we meet our old friends the magicians or

charlatans of the law of impiety. They are now bracketed

with malicious doctors, under the general heading of

'poisoners': just as doctors may, if they wish, poison the

bodies of men directly, charlatans 'poison' them on

another level, intellectual or spiritual, by a set of

practices which we may compendiously call 'magic'

(933a, 933cd; cf. 908d, 909b).

6.1 Doctors

The law relating to doctors is in effect a branch of the law

of blabe, damage. It covers deliberate non-fatal

poisoning of human beings, and fatal or non-fatal

poisoning of certain animals. Doctors who commit either

offence, by food, drink, or unguents, are to be executed;

what the layman must suffer or pay is to be assessed by

the court.

The Attic law of damage was of very wide application,

and could probably be used in cases of poisoning; the

penalty for deliberate

-97-

damage would then have been restitution to the extent of

double the assessed amount of the damage. At any rate,

no special penalty for malicious doctors is known. Plato's

law is very different; presumably he would reason as

follows. A doctor has a skill, with great potential for

harm; he has betrayed the trust put in him; he must

therefore be incurably wicked. The layman may be an

ignoramus, or partly skilled; his penalty has therefore to

be open-ended. Plato thus calculates penalties on the

assumption that the degree of the technical knowledge

misused by the offender is a measure of his psychic vice,

and therefore a measure of the punishment needed to

cure him, if indeed he is curable. He makes no mention

of recompense to the victim.

6.2 Magicians

The text contains a description of the second type of

poisoning: it proceeds by trickery, charms, and bindings,

and persuades both aggressor and victim of the efficacy

of such practices in the infliction of harm. Two problems

arise, which we may clear off briefly before considering

the connection Plato makes between medicine and

magic. The relevant passage reads (933a5-b5):

on these and similar matters [trickery, etc.] it is neither

easy to discover how things really stand, nor, if one were

to find out, simple to persuade others. It is not worth

trying to persuade about such matters persons scowling

at each other by the souls of men, that if some people

sometimes see somewhere images fashioned from wax at

doorways or crossroads or on tombs of their ancestors --

to bid them ignore all such things,

since/when/if/although they/we have no clear opinion

about them.

6.3 Problem 9: what does 'persons scowling at

each other by the souls of men' mean?

Probably it is a description of mutually malevolent

persons, each of whom thinks that the other has incited

the soul of some dead man to attack him. 'By' may thus

be either instrumental (they try to use a soul), or causal,

'because of' (the souls are a cause of their suspicion).

6.4 Problem 10: what is the relevance of the

remark about the lack of a 'clear opinion'?

It can hardly imply that Plato is uncertain whether gods

are venal or not: on that issue he is immovable. It is

probably a piece of

-98-

rhetorical exaggeration enjoining suspension of

judgement. For Plato has a problem. It is to show how,

given the continuity between this world and that of the

dead on which he has himself insisted in the homicide

law (e.g. 865d-e), influence of the dead on the living is

possible, while influence of the living on the dead, at

least of the kind envisaged by magicians, must be ruled

out. No doubt it could be shown; but it would not be easy

to persuade others, even if one found out -- and I take it

Plato reports a puzzlement he really does feel. At all

events, he knows that presenting such a probably subtle

and complex argument to observers of waxen images is

'not worth it'; they will take the prudential option every

time. The best he can do is to urge them, as he urged the

young heretic earlier (888c ff.), to bear in mind that they

do not have a sure opinion, and to await a more mature

one.

If these solutions of the two problems are correct, it

looks as if in the conjuration of the dead and related

practices Plato is worried by the problem of

distinguishing magic from medicine. His remarks on the

way in which magic convinces both the victim and the

aggressor of the reality of its effects suggest that his

uncertainty centres on whether magic really works, like

(some) medicine, and has the results it claims. Certainly

he seems to suppose, in mentioning manganeumata,

'hocus-pocus', that magicianship involves some sort of

technical knowledge of procedures and rituals (933c, and

that in so far as the magician has or claims to have

technical skills, he may as well be compared with any

other expert, say a farmer or a carpenter -- or a doctor.

Whatever Plato's doubts, he gives the magicians the

benefit of them. The concession is, however, deadly. For

it immediately puts them on the same footing as doctors:

expert use of bindings and charms or other such poisons

attracts the death penalty; but a nonexpert magician

found guilty of such poisoning attracts an openended

punishment, like the non-expert doctor, presumably

because the degree of skill he misuses similarly varies,

and therefore the degree of his psychic vice.

There are a few indications that sorcery could be

repressed under Attic law too, perhaps as a species of

impiety. The main innovations Plato seems to have made

are the subjection of magicians and malicious doctors to

essentially the same law, under the general heading of

'poisoners', and the firm distinction between expert and

non-expert in both categories. As best he can, as in his

penal code

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in general, he puts the measurement of psychic states at

the centre of his law.

7. CONCLUSION

The comprehensiveness of Plato's impiety law, and the

fertility of its ideas, are remarkable. It embraces a wide

variety of offences, ranging from the purely intellectual

to the practical and commonplace, and grades them in

the light of the damage they do and the mental states

that caused them. Its main analytical tools are the

distinctions between speech and action, expert and non-

expert, and the clever and the naïve. It is an important

episode in the history of thought, and deserves to be

better known.

-100-

Lysias against Nikomachos: The Fate of the

Expert in Athenian Law

STEPHEN TODD

1. PRELIMINARIES

There are six preliminary questions which scholars

traditionally ask about any surviving Athenian forensic

(i.e. lawcourt) speech. Three of these questions concern

the personalities of the trial: who wrote the speech? who

was the speaker? and who was the opponent? The other

three questions are about issues: what was the date of

the trial? under what legal procedure did it take place?

and what was the result? In terms of our level of

knowledge, Lysias 30, Against Nikomachos is a typical

speech: we are neither particularly well nor particularly

badly informed. Out of the six preliminary questions

outlined here, we know the answer to three (subject in

each case to qualification), and the other three are

unknown (although we may be able to guess at the

answer to one of these).

The obvious place to begin is with the title of the speech

in the manuscript: it is, we are told, by (or at least

attributed to) Lysias. But a lot depends here on what is

meant when we use the word 'by'. We may not agree with

everything that Dover says about the authorship of

Athenian forensic speeches,

but he has certainly

____________________

This paper was originally delivered as part of the

seminar series which makes up this book, but it also

draws to some extent on unpublished material

previously presented to audiences in Cambridge in

1986 and in Keele in 1988. My thanks are due to

numerous participants in each of the three seminars,

but especially to the editors of this volume.

The nature of Athenian law means that procedure is a

considerably more important concept than the

question of charge or offence: see Todd ( 1993: e.g. 64-

7).

See Dover ( 1968: 47-56); my own views on the subject

of authorship have been outlined in Todd ( 1990: 165-

7). For the sake of convenience, and because it does not

substantially affect our argument, we may throughout

this paper ignore what is at least the theoretical

possibility that this or any other speech has been

-101-

demonstrated that we cannot use the authorship of a

speech as a statement of political consistency. Lysias was

a forensic orator: that is, he did not normally speak in

public, but instead wrote speeches to be delivered by

private individuals involved in litigation (or, as Dover

would put it, he assisted these litigants in composing

their speeches). Even if we could demonstrate that every

word of this speech was written by the orator, with no

contribution whatever from his client, nevertheless we

could draw from this hypothesis no deductions whatever

about any political views of the orator which underlie the

speech. Lysias, as Dover has shown, was willing to work

with clients from a wide range of political

backgroundsindeed, a surprisingly wide range, given

Lysias' own experiences as a political refugee under the

oligarchy of the Thirty.

The second piece of information given by the manuscript

title concerns the opponent, where we are at least told

that his name was Nikomachos. That, however, does not

tell us very much, because outside this speech he is

mentioned only once by a classical source. In the closing

lines ( 1504-14) of Aristophanes' Frogs, produced in 405

Bc, Hades god of the underworld is heard recommending

various public figures to commit suicide as soon as

possible:

give this [presumably some instrument capable of

causing death] to Kleophon; this to the poristai, to

Myrmex and to Nikomachos, and this to Archenomos;

and tell them to hurry down here as soon as possible, or

else I will brand them and tie up their feet with

Adeimantos the son of Leukolophos, and hasten their

passage below ground.

And even with the name of the opponent, we are not

entirely on safe ground: it is generally agreed that he was

called Nikomachos, but at one point in our manuscript (§

11) he is addressed as Nikomachides; and the

lexicographer Harpokration (s.v. epibole) cites this

speech under the title Against Nikomachides.

Concerning the date, on the other hand, we can be fairly

certain. Lysias tells us that Nikomachos served two

terms in office, the first of which (§ 2) lasted six years,

and did not end until 'the polis had

____________________

mis-attributed, and that it is not 'by' Lysias but 'by'

another orator; references in this paper to Tysias',

therefore, are shorthand for 'whoever wrote the

speech(es) in question'.

The poristai were a board of public officials, but the

rest of the names here are of individuals. Presumably

they are all politically active: one at least of them (the

'demagogue' Kleophon) is well known and will

reappear throughout this paper.

-102-

been reduced to utter disaster' (§ 3); this final phrase is a

standard Lysianic euphemism (e.g. Lysias 6. 46, 16. 4,

25. 15, 31.8) for the complex of events from the loss of

the Athenian fleet at Aigospotamoi (summer 405), to the

Spartan siege of Athens (winter 405-4), and the final

Athenian surrender (spring 404). This six-year term,

therefore, will have spanned the period from the

restoration of democracy after the fall of the first

oligarchy (the Four Hundred) in 411, to the rise of the

second oligarchy (the Thirty) imposed with Spartan

support after the surrender in 404.

Nikomachos,

however, also served a second term, which lasted four

years (§ 4). It is inconceivable that he was appointed by

the Thirty, because Lysias would certainly have said so;

and the natural inference is that Nikomachos was

reappointed after the second democratic restoration (late

summer 403). If, as we would expect, the calculation

here is inclusive and based on the Athenian calendar

year, then the fourth year of his second term will have

been 400/399.

Once again, however, a cautionary note should be

sounded. Broadly speaking, here, and particularly for the

dating of Nikomachos' second term, I have followed the

calculations made by Dow ( 1960: 271-2). But Dow (ibid.

291) further assumed that an Athenian public official

could only be prosecuted at the end of his term of office,

and that the speech must therefore have been written for

a trial early in the calendar year 399/8. This, however, is

to import assumptions from Roman constitutional law

into the law of Athens: at Athens, as we shall soon

discover, there were several procedures by which a

sitting official could be prosecuted. So there is also the

possibility that the trial should be dated in the spring or

early summer of 399, towards the end of the Athenian

year which began in the summer of 400. On the other

hand, it is unlikely that the trial was much later than

Dow believed: Nikomachos may, as Dow suggested,

already have finished his term of office; but if so, that

must have been a very recent event.

____________________

'Six years' is presumably (despite Dow 1960: 271) an

inclusive reckoning on the basis of Athenian calendar

years, which ran approximately from midsummer to

midsummer: Nikomachos' term will therefore have run

either from some time during the year 411/0 to some

time during the year 406/5, or (more likely) from some

time during 410/409 to some time during 405/4. We

might infer from the account in §+§ 10-14 that

Nikomachos was still in office at the time of the trial of

Kleophon in the winter of 405-4, but the fact that

Lysias implicitly suggests this is no guarantee that it is

true.

-103-

This, then, is the sum total of the three things that we

know about the speech: author, opponent, and date.

There are two things which we have no way whatever of

determining: the identity (and political affiliations) of

the speaker; and the result of the trial. As for the

procedure, however, and by implication therefore the

charges, the situation is rather more complex. The title

in our manuscript speaks of euthynai (the judicial

examination of his accounts to which every public official

had to submit at the end of his term of office); but the

titles of speeches in our manuscripts are not always

reliable, and sometimes appear to be based on little more

than dubious inferences from the text of the speech.

this title, for instance, Nikomachos is described as a

grammateus ('clerk' or 'secretary'); and although Lysias

in 27 insultingly describes him as a hypogrammateus

('under-clerk'), it is clear from §+§ 2, 4, 17, etc., that

Nikomachos' office was in fact that of anagrapheus

(literally 'publisher', cf. below). Moreover, there is

indeed one piece of internal evidence which suggests that

this speech may not have been written for Nikomachos'

euthynai. Lysias insists very emphatically at § 5 that the

defendant, alone among public officials, has reached

such a pitch of arrogance that he has consistently refused

to offer his accounts for examination. This argument

would be considerably weakened if Nikomachos could

stand up and reply, 'but you now have my accounts in

front of you'.

There are, moreover, two other possible procedures

which must be considered here: graphe alogiou and

eisangelia. The former was a public prosecution (that is,

it could be initiated by any citizen) used to charge an

official for failure to offer his euthynai, but its use is

rarely attested. Better known, however, is eisangelia,

which broadly corresponds to modern impeachment:

this too could be brought by any citizen, but against any

serving as well as former official, and on the basis of any

form of malpractice committed in office. It was

characteristic of eisangelia that there was a double

hearing, first before the council and then either before

the assembly or, more commonly, before a court:

our

present speech is addressed to a

____________________

There are, however, instances where the speech-title

contains apparently reliable information which cannot

simply have been deduced from the text of the speech

as we have it, such as the name of the defendant

Mantitheos in Lysias 16: cf. Blass ( 1887: 517).

For the detailed rules, see Hansen ( 1975: 21-8): the

cases heard by the council and then by the court are

those described by Hansen as 'eisangeliai to the

council', and it is among these that he provisionally

places the trial of Nikomachos ( ibid.

-104-

court (§ 1), but Lysias refers in passing (§ 7) to the

slanders which Nikomachos is alleged to have uttered

before the council. It is an attractive suggestion that this

refers to comments made at the preliminary hearing of

an eisangelia; and this is perhaps the most likely

procedure, though it is not wholly certain.

We have devoted some time to a rather inconclusive

discussion of the technicalities of procedure; but the

issue is important, because it raises questions of

initiative and risk. If the trial of Nikomachos was either a

graphe alogiou or an eisangelia, then we can deduce

that the prosecutor is attempting to force the defendant's

hand. If what we have is the examination of Nikomachos'

euthynai, then this is an automatic process consequent

upon the completion of his term of office, and no such

inference can be drawn. In a graphe alogiou, as in the

majority of public procedures, a prosecutor who failed to

get one-fifth of the votes of the jury would suffer a

substantial fine and probably also the loss of certain civic

rights (at the least, the right to bring the same type of

legal case in future). Eisangelia, however, though a

public procedure, was at least at this date exempt from

the one-fifth rule,

and even if Lysias' client had

obtained no votes whatever, he would not have suffered

any tangible penalty other than a loss of prestige. The

status of the unsucessful complainant at euthynai is less

clear, but it seems probable that he suffered no penalty,

perhaps because he was not formally regarded as a

prosecutor. In an eisangelia, finally, there was a

preliminary hearing before the council, and although the

range of offences covered by this procedure was virtually

limitless, the plaintiff would presumably have to show

prima facie that the defendant had done at least

something which could serve as the basis for a charge.

This would be less of a problem in a graphe alogiou,

where it is by definition clear what the charge would

have

____________________

116-17, cat. 140); it is notable (cf. n. 9 below) that in

such cases the council passed not simply a preliminary

resolution but a preliminary verdict (katagnosis).

Strictly speaking, Hansen's ' eisangehai to the

assembly' received more than two hearings, since they

ere normally initiated in the assembly, referred to the

council with the instruction to place them on the

agenda, and from there referred back normally to the

assembly for a final hearing; but since this is not the

type of case in issue here, we may take the liberty of

over-simplifying.

Eisangelia

seems to have been brought into line with

other public procedures in this regard in the 330s,

apparently in order to reduce the threat of frivolous

prosecutions: see Hansen ( 1975: 30).

-105-

had to be;

but as we shall see, it is hard to see quite

what Nikomachos could be said to have done that might

justify an eisangelia.

To our preliminary questions, therefore, we are left with

the answer that we know neither particularly much nor

particularly little; but a lot of the things that at first sight

we seem to be able to answer conclusively turn out on

closer examination themselves to raise further questions.

But that is perhaps an unduly gloomy note on which to

end the first section of this paper, for there is one respect

in which for this speech we are in a better position than

for many others: we do at least have some external

evidence, and are not solely confined to making

inferences from the text itself.

We have already noted the jibe against Nikomachos

made at the end of Aristophanes' Frogs. More valuable

perhaps in this case is the anonymous material.

Nikomachos, as we have seen, served two terms of office

as anagrapheus or 'publisher' of the laws, and in this

task he appears to have formed part of a commission

charged with revising and inscribing the law of Athens.

We possess substantial epigraphic fragments of work

which may have been published by the commission.

Some of this was completed during Nikomachos' first

term of office, but the only substantial item from this

period to survive

(the republication of the homicide

law ascribed to the seventh-century legislator Drakon, IG

I3 104 = Meiggs and Lewis 1988: no. 86) describes itself

in its prologue as the work simply of anagrapheis, and

this may or may not denote the board of which

Nikomachos was a member. More significant perhaps is

the work produced during Nikomachos' second term,

from which there survive very considerable fragments of

a calendar listing the state

____________________

The role of the anagrapheus is discussed in Sect. 2 of

this paper, and the significance of the revision of the

laws in Sect. 4.

There is at least one other text which was evidently

produced at the same time, but it is so fragmentary as

to defy serious interpretation: this is a law or collection

of laws apparently concerned with the powers of the

council (IG I3 105). For other possible texts, see

Robertson ( 1990: 56-60).

There was a preliminary hearing of sorts (the

anakrisis) before every public case; but the anakrisis

was conducted by a public official, and he may well

have had less discretion (in practice even if not in

theory) to reject a case than the council had over an

eisangelia. There is some evidence that officials

preferred not to take the responsibility for rejecting a

case at this stage (Lysias 13.85-7), presumably for fear

of what might happen at their own euthynai (cf. Lysias

10. 16). The council, on the other hand, in eisangehai

of this sort were expected to deliver a preliminary

verdict rather than simply a preliminary resolution (cf

n. 7 above).

-106-

sacrifices of Athens.

Neither document, however,

names Nikomachos: it is not certain that the homicide

law has anything to do with him; and although the

calendar (cf. §+§ 17-25 of the speech) is presumably to be

associated with the work of his commission, nevertheless

its extant fragments tell us nothing about the

constitutional framework within which its authors were

working.

The evidence of the inscriptions, however, brings into

play some additional literary material. They make it clear

that Nikomachos was playing a part in a substantial

process of legal revision during the final decade of the

fifth century; and several of our literary sources provide

partial (in every sense) accounts of this process.

Thucydides (8. 45-98) and Aristotle in the Constitution

of the Athenians (29-33) give revealing though

incompatible versions of the rise of the first oligarchy,

that of the Four Hundred, in 411 Bc. Both show clearly

how the oligarchs were helped to power by a very

considerable confusion over the nature and authority of

the law of Athens: what is the value, for instance, of a

constitutional safeguard to defend the position of the

democratic assembly, if there is no safeguard to prevent

the assembly from simply repealing that safeguard and

abolishing itself in favour of an oligarchy (cf. Thucydides

8. 67)? The Constitution of the Athenians in particular

casts an interesting if unintentional light on the way in

which the question of law served as an ideological

battlefield in the propaganda wars of this decade, with

all parties claiming that theirs was the true 'ancestral

constitution'.

From a somewhat later stage in the process of legal

reform, we have the orator Andokides. In the course of

his defence-speech On the Mysteries ( Andokides 1. 71-

89), written for a trial probably in 400 BC (thus

MacDowell 1962: 204-5). he puts forward a detailed and

immensely confusing account of legal reform in Athens

in the period 405-403/2. There is, as we shall discover in

the final section of this paper, a strong case for believing

that Andokides' account is grossly and deliberately

misleading; but for what it is worth, it is additional

evidence.

____________________

The calendar has attracted a considerable specialist

bibliography: in addition to the 24 specialist items

noted in Dow ( 1960: 292-3), see more recently Dow (

1961), Fingarette ( 1971), Clinton ( 1982), and

Robertson ( 1990).

The outstanding discussion of this topic is that of

Finley ( 1986: 36-59). The implications of the first

oligarchic revolution for the status of law at Athens are

discussed further in Sect. 4 of this paper.

-107-

A final mention should perhaps be given to comparative

material. Much of Lysias 30 is devoted to rhetoric about

the law and about legal experts; and much of this can be

matched elsewhere, in the speeches both of Lysias and of

other orators. Comparison can help us to contextualize

what may be the function of Lysias' discourse here.

THE FUNDAMENTAL PROBLEM: THE

PROSECUTOR'S CASE

The main problem which scholars have traditionally

found with Lysias 30 is that it is exceedingly difficult to

see quite what it is that Nikomachos is charged with (

Albini 1952: 266; Gernet and Bizos 1955: 160; and cf.

more recently the use of 'presumably' in Hansen 19: 75:

117, cat. 140). This problem remains, unless we are

prepared to fudge the issue by saying that he is being

charged simply with 'not carrying out his functions in the

way that he was ordered to'; or unless we take what I

suspect is the more subtle and accurate line that in order

to be found guilty in an Athenian court, you did not

actually need to have done (or not done) anything in

particular.

What Lysias says boils down to this. Nikomachos served

two terms in office (§+§ 1-6). In the first of these,

described in §+§ 2-3, he was appointed for a four-month

period as anagrapheus (§ 2).

The significance of this

word (literally, 'one who writes up') is open to

interpretation. Robertson ( 1990: 52-6) rightly

emphasizes that it could include the 'researching' of

texts; but its natural meaning involves the act of writing

up in a public place, and it is difficult to accept his

argument that this should specifically exclude its

common corollary, the inscribing of laws. It is admittedly

impossible on purely linguistic grounds to determine the

level of discretion which the term implies (is the

anagrapheus simply the man with the chisel who carves

the text on the stone, or does he have a real authority

over the status of the text to be inscribed?); but the

Constitution of the Athenians (30. 1, 32. 1) uses the

related verb anagrapho to describe those charged with

drawing up and publishing a constitution, which implies

that such discretion could be considerable. According to

Lysias, however, Nikomachos 'made himself into a

____________________

The term anagrapheus is employed here specifially, in

a way which makes it clear that the subsequent uses of

nomothetes and (hypo)grammateus are for the

purposes of irony or insult.

-108-

nomothetes (lawgiver) and made his job last six years' (§

2). The latter, as we have seen, neatly covers the period

between the two oligarchies; while the former is

presumably an accusation of having exercised more

discretion than he was entitled to. He 'inscribed some

laws and erased others, while receiving payment on a

daily basis' (§ 2): this of course is meant to sound as if he

took bribes for perverting the lawcode, but it may simply

mean that Nikomachos had a post for which he received

a daily stipend, and that he was allowed at least some

discretionary powers over the texts which he selected as

authorities. Since Lysias is a master of innuendo, it is

safe to assume that the words here mean no more than

they say.

In a phrase that is delightfully vague,

'the

archons imposed epibolai (summary fines) and brought

matters into the courtrooms, but he refused to hand over

the laws' (in other words, the task on which he was

engaged was one that took some time); and he did not

give up his office and submit to euthynai (cf. Section 1

above) until the city was overtaken by 'disasters' (§ 3).

The phrasing here implies, incidentally, that

Nikomachos did eventually give up his office and

undergo euthynai, even if this did not happen until after

the defeat at Aigospotamoi in 405; and the speed of his

reappointment after the democratic restoration in 403

may support the conclusion that he almost certainly did

this before the fall of the democracy in the autumn of

404.

Nikomachos' second period in office is described in §+§

4-5. This time he is not formally described as an

anagrapheus, but the cognate verb anagrapho is used

twice in § 4 to describe his activities; and it seems

reasonable to conclude that once again this was indeed

the title of his office. There is some reason to believe that

he dealt with a narrower range of material during this

second term. The epigraphic evidence for the work of the

second commission consists entirely of fragments from a

sacrificial calendar; and it is possible that when

Nikomachos is later said to have been in charge both of

hosia and of hiera (non-sacred and sacred matters, §

25), the two

____________________

We may note in passing that Lysias in this speech is

fond of the 'inscribed some/erased others' jingle: it is

repeated in almost the same words in § 5. The

significance of the charge of 'erasing' laws is discussed

in Sect. 4 below.

There is, as Robertson ( 1990: 54 n. 36) complains, no

warrant in the text for the assumption made by all

previous editors, that it is Nikomachos who is being

fined and summoned here: simply that his slow

progress caused judicial delays. On the other hand, the

way in which this passage has traditionally been read

demonstrates Lysias' success in making it sound a very

serious matter.

-109-

words refer separately to the two periods of office. In § 4,

indeed, Lysias goes further, encouraging us to infer that

Nikomachos' authority was statutorily circumscribed

during his second term, but this may be simply a clever

use of words: the phrase διωριςµε+νον ε+ξ+ ων

ẳναγ1ειν (diorismenon ex hon edei anagraphein,

literally, 'it was defined out of what things he had to

inscribe') is meant to suggest a restriction of the areas of

law over which Nikomachos was to have competence,

but it need mean only that he was to draw his regulations

from specified sources.

The duration of Nikomachos'

second term occasions yet more sophistry. Lysias says

that he took

four years over a task which he could have

completed in thirty days (§ 4), which is clearly meant to

recall the earlier allegation (§ 2) that Nikomachos had

illegally extended his first term of office; here, however,

the speaker claims no statutory authority for his mention

of thirty days. The decree of Teisamenos of 403, quoted

by Andokides (1. 83-4), does specify this figure, and it is

possible that the audience may dimly have remembered

this; but although the decree of Teisamenos dealt with

contemporary and related aspects of law reform,

nevertheless it had no direct connection with

Nikomachos' commission. We may safely conclude that

the limit of thirty days here has no authority outside

Lysias' imagination. This gives way to the final

accusation, that Nikomachos has not submitted his

accounts (§ 5). Lysias, of course, wants us to infer that

such behaviour is unlawful; and he confuses the issue by

drawing a contrast with 'the others' who (unlike

Nikomachos) do this not just on an annual but on a

monthly basis.

____________________

The surviving portions of the calendar do specify the

sources from which individual regulations are drawn

(cf. the discussion by Dow 1955-7: 15-21 of the

'ekrubrics'). The work published in the commission's

first term may have been less clearly regulated in this

respect: although the homicide law ( Meiggs and Lewis

1988: no. 86, cf. Sect. 1 above) has apparently retained

the textual divisions of the document from which it was

copied and although the preface to this law instructs

the anagrapheis 'to receive it from the basileus with

the secretary of the boule

', nevertheless there is no sign

that the commission had a statutory obligation here to

specify the source of their text. It is of course possible

that, in the light of experience of the commission's first

term, the assembly was more careful to specify the

terms of reference for their successors.

The tense of ẳνε+γραψεν (anegrapsen) is aorist,

which should indicate a completed rather than a

continuing process: thus 'took' rather than 'has [so far]

taken'. It need not, however, indicate that Nikomachos

has voluntarily relinquished office: if (as seems

probable, cf. Section I above) the prosecution is by

eisangelia, the defendant will presumably have been

suspended by apocheirotonia pending the trial; while

even if the process is a graphe alogiou, the speaker

may wish to create an impression of confidence by

suggesting that the defendant as well as his job is

finished.

-110-

But 'the others' is ambiguous: does it refer to

Nikomachos' colleagues on the commission, or (more

likely) to the holders of other, regular offices? We have

no evidence external to this passage that an extra-

ordinary official appointed without fixed term of office

was liable to render monthly or even annual accounts

during the course of his term.

This account of Nikomachos' activities in office is

followed by a series of pre-emptive strikes directed

against what he may say in his defence (§+§ 7-16). This

has only indirect bearing on the question of the possible

charges, and can therefore be covered in a more cursory

fashion. Three arguments are put forward. First comes

the dismissal of an expected attack on the speaker's

record under the oligarchy of the Four Hundred (§+§ 7-

8): it is perhaps significant that there is no reference to

the speaker's activities under the Thirty. In the second

place, Lysias attempts to rebut the defendant's claim to

be a democrat (§+§ 9-14). The use of the semi-technical

term mnesikakein (§ 9: cf. the Constitution of the

Athenians 39. 6) at the opening of this argument is made

to sound as if it is Nikomachos who has taken the

initiative in breaking the amnesty of 403/2, and that this

therefore entitles Lysias to discuss in detail the execution

of the democratic political leader Kleophon by an

oligarchic kangaroo court shortly before the revolution

which established the Thirty in 404; but despite Lysias'

best efforts, the defendant's connection with this affair

(which will be discussed in Section 3 of this paper) was

clearly remote. The third argument is directed

specifically against the basis of Nikomachos' claim to

democratic sympathies, his exile under the Thirty (§+§

15-16), and here the logic is indeed tortuous.

Nikomachos, we are told, deserves no credit for his exile,

because he had no choice in the matter: as if all the

victims of the Thirty, including Lysias himself, had

somehow volunteered for the privilege!

There follows an extended and complex discussion of the

propriety of retaining certain sacrifices (§+§ 17-25). This

is a particularly difficult section of the speech, not least

because the text is insecure at one crucial point, and the

precise meaning of several of the terms used is unclear.

What is interesting, however, is the importance

____________________

Stelai

in our editions of § 17, 'he claims that I am

committing impiety by saying that we should perform

the sacrifices from the kurbeis and from the stelai

according to the syngraphai [some sort of document]',

is Taylor's plausible emendation for a meaningless

phrase in the manuscripts, but it has the authority only

of a

-111-

given to the rhetoric of religious traditionalism, a point

to which we shall return (at the start of Sect. 3 below):

this discussion is allowed approximately one-quarter of

the entire speech (9 sections out of 35).

After this comes a skilful and epigrammatic summary of

Nikomachos' putative offences (§+§ 26-30), the core of

which is found in the threefold usurpation of § 27: he is a

slave who has made himself a citizen, a beggar who has

become rich, and a hypogrammateus who has arrogated

to himself the function of nomothetes. The second of

these three accusations is easy enough to decode: it is the

routine forensic charge of embezzlement (for examples

within the Lysian corpus alone, see 21. 16, 27. 6-7, 28. 3,

and 29. 11). The other two, however, are more interesting

and better developed. With the first, Lysias is picking up

the offensive remarks about his opponent's family with

which he began the speech. Nikomachos, we were told

there, has 'treated the property of the polis as his own,

while being himself the property of the polis' (§ 5, where

the innuendo of slave-birth is cleverly deployed to

buttress the otherwise unsupported allegation of

corruption); and a series of careful hints had encouraged

us to think that there was something irregular about the

defendant's appearance on the citizen register and

something disreputable about his upbringing.

In §+§

26-30, however, what had been implicit is now made

overt with a series of neat puns:

if my opponent deserves to be executed on his own

account, then on account of his ancestors he ought to be

sold [sc. as a slave] (§ 27);

[it is a terrible thing that] you have selected Nikomachos

as inscriber of our ancestral regulations (ta patria) when

as far as his ancestry goes (kata patera), he does not

have any share in the polis (§ 29).

The third accusation, however, is more difficult to

understand, not least because we do not for certain know

the precise significance of

____________________

conjecture. Stelai are 'pillars' carrying inscriptions.

Nobody (even in antiquity) was sure what a kurbis

was,

but Drakon and Solon are both said to have inscribed

their laws on 'axones and kurbeis'.

Compare the double paraleipsis (highlighted innuendo

produced by omitting crucial information) in § 2: 'the

age at which he was presented to his phratry' is

presumably meant to imply that this had occurred at a

suspiciously late age (rather than in early childhood, as

was normal, cf. P. OXY. 2538 col. 11 23-8); 'how he

disported himself as a young man' suggests the sort of

sexual misdemeanours of which Lysias elsewhere

accused the younger Alcibiades (Lysias 14. 25-8) and

Aischines accused Timarchos (Aischines 1. 39

-69).

-112-

the compounding preposition hypo- in the term

hypogrammateus (lit. 'under-clerk' or 'under-secretary').

Rather than indicating a precise clerical grade, the term

may instead be a way of referring to any grammateus

who is serving as the regular subordinate to a specified

official (for a possible parallel, see Antiphon 6. 35). This

would serve to sustain the sophistical argument that it is

illegal for a hypogrammateus to serve twice 'τι ẳρXι

τι αυτι (tei arkhei tei autei)' (§ 29). Such a law was

presumably intended to prevent an individual clerk

serving repeatedly as secretary 'to [successive holders of]

the same office', for fear that this would become a

powerbase; Lysias, of course, wishes us to construe it as

a ban on a clerk being continually 'in' the same office. As

anagrapheus, however, Nikomachos does not seem to

have been subordinate to a board of public officials, and

the prefix hypo- here may therefore be deliberately

insulting.

The speech ends with some brief remarks directed

against those unnamed speakers who are expected to

support the defendant (§+§ 31-5). This of course is the

regular technique of the conspiracytheorist: if

Nikomachos does come forward with supporting

speakers, then Lysias has at least prejudiced the jury

against them; if no suppporters appear, then the hearers'

inference will be that the outspoken clarity of the

prosecutor's case has frightened them into silence.

Either way, the speaker has nothing to lose.

It has proved difficult in such a summary to be fair both

to the speaker and to his opponent, because it has to be

admitted that as the material for a charge-sheet, this

does not really amount to very much. There have

admittedly been some (mainly early) scholars who took

at least some of the accusations at face value: Francken (

1865: 205) and Gülde ( 1882: 3) both state as fact that

Nikomachos' father was a slave; and Lamb ( 1930: 609-

10) believes that 'his right to the citizenship . . . appears

to have been doubtful',

studiously ignoring both the

frequency and wildness of such charges in the orators

and also the fact that if the speaker really believed that

Nikomachos was a supposititious citizen, then

____________________

Lamb does however admit that 'the allegation

of servile

birth is not clearly substantiated'. For accusations of

non-Athenian birth in the orators, compare Aischines'

description of Demosthenes as a Skythian (Aischines 2.

180; and cf. Deinarchos 1. 15). The procedures (and

savage penalties) available for use against a non-

citizen

pretending to be a citizen are discussed in Todd ( 1993:

111, 174 n. 9, 199).

-113-

there were available several equally effective and

considerably more convincing ways of proceeding

against him.

The majority of scholars, however, have conceded that

the speaker's accusations are at best tendentious, and

that overall he had a pretty poor case. But this

observation itself evokes a variety of explanations. In

many ways the simplest response is to evade the

problem. With the orators, it was customary among

older critics to explain away the difficulties of any

superficially unsatisfactory text by claiming that it was

something other than the speech it purported to be. Thus

Schultze ( 1883: 27) saw the Nikomachos as an epitome

made by a later reader who did not fully understand

what the original must have been about; and Blass (

1887: 446) insisted that it was a deuterologia, the speech

of a subordinate prosecutor in support of a principal

whose work is now lost. This is the type of explanation

which was supremely popular in the second half of the

nineteenth century. Modern scholars are more sceptical,

not least because we would tend to see problematic

evidence as something that may be particularly revealing

rather than something that needs to be explained away.

What is striking, however, is that such sensitive critics

were dissatisfied with the speech as it stands.

A more sophisticated form of evasion is displayed by the

Loeb editor Lamb, when by implication he claims to

detect embarrassment on the part of the orator: Lysias

'may well have felt ill at ease in attacking a man, like

himself, of obscure birth, but of evident ability' ( Lamb

1930: 611). This raises some interesting questions about

the relationship between an Attic orator and his text;

nevertheless, it cannot be accepted as a satisfactory

explanation of the weakness of the speaker's case here.

Lysias was a shameless man, and it is indeed difficult to

think of any occasion whatever on which he was in any

way embarrassed about attacking anybody.

Perhaps the most common line of interpretation among

twentiethcentury scholars is that exemplified by Albini,

who simply dismisses the Nikomachos as 'a bad speech' (

Albini 1952: 267). But this rests on a dangerous

confusion of two very different propositions: a bad case

is not the same as a bad speech. Indeed, when Lysias'

arguments are analysed, as has been done in this section

of the paper, it is clearly an excellent speech. We have

observed for instance the repeated use of ridicule and

wordplay, and the way in which ambiguous phrasing is

deployed to suggest malpractice on Nikomachos' part. It

requires considerable rhetorical ability to say

-114-

nothing for thirty-five sections, and yet to make it sound

superficially plausible at least on a first hearing. We

might indeed go so far as to describe this as one of the

most skilful of the speeches in the Lysianic corpus. It is

also (with the possible exception of speech 13) the one in

which the speaker seems to have the weakest case.

3. THE NARROW CONTEXT: THE POLITICAL

AGENDA

In order to make sense of the Nikomachos, perhaps the

obvious starting-point is its strongly political agenda. We

have already observed that more than one-quarter of the

speech is given over to a discussion of pious and impious

sacrifices (ü+ü 17-25). It is a striking fact, and one which

has never been adequately explained, that charges of

impiety at Athens often seem to have been highly

politicized.

But this observation raises its own

problems, for to call something 'political' is open to

multiple interpretations.

When I was first asked to contribute a paper about

Nikomachos to this volume, Lin Foxhall the joint

organizer described him in conversation as (I cannot

recall the precise words, but this is the gist) 'the small

man in the middle who gets thumped by the heavies on

both sides'. Now this is obviously a 'political' reading of

the speech; but even though it may contain certain

elements of truth, it seems to be over-romantic as a

general interpretation. It is surely wrong to describe

Nikomachos as a 'small man'. After all, what the speaker

is complaining about is precisely that his opponent holds

an exceedingly powerful position. Nikomachos is

powerful because he is an expert; and yet his expertise is

(ironically) at the same time his weakness: the expert,

particularly the expert upstart, is both dangerously

isolated and therefore hated. This is surely the

underlying reason for the rhetoric about Nikomachos'

slave-origins, of which we shall hear more later towards

the end of this paper. To

____________________

Judgements like this are of course highly subjective,

not least because we do not know what the opponent

may have said ( Todd 1990: 171-2); further parallels

between speeches 30 and 13, and in particular the âir

treatment of Kleophon, are discussed in Sect. 3 below.

We may think for instance of the trials of Sokrates and

of Andokides, of the scandal surrounding the

mutilation of the herms, and perhaps most revealingly

of the case of the sacred olive-stump, in which Lysias'

client makes desperate attempts to hide his politically

compromising presence in Athens under the Thirty

Tyrants (Lysias 7. 4, cf. 7. 9).

-115-

be an expert, and particularly to be an expert in a field

which reires precise technical knowledge of a highly

specialized and literate subject, is by its very nature to

have undergone a lengthy apprenticeship; and yet a

lengthy apprenticeship is characteristic of a slave.

The most thorough and consistent attempt to decode the

political background behind the speech is that of the

American epigraphist Sterling Dow, the man who has

done more than anybody else to make sense of the

fragmentary remains of the work of Nikomachos'

commission, and who has published a series of articles

specifically on the sacrificial calendar.

In one of these

papers Dow broadened his focus to give a general

interpretation of Nikomachos' work and of Lysias'

speech against him; and Dow's analysis is a striking

inversion of what we might have inferred from a first

reading of Lysias' text. According to Lysias, Nikomachos

is an enemy of the democracy and the speaker a patriotic

democrat. In fact, claims Dow, Nikomachos is the

democrat, who has deliberately slanted his calendar of

sacrifices in favour of the common man ( Dow 1960: 291,

and cf. below for details), and Lysias' client is the

representative of oligarchic aristocracy threatened by

this attack on privilege.

Dow's is certainly a bold approach, and it draws

attention to one of the things that is definitely a problem

for Lysias: Nikomachos' record under the Thirty in

404/3 was clearly no more suspect than the speaker's

record under the earlier oligarchy of the Four Hundred.

As we have seen in our discussion of Lysias' arguments

in Section 2 above, the idea that Nikomachos played any

active part in the conspiracy to kill Kleophon is far-

fetched, and even Lysias has to admit that Nikomachos

was in exile under the Thirty. For Lysias to dismiss this

as 'involuntary' is an act of desperation, especially when

the speaker does not attempt to deny that he himself was

in Athens during this period. Indeed, throughout the

speech, and most notably at ü+ü 7-8 and at ü+ü 15-16,

an evoca-

____________________

It was Dow ( 1961) who first observed one of the most

striking features of this inscription, that the sacrificial

calendar as we have it has been inscribed on stones

from which an earlier text has been erased. For a

characteristically bold interpretation of this

phenomenon see Robertson ( 1990: 65-75), arguing

that it is Nikomachos' text which has been erased and

replaced after our trial by one more amenable to the

prosecution. Scholars have, however, traditionally

believed that Nikomachos' calendar has itself replaced

an earlier erasure, made either by the Thirty (

Fingarette 1971) or by the restored democracy in 403 (

Clinton 1982).

-116-

tive silence hangs over the speaker's own activities under

the Thirty.

Despite its boldness, however, Dow's reading of the

speech seems ultimately unsatisfactory. In the first place,

it relies on too schematic a view of Athenian party

politics: we should be very wary of any theory which

assumes that there was a continuing group of oligarchic

politicians operating openly in Athens in 400 or 399.

Secondly, Dow's reconstruction of the case depends on

his prior reconstruction of the sacrificial calendar. He

believes (cf. above) that Nikomachos was being

deliberately selective in his choice of material, and that

he was establishing large numbers of new sacrifices in

which the mass of the citizen-body could participate,

while at the same time suppressing many of the

traditional aristocratic rites. This is a possible but by no

means proven interpretation of the calendar, and it

means that Dow's reading of the speech is at best

speculative. But it is the third weakness of Dow's theory

that is most significant: his reading renders the speaker's

position too weak to be tenable. Questions of procedure

and of tactics need to be remembered here. As we saw in

Section 1above, if the prosecution was by graphe alogiou

then the speaker stood to be heavily penalized if he failed

to obtain one-fifth of the votes of the jury. No such

penalty will have applied, admittedly, if we are dealing

with euthynai or eisangelia. Nevertheless, if this is

indeed a case of eisangelia, then the speaker will have

needed to satisfy the council at its preliminary hearing

that there was a genuine case for Nikomachos to answer

-- and for what it is worth, it should perhaps be noted

that according to Dow ( 1960: 291) the putatively

democratic activities of Nikomachos will have been

exceedingly popular with the equally democratic council.

Above all, however, whether at euthynai or at eisangelia,

considerations of prestige apply. Nobody in his right

mind will bring a case as weak as this against a

defendant who at the time of the trial is wildly popular.

It does not advance your reputation to suffer a

humiliating defeat.

There is, however, a third sense, separate from the ones

we have been examining, in which a speech can be

labelled political: that is, that it was delivered at a time

when the political atmosphere of Athens was highly

charged, and with the intention of exploiting this. With

this in mind, we may usefully examine in some detail the

striking but rarely discussed parallels between our

speech and Lysias 13 Against Agoratos. The latter, as we

shall see, appears to

-117-

be putting forward an equally weak case against a

defendant who seems equally unpopular, although of

course the two defendants are unpopular for very

different reasons. Agoratos, unlike Nikomachos, really

does seem to have been seriously compromised by his

activities under the Thirty.

The most notable parallel between the two speeches is

that the trial of Kleophon is discussed by both, and in

broadly similar terms. Given the allusive brevity of

Xenophon's passing reference ( Hellenika 1. 7. 35), these

speeches are indeed the only surviving sources to

recount this event in detail. Two contrasts, however,

spring to mind immediately. In the first place, the brief

account in the Agoratos (13. 12) is less specific to the

defendant against whom the speech is directed than is

the version in the Nikomachos. For the former, Agoratos

plays no direct part in the episode, in which 'they'

(unspecified) packed a jury and condemned Kleophon in

order to benefit those supporters of oligarchy for whom

Agoratos was allegedly working. Our speech, on the

other hand, has Nikomachos himself supplying the law

which enables the oligarchs so to pack the jury. Secondly,

for the speaker of the Agoratos, Kleophon is simply a

democratic martyr. In the Nikomachos, however, he is a

more problematic figure: there were, it is admitted here

(30. 12), plenty of accusations which could be brought

against Kleophon, but even so, his conviction was a

tyrannical frame-up. This second contrast was noted by

Dover ( 1968: 54), who proposed an explanation in terms

of changes in the political temperature of Athens: the

memory of radical politicians like Kleophon will have

been more problematic at some times than at others.

This is of course possible, but difficulties remain. What

Dover does not remark is that these two speeches must

have been made within a very short time of each other.

The earliest possible date for the Agoratos is spring 399,

and it was probably delivered fairly soon after this.

The

Nikomachos, as we have seen, belongs at some time

during 399: perhaps most

____________________

Loening's earlier date for this speech rests on a dubious

inference from Lysias' failure at 13.73 to discuss the

decree giving citizenship to (some of) those metics who

had assisted in the democratic restoration ( IG II2, 10,

cf. T. C. Loening 1987: 74), and there is therefore no

reason to reject the implication of 13.83 that this case

was heard at least five years after spring 404, giving

the terminus post quem in the text. The majority of

scholars suggest a date in 400-398 ( Blass 1887: 555;

Gernet and Bizos 1195: 186 n. 1; Albini 1952: 93); and

the reference to Strombochides, as we shall see, fits

better if the

Agoratos was heard shortly before than

shortly after the Nikomachos.

-118-

likely is towards the end of the calendar year 400/399,

which would mean the early summer of 399 itself. It has

to be admitted, of course, that the political mood within

a society can change very rapidly. If a week is a long time

in British politics, then it will have been an even longer

time in a political system like that of Athens, which had

considerably more resistance to the idea of in-built

delays and constitutional safeguards. But it is tempting

to propose an alternative reconstruction to that of Dover

to explain the relationship of the two accounts of

Kleophon's trial: that the Agoratos was delivered slightly

earlier that the Nikomachos; that in the latter, Lysias is

adapting material which he already has on file, a general

charge against those oligarchic political bosses whose

activities he has previously used to blacken the

reputation of Agoratos, to suit the more specific (if also

more far-fetched) context of the Nikomachos, precisely

because this material had served so well in the earlier

speech; and that nevertheless, on hearing the jury's

response to the Agoratos, he has realized that his

account there of Kleophon's death had been incautiously

provocative, and that the material could be more

effectively deployed by making at least some concession

to the ambivalence of Kleophon's reputation.

This is of course highly speculative, and the details of the

relationship between the two accounts are marginal to

the argument of this paper. What does matter is the fact

of the relationship between the speeches, and that fact is

supported by other parallels between them. In Lysias 30.

14 we are told (apropos of nothing in particular) that

among other people executed by the Thirty were

'Strombochides and Kalliades'; the subject of Lysias 13 is

the denunciation by Agoratos under the Thirty against

one Dionysiodoros (the brother-in-law of the plaintiff,

and therefore the formal subject of the case, otherwise

unknown), who had been involved in a counter-

revolutionary plot of which Strombochides, one of the

generals, had apparently been the leader (13. 13). Now

Strombochides is attested elsewhere (Thucydides 8. 15.

2, with Gommeet al. 1981: 37), but he is by no means a

politician of the first rank. A possible inference is that

the Agoratos was a recent (and perhaps successful)

cause célèbre at the time the Nikomachos was delivered.

It may also be worth noting here that these are the only

two speeches of Lysias that exploit the rhetoric that the

defendant is 'a slave and the son of a slave' (Lysias 13. 18,

64; 30. 2, 6, 27, 29).

-119-

Whatever the details of the relationship between the

speeches, two things stand out. The two are close in date;

and they are closely related. But it is the date that is

perhaps most significant here: for the year 399 was, as I

have myself argued elsewhere ( Todd 1985: 196-99),

perhaps the blackest of years for political show-trials of

former supporters of the Thirty, and for breaches of the

amnesty of 403/2. This is not, of course, to suggest that

the Nikomachos is in any way an attack on the amnesty,

as the Agoratos blatantly was. The use of mnesikakein at

30. 9. with its innuendo that Nikomachos has somehow

himself been breaking the amnesty and should therefore

experience the same treatment (cf. Sect. 2 above), is an

irrelevance designed to mislead. But the political

temperature of Athens was certainly high in 399; and it

was this fact which will have made certain weapons

particularly handy for a would-be prosecutor. And these

observations may perhaps provide at least the

beginnings of an explanation for what was at first sight

very surprising, that Lysias was so ready to raise the

topic of oligarchy even though his client the prosecutor

was at least as tainted as the defendant.

4. THE BROAD CONTEXT: THE DISCOURSE OF

LAW-REFORM

Perhaps the most interesting feature of the Nikomachos

is the passion which the speaker devotes to the question

of law-reform. As we have seen, Nikomachos' activities

are to be seen either as an integral part of a general

process of legal revision in the final decade of the fifth

century, or at the least as closely connected with that

process. Moreover, this is a process for which we have at

least some contemporary evidence independent of this

speech (not only Andokides I, but also assorted

inscriptions, for which see Sect. 1 of this paper). So the

question can legitimately be posed: why did the

Athenians in the late fifth century decide to revise their

legal system, and what were they trying to achieve by

this? Is it primarily a reform or a rationalization? Is the

process one of codification, or is the aim simply to

compile? In order to explain this, we need to look both at

law itself, and at Athenian perceptions of it. Two points

emerge.

In the first place, the Athenian attitude to law (especially

at the popular level that underlies the arguments

deployed by the orators: we may ignore here the possible

existence of antiquarian scholar-

-120-

ship) was fundamentally non-historical. There was no

real conception that the past is necessarily and

qualitatively different from the present, and no

awareness therefore of anachronism, obsolescence, and

the changing nature of institutions with the passage of

time. What do you do, if as an Athenian dikastes (judge

and/or juror) you are faced by an archaic legal statute in

which some at least of the words have changed their

meaning? Modern legal systems have elaborate rules of

statutory interpretation. In English law, for instance, the

Interpretation Act 1889 rules that unless the contrary

intention appears, the term 'he' in an Act passed after

1850 must be interpreted to mean 'he or she'. Athens had

no such rules, and no truly technical legal vocabulary.

The language of the law was the language of the street.

Consequently the Athenian answer to this problem was

wholly different. Orators were not expected to discuss

the original meaning of the text (indeed, it may be

doubted whether they, or their hearers could have made

sense of this distinction); instead, a text was to be read

according to its natural and contemporary meaning.

That is why, throughout the orators, anachronistic

assumptions are consistently made about the rationale

which underlies various pieces of legislation (eg. Lysias

26. 9; Demosthenes 18. 6, 57. 31; Hypereides,

Athenogenes § 22). The perceived contemporary effects

of the law are assumed to have been the deliberate

intention of the (ancient) legislator, to the extent that on

one occasion we are even told a remark allegedly made

by the early-sixth-century reformer Solon when bringing

a type of prosecution which we know not to have been

instituted until the end of the fifth century

(Demosthenes 24. 212).

There is of course one apparent exception to this rule. In

Lysias to, Against Theomnestos, the speaker quotes a

series of archaic laws, and analyses in detail the original

meaning of various apparently obsolete terms in the text.

At first sight, this would seem to indicate an interest in

antiquarian scholarship on the part of the orator and

presumably therefore of the court; but the speaker's

purpose should be carefully noted. He is prosecuting

Theomnestos by dike kakegorias, a private indictment

against slander. In his defence, Theomnestos did not

apparently deny authorship of the statement that he is

alleged to have made. Instead, he claimed that it was not

actionable because the Athenian law of defamation

penalized only the use of specified words, and did not

cover what he himself had used, synonymous terms. To

us, this plea would appear unusual,

-121-

but it is at least possible that Theonmestos had the law

on his side (thus Hillgruber 1988: 11-17), not least

because Lysias' response is so brilliantly indirect. Rather

than attacking Theonmestos' interpretation of the law of

slander head-on, he instead proceeds to reduce it to

absurdity. If words in legal texts can carry only their

literal and contemporary meanings, he argues, then any

law containing obsolete terms could not be applied,

because such a text would no longer have any meaning;

but in fact it is perfectly clear what is the contemporary

equivalent for a series of terms in the texts which he is

citing; therefore, it is a fundamental principle of law that

words are to be interpreted to include their synonyms,

thereby refuting Theonmestos' defence.

But it is important to notice where Lysias has gone for

his examples here. He does not pick texts in which the

meaning of the words has changed, but those in which

the words are obsolete and therefore have lost their

meaning. And this is surely the point: where a statute is

unclear because the words no longer make sense, then if

you wish to activate that text, you may decide to look for

the original significance of the terms. But this will only

be done for want of a better alternative, and under the

stimulus of needing to win a particular argument: the

hermeneutic of Lysias 10 is without parallel in the extant

speeches of the orators.

If on the other hand the

meaning of the words has simply changed, then the

question does not arise. Even if an orator was aware that

words do change their meanings, it would be impossible

for him to convince his jury to interpret in this way a text

which was already comprehensible to them in

contemporary terms.

This brings us to the second point which can be made

about Athenian attitudes to law: until the end of the fifth

century, there was no hierarchy of norms. All legal

statutes carried in principle equal authority, because

nomos (plural nomoi; literally 'norm', and

conventionally 'law') and psephisma (plural

psephismata; literally 'that which is voted',

conventionally 'decree') were formally equivalent and

interchangeable terms. Any resolution of the fifthcentury

assembly was as such both a nomos and a psephisma.

This system was changed, however, in the course of the

democratic

____________________

This may suggest that the texts in question were

obsolete but formally valid (that is, they were available

to be activated if any litigant so chose) rather than

repealed (cf. also n. 32 below); to repeal a law is, as we

shall discover, a very sophisticated concept.

-122-

restoration in 403, and nomoi were for the first time

granted privileged status over psephismata ( Hansen

1983: 161-77 and 179-206). Thereafter, nomos was

restricted to rules of both general and permanent

validity, psephisma being used to describe temporary

regulations and those applicable only to individuals; no

psephisma could override a nomos, and nomoi could no

longer be changed by simple majority vote, but only by

means of nomothesia, an elaborate and time-consuming

procedure in which the assembly had no final say.

Before the first oligarchic revolution in 411, indeed, there

is no sign that anybody was particularly worried about

the absence of such a hierarchy. There may be some

linguistic sense that rules of certain types ought to be

described as nomoi (thus Hansen 1983: 162), but as a

source of law, any statutory text was as good as any

other. There was however at least a potential problem

inherent in the fifth-century system: what happens when

two statutes contradict each other? How indeed do you

know when such a contradiction is happening? And for

that matter, how do you know what the law is on any

subject at all? It is dangerous to assume that there must

always have been a central archive at Athens where

problems like this could be resolved: indeed, the

evidence suggests that when such an archive was set up

in 403 in the metroon, the temple of the mother of the

gods, this was an innovative and revolutionary step.

Before that date, individual public officials may have

taken portable copies of particular laws which concerned

their own duties, but the law itself was a text carved in

stone, and before 403 such stones were scattered round

the city.

Athenian law (cf. n. 2

____________________

Kahrstedt ( 1938: 25-32) and Harrison ( 1955: 27-9)

argued that the archive in the metroon was first

established in 403; Boegehold ( 1972: 30) would want

to push back this date by a few years, but not before

409. See also Boegehold ( 1990: 162)

for a different but

in certain ways parallel reading to that proposed in this

paper of the complexity and potential chaos created by

the scattered nature of Athenian public records in the

fifth century.

There is a striking indication of this in the Aristotelian

Constitution of the Athenians

35. 2: the Thirty, wishing

to annul the democratic revolution which sixty years

previously had stripped its powers from the Areiopagos

(the old aristocratic council of Athens), 'took down

from the Areiopagos hill the laws of Ephialtes and

Archestratos about the council of the Areiopagos'. This

indicates first that the statute was the stone and the

stone was the statute, and secondly that this particular

law (and presumably it was not the only one) was itself

kept in the place where it could have the greatest

symbolic significance-- in this case, to glare down at

any nostalgic would-

be oligarch on the Areiopagos who

might be tempted to extend his powers.

-123-

above) was organized on the basis of procedure; and it

appears that statutory inscriptions were often erected in

the place where sat the court which had competence over

the appropriate procedure.

Let us suppose, then, that you are a public-spirited

and/or litigious Athenian of the fifth century, and you

think that the activities of a political opponent may be

potentially treasonable. How do you discover the

existence of a statute appropriate to your opponent's

alleged behaviour, given that there are lots of courts with

competence in such matters? You would start perhaps by

looking for the law of eisangelia, and guessing that it was

kept near the office of the thesmothetai, the six junior

archons. Alternatively (if your opponent held public

office and you were prepared to wait until the end of the

year), you could search out the law regulating euthynai,

which you could expect to be kept near the office of the

competent officials, the euthynoi. Or if you suspected

that you could pin a charge of financial mismanagement

also, you could examine one of the laws setting up either

the graphe doron (acceptance of bribes) or the graphe

klopes (theft, probably from public funds). The

possibilities were almost limitless.

What would happen, however, if two litigants produced

contradictory laws, proposing different procedures or

penalties, or offering rival interpretations of a central

issue?

How, in such a situation, should the court

decide to which law they should accord superior

authority? In theory, this could have been done by

means of a hierarchy of statutes, but as we have just

seen, such a system had not yet been established.

Alternatively, the court could have had recourse to the

criterion of comparative dating: a case could in principle

be argued that greater authority should be accorded

either to the later law (because it more closely accords

with current thinking) or to the earlier one (on the

grounds that age confers authority). The system of legal

revision established after 403 to cope with the newly

privileged status of nomoi suggests that given the choice

the Athenians would have preferred the latter option.

Under the

____________________

Eisangelia

and euthynai are discussed as possible

contexts for Lysias 30 in Sect. 1 of this paper. For the

existence and function of alternative methods of

prosecution, see the discussion by Osborne ( 1985) of

the 'open texture' of Athenian law.

This is presumably the situation which underlies § 3 of

our speech. Part of the function of Nikomachos'

commission was to iron out such discrepancies, and it

is therefore not surprising that before they had

completed their task, 'rival litigants produced

contradictory laws in the lawcourts, both sides

insisting that they had received them from

Nikomachos'.

-124-

fourth-century rules of nomothesia, a new nomos could

not be proposed unless all contradictory nomoi were

simultaneously repealed. This, however, is not evidence

for fifth-century practice. Indeed, the epigraphic

evidence seems to suggest that it was not until the last

decade of the fifth century (and the change here may

have been a significant and even a deliberate reaction to

the events pf 411) that Athenian statutory inscriptions

began regularly to record in their prescripts the name of

the archon and thereby to identify the year of enactment.

Under such circumstances, the criterion of

comparative dating would have been wholly

impracticable.

For most of the time, of course, it mattered little that an

Athenian dikastes could not identify the date at which a

particular law had been passed, because the role of law

in an Athenian trial was very different from that in ours.

It was not the function of the court to determine or even

to know the law. Instead, it was the privilege of the

litigant, if he so wished, to bring forward any text or texts

which might support his case. If two litigants bring

contradictory laws, then it is the task of the dikastai to

decide, on the basis of the litigants' arguments, which of

the plurality of available norms best suits the particular

case. This is why there was usually (at least before 411)

no need to repeal laws at Athens: rather than searching

out a law to repeal it, you simply pass a new and

different one.

There are, however, particular situations in which this

situation can create problems. The most notable was the

rise of the first oligarchy in 411, by means of a coup

which was considerably abetted by chaos and confusion

over what the law actually was: which statutes were

valid, which were still valid, which carried greater

validity than others, and could they be legally

invalidated? The oligarchs came to power, as we saw in

Section 1 of this paper, by persuading the assembly to

vote itself out of existence. To facilitate

____________________

For the problem, cf, Rhodes ( 1981: 308). The

grammateus (secretary), the epistates

(chairman), and

the tribe in prytany (who formed an executive

committee of the council) play a part in each assembly-

meeting and so are regularly mentioned in fifth-

century legislative inscriptions; the archon, on the

other hand, even though as the eponymous official he

would serve to date the text, has no status within the

proceedings of the assembly.

Repeal of statutes before 411 is not unknown

(Thucydides 1. 140. 3 considers the possibility of

annulling the Megarian decree), but seems to be

considered only in special circumstances: this is an

additional reason (cf. n.26 above) for supposing that

the laws quoted in Lysias 10 are obsolete but valid

rather than formally repealed.

-125-

this, they first abolished the procedure of graphe

paranomon, the public indictment against the proposer

of an illegal decree. It is striking that this was the only

constitutional safeguard which they needed to

overthrow, and that it could itself be so easily repealed

(Thucydides 8. 67. 2).

It was presumably this bitter experience which provided

a substantial part of the impetus behind the decision to

formalize the status of Athenian law in the decade from

411, a process which culminated in the establishment of

a hierarchy of statutes (and thus of firm constitutional

safeguards for the democracy) in 403.

The scale of the

previously existing chaos can be inferred from the fact

that nobody in 410 seems to have guessed how long the

project would take. Nikomachos and his colleagues were

instructed to complete their task in four months and it

took six years. By 403, on the other hand, the Athenians

had had enough experience not to set formal limits. But

the process of reform is a complex one, which itself

raises several important questions: how far was this an

attempt to codify the law (i.e. to produce a single and

coherent text which should supersede all other sources

of law)? and if such an aim was intended, to what extent

was the attempt successful?

The aim and scale of the reform is a difficult question

with a range of possible interpretations. The chief

problem is that Andokides I, our main narrative account,

is deliberately misleading. The reason for this deceit is

clear enough. Andokides, it appears, was in a peculiar

legal situation after the amnesty of 403: he was accused

in 400 of breaking a ban on his participation in public

religious activity, a ban which had itself been imposed by

the decree of Isotimides fifteen years previously because

of his participation in a major religious scandal. But

because his formal offence was committed not in 415 but

in 400, he was not apparently protected by the amnesty

itself. (He was in fact acquitted, presumably because the

court accepted his plea that it was wrong to activate a

law imposing a continued sanction because of actions

which he had allegedly committed before the amnesty.)

It is not, therefore, in Andokides' interests to be too

scrupulous or explicit in his analysis of the legal

situation. What he does is to subsume the amnesty itself

into a much wider process, to create the

____________________

See, however, Finley ( 1986: 35-40), for additional

reasons why the discourse over the status of law was

already on the agenda.

-126-

illusion of a grand process of reform in which all was to

be new (Andokides 1. 71-89). This begins with the

unification of Athens after Aigospotamoi (sic) in four

stages (§ 73): (a) the decree of Patrokleides (405/4)

reinstating those subject to atimia (disfranchisement:

decree analysed in §+§ 73-6 and quoted at §+§ 77-9); (b)

the recall of unspecified exiles, which, given the date

(405/4), can only refer to the Spartan command to recall

Kritias and his fellow oligarchic revolutionaries (§ 80);

and passing reference to the amnesty itself); and (d) the

decree of Teisamenos (403/2, the background to which

is analysed at §+§ 81-2, and the text quoted at §+§ 83-4).

After this comes a series of supporting laws supposedly

passed to consolidate this process: (e) a law banning the

use of 'unwritten nomoi' (quoted § 85, with specious

analysis at § 86); (f) the distinction between nomoi and

psephismata (quoted § 87); and (g) a law defining the

status of previous legal decisions and legal texts

(selectively quoted § 87).

The main problem with this excursus is that our reading

of Andokides' texts is necessarily conditioned by the

contexts in which he supplies them. In one case, for

example, we happen to possess in Demosthenes 24. 42 a

fuller version of the law quoted at item (g), and this

shows that Andokides' quotation here is selective and

distorting. We have also to allow for the possibility of

specious analysis, as at item (e), where he boldly asserts

that the ban on a magistrate applying an 'unwritten

nomos'

thereby necessarily invalidates an 'unwritten

psephisma' like the decree of Isotimides. But what are

we to make of his central text, the decree of Teisamenos,

and his discussion of it at item (d)? The decree itself

includes provision for (some) laws to be revised or

proposed in a way that involves their being written up on

a wall. Andokides himself claims that when the finished

version had been properly tested it was published 'in the

stoa' (colonnade). Scholars have traditionally interpreted

this as evidence for legal codification (thus e.g.

MacDowell 1978: 46-8). On this view an 'unwritten law'

for the purpose of item (e) would be one that had not

been incorporated into the new code; all the laws

(nomoi) were to be inscribed together on the wall of 'the

stoa' (presumably the stoa of the

____________________

Does this also prevent a litigant from citing such a law,

or a court from listening to it? We have no way of

telling.

-127-

basileus

), and once erected this was to become the

coherent and exclusive source of law at Athens; decrees

(psephismata) were to retain their validity outside the

code, but they would not be allowed to contradict it.

This orthodox picture has however been criticized by

several scholars, most notably in a wide-ranging paper

by Robertson ( 1990), who calls into question not simply

the scope of codification (as does Clinton 1982), but its

very existence. For Robertson ( 1990: 46-9), the crucial

phrases in the decree of Teisamenos refer not to the

permanent inscription of the whole body of law, but to

the temporary posting of individual statutes being

considered for revision. This is a bold reading of the text,

and it may be correct, though Robertson does seem

driven in places to overstate his case, perhaps because

his arguments are so tightly interconnected. He ignores

for instance the widely canvassed possibility that when

the decree states that Athens is to use the 'laws of Solon'

and 'of Drakon', these phrases denote 'the laws of Athens

currently in force', or in other words texts which may

already have been subjected to revision and/or

publication by the anagrapheis during their first term.

He tends perhaps to play down the broad context of legal

reform in Athens from 410, as evidenced by the

appointment of anagrapheis and by the new rules of

nomothesia granting privileged status to nomoi over

psephismata. And perhaps most significant: however

persuasive Andokides was as an orator, it is hard to see

how his audience would have reacted to his remarks

about a general scrutiny of the laws (§ 82) and about the

publication together of those that had been approved (§

85) if, as Robertson's argument requires, these were not

simply exaggerated distortions of reality, but assertions

which bore no resemblance to a process in which if it had

happened, they themselves would have participated no

more than three years previously.

Let us for the moment therefore tentatively assume that

some sort of codification was at least attempted, and see

where that leads us: to what extent could this process

have succeeded? The institution of nomothesia (cf.

above) may be relevant here; this was the

____________________

The stoa basileios was the traditional location of the

axones and kurbeis (whatever these were, n. 19 above)

containing the laws of Solon ( Aristotle,

Constitution of

the Athenians, cf. Rhodes 1981: 134-6). The homicide

law ( Meiggs and Lewis 1988: no. 86, lines 7-

8, cf. Sect.

1 above) had already been erected there; and this is

where scholars have generally located the sacrificial

calendar put up by Nikomachos' commission.

-128-

system introduced in 403/2 to replace a simple vote of

the assembly as the way of enacting new nomoi. To pass

a new law is to change the existing ones, and it is

significant that the need for this was envisaged (if

discouraged by the complexity of the procedure) at the

moment when nomoi were first granted privileged

status. Still more important is the fact that nomothesia

was itself repeatedly emended throughout the first half

of the fourth century. The details are obscure and heavily

disputed ( MacDowell 1975: 73-4; Hansen 1980: 87-8;

Rhodes 1984: 60; Hansen 1985: 359-60), but the general

effect seems to have been to make it progressively easier

to change the law; and an increasing readiness to do this

would be a public admission that codification had frozen

the law in an artificial and unacceptable way. And of

course, if indeed the laws were inscribed on a wall and

not even on free-standing stones, then to emend the code

would have created major physical difficulties. Unlike a

word-processed typescript, an epigraphic text does not

automatically re-format itself.

Hansen ( 1990: 70-1) has observed that there are after

399 no references in our literary sources to the 'laws in

the stoa basileios', as the putative code would

presumably have been described. At first sight, we might

be tempted to respond, 'what sort of references should

we expect?' But certainly if there was a process of

codification, this ought to be the source of the laws cited

in the extant fourth-century speeeches. Unfortunately,

however, the majority of citations in the orators do not

specify their physical provenance: they are usually

introduced simply as 'law' or 'this law' or 'the next law'

(sc. probably in the file of copies which the orator has

provided for the clerk, rather than on the original stone).

But there are some exceptions, and it is striking that

these are not from the stoa basileios. Lysias '. 30, for

instance, quotes a homicide law 'from the stele (free-

standing stone) on the Areiopagos'. The date of this

speech is uncertain, and may be as early as 403: it is of

course possible, therefore, that it was delivered before

the passing of Andokides' 'unwritten nomos' law (= item

(e) above). On the other hand, it is striking that a very

similar phrase is used half a century later in

Demosthenes 23. 22: 'the nomos from the nomoi about

homicide from the Areiopagos (ex Areiou pagou)'.

And

lest

____________________

There is an interesting conflict here with the preface to

the homicide law in Meiggs and Lewis ( 1988: no. 86,

lines 7-8 cited above), which insists that this text is to

be erected in front of the

stoa basileios.

-129-

this should be dismissed as a peculiarity of homicide law,

we may perhaps add the reference in Demosthenes 59.

76 to a law concerning the wife of the archon basileus,

which was written (we are told) on a stele kept at the

sanctuary of Dionysos in the Marshes.

If therefore codification was indeed attempted in the

form which scholars have traditionally accepted, perhaps

the most attractive explanation of its failure would be the

following. Codification had been enthusiastically

accepted as an ideal in 403, as a way of countering the

perceived problems of chaos and incoherence created by

contradictory laws. But codification inhibits change, of

the type that is necessary in any society because of

changing circumstances. What is more, codification

makes change blatant. It had been easy before 411 to

change the law without this being obvious, because all

you had to do was to enact a new law. After 403,

however, change would have been forced into the open.

Every minor alteration to the code would have made

explicit the fact that your society was no longer the same

as that of your ancestors; and to become aware of this for

the first time can be disconcerting. When it came to the

crunch, we might suspect that the Athenians collectively

preferred chaos and a sense of continuity to coherence at

the price of admitting change. But if so, they never

acknowledged to themselves that they were doing this:

codification was never annulled, but simply dropped.

And this might indeed provide us with a context for the

rhetoric of the unchangeability of law. Such rhetoric is

already implicit behind Lysias' repeated jingle in the

Nikomachos (§ 2, § 5, cf. n. 15 above) that the defendant

'has erased some laws and inscribed others', which is

effective precisely because for a virtuous citizen to erase

a law is inconceivable. But it may be significant that it is

the later orators, Demosthenes and his contemporaries

from the 350s onwards, who exploit to the full the claim

that the law is by its nature unchangeable. The whole

point about Demosthenes' famous story about the perils

of proposing new laws in the polis of Lokris

(Demosthenes 24. 139-42, where an unsuccessful

proposal results in the execution of its proposer) is that

law is good and legislative change is bad, and that the

prevention of legal change is the sign of a decently

governed state (polis eunomoumene: contrast by

implication Athens); and this is only the most striking of

a lengthy catena of similar sentiments (Lykourgos 1. 75;

Aischines 3. 37; Demosthenes 20. 104, 22. 25, 24. 5).

We return finally to the person of Nikomachos himself.

It will by

-130-

now have become clear that legal revision is a highly

skilled task, requiring considerable expertise. But

Athenians dislike experts. The point of the language

about hypogrammateis and slave-birth (for which see

Sect. 2 above) is that expertise is the characteristic of the

slave, because it can only be acquired through a lengthy

apprenticeship. Knowledge, of course, is power; and to

be an expert in law is to have a threatening access to

political patronage. This may, incidentally, be one of the

reasons why it was slaves at Athens who formed the

nearest equivalent to a permanent civil service: the aim

was to limit the power of the specialist by isolating and

marginalizing him. Since a slave could not be an

independent political force, it was less risky to have

slaves than to have citizens in those few permanent posts

which were required. A slave's career could if desirable

be easily terminated, because it was in nobody's interests

to protest. It is in this context, indeed, that Lin Foxhall

may have been correct (see the start of Sect. 3 above) to

see Nikomachos as the figure in the middle who is

attacked from all sides: he is the expert who has reached

a dangerous eminence; dangerous because he is isolated;

isolated because he has risen by means of his expertise,

and without the customary networks of political support.

We saw at the outset that we do not know the result of

the trial. But if Nikomachos did lose, despite the fact that

the prosecutor's case against him was as weak as we have

seen it to be, then we may now be able to see why; or at

least, to see why the threat that he faced was indeed a

serious one. His would have been the fate both of the

'expert' in Athenian law, and more specifically of the

Cexpert in Athenian law'.

-131-

The Law and the Lady: Women and Legal

Proceedings in Classical Athens

LIN FOXHALL

1. INTRODUCTION

The title of this paper is derived from Wilkie Collins

virtually unknown legal thriller, The Law and the Lady.

In Collins's novel the heroine persistently accumulates

sufficient evidence to change a Scottish verdict of 'not

proven' to 'not guilty' in the case of her husband, accused

of murdering his first wife. True love, of course, wins out.

But though the plot turns on a peculiarity of Scottish law

(the possibility of delivering a verdict of 'not proven'), it

derives its real interest and poignancy from the brave

struggle of a woman in a man's world of detection and

lawcourts.

Hence my appropriation of Collins for the title of this

paper, for in classical Athens lawcourts undoubtedly

belonged to the world of men. For some ( Cohen 1987;

Schaps 1979) that is the end of the story, and women are

perceived simply as having no legal rights, though even

more subtle pictures of ancient social life ( Cohen 1991:

41-97) leave no place for women in the world of the

lawcourts. But, as just ( 1989: 28) has also recently

noticed, there are a lot of women about in surviving

lawcourt speeches. There is a further problem, too, in

understanding the relationships of women to legal

proceedings in classical Athens, and that is the 'location'

of law itself in Athenian social life (and even political life,

in a broad sense), and the meanings of law in Athenian

world views. This problem has not been tackled by

scholars of Greek law because for most the answer is

'obvious' -- law was 'very important' and meant more or

less the same thing it does in our society. That is,

Athenian law consisted of fairly straightforward rules

which (a) governed people's behaviour and (b) served as

an impartial standard against which norms were

established and disputes were settled. Women's

-133-

lack of involvement has therefore been understood as (a)

indicative of their lack of involvement in communal life

in general (or at least the bits that 'really' mattered), (b)

their derivative familial identities (as opposed to the

personal, individual identities of men) (just 1989: 27,

Schaps 1977, 1979), and (c) their status as passive

victims of male affairs (see just 1989: 29). For classical

Athens I am not at all sure any of this is 'obvious' or true,

and the problem provides an interesting case-study for a

larger issue within social theory, that of the location of

law and the meaning of 'legal' behaviour in societies

other than our own.

This paper, then, will be concerned with two different

but related issues. The first is really an anthropological

problem: is 'law' a valid category of behaviour to apply to

societies other than our own, and if so, what does it

mean? The second issue, the relationships of women to

legal procedure in classical Athens, can only be

addressed in the context of the first. My primary

contention is that if it is assumed that 'law' means more

or less the same thing in classical Athens as it does to us,

then it would appear that women are irrelevant to legal

processes. But if we question whether law is 'located' in

the same places as for us, whether legal behaviour has

the same or different aims, and whether legal structures

integrate differently with other social and political

structures than in our modern world, it becomes less

easy to discount the actions of women.

2. OTHER PEOPLES' 'LAW'?

Once upon a time in anthropology, the study of

'primitive law' was a theoretical motorway, with many

famous travellers cruising on it: Meyer Fortes, E. E.

Evans-Pritchard, Lucy Mair, Max Gluckman, Paul

Bohannan, and so on. Now it has become a quaint,

grassy byway of anthropological theory, and the pathway

peters out with S. Roberts ( 1979). The reason for this is

that anthropologists' ideas about how societies work

have changed since the heyday of structural

functionalism. Under the influence of social theories

inspired by structuralist, post-structuralist, and post-

modernist thought, the idea that social behaviour is

'regulated' by 'norms' and 'rules' which are obeyed or

contravened has for the most part been bypassed by

anthropologists. Norms are seen as something to be

manipulated within a larger social environment, by

actors within

-134-

a 'habitus' (in the terminology of Bourdieu 1977, 1990),

not as regulators of collective behaviour.

For the study of so-called 'primitive law', this has created

a problem. If society does not consist of rules and norms,

then what significance does formal law have in societies

where it exists? And does it exist at all in 'stateless'

societies? For the most part the problem has been

evaded in recent years either by ignoring the existence of

formal law (even when 'stateless' societies are embedded

within modern nation states), or explaining it away as a

colonial intrusion, that is, systems which have been

externally imposed on the Third World by the West

(see,for example, the currently popular view that African

'customary' law was largely a construct of and reaction to

colonial control).

Marilyn Strathern( 1985) has produced a sophisticated,

wellargued explication of arguments which are often

only fuzzily implicit in the work of other anthropologists.

This thought-provoking article also highlights the

problem of trying to apply a category of behaviour like

'law' to a society other than our own, and this has

important implications for considering the meaning and

location of what we call law in the ancient world. The

core of Strathern's argument is that anthropologists have

seriously misunderstood dispute settlement processes,

'customary law', and other kinds of publicly expressed

norms when they have construed them as something

analogous to our own concept of law. For us, law is a

regulatory mechanism, separable as a category of

behaviour from other aspects of life, with peacefulness

and orderliness as its goal. Inherent in this notion of law

is the assumption that a static state of peace and order is

the ultimate aim of society. While this assumption might

be valid for our society, Strathern argues, it is not valid

for other societies (especially 'stateless' societies), and

she uses her work among the Hagen people of Papua

New Guinea as a counter-example.

Strathern suggests that two notions inherent in modern,

Western state societies, especially in Western social

science, are responsible for anthropologists'

misapprehension of primitive law. The first is that 'parts

of life are seen to offer commentaries on other parts' (

Strathern 1985: 112). In other words, because some

behaviours or aspects of social life are perceived as

descriptive of other behaviours or aspects of social life

(in her words, providing a commentary), the description

can be isolated from the behaviours so

-135-

described without affecting the described behaviours.

Described behaviour is thus a finished chapter, no longer

in continuum with its description, but detached from it.

For anthropologists the study of symbolism is the prime

example of the detachment of 'commentary' (that is

describing behaviour = the symbol) from described

behaviour (what is symbolized), but law provides

another instance of the separation of commentary from

described behaviour (i.e. the recounting of a dispute in a

formal context can be -- in our termsseparated from the

past and future events of the dispute itself).

The second notion, which follows on the first, is that

behaviour in other societies is treated by social scientists

as if it were hierarchized, with one set of behaviours

perceived as shaping and controlling another. That is,

norms expressed in dispute settlement procedures are

understood by Western observers as defining and

regulating other aspects of life, in the way that we often

understand laws in our society to operate.

Strathern maintains that neither of these two notions, (I)

'privileged' behaviour as commentary and (2) behaviours

as hierarchized, is appropriately applied to Hagen, for

whom conflict, not peacefulness, represents the desired

social end. This conflict largely expresses male collective

behaviour, and certain kinds of relationships or non-

relationships with other men. Public 'dispute settlement'

processes are only one arena in which male conflict is

expressed: the endemic tribal warfare traditional in

much of Papua New Guinea is another manifestation.

Dispute settlements (in which legal/moral norms are

publicly expressed), she argues, have more to do with the

creation than the elimination of discord. They provide an

arena in which men can push their luck with people with

whom they do not have a proper exchange relationship,

and hopefully make themselves look good at another's

expense. Moreover, the public gathering at which the

dispute is aired is not separable from the events of the

dispute itself, much less from future conflict (such as

inter-village raids) which may ultimately result from it --

it is only one, unprivileged, part of the ongoing flow of

normal social conflict. Although women most certainly

become caught up in social conflict, the norms expressed

in public dispute procedures have little relevance to

them, since this is an arena in which women play no

part. Hence, Strathern argues, there is no hierarchical

relationship of authority between publicly expressed

norms and the domestic lived reality of women and men.

-136-

Although much of Strathern's argument is persuasive,

she has formulated it as too stark a contrast between 'us'

and 'them'. The anthropological opposition of the culture

which is the object of study with an undifferentiated

modern West is a kind of vestigial structural dichotomy

that has got left behind in a world of postmodern theory.

This approach precisely does not account for the kinds of

societies we study in the ancient world, which are neither

modern, nor Western, nor 'primitive'.

The states of the ancient Mediterranean and Near East

bear little relation to modern states. None the less, the

formal, structured behaviours which we identify as 'law'

in ancient societies in most cases really are analogous to

what we mean by 'law' in modern Western Europe or

America. For Greek city-states, is is clear that legal

behaviour does stand in a hierarchical relationship to

other behaviours, and does shape lived life, although not

in the same ways or perhaps to the same extent as for us.

Law is much more than norms expressed in one kind of

public arena, with these norms having little relevance to

the rest of social life, as Strathern asserts for Hagen.

But it is undoubtedly the case that Strathern's other

propositions do apply to the location, integration, and

aims of legal discourse in Greek city-states. I would

argue (though not in detail here) that social regulation

and harmony was not the chief aim of legal behaviour as

it was practised in classical Athens (as opposed to the

way in which it may have been ideologically construed).

Lawcourts were one of a number of arenas in which

males competed with each other, often on behalf of their

households (to whom this arena might not be directly

accessible). Disputes could be created specifically to be

played out here for the sake of competition. Moreover

(and this is where the role of women becomes

significant), behaviour in a court of law both instigated

and manifested relationships and/or non-relationships

among the opposing parties and their supporters. It was

not a detached description of behaviour that was a

finished chapter. The trial was only one stage of a larger

social process in which continuing conflicts and alliances

were expressed, and it was fully expected that these

would also be acted out in the future in other arenas as

they had been in the past. Women frequently had major

roles to play in the pursuit of conflicts and competition

in these other arenas. But in contrast to Hagen, they

cannot be perceived as irrelevant to lawcourts, precisely

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because a hierarchical relationship between legal and

other social and political behaviour does operate in this

society. I would argue, then, that for classical Athens

legal action is not merely 'descriptive' of other

behaviours and thus detachable from other aspects of

social life, but it does stand in a hierarchical relationship

to them. To use Clifford Geertz's terminology, laws 'do

not just regulate behaviour, they construe it' ( Geertz

1983: 215).

Geertz's attempt to approach comparative law ( 1983),

like Strathern's work, reflects the unease felt by

anthropologists over the last ten years or so in dealing

with legal systems, and discontent with past functionalist

approaches to this area of enquiry. In one important

regard Geertz is of more interest to those of us studying

the ancient world than Strathern, for he is most

concerned with legal systems in Morocco, Bali, and Java,

societies which, like classical Greece, are neither

primitive nor modern nor Western. Hence he does not

divide the world into 'us' and 'them' in quite the way that

Strathern does, but argues for a plurality of meanings of

law and a variety of culturally specific locations for legal

action.

Geertz's main interest in law is as a symbolic system (a

slip into the anthropologist's behaviour-as-commentary

mode of the kind that Strathern rightly criticizes), and as

a performance of a socially constructed cosmology.

Hence his entry-way into law is via keyword concepts:

haqqin the Islamic world, dharma in the Indic world,

and adat in Malaysia (analogous to terms in Greek like

nomos, 'law, custom' and dike, 'justice'). His analysis is

consequently heavily semantic, semiotic, and ideological.

His main point is the different ways in which three

cultural interpretations of law, the Islamic, the Indic,

and the Malaysian, connect 'fact' and 'law'. For Geertz,

'fact' is action as expressed in the indicative mood

('as/therefore'), while law is life as expressed as

conditionals, in the subjunctive ('if/then'). Law, he

argues from this viewpoint, is one facet of a cosmology,

which, because of its cosmological significance,

formulates (and does not merely reflect) other aspects of

social life. While this approach locates law firmly in

relation to cosmologies and ideologies, it falls short when

it comes to locating the habitus of law, i.e. its everyday,

lived-out relationship to the rest of social life. This

approach masks the fact that the ideology and expressed

principles of law in the abstract may be very different not

only from the praxis, but also from the ramifications, of

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legal behaviour. And founding and finding law in

expressed moral principles encourages his assumption

that order and harmony are the genuine intended aim of

legal systems (though he certainly questions the notions

that law is about 'rules' or 'dispute settlement'). Also, by

perceiving law through expressed moral principles and

ideals he has also enhanced the notion that law belongs

to men, thus downplaying the role of women.

Geertz's approaches have been more fully and rigorously

developed by Rosen( 1989, 1983), who has studied the

workings of Islamic law 'on the ground' in Morocco from

the point of view of being an anthropologist as well as a

full-fledged American lawyer. He too shies away from

the notions of 'dispute settlement' and 'social control'.

Like Geertz, he seizes on the relationship between 'fact'

and 'law', pointing out that (I) legal decisions can be

creators of 'fact', and (2) notions like 'fact' and 'truth'

have culturally specific 'common-sense' definitions.

Since one culture's common sense is not the same as

another's, concepts like 'justice' and 'truth' must also be

culturally specific.

Rosen argues that in Islamic Morocco there are three

groups of concepts which locate law as a part of culture.

First is the notion of 'aqel and nafs -- reason and

passion. These are qualities inherent in all adult humans,

though men 'naturally' incline toward the former and

women toward the latter. Second is the notion of origins,

asel, origins/patrimony/descent, which locates where

one belongs in the social world. Third is the notion of

haqq, which we have already met with Geertz, 'right,

duty, truth, reality'.

Law in general, he argues, is like religion: 'a kind of

metasystem which creates order in a universe that is

often experienced in a more disorderly way' ( Rosen

1989: 17). Law is founded on notions of bargaining and

contract which, he argues, pervade social life. The near

reduction of law to behaviours of bargaining and

contract highlights the implication that the goal of law is

systemic harmonious normality.

Paradoxically, this analysis mirrors Strathern ( 1988)

and other anthropologists (e.g. Herdt 1987) in their

near-reduction of Melanesian public rhetoric and other

behaviours to exchange relationships. It is clear that

bargaining and contract are core cultural concepts in the

Islamic world, as is exchange in Melanesia. As specially

significant and pervasive metaphors they may also

descriptively construe behaviours. But I am uneasy with

the

-139-

understanding that they explain behaviours, or that they

can be used to 'locate' law.

The general point of this very over-extended preamble is

that neither anthropological theories of law nor

empirical studies of law in classical Greece have

satisfactorily explained what law is really all about in

Athens in the fifth and fourth centuries BC, though Todd

( 1993) has gone a long way toward filling that gap on the

classical side. The much smaller point I want to make

here is that the roles played by women in exclusively

male legal structures, and the significant role of legal

action in womens' lives, highlight the inadequacy of both

classical and anthropological explanations for the

meaning and location of law in that society. As we shall

see, it should not be assumed that women were only

passive victims of men in the world of law. Of course law

in Athens was about exclusion, not only of women, but of

many others who were not male citizens. None the less

women are there. The precise ways in which women

impinge on the legal arena in classical Athens is the

subject of the remainder of this paper.

3. WOMEN AND THE LAW

Women confronted legal structures in Athens, both as

objects and as subjects, in a number of different ways.

For convenience I shall discuss them under four

headings (though this is an oversimplification). First and

most fundamentally, women of citizen status had a legal

status which could be called into question. Although

these women had a political persona (without the right

to exercise it, of course), the legal aspect of this political

persona was essential in creating the political status of

their households, their sons and daughters, and

upholding the citizen status of other male relatives and

affines. Hence women are frequently mentioned in cases

where legitimate birth and/or citizen status is

challenged.

In [ Demosthenes] 59 (Neaira), for example, an alien

woman is accused of passing her children off as

legitimate Athenians, and this implicates the man

cohabiting with her, who is the real target of the

accusers. However, in Demosthenes 57, the speaker

spends much time defending his mother's legitimate

citizen status, most obviously to defend his own citizen

status, but also for the sake of her honour as well.

Similarly in Aischines 2. 172-3, the citizen sta-

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tus of Demosthenes' mother is called into question, thus

implying that Demosthenes' own citizenship is doubtful.

From the lawcourt speeches we only have the men's side

of the story. But in a world in which households

competed with each other constantly for social and

economic advantage, it must have been the case that the

women took such accusations to heart as much as the

men, and that they were used as weapons against other

women in female networks. For example, some

sacrifices, festivals, and religious offices and duties were

only open to women of citizen status and/or of untainted

character, so women whose citizenship or reputation was

dubious would have been personally and directly

affected. Such disparaging courtroom allegations would

not have been felt only by the men in their lives. I have

no doubt that such women would have used any means

within their power to clear their names. Hence, such

contentions about women in court must have had

considerable ramifications for women's lives and

relationships outside the courtroom. A good example of

this appears in [ Demosthenes] 59, where the daughter

Neaira, a woman of ill repute, is disgraced by having her

marriage to the basileus archon (the chief religious

magistrate of Athens) dissolved because she is deemed

not to be of citizen status. This must also call into

question the assertation that women's social identities

were in some way more 'derivative' of household and

family than men's.

The second most obvious way that women appear in

court (literally in this case) is when they have been

accused of committing a crime. Not surprisingly, this is

rare, since it was neither a position in which women

wished to find themselves nor one in which their men

wanted them to appear. The best-known cases are [

Demosthenes] 59 (Neaira) and Antiphon I(the wicked

stepmother), but other cases are attested (e.g.

Demosthenes 57. 8). And the corollary of the

undesirability of the situation is that accused women are

brutally treated by their opponents in court. Women who

are not on trial can also be subject to brutal accusations

from their legal opponents or those of their menfolk.

Apollodoros' slander of his own mother, Archippe ([

Demosthenes] 45) when she chose to support her

younger son and her husband against Apollodoros; or

Andokides' nasty attack on Chrysilla, the wife of

Ischomachos (who is also the virtuous wife in Xenophon

Oikonomikos, Harvey 1984), provide interesting

examples of this. Again, although it could be argued that

in the courtroom context

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men may be using women to attack other men (though

this is hard to see in Apollodoros' case), the fact remains

that women would most certainly have known of such

accusations of themselves or other women, and hence

their own, everyday relationships with other women

(and men, for that matter) would have been affected by

courtroom proceedings, regardless of the truth of the

allegations or possibly even the outcome of the case. The

ability of Archippe or Chrysilla to compete effectively

with other women on their own behalf and for the sake

of their households would have been jeopardized by

unpleasant allegations in court (whether their names are

mentioned or not is irrelevant to the fact that most of the

audience will know who they are). And perhaps this was

part of the intention of the accusers.

Third, and more difficult, is the extent to which laws (as

supposedly impartial norms) designed to regulate the

lives of women at a formal level actually operated at the

level of everyday life. For the wealthy women for whom

we have most evidence there are sometimes glaring

disparities between legal formalities and lived realities.

Hence, despite the fact that there was apparently a law

that women could not dispose of more than the value of

one medimnos of barley ( Isaios 10. 10), Archippe ([

Demosthenes] 45) owns and manages a

synoikia(tenement house), the wife of Polyeuktos (

Demosthenes 41) was in charge of many large-scale

financial transactions, and Demosthenes' mother is said

by Aphobos to have had control (kyria) of 4 talents in

cash ( Demosthenes 27. 53, 55; 28. 47-8). On the other

hand, although there is no surviving law that prohibits

women from owning land and real property in Athens,

and I think there never was such a law (contra Schaps

1979, Cohen 1987, and others), it is clear that wealthy

women usually owned moveable rather than real

property, though a few instances of the latter are known

(see Foxhall 1989; also a horos (an inscribed stone-

marking property serving as security on a loan) that was

probably securing a house owned by a woman, Finley

1985: 192, no. 175A). In this case social preference was

frequently stronger than legal right. Indeed, even in the

question of citizenship, legal rules could be bent, when

wealthy and influential men wished to register

illegitimate children or children who were not their own

on phratry and deme registers as citizens (e.g. Euktemon

in Isaios 6. 21-5 registers an illegitimate son as a citizen,

and makes a deal over the inheritance with his legitimate

son so that

-142-

the latter will not object; Stephanos in [ Demosthenes]

59. 38 is alleged to have bragged that he could do this for

the children of Neaira). Hence, although formal law

clearly affected the way people lived their lives, and their

relationships to others, it is also clear that in many

circumstances laws were circumvented or ignored (as

well as dubiously or even incorrectly cited and applied --

e.g. Demosthenes 43, Isaios 10. 10), and many

ambiguities in the status of relationships, persons, and

property resulted.

Fourth, it is interesting how many disputes which

become court battles between men seem to have begun

as quarrels between, involving, or even generated by

women. [ Demosthenes] 45, mentioned above, is a case

in point: Apollodoros' battle was at least as much with

his mother as with Phormion, his opponent. Similarly in

Demosthenes 41, the scenario is clearly one of two sisters

(who have no brothers) fighting over the division of their

patrimony through their husbands, in court. In fact, the

younger of the two sisters, Kleiokrateia, who was

married to the defendant in this case, seems to have been

financially successful enough to dedicate in her own

name a statue made by Praxiteles to Demeter and Kore (

Shear 1937: 341).

In [ Demosthenes] 55 the dispute at issue was whether a

wall built by the speaker had blocked a seasonal

watercourse and caused flooding of his neighbour's

property when a heavy rainstorm occurred. The quarrel

escalated into a lawsuit. But the real source of flame-

fanning in this case is made clear at 55. 23 -5, 27, where

it is related that the defendant's mother visited the

plaintiffs mother after the event, and the two women

argued (the defendant's mother maintained the damage

was trivial). The speaker (who is the defendant)

challenges his opponent's mother to swear an oath that

the damage was serious, for his mother is willing to

swear that it was not (55. 27).

Indeed, oaths, or rather the offer of an oath, frequently

constitute a means by which men 'involve' women in a

court case and insert their testimony or alleged

testimony (cf. Thür, this volume). It is interesting to

speculate to what extent the impetus for such

interjections came from the women themselves. Or did

husbands simply invent what their female relations

'ought' to say, without consulting them? Surely both

scenarios are equally likely and both must have occurred.

But it is noteworthy that in the one case in which a

woman is reported to have actually sworn an oath

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( Demosthenes 39. 3-4) she apparently took matters into

her own hands and betrayed the man on whose behalf

she was swearing.

The best-documented dispute, with resulting court cases,

which was incited by a woman is Demosthenes' recovery

of his patrimony from his dishonest guardians (

Demosthenes27-30). However impressive we may think

Demosthenes' rhetorical abilities for a young man, the

real heroine of this social drama is his mother,

Kleoboule. Her role in the events after the death of

Demosthenes' father has been plausibly and perceptively

analysed by Hunter ( 1989), and my reconstruction of

those events differs from Hunter's only in minor details.

Kleoboule had probably nagged and primed

Demosthenes for years to take court action as soon as he

came to manhood so as to vindicate her. Indeed, for the

earlier events, Demosthenes was explicitly dependent on

the information provided by his mother (

Demosthenes27. 40, 28. 26, 33), and on several

occasions his evidence is supported by her readiness to

swear oaths (29. 26, 33, 56).

Demosthenes' father (also named Demosthenes) had

died when he was 7 and his sister was 5. His father made

a will, which he validated on his deathbed, that his

sister's son, Aphobos, was to marry his widow,

Kleoboule, who brought with her a large dowry, and he

was to have the house to live in until Demosthenes grew

up. The elder Demosthenes' brother Demon's son,

Demophon, was to marry his daughter ( Demosthenes'

sister) when she came of age, bringing with her an even

larger dowry (though the prospective husband would get

hold of the money immediately). These two nephews,

Aphobos and Demophon, were with Demosthenes'

father's friend, Therippides, to be joint guardians of the

considerable property of his son ( Demosthenes) until he

reached maturity (seeFig. 5 for family relationships).

After the elder Demosthenes' death, Aphobos moved into

the house, got hold of Kleoboule's dowry, and started

dealing with the household's resources in a way to which

she strongly objected. By rights, Aphobos ought to have

been her kyrios, but she clearly appealed to an

alternative kyrios, Demochares, the husband of her

sister Philia ( Hunter 1989: 40). When Demochares

queried Aphobos about his behaviour, the latter said he

was just having a spot of bother with her over the

jewellery (27.15), but it would all be sorted out. Shortly

afterward, Aphobos moved out and kept hold of the

dowry belonging to Demosthenes' mother, Kleoboule, for

the next ten years, until Demosthenes came of age and

prosecuted him

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FIG. 5 Family Relationships of the Persons involved in

Demosthenes' Inheritance Dispute (Demosthenes 27-30)

for its return and for mismanagement of his estate.

Demochares did nothing (legally at least) to help his

sister-in-law throughout this period.

Demosthenes also alleged that Aphobos, Demophon, and

Therippides mismanaged his estate, and did not lease it

out to the highest bidder (ideally an impartial third

party) as was 'normal' practice for the estates of orphans

in Athens, although it is notable, and perhaps odd, that

Aphobos was never prosecuted by any of the potentially

interested parties (such as Demochares) for this under

the legally available provision of the procedure known as

phasis ( Harrison 1968: 115-17; MacDowell 1978: 94;

Todd 1993: 41, 119). In addition, Aphobos remained

unmarried until just before Demosthenes reached

manhood and full citizenship, whereupon he married a

woman who was already married, the wife of

Timokrates, daughter of Philonides of Melite and sister

of Onetor.

Of course we do not have all the facts in this case, for

only one

-145-

side of the story survives. But the simplest explanation of

some of these rather odd events is that the situation was

not, as Demosthenes skilfully implied (but did not say

outright), that Aphobos refused to marry his mother, but

rather that his mother gave Aphobos the boot and

refused to marry him.

Demosthenes' mother, Kleoboule, and her older sister,

Philia, were the daughters of the eminent but notorious

fifth-century BC general Gylon. Although Gylon seems to

have spent much of his life outside Athens, his two

daughters (who were epikleroi, i.e. girls with no living

brothers or father) both married Athenian citizens and

lived in Athens ( Hunter 1989: 40). Kleoboule seems to

have been a very tough lady. As I reconstruct events,

when the elder Demosthenes died, his wife reckoned that

the interests of her marital household, her children, and

herself were not those of Aphobos. She refused to marry

him and sent him away, but not before he had got hold of

her dowry money. Why did Aphobos remain unmarried

until just before Demosthenes reached maturity?

Because that way he could claim it was all her fault. And

also he could not easily be prosecuted for the return of

the dowry, since, he could say, he was ready to marry her

at any time -- perhaps he even hoped to do so. But, just

in case, he seems to have had a potential wife waiting in

the wings, Onetor's sister, who had been married to

Timokrates 'temporarily' until such time as Aphobos

might claim her. Had Aphobos actually managed to

marry Kleoboule, Onetor's sister would at least have had

a husband, though perhaps one not quite so rich or

prestigious as Aphobos. Significantly, she was married to

Aphobos directly from the house of Timokrates, who was

apparently a willing party to the arrangement (

Demosthenes 30.11). And, according to Demosthenes

(30. 7 ff.), Timokrates kept the principal of her dowry

and paid a special discount rate of interest to Aphobos.

This was presumably not, as Demosthenes accuses,

because Onetor did not trust Aphobos with the dowry

(30. 10), but because the whole thing was a scheme

cooked up by Onetor and Aphobos, with the compliance

(for remuneration) of Timokrates. Aphobos only seems

to have married this woman when he no longer had any

hope of marrying Kleoboule, the mother of

Demosthenes.

Similarly, Aphobos managed not to lease out the estate (

Demosthenes seems to reckon this is largely Aphobos'

fault), or to be prosecuted for this omission. Had he

married the widow and

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become Demosthenes' stepfather it would not have been

expected that he lease out the estate, since now he would

have been part of the household (see,for example,

Isaios9. 28-9, where it seems to be assumed as normal

that a stepfather should manage his stepson's

patrimonial estate). If Kleoboule had appealed to her

brotherin-law, Demochares, as an 'alternative' kyrios, to

take legal or some other kind of action on her behalf,

there is probably little that he could have done for her or

her household even if he had been willing, if the

situation were that she refused the marriage on offer.

This may also explain why she was never married to

anyone else, for the family was still quite wealthy,

despite the alleged 'theft' of the dowry and other

property. And Demosthenes' statement that his mother

voluntarily took on a life of widowhood for the sake of

her children (28. 26) is probably also explained by her

refusal to marry Aphobos.

That Kleoboule remained in economic control of the

household for these ten years is quite clear, as she was

able to supply Demosthenes with detailed accounts of

the family enterprises over this period (cf. Hunter 1989:

43-6). It is also suggested by Aphobos' accusation,

repudiated by Demosthenes ( Demosthenes 27. 53, 55;

28. 47-8), that she was managing 4 talents handed over

to her by the elder Demosthenes.

It is interesting to compare the story of Demosthenes'

fatherless household with that of the orphans in

Lysias32. It is difficult to be sure of all the details here,

since the speech is incomplete. But the similarity of some

of the circumstances emphasizes the significance of the

differences between the two cases. Diogeiton and

Diodotos were brothers who, on the death of their father,

divided the moveable property but not the real estate

(seeFig. 6). Diogeiton had an only daughter, and since

his brother had done well in shipping with his share of

the inheritance, he encouraged her marriage to

Diodotos. This couple had three children, two sons and a

daughter. When Diodotos went off to fight in the

Peloponnesian War, as was customary he made a will

and arranged his affairs in the event of his death.

Allegedly, he left 5 talents and other assets in the charge

of Diogeiton, as well as 7 talents 40 minas in outstanding

bottomry loans (his children's patrimony, for Diogeiton

was their guardian). He also left a dowry, a trousseau

('the contents of the room'), and a separate cash

inheritance for his wife, and a dowry for his daughter

(the speaker is the husband of this daughter) ( Lysias 32.

4-8).

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FIG. 6 Family Relationships of the Persons involved in

Lysias 32

Diodotos was killed in battle at Ephesos. After his death,

his wife was married off to Hegemon, supposedly having

accepted a lower dowry than she had been bequeathed

(32. 8). Subsequently children were born of this union

(32. 13). The elder of the two sons of Diodotos and

Diogeiton's daughter did not attain his majority until 8

years after his father's death, and when he did he was

told that none of his father's money remained (32. 9).

For a year or so after their father died these children had

lived with Diogeiton, then they were moved out to

another house (32. 8, 16). It would be interesting to

know whether this coincided with the remarriage of

Diogeiton, a union which also produced offspring (32.

17). When the elder son came of age and was thus

entitled to claim his inheritance, Diogeiton informed him

and his younger brother that their patrimony had been

legitimately spent on their maintenence. The two

brothers then rallied their brother-in-law, the speaker, to

their support-it is possible the two brothers were even

living with the speaker and their sister (though this is

speculation).

The interesting difference from Demosthenes' case is the

behav-

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iour of the mother ( Diogeiton's daughter), and the

contrast between that behaviour and the image of it

promoted by her sonin-law, the speaker. Kleoboule,

Demosthenes' mother, in actuality retained the position

of head of her late husband's household, despite all

attempts to dislodge her from it. Diogeiton's daughter, in

contrast, forfeited any authority she might have been

able to claim to her father. The fact that she was fobbed

off with a smaller dowry than that to which she was

entitled suggests either that the speaker is lying (which is

perfectly possible) or, perhaps more likely, that she had

neither the courage nor the wits, nor perhaps the

resources of Kleoboule, and simply submitted to her

father.

None the less, her supposedly courageous defiance

against this unjust authority (a fabrication in my

opinion) was central to the case of the children.

According to the speaker, Diogeiton's daughter was

appealed to by her eldest son by Diodotos, and the sons

and their mother entreated the speaker for assistance.

But it was the speaker who organized the gathering of

relatives (including her second husband, Hegemon) at

which Diogeiton's daughter allegedly made her stirring

speech, brought forward proofs that her children by her

first marriage had been defrauded, and offered to uphold

them by oath. The account of this meeting makes it

sound very staged, almost as if she had been given a

script by the children of her first marriage and her son-

in-law. The unfortunate reality for these children was, I

think, that after the remarriage of their mother and their

grandfather/uncle, and the birth of children to both of

these unions, no one with any serious political persona

(except the man married to the daughter of Diodotos)

had any interest in the integrity of the natal household of

Diodotos' children, and they were effectively surplus to

the households to which they were most closely related.

Here it would seem that these children suffered precisely

because their mother was not strong-minded and

independent like Kleoboule, but instead conformed to

the male ideal of female submissiveness.

4. GUARDIANSHIP: WOMEN AND LEGAL

AUTHORITY

These complicated cases bring up two other aspects of

women's involvement in and manipulation of legal

institutions. The first is the issue of kyrieia,

'guardianship'. the second is the issue of women as the

victims of male machinations. The surviving lawcourt

-149-

speeches suggest that kyrieia is a much fuzzier, less

formalized institution than social and legal historians

have generally thought (compare also the excellent

discussion of the notion of kyrida in relation to women

in Hunter 1989: 43-7). Women often had several

potential kyrioi and could sometimes play one off

against another--this is what Demosthenes' mother

clearly attempted to do. Moreover, some kyrioiwere

more likely to work enthusiastically for the greatest

benefit of a woman than others, depending in large part

on their relationship to her and to other women. The

kyrios over whom a mother is most likely to have had

most influence and thus control was an adult son.

However, once he was married, a mother's interests

might have to compete with those of a wife. It was

probably the case that the more distant the kinship

relationship, the less incentive a kyrios had to work to a

woman's advantage, and the more competing interests

(often from other women) he might also have. It was

probably also generally the case that the more potential

closely related kyrioi were available to a woman (and the

more powerful they were), the better were her chances of

holding her own when difficulties arose. For example, in

Isaios6 the elderly Euktemon probably had divorced his

wife. She exercised her right to remain in the marital

home with her adult sons, and seems to have made life

so unpleasant for Euktemon that he went to live in a

brothel that he owned. In contrast, Demosthenes begs

the jury that his mother should not be robbed of her

remaining hopes (28. 20). He, as her newly adult son,

with her interests at heart, personifies them (cf. Hunter

1989: 46-7). The malleable and manipulable nature of

kyrieia as an institution also makes it difficult to argue

that female identities were in any real sense derivative

from it, or that women's identities were any more tied to

family than men's (though it is certainly true that the

relation of identity to family was different for women

than for men).

The other side of kyrieia is that women could indeed

become victims of men's plots, and if they were not as

fierce as Archippe or Demosthenes' mother, and if they

had no alternative kyrioi, they might well be exploited.

For example, in Isaios 3 the two claimants to the

disputed inheritance are both women. Naturally they are

represented in court by men who are (or claim to be)

closely related to them. Because of the degree of

potential misrepresentation of these women, it is almost

impossible to judge the merits of either side in this

complex case. None the less, it looks as though either

-150-

at least one of the women has been cheated by a

conspiracy of the men related to her, or she is being

illicitly exploited by a male associate. Similarly in Isaios

10. 18 a woman allegedly asked her husband to pursue

her claim to an estate as an epikleros, but he desisted

when her agnatic relatives threatened to claim her

themselves and remove her from her husband.

Sometimes, too, women seem to be blamed when men

do not wish to take responsibility for actions and events,

or involve other men in uncomfortable affairs. In Lysias

I, although the plaintiff (if he is telling the truth) is

legally in the right, in terms of the prevailing social ethos

of competition he is in the wrong, for he has been out-

competed by the adulterer. Hence perhaps the need to

stress that the reason he had not found out about his

wife's affair sooner was because it was communicated

through female channels. Significantly, it is another

woman with whom Eratosthenes is having an affair who

reveals the illicit intrigues of the speaker's wife (1. 15).

And (supposedly) part of the speaker's wife's seduction

by Eratosthenes includes attending the Thesmophoria

with Eratosthenes' mother (1. 20)! Whether it was true

or not, the plausibility of a network of women conspiring

against men was clearly real in the minds of men.

In [ Demosthenes] 48 the speaker and his wife's brother

colluded in claiming an inheritance which had many

claimants. This court case arose because they had

quarrelled with each other, and the reason given for the

quarrel is that the hetaira, 'courtesan', with whom the

wife's brother lived did not get on with the speaker's wife

(the opponent's sister) and daughters. It is impossible to

determine the truth, but this could easily be a way of

shifting responsibility for a family disagreement onto the

women. Interestingly, although the speaker says his

brother-in-law lives with a hetaira he does not mention

her name, so this too may be a slanderous attack on a

legitimate wife, which would surely have repercussions

outside the court. One of the best (or rather, worst)

examples of victimized women is that of the wicked

stepmother and the dumped courtesan of Antiphon I

(another case of women allegedly conspiring against

men). These are women who have been rejected by their

men, but whose reaction is anything but passive, even

judging from what is likely to be a highly distorted

version of events.

In conclusion, it is clear that women's lives and women's

actions were not separated from the male world of

lawcourts but lived in

-151-

continuum with it, as they were construed by it. Women

acted upon and were aware of events that happened

here, and themselves acted on their menfolk to influence

the outcome of events in this arena (cf. [ Demosthenes]

59. 110-11; Isaios 12. 5). Obviously they were frequently

successful in this aim. Undoubtedly many women were

victims of a system that was heavily mate-dominated,

but they were not passive victims. Many were strong

women who spent their lives fighting for themselves and

their families, in the continual but shifting conflict

between households that made up Athenian life.

Athenian men and women used law to compete, to

mediate and shape relationships and non-relationships

which were also acted out in other contexts. Of course

law was used to this end differently by men than by

women, as it also affected men and women differently.

But for both men and women, law had more to do with

alliance, prestige, and conflict than it did with social

order and dispute settlement. In short, law in classical

Athens lived not only in the courts and the agora and the

places of men, but made its way through the quiet back

streets and the fountain houses where women walked.

-152-

List of Contributors

JOHN K. DAVIES is Professor of Ancient History at

the University of Liverpool, and author of Athenian

Propertied Families

( Oxford, 1971), Wealth and the

Power of Wealth in Classical Athens

and ( New York,

1979), and, with R. A. Reid, Demosthenes: Selected

Private Speeches

( 1985) for Cambridge and Latin

Classics.

MARGARETHA DEBRUNNER HALL lectures at

University College London. She is the author of

Autorität und Kontinuität: Studien zur athenischen

Demokratie des 4

. Jahrhundert ( 1995).

LIN FOXHALL is Lecturer in Ancient History at the

School of Archaeoogical Studies, University of

Leicester. She has written Olive Cultivation in

Ancient Greece: The Ancient Economy Revisited

(

London, 1996), and will shortly publish Studying

Gender in Classical Antiquity ( Cambridge) and

When Men were Men: Masculinity, Power and

Identity in Classical Antiquity

(Routledge)

ANDREW LEWIS is Senior Lecturer in Laws at

University College London. He has published

numerous articles on many aspects of legal history

and is the co-editor, with D. J. Ibbetson, of The

man Law Tradition ( Cambridge, 1994).

TREVOR SAUNDERS is Professor of Greek at the

University of NewcastleUpon-Tyne. He is the author

of Plato's Penal Code: Tradition, Controversy and

Reform in Greek Penology

( Oxford, 1991).

ROSAUND THOMAS is Lecturer in Classics and

History at Royal Holloway, University of London. She

is the author of

Oral Tradition and Written Record in

Classical Athens ( Cambridge, 1989) and Literacy

and Orality in Ancient Greece ( Cambridge, 1992).

STEPHEN TODD is Lecturer in Classics at the

University of Keele. He is the co-editor of Nomos:

Essays in Athenian Law

( Oxford, 1993).

GERHARD THÜR is Professor of Roman Law at Karl-

FranzensUniversität Graz, Austria. He specializes in

Greek and Hellenistic legal history. He is the

author of

Beweisführung vor den Schwurgerichtshöfen Athens:

Die proklesis zur basanos

( Vienna 1977) and, with H.

Taeuber, Prozessrechtliche Inschriften

dergriechischen Poleis: Arkadien

-153-

griechischen Poleis: Arkadien ( Vienna, 1994). Since

1985 he has edited numerous volumes of

Symposion :

Men der Gesellschaft für Griechische und

Hellenistische Rechtsgeschiechte

-154-

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