Hostname: page-component-cd9895bd7-hc48f Total loading time: 0 Render date: 2024-12-27T22:09:56.145Z Has data issue: false hasContentIssue false
  • English
  • Français

and ‘all the laws’ (Andocides, On the Mysteries 81-2): A Reply to E. Carawan*

Published online by Cambridge University Press:  13 November 2015

Christopher Joyce
Christopher Joyce*
Affiliation:
The Haberdashers’ Aske’s Boys’ School, Elstree, Hertfordshire
*
[email protected]
Get access Rights & Permissions [Opens in a new window]

Abstract

The normal interpretation of the oath μή μνησικακεĩν in Greek legal terminology is ‘to forget past wrongs’. Conventionally, the Athenian amnesty of 403 BC, in which the phrase is best documented, has been understood as an undertaking by both sides to draw a line under the past and prevent revisitation of cases which predated the restoration of democracy in that year. This article defends that view against the revisionist interpretation of E. Carawan in JHS 122 (2002) and CQ 62 (2012), which claims (a) that there was no general amnesty when democracy was restored to Athens, and (b) that the scrutiny of laws which followed was limited to ones affecting the amnesty’s beneficiaries. The oath forbade prosecution of all crimes committed in the time of the Thirty or before, and was therefore more than a mere technicality which sealed specific terms of agreement between the warring factions who came to terms. The scrutiny of laws encompassed all the laws of Athens and not a subset pertaining to a limited set of concerns. The revised laws were re-inscribed in the environs of the Stoa Basileios for future consultation.

Type
Reply
Information
Antichthon , Volume 48 , 2014 , pp. 37 - 54
Copyright
Copyright © Australasian Society for Classical Studies 2014

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Footnotes

*

I am especially grateful to the anonymous referees for Antichthon; to Edward Harris for reading a preliminary draft of this paper and for his astute criticisms of it; and to Edwin Carawan for allowing me to see an advance copy of his CQ 62 (2012) article.

References

1 See, inter alios: Dorjahn, A., Political Forgiveness in Old Athens: The Amnesty of 403 B.C. (Evanston IL 1946)Google Scholar; Todd, S.C., ‘Athenian Internal Politics 403-395 BC’ (Diss. Cambridge 1985Google Scholar, unpublished); Loening, T.C., The Reconciliation Agreement of 403/2 B.C. in Athens (Stuttgart 1987)Google Scholar; Loraux, N., La cité divisée. L’oubli dans la mémoire d’Athènes (Paris 1997)Google Scholar; Wolpert, A., Remembering Defeat. Civil War and Civic Memory in Ancient Athens (Baltimore 2001)Google Scholar.

2 Carawan, E., ‘The Athenian Amnesty and Scrutiny of the Laws’, JHS 122 (2002) 1–23CrossRefGoogle Scholar. Carawan’s view is taken also by Waterfield, R., Why Socrates Died (New York 2009) 131-4Google Scholar.

3 Joyce, C. J., ‘The Athenian Amnesty and Scrutiny of 403’, CQ 58 (2008) 507-18CrossRefGoogle Scholar.

4 Carawan, , ‘The Meaning of MĚ MNĚSIKAKEIIT, CQ 62 (2012) 567-81CrossRefGoogle Scholar.

5 The wording of my earlier piece (n .3, at 512, esp. n. 21) perhaps needs further clarification. When I said that in none of the epigraphic attestations of the oath did it amount to a pledge not to go back on specific covenants, I was not denying that the treaties presuppose earlier legal agreements, but meant only to suggest that that the oath μή μνησικακεĩν was more than just a legal formality which sealed terms of reconciliation. At least two of the three inscribed texts which refer to the oath outside the context of 403 illustrate significantly that its nature was partisan and its over-riding aim was to offer terms of forgiveness from one side to the other. This is not, of course, to deny that other legal measures were needed, as was true at Athens, and as we can reasonably infer in the other parallel cases.

6 The clearest implication of this is Andoc. Myst. 90, which attests that the oath was sworn μετά τάς διαλλαγάς. The διαλλαγαί must refer to the negotiations which preceded the conclusion of peace. The etymology of the word suggests the reciprocity of exchange and may originally have referred to the exchange of hostages: see Garlan, Y., ‘Études d’histoire militaire et diplomatique I’, BCH 89 (1965) 332-48CrossRefGoogle Scholar. But, if there was ‘exchange’ in the reconciliation of 403, it was that the partisans of oligarchy should give up the war against the democrats and accept democracy in return for protection under the terms of the amnesty. This has no bearing on the question of what μή μνησικακεĩν may or may not mean.

7 Joyce (n. 3)512-4.

8 There is a further a priori objection which Carawan does not consider. If μή μνησικακεĩν was merely a legal formality and had no wider significance than to seal covenants, it is surprising that the phrase is not attested more generally in treaties throughout the Greek world which involved an exchange of conditions. By whittling down its meaning to ‘estoppel’ or ‘no reprise’, Carawan has effectively deprived the phrase of all its meaning.

9 Canevaro, M. and Harris, E.M., ‘The Documents in Andocides’ On the Mysteries’, CQ 62 (2012) 98–129CrossRefGoogle Scholar.

10 See e.g. Hedrick, C.W., ‘Democracy and the Athenian Epigraphical Habit,’ Hesperia 68 (1999) 387–439Google Scholar.

11 Andoc. Myst. 107-8 repudiates the prosecution on the grounds that by bringing a legal case against him it has committed μνησνκακεΐν. See also Lys. 18 passim and Lys. 30.8-9, which understand the crime as a violation of legal protocol. The evidence is discussed at greater length below.

12 See below on Iulis, pp. 46-8.

13 [Arist] Ath.Pol. 40.1

14 For these details of preliminary procedures for homicide, see Antiph. 6 passim.

15 Isocr. 18.1-4.

16 Thus Joyce (n. 3) 512-3.

17 See the remarks of Canevaro and Harris (n. 9) 119-25 about the so-called ‘decree of Demophantus’ and its relationship to the original law of Solon. Cf. Lyc. Leocr. 124

18 For a general overview of this speech and assessment of its historical value, see Todd, , A Commentary on Lysias, Speeches 1-11 (Oxford 2007) 403-11Google Scholar.

19 As appears from Andoc. Myst. 87-8. See also Dem. 24.56.

20 Carawan (n. 4) 577-8.

21 See also Isoc. 16.43, where the offence μνησικακείν is seen as a contravention of the amnesty, not vice versa.

22 It should not be overlooked that the original conditions of the reconciliation, the διαλλαγαί (Andoc. Myst. 90), were agreed before the democracy had been reconstituted (§81) and would presumably have later been enacted in law once the democratic constitution was in place. The legal definition of the amnesty may well have come together piece by piece once a democratic mandate to frame them in law existed.

23 For other, more general, discussions of this complex document, see inter alios: Dreher, M., Hegemon und Symmachoi. Untersuchungen zum zweiten Athenischen Seebund (Berlin 1995) 122CrossRefGoogle Scholar; Guagliulmi, B., ‘Il racconto di una stasis nel decreto ateniese per Iulis (IG II 2 111)’, Quaderni del Dipartimento di filologia e tradizione classica n.s. 2 (2003) 25–47Google Scholar; Cooper, C., ‘Hypereides, Aristophon and the Settlement of Ceos’, in Cooper, (ed.), Epigraphy and the Greek Historian (Toronto 2008) 31–54CrossRefGoogle Scholar.

24 Carawan (n. 4) 579 n. 32 accuses me of ‘discounting the prior settlement and amnesty oath by the Ceans’, which I had not discussed in my earlier article. It is clear that there had been a number of earlier agreements which had been inscribed elsewhere and to which this document refers, but the onus is on Carawan to show that, in any of the earlier oaths of reconciliation, the Ceans need have sworn μή μνησικακεΐν.

25 Lines 57-61: τάδε συνέθεντο καί ώμοσαν οί στρατηγοί οί 'Αθηναίων πρός τάς πόλες τ[ά]ςέν Κέωι κα[ί] οί σύμμαχοι· vacat ό μνηαικακήσω [τŵ]ν πα[ρ]εληλυθότων πρό[ς] Κείος ούδ[ε]νός ούδέ άποκτενŵ Κ[είων] ό[δ]ένα ούδέ φυγάδα ποήσω τŵν έμμενόντων τοĩςőρκο[ις καί τ]αĩς συνθήκαις ταĩσδε,… Notice the framing of the chiasmus in the wording of the oath: συνέθεντο καί ώμοσαν and τοĩς όρκο[ις καί τ]αĩς συνθήκαις discussed in the note below.

26 Carawan (n. 4) 578 argues from the chiasmus in the wording of the oath (see previous note) that the commitment μή μνησικακεĩν functions as a legal formality that closes the covenants of reconciliation, the συνθήκαι. Of course, the covenants were ratified on both sides in oath, as we would expect, and as the chiastic structure of the text indicates. But the commitment ‘not to recall wrongs’ is one portion of the oath of the Athenian generals, not the sum total of it, and did not appear, and need not have appeared, in the oath which the Ceans swore. The oath of the Athenians which seals the covenants of reconciliation on their side includes every provision listed in lines 57-61: it incorporates, but is not identical with, the promise of μή μνησικακεΐν.

27 Thus Joyce (n. 3) 510.

28 Carawan misconstrues my point (ad loc., above note) about the force of μή μνησικακεĩν being not future looking but retrospective. The force of μή μνησικακεĩν is to ensure that anything done in past time is to be consigned to oblivion, not to seal the reconciliation as such. The connection with the past is reinforced by the phrase τŵν παρεληλυθότων, a point which he overlooks in this oath and in others.

29 Joyce (n. 3) 510: μή μνησικακεĩν is not future looking but retrospective. It relates not to those who choose in future to respect this settlement but rather to those who, in the past, decided to support those who had violated the terms set out by Chabrias. Excepting those directly answerable for the rebellion, all are to be let off the hook. It is, in fact, a pledge of forgiveness.’ Carawan quotes this verbatim as an example of what he dubs my perverse logic, as if I were denying that the Ceans were expected to swear an oath. My point was much simpler than that: the phrase μή μνησικακεĩν does a completely different job from the one he envisions, and was not framed reciprocally.

30 Krech, P., De Crateri ψηφισμάτων Συναγωγή (Berlin 1888) 106Google Scholar. The restoration follows lines 58-60 and should not be read as a measure of reciprocity, as the beneficiaries are the same group.

31 He resorts to what seems to me to be a desperate plea that the preserved text of the decree is not complete and that we should not assume out of hand that the other side was not intended to swear μή μνησικακεĩν (n. 4) (580 n. 42). If we can assume that, under ordinary circumstances, the phrase was sworn on both sides, then Carawan might have had a point. But, as a careful reading of the Iulis inscription shows, this cannot be assumed, and the onus is on him to show that the lost portions of the text contained the phrase. For a general discussion of the text and its reconstruction, see Heisserer, A.J., Alexander the Great and the Greeks (Norman OK 1980) 204-29Google Scholar.

32 Lines 59-60: See the translation in Rhodes, P.J. and Osborne, R., Greek Historical Inscriptions, 404-323 BC (Oxford 2003) 531Google Scholar, of the problematic phrase as ‘for what he might have plotted (?).’

33 Ath. Pol. 39.6; Andoc. Myst. 90.

34 Carawan (n. 4) 568-9.

35 Robertson, N., ‘The Laws of Athens, 410-399 BC: The Evidence for Review and Publication’, JHS 110 (1990) 43–75CrossRefGoogle Scholar.

36 Interestingly, this is the only quoted decree in Andocides, the verisimilitude of which Carawan suspects. Mostly, scholars have assumed on faith that the quoted documents are genuine: see e.g. MacDowell, D.M., Andokides On the Mysteries (Oxford 1962)Google Scholar, who did not query the Teisamenus decree or any of the quoted documents in the speech of Andocides.

37 Admittedly, my original phrasing was misleading, but I stand by my argument in essence. In my earlier article (n. 3) 516, I wrote: ‘There can be little doubt that Teisamenus’ decree resulted in a complete and exhaustive statement of the valid laws.’ At this point I was inferring that, though in its immediate purpose the decree appears to mandate display of laws in a temporary medium, the process must have resulted in a permanent inscription because of what Andocides says at the start of §85. I have no wish to change that basic claim, but I now assert that the decree which Andocides had originally cited was not this one. The matter is technical and does not affect the more important question of how we interpret the evidence of Andocides.

38 The veracity of quoted documents in the speeches of the orators has been the subject of debate for over a century. Doubts were first raised at the end of the nineteenth century by Drerup, E., ‘Über die bei den attischen Rednern eingelegten Urkunden’, Jahrbüch für Oassische Philologie Supplementband 24 (1898) 221–366Google Scholar, to be expanded subsequently by Schläpfer, P.L., in Untersuchungen zu den attischen Staatsurkunden und den Amphiktionenbeschlüssen der demosthenischen Kranzrede (Paderborn 1939)Google Scholar. For a comprehensive treatment of the documents cited by Andocides and a convincing demonstration that none of them are likely to have been authentic, see now Canevaro and Harris (n. 9) esp. 110-16 for the decree of Teisamenus.

39 Clinton, K., ‘The Nature of the Fifth-century Revision of the Athenian Law Code’, Hesperia Suppl. 19 (1982) 27–37CrossRefGoogle Scholar, at 28-30. Clinton’s reading was followed by Rhodes, , ‘The Athenian Code of Laws, 410-399 BC’, JHS 11 (1991) 87–100CrossRefGoogle Scholar, esp. 97. For the contrary view that ‘the laws of Draco and Solon’ means all the laws of Athens passed before 404/3, see Volonaki, E., ‘The Re-Publication of the Athenian Laws’, Dike 4 (2001) 137-67Google Scholar, esp. 141-6.

40 For modern discussions of the distinction between ‘laws’ and ‘decrees’ in the fourth century, see inter alios Rhodes, ‘The Athenian Democracy after 403 BC’; The Classical Journal 75.4 (1980) 305-23; R. Sealey, ‘On the Athenian Concept of Law’, The Classical Journal 77.4 (1982); Rhodes, , ‘Nomothesia in Fourth-Century Athens’, CQ 35 (1984) 55–60CrossRefGoogle Scholar; Hansen, M.H., ‘Nomos and Psephisma in Fourth-Century Athens’, in Museum Tusculanum Press, The Athenian Ecclesia: A Collection of Articles 1976-1983, vol. 1 (Copenhagen 1983) 161-77Google Scholar; Ober, J., Mass and Elite in Democratic Athens: Rhetoric, Ideology, and the Power of the People (Princeton 1991) 96Google Scholar.

41 Ostwald, M., ‘The Athenian Legislation against Tyranny and Subversion’, TAPA 86 (1955) 103-28Google Scholar, at 117, argued that the measure of Demophantus was abrogated after 403 to be replaced by the law on eisangelia. Yet the later speeches of Demosthenes and Lycurgus clearly imply that the law remained in effect well into the fourth century (see Canevaro and Harris [n. 9] 119-25 for a full discussion of the relevant evidence).

42 For an excellent discussion of the evidence for the Metroön as the main repository of state records in the fourth century, see Sickinger, J.P., Public Records and Archives in Classical Athens (Chapel Hill NC 1999)Google Scholar. Even though non-inscribed records were a vital method of record keeping, this does not preclude the importance and value of public inscriptions. Though we have no physical survival of the inscribed ‘code’ to which Andocides refers, the onus of proof is still on those, like Carawan, who deny its existence.

43 Sickinger’s monograph, cited above (n. 42), makes a stalwart case for the existence and maintenance of non-inscribed records at Athens since early times. Among those who have doubted that systematic written records were kept at Athens before the fourth century, see Thomas, R., Oral Tradition and Written Record in Classical Athens (Cambridge 1989)CrossRefGoogle Scholar. Despite disagreement as to the methods of the early democracy, scholars generally concur that Athenians of the mature democracy relied on regular and careful records in writing.

44 The legal compilation of 403 is regularly termed a ‘law code’, but the problem with this terminology is that the term ‘code’ designates a complete and conclusive statement of the whole body of valid law, which in the case of Athens is difficult, given that the laws were continually updated throughout the fourth century by the nomothetai.

45 On the citizenship law of Pericles, see now Carawan, ‘Pericles the Younger and the Citizenship Law’, The Classical Journal 103.4 (2008) 383-406. The evidence for the law and its use and application into the fourth century is compiled and discussed more fully by Patterson, C.B., Pericles’ Citizenship Law of 451-50 BC (Salem 1981)Google Scholar. A similar case might be made for the law of Demophantus, passed initially as a decree.

46 See Lys. 30 and the chronological reconstructions of Rhodes (n. 39).

47 Joyce (n 3) 517.

48 See e.g. the re-publication of Dracon’s law on homicide (IG i3 104 = ML 86). The text of the opening decree makes explicit reference to , whose task it was to re-inscribe old laws. It has been objected that their duty here is mandated in a separate decree and that we cannot make general assumptions from this about their activities in the period from 410 to 399. Nevertheless, the evidence of this inscription shows that the did inscribe old laws, and, even if this meant writing them up in a non-permanent medium beforehand, the normal expectation was that laws would be inscribed.