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Women in Greek Inheritance Law

Published online by Cambridge University Press:  11 February 2009

David Schaps
David Schaps
Affiliation:
Tel Aviv University
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Extract

In 1824 Eduard Gans, in the course of a study of inheritance law, had occasion to deal with the class of women known in Athens as epikleroi—daughters of a deceased man who, in the absence of sons, were married to their nearest relative, with the estate of the deceased passing to the son or sons of the new union. ‘For these,’ he wrote, ‘… the basic concept throughout is not that, in the absence of descendants, they themselves appear as inheritors, but rather that they are inherited along with the property by the collaterals.’

Type
Research Article
Information
The Classical Quarterly , Volume 25 , Issue 1 , May 1975 , pp. 53 - 57
Copyright
Copyright © The Classical Association 1975

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References

page 53 note 1 For a description of the epikleros' situation see Harrison, A. R. W., The Law of Athens, i (Oxford, 1968), 9–12, 113, 132–8 309–11.Google Scholar

page 53 note 2 Gans, Eduard, Das Erbrecht in welt geschichtlicher Entwickelung, i (Berlin, 1824) 338–9.Google Scholar

page 53 note 3 K. R. Hermann, Lehrbuch der griechische Antiquitaten ii1 (Rechtsaltertfüner), 4. Auflage von Th. Thalheim (Freiburg i. B. and Leipzig, 1895), 65–6. In one case (Isaeus 10) an Athenian presents his mother as having been epikleros to an estate which was technitally her brother's, not her father's; but his representations are no reason to believe, as did Hatter, E. (Die Erbtochter nach attischen Recht [Leipzig, 1887],Google Scholar 21 ff.), that al women who inherited were epikleroi. See G. E. M. de Ste Croix, ‘Some Observation on the Property Rights of Athenian Women’, C.R. N.s. xx (1970), 276; Harrison, op. cit. i. 113; and Wyse, W., The Speeches of Isaeus (Cambridge, 1904, reissued Hildesheim, 1967), 655–6.Google Scholar

page 53 note 4 Beauchet, Ludovic, Histoire du droit privé de la républigue athénienne, iii (Paris, 1897, reissued Amsterdam, 1969), 465.Google Scholar Gernet, L., ‘Surl' épiclérat’, R.E.G. xxxiv (1921), 368–9, doubted this, but did not have the evidence to disprove it completely.Google Scholar

page 53 note 5 Lipsius, J. H., Das attische Recht and Rechtsverfahren (Leipzig, 1905–1915, reissued Hildesheim, 1966), 540–1.Google Scholar

page 53 note 6 Op. cit.

page 53 note 7 In 1932 Gustav Klaffenbach, publishing I.G. ix2. I. 2, wrote, ‘notatu dignum est, quod etiam feminae heredes fieri possunt’, as though that were not the case in the rest of Greece; and in 1934 W. Erdmann, who should have known better, thought that the Athenian woman was ‘in her entire legal status (sic!) actually more a part of th family property, whose value was originally even realizable in cash through bridepurchase, than a true legal person, who could be an independent bearer of rights and re sponsibilities’ (Erdmann, W., Die Ehe im alte Griechenland, vol. xx of Mfinchener Beitnige zu Papyrusforschung and antiken Rechtsgeschicht [Munich, 1934], 50). Since then, however under the influence of Gomme's ‘rehabilitation’ of the Athenian woman's positioi (‘The Position of Women in Athens in the Fifth and Fourth Centuries B.C.’, C.P. [1925], 1–25, reprinted in his Essays in Greed History and Literature [Oxford, 1937], 89– 115), scholars have tended to avoid this kinc of statement.Google Scholar

page 54 note 1 Willetts, R. F., The Law Code of Gortyi (Kadmos, Supplement i, 1967), 21; his views are expressed at greater length in Aristo cratic Society in Ancient Crete (London, 1955) 69–100.CrossRefGoogle Scholar

page 54 note 2 Id. Law Code of Gortyn, 18.

page 54 note 3 Whether or not great-uncles and their descendants were within the inner circle of heirs depends upon the interpretation of the phrase in the Athenian law: cf. Harrison, A. R. W., ‘A Problem in the Rules of Intestate Succession at Athens,’ C.R. lxi (1947), 41–3;Google Scholar Miles, J. C., ‘Attic Law of Intestate Succession’, Hermathena lxxv (1950), 77;Google Scholar Lepri, L., Sui rapporti di parentela in diritto attico (Milan, 1959), 8–13.Google Scholar It is not certain that the Athenians themselves were agreed on this point, for there was no lack of confusion as to the precise intent of the various provisions of this law: cf. Arist. Ath. Pol. 9. 2. On the extent to which there is any ‘correct’ interpretation of an Athenian law, see Bonner, Robert J., Lawyers and Litigants in Ancient Athens (Chicago, 1927, reissued Rome, 1970), 74–5.Google Scholar

page 54 note 4 The law of intestate inheritance is preserved in Ps.-Dem. 43. 51 and paraphrased in Isaeus I I. 1–2; neither text, however, is perfectly reliable (there is a serious lacuna in the first), and much still remains in doubt. See A. R. W. Harrison, op. cit. i. 130–49.

page 54 note 5 Besides being apparent from the particulars of the legislation, this seems to be stated as a general principle by the words (Ps.- Dem., loc. cit.; cf. W. Wyse, op. cit. (above, p. 53 n. 3), 564–5, ad Isae. 7. 20), though speakers who could find an advantage might argue in court that it meant something quite different (Isae. 7. 20, 8 hyp.). In fact the passage summarizes a number of the basic principles of Attic succession: (males exclude females) (the division is per stirpes, so that a man's heir occupies his place in the succession—e.g., a brother's son excludes a sister's son, though both are males), (proximity depends upon proximity of the common ancestor—e.g. a sister is not excluded by an uncle, since she descends from the deceased's father, he from his grandfather), (distance of the claimant from the common ascendant does not affect proximity; a brother's son is as close as a sister, and so excludes her).

page 55 note 1 Lex Gort. iv. 31–43 and v. 9–28 (the text is available in Willetts, op. cit. (above, p. 54 n. 1), or in Guarducci, M., Inscriptiones Creticae, iv (Rome, 1950), no. 72). In the absence of sisters, the heirs were ‘those to whom the money falls’; failing these, ‘those of the household who are the estate’. These last two phrases are exceedingly opaque, but they are generally taken to mean (a) relatives more distant than those mentioned, and (b) either the serfs of the estate, or the neighbours (cf. Willetts ad loc. for the literature on the question).Google Scholar

page 55 note 2 I.C. ix2. 609.

page 55 note 3 Ibid. no. 2. The son is mentioned in line 9; unidentified women, presumably daughters, in line 13; brothers and sisters in line 15; and line 17 clearly begins another category.

page 55 note 4 I.G. v. 2. 159. Between the first and second inscription, Xuthias had begotten children: where he had earlier written ‘if no children be born’, he now writes, ‘if they should not be alive’. This is presumably the reason for the more explicit provisions of the second text.

page 56 note 1 Although Plato's epikleros-law is not identical with any other (we should hardly have expected it to be), the essentials of the Athenian institution are retained, with a justification (Leg. 9. 924 d-e).

page 56 note 2 Ibid. 925 c-d. The male order is the same as that of claimants to the hand of the epikleros, ibid. 924 e.

page 57 note 1 A similar situation may have obtained in Sparta, where Aristotle estimates (Pol. 1370223–5) that two-fifths of the land belonged to women; but at least as far as Aristotle knew, this was not because the exwomen shared in the inheritance, but ‘be-cause there are many epikleroi, and they give large dowries’. This situation may in fact not have differed from the Gortynian, as I hope to show elsewhere; see next note.

page 57 note 2 I hope to address myself to this problem, as well as that of the Gortynian daughters, in a forthcoming work on the property rights of Greek women.

page 57 note 3 Besides the matter with which this paper deals, one or two other points may be noted about this structure. For one thing, relatives of the same sex and class share equally— inthere is no trace in Greece of complete or partial primogeniture. The only exception partial primogeniture. The only exception to this rule is in the Laws (923-c-e), where only one son—whom the pick— inherits the estate, in line with Plato's desire to avoid divition of the kleroi. Various expressions in the inscriptions ( in I.G. ix2. i. 609, in I.G. v. 2. 159, and the two Gortynian categories mentioned in p. 55 n. i above) may perhaps point to an ‘inner circle’ om inheritance law. This group of near relations (which scholars call the , though the word does not have this technical meaning in the sources) was definitely a factor at Athens, where (as noted above) maternal relatives within the circle preceded paternal relatives outside of it; but none of the terms mentioned can be said to indicate clearly that it affected inthere heritance anywhere else.