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Law in action in classical Athens

Published online by Cambridge University Press:  11 October 2013

Robin Osborne
Robin Osborne
Affiliation:
King's College, Cambridge
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Extract

The fine modern scholarship on Athenian law has concentrated on (a) the scope of particular laws, and (b) the technical aspects of the legal process. This paper attempts to examine how the legal system worked in practice.

The Athenians classified legal cases in various ways. On the one hand there was a division by subject matter between private cases (dikai idiai) and public cases (dikai dēmosiai), and on the other there was a division according to the procedure involved. There were a number of specialised procedures, but the most important procedural division was between those cases which anyone was free to bring (graphai) and those which only an interested party could bring (dikai in the narrow sense). These divisions on grounds of subject matter and on grounds of procedure overlap, but they are distinct and neither corresponds to the modern European legal division between civil and criminal cases.

Type
Research Article
Information
The Journal of Hellenic Studies , Volume 105 , November 1985 , pp. 40 - 58
Copyright
Copyright © The Society for the Promotion of Hellenic Studies 1985

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References

1 Lipsius, J. H., Das Attische Recht und Rechtsverfahren (Leipzig 1915)Google Scholar; Harrison, A. R. W., The law of Athens: the family and property (Oxford 1968)Google Scholar; id., The law of Athens: procedure (Oxford 1971); MacDowell, D. M., The law in classical Athens (London 1978Google Scholar); Hansen, M. H., The sovereignty of the people's court in Athens (Odense 1974Google Scholar); id., Eisangelia (Odense 1975); id., Apagoge, endeixis and ephegesis (Odense 1976); Cohen, D. J., Theft in Athenian law, Münchener Beiträge zur Papyrusforschung lxxiv (1983Google Scholar).

2 The division of European criminal procedures into ‘adversary’ and ‘inquisitorial’ is no more relevant to the Athenian situation. For that division see Sawer, G., Law in society (Oxford 1975) 72 ffGoogle Scholar.

3 On the last clause see Rhodes, P. J., A commentary on the Aristotelian Athenaion Politeia (Oxford 1981) 160–2Google Scholar.

4 Harrison 1971 (n. 1) 77.

5 Glotz, G., La solidarité de la famille dans le droit criminel en Grèce (Paris 1904) 369–82Google Scholar.

6 E.g. Pl. Leg. 767b ff., 856bc, and especially 730d: Lykourg. in Leoc. 4.

7 Lipsius (n. 1) 237–8.

8 Compare the fact that any citizen may speak in the ekklesia and the ill-feeling towards the rhetors in the fourth century.

9 It is clear that when orators refer to the Lawgiver's intentions they are reading back intentions from practice. Cf. Ath. Pol. 9.2.

10 The case is argued strongly by Cohen (n. 1). Cohen's clarification of the evidence and the issue is masterful, but more room for manoeuvre is left than he is prepared to concede.

11 Xen. Mem. ii 9.

12 If Dem. xxiv 103 refers to a graphē. Cohen (n. 1) holds that death is only available as a penalty in cases of ‘flagrancy’, i.e. when apagōgē/ephēgēsis is the procedure used.

13 Since the law must have been able to cope with crimes where the circumstances of the offence were the same but the circumstances of discovery different, it must have been possible for a prosecutor who had evidence of a type and quality to support a more severe charge to choose to prosecute as if his evidence was less strong.

14 This has recently worried Hansen who declares himself pessimistic about the administration of justice in Athens in the fourth century because ‘It is an accepted modern conception of law and justice that an offender deserves one and the same punishment regardless of the legal procedure employed against him. Not so in Athens’: Hansen 1976 (n. 1) 120.

15 See below, section III.

16 On the asapheis nomoi see Ruschenbusch, E., Historia vi (1957) 257–74Google Scholar.

17 For a more compromised position see Pl. Leg. 766d–768e, 956b–957c.

18 For a very fine modern discussion of the issue of the nature and importance of ‘open texture’ see Hart, H. L. A., The concept of law (Oxford 1961) 124–32Google Scholar.

19 The last study of these as a class was by Ziebarth, E., Hermes xxxii (1897) 609–28Google Scholar.

20 The full penalty varies with the particular offence. Xenoi and xenai guilty of cohabiting are sold as slaves; Athenians with whom xenai cohabit are fined 1000 dr; Athenians who give away xenai as Athenians suffer atimia.

21 Harrison 1968 (n. 1) 27.

22 Apographē and apographein have a non-legal and non-technical use which complicates assessment of the use and nature of the action.

23 For the cases on which this classification is based see Appendix 1. See Harrison 1971 (n. 1) 212 ff. for Lipsius' different classification.

24 Lewis, D. M. in Badian, E., ed., Ancient society and institutions: studies … Ehrenberg (Oxford 1966) 191Google Scholar n. 67, using Hesperia xix (1950) 237Google Scholar no. 14.42.

25 Even cases of this sort may be complicated by debts existing which are secured by the property sold: cf. SEG xii 100. These must surely have been settled before any claim of the denunciator or city was considered.

26 Appendix 1, 2A (ii). Hansen 1976 (n. 1) 144 ff. argues that Dem. xxv is genuine.

27 It is clear that the property is confiscated and then bought—it is not simply the case that Eunomos clears the debt.

28 On Telemakhos see Osborne, , LCM viii (1983) 111Google Scholar; for further comments on the case see Osborne, , Demos: the discovery of classical Attika (Cambridge 1985) ch. 1Google Scholar.

29 For the continued prevalence of owning property in one's own deme see Osborne 1985 (n. 28) ch. 3.

30 For this phrase and the case as a whole see Dareste, R., Inscr. juridiques ii 146 ff. no. 26Google Scholar.

31 That the reward is rarely invoked in apographē 2 may suggest that the procedure was invented to deal with apographē 1, and only derivatively applied to apographē 2.

32 Lys.fr. 26a Thal. But in Lys. xiii 65 (cf. xiii 10) apographai seems not to have its technical meaning.

33 Harrison 1971 (n. 1) 215 n. 2.

34 Walbank, M. B., Hesperia li (1982) 74–98CrossRefGoogle Scholar. ἀπέγραψεν can be read and restored in Stele 1, col. 1 lines 8, 15, 24; and Stele 3, col. 2 or 3 line 13 where the man denouncing comes from the same deme as the man whose property is denounced, and where there is therefore a good chance that the man denouncing is the demarch. The decree condemning Antiphon and Arkheptolemos certainly makes the demarchs responsible for registering their property, but the term used is ἀποøῆναι ([Plut.] Mor. 834ab).

35 Part of the explanation might be that apographē 1 is the original rôle of the procedure, and that apographē 2 and 3 were subsequent developments.

36 Harrison 1971 (n. 1) 218 ff., The use of phasis against impiety may be an extension of its use against the illegal holding of public property.

37 For phasis against the wrongful possession/exploitation of public property see the case of Kallimakhos, below, and Harpok. s.v. ϕάσις, Pollux viii 47, Bekker, Anec. Graec. 313.20Google Scholar ff. For phasis in mining offences see Hyp. III 35, Pollux viii 47.

38 For the problems with Lys. vii see Gernet's introduction in Gernetand, L.Bizos, M., Lysias: Discours i. Cf. Lys. frr. 37, 105Google Scholar Thal. for two further phaseis concerning orphans.

39 Ar. Ach. 819–24; Equ. 300; and cf. Ach. 542.

40 Tod 123.44 fF., 162.20 ff., Hesperia xliii (1974) 157 ffGoogle Scholar. lines 28 ff.

41 Harrison 1968 (n. 1) 115–21. The eisangelia could also be referred to as a graphē; see Rhodes (n. 3) 629.

42 Davies, J. K., Athenian propertied families, 600–300 (Oxford 1971) 7Google Scholar.

43 Davies (n. 42) 43 ff.

44 Davies (n. 42) 151 ff.

45 Humphreys, S. C., The family, women and death (London 1983) 5Google Scholar. Humphreys is rather cavalier with the evidence, not mentioning the known cases of eisangelia, counting the case in Dem. xxxvi as a case brought by a ward over his inheritance (!), ignoring the part played by the ward's brother-in-law in Lys. xxxii, and assuming that the result of the phasis in Dem. xxxviii 23 was necessarily unjust or unwise.

46 Wyse, W., The speeches of Isaeus (Cambridge 1904) 622Google Scholar suggests that the prosecutor of the graphē hybreōs against Diokles was the speaker of ls. viii, which would reinforce the suggestion made here, although the speaker will in that case have slightly mistimed his attack.

47 Davies (n. 42) 406 and 68–9. For further remarks on this case see MacDowell, D. M., ‘Hybris in Athens’, G & R xxiii (1976) 14–31, esp. 28–9Google Scholar.

48 On this case see Rhodes (n. 3) 659–60.

49 Lys. vii may provide a fourth impiety case; cf. n. 38 above.

50 See Hansen 1975 (n. 1).

51 There is some truth in the slightly cynical view that pseudomartyria should be seen as an appeal procedure.

52 Bohannan, P., Justice and judgment among the Tiv (Oxford 1957) 65Google Scholar; Epstein, A. ‘The case method in the field of law’, in Epstein, A., ed., The craft of social anthropology (London 1967) 205–30Google Scholar (quotation from 230).

53 Watson, W. A. J., The nature of law (Edinburgh 1977) PrefaceGoogle Scholar.

54 Gluckman, M., The judicial process among the Barotse (Manchester 1955) 297 (cf. ch. 1)Google Scholar.

55 Turner, V., Schism and continuity in an African society (Manchester 1957) 91–3, 230–2Google Scholar. See generally Bourdieu, P., Outline of a theory of practice (Cambridge 1977) 16 fCrossRefGoogle Scholar.

56 A dramatic illustration of the peculiar turn a legal system may take in particular circumstances is provided by Cohn, B. S. in Bohannan, P., ed., Law and warfare (N.Y. 1967) 139–59Google Scholar. Cohn noted that among the Rajputs of North India the eradication of warfare as a bond of solidarity led to a ‘situation in which law is used not for settling disputes but for furthering them, and where the courts are looked upon as a place for harassment or a place in which to gain revenge’.

57 See Gulliver, P. H., Social control in an African society (London 1963) 232Google Scholar, on the Arusha.

58 Gulliver (n. 57) 298.