Hostname: page-component-586b7cd67f-t8hqh Total loading time: 0 Render date: 2024-11-23T20:54:18.509Z Has data issue: false hasContentIssue false
  • English
  • Français

Law-Making at Athens at the end of the Fifth Century B.C.

Published online by Cambridge University Press:  23 December 2013

A. R. W. Harrison
A. R. W. Harrison
Affiliation:
Merton College, Oxford
Get access Rights & Permissions [Opens in a new window]

Extract

For students of Athenian private and public law it is a painful, but undeniable fact that there is still grave uncertainty as to the precise methods by which statutes, one of the most important sources of law, were made at the most formative period of the history of the system from the middle of the fifth century B.C. onwards. There have been two fairly recent and conflicting attempts to clear up some of the main points, those of Kahrstedt and of Mrs. Atkinson. Neither treatment seems wholly satisfactory, and in particular neither seems to take any account of J. H. Oliver's publication of additions to the code or of Ferguson's paper on these same additions. It may therefore be worthwhile re-examining the evidence for one chapter at least of the story, the chapter covering roughly the twenty years beginning in 411 B.C.

I cannot avoid a word on sources, in the historical not the legal sense. In the literary field historians and political theorists are very unhelpful. The problem does not seem to have interested them. Here therefore we have to rely mainly on two other classes of authority, firstly, grammarians and lexicographers, who were interested in the archaisms of the laws of Drakon and Solon, secondly, and most fruitful of all, the orators. In the orators we must distinguish between the documents cited in the texts and the orators' own words. I do not discuss the validity of the cited documents, but must content myself with saying that with regard to the more important documents which are here relevant there is now fairly general agreement among scholars that they are genuine. Statements of the orators themselves must always be examined under the microscope and allowance made for possible distortions due to the speaker's desire to support the particular point which he is making.

Type
Research Article
Information
The Journal of Hellenic Studies , Volume 75 , November 1955 , pp. 26 - 35
Copyright
Copyright © The Society for the Promotion of Hellenic Studies 1955

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.)

References

1 Klio XXXI (1938), pp. 1 ff.

2 Athenian Legislative Procedure and Revision of Laws (1939), Bulletin of the John Rylands Library 23, 1. There was a brief review of Mrs. Atkinson by ProfessorGomme, in Cl. Rev. LIV (1940), p. 38CrossRefGoogle Scholar, and a reply to her by Kahrstedt, in Gnomon XVI (1940), pp. 377 ff.Google Scholar

3 Hesperia IV (1935), pp. 5 ff. See also further publications by Dow, S. in Hesperia X (1941), pp. 31 ff.CrossRefGoogle Scholar

4 Classical Studies presented to Capps (1936), pp. 144 ff.

5 See Wilhelm, A., Bieträge zur griechischen Inschriftenkunde (1909), pp. 239 ff.Google Scholar

6 Gr. Slaatsalt. 2 (1914), p. 381.

7 Ar. und Ath. II (1893), p. 193.

8 Mem. I, 2, 42.

9 Nic. Eth. V, 10, 1137b.

10 IV, 4, 1292a. I quote from the Oxford translation by Jowett revised by Ross (1921).

11 Note the description of the eleventh and last stage in the development of the Athenian democracy in Ar. Ath. Pol. 41, 2.

12 This gives an adequate sense. Politicians had been regularising decrees of doubtful validity by passing laws ex post facto. Lipsius, , Att. Recht, p. 387Google Scholar, holding that γράφεσθαι must be middle and mean ‘bring a γραφή against’, as it does a few lines above, would read ἐναντιώτεροι for νεώτεροι: ‘the laws which govern suits against decrees are even more contradictory than the decrees themselves.’ But the correction is hardly necessary. Kahrstedt, is ingenious in Klio XXXI (1938), p. 18Google Scholar: ‘Nomoi im technischen Sinn der Zeit und von Psephismen sachlich unterschieden, sind in der Tat jünger als der Zustand, dass das Volk Psephismen zu fassen hat.’ But even if such a sense could be got from the words in isolation, it does not square with the context.

13 See further Busolt, Gr. Staatsk. I (1920), pp. 455 ff.Google Scholar; Vinogradoff, , Outlines of Historical Jurisprudence II (1922), pp. 128 ff.Google Scholar

14 Not necessarily the same as conforming to the laws, if we accept the distinction made by Aristotle in Politics IV, 1, 1289a between a politeia as a wider whole with nomoi subsumed under it.

15 Andok. On the Mysteries (1), 87, Dem. Against Aristok. 23, 87, Against Timok., 24, 30.

16 Klio XXXI (1938), pp. 25 ff.

17 Athen, 9 c. 72, p. 407b.

18 Thompson admits the possibility, but thinks it unlikely that a decree of such limited reference should have been engraved. But there were reasons for publishing a decree con ferring ἄδεια.

19 Alkibiades is doing just what Strepsiades, wanted to do in The Clouds 769Google Scholar

20 It must have been one function of the anakrisis in a trial to make it possible to have copies of state documents made and agreed by both parties for recital at the hearing-in-chief. Only when these documents had been assembled in a Record Office would it have been possible for them to be cited on the scale which prevails from Andok. 1 onwards.

21 Dem. Against Leptines 20, 127 specifically called

22 Dein. Against Aristogeiton 2, 24.

23 Lyk. 118, Thuc. 6, 55.

24 For στηλών the MSS. have Εὔπλων or ὅπλων.

25 Thuc. 5, 18, 10; 5, 23, 5; 5, 47, 11.

26 Ar. Ath. Pol. 35, 2.

27 Nep. Alcib. 6, 5.

28 E.g. IG II2 40, 16; 43, 31. Kahrstedt dissents from the view of Ehrenberg, in Hermes LXIV (1929), pp. 330 ff.Google Scholar that these were separate treaties dating from shortly before 378 B.C.

29 Philochoros, F. Gr. Hist., 328Google Scholar, F 55.

30 Cf. Jacoby, , Atthis (1949), p. 205Google Scholar: ‘There still seems to be a tendency to overestimate both the amount of documents and particularly their easy availability in the State archive.’ And in his note ibid. p. 383, though expressing the view that ‘Kahrstedt is somewhat extreme in the opposite direction’, he finds his date for the archive, 403/2, ‘most attractive’.

31 E.g. Jebb, , Attic Orators (1876) 1, p. 224Google Scholar, Blass, , Att. Ber., Gorgias bis Lysias (1868), p. 458.Google Scholar

32 On what grounds we are not told. That some of the infringements could be dealt with by ἐπιβολαί does not suggest anything very serious.

33 Is the absence of mention of Drakon significant or merely due to a desire for brevity on Lysias' part?

34 Schreiner, J., De Corpore Iuris Alheniensium (1913), pp. 21 ff.Google Scholar and especially pp. 48 ff., has established the thesis that ‘the laws of Solon’ was often a generic term for the ‘corpus iuris Attici’.

35 Andok. On the Mysteries 1, 83. I deal with this decree in detail later.

36 IG I2 115; Tod, , GHI 87.Google Scholar

37 Should we deduce from this that the original axon, whether as is more probable it went back to Drakon himself or was incorporated among the axones of Solon, no longer existed and the official text was a papyrus kept by the Secretary of the Council? If the original axon existed this clause seems otiose. If it did not, the clause indicates where the authentic copy is to be found.

38 IG I2 843, 844/5; II2 1357; Oliver, , Hesperia IV (1935), pp. 5 ff.CrossRefGoogle Scholar; Ferguson, , Classical Studies presented to Capps (1936), pp. 144 ff.Google Scholar; Dow, , Hesperia X (1941), pp. 31 ff.CrossRefGoogle Scholar; Dow promises a detailed study of the whole problem; Jeffery, , Hesperia XVII (1948), pp. 106 ff.Google Scholar

39 For the dangers attaching to the use of the opposed terms ‘secular’ and ‘sacred’ in this connexion see Jacoby, , Atthis, p. 244Google Scholar, n. 46; p. 257, n. 119; p. 274, n. 262.

40 IG I2 114; for new text see Wade-Gery, in BSA XXXIII (1932), pp. 113 ff.Google Scholar

41 Dem. Against Neaira 59, 76, for example, refers to a law set up on a stele by the altar in the temple of Dionysos at Limnai. I owe this reference to Mr. K. J. Dover.

42 Lysias, Against Nik. 30, 9 ff.Google Scholar It is perhaps worth noting that statutory law, whether in the form of nomos or psephisma, had a much ess compelling force on an Athenian than on a modern court: its rules were rather evidence in the quest for a just decision than absolute dictates to the court. This made uncertainty as to their exact content and scope slightly more tolerable than it would be now.

43 IG I2 63; Tod, , GHI 66Google Scholar; ATL II A 9. The stone, if correctly reconstructed by Meritt and West, reads It would be more agreeable to probabilities to read thesmothetai, but this is a carefully cut stoichedon inscription.

44 It is true that Demosthenes, , Against Leptines 20, 93Google Scholar attributes the law dealing with nomothesia to Solon, and Against Timokrates 24, 24Google Scholar, he says that related laws had been in existence for a long time, which would certainly imply pre-Euklidean status. While I would admit that if in fact these laws were post-403 Demosthenes could, and probably would, have been aware of it, I certainly would not put it beyond him to attribute to them a greater and more respectable antiquity than they really had.

45 Or ‘new laws’. codd. ἂν secl. Dobree. Stahl.

46 Or ‘they began to discover’. εὐρισκον codd. εὑρίσκοντες Reiske.

47 Some commentators have taken to refer to the law of the constitution as distinct from the laws of Solon and Drakon mentioned in the succeeding words. It seems to me more likely that the first phrase is a general description covering, and defined by, all that succeeds. Even any necessary additions to the laws of Solon and Drakon would be in the spirit of τὰ πάτρια.

48 Or ‘the nomothetai’ or ‘the ten’ or ‘the fifty nomothetai’. codd. vel Sluiter οἱ vel οἱ δε (δεκάκις τέντε) Reiske. Maidment, , Minor Attic Orators, Loeb (1941)Google Scholar, ad loc., keeps οἵδε and translates ‘and named hereafter’, presumably supposing that only one body of nomothetai is mentioned in the decree. But this translation is scarcely possible, save on the unlikely supposition that a schedule of names was attached to the original decree.

49 πρότερον presumably means that the scrutiny is to take place before the laws are handed over; a careless piece of drafting, but not unparalleled.

50 Frohberger-Thalheim, , Ausgewählte Reden von Lysias 2 II (1892), p. 45.Google Scholar

51 Classical Studies presented to Capps (1936), p. 146.

52 For the reading see n. 48 above.

52a If this is a legitimate deduction from Andok. 1, 84,

53 We can point to at least one instance in which the substantive law was changed at the archonship of Eukleides. Before that date it was legal, either by custom or by statute, for children of mixed marriages to share in an inheritance, thereafter it was not. Isaios, , On the Estate of Philoktemon 6, 47Google Scholar, On the Estate of Kiron 8, 43; Dem., Against Makartatos 43, 51, Against Euboulides 57, 30.

54 The Greek must mean this, but the sense required is rather ‘if I, like Nikomachos, was making, and not simply recording, laws’. Cf. Lamb, W. R. M., Lysias (1930)Google Scholar, Loeb, ad loc.

55 Taylor; εὔπλων, ὅπλων codd. Taylor's emendation has been generally accepted, but it is an insecure foundation for historical deduction. I should have expected some qualification of στηλῶν to distinguish them from the stelai of Nikomachos mentioned later on. It would be different if the stelai of Nikomachos had been mentioned first.

56 The term is actually used in IG I2, 844, l. 4, i.e. on the pre-Euklidean face of the wall.

56a Or even before 411/10, as Mr. Hignett suggested to me, in view of IG I2, 76 = Tod, , GHI 74.Google Scholar

57 MissJeffery, , Hesperia XVII (1948), pp. 106 ff.Google Scholar, suggests that the kurbeis contained regulations for sacrifices dating from before the Persian war, the stelai accretions made to these between 479 and 411. Oliver, , Hesperia IV (1935), pp. 9 ff.Google Scholar, argues that the term kurbeis at the end of the fifth century had the purely abstract sense of ‘the law-code’. I should prefer with Holland, L. B., AJA XLV (1941), pp. 346 ff.CrossRefGoogle Scholar, to take it as referring to material objects, though how distinguished from axones remains obscure.

58 For Aristophon see Aischin, . Against Ktes. 3, 194Google Scholar. recognition of the sovereignty of the courts see, e.g., Dem. Against Euboul. For 57, 56.