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The Discourse of Law in Archaic and Classical Greece

Published online by Cambridge University Press:  28 October 2011

S. C. Humphreys
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Law and History Review , Volume 6 , Issue 2 , Fall 1988 , pp. 465 - 493
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Copyright © the American Society for Legal History, Inc. 1988

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References

Notes

1. Humphreys, S. C., “Law as Discourse,” History and Anthropology i.2 (1985): 241–64Google Scholar.

2. Cf. Thompson, E. P., Whigs and Hunters (London, 1975), especially pp. 259Google Scholarff. Parallel developments can be seen in other fields. Assyriologists have been arguing that Hammurabi's laws were designed to present an image of Hammurabi as a good king rather than to provide guidance for judges: Norman Yoffee, “Context and Authority in Early Mesopotamian Law” (n.d.); Finkelstein, J. J., “Ammisaduqa's Edict and the Babylonian ‘Law Codes,’“ Journal of Cuneiform Studies 15 (1961): 91–104CrossRefGoogle Scholar; Bottéro, Jean, ‘Le ‘Code’ de Hammurabi,” Annali della Scuola Normale Superiore, Pisa xii.2 (1982): 409–41Google Scholar. Similar points have been made about medieval law: Wormald, Patrick, “Lex Scripta and Verbum Regis: Legislation and Germanic Kingship from Euric to Cnut,” in Early Medieval Kingship, ed. Sawyer, P. H. and Woods, I. N. (Leeds, 1977), 105–39Google Scholar; Toch, Michael, “Asking the Way and Telling the Law: Speech in Medieval Germany,” Journal of Interdisciplinary History 16 (1986): 667–82CrossRefGoogle Scholar. It has been pointed out that impressive death-sentence rituals in eighteenth-century English courts were often followed by pardon or commutation of sentence: Hay, Douglas, “Property, Authority and the Criminal Law,” in Albion's Fatal Tree, ed. Hay, a.o. (London, 1975), 17–63Google Scholar.

3. On priesthood-owning clans see Humphreys, S. C., “Fustel de Coulanges and the Greek ‘genos,’” 8 Sociologia del diritto (1983): 35–44Google Scholar. Athens called in the seer Epimenides from Crete rather than a local expert, in the early sixth century, to deal with a pollution scandal that had split the upper class. On oracles see Humphreys, S. C., Anthropology and the Greeks (London, 1978), 237, 254–55Google Scholar.

4. See Talamanca, M., “‘Dikazein’ e ‘krinein’ nelle testimonianze greche più antiche,” in Symposion 1974 (Cologne, 1979), 103–33Google Scholar; Humphreys, S. C., “The Evolution of Legal Process in Ancient Attica,” in Tria Corda. Scritti in onore di Arnaldo Momigliano, ed. Gabba, E. (Como, 1983), 229–56Google Scholar (131-32, n. 2). The appeal of Solomon's judgment is that it combines the two opposite solutions to the problem of judging, compromise and exposure of guilt—as the myths of Oedipus, Romulus, Arthur, etc., combine two opposite solutions to the problem of succession to kingship, by revealing the charismatic stranger as the lawful heir.

5. See Gagarin, Michael, “Antilochus' Strategy: The Chariot Race in Iliad 23,” Classical Philology 78 (1983) 35–39CrossRefGoogle Scholar. The ingenuity of Menelaus lies both in the wording of the oath Antilochus is challenged to take—he could not lightly swear that no trickery, dolos, was involved in his victory—and in the opportunity offered by the challenge for Antilochus to yield without losing too much face.

6. This seems to me an important implication, not yet sufficiently explored, of Gagarin's proof (Drakon and Early Athenian Homicide Law [New Haven, 1981Google Scholar]) that Drakon did not write down rules for the treatment of intentional homicide. Pace Stroud, Ronald S. (Drakon's Law on Homicide [Berkeley, 1968], 75–82)Google Scholar and Develin, Robert (“The Constitution of Drakon,” Athenaeum 62 [1984]: 295–307)Google Scholar, we cannot place any reliance on later Athenian statements that Drakon drafted a complete code. These are clearly based on a conception of the lawgiver's role shaped by the later legislation of Solon. On legends about early lawgivers see Szegedy-Maszak, Andrew, “Legends of the Greek Lawgivers,” Greek, Roman and Byzantine Studies 19 (1978): 199–209Google Scholar. Drakon may have been responsible for a law against tyrants: Ostwald, Martin, “The Athenian Legislation against Tyranny and Subversion,” Transactions of the American Philological Association 86 (1955): 103–28CrossRefGoogle Scholar.

7. On Eupatridae see Humphreys, “Genos,” supra note 3. Daughters got dowry. A brotherless girl married her next-of-kin, and her father's estate passed to her offspring when they came of age. On portable wealth see Humphreys, Anthropology, supra note 3, 165-69.

8. It seems to me likely that Solon's prohibition of the export of all foodstuffs except olive oil was triggered by a crisis, even though no reason was ever found to repeal it. In a year of drought the islands would suffer more than the mainland.

9. It is instructive to compare Solon's work with Mesopotamian law-codes as analyzed by Finkelstein (supra note 2, 99-104; cf. Wiseman, D. J., “The Laws of Hammurabi Again,” Journal of Semitic Studies 7 [1962]: 161–72)CrossRefGoogle Scholar. Like the “codifications” of early Mesopotamian rulers, Solon's restoration of balance in society involved a combination of (1) specific, one-off measures to alleviate economic distress (cancellation of debts); (2) new laws designed to be valid in perpetuity (wealth as criterion of eligibility for office); (3) fixing in written form rules for just behavior that were already current; and (4) personal statements explaining and justifying his actions (poems; the proemium to Hammurabi's laws is also poetic). Writing down current norms was not solely a response to complaints from litigants about arbitrary judgments; it was also part of Solon's presentation of his reforms as a restoration of order. (Cf, from a slightly different point of view, Eder, W., “The Political Significance of the Codification of Law in Archaic Societies: An Unconventional Hypothesis,” in Social Struggles in Archaic Rome: New Perspectives on the Conflict of the Orders, ed. Raaflaub, Kurt (Berkeley, 1986Google Scholar).

10. Cf. Hesiod, Theogony 306-7; Gernet, Louis, Recherches sur le développement de la pensée juridique et morale en Grèce (Paris, 1917Google Scholar); Douglas, Mary, Implicit Meanings (London, 1975Google Scholar), chap. 3; Geertz, Clifford, Local Knowledge (New York, 1983), 80–84Google Scholar. Apollodorus son of Pasion of Acharnae threatened to bring suit for hybris against his father's ex-slave Phormio for marrying his mother (Demosthenes 45 Steph. i 3-4; cf. 36 Phormio 30). Solon says that the sea is the most just of elements if not stirred up (Gentili, Bruno, “La giustizia del mare: Solone, fr. 11 D, 12 West,” Quaderni Urbinati 20 [1975]: 159–62)CrossRefGoogle Scholar. What is just, dikaios, stays within bounds, on the mark. See passages collected by Havelock, Eric A., The Greek Concept of Justice (Cambridge, Mass., 1978CrossRefGoogle Scholar).

11. Demou hegetores, the ruling class; cf. Nagy, Gregory, “Poet and Tyrant. Theognidea 39-52 = 1081-1082b,” Classical Antiquity ii.l (1983): 82–91CrossRefGoogle Scholar.

12. See Ruschenbusch, E., “Heliaia: die Tradition über das solonische Volksgericht,” Historia 14 (1965): 381–84Google Scholar; Humphreys, “Evolution,” supra note 4. I hope to discuss elsewhere the arguments of Hansen, Mogens Hermann, “The Athenian Heliaia from Solon to Aristotle,” Classica et Medievalia 33 (1981): 9–48Google Scholar.

13. Phasis: R. Herzog, Heilige Gesetze von Kos (Preussische Akademie der Wissenschaften, philos.-hist. Klasse, Abhandlungen 1928.6) no. 11 (= Sokolowski, F., Lois sacrées des cités grecques [Paris, 1969], no. 150Google Scholar). I do not accept the reading to p[rytanin] in IG i34.24: phasis is open to anyone. Military graphai: Harrison, A. R. W., The Law of Athens ii Procedure (Oxford, 1971), 32Google Scholar. Dereliction of duty: e.g., IC i.XVI.1, 31-34, Gortyn and Lato, 3rd c. B.C. Citizenship: Englemann, H. and Merkelbach, R., eds., Die Inschriften von Erythrae i (Bonn, 1972), no. 2Google Scholar. Rubbish: IG xii.5 Suppl. p. 105, SGDI iv pp. 856-7 = Jeffery, L. H., Local Scripts of Archaic Greece (Oxford, 1961), 305Google Scholar, no. 37, Paros c. 475-50. In this law, unusually, the prosecutor gets the whole fine instead of sharing it with the city.

14. Pouilloux, J., Recherches sur l'histoire et les cultes de Thasos (Paris, 1954), i no. 7, dated c. 460–50Google Scholar by Jeffery, Local Scripts, supra note 13; IG xii Suppl. 347, c. 425-12; IG xii.8.264 + Suppl. (Pouilloux, op. cit. 205-13). The new Thasian legal text SEG xxx. 1090 shows that Thasian law came under Attic influence during the classical period (cf. Gofas, D., “Les carpologues de Thasos,” Bulletin de correspondance hellénique 93 [1969]: at 364–69CrossRefGoogle Scholar; id., ‘Emmenoi dikai à Thasos,” in A. Biscardi, ed., Symposion 1974 supra note 4, 175-88; cf. Lambrinudakis, W. and Wörrle, M., “Ein hellenistisches Reformgesetz über das öffentliche Urkundenwesen aus Paros,” Chiron 13 [1983]: at 314–20)Google Scholar. There is no reason to suppose, however, that Attic models were already being followed before 450, especially since in Attica only the victim could bring a suit for biaia, although the state exacted a fine equal to the damages awarded: see Harrison, Procedure, supra, note 13, 78.

15. On graphai see Harrison, A. R. W., The Law of Athens, 2 vols. (Oxford, 1968, 1971Google Scholar), s.v., also Winkel, L. C., “Quelques remarques sur l'accusation publique en droit grec et romain,” 29 Revue internationale des droits de l'antiquité (1982): 281–94Google Scholar. Illtreatment of orphans and brotherless girls was perhaps already covered by the procedure of eisangelia, denunciation to a magistrate, which would have grown up automatically from the eponymous archon's responsibility for “empty” households: Harrison, , op. cit. i 117ff.Google Scholar; Ruschenbusch, E., Untersuchungen zur Geschichte des athenischen Strafrechts (Cologne, 1968), 54–55Google Scholar; Lerat, L., “Une loi de Delphes sur les devoirs des enfants envers leurs parents,” Revue de philologie 68 (1943): 62–86Google Scholar. For protection of widows and orphans as a function of rulers in Mesopotamia see Yoffee, “Context and Authority,” supra note 2. Ruschenbusch, (“Hybreos graphe. Ein Fremdkörper im athenischen Recht des 4. Jh. v. Chr.” 82 Zeitschrift der Savigny-Stiftung [röm. Abt] [1965]: 302–9)Google Scholar and Gagarin, M. (“The Athenian Law against Hybris,” in Arktouros. Hellenic Studies Presented to B. W. Knox [Berlin, 1979], 229–36)Google Scholar date the suit for hybris to the fifth century because in Demosthenes’ quotation of the law (21 Meidias 47), “If anyone commits hybris or does anything paranomon,” they assume that paranomon must mean “contrary to written law.” The term however is often used of breaches of unwritten norms, even in the fourth century, and in any case it is not certain that Demosthenes is quoting verbatim.

16. Theognis 43-60, 145-54, 183-96, 289-92, 321-22, 743-52, 1061-62. In premodern Chinese law, which was based on the view that all unjust acts are a threat to cosmic order, victims of civil wrongs could only take the offender to court if a magistrate agreed to prosecute him for a breach of law. Otherwise disputes were settled by arbitration. See Bodde, Derk and Morris, Clarence, Law in Imperial China (Philadelphia, 1967CrossRefGoogle Scholar).

17. Aeschylus in the Eumenides (458 BC) represents Athena as voluntarily renouncing the role of judge and setting up a court in which the magistrate merely presided over a jury, as Athenian magistrates had done since 462/1. The transfer of power that took place in this year had been preceded by a series of attacks on ex-magistrates for misconduct, which must have increased their reluctance to take responsibility for judicial decisions (Ath. Pol. 25.1-2, cf. Humphreys, “Evolution,” supra note 4).

18. Perhaps introduced, with coinage, under the Pisistratid tyrants later in the sixth century.

19. M/L no. 2 (SEG xxvii 620), Dreros, Crete, seventh century; IC iv Gortyn 14, c. 600-525 (Jeffery, Local Scripts, supra note 13); Aristotle, Politics 1272a27-b15 suggests that conflicts over office were endemic in Crete. The “tyrants” of archaic Greece were men who held on to office for what their opponents considered an undue length of time, sometimes with a show of constitutionality; in a crisis a leader could be given wide powers to re-establish order. Cf. G. Nagy, “Poet and Tyrant,” supra note 11; Herodotus i.95-100 on Deioces the Mede.

20. Ep' adikiai tes poleos: not so much an instruction to take motive into account as an emphasis on the seriousness of the crime.

21. 100 staters might approximately amount to a small craftsman's annual income.

22. Hainsworth, B., Tituli ad dialectos Graecas illustrandas selecti, ii. Tituli Dorici et Ionici (Leiden, 1972), no. 74Google Scholar. To be cursed meant public opprobrium as well as spiritual danger; reference is made later in the text to a customary (nomaia) set of curses pronounced by the basileus, the religious head of the state. Such cursings were a ritual reaffirmation of law and order; cf. Wilhelm, Adolf, Griechische Inschriften rechtlichen Inhalts (Pragmateiai tes Akademias Athenon xvii.l, 1951), 86Google Scholar; Lambrinudakis and Wörrle, “Reformgesetz,” supra note 14, 310-13; SEG xxxi.984-85.

23. Hainsworth, op. cit. (n. 22) no. 19; SEG xxxi.359. Ten minas might be four or five years’ earnings for a craftsman.

24. Cf. nos. 3, 7, 11 (?) of the recently published legal texts from Tiryns, SEG xxx.380; IC iv Gortyn 78-80 (c. 450-400, Jeffery, Local Scripts, supra note 13).

25. Standardized penalties for delinquent magistrates continue to be included in legislation, but the procedure for exacting them is not specified. Detailed regulations on phasis and endeixis in Tod, Marcus N., ed., A Selection of Greek Historical Inscriptions, ii. From 403 to 323 BC (Oxford, 1948), no. 162Google Scholar (IG ii21629 +, 325/4 BC) are designed for the island of Keos. Collection of fines from debtors to the state continued to present problems; for an apographe, denunciation of debtors’ undeclared assets, an informer got 75 percent of the denounced property as reward, according to [Demosthenes] 53 Nicostratus 2. Cf. Harrison, Procedure, supra note 13, 211-17, 172-75. Lewis, D. M., “After the Profanation of the Mysteries,” in Ancient Society and Institutions. Studies Presented to Victor Ehrenberg (Oxford, 1966), 188Google Scholar with nn. 66-67, followed by Osborne, Robin, “Law in Action in Classical Athens,” Journal of Hellenic Studies 105 (1985): 40–58CrossRefGoogle Scholar, suggests amending the text from ta tria mere to ta trita mere, citing as parallel an inscription set up by the public auctioneers (poletai): Crosby, M., “The Leases of the Laureion Mines,” Hesperia 19 (1950): 237Google Scholar, no. 14, line 42. But the absence of any other mention of rewards in the poletai inscriptions is disturbing. The working of the informant system may well have been less simple than we imagine; Apollodorus in [Demosthenes] 53 speaks of foregoing his reward, and in IG ii21631.365-8 the informer is a friend of the debtor who contributes his reward towards the payment of the debt. See Dareste, R., Haussoullier, B., and Reinach, Th., eds., Recueil d'inscriptions juridiques (Paris, 1898), ii. 1.153–7Google Scholar. Cf. also [Demosthenes] 25 Aristogiton i, Hypothesis 3-5. Osborne, “Law in Action,” notes that many denouncers may have foregone the reward.

26. Ath. Pol. 7.1. Plato Phaedrus 235 d8-el and Plutarch Solon 25.3 say that the statue is to be life size and dedicated at Delphi. Cf. M/L no. 13B (IG ix.l2 (3) 609, SEG xxix.468, Locris late sixth century). See also Rudhardt, J., “Le délit d'impiété d'après la legislation attique,” Museum Helveticum 17 (1960), 96Google Scholar.

27. Value of drachma: Ruschenbusch, “Hybreos graphe,” supra note 15. Heavy penalties: Hay, “Property, Authority and the Criminal Law,” supra note 2. In Athens, as in England, there may have been ways of avoiding payment in full; cf. Demosthenes 22 Androtion, 24 Timocrates.

28. Epistates and skopos. The quotation may not be verbatim (Kirk, G. S., Heraclilus. The Cosmic Fragments [Cambridge, 1956], 294)Google Scholar. Fragments of Heraclitus are quoted here from Kahn, Charles H., The Art and Thought of Heraclitus (Cambridge, 1979Google Scholar). Cf. frag. XLIV. There is no need to suppose with Kahn that in XLIIA Heraclitus was thinking of Persian satraps. Note the emphasis in Aeschylus Suppliants 595f. on Zeus' freedom to act with no dependence on higher authority.

29. Kahn, Charles H., Anaximander and the Origins of Greek Cosmology (New York, 1960Google Scholar); id., Heraclitus (n. 28) on frags. XL-XLI, LXVII-LXXXIII. Like Kahn (op. cit. 206-7, cf. id., “A New Look at Heraclitus,” American Philosophical Quarterly i.3 [1964]: 189-203), I do not think Heraclitus is polemising against Anaximander. He does, however, introduce a more specific stress on the mathematical exactitude of the balance of justice achieved in natural processes (fr. XXXIX) which might suggest an interest in the assessment of damages by courts. The supreme power in the cosmos, in this view, is not a creator/legislator but a judge who intervenes periodically to restore balance. (Cf. note 9 supra). A similar view of justice is put forward in Aeschylus Prometheus 551-52. In the Oresteia (Agamemnon 750-81, Choephoroe 144, 306-14) it appears as an old, well-known view that Aeschylus wants to modify; although it might offer a new way of finding meaning in the sufferings of mythical heroes, the dramatist had to interrupt the unending cycle of aggression and counter-aggression to round off his trilogy. The evolutionary transition from self-help to court judgment provides a conclusion for the Oresteia; we do not know how the problem was solved in the other trilogies. For theories of legal evolution in other ancient sources see Arthur, Marilyn, “Cultural Strategies in Hesiod's Theogony: Law, Family, Society,” Arethusa 15 (1982): 63–82Google Scholar; Dieter Nörr, Rechtskritik in der römischen Antike, Bayerische Akademie der Wissenschaften, philos.-hist. Klasse, , Abhandlungen N.F. lxxvii (1974)Google Scholar.

30. Isaeus 11 Hagnias, [Demosthenes] 43 Macartatus; Humphreys, S. C., “Social Relations on Stage: Witnesses in Classical Athens,” History and Anthropology i.2 (1985): 319, 351Google Scholar; ead. “Kinship Patterns in the Athenian Courts,” Greek, Roman and Byzantine Studies 27 (1986): 57–91Google Scholar. For anthropological studies see, e.g., Moore, Sally F., “Chagga ‘Customary’ Law and the Property of the Dead,” in Mortality and Immortality: The Anthropology and Archaeology of Death, ed. Humphreys, S. C. and King, H. (London, 1981), 239–43Google Scholar; Black-Michaud, Jacob, Feuding Societies (Oxford, 1975), 63–70Google Scholar.

31. See Humphreys, S. C., “Law, Custom and Culture in Herodotus,” Arethusa 20 (1987)Google Scholar; Stewart, Andrew F., “Pindaric Dike and the Temple of Zeus at Olympia,” Classical Antiquity ii.l (1983): 133–44CrossRefGoogle Scholar. For the association of violence and justice see also Solon fr. 36, 15-17 West and Aeschylus Seven Against Thebes 244, with the comments of Havelock, Justice, supra note 10.

32. Cf. Kahn, “New Look,” supra note 29, 198.

33. Cf. Humphreys, “Law, Custom and Culture,” supra note 31. Thucydides uses nomos keimenos of a law of human behavior (unwritten) in v 105.2.

34. For references to recent discussions of the actual proportions of Athenians and non-Athenians among traders see Mossé, Claude, “The ‘World of the Emporium’ in the Private Speeches of Demosthenes,” in Trade in the Ancient Economy, ed. Garnsey, Peter a.o. (London, 1983), 53–63Google Scholar. The question here is one of stereotypes. In Sophocles' Antigone, because law is made by an individual ruler, Creon, the distance between the lawmaker and the public to which law is addressed is patent, and the question of the right to resist inevitably follows.

35. Note the use of the formal phraseology of the assembly to add dignity and weight to actors’ decisions in Aeschylus (e.g. Suppliants 600ff., 940-49; Agamemnon 577-79, 1353; Seven 271-79). Aeschylus lived through the period c. 507-450 when the number and momentousness of assembly decisions increased most strikingly.

36. Thucydides iii.45.3. Rudhardt's discussion of Athenian legislation against impiety (asebeia; supra note 26) shows that the method of dealing with laws that came to be thought too loosely worded was not to incorporate a definition into the law but to pass additional measures permitting specific acts to be prosecuted under it (cf. Hyperides 3 Euxenippus 5-6, Plato Laws 630e). In my view, prosecutors were not thereby debarred from bringing charges on grounds not so specified, if they thought a jury would accept them; but the inclusion of behavior explicitly defined as actionable in a wider charge would increase its chances of success.

37. Cf. Pohlenz, Max, “Nomos und Physis,” Hermes 81 (1953): 429–30Google Scholar; Aristotle, Nicomachean Ethics 1137b; Biscardi, A., “La ‘gnome dikaiotate’ et l'interprétation des lois dans la Grèce ancienne,” 17 Revue internationale des droits de l'antiquité (1970): 219–32Google Scholar. Meyer-Laurin, H., Gesetz und Billigkeit im attischen Prozess (Weimar, 1965Google Scholar), rightly pointed out that jurors are not openly invited by speakers to disregard written law. Litigants prefer to claim, however speciously, that they have both law and equity on their side. But we should not credit juries with too clear a consciousness of distinction between laws and other normative statements (cf. Comaroff, John L. and Roberts, Simon, Rules and Processes. The Cultural Logic of Dispute in an African Context [Chicago, 1981]Google Scholar). The absence of any source in court of authoritative rulings on the interpretation of law, the lack even of control over selective quotation and paraphrasing of legal texts, is telling; and speakers often concentrate on questions of equity and ethics where a more legalistic culture would have demanded arguments about the interpretation of the law. Cf. Biscardi, op. cit. 228-29; Hardcastle, M., “Some Non-legal Arguments in Athenian Inheritance Cases,” Prudentia 12 (1980): 11–22Google Scholar; below, note 67. On “unwritten laws” see now Ostwald, M., “Was There a Concept of agraphos nomos in Classical Greece?” in Exegesis and Argument. Studies in Greek Philosophy Presented to Gregory Vlastos, ed. Lee, E. N. a.o. (Assen, 1973; Phronesis supplement i), 70–104Google Scholar.

38. Xenophon Hellenica i.7.12. Pace Mehl, Andreas “Fur eine neue Bewertung eines Justizscandals,” 99 Zeitschrift der Savigny-Stiftung, [röm. Abt.] [1982]: 32–80)Google Scholar, the legal situation cannot have been clear. Xenophon's account is biased, but provides useful evidence about upper-class conceptions of the function of the graphe paranomon.

39. Superstition, to judge from Theophrastus’ account (Characters 16) was associated with effeminacy rather than lack of education. However, education was supposed to inculcate qualities associated with masculinity: self-control and rationality. On impiety see Momigliano, Arnaldo, “Impiety in the Classical World,” in Dictionary of the History of Ideas (New York, 1973), 564–67Google Scholar.

40. Weber, Max, Economy and Society, trans Shils, Edward a.o., 2 vols. (Berkeley, 1978), iiGoogle Scholar, chaps. VIII.iv-v, XII. 16-19. Weber's cross-cutting interests in the formal rationalization of law, in the relation between law and economic development, and in the differentiation and competition of elites, produce a succession of suggestive tangents rather than a clearly structured model. On the rule of law and class conflict see also E. P. Thompson, Whigs and Hunters, supra note 2.

41. Unfortunately we do not know how the oligarch Antiphon angled the argument in his speeches in defence of allied communities.

42. This development is discussed in more detail in Humphreys, “Evolution” and “Social Relations on Stage,” supra notes 4, 30.

43. 222 Kock; Ruschenbusch, E., Solonos Nomoi, Historia-Einzelschriften ix (Wiesbaden, 1966), fr. 41=52cGoogle Scholar.

44. The accounts of legal technique in Calhoun, George M., Greek Legal Science (London, 1944Google Scholar), and Jones, J. Walter, Law and Legal Theory of the Greeks (Oxford, 1956Google Scholar), are inadequate. Rome is better served: for recent work see, e.g., Frier, Bruce W., The Rise of the Roman Jurists (Princeton, 1985CrossRefGoogle Scholar); Bretone, Mario, Techniche e ideologie dei giuristi romani 2d ed. (Naples, 1982), especially 340–42Google Scholar; Schiavone, Aldo, Nascita della giurisprudenza (Ban, 1976Google Scholar); Vonglis, B., La lettre et l'esprit de la hi dans la jurisprudence classique et la rhétorique (Paris, 1968Google Scholar).

45. Calhoun, G. M., “Oral and Written Pleading in Athenian Courts,” Transactions of the American Philological Association 50 (1919): 177–93CrossRefGoogle Scholar. Cf. Morrow, Glenn R., Plato's Cretan City (Princeton, 1960), 283Google Scholar; Keaney, J. J., “Theophrastus on Greek Judicial Procedure,” Transactions of the American Philological Association 104 (1974): 179–94CrossRefGoogle Scholar; Humphreys, “Social Relations on Stage,” supra note 30, note 6. Carawan, Edwin M., “Erotesis: Interrogation in the Courts of Fourth-Century Athens,” Greek, Roman and Byzantine Studies 24 (1983): 209–26Google Scholar, collects examples of cross-examination of opponents in court and points out that cross-questioning may have been used more fully in arbitration, and in anakrisis and other forms of preliminary examination (note Aeschylus Suppliants 387f. Differences in form of preliminary procedure probably have no bearing on this question).

46. Cf. Carter, Lawrence, The Quiet Athenian (Oxford, 1986Google Scholar).

47. Ath. Pol. 35.2, cf. 9.2 and Rhodes, Peter J., A Commentary on the Aristotelian Athenaion Politeia (Oxford, 1981Google Scholar), ad locc. See also Ruschenbusch, E., “Dikasterion panton kyria,” Historia 6 (1957): 257–74Google Scholar. The type of argument to which the Thirty objected is illustrated in Biscardi, “Gnome dikaiotate,” and Hardcastle, “Non-legal Arguments,” supra note 37. D. Nörr, Rechtskritik, supra note 29 sketches some of the main lines of criticism of laws in classical Greece but does not try to relate criticism to historical context.

48. Conservative reaction: Wade-Gery, H. T., “Thucydides the Son of Melesias,” Journal of Hellenic Studies 52 (1932): 205–27CrossRefGoogle Scholar (= id., Essays in Greek History [Oxford 1958], 239–70)Google Scholar. F. Jacoby (FGH 328 F 120-1, n. 12), H.-J. Wolff (Normenkontrolle und Gesetzesbegriff in der attischen Demokratie, Sitzungsberichte der Heidelberger Akademie der Wissenschaften, philos.-hist. Klasse 1970.2), and Sealey, R. (“On the Athenian Concept of Law,” Classical Journal 77 [1982]: 289–302)Google Scholar have all suggested that the graphe paranomon may have been introduced after Pericles's death. Second thoughts in the assembly in 427 and 416 (see Dover, K. J., “Anapsephisis in Fifth-Century Athens,” Journal of Hellenic Studies 75 [1955]: 17–20)CrossRefGoogle Scholar are not relevant to this question. After its suspension by the oligarchs in 411 the graphe paranomon came to be seen as a constitutional safeguard, but it may originally have been introduced as a check on confusion in legislation rather than as an impediment to radical change. See also Lewis, D. M., “Entrenchment-Clauses in Attic Decrees,” in Phoros. Tribute to Benjamin Dean Meritt (Locust Valley, N.Y., 1974), 21–38Google Scholar.

49. 1 Eratosthenes 32-33; cf. Plutarch Solon 23, Harrison Law, supra note 15, i:34; Salviat, F. and Vatin, C., “La repression des violences sexuelles dans la convention entre Delphes et Pellana, le droit d'Athènes et les Lois de Platon,” in idd., Inscriptions de la Grèce centrale (Paris, 1971), 63–75Google Scholar.

50. See Fingarette, A., “A New Look at the Wall of Nikomakhos,” Hesperia 40 (1971): 330–35CrossRefGoogle Scholar; Clinton, K., “The Nature of the Late Fifth Century Revision of the Athenian Law Code,” Hesperia, Supplement 19 (Studies Vanderpool, 1982): 27–37CrossRefGoogle Scholar. Lysias’ attacks on Nicomachus, a member of the commission, for leaving out old sacrifices and inserting new ones (Lysias 30), however tendentious it may have been, suggests some discretionary powers. Gagarin, M., “The Organization of the Gortyn Law Code,” Greek, Roman and Byzantine Studies 23 (1982): 129–46Google Scholar, helps us to understand what would have been involved in rearranging the laws of Athens. We badly need a study of citations of laws in the Attic orators; it cannot be assumed that any text cited belongs wholly to a single date, nor that citations are complete and unabbreviated.

51. Boegehold, A., “A Central Archive at Athens,” American Journal of Archaeology 76 (1972): 23–30CrossRefGoogle Scholar. For recent work on ancient archives see Lambrinudakis and Wörrle, “Reformgesetz” supra note 14; Sherwin-White, S. M., “Ancient Archives: The Edict of Alexander to Priene, a Reappraisal,” Journal of Hellenic Studies 105 (1985)CrossRefGoogle Scholar; Williamson, Callie, “Monuments of Bronze,” Classical Antiquity vi.l (1987)Google Scholar.

52. MacDowell, Douglas M., “The Chronology of Athenian Speeches and Legal Innovations 401-398 BC,” 18 Revue internationale des droits de l'antiquité (1971): 267–74Google Scholar.

53. If jurors' interests resembled those of the reading public (on which see Humphreys, “Social Relations on Stage,” cit. n. 30, 316-21), they were interested neither in legal nor in financial technicalities, preferring topics which lent themselves to ethical argument. The number of suits dealing with mining, banking, and sea trade had by c. 350 grown to the point where it was worth making special arrangements to deal with them promptly (Gernet, L., “Sur les actions commerciales en droit athénien,” Revue des études grecques 51 [1938]: 1–44CrossRefGoogle Scholar = Gernet, , Droit et société dans la Grèce ancienne [Paris, 1955], 173–200Google Scholar; in these suits the usual division of procedure according to the civil status of the parties was abolished and even slaves were allowed to plead). But most of the speeches that survive or are known from titles deal with family affairs: inheritance, legitimacy, guardianship, etc. Apollodorus, son of the banker Pasion, made many speeches in banking cases (Demosthenes 36 Phormio 20,41) but only two are preserved ([Demosthenes] 49 Timotheus and 52 Nicostratus), one of which was of interest because the defendant, Timotheus, was a famous general. We have four speeches on trade matters under Demosthenes' name (32-35): one on banking from Isocrates (17), six fragments on similar topics from Lysias (35-40 Gernet). Disputes over the expenses of warships, probably very frequent, account for only four preserved speeches (Demosthenes 42, 47, 50 and, ostensibly, Isocrates 15 Antidosis) and two fragments (Hyperides frags. 43-44 Kenyon).

54. It recurs in campaigns for “law and order” in modern democracies; cf. Hall, Stuart a.o., eds., Policing the Crisis: Mugging, the State and Law and Order (London, 1978CrossRefGoogle Scholar).

55. See especially Politicus 294c, Meno 71e-73c, and cf. Humphreys, Anthropology, supra note 3, 232-33; Szegedy-Maszak, A., The “Nomoi” of Theophrastus (New York, 1981), 2–7Google Scholar.

56. Gernet, L., “Note sur la notion de délit privé en droit grec,” in Droits de l'antiquité et sociologie juridique, Mélanges H. Lévy-Bruhl (Paris, 1959), 403–5Google Scholar; Wolff, H.-J., “La structure de l'obligation contractuelle en droit grec,” 44 Revue historique de droit français et étranger (1966): 569–83Google Scholar; id., “Zum Problem der dogmatischen Auffassung des altgriechischen Rechts,” in Dimakis, P., ed., Symposion 1979 (Athens, 1983), 7–20Google Scholar; cf. Cohen, David, Theft in Athenian Law ((Munich, 1983), 11–13Google Scholar. When Epicurus suggested that it is particularly in making contracts (synthekai) that men perceive their mutual interest in obeying law, he may have been influenced by the growing importance of contractual relations in his own day (Ratae Sententiae 31-32 Arrighetti; cf. Müller, Reimar, Die epikureische Gesellschaftstheorie, [Berlin, 1972Google Scholar], chap. 4). Earlier versions of the Greek “social contract” theory of legal evolution laid more stress on the prevention of violence: see Cole, Thomas, Democritus and the Sources of Greek Anthropology (Ann Arbor, 1967), chap. 6 and pp. 112–17Google Scholar; Goldschmidt, V., “La théorie epicuréenne du droit,” in Science and Speculation, ed. Barnes, Jonathan a.o. (Cambridge, 1982), 304–26Google Scholar.

57. Laws 635b-674c; cf. Boyancé, P., “Platon et le vin,” Bulletin de l'Association G. Budé n.s. 4 (1951): 3–19Google Scholar.

58. Ries, Gerhard, Prolog und Epilog in Gesetzen des Altertums (Munich, 1983)Google Scholar, doubts the connection, but Lycurgus clearly regarded his honorary decrees as having an educational function: Humphreys, , “Lycurgus of Butadae: An Athenian Aristocrat,” in The Craft of the Ancient Historian, Essays in Honor of Chester G. Starr, ed. Eadie, J. and Ober, J. S. (Lanham, Md., 1985), 199–252Google Scholar.

59. See the commentary on FGH 328 F 65: Wehrli, C., “Les gynéconomes,” Museum Helveticum 19 (1962): 33–38Google Scholar; Garland, Billie Jean, “Gynaikonomoi” (Ph.D. diss., Johns Hopkins University, 1981Google Scholar).

60. It is not clear how far Plato differed from Attic law in allowing slaves to testify and act as supporting speakers in homicide cases (Laws 937a-b; Morrow, Glenn R., Plato's Law of Slavery [Urbana, 1939], 77–89Google Scholar; Harrison, Law i, cit. note 15, 170-71); nor is it clear whether his silence on the torture of slaves implies that it was to be eliminated.

61. [Demosthenes] 43 Macartatus 51, cf. Thompson, W. E., “Some Attic Kinship Terms,” Glotta 48 (1970): 75–81Google Scholar.

62. Jurors are exhorted in general terms to pass sentences that will deter future offenders (Lysias 14 Alcibiades 4, cf. Lycurgus 1 Leocrates 9). Occasionally a past cause célèbre may be recalled. But past decisions are exempla, not a source of binding authority. Cf. Cronin, J. F., The Athenian Juror and his Oath (Chicago, 1936Google Scholar); Jones, , Law and Legal Theory, supra note 44, 133–35Google Scholar. Praetor: Watson, Alan, “The Development of the Praetor's Edict,” Journal of Roman Studies 60 (1970): 105–19CrossRefGoogle Scholar.

63. Plato himself had a younger matrilateral half-brother, Antiphon son of Pyrilampes (APF 8792.viii), who is gently teased about his horsy tastes in Parmenides 126a-c. Where remarriage was due to divorce, the father would have formal custody of the children, but there is no evidence of problems over continued contact with the mother. Relations with stepmothers, however, are expected to be bad: Humphreys, “Kinship Patterns,” supra note 30.

64. Allowed by Plato, in agreement with his change in inheritance law (Laws 924ef, cf. Karabelias, E., “Homère, Platon et survivances de l'épiclérat,” in Symposion 1979 [Cologne, 1983], 177–96Google Scholar), and in Sparta, perhaps because adelphic polyandry was practiced there. In Athens only patrilateral half-siblings could marry; this did not disrupt inheritance patterns.

65. The same situation is portrayed, without the conflict, in Menander's Dyskolos, where the girl and her adoptive half-brother marry a brother and sister; cf. Menander's Shield, where Chaereas and his matrilateral half-sister marry a sibling pair.

66. Cf. Humphreys, “Kinship Patterns,” supra note 30.

67. The speaker of Iseaus 9 argued that the will was forged, that Cleon had been on bad terms with d.c. and that since his father had been adopted out of the family he no longer had any ties of kinship with d.c. The two latter points are brought in to show that it was unlikely that d.c. would have adopted Cleon's son. In Isaeus 1 Cleonymus, d.c. had left his estate by will to kin more distant than the speaker, his sister's son. The latter claims that the will should be disregarded because d.c. had tried to alter it, although he had died before he could do so. The argument does not hinge on the legal standing of an intention to alter a will, but on the unfairness of excluding by will those who would have inherited under the rules for intestate succession (4, 12-13, 27-28, 49) and on the intimate and affectionate relations the speaker and his brothers enjoyed with d.c. (cf. Biscardi, “Gnome dikaiotate,” and Hardcastle, “Non-legal Arguments,” supra note 37).

68. Stobaeus 22.vi, cf. 23.5, 39; Karabelias, E., “L'épiclérat dans la Comédie Nouvelle et dans les sources latines,” in Symposion 1971 (Cologne, 1975), 215–54Google Scholar; id., “La situation successorale de la fille unique du défunt dans la koiné juridique hellénistique,” in Symposion 1977 (Vienna, 1982), 223–34Google Scholar.

69. This may well be part of the original Solonian law. Cf. the similar rule that a colonist could return to the metropolis if he left an adult son or brother in the colony in an early 5th c. Locrian law (M/L no. 20).

70. Mélèze-Modrzejewski, J., “Dryton le crétois et sa famille ou les manages mixtes dans l'Égypte hellénistique,” in Aux origines de l'hellénisme. Hommages à H. van Effenterre (Paris, 1984), 355–56Google Scholar; cf. Wolff, Hans-Julius, Written and Unwritten Marriages in Hellenistic and Postclassical Roman Law (Haverford, 1939Google Scholar); id., “The Background of the Postclassical Legislation on Illegitimacy,” 3 Seminar (1945): 21–45Google Scholar (repr. in Wolff, , Opuscula Dispersa [Amsterdam 1974], 135–59)Google Scholar; Hannick, J.-M., “Droit de cité et manages mixtes dans la Grèce classique,” L'Antiquité classique 45 (1976): 133–48CrossRefGoogle Scholar; Christophilopoulos, A. P., “Ho met' allodapes gamos kata to archaion hellenikon kai to hellenistikon dikaion,” Pragmateiai tes Akademias Athenon xvii.2 (1951Google Scholar; reprinted in id., Dikaion kai historia [Athens, 1973], 68–85Google Scholar). The family memorial cult set up by Diomedon of Cos c. 300 BC admits nothoi to the association, though not to priestly office (Syll. 3 1106.140; cf. Humphreys, , The Family, Women and Death: Comparative Studies [London, 1983], 119–20)Google Scholar.

71. Watson, Gerard, “The Natural Law and Stoicism,” in Problems in Stoicism, ed. Long, A. A. (London, 1971), 216–38Google Scholar; Ducos, M., Les Romains et la loi (Paris, 1984), esp. p. 229Google Scholar.

72. Incest taboo not universal, Xenophon Memorabilia 4.iv. 19-23, presumably referring to Zoroastrians (Nörr, Rechtskritik, cit. supra note 29, 44 note 209).

73. Keaney, “Theophrastus,” supra note 45, 188; Keaney, and Szegedy-Maszak, A., “Theophrastus' De Eligendis Magistratibus: Vat. Gr. 2306, Fragment B,” Transactions of the American Philological Association 106 (1976): 227–40CrossRefGoogle Scholar; Szegedy-Maszak, “Nomoi” of Theophrastus, supra note 55. On Plato, Boyancé, “Platon et le vin,” supra note 57, 12.

74. Although laws differed somewhat from one Greek city to another, the idea that cultures might have radically incompatible legal systems never occurred to the Greeks. It was believed that in the past states had copied laws from each other and borrowed wise men to act as legislators and arbitrators (Szegedy-Maszak, “Legends of the Greek Lawgivers,” supra note 6), and the practice of inviting a panel of visiting judges from a neutral city to settle disputes between states or factions, known already in archaic times, seems to have become increasingly common.

75. Redfield, James M., “The Women of Sparta,” Classical Journal 73 (1978): 146–61Google Scholar.

76. Gagarin, Michael, Aeschylean Drama (Berkeley, 1976Google Scholar).

77. Nörr, Rechtskritik, supra note 29, chap. 6; Lawrence Carter, The Quiet Athenian, supra note 46.

78. Humphreys, “Social Relations on Stage,” supra note 30.