Athenian Law and Society

Konstantinos A. Kapparis

• Publisher: Routledge
• Year: 2018
• ISBN:
  9781317177517
• Edition: 1
• Topic: History
• Subtopic: Ancient History
• Index: History

Athenian Law and Society focuses upon the intersection of law and society in classical Athens, in relation to topics like politics, class, ability, masculinity, femininity, gender studies, economics, citizenship, slavery, crime, and violence. The book explores the circumstances and broader context which led to the establishment of the laws of Athens, and how these laws influenced the lives and action of Athenian citizens, by examining a wide range of sources from classical and late antique history and literature. Kapparis also explores later literature on Athenian law from the Renaissance up to the 20th and 21st centuries, examining the long-lasting impact of the world's first democracy.

Athenian Law and Society is a study of the intersection between law and society in classical Athens that has a wide range of applications to study of the Athenian polis, as well as law, democracy, and politics in both classical and more modern settings.

1
The administration of justice in the polis

1.1 Sources

1. Only written laws are considered valid and constitute the basis for litigation (after 403):
   Νόμοι. Ἀγράφῳ δὲ νόμῳ τὰς ἀρχὰς μὴ χρῆσθαι μηδὲ περὶ ἑνός. Ψήφισμα δὲ μηδὲν μήτε βουλῆς μήτε δήμου νόμου κυριώτερον εἶναι. Μηδὲ ἐπ’ ἀνδρὶ νόμον ἐξεῖναι θεῖναι, ἐὰν μὴ τὸν αὐτὸν ἐπὶ πᾶσιν Ἀθηναίοις, ἐὰν μὴ ἑξακισχιλίοις δόξῃ κρύβδην ψηφιζομένοις.

   Τί οὖν ἦν ἐπίλοιπον; οὑτοσὶ ὁ νόμος. Καί μοι ἀνάγνωθι τοῦτον.

   <Νόμος.> Τὰς δὲ δίκας καὶ τὰς διαίτας κυρίας εἶναι, ὁπόσαι ἐν δημοκρατουμένῃ τῇ πόλει ἐγένοντο. Τοῖς δὲ νόμοις χρῆσθαι ἀπ’ Εὐκλείδου ἄρχοντος.

   (And. 1.87)
   Laws: In no circumstances shall magistrates enforce a law which has not been inscribed. No decree, whether of the Council or Assembly, shall override a law. No law shall be directed against an individual without applying to all citizens alike, unless an Assembly of six thousand so resolve by secret ballot.

   What was needed to complete the list? Only the following law, which I will ask the clerk to read to you.

   Laws: All decisions given in private suits and by arbitrators under the democracy shall be valid. But of the laws only those passed since the archon ship of Eucleides shall be enforced.¹
2. The scrutiny of incoming magistrates:
   ἐπερωτῶσιν δ’, ὅταν δοκιμάζωσιν, πρῶτον μὲν ‘τίς σοι πατὴρ καὶ πόθεν τῶν δήμων, καὶ τίς πατρὸς πατήρ, καὶ τίς μήτηρ, καὶ τίς μητρὸς πατὴρ καὶ πόθεν τῶν δήμων’; μετὰ δὲ ταῦτα εἰ ἔστιν αὐτῷ Ἀπόλλων Πατρῷος καὶ Ζεὺς Ἑρκεῖος, καὶ ποῦ ταῦτα τὰ ἱερά ἐστιν, εἶτα ἠρία εἰ ἔστιν καὶ ποῦ ταῦτα, ἔπειτα γονέας εἰ εὖ ποιεῖ, [καὶ] τὰ τέλη <εἰ> τελεῖ, καὶ τὰς στρατείας εἰ ἐστράτευται. ταῦτα δ’ ἀνερωτήσας,’κάλει’ φησὶν ‘τούτων τοὺς μάρτυρας’. ἐπειδὰν δὲ παρά-σχηται τοὺς μάρτυρας, ἐπερωτᾷ ‘τούτου βούλεταί τις κατηγορεῖν’; κἂν μὲν ᾖ τις κατήγορος, δοὺς κατηγορίαν καὶ ἀπολογίαν, οὕτω δίδωσιν ἐν μὲν τῇ βουλῇ τὴν ἐπιχειροτονίαν, ἐν δὲ τῷ δικαστηρίῳ τὴν ψῆφον· ἐὰν δὲ μηδεὶς βούληται κατηγορεῖν, εὐθὺς δίδωσι τὴν ψῆφον·.

   (Arist. Ath. Pol. 55.3–4)
   The questions put in examining qualifications are, first, “Who is your father and to what deme does he belong, and who is your father’s father, and who your mother, and who her father and what his deme?” Then whether he has a Family Apollo and Homestead Zeus, and where these shrines are; then whether he has family tombs and where they are; then whether he treats his parents well, and whether he pays his taxes, and whether he has done his military service. And after putting these questions the officer says, “Call your witnesses to these statements.” And when he has produced his witnesses, the officer further asks, “Does anybody wish to bring a charge against this man?” And if any accuser is forthcoming, he is given a hearing and the man on trial an opportunity of defence, and then the official puts the question to a show of hands in the Council or to a vote by ballot in the Jury-court; but if nobody wishes to bring a charge against him, he puts the vote at once.²
3. The law allowing a son to deny his old father sustenance, if the father had not educated him:
   νόμον ἔγραψεν, υἱῷ τρέφειν πατέρα μὴ διδαξάμενον τέχνην ἐπάναγκες μὴ εἶναι.

   (Plu. Sol. 22)
   He introduced a law that a son is under no obligation to provide for his father who had not educated him.

   Alexis, qui Athenienses ait oportere ideo laudari, quod omnium Graecorum leges cogunt parentes [ali] a liberis, Atheniensium non omnes nisi eos, qui liberos artibus erudissent.

   (Vitr. 6. pr. 3)
   Alexis said that the Athenians deserve special praise because, while all the laws of the Greeks compel the children to provide for their parents, those of the Athenians do not require everyone to provide for their parents but only those who had been educated by them in the liberal arts.
4. The law prohibiting bribery of public officials, and the offer of legal services for money:
   Ἐάν τις συνιστῆται, ἢ συνδεκάζῃ τὴν ἡλιαίαν ἢ τῶν δικαστηρίων τι τῶν Ἀθήνησιν ἢ τὴν βουλὴν ἐπὶ δωροδοκίᾳ χρήματα διδοὺς ἢ δεχόμενος, ἢ ἑταιρείαν συνιστῇ ἐπὶ καταλύσει τοῦ δήμου, ἢ συνήγορος ὢν λαμβάνῃ χρήματα ἐπὶ ταῖς δίκαις ταῖς ἰδίαις ἢ δημοσίαις, τούτων εἶναι τὰς γραφὰς πρὸς τοὺς θεσμοθέτας.

   (D. 46.26)
   If any man enter into a conspiracy, or join in seeking to bribe the Heliaea or any of the courts in Athens, or the Senate, by giving or receiving money for corrupt ends, or shall organize a clique for the overthrow of the democracy, or, while serving as an advocate, shall accept money in any suit, private or public, criminal suits shall be entered for these acts before the Thesmothetae.³
5. The law stating that a person who initiated a graphe, but failed to appear in court or received 1/5th of the votes is liable to a fine of 1000 drachmas:
   ὅσοι δ’ ἂν γράφωνται γραφὰς ἰδίας κατὰ τὸν νόμον, ἐάν τις μὴ ἐπεξέλθῃ ἢ ἐπεξιὼν μὴ μεταλάβῃ τὸ πέμπτον μέρος τῶν ψήφων, ἀποτεισάτω χιλίας δραχμὰς τῷ δημοσίῳ.

   Those who on their own initiate a graphe according to the law: if someone does not appear to prosecute or appears but does not receive 1/5 of the votes, he is to pay a fine of 1000 drachmas to the public treasure.

1.2 The division of powers in the Athenian Democracy

The tripartite division of powers into executive, legislative and judicial, which has prevailed in constitutional forms since the time of the Enlightenment is typically attributed to Montesqieu (L’ Esprit de Lois). It was conceived as a response to many centuries of authoritarian monarchies where one person held all powers concentrated in his (and occasionally her) hands, and all authority stemmed from his divine right to rule. And yet, this was not the first time in history when separation of powers with all the concomitant checks and balances was implemented. One could hardly think it possible to have a democratic constitution without separation of powers, checks and balances. The Athenian Democracy implemented even more rigorously separation of powers and had far more frequent and effective checks and balances than any modern democracy. This was the response to two centuries of tyrannical regimes, essentially dictatorships where one individual had seized power and held onto it, throughout the Greek world. In Athens itself half a century had gone by under the rule of the Peisistratids, which was preserved in the collective memory of the Athenian people for centuries as a situation that was to be avoided at all costs. Some of the extreme measures to which the Athenian state went from time to time, which to us may seem strange and perhaps outright unjust, like an ostracism, where a distinguished citizen was sent to exile for a decade for no other reason than the fear of his fellow citizens that he was getting too popular and too powerful, make sense only within this frame of mind, as reactions and precautions taken by the Athenian people to ensure that no person in future would ever be able to concentrate all powers of the state in his own hands.⁴

Kleisthenes introduced the democratic constitution in Athens only a few years after the fall of Hippias, the last tyrant of Athens. Its introduction could have been a gut reaction to the tyranny of the Peisistratids, and ironically the establishment of the first democratic constitution in history may owe its existence to a cruel dictator like Hippias. He was in exile at the time when democracy was established, plotting with the enemies of the city for his return to power, and in the Persian campaign against Athens, which culminated in the battle of Marathon in 490, he was following the Persian forces as an advisor, hoping to regain power once the city had been subdued. The Athenian victory at Marathon, and subsequent Greek victories in the Persian wars, not only dashed the hopes of the Peisistratids for a return to power, but also helped consolidate the Democratic Constitution. Kleisthenes insightfully determined that the new polity could only be successful if the old centers of power were diluted and integrated into the new Constitution under more egalitarian organizational structures designed in such a manner that no one group or individual could ever amass enough power in their hands to take over the state.

Kleisthenes did not abolish that bastion of old aristocratic power, the Areopagos Council, nor did he replace the old structural units of the citizen body, the four ancient Ionic tribes,⁵ the genos or the phratry with its subgroups. He simply added elements like the Boule of the 500, the members of which were appointed by lot, or organizational structures, like the tribes and demes, in effect bypassing, but not abolishing the older structures which most Athenians held dear. The result was an organizational structure that is not dissimilar to modern democracies. There was a well-defined executive consisting of hundreds of magistrates, which oversaw the day to day running of the city, two councils, one conservative and august, which was stripped of most of its powers after the reforms of Ephialtes in 462, the other more representative of the people (δημοτικόν) with broader powers, and a popular assembly which in theory was the overall source of authority in the polis (κυριώτατος δῆμος). However, unlike modern representative republics, this was a direct democracy, where the only limitation to the powers of the people were the laws which the people had voted, as these were vetted (mostly in the 4th century) and applied by the popular law-courts (δικαστήρια).

The development of the popular law-courts seems to have been a gradual process. The laws of Solon gave citizens dissatisfied with the decisions of magistrates the right to appeal to the assembly (Heliaia).⁶ However, it seems that as time went by the number of appeals was so large that the assembly could not hear them all, and it became necessary to spit into heliastic courts perhaps initially of 500 people, but then still smaller sections. Each one of them was a random selection of citizens chosen by lot, and, in this respect, it represented the entire citizen body. This is how the Athenians invented the jury system. D.M. MacDowell offers a very elegant answer to the critically important question of how these courts became the primary feature of the Athenian justice system. He suggests that Solon initially allowed appeals to the Assembly as a measure to limit the extensive authority of the magistrates of the aristocratic state and give ordinary citizens a last-resort measure against their power abuses. We can tell that much because in many Soloneal laws the hearing before the Heliaia is envisaged as an appeal process. Solon did not envisage the popular law courts system as we see it in the classical period, but this was the natural development from the system he created. As appeals cost nothing, dissatisfied litigants kept appealing more and more frequently. With the establishment of the democracy the dikasteria acquired new significance and came to be seen as a central, and indispensable feature of the new constitution.

1.3 The question on the rule of law in the Athenian Democracy

When Pindar subverted the phrase “νόμος ὁ πάντων βασιλεὺς θνατῶν τε καὶ ἀθανάτων”⁷ he took a core concept of Greek political thought and gave it new meaning. However, the author of one of the Platonic letters quoting Pindar takes it literally as an assertion of the superiority of the law, when he explains that Lycurgus put the law above the power of the Spartan kings through the institution of the gerousia and the ephors. In the same spirit Herodotos has the dethroned Spartan king Demaratos tell Xerxes that the law is the true king of the Spartans:

Ἐλεύθεροι γὰρ ἐόντες οὐ πάντα ἐλεύθεροί εἰσι· ἔπεστι γάρ σφι δεσπότης νόμος, τὸν ὑποδειμαίνουσι πολλῷ ἔτι μᾶλλον ἢ οἱ σοὶ σέ· ποιεῦσι γῶν τὰ ἂν ἐκεῖνος ἀνώγῃ· ἀνώγει δὲ τὠυτὸ αἰεί.⁸

Although they are free, they are not free in everything. The law is their Lord, and they fear it much more than your men fear you. Thus, they obey everything it commands, and it always gives the same command.

In a similar spirit Athenian politicians in funeral speeches, philosophers in their works, and orators before the courts frequently repeat the topic of the superiority of the law in the Greek world, the civilizing benefits that come with this for the city and the individual, as well as the adverse consequences when the rule of law breaks down.⁹ The Greeks invented the rule of law as a political concept and identified it with freedom from authoritarian rulers outside or inside the polis, with civilization, order, and a balancing force against the rule of nature where the strong vanquish the weak.

Adriaan Lanni sees a paradox in this core belief of the Greek city-states in the rule of law, because, she argues, the Greeks never achieved the rule of law.¹⁰ Lanni is siding with a number of scholars, including David Cohen, Robin Osborne, Moshe Berent, Matthew Christ, Joshia Ober and Virginia Hunter, who have argued that Athenian courts did not reach their verdicts on the basis of the law, but rather made ad hoc decisions on the basis of much broader criteria, political, cultural, social or emotional.¹¹ This line of thought has been based upon the argument that Athenian legal procedure did not enforce rules of relevance, and as a consequence much attention was paid to matters beyond the law and the facts of the case such as the character of the litigants, their political beliefs, or other extra-judicial factors. Second, there was no consistency in the application of the law or the verdicts issued by Athenian courts. Third, there was no coercive force in the hands of the state and citizens had to take matters in their hands, prosecute oppone...

Table of contents

• Cover
• Half Title
• Title
• Copyright
• Contents
• Foreword
• Abbreviations
• Introduction
• 1 The administration of justice in the polis
• 2 Citizens, metics and slaves in Athenian law and life
• 3 The Athenian oikos
• 4 The formation and purposes of marriage: wives and concubines
• 5 The continuation of the oikos: inheritance and succession
• 6 The oikos in peril: divorce, adultery, prostitution
• 7 Criminal justice: violence and property crimes
• 8 Religion, the state and the law
• 9 The safety net: protecting those in need
• Epilogue: Athenian law as the voice of the democratic polis
• Bibliography
• Index