Public and Private in Ancient Mediterranean Law and Religion

Clifford Ando, Jörg Rüpke, Clifford Ando, Jörg Rüpke

• Éditeur: De Gruyter
• Année: 2015
• ISBN:
  9783110392517
• Édition: 1
• Sujet: Theologie & Religion
• Sous-sujet: Religion der Antike

The public/private distinction is fundamental to modern theories of the family, religion and religious freedom, and state power, yet it has had different salience, and been understood differently, from place to place and time to time. The volume brings together essays from an international array of experts in law and religion, in order to examine the public/private distinction in comparative perspective. The essays focus on the cultures and religions of the ancient Mediterranean, in the formative periods of Greece and Rome and the religions of Judaism, Christianity and Islam. Particular attention is given to the private exercise of religion, the relation between public norms and private life, and the division between public and private space and the place of religion therein.

Edward M. Harris

1. The Family, the Community and Murder: The Role of Pollution in Athenian Homicide Law

Abstract: Scholars have recently argued that pollution for homicide was a religious belief that originated in the Homeric period and was fading away by the late fifth century BCE. This chapter presents evidence to show that beliefs about pollution continued to shape the legal procedures for homicide into the fourth century BCE. Plato’s rules about pollution for homicide in his Laws therefore reflect contemporary beliefs and were not the product of religious “conservatism.” These beliefs had both an instrumental and an expressive function and were closely connected with the development of the state. On the one hand, they placed pressure on the victim’s family and the community to bring the killer to justice. On the other, pollution for homicide was a way of expressing society’s disapproval for a crime that threatened the state’s monopoly of legitimate force.

Introduction

Normally when one brought a private charge (dike idia) in Athenian law such as theft, damage, or for the recovery of a dowry, one summoned the defendant to appear before a magistrate on a certain day.¹⁷ When the two parties met, the plaintiff submitted his charge in writing.¹⁸ The case was then assigned to a public arbitrator. If either of the parties was not satisfied with the arbitrator’s decision, he could appeal the decision to one of the courts.¹⁹ There were no special rituals to be performed. Homicide was also a private charge in Athenian law: only the relatives of the victim could bring the charge.²⁰ Unlike other private charges, however, there were certain religious practices that had to be performed as part of a prosecution for homicide. First, when one initiated the charge, one had to swear an oath (Antiphon 5.11–12). The oath was very solemn; the accuser swore that the charge was true and called down destruction on himself, his relatives and his household if it were not. Second, after the basileus, the archon who had jurisdiction in cases of homicide, received the charge, he made a proclamation that the defendant had to keep away “from lustral water, libations, bowls of wine, holy places, and the marketplace” (Dem. 20.158; Antiphon 6.35–36; cf. Arist. Ath. Pol. 57.4; Soph. OT 236 – 42). Third, the case did not go to an arbitrator or a court immediately, but was reviewed at three preliminary hearings called pro-dikasiai, heard over three months (Antiphon 6.42). Fourth, the case was not heard before one of the regular courts manned by panels drawn from the 6,000 judges who served every year, but by special courts. The Areopagus heard cases of deliberate homicide (ek pronoias), the Palladion tried cases of involuntary homicide (akousios) and attempted homicide (bouleusis), and the Del-phinion tried cases of “just” homicide or homicide “according to the laws” (Arist. Ath. Pol. 57.3 – 4. Cf. Dem. 23.22 – 61).²¹ There were two other curious courts: one was located at Phreatto and was held for special cases involving charges brought against those in exile for involuntary homicide. The defendant stood in a boat offshore and delivered his reply to the charges without setting foot in Attica. There was another court at the Prytaneion held for homicide caused by animals and inanimate objects. Fifth, trials for homicide were not held inside buildings but were tried in the open air (Antiphon 5.11). Sixth, the successful accuser had to swear another oath after the trial that his charges were true (Aeschin. 2.87– 88). A sacrificial animal was cut into pieces, and the accuser swore his oath standing in the middle.²² Seventh, the normal penalty in a private suit was a payment of damages to the victim or their family. The person convicted of deliberate homicide was either put to death or sent into permanent exile with confiscation of his property by the state (Dem. 21.43). The person convicted of involuntary homicide was sent into exile until the relatives of the victim pardoned him (Dem. 37.59). Finally, there was a statute of limitations in private cases, which barred any suits brought five years after the offense (Dem. 36.25–7; 38.17).²³ By contrast, there was no statute of limitations in homicide cases (Lys. 13.83). Even though homicide was a private charge, there were therefore eight major differences between procedure in homicide cases and that for other private charges.

Why did the Athenians create these rules for homicide law and not for other kinds of private charges? In three of the features that set the homicide courts apart from the regular courts, it is clear that concerns about pollution played an important role. The proclamation by the basileus was aimed at preventing the defendant from spreading his pollution by contact with public rituals and holy places. As Antiphon (5.82 – 83) observes, the presence of a polluted person at a sacrifice would cause the offering to fail.²⁴ The unusual features of the court at Phreatto were obviously designed to keep the defendant’s pollution from touching Attica (Dem. 23.78 [not touching land]; Pollux 8.120 [placing neither gangway nor anchor onto land]). And the requirement that trials for homicide take place in the open air was imposed, as Antiphon (5.11) says, so that the judges would not enter the same place as someone whose hands were unclean, that is, polluted.

Over the last fifty years there has been a tendency among scholars to play down the importance of pollution in homicide law or to explain it away. In his study of homicide law published over fifty years ago, D. M. MacDowell played down the importance of pollution.²⁵ The most influential treatment of the topic has been that of Robert Parker in his Miasma published thirty years ago.²⁶ Parker claimed that views about pollution for homicide originated in the Homeric period (despite the absence of any evidence in the Iliad and Odyssey) and were the product of a society without formal legal institutions. After the growth of the law and the courts in Classical Athens, these beliefs tended to die out and had virtually vanished by the fourth century BCE. The book about homicide law of E. Carawan relies heavily on Parker’s views.²⁷ In an article of 2006 Sealey has argued that pollution for homicide is only found in tragedy and belongs to the world of myth. It had no impact on Athenian law and legal procedure.²⁸ Arnaoutoglou takes a similar view.²⁹

This chapter falls into two parts. The first part examines the evidence for beliefs about pollution for homicide in the Classical period and shows how these beliefs continued to shape legal procedures for homicide into the fourth century BCE (pace Parker). The second part analyzes the role that beliefs about pollution for homicide played and their instrumental and expressive functions. On the one hand, the belief in pollution compelled the relatives of the victim to prosecute the murderer and the community to see that he was punished. On the other, beliefs about homicide expressed important views about the use of deadly violence in community. Far from being a survival from an earlier stage of social evolution, beliefs about pollution articulated the state’s attempt to monopolize the use of legitimate force.

1. Pollution for homicide as a survival from an earlier period

Parker devotes a chapter of forty pages in his Miasma to pollution for homicide, but his main points can be easily summarized. Parker believes that “the appropriate context for beliefs of this kind about murder-pollution is surely a society that lacks more formal legal institutions.”³⁰ Parker therefore traces the origin of beliefs in pollution for homicide to the period of the Homeric poems. After the growth of the polis with its formal legal and political institutions, there was no longer any need for such beliefs because their function had been taken over by the officials and the courts of the polis. “If the proper place for a belief in murder pollution is in a society without courts, we would expect it to wither away or change in meaning once courts were established.”³¹ Even though there was a system of courts in Athens from the time of Draco and Solon in the late seventh and early sixth centuries, Parker claims that the fear of pollution did not abate until the early fourth century. “After Aeschylus and Antiphon, however, the dangers of pollution seem to recede.”³² In support of his view, Parker points to Lysias’ speech Against Eratosthenes, in which a man named Euphiletus defends himself a charge of homicide, and the speech he delivered against another Eratosthenes, who he claimed was responsible for the death of his brother Polemarchus. “The first speech of Lysias, a defence in a case of justified killing, is quite free from the language of pollution, and it appears only fleetingly even in the prosecution of Eratosthenes.”³³ As a result, Parker claims that prosecutions for homicide in the fourth century did not mention the danger of pollution. “But it is reasonable to suppose that, in a fourth-century prosecution, murder would have been presented as a threat to society on a secular far more than on a religious level. This secularization probably has complex causes, but it is tempting to suggest as one of them that murder-pollution had outlived its utility.”³⁴ Parker then attempts to explain away the rules about pollution in the section about homicide in Plato’s Laws written in the middle of the fourth century. “The prominence of pollution in the Laws is characteristic of that work’s profound religious conservatism.”³⁵ Parker is also forced to explain away the numerous references to pollution in Antiphon’s Tetralogies.³⁶

There are several objections to Parker’s analysis. First, it is not correct to state that there were no courts or administration of justice in the Homeric world. One thinks immediately of the trial scene on the shield of Achilles in the Iliad (18.497–5-8). The basileis of the Homeric and Hesiodic poems certainly exercise judicial functions by enforcing justice and themistes, which are clearly legal norms, and resolve disputes (Il. 9.297–298).³⁷ Even though the Assembly fails to support Telemachus’ charges against the suitors in the second book of the Odyssey, it is clear that the Assembly could also exercise judicial functions. It is also striking that murderers are never said to be polluted or to require ritual purification in the Homeric poems.³⁸ For instance, when the people of Ithaca gather after the death of the suitors in the Odyssey (24.412–471) to discuss what to do with Odysseus, not a single person says that they must punish Odysseus because he is polluted or because his pollution threatens the safety of the community. When Theoclymenus flees Argos after killing a man, he tells Telemachus that he fears the revenge of the victim’s relatives but says nothing about pollution driving him out (Od. 15.271). After Odysseus kills the suitors, he orders his slave women to “clean the house” but this cannot be considered a religious purification because it involves no sacrifice to the gods (Od. 23.438 – 440, 451–453).³⁹ By contrast, when the Achaeans purify their army in the Iliad, they remove all traces of pollution (lumata) and then perform a sacrifice to Apollo (Il. 1.312 –317).⁴⁰ Because the society of the Homeric poems did not consider the murderer polluted, there was no need for purification after homicide, which is also absent from the Iliad and Odyssey (see Appendix 1).⁴¹

Second, if the creation of courts removed the need for pollution as a means of repressing violence, why did it take so long for beliefs about homicide to die out? Even if we believe that there was no formal system of justice in the Homeric period, why didn’t fears of pollution vanish in the decades after the legislation of Draco (roughly 630 BCE) and Solon (594 BCE)? Yet Parker admits that views about the dangers of pollution are still found in Aeschylus and Antiphon, almost two hundred years later.

Third, the reason why Euphiletus does not mention pollution for homicide in his speech defending his killing of Eratosthenes is because he claims that the murder of Eratosthenes was just and according to the laws (Lys. 1.26 – 36),⁴² and this type of homicide incurred no pollution (Lycurg. Leocrates 125; Dem. 9.44; Dem. 20.158).⁴³ There was therefore no reason for him to mention ...

Table des matières

• Religionsgeschichtliche Versuche und Vorarbeiten
• Title Page
• Copyright Page
• Acknowledgments
• Table of Contents
• Introduction
• 1. The Family, the Community and Murder: The Role of Pollution in Athenian Homicide Law
• 2. Public and Private in Classical Athenian Legal Enforcement
• 3. : Some Ancient Greek Theories of (Divine and Mortal) Mind
• 4. Ista tua pulchra libertas: The Construction of a Private Cult of Liberty on the Palatine
• 5. “M. Tullius … aedem Fortunae August(ae) solo et peq(unia) sua”
• 6. Making the Private Public: Illegitimacy and Incest in Roman Law
• 7. Public and Private in Emergent ChristianDiscourse
• 8. Staging “private” religion in Roman “public” Palmyra. The role of the religious dining tickets (banqueting tesserae)
• 9. Can “Law” Be Private? The Mixed Message of Rabbinic Oral Law
• 10. Between Public and Private: The Significance of the Neutral Domain (Carmelit) in Late Antique Rabbinic Literature
• 11. Shame, Sin, and Virtue: Islamic Notions of Privacy
• Contributors
• Index