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The shape of Athenian laws

  • Christopher Carey (a1)

The title is unashamedly plagiarized from Stephen Todd's excellent book, The Shape of Athenian Law. The plagiarism is slightly misleading, however, since my interest is in law as enactment (Gesetz) while Todd's title expresses his interest in law as system (Recht). The issue I wish to address is the formulation of written laws in Athens during the late archaic and classical period, specifically the balance between procedural and substantive law. Substantive law deals with rights, obligations, offences, etc. Its role is to define behaviour which is required, allowed, or prohibited. These are what Hart terms ‘primary rules’. Procedural law, on the other hand, deals, as the name suggests, with the administration of justice, that is with jurisdiction, process, etc. Hart's term for these is ‘secondary rules’. The two cannot be separated quite as neatly as I have suggested, of course. A procedural law can scarcely avoid mentioning the offences or rights whose punishment or protection it regulates, while a substantive law may need to address issues such as jurisdiction. This is therefore an issue of orientation, not a simple binary division. However, as a broad basis for classification it is of value.

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1 Todd, S. C., The Shape of Athenian Law (Oxford, 1993).

2 For ‘primary’ and secondary rules see Hart, H. L. A., The Concept of Law (Oxford, 1961), pp. 89.

3 Gagarin, M., Early Greek Law (Berkeley and Los Angeles, 1986), has argued more generally for the chronological priority of procedural rules in the evolution of lawcodes. He offers (pp. 8f.) a model for the evolution of early legal systems. His first stage (pre–legal) is where a society has no formal procedures for the resolution of disputes. The second stage (proto–legal) is where a society has procedures for dispute resolution but no recognized legal rules. In the third stage of development a society has both procedures and rules; for this a knowledge of writing is required. Though there are merits in this model (the rejection of the terms primary and secondary, with their implications of priority both in chronological terms and in significance), I have problems with a number of Gagarins assumptions. The role of writing in the evolution of a legal system, though important, is probably less significant for the creation of substantive rules than Gagarin suggests. I also find his Stage 2 society (a society with procedural protection but no recognized rules) decidedly implausible, at least for proliferate Greece. S. Todd and P. Milieu, Law, society and Athens, in P. Cartledge et al. (edd.), Nomos: Essays in Athenian Law, Politics and Society (Cambridge, 1990), p. 5 likewise affirm a chronological and a logical priority for procedural law.

4 Hansen, M. H., Eisangelia: The Sovereignty of the Peoples Court in Athens in the Fourth Century RC, and the Impeachment of Generals and Politicians (Odense, 1975), p. 10. Cf. pp. 14,21.

5 Todd (cited above n. 1), pp. 64ff.; so already in Todd and Millett (cited above n. 3).

6 Cohen, D., Law, Violence and Community in Classical Athens (Cambridge, 1995), p. 190.

7 Ibid., p. 152.

8 Maine, H. S., Dissertation on Early Law and Custom (London, 1883), p. 389.

9 Carey, C., ‘Legal space in Classical Athens’, G&R 41 (1994), 172–86, p. 179; Nomos in Attic rhetoric and oratory, JHS106 (1996), 33–46, p. 41.

10 Rhodes, P., ‘EISArrEAIA in Athens’, JHS 99 (1979), 106.

11 There is a methodological issue raised by the laws whose texts survive. Most of the (allegedly) verbatim quotations come from the orators. Where these quotations occur in the text of a speech, we can be sure that the citation corresponds at least broadly to the inscribed law, even if the details have been distorted by errors of transcription (the lack of concern for absolute precision in such matters on the part of litigants is attested by the variations in the wording of the law limiting vopoi kit avhpizX. Dem.23.86,24.59,46.12 and Andok. 1.87) or deliberate distortion through selective citation or reordering of clauses, since it is not in a litigants interest to indulge in gratuitous and blatant misrepresentation. Where the text is offered by the manuscripts as the document cited in court by the clerk, we cannot rule out the possibility that we are dealing with later forgeries. For the principles tacitly assumed here in accepting specific texts as genuine, see C. Carey, Apollodoros Against Neaira: Demosthenes 59 (Warminster 1992), p. 20. The fullest discussion of this complex issue is still that of E. Drerup, Uber die bei den attischen Rednern eingelegten Urkunden (Leipzig, 1898). In accepting such documents as genuine we do not need to suppose that the law in question has been cited in its entirety or that we are being offered a meticulous copy of the law; it is enough for my present purposes if the essence and the form of the law have been preserved.

12 For the graphe hybreos and rape see Harris, E. M., ‘Did the Athenians consider seduction a worse crime than rape?’, CQ 40 (1990) 370–7, p. 373. For the dike biaion and rape see e.g. Todd (cited above n. 1), p.102; D. M. MacDowell, The Law in Classical Athens (London, 1978), p. 126. It is far from certain that the law cited at Lys. 1.32 does in fact deal with the dike biaion. What we can state with certainty on the basis of Lysias text is that a private action was available to victims of rape or (in the case of women and children) the kyrios.

13 Hart (cited above n. 2), pp. 35f. For a critique of the orders backed by threats model see Hart, pp. 20ff. For the If anyone structure as typical of Athenian laws see e.g. Rhodes (cited above n. 10).

14 Hansen (cited above n. 4), pp. 12.

15 Cohen (cited above n. 6), p. 152, n. 25.

16 Antsiphon 5.14, 6.2.

17 Maine (cited above n. 8), Todd (cited above n. 1), p. 65.

18 On the open texture of law see Hart (cited above n. 2), pp. 119f., 121ff.

19 Osborne, R.Law in action in Classical Athens’, JHS 105 (1985), 4058, p. 44. Cf. Todd (cited above n. 1), pp. 160fF. So alreadyHansen, M. H., Apagoge, Endeixis and Ephegesis against Kakourgoi, Atimoi and Pheugontes (Odense, 1976), p. 120. Osbornes use of Harts terminology is criticized by E. M. Harris, Law and oratory, in I. Worthington (ed.), Persuasion: Greek Rhetoric in Action (London and New York, 1994), pp. 130–50, see p. 150, n.16. The flexibility model is broadly correct, but it cannot be applied without differentiation to the system as a whole. Some delicts were susceptible only to one action or category (public/private) of actions, and in other cases (as for instance the range of remedies against the moichos) the range of actions available depended on the circumstances of transgression or detection.

20 This point was made forcefully to me by Lene Rubinstein and Philip de Souza. See also Sealey, R., The Justice of the Greeks (Ann Arbor, 1994), p. 43. Sealey notes the similarity in this respect between the codes of Gortyn and Athens.

21 In what follows I shall again be sampling from the surviving texts. For a comprehensive demonstration of the picture presented by the surviving evidence it would be necessary to provide all texts which purport to give the wording or the substance of an Athenian law. Even then our picture of the lawcode as a whole would be hopelessly incomplete and (dependent as we are on the accident of survival) we could not be sure that it accurately represented the balance of formulation in laws in existence in the classical period. The only work which attempts to provide a text of all surviving laws is Telfy, I. B., Synagoge ton attikon nomon, corpus iuris attici (Leipzig, 1868). A new version is highly desirable.

22 For a critique of the conception of nullity as sanction see Hart (cited above n. 2), pp. 33ff.

23 For rules conferring powers see Hart (cited above n. 2), p. 28.

24 See Ruschenbusch, E., EOAQNOS NOMOI: die Fragmente des solonischen Gesetzwerkes mit einer Text und Uberlieferungsgeschichte, Historia Einzelschrift 9 (Wiesbaden, 1966), pp. 95ff.

25 The relationship between the various laws on nomothesia in fourth–century Athens is contentious; see in general MacDowell, D. M., JHS 95 (1975), 6274;Rhodes, P. J., CQ 35 (1985), 5560; M. H. Hansen, GRBS 26 (1985), 345–71. For my present purposes all that matters is the formulation. Cf. also the law limiting for which see n. 11 above.

26 Gagarin (cited above n. 2), Todd (cited above n. 1).

27 Such an attempt is fraught with difficulties, especially where attribution of laws to Solon is at issue. For the general difficulties see Ruschebusch (cited above n. 24), pp. 53ff.

28 Ruschenbusch, Ibid., p. 87 reproduces the whole law as Solonian, marking out the reference to Eukleides as a later addition.

29 The speaker in Lys. 10 includes this law among a number of old laws whose vocabulary is archaic and therefore needs to be glossed.

30 This paper was delivered at a research seminar at Royal Holloway in December 1995. My thanks are due to all present who commented, especially Lene Rubinstein, Philip de Souza and Richard Alston. The present version was prepared during the tenure of a British Academy Leverhulme Senior Research Fellowship, for which I should like to express my gratitude.

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