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

E. M. Harris , ‘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.

R. Osborne Law in action in Classical Athens’, JHS 105 (1985), 4058, p. 44. Cf. Todd (cited above n. 1), pp. 160fF. So already

see in general D. M. MacDowell , JHS 95 (1975), 6274;

P. J. Rhodes , 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.

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The Classical Quarterly
  • ISSN: 0009-8388
  • EISSN: 1471-6844
  • URL: /core/journals/classical-quarterly
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