INTRODUCTIONFootnote 1
Here, in a quotation from Aspis, we can see the power of the law in determining the fate of one of Menander’s young lovers. In Menander’s plays the law can alter the trajectory of the plot, threaten heartbreak and enable happy endings. Recent treatments of Menander have obscured the nature of the law in his plays. Konstan stresses the ‘gauzy nature of social arrangements in New Comedy’, masking the connection between institutions such as the law and historical Athens, while Lape, with her firmly political interpretation of Menander, argues that his plays perpetuate Athenian democratic values through the production of citizen offspring according to Athenian laws.Footnote 3 In fact, the laws in Menander will be shown to be particularized to the city of Athens and to invite ambivalent responses.
The laws are specific, situating us in place and time, and act as an important interface between the private lives of citizens and the public institutions of the state.Footnote 4 They allow Menander to stage social dilemmas and to invite the audience to question the boundaries of legality and morality. This article will use the law as a lens through which to analyse attitudes towards the polis and the tensions between institutions and personal motivations. It aims to add to an understanding of what kind of poet Menander is—conservative, humane, radical, misogynistic?—and the social values of his audiences.Footnote 5 The political upheaval in Athens in the late fourth and early third centuries b.c. may have led to several periods in which the activities of the courts were curtailed. There is enough evidence for the activity of the courts during this period, however, to suggest that the machinery of the law was still an active being to the audience of Menander, even if it had not been operating freely at all times in their lifetimes.Footnote 6 The plays therefore reflect on issues pertinent to the audience’s experience and may reveal anxieties, values and tensions concerning the legal mechanisms portrayed in Menander’s plays. The stakes surrounding such issues may be even higher in the context of disruption to legal processes.
While others have used New Comedy as evidence to contribute to the legal history of Athens, this article aims to reverse this priority.Footnote 7 Rather than asking what his plays can tell us about the law, the article will ask what his portrayals of the law can tell us about Menander and his society, unravelling the ideologies and values presented in his plays. It builds on works which discuss individual plays or individual legal issues in Menander and aims to draw together different dramatizations of legal dilemmas.Footnote 8 The article will focus on plays in which the state of the text allows us to see the nature of legal attitudes in their full dramatic context and in which issues of legality are at the heart of the action. This will lead to a concentration on Aspis, Samia, Epitrepontes and, to a lesser extent, Sikyonioi.Footnote 9 These are all plays set in Athens.Footnote 10 They mostly concern laws which govern marriage, adultery, rape and other aspects of gender relations, though Epitrepontes also allows us to see how legal structures could be used in dispute-resolution. The study of these plays will be divided into two sections. Section 1 will address the question of how Athenian the law in Menander is. How closely connected are these issues with a specific context? Section 2 will then analyse the attitudes to the law which Menander dramatizes. His depictions of litigious individuals and legal knots involved in Athenian marriages will reveal an ambivalent approach towards the law and suggest the importance of personal character in judging whether ‘legal’ equates to ‘the right thing’.
SECTION 1: HOW ATHENIAN IS THE LAW IN MENANDER?
Konstan sees Menander’s plays as anticipating and aiding the ‘great convergence’ of civic practice and institutions after the conquests of Alexander the Great and presenting a ‘homogeneous image of Greek society’.Footnote 11 How far is this applicable in the case of the law? In this section we will assess how far the legal institutions are tied to Athens and painted with local colour.
The legal contexts of some of Menander’s plays contain elements which feature a specifically Athenian background rather than a more generic ‘Greek’ conception of legal practices. For example, Aspis concerns the transfer of property through the female line through the institution of the epiclerate. In Athens the brotherless daughter of a man who died became an heiress (ἐπίκληρος) who did not own the property she inherited but was inseparable from it. Her closest relation, and of them the eldest, would have the right to marry her and the ability to dissolve an existing marriage if no son had been born. The property would be under the control of the husband of the ἐπίκληρος until they had a son and he came of age.Footnote 12 If the heiress was poor, the nearest kin was in fact compelled to either marry her or give her a dowry.Footnote 13
Beroutsos argues that this legal plotline should lead us to place the play in Athens; he also floats the idea that this process may have been used in other cities.Footnote 14 There are similarities to this system in other poleis. In Gortyn’s law code a fatherless and brotherless girl is termed a πατροιõκος and on her father’s death is to be married to his oldest brother in the first instance, which is very similar to the Athenian arrangement.Footnote 15 However, there is limited evidence for the term and institution of the epiclerate outside Athens.Footnote 16 Even in Gortyn there are significant differences from the Athenian epiclerate. For example, the πατροιõκος at Gortyn inherits the property (as opposed to just transmitting it to her son[s]) and can refuse marriage with claimants and instead marry someone from her tribe, keeping the house and half the property in this instance (G72 7.52–8.8).Footnote 17 This suggests that the terminology and exact structure of the epiclerate may have been received as an issue of specifically Athenian law. It was a popular subject for fourth-century and for Hellenistic comic plays. The playwrights who wrote plays entitled Epikleros either were Athenian or had spent a considerable part of their career in Athens. This seems to increase the likelihood that the epiclerate was a legal issue associated with Athens.Footnote 18 Karabelias argues for the decline and disappearance of the institution in the Hellenistic period, linking this with the disapproval for it which he sees in the plays of New Comedy.Footnote 19 The lack of forensic speeches from this period, however, means that the argument for decline is precariously based on absence of evidence. The Athenaion Politeia suggests healthy functioning of the system in late fourth-century Athens, and an Attic inscription from c.300–250 b.c. shows its continuing operation.Footnote 20 It thus seems to be an institution that would have been part of the legal experience of Menander’s Athenian audiences.
In most cases in Menander’s plays, the Athenian nature of the law does not make it inaccessible to non-Athenians. For example, in Menander’s Epitrepontes there is a private arbitration scene after which the play is named. Private arbitration was an institution intended to settle disputes before they reached court.Footnote 21 It seems to have become legally recognized as authoritative in Athens in the fifth century and involved two parties agreeing to one or more arbitrators with the conditions for the decision-making agreed beforehand and the verdict delivered (often under oath) by the arbitrator(s).Footnote 22 It was a common practice with which an Athenian audience would have been familiar, as the speeches of the orators show. Menander therefore focusses on an institution that is important to Athenian legal experience and discourse. Private arbitration was not entirely restricted to Athens, though. There are a few examples elsewhere in the Greek world, for example in Samos (243 b.c.) and in Ptolemaic Egypt from the end of the fourth century b.c.Footnote 23 Therefore, although the language and the practice of Athenian private arbitration provide Menander’s model (see Section 2a below), a non-Athenian audience too may have been familiar with this legal practice, depending on where they were from.
Many of the twists and turns in the marriage-plots of Menander’s plays are caused by the need for adherence to Pericles’ citizenship law (451/0 b.c.), which limited citizenship to those with both an Athenian father and an Athenian mother (Ath. Pol. 26.3; Plut. Vit. Per. 37.3). Menander’s plays reflect the anxieties and tensions, specifically in Athens, concerning adherence to this rule.Footnote 24 Once again, however, there may have been non-Athenians for whom these concerns were relatable. Ogden records evidence for states which imposed or did not impose ‘double civic ascendance’ as a requirement for citizenship. He notes that it is harder to find the latter in the Classical period, though there was widespread relaxation of the law throughout the Hellenistic period.Footnote 25 Therefore, this Athenian law would have been accessible, and perhaps similar, to the experience of some non-Athenian Greeks.
In these legal institutions there is a spectrum between what would be viewed as a common Greek experience and what would be seen as a particularly Athenian experience. The Athenian elements seem to be more than ‘gauzy’, and the law in these plays may have been perceived as Athenian albeit accessible to other Greeks. This has implications for the kind of poet Menander is: he is not a purely Panhellenic poet, and Athenian institutions are central to depictions of interactions between individuals and the law even when they are comprehensible or familiar to other Greeks. The portrayal of the law is therefore located in a specific place and time. In light of this we can more confidently ask what the dramatizations of attitudes to legal issues can tell us about the concerns and values of this playwright and his society.
SECTION 2: ATTITUDES TO THE LAW IN MENANDER
a) Litigiousness
The overall impression Menander gives of individuals who are heavily involved in, or easily inclined to invoke, the law is that they are flawed characters. This aligns with the topos which appears in oratory of the virtue of avoiding litigiousness.Footnote 26 Sometimes this is light-hearted, but it can also be a serious indictment of characters and an indication of the moral orientation of the play.
Legal action is presented negatively by the protagonist of Dyskolos, Cnemon—an antisocial but hard-working Attic farmer. He states (743–5):
This positions litigiousness alongside war and suggests that it is motivated by greed (rather than justice). The wistful tone presents an ideal society as empty of lawcourts. In the context of Cnemon’s isolation in the Attic countryside, legal action is also depicted as an activity of the urban dwellers which is at odds with his traditional values.
In Epitrepontes, the arbitration scene after which the play is named acts as a light-hearted pastiche of litigiousness. It shows how forensic apparatus was not limited to the courts for Athenians but was pervasive in their lives.Footnote 27 Smicrines arbitrates between the slaves Davus and Syrus. The language reinforces the institution which is being mobilized. Syrus declares ἐπιτρεπτέον τινί | ἐστι περὶ τούτων (‘this matter must be submitted to someone for arbitration’, 219–20) and Smicrines’ question ἐμμενεῖτ᾽ οὖν, εἰπέ μοι, | οἷς ἂν δικάσω; (‘tell me, will you stand by my judgment?’, 237–8) recalls accounts we have in forensic oratory of the failure of private arbitration (for example οὐχ οἷος ἦν ἐμμένειν οἷς ἐκεῖνοι γνοῖεν [‘he could not stand by what they decided’], Dem. 41.14).Footnote 28 So too the arbitration ends by displaying the difficulty of ensuring that all parties abide by, and are content with, the judgment in arbitration (370–2).Footnote 29 Davus quickly realizes with frustration that Syrus is a much better speaker than him (μετρίῳ γε συμπέπλεγμαι ῥήτορι· [‘I’m grappling with a decent orator’], 236), using a wrestling metaphor which Aeschines also deploys for Demosthenes (2.153).Footnote 30 A rhetorical peak of Syrus’ speech is his presentation of the child itself (301–3), a classic technique used by defendants to rouse pity.Footnote 31 Also highly rhetorical are his appeals to the importance of recognition tokens in tragedy (325–33).Footnote 32 Syrus’ argument, focussed on law and fairness, triumphs over the basic sentiment of finders-keepers which Davus tries to pursue.Footnote 33
Syrus is on a litigious high after his victory and vows, following Onesimus’ challenge concerning Charisius’ ring among the tokens (ἄραρε, δικάσομαι | ἅπασι, κ[α]θ᾽ ἕνα [‘it’s decided, I’ll go to court with everyone, one by one’], 402–3), using language popular with Demosthenes for ignominious concessions in his refusal to give way (καθυφείμην [‘give way’], 402).Footnote 34 Similarly, he is confident at the prospect of another challenge and states (417–18):
The use of this pre-court institution by slaves heightens the parody of Athenian litigiousness.Footnote 35 The combination of realism and slave-characters would highlight the humour of this social comedy.Footnote 36 This can be sensed in Smicrines’ somewhat snobbish response to their request for him to arbitrate (228–30):
The contrast between their clothing, which indicates their rusticity and social status, and their rhetorical flair (at least in the case of Syrus) is at the heart of the parody.Footnote 37
In addition to this light-hearted parody of litigiousness there are more serious indictments of individuals involved in the law in Menander’s plays. In Samia, Niceratus pushes the boundaries of the law and tries to justify illegal action. He claims that in Demeas’ position he would sell off his concubine on the next day along with his son (507–10). Chrysis is a free woman and therefore Niceratus’ proposal is doubly illegal through the crime of ἀνδραποδισμός (‘selling into slavery’).Footnote 38 He also incorrectly labels Moschion’s supposed sexual betrayal of his father as murder, arguing that to do so is just (513–14). When he finds out that his unmarried daughter has had a child, his extremity reaches new heights. He threatens to set fire to the baby (553–5) and to murder Chrysis (560–1), and wishes that he could have caught Moschion in the act of adultery—meaning that he would have been able to legally kill or physically abuse him (612).Footnote 39 He later incorrectly calls Moschion a μοιχὸν … εἰλημμένον (‘caught … adulterer’) and threatens to tie him up (717–18).Footnote 40 His extremity is characterized by paratragedy in both his behaviour and his language.Footnote 41 He strays, incongruously, into a more violent and elevated genre, and reveals his lack of moderation in social relations. When Demeas defends Chrysis and Plangon’s child from Niceratus, he technically strikes the first blow, as Niceratus asserts: πρότερος ἅπτει μοι σὺ νυνί· ταῦτ᾿ ἐγὼ μαρτύρομαι (‘you struck me first just now; I call you to witness that’, 576).Footnote 42 In cases of assault this would make him the guilty party.Footnote 43 In the current scenario it is clear that Niceratus is the one who has turned to violence, and the technicality that Demeas struck him first fails to reflect the spirit of the encounter.
Legal threats and unattractive character are also combined in the figure of Moschion in Sikyonioi. Stratophanes successfully persuades an assembly at Eleusis to ensure that Philoumene should remain unmarried until he can claim her. Moschion, displeased with the outcome since he himself desires Philoumene, addresses Stratophanes: τοὺς ἀνδραποδιστὰς ἀπαγαγεῖ[ν ὑμᾶς θέλω (‘I wish to arrest you as kidnappers’, 272). Summary arrest was possible if a kidnapper was caught red-handed, but this was not the case and Stratophanes is not behaving illegally.Footnote 44 Moschion’s readiness to turn to drastic legal action (which in itself was in the circumstances illegal) is set alongside other distasteful aspects of his character: he is presented as sexually deviant and oligarchic.Footnote 45 While negative characterization and invocation of the law are not always connected, this does seem to be a dominant feature of Menander’s presentation of the law.Footnote 46 The law in Athens can be dangerous and distasteful in the hands of litigious individuals.
b) The epiclerate
The institution of the epiclerate featured in several comedies in the Hellenistic period.Footnote 47 The issue dominates Menander’s Aspis and is presented as the main drama, pushing more action-packed events to the background of the play, such as the fact that Cleostratus has been captured during a night raid in Lycia (110–12). The impact of the law on private lives is given centre stage, while other, ‘bigger’, events and themes are on the sidelines.
Menander’s play presents a situation in which the letter of the law is felt to be cruelly and even disgustingly applied by Smicrines, a greedy older uncle who should allow his niece to marry her stepcousin Chaereas instead of pushing his own claims. MacDowell goes as far as seeing the play as a revolutionary call by Menander for a change in the law—Smicrines is wholly bad, but all he does is in accordance with the law which therefore itself must be bad.Footnote 48 Brown tempers this and argues that it is the application of the law in these circumstances which Menander portrays as inhumane and against which he expects the audience to react.Footnote 49 The difference here is important: do we see in Aspis a criticism of the law itself or of its application? In fact, Menander skirts this issue elegantly and allows for multiple interpretations while maintaining a clear moral orientation on the character level.
On the face of it, Aspis has a clear and simplistic moral orientation. Smicrines quickly unmasks himself as greedy and unscrupulous and we are directed to feel negatively towards him through the prologue of Τύχη (Fortune) (116–21):
Τύχη highlights his greed but also his antisocial tendencies.Footnote 50 This kind of antisocial behaviour is often a bad sign in Menander.Footnote 51 She further labels him as τοῦδε τοῦ φιλαργύρου (‘this mercenary man’, 123) and contrasts Smicrines with his younger brother Chaerestratus (χρηστὸς δὲ τῷ τρόπῳ πάνυ [‘altogether good in character’], 125).
Another red flag in Smicrines’ behaviour is that he sometimes uses the terminology of the law inaccurately. This makes us suspect him and his language in this regard. In response to Cleostratus’ death, Smicrines claims (168–71):
It is disputed whether Smicrines is misinterpreting the law and making a false statement, since his property would legally be divided between Chaerestratus and Cleostratus, or whether he intended to adopt Cleostratus.Footnote 52 Either way Smicrines’ sentiments are obviously fake—he is trying to emphasize his relationship with Cleostratus because of the legal claims he will make on Cleostratus’ sister.Footnote 53 Suspicion over intention and exactitude coincide with the phrase κατὰ τοὺς νόμους (‘according to the law’). The audience feel a wariness over his application of the law before he even begins to assert his legal claims. He then complains about Chaerestratus’ behaviour towards him in not consulting him about the marriage to Chaereas, but he does so disingenuously stating νυνὶ γάμους | ἐπόει διδοὺς οὐκ οἶδ᾿ ὅτῳ τὴν παρθένον (‘he was just now going about giving the girl in marriage to goodness knows whom’, 176–7). The planned husband is not a stranger—he is Chaerestratus’ stepson. Smicrines’ complaint that he has the same rights as Chaerestratus (179–80) also does not hold, since Chaerestratus is the one ᾧ κατέλιπεν … τὴν ἀδελφήν (‘to whom [Cleostratus] left his sister’, 127–8) and so Chaerestratus was entitled to arrange her marriage without consultation of Smicrines. Smicrines asserts the support of the law for his case (καὶ γὰρ ὁ νόμος μοι δοκεῖ | οὕτω λέγειν πως [‘for the law seems, I think, to say this’], 186–7); however, although he speaks accurately here, his motivations and his previous manipulation of legal language make us suspicious and unsympathetic to his legal claims.
In the discussions about the application of the law Chaerestratus appeals above all to Smicrines’ age (258–9) and to μετριότης (‘moderation’, 257), which stands out as a rare word in poetry. He asks Smicrines ἀνθρωπίνως | τὸ πρᾶγμ᾽ ἔνεγκε (<to> ‘bear the situation humanly’, 260–1). The idea of humanity is opposed to that of strict obedience to the law.Footnote 54 It is emphasized that Chaereas and Cleostratus’ sister should marry because of their similar age (267) and their familiarity with one another (262–3). The impression the audience is given is that Smicrines is acting excessively by pursuing his legal claims in the situation of the disparity in age and of the prearranged wedding.
The audience’s sympathies, however, may be strained by Chaerestratus’ behaviour. In two contexts he appears to attempt to manipulate the law. He offers Smicrines the property without marrying Cleostratus’ sister, for whom he himself will provide a dowry (264–9). Smicrines objects (270–3):
Evidence from the orators suggests that this is certainly a scenario which could have occurred.Footnote 55 It is a somewhat naive deal which does not promote the inheritance rights of the parties Chaerestratus is trying to support. How far is the audience willing to be led in viewing sentiment as more important than legal behaviour? Would they have supported Chaerestratus’ bargain? It seems harder to swallow than the attempts to merely dissuade Smicrines from marrying the girl.
Similarly, Davus and Chaerestratus’ plan to fake Chaerestratus’ death and lure Smicrines with his wealthier daughter, allowing Chaereas and Cleostratus’ sister to marry, seems to have legal holes. Chaerestratus must come back to life before Smicrines actually marries Chaerestratus’ daughter, and Smicrines would then have been able to revert to his previous plan in spite of the wedding.Footnote 56 Brown suggests that we should not be concerned with the consequences of a plot which was never destined to be carried through.Footnote 57 However, this does add to the sense of legal manipulation by Chaerestratus. Is the character portrayal of him and Smicrines enough to carry the audience with him in his legally dodgy plan?
When analysing the attitude of the playwright towards this law we should work with the audience’s knowledge rather than with the characters’ knowledge. Smicrines’ actions are not legally sanctioned because Cleostratus’ sister is not, in the reality of the play, a true ἐπίκληρος. Similarly, the dubious elements of the plan of Chaerestratus and Davus are not an issue because the plan does not challenge the legal reality in the play. By occupying a space which the audience knows is not the reality, Menander does not have to decide on (or present) one clear view of the level of flexibility with which individuals should approach the law.
We can see a similar cultivation of ambiguity when we assess whether Menander presents a questioning of the law itself, rather than just its application. Chaereas laments the fact that ἕτερον κύριον δ᾿ αὐτῆς ποεῖ | ὁ νόμος ὁ τοὐμὸν οὐδαμοῦ κρίνων ἔτι (‘the law, which rejects my claim, makes another her guardian’, 297–8). The law is the subject of this clause which lends an accusatory tone to Chaereas’ complaint—it is the law which is the active agent in bringing about his tragic situation.Footnote 58 He does not explicitly criticize the law, but his frustration with it is clear. The only critique of the system itself comes from Davus, a Phrygian slave. Smicrines asks Davus, in the context of his plan to marry Cleostratus’ sister, δοκῶ δέ σοί τι … ἁμαρτάνειν; (‘do I seem to you to be acting wrongly?’ 205). Davus responds (206–8):
This heavily implies that Davus finds the custom of the epiclerate itself to be bad, but recuses himself on account of cultural differences.Footnote 59 The only critique of the system comes from a Phrygian, a person of whom the Greeks were proverbially contemptuous. This is even dramatized in this play when the Thracian waiter calls Davus οὐδὲν ἱερόν· ἀνδρόγυνος (‘nothing special; a womanish man’, 242) upon discovering that he is Phrygian.Footnote 60 This is typical of Menander’s ambiguity; he uses this focalization to admit a criticism of the law without having to vouch for it by putting it in the mouth of a positively portrayed Athenian character.
c) Legitimate heirs
The late fourth and early third centuries b.c., during which Menander was writing his comedies, were a period of disruption for the franchise in Athens. After Athens’ defeat in 322 b.c. Antipater forced the city to adopt a constitution which restricted the franchise such that the state and the elections were controlled by those who possessed more than two thousand drachmas.Footnote 61 Again from 317–307, when Cassander controlled the city through Demetrius of Phalerum, the franchise was restricted with the state administered by those who possessed at least ten minae.Footnote 62 In the context of this playing around with the franchise and of the changes in who could participate politically, Menander focusses on the legal, rather than on the political or economic, aspect of the definition of citizenship, which was concerned with legitimacy and inheritance. His plays therefore reflect, from a different point of view, on the tensions concerning who did and who did not belong to the polis.
Lape argues that Menander’s obsessive replaying of the values of Athenian citizenry, even by chance through rape, ‘naturalizes’ the city’s democratic identity.Footnote 63 In his plays no young female Athenian citizen is left unmarried, the rape of female citizens is hyperfertile and all legitimate children survive.Footnote 64 There is also a striking absence of homosexual relationships between men in Menander’s plays. In several plays a rape at a night-time festival is followed by the marriage of the parents of the resulting child.Footnote 65 Alternatively, plays can involve the revelation of the previously unknown Athenian status of a woman or man to enable a marriage in line with the Periclean citizenship law (for example Sik. 196–7, 249–54). There is an idealization of legitimate marriage, based on (the man’s) love and characterized by loyalty and mutual happiness; men’s extra-marital affairs are concomitantly not presented positively in the plays.Footnote 66
We should not go as far as Lape, however, in seeing all Menander’s plays as a promotion of a democratic agenda. Instead, they present an exposition of ideologies about social organization in the context of citizenship law which are not always fully resolved or aligned.Footnote 67 Konstan’s description in 2010 of the multivocality of New Comedy is a useful model: literary works highlight the contradiction of societal values and attempt to resolve them but, in doing so, ‘betray the strain involved in forging such refractory materials into a unified composition’.Footnote 68 The dominant narrative in Menander is aligned with the legal requirements, but he heavily hints at other avenues for social arrangement, introducing radical and legally fishy alternatives to the audience’s minds without having to follow through on these, as will be shown through his treatment of (i) concubines and (ii) rape and adultery.
i) Wives vs concubines
Menander’s plays dramatize the production of legitimate children according to the Periclean citizenship law of 451/0 b.c., which began a legal marginalization of unions between citizen men and foreign women. This was further solidified by the fact that children from these unions could not inherit from 403/2 b.c. and marriage was illegal by the middle of the fourth century.Footnote 69 However, in Samia, Demeas lives with his παλλακή (concubine) Chrysis, the Samian woman after whom the play is named. Demeas calls her his γυνή (‘wife’/‘woman’, 561), which suggests that he views her in this light despite the absence of the support of a legal framework for their union. Her presence within the house is irregular and a potential cause of shame.Footnote 70 Moschion describes how the arrangement came about (21–8):
Moschion describes Demeas’ desire for the Samian hetaira as ἀνθρώπινον (‘human’) and emphasizes Demeas’ shame and hesitation to enter into a formal relationship with her.Footnote 71 Moschion’s support of his father and Demeas’ awareness of the social stigma give a positive impression of their characters and encourage us to sympathize with them and view their behaviour with leniency and as a human deviation from legal strictures.
The situation is strained by (the pretence of) Chrysis’ decision to keep a child she has given birth to. Other characters express concern or surprise about this decision. Niceratus calls it ἐμβροντησία (‘madness’, 411) and Moschion expects his father’s anger (80). Indeed, Demeas at first appears to be furious despite Chrysis’ assurance that Demeas will accept the child because of his love for her (81). Demeas states γ]αμετὴν ἑταίραν, ὡς ἔοικ᾿, ἐλάνθανον | ἔχ]ων (‘without realizing it, I seem to have a lawfully wedded hetaira’, 130–1). He feels he is obscuring the distinction between a married citizen woman and a hetaira by fathering children with her, a function of the former rather than of the latter.Footnote 72 Before Moschion’s confession that the child is his rather than his father Demeas’, he attempts to persuade his father to keep the baby (135–43a):
The idea of bringing up a bastard inside his home is extremely distasteful to Demeas. Moschion’s argument has roots in tragedy, for example the statements in Sophocles’ Aleadae, ἅπαν τὸ χρηστὸν γνησίαν ἔχει φύσιν (‘all that is good has a legitimate nature’), and in Euripides’ Antigone/Antiope, ὀνόματι μεμπτὸν τὸ νόθον, ἡ φύσις δ᾽ ἴση (‘bastardy is contemptible in name, but its nature is equal’).Footnote 73 Moschion’s language is also reminiscent of Euripides’ sophistic style, as parodied by Aristophanes (for example Eur. Polyidus fr. 638; Ar. Ran. 1477–8). Perhaps this is humorously signposted by the fact that the oath is to the god of theatre (μὰ τὸν Διόνυσον, 139). After all, Moschion is here giving a performance rather than arguing based on the ‘facts’. It is humorous that Moschion, pushed into a corner, has to resort to tragic parallels and Euripidean sophistic reasoning. Moreover, the performative aspects and the extrageneric references in Moschion’s argumentation provide an opportunity for exploring radical approaches to societal norms and regulations. It is striking that Demeas is persuaded, though it is unclear exactly how this happens, since the text is lacunose after line 143. Even though the child is Moschion’s rather than Demeas’, the successful persuasion presents a view of forms of relationships and child-bearing outside the constraints of the Periclean citizenship law.Footnote 74 Konstan suggests that it might reflect the reality of Athenian contemporary life and that there had been a relaxation of the Periclean citizenship law.Footnote 75 Whether or not this was the case, Samia dramatizes the tensions between the traditional legal requirements of belonging to the polis and personal relationships.
Demeas uses similar argumentation to that of Moschion when he decides to forgive him, in the mistaken belief that his son had a child with his concubine. He refuses to believe that Moschion would have betrayed him willingly (346–7):
The mention of Moschion’s status as Demeas’ adopted rather than biological son and the exclusion of this as a consideration in favour of character interweaves with Moschion’s own emphasis on character rather than birth, when he persuades Demeas to keep the child. The importance of character in the play extends to the Samian woman herself. Menander integrates Chrysis into the community he presents and creates sympathy for her through positive characterization.Footnote 76 She is protective of Moschion’s baby, not allowing it to be fed by a nursemaid (84–5) and rescuing it from Niceratus at the risk of her own safety (558–61, 568–9). She is also valued by her neighbours who have enjoyed social relations with her (35–8) and attempt to protect her from Demeas’ anger (416–21).
Overall, we are not encouraged to look down upon her or Demeas. Menander admits human departures from the spirit of the law. What emerges in his presentation and in the audience’s expected response is the importance of personal character over circumstances of birth or legality. This can be seen through the presentation of Niceratus who is far less appealing than Demeas, even though he has a lawful wife rather than a live-in concubine.
ii) Rape and adultery
Rape and adultery also threatened the legitimate status of children. Character emerges as a similarly crucial factor for attitudes towards these crimes in Menander’s plays.Footnote 77 Rape was a serious crime in Athens and there are signs of this in Menander’s plays—Gorgias in Dyskolos thinks that it is a crime θανάτων ἄξιον πολλῶν (‘meriting many deaths’, 292).Footnote 78 A rapist could be prosecuted via the γραφὴ ὕβρεως (‘public prosecution for outrage’), for which the penalty could be death or a fine paid to the state, or via the δίκη βιαίων (‘private action for assault’), for which the penalty was a fine, paid to the victim (or to their κύριος [‘legal guardian’]).Footnote 79 However, these punishments do not feature in Menander. In New Comedy the predominant attitude towards rape is that it is atoned for by an offer of (or by pre-existing) marriage.Footnote 80 If the result is legitimate offspring according to the Periclean citizenship law, other considerations are set aside.
Yet in Samia Moschion’s rape of Plangon is problematized despite his intention to marry her.Footnote 81 Does this provide us with a contrasting attitude towards the crime of rape which decentres the production of legitimate offspring? Character seems to be key for understanding the disapproval Moschion is portrayed as deserving in the play. The slave Parmenon has to insist upon Moschion doing right by Plangon, something in which he is likely to have had the audience’s agreement. While Moschion uses the term ἡμάρτηκα (‘I made a mistake’, 3), Parmenon insists on him taking greater responsibility by telling him ἠδίκηκας (‘you have done wrong’, 68) and suggests that Moschion should fear Plangon and her mother rather than his father (67–9).Footnote 82 Parmenon tells Moschion ἀλλ᾿ ὅπως ἔσει | ἀνδρεῖος, εὐθύς τ᾿ ἐμβαλεῖς περὶ τοῦ γάμου | λόγον (‘you must be manly and immediately address the subject of marriage’, 63–5) and calls him ἀνδρόγυνε (‘womanish man’) when he hesitates (69). It is his hesitation to confess and to right his wrongs that leads to the misunderstandings in the play which nearly cause physical violence and death. Moschion’s crime is serious, but he is presented as dislikeable not because of his rape of Plangon but because he failed to face his responsibilities in relation to his crime, and this very nearly ended in utter disaster. His lack of ‘manliness’ in response to his ‘mistakes’, like Niceratus’ excessive resentment when things have turned out ‘well’, is what guides the audience’s response to the legal issue of rape.
Radical views surface in Epitrepontes when Charisius considers forgiving his wife for giving birth to another man’s child. He does so because of her loyal behaviour towards him and because he has found out that he too has an illegitimate child. When Charisius overhears Pamphile stand up for him to her father, he calls himself ἁλιτήριος (‘the sinner’, 894) for fathering a νόθος (bastard) and rebukes himself for not giving a συγγνώμης μέρος (‘share of forgiveness’, 897) towards his wife who was ‘enduring the same misfortune’ (ἀτυχούσῃ ταὔτ᾽, 898, cf. 915). His main self-criticism is lack of understanding for his wife’s predicament which he has only gained now through empathy (though his ‘empathetic’ understanding of his act of rape and of Pamphile’s experience of rape as a victim as the same thing appears rightly repugnant to modern audiences).
Charisius reflects on his own mistakes: ἐνταῦθ᾿ ἔδειξ᾿ ἄνθρωπος ὤν (‘here I showed that I am human’, 912). Just as in Samia, Demeas’ situation with a live-in concubine is the result of human fallibility, so too Charisius is presented as having revealed his own human nature in his transgression of rape. He contrasts his and Pamphile’s behaviour regarding the other’s ‘transgression’ and is clearly deeply ashamed, while praising her (914–22). He also describes Pamphile’s misfortune as ἀκούσιον (‘unwilling’, 914) and thereby seems to acknowledge that the act of rape gives her reduced responsibility for her diminished acceptability as an Athenian wife and mother. While, unlike the husband of a seduced wife, an Athenian man may not have been legally obligated to divorce his raped wife, no grounds needed to be given for divorce in Athens, and rape may have been a cause for divorce.Footnote 83 The fact that Pamphile had been raped and had given birth to a bastard certainly damages her status as a producer of legitimate heirs.Footnote 84 Yet Charisius resolves to stand by her, radically pushing against the feeling of pollution which surrounded his wife’s production of a bastard. His destigmatization of Pamphile is motivated by love and appreciation of her character, elevating other considerations above the secure legitimacy of any future offspring. This rather radical view is not pressed since the child Pamphile gave birth to turns out to be his own child. However, his self-reproach and his praise of Pamphile in this speech suggest an alternative hierarchy of values where a woman’s personal loyalty and character are placed more highly than her status as a producer of legitimate heirs.Footnote 85
CONCLUSION
Attitudes expressed towards the law in Menander’s plays provide insights into the concerns and values of the playwright and his audiences. In the plays where law takes centre-stage and we have enough text preserved to evaluate its presentation, Athens stands out as an important and specified context. The city’s fondness for litigation is itself a theme and is problematized on a spectrum between light-hearted pastiche and the extreme, and sometimes illegal, consequences of a tendency to mobilize and manipulate the law.
Early Hellenistic Athens emerges as a society grappling with the tensions between legal and personal considerations, particularly in the area of citizenship. In the context of the political disruptions and shifts in the definition of the Athenian citizenry in the early Hellenistic period, Menander opposes traditional legal requirements for ‘belonging’ to the polis and adhering to its rules with the more stable claims of personal character and humanity. Humanity is presented as central for responses to legal and illegal actions. It should lead us towards an understanding acceptance that people do not behave perfectly, and we should therefore excuse certain lapses in the right contexts. There are limits to how far the law can stretch to allow for human mistakes and judgement, but these are frequently left open to the audience to negotiate. Crucial to Menander’s presentation of social dilemmas is personal character. It is someone’s τρόπος (‘character’) that is responsible for their actions, for their fortune and for how others evaluate them.Footnote 86 This plays a guiding role in the approach to the law in Menander and directs the audience’s sympathy and attitudes to the involvement of state institutions in the private lives of his characters.
Menander’s dramatic technique allows for multivocality. The values we have seen appear flexible, and often contradictory views can be held or displayed in conflict without a clear guideline presented as to how they should be resolved. Views about the law itself are focalized in such a way that they cannot be put forward as the guiding principle of the play, and Menander often places challenges to the law in scenarios which the audience knows are not the reality of the situation. This allows for greater opposition to the system but also for varying responses to radical approaches which turn out to be happily unnecessary. Ambivalence, therefore, is central to Menander’s portrayal of the law.
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