Until the 1970s, more or less, the history of women and sexuality did not interest the academic community. When it was even considered, such history was limited to a few references within research dedicated to more traditional subjects, regarded as scientifically more interesting. In the past thirty years, however, the horizons of classicists have expanded to include these issues and to dedicate ever more attention to the problem of social construction of gender as a political organizing principle.

The opening up of these new horizons is part of a more general transformation of ancient and modern historiography, tied to the French school that followed Fernand Braudel, who criticized the history that concentrated on the great events and major figures (“l'histoire evenementielle,” as Francois Simiand defined it), neglecting the underlying social reality and ignoring the existence of millions and millions of anonymous individuals. In this light new historiographic subjects were born, the different and marginal from every epoch: the sick, the old and young, homosexuals, women - subjects, all of them, whose history is not determined by events, but rather by mental attitudes, ideologies, practicalities of everyday life and their position in a socioeconomic context. The history of women and sexuality and the reconstruction of gender problems have thus established themselves inside this new history, no longer only “evenementielle.”

INTRODUCTION

The past two decades have seen a dramatic increase in scholarly research on aspects of the prosecution of crime in ancient Greece, and in particular in Athens. Scholarship has focused on the process of prosecution, the history and workings of courts such as the Areopagus, as well as specific crimes like homicide, adultery, theft, sycophancy, and hubris. Such research has enhanced our understanding of the procedures used in criminal prosecution and the substantive law of particular crimes. What has received far less attention, however, is the way in which Athenians conceptualized the category of “crime” and the laws enacted to deal with it. Did the Athenians in fact have conceptions of something like our notions of “crime” and “criminal,” as distinct from other types of wrongs and wrongdoers? Did they think of the methods of prosecuting and punishing criminal offenses as a separate legal category from other sorts of proceedings? Did they have a distinctive conception of punishment as opposed to other kinds of legal remedies? What did they believe were the distinguishing features of this area of the law and its relation to the larger framework of Athenian litigation and government? These are large and complex questions that could only be comprehensively answered in a book-length study.

INTRODUCTION: LAW, THEORY, AND POLITICS

In the modern world law plays a major role in theoretical writing about politics. This is especially true in the United States, where prominent judges write political philosophy and political theorists actively seek to influence judicial interpretation of constitutional law. Although no formal body of expert writing about law comparable either to American constitutional jurisprudence or to the great corpora of the Roman Jurists developed in Greece, normative and evaluative reflections on law-making and judicial practice appear early in Greek literature. By the late classical period, jurisprudence, in the extended sense of “philosophical writing about law” was a feature of Athenian political theorizing and litigants in Athenian courts made jurisprudential arguments to mass juries. The practice of law and the development of political theory were closely intertwined within the Greek experience; showing how they became intertwined reveals distinctive features of Greek law and political theory alike.

Tacitus elected to begin his Annals with the death of Augustus. The free state was already dead - long since. “How many were left who had even seen the res publica?” (Ann. 1.3). Augustus' own longevity had enabled him to outlast almost all whose memories might stretch back to the Roman Republic. Nearly half a century had elapsed since the battle of Actium, sixty-three years since Caesar had crossed the Rubicon. Tacitus sums it up with typically concentrated force at the beginning of the Annals: “Augustus subjected all to his power - under the name of princeps” (Ann. 1.1). The contrast between word and fact, a Tacitean trademark, appears here in the very opening lines. Tacitus makes the same point elsewhere: “Augustus gave us the institutions under which we gain use of peace - and a princeps” (Ann. 3.28). The cynical attitude affected the view of the great eighteenth-century historian Edward Gibbon, who wrote “Augustus was sensible that mankind is governed by names. Nor was he deceived in his expectation that the senate and people would submit to slavery, provided they were respectfully assured that they still enjoyed their ancient freedom.” It did not happen in a day or a year. Augustus, says Tacitus, grew ever greater in small steps, gradually usurping for himself the functions of senate, magistrates, and laws (Ann. 1.2). Such was the Augustan principate, in Tacitus' jaundiced view.

The age of Augustus continues to fascinate. For good reason: it was unquestionably one of the pivotal periods of western history, if not world history. Its monuments and art still vividly speak to us today as do its writers: Vergil, Horace, and Ovid in particular. At center stage, of course, is the young heir of Caesar, only eighteen years old at the time his adoptive father was cut down. A charismatic personality, maybe; a flamboyant one, no; but surely one as multifaceted as the arts, politics, and social developments of the time and, certainly, the Roman empire that he accumulated, tirelessly expanded (we should not be fooled by his parting admonition to Tiberius), helped shape, and unified - which does not mean homogenized - to an unprecedented degree. In structural and material terms, a basis was laid for the system called the principate that lasted for more than 200 years; the birth of Christ during his era may convince even agnostics of divine foresight.

Great periods in world history and their leading figures are destined to keep attracting attention and undergo changing evaluations. There is more to that than the perpetually grinding mills of the scholarly (re)interpretation industry, spurred on by the usual academic rewards. Even outside this sphere, the process of reception is ever changing and shaped by multifarious factors, consumers, and producers. Every age brings its own perspectives to those before it. Such perspectives tend to be far from monolithic because they often reflect contemporary tensions. In “Augustan” England, for instance, Augustus' reputation fluctuated like a cork on the tide of violent crosscurrents - political, literary, and cultural (Weinbrot 1978).

It is widely recognized that the procedural complexity of the Athenian administration of justice provides us with an important key to understanding how the legal system worked in practice. The way in which individual statutes were framed meant that a citizen who wished to bring a complaint before a court would often have a range of different procedures to choose from, each of which would have different consequences for the defendant if he was found guilty as charged. What has not attracted similar attention from modern scholars is the extent to which the choice of procedure affected the rhetorical strategies employed by the litigants involved in the action. Nor has there been much discussion of the question whether the nature of the dispute itself affected the way in which the litigants were expected to present their cases before the courts.

MAIMONIDES, THE PURVEYOR OF PERPLEXITIES

It would not be an exaggeration to say that Maimonides' Guide of the Perplexed (henceforth Guide) shaped the course of subsequent Jewish religious philosophy, especially during the later Middle Ages. Maimonides had considerable impact also on some Christian medieval thinkers, such as Thomas Aquinas, and was studied by several early modern philosophers, such as Spinoza and Leibniz. The reception of the Guide in the medieval Jewish philosophical tradition was quite varied: Many reacted to it so enthusiastically that it became for them a virtual canonical text; others treated it sympathetically but critically; and some rejected it completely or in large part. But even in the latter case, the critique of Maimonides was presented in the language and conceptual framework of the Guide. This diverse and pervasive impact of the Guide can be in part attributed to the paradoxical result that instead of removing perplexities it raises them and leaves some of them unresolved.

HELLENISTIC LAW AND HELLENISTIC CULTURE

“Mixed Law” and “Mixed Civilization”

What is Hellenistic law? When the adjective “Hellenistic” applies to law, it needs to be explained, just as when it stands next to the words “era” or “civilization.” The idea of a “mixed civilization,” advocated in the past by the historians of Antiquity, following Johann Gustav Droysen for whom the Hellenistic world was the result of a mixture of Greek Occident and Barbarian Orient, is presently abandoned. The meeting of local traditions with practices and ideas which the Greco-Macedonian immigrants imported to the provinces of the Achaemenid Empire conquered by Alexander the Great could surely not help but act on the evolution of the law. The Greek traditions henceforth act in a space larger than the narrow framework of the Greek state, polis or ethnos, and this necessarily entailed changes in the substance of law. For their part, the local legal cultures must have been influenced by the Greek element entrenched in an Egyptian or Oriental environment. Interplay of mutual influences starts and directs the law-givers' action to solutions, which can combine a Greek form with a content determined by the local heritage. However, all this does not lead to a “mixture,” and the idea of “Hellenistic law” can in no way refer to such a mixture.

Following a brief exposition of the rise of rhetoric in Athenian democracy, the first task of this chapter is to explain how rhetoric became a primary instrument of the judicial process in fourth-century Athens even though rhetoric had no intrinsic interest in the law. The second task of this chapter is to demonstrate how rhetoricians spoke about the law and used it for rhetorical purposes in speeches delivered by them or others before the law courts of Athens.

Athenian Democracy and the Rise of Rhetoric

The Athenian democracy of the fifth and fourth centuries B.C.E had no executive office or executive council. Rather, official, binding decisions were made in two public, democratic institutions, the Assembly and the courts. The purpose of both institutions was to express the will of the demos – that is, the mass of ordinary citizens who made up the vast bulk of the citizen body and wielded power in the state – in a fair, open, institutionally stable way. The demos delegated tasks and decisions to lesser institutions or colleges of magistrates in the name of efficiency. Initiatives in the Assembly and courts were in the hands of individuals, who competed for political leadership. And the demos often reconsidered or revised its own decisions. But there were no institutional mechanisms to limit the demos’ sphere of activity, and there was no doctrine of rights restricting the will of the demos. The power of the demos within the state was absolute, its decisions in the Assembly and courts were final and not subject to appeal.

Although Maimonides did not write a running commentary on any book of the Bible, biblical exegesis occupies a central place in his writings, especially in the Guide of the Perplexed. In the Introduction to the Guide, Maimonides explains that the book is addressed to a believing Jew who observes the commandments and accepts the Bible as authoritative but has read Aristotelian philosophy and accepts it too. When such people discover contradictions between a literal understanding of the Bible and the principles of philosophy, they become perplexed. Maimonides' exegesis is intended to resolve their perplexity by showing that biblical truth is identical with the truths of philosophy so that one can be a Jew and a philosopher at the same time.

Two assumptions determine the character of Maimonides' exegesis. First he accepts Alfarabi's political theory according to which the ideal state is one whose beliefs are based on philosophy. Religion comes after philosophy and offers educational myths that imitate philosophical truths by images that can be understood by the masses. Second, he considers the Bible an esoteric work that conceals philosophical truth from the masses, allowing them to retain their faith, but reveals it to those who have the requisite degree of knowledge and the capacity to comprehend it. In addition to allowing Maimonides to resolve contradictions between the literal meaning of the biblical text and philosophic truth, these assumptions allow him to explore the philosophic meaning conveyed by educational myths or concealed from the masses by parables and other devices that occur in the Jewish literary tradition.

We have ample documentation, both from archaeological finds and in ancient texts, for interior decoration in the age of Augustus. In Rome itself we have considerable remains of the wall and ceiling painting from Augustus' own house on the Palatine, as well as the painted and stucco decorations from a villa that may have belonged to Agrippa and Julia. At Boscotrecase, near Pompeii, archaeologists excavated several rooms of a villa that may have belonged to Agrippa's son, Postumus. Vitruvius, an architect who dedicated his treatise to the Emperor around 20 B.C., describes the established style of wall painting and then goes on to complain about a new style coming into vogue at the moment. Pliny the Elder discusses the work of a certain Studius active during the Augustan age, crediting him with inventing a special kind of landscape painting.

Art historians and archaeologists have studied these Augustan monuments and texts with great intensity and considerable imagination. The resulting narratives make a broad range of claims. The earlier accounts focussed on chronology (Mau 1882; Beyen 1938-1960); in Mau's famous dating scheme of the Four Styles of Romano-Campanian painting, the paintings from Augustus' house on the Palatine (circa 30 B.C.) mark the midpoint of the last phase of the Second Style (40-20 B.C.), and those of the villa of Agrippa and Julia (dubbed the Villa under the Farnesina) mark the transition from the Second to the Third Style (about 20 B.C.). The Villa at Boscotrecase then serves as the finest example of early Third Style painting (15-1 B.C.).

The late fifth century at Athens marks an important change in the nature of the historical record. It is not so much that earlier forms of evidence disappear - indeed, the rise of what is often called “radical” democracy after ca. 460 B.C. sees an exponential increase in the number of surviving inscriptions, though these are often of less significance as legal sources than might have been anticipated - but that they are joined from ca. 420 by a new type of literary text, which has come to dominate modern study of the Athenian legal system: law-court speeches, which purport to present a record of what was said by one (or occasionally both) of the parties performing at a trial.

My brief in this chapter is to use the medium of the speeches to introduce the study of fourth-century Athenian law, which forms the subject of the next two sections of the volume. But to focus simply on the status of these texts as historical evidence may be too narrow a perspective. Athenian lawcourt speeches reflect a system of procedural law in which the respective rôles played by performers and by hearers within a trial are very different from those found in modern jurisdictions, whether in common-law countries such as England and the United States or in civil-law systems such as those of ContinentalEurope.

INTRODUCTION

Human beings are social animals according to Aristotelian philosophy. We form societies because we naturally desire the companionship of other human beings. We are also dependent on others for the fulfillment of our basic human needs. Rare is the solitary individual who is capable of producing all that is minimally required for human existence. Thus the “state of nature” for the Aristotelian philosopher is not a presocial state, even if this state is regarded as only a hypothetical construct; it is the social life.

Human society still poses a type of paradox to the Aristotelian philosopher. Although people tend to possess an inherent need to live together, they are incapable of doing so if left to their own devices. The strong would immediately take advantage of the weak. Cruelty and other evil passions would thrive unchecked, inevitably creating a situation at least analogous to Hobbes' state of nature in which life is nasty, brutish, and short. Yet it is nature itself that provides a remedy to this situation. It confers on some individuals the ability to rule others, to organize them in a manner in which they can function in harmony despite their divergent characteristics.

Writing the Provinces into a very Roman Revolution

Augustus and the City of Rome stand at the heart of all histories of this period. Augustus and his image builders put them there. The contributions made by others were limited in fact, and effaced from memory unless they could be grouped around the person of the emperor. The other great cities of the Mediterranean - Athens and Alexandria above all - were plundered and marginalised. Augustus wrote his name all over the City and transported the City out to the world. His Res Gestae et Impensae lists wars won abroad and money spent at home, that is in Rome. Most modern accounts have followed this steer in stressing the complexity and importance of the accommodation that Octavian/Augustus achieved with the senatorial and equestrian élites of the City and of Italy (Syme 1939, Eck 2003). Others have explored how he constructed the new order - symbolic, political, religious, moral, military, and economic - out of the traditional symbols, words, rituals, spaces, and institutions of Republican Rome (Galinsky 1996, Nicolet 1991, Zanker 1988). We slip, in our usage, easily from Rome the City to Rome the Empire and back again. Urbs obscures Orbis.

Yet Roman history in the lifetime of Augustus is no longer the history of one city. Well before Actium the Roman People, so prominent in Augustan writing, referred to a citizen body that incorporated virtually all the free inhabitants of the Italian peninsula and many beyond it (cf. Purcell, previous chapter in this volume).

One of the most striking features of speeches intended for delivery in the Athenian popular courts is the presence of material that would be considered irrelevant or inadmissible in a modern courtroom. The interpretation of this tendency to include information that does not bear on the legal issue in dispute is central to our understanding of the aims and ideals of the Athenian legal system. In recent years, it has been argued that the courts did not attempt to resolve disputes according to established rules and principles equally and impartially applied, but rather served primarily a social or political role. According to this approach, litigation was not aimed chiefly at the final resolution of the dispute or the discovery of truth; rather, the courts provided an arena for the parties to publicly define, contest, and evaluate their social relations to one another and the hierarchies of their society. On this view, the extra legal arguments in surviving court speeches provide evidence that litigants were engaged in a competition for honor and prestige largely unrelated to the statute under which the suit was brought or the incident that ostensibly gave rise to the dispute. This approach to the Athenian legal system has been challenged by scholars who contend that the Athenian courts attempted to implement a rule of law.

Periodizations are tools that very few trust but everybody uses. Some periodizations become more popular than others: the Augustan Age, as this volume will no doubt confirm, has achieved unparalleled stability among the many constructs of historicism. This result has many authors, but what is really striking is that the process of stabilization is initiated by poets contemporary with Augustus, people who pioneer the claim (Horace, Odes 4.15.4: tua, Caesar, aetas; Ovid, Tristia 2.560: tua tempora, Caesar) that a new age and a different age has come, perhaps a definitive new age for Rome. Our acceptance of the Augustan age as a well-defined period of history is deeply collusive with strategies of self-representation in Rome during the watch of Octavian-Augustus. The other obvious example that comes to mind, the periodization of the Great Century (or Generation) in 17th century France under Le Roi Soleil, is not an independent term of reference, but the result of conscious appropriation of Augustan models at the court of Louis XIV.

True, the Augustan age has consolidated under the influence of many factors, most of them political, but I would say that the crucial factor for modern scholars (and readers) has been the possibility of making multiple connections between political change, material culture, ideology, literature, and the visual arts.