The Shape of Athenian Law 0198148941, 9780198148944

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THE SHAPE OF ATHENIAN LAW

The Shapeof Athenian Law S. C. TODD

Clarendon Press · Oxford 1993

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British LW,a,y Catalopi"lf i" Pllblitation Data Data tnJOilable LW,a,y of Congreu Catalop,g j,. Publication Data Th, w,p, of A,__ w I by S. C. Todd. J,u:ludu bibliographical rejnfflteJ.

1. Law, Greek. 2. Law--Gr~Athnu.

3. Athnu (Greeu)-

Social life and automl. I. Tille. KL4115.A75T63 1993 349.495'12-dtZO {344.9512] 9~10517 ISBN 0-19-814894-l Set by Hope Servim (Abingdtm) Ltd. odd-free paper by Bookcraft ( Bath J Ltd., Midwmer Norton, Avm,

Printed ;,. Great Britai,.

°"

To my colleagues in the Classics Department at the University of Keele: Andrew Fear

Gerry Nussbaum Alison Sharrock Richard Wallace

Wynne Williams

Preface

THIS book has been almost seven years in the making. It began life during my tenure of a Research Fellowship, a period when there was still time to think and read and write, without the pressure of a teaching post and the ever more strident demands of administrators, who now seem increasingly to be arrogating to themselves all power within the British university system. In those early days it formed part of the introduction to a projected historical commentary on the speeches and fragments of Lysias, which I still hope to complete in due course. Even then, however, it had clearly outgrown its original purpose, and I was delighted to accept an invitation from Oxford University Press to expand it into a book in its own righL This, however, required a change of focus, to make it a book no longer about Lysias but about law and its social implications; and inevitably, because of other duties, this took rather longer than I had hoped. In the event the entire text was rewritten from scratch during the academic year 1990/1, and all that remains of the original project is the presence of Lysias in the casestudies which provide a focus for each of the final six chapters. The resulting book is intended to fulfil two separate (and ultimately perhaps incompatible) functions. Its primary purpose, as the title suggests, is to explore the 'shape' of Athenian law, in a way that will say something new for those working on Greek history and literature, and something interesting for comparative lawyers and social anthropologists. But it is also designed to serve as a handbook for those general readers (including students) who wish to find out what was the legal position of slaves or metics at Athens, or what impact the rules of inheritance had on Athenian women or the system of landholding on the social and economic behaviour of Athenian men, or why for that matter Athenian politicians spent so much time in court hying to gel each other executed. This dual focus is the reason for the use of discursive footnotes: the aim has been to produce a text that is sufficiently uncluttered for its flow to be clear, but to record areas of disagreement and further implications for those who wish to pursue them. It is to serve the needs of these very disparate groups of readers that

viii

Preface

all the Greek in this book is either translated or else transliterated in italics. The Anglicization of Greek is always a contentious subject: whereas earlier scholars tended to use Latinate forms (thus 'Socrates' or 'Polemarchus'), there is now a movement towards transliterating the Greek directly into English ('Sokrates', 'Polemarlchos'); and this on the whole is the route that I have adopted (except in the case of some very well-known names like Thucydides, where confusion might result), not least because it may help to symbolize the liberation of Greek from Roman legal history. (For the abbreviations used to denote the various Greek authors and the titles of their works, see the Index of Passages.) Where a Greek word has a conventional English derivative, I have used that: occasionally, where a word has a range of meanings, I have used both forms in different contexts (thus arkhon and arlchon, de mos and deme ); such cases are highlighted where appropriate both in the text of the book and also in the Glossary, which itself outlines the meaning of all the Greek legal terms used in the book, together with some non-Greekones. To assist the Greekless reader with pronunciation, it may be worth noting that final vowels in a Greek word are always sounded; and also that there are in Greek two forms, long and short, of the letters 'e' and 'o', which is why in this book all long 'e's and 'o's in italicized Greek words have been indicated by the use of macrons. All dates are ec, except where this is either stated or obvious; Atheniancalendaryears, which ran from summer to summer, are indicated by the form 403/2, etc.; where the hyphenated form 403-402 is used, this is to denote a period of (in this case) 24 months. My thanks are due to a range of people (as also are my apologies to those whose phrases I have shamelessly parodied, most notably the late Dom. Gregory Dix). I am grateful to several institutions for their support during the writing of this book: Oxford University Press, and especially Hilary O'Shea and her various acolytes; Fitzwilliam College, Cambridge, where I spent two years as Research Fellow (1985-7); Wolfson College, Oxford, for a period as Visiting Scholar (in 1990/1); and the University of Keele (since 1987), in particular for granting me the two terms of sabbatical leave during which the book as it now stands was written. But I would like also to thank a large number of individual friends and colleagues: John Crook, Mogens Hansen, David Johnston, Paul Millen, and David Whitehead, who read the early drafts and encouraged me in various ways to turn them into this book; Paul Cartledge, Michael Crawford, Margaretha Debrunner Hall,

Preface

IX

Nick Fisher, Michael Gagarin, Helen King, Andn,w Lewis, Valerie Naylor, Daniel Ogden, Simon Price, Peter Rhodes, Geoffrey de Ste Croix, Trevor Saunders, and Susan Treggiari, all of whom read individual chapters; and in particular those who read the whole manuscript in final draft, Kenneth Dover and David Lewis (for the Press), Douglas MacDowell, Jenny McEwan, and Robin Osborne. My chief thanks, however, are due tn my colleagues in the Classics Department at Keele, who have over the last five years supported my enthusiasm for the project and will, I hope, accept its dedication. S.C.T. '""" 1992

Contents

xii

List of Figures Abbreviations

Xlll

METHOD

I The Legacy of Athenian Law?

3

2 Comparisons, Assumptions, and the Concept of 'Shape'

18

3 Sources of Law: Sources of Information

30

4 Sources of Law: Legal Sources

49

5 The Shaping of Athenian Law

64

PROCEDURE

6 The Personnel of Procedure

77

7 The Range of Procedures

98

8 The Stages of Procedure

123

9 Procedure in Action

147 SUBSTANCE

I O Personal Status

167

11 Personal Relations

201

12 Relations between Persons and Things

232

13 Relations within the Po/is

258

14 Relations with the Po/is

285

15 Relations with People Outside the Po/is

316

Bibliography

341

Glossary

359

General Index

403

Index of Passages

421

List of Figures

6.1. A pinakion, used for the allounent of dikastaiand other officials 6.2. Restored drawing of an Athenian kleroterion,used for allotting dikastai to courts 8.1 (a) Reconstruction of an Athenian k/epsudraor water-clock; (b) drawing of the klepsudrain action 8.2 Two Athenianps;phoi or jurors' ballots

85 86 131 133

Abbreviations

/tHR American Historical Review Archives tf histoire du droit oriental /tHDO AmericanJournal of Archaeology A/Arch. AmericanJournal of Philology AIP BSA Annual of the British School at Athens C&:M Classica et mediaevalia CJ ClassicalJournal CPhil. ClassicalPhilology CQ Classical Quanerly CR ClassicalReview G&:R Greece &: Rome Greek, Roman and Byzantine Studies GRBS Harvard Studies in ClassicalPhilology HSCP lnscriptionesgraecae (Berlin 1873-) lG Jnsc.Del. Inscriptionsde Delos Journal of Hellenic Studies JHS Liverpool ClassicalMonthly LCM LSJ H. G. Liddell, R. Scott, and H. S. Jones (1940) (eds.), A Greek-English Lexicon, 9th cdn. with suppl. 1968 (Oxford).

OJA PCPS P.Oxy. REG RFIC RIDA SDHI SEG TAPA TvR

ws ZPE

zss

OxfordJournal of Archaeology Proceedingsof the CambridgePhilologicalSociety The OxyrhynchusPapyri (London 1898-) Revue des eludes grecques Rivista di .filologiae di istruzione classica Revue internationaledes droits de I' antiquitt Studia et documenta historiae et iuris SupplementumepigraphicumGraecum (I 923-) Transactionsof the American PhilologicalAssociation Tijdschrift voor rechtsgeschiedenis= Revue d' histoire du droit WienerStudien Zeitschriftfar Papyrologieund Epigraphik Zeitschriftder Savigny-Stiftungfur Rechtsgeschichte

METHOD

1 The Legacy of Athenian Law?

1.a

ATHENIAN

LAW AS HISTORY

l .a.i Law without legacy Law is one of the very few areas of social practice in which the ancient Greekshave hadno significantinfluenceon subsequentsocieties. To grasp the significance of this statement, it is worth examining for a moment the contrast with politics, that other area of life in which relationships between human beings are publicly regulated. The Greeks invented not merely the terminology of politics, but many of its fundamental concepts: it was the fourth-century philosopher Aristotle who coined the term ta politika to denote the stu~y of public life specifically within that characteristically Greek institution, the po/is or city-state, and thereby invented politics as a subject to study; and the idea that the demos or citizen body, however defined, should exercise /cratos(sovereign authority), was the revolutionary tenet of the one Greek po/is about which we are well informed, and of which the legal system forms the subject-matter of this book: democratic Athens.' Politics, it must be admitted, is an extreme example of the Greek legacy. But it is by no means unique: the range of intellectual disciplines which the Greeks either invented (such as history) or substantially developed (such as mathematics) is astonishingly broad; and even where there has been no linear descent, there is often an etymological and therefore a symbolic relationship. The fact that the term

'economics',for instance,derivesfrom a Greek word,does not show that the modern concept was known in antiquity; but it does show that the eighteenth-century founders of the subject were working within a 1

For the lenllS polisanddlmos, along with many of the otherGreekwordsused in this book, sec Glossary.It shouldperhapsbe emphasizedat the outsetthal Athenswas exceptional(thoughnot unique)amongGreekpoleis in being a democracy.

Method

4

tradition which perceived classical Greek as a legitimate (and perhaps indeed a legitimizing) source of academic tenninology. 2

Law, however,is a differentmatter,becauseancientGreeklaw has had a negligible influence on posterity. Even where there are superficial sintilarities between Athenian practice and that of modern jurisdictions, there may be no direct descent: MacDowell (1978: 34) for instance regards the jury as an Athenian invention; but it should be admitted that the development of the jury system in English law is wholly independent (Comish 1968: 10-12). The nearest that can be traced to a real influence is strikingly remote: a number of Greek philosophers (none of them particularly noted within the Greek world as legal thinkers) had ideas about justice which influenced the work of Roman legal writers and thus indirectly the development of legal doctrines in Western European thought.' Even the language of law owes nothing to the Greeks: most of our familiar terms, 'law' itself and 'justice' among them, derive from Latin rather than from Greek roots. Perhaps the only comparable area of social life in which the Greek influence has been so insignificant is religion: as has rightly been observed (Finley 1985d: p. xiii), the cultural tradition of western Europe derives its metaphysics from Judaeo-Christian sources and its ethics from Greek philosophy rather than Greek religion. In law, as in religion, the Greeks have left no legacy. I.a.ii Anthropology of law

In view of this, it may seem odd that Greek (and in particular Athenian) law, so long a field neglected by classical scholars, has over the past decade become something of a growth-industry among ancient historians in the English-speaking world. If legal history is about influential doctrines, then why study a system which has had so little influence? And if Classics is the study of a great tradition, why waste our time focusing on an area in which the thread of that tradition has so conspicuously snapped? For, as we shall see, it is to Rome (not to 2

Various aspects of Athenian political history 1UC diSCDSsmat 2.a.ii below and throughoutCb. 14. and of economichistoryin Chs. 12 and IS. in each case with biblio8f?hy. The lackof influenceexercisedby Greekphilosophers on Athenianlaw is discussed at 3.c.ili below, and the unique significance of Romanjuristic writers at 1.b.i below. Admiuedlythe law of Athens(in commonwilh thatof variousotherGreekpoleis) does seem to have had a considerableinftucncc on the law of Gracco-RomanEgypt (for which see Lb.ii and esp. Ch. 3 n. 6 below); but this is a less significantexceptionthan mightappear,because it hadno influenceon post-Romanposterity.

I. The Legacy of Athenian law?

5

Greece, let alone to the highly exceptional Greek po/is that was Athens) that we must look for the origins of modem European legal systems. 4 Indeed, in view of the existence, and in some cases at least the continued availability, of several important systematic works in English on the law of Athens; the question may properly be asked: is there room for another general introduction to the subject? Here, however, the parallel with Greek religion may be worth developing further. For religion, as we have seen, is another area (perhaps indeed the only other area) in which the Greeks have left no legacy; and yet it is now widely accepted as a legitimate subject for study not only by classicists but also and more significantly by specialists in comparative religion. And one at least of the two reasons which could be advanced for studying Athenian law is strikingly similar to the anthropological justification now put forward for studying Greek religion.• The Greek world, as we are now so often reminded, was not like ours. Indeed, it is irremediably alien; and it is by examining those areas of Greek life which are to us most strange that we can best ask questions both about what it meant to be an ancient Athenian and also aboutour own very differentassumptions. Let us consider an example, to illustrate the way in which to study Athenian law from this perspective can be of interest both to the legal historian and also to the classicist. One of the most common slogans of the past decade has been that we must keep the law out of politics and politics out of the lawcourts; just as, and often in the next breath as, we are told of the need to keep politics out of areas such as sport and religion. Now, these slogans are themselves of course ideologically politicized: it is, characteristically, right-wing politicians in this country who have called for sport (usually in the 1980s South African sport) to be kept free from politics. But that is by no means the whole picture: the rhetoric of depoliticization only works because it corresponds to a widely held conviction, at least within the Western European tradition " For the influenceof Romanlaw negativelyon Anglo-Americancommon law and positivelyon the civil-law systemsof ContinentalEurope,see furtherl.b.i below. ' In English, for instance, Bonner and Smith (1930--8), Harrison (1968--71), MacDowell (1978); and in other languages Beauchct (1897, French),Lipsius (1905-15, Gennan),andBiscardi(1982, Italian).The differentcharacteristics of these texts, andthe featureswhichdistinguishthe presentbook fromthem,arcvariouslydiscussedin Chs. 2 and5 below. 6 In additionto these two positive reasons,we may add negativelythe intellectual trendamongthe presentgenerationof classical scholarsto play down defences of their subjectin terms of the continuityof Europeanculturalvalues in favourof the anthropological andhistoriographical justificationsofferedin the text.

6

Method

of constitutional (and more recently democratic) government, that certain areas of life ought not to be politicized. Underlying this conviction is of course the work of the eighteenth-century political philosopher Montesquieu, and his doctrine of a tripartite separation of powers between the legislature (in British terms, parliament), the executive (the government), and the judiciary. Such a doctrine necessarily implies that lawcourts should be both objective and apolitical; and Western liberal democrats have traditionally insisted that where politics (in the shape of the executive) interferes with the judiciary, that is the end of constitutional government. Admittedly this model is at present under critical scrutiny within some legal circles; 7 but the point here is a rather different one. Those western states which claim to be democratic look to the founding democracy of classical Athens as their paradigm. It is all too easy therefore to import into our study of democratic Athens the assumption that because (as we all know) the courts in a democracy must be nonpolitical, the Athenians ought therefore to have realiz.ed this. And so we hear from modern scholars the repeated complaint that Athenian courts did not live up to this ideal; that those who manned the jury panels were not trained jurists but a fairly representative sample of the citizen body; and that the use of legal process for political ends was in some mysterious sense a misuse (see 9.b.i below for refs.). But it is clear on furtherthought that it is not Athenian attitudesbut our own presuppositions that need questioning here. Indeed, our assumption that democracy requires the independence of the judiciary would have made no sense whatever to a citizen of classical Athens, who would probably have responded that you cannot have a democratic constitution without the lawcourts being controlled by and in the interests of the democracy (cf. the discussion of Ath. Pol. 9. I, again at 9.b.i below). This is by no means the only unconscious assumption that we too readily import into our study of Athenian law; in the course of this book, we shall uncover others. The methodological problem of the assumption, how we can start to question that which is by its nature 7

One of the thrusts of the critical legal studies movement, active in Britain and especially in the USA, is to underminethe post-Montesquieuconsensus by denyingthe purportedobjectivityof law as something thatcan or should be divorced from social pressures.For a useful introductionto the movement within its Americancontext, see either Unger (1986) or Kelman(1987); for a highly readableand essentiallypositive critique,butfrom theratherdifferentperspectiveof a Britishscholar,see Hunt(1988).

1. TM Legacy of AtMnian Law?

7

unquestioned, is a subject which can for the moment be laid on one side: it will receive more systematic consideration in Chapter 2.

I .a.iii Historiographyof law The second (if subsidiary) reason for studying Athenian law may perhaps be described as a historiographical justification. The subject has recently been attracting increased attention from English-speaking scholars, most of them ancient historians. This development has to do with a deeper change in the way that history is written, as attention has moved away from the historian's traditional battleground of warfare and diplomatic politics towards broader attempts to interpret the history of society. This change in the nature of history has itself been accompanied hy changes in the use of historical soun:cs: in particular, a substantial increase in the use by ancient Greek historians of a set of texts which over the preceding century has been widely neglected, the speeches of the so-called Attic (i.e., Athenian) Orators. We possess approximately 150 of these speeches, written by, or in antiquity attributed to, a total of ten 'canonical' authors. The careers of these writers spanned the century roughly from 420 to 320 BC,although with something of a gap in the middle of this period. Their names, which will recur throughout this book, are the following: the earlier orators, Antiphon (the earliest, whose activity was terminated by his execution in 41 I BC), Andokides and Lysias (very late fifth and early fourth century), lsokrates and Isaias (early to mid-fourth century, although the former displayed remarkable longevity); and the later orators, Demosthenes and his contemporaries Aiskhines, Lykourgos, Hypercides, and Deinarkhos (active mainly in the period 350-320, although the last named survived into the thinl century). 8 8

The bulk of the surviving speeches arc attributedto Demosthenes (fifty-nine,but 1-17 are assemblyspeeches),lsokmes (twenty-one,often substantial,but I-IS aredisplay pamphlets), andLysias (thirty-four,mostly short,mostly forensic,survivingat random out of the seven! hundredknown in antiquity). Antiphonand lsaios wrote on

various topics, but were regardedin antiquityas specialists (three surviving homicide and eleven inheritancespeeches respectively,though there also survive among the farmer's worksthree sets of Tdralogies, each comprisingtwo short speeches fur each litigant in a fictitious homicide trial, which may or may not presupposean Athenianlegal framework);AndokidesandAiskhinesproduced little;andwe have lost most of Lykourgos andDeinarthos,while Hypereidessurvivesonly in (admittedlysubstantial)papyrus fragments. 1be survivingtellts may be found in Loeb lrllnslations(besl are the two volumes of Minor Orators,Antiphon and Andoltides, and Lykourgos, Hypereidesand Deinarkhos);generally superior, however, is the French B~ series, particularlyfor Lysias (Gcmet and Bizos 1955) and for the private speeches of Demosthenes (Gemet 1954--lis(bread-seller)issuing a summons, though again she mighl have been represented had the case come to trial (MacDowell 1971: 312-13). The punishmentof an adulterouswoman, by contrast.,occurs in a distinctivelyextra-judicialcontext (Dem. 59. 87 with 13.b.iiibelow).

11. PersonalRelations

209

hall (1989: 33) insists, that this was Jess a matter of law than of preferred strategies in dealing with family property. Kurieia should not be seen as the Athenian equivalent of a Roman

father'spatria potestas or husband'smanus. An Athenian fatherwas not a Roman paterfamilias, and he did not have the latter's absolute right of life and death over all his dependants. Nor was there at Athens, as there was at Rome, any form of marriage in which the wife entered into the manus of her husband and thereby severed all links in law with her natal family. Athenian kurieia was much less formal than this.'' As MacDowell (I 978: 85) notes, the term can be used in at least two senses: a man can be /curiosof property and cult, or kurios of persons; and the two senses can conflict, for instance in the case of a married son, whose father is /curiosof his household but not of his son's wife. It is indeed possible that the term is so non-technical that a woman might have several potential kurioi, and might under cenain circumstances be able to play them off one against another (Foxhall, forthcoming). We do admittedly hear of some women at Athens dealing with financial affairs. There may be a contrast to be drawn here between metic and citizen women, as between Athenian women and those in other poleis. Women like Neaira (Dern. 59. 30-2) and Antigone (Hyp. Athenogenes § 3) seem to have more financial independence than do theircitizen counterparts,and to arrangetheiraffairswithoutassistance or interferencefrom any kurioi. But there are also occasional references to citizen women who control or at least influence financial transactions. Demosthenes, the orator, prosecuted his guardian Aphobos for embezzling the estate of his father, also called Demosthenes. One of Aphobos' counter-charges was that the elder Demosthenes had left his widow as kuria (the fem. form of /curios)of four talents, presumably in coined money, which he had 'buried' (Dern. 27. 53). This may not be true, but it has to be conceivable; and Hunter (1989: 43-4) suggests that a widow in this position would retain 11

Wolff (1952a: 8 = Bcmcker 1968: 627) seems to regard Athenian kurieia as, if anything,the more formalinstitution,becauseii was a prerequisitefor a legitimatemarriage, whereastherewere availableat Rome fonns of marriagewhichdid not involve a wife enteringinto her husband'smanus. This may appearsomewhatfar-fetchedin the light of thediscussionwhich follows; buteven if it is accepted,formalitywouldnot necessarily involve power. As C. B. Patterson(1985: 105 n. 6) corm;tly observedagainst MacDowell(1978: 91), the rightto expose a baby is based on the premisethatit is not yet a person,ratherthanon any rightto kill a son. It is at the amphidromia(see 10.b.ii above) thata babybecomessimultaneouslyhwnananda memberof thefamily.

Substance

210

charge of her own affairs until she remarried, which Demosthenes' mother did not do and may indeed have refused to do (Hunter 1989: 40-1, citing Dern. 29. 26 and Dern. 27. 15). We hear also of one Polyeuktos, whose widow was left in control of 1,800 dralchmai(Dern. 4 L 9); the family sorted out his financial affairs in private, to this end using documents left by the widow on her death, the seals of which were verified by her daughters (Dern. 4L 21). Even within marriage, we should not assume that theoretical control was always effective in practice. A fragment of Menander (Plok. frag. 333) suggests that a rich wife might be able to pressurize her (presumably poor) husband into getting rid of his mistress, or at least keeping her out of sight; though we should not perhaps accept as readily as does Foxhall (1989) that a woman without support from her natal family could easily activate her ultimate threat, that of divorce and the resulting return of the dowry (see further I Le.ii below). Both MacDowell and Schaps insist that a man individually 'owned' the oikos of which he was kurios, but there does seem to have been a strong sense that he could more freely dispose in his will of property which he had himself obtained, whereas ancestral property ought to be passed down in full to the heir (see I Ld.iv below with refs.). It should perhaps be noted that it is Schaps's distinctive reading of the function of the epiklerate (discussed at I Le.ii below) which encourages him to see the individual, in this case the woman, as the beneficiary and therefore in some sense the heiress in her own right, rather than as the last surviving representative of her oikos. Foxhall (1989) indeed objects to

the tenn 'owner' here, with its connotationsderivedfrom Romanlaw: we should instead be thinking not of 'ownership' as a unitary concept, but of a variety of rights in property which may be held by various interested parties. That, however, is a large issue, which is best postponed until the next chapter.

1 l.b

MARRIAGE

I Lb.i Marriageand the oikos It is possible, but not demonstrable, that it was at marriage that a new oikos came into being. Clearly, it was not at the birth of children, because a childless man could be said to have his own oikos, even if it was in danger of dying out (for the phrase, see Isai. 7. 30, etc.). Nor does it appear to have been at his father's death: Isaios (6. 5) speaks of the childless Philoktemon's efforts to keep his oikos from a sintilar

11. Personal Relations

211

fate, which implies that in a sense Philoktemon already has his own oilws, even though in this case his father Euktemon is still alive. The clearestreference in the sources to the formationof new oikoi comes in Dern. 43. 19, which says that 'out of the oilws of Bouselos (the father) there came into being five oilwi (those of his five sons)'; but as MacDowell (1989: 16-17) points out, we are not told at what stage these new oikoi came to exist. There is, however, another and very real sense in which marriage makes an oilws by creating the normal conditions for its perpetuation. Adoption at Athens serves merely as a substitute to create the son that maniage has failed to produce; while inheritance by collaterals outside the epiklerate is disliked precisely because it constitutes the absorption of one oilws into another (on the ambiguity of the language of 'preservation' here, see further 1Le.ii below). Concubinage is not an acceptable alternative: whatever the civic status of the illegitimate children of two citizen parents, they cannot take the place of legitimate sons and inherit their father's oilws. 12 I Lb.ii Two forms of ma"iage

There were at Athens two entirely distinct fonns of marriage,as Isaios (6. 14) reveals during his attack on the legitimacy of a woman put forward by his opponents as a claimant to property. Given the time since the death of her putative father, she must now have been marriageable for more than a decade (and of course there were no respectable alternatives to marriage for Athenian women); why then has she not undergone either engue or epidikasia? What is important here is not simply Isaios' use of two terms where we might employ one: there is a Greek word gamos ('marriage' or 'wedding') which would apply equally to both forms, but it is relatively rare in the orators. More significant is that there is no single legal principle underlying both forms (see with caution Sealey 1987: 19-23). We may contrast the situation at Rome, where there were similarly various types of maniage, but where maniage could be defined in law in terms of the consent of the two parties.The consent of the parties, or at least of the woman, received no legal recognition at Athens. 12

On the contested status of such children, sec 10.b.ii above. We hear on several occasionsof notheia, a portionof the estateinheritableby an illegitimateson in default of legitimate heirs; but this is only a residua] portion, and despite its appearanceal Aristoph.Birds 1656 and in Harpok.s.v. notheia, there is no clear evidence thatii still existedin our period.

Substance

212

Marriagewas either by engui and ekdosis, an agreementbetween the husband and his wife's family, in which the state played no fonnal role;13 or it took place underthe rules of the epiklerate,resultingin a settlement within the family (in that the marital partners would necessarily be close relatives), but one which even if uncontested had no validity until ratified by a court hearing (epidikasia).The first was the regular and more common fonn of marriage; the second occwred under specific circumstances, which will be explored at the end of this chapter. Either way, there was no legal possibility of elopement in Athens, because marriage required recognition either by the woman's family or by the state. This had significant effects on romantic fiction: the New Comedy of Menander is concerned much more with gerting the girl's father's agreement than with the boy's efforts to win his beloved's heart. We should, however, be careful here, because law is intended to shape reality, and it is notoriously dangerous to infer practice from theory. Arranged marriages were the rule as much at Athens as at Rome. What we do not know is how far an Athenian woman could in practice

control such arrangements,and whether, for instance, this varied according to social status: all the evidence concerns the leisured elite, and even here there may be a gulf between rules and reality (cf. Hunter's analysis of Demosthenes' mother's behaviour, cited at I I.a.iii above). A parallel with a very different society may warn us to be careful. Le Roy Ladurie (I 980: 180-1) stresses that marriage in the thirteenth-century French peasant village of Montaillou was similarly a matter of two households and not of two individuals; but he notes that this did not in practice apply at the lower end of the social scale, where 'poor maidservants tended to gravitate away from their own domus (family)'.

11.c MARRIAGE AS INTERFAMILY AGREEMENT 11.c.i Engue

The regular fonn of marriage had two essential components: engue (the contract of betrothal) and ekdosis (the handing over of the bride 13

No fonnalrole, that is, except in so far as the state regulatedmarriagein general. The partieshadto be citizens if they wanted their childrento enjoy citizenship (10.b.ii above); the law compelled the divorce of an adulteress(13.b.iii below), and after 350 also of an alien (10.b.ii above);andat least some divorceshad to be registeredbeforethe Ar.than(11.c.ii).

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from her natal family to the bridegroom). A dowry (proix) was expected but evidently not essential: a woman who had been married twice in this manner is succinctly described by lsaios (8. 29) as 'having experiencedekdosistwice and enguetwice', with no formalmentionof the dowry. There were in addition ceremonial formalities (the fullest extant description of a gamos is at Hyp. Lykophron §§ 3-7), but these do not appear to have had any legal significance. The word engue (lit. '[that which is] placed in the hand') is used in a variety of contexts to denote a pledge. It may, for instance, denote

sureties demanded under certain circumstancesfrom a defendant, to guarantee his appearance in court (e.g. Dern. 59. 66, in which case the man guaranteeing payment is described as an enguetes(pl. enguetai)as also at Ant. 5. 17). The term is also used in contexts of leasing (particularly the leasing of state property); and, together with ekdosis, in the language of sale. 14 The vocabulary of engue and marriage is well explored by Harrison (1968-71: i. 2 with refs.) and especially by Sealey (1990: 25). The verb enguao is used in the active voice to describe the action of the bride's kurios, who pledges to give her in marriage; 15 in the middle voice, by the bridegroom, who accepts the pledge; and in the passive voice to denote the woman, since she is not a contracting party but the object of the agreement. As Sealey remarks,

'an Athenianwoman did not marry;she was given in marriage.' The etymological parallel might tempt us to regard engue as the equivalent of a modem engagement: the 'gage' that lies at the root of engagement is, like engue, a pledge. But engue was indispensable, whereas marriages without engagements, although still not common, are nevertheless today both legally and socially acceptable. A closer parallel might be the betrothal of medieval canon law, an action which itself had legal consequences and created certain relationships within the family. 16 Harrison (1968-71: i. 8) notes that engue,even if ekdosis 14

See generallyPai1sch(1909: 322-36, with rcfs.). Bcauchet(1897: i. 111-12) infers from this that the origins of Athenian marriagelie in the concept of sale, but it may insteadindicatethe lackof a technicalsale vocabulary:see further12.c.iii below. 15 Normallyher fatheror (if he is dead) her brothers.Those entitledto give a woman away by engui are listed in a law quotedin Dern.46. 18. A widow or divorcedwoman would nonnally be given away by her natalhrios, butengui could be performedby her late husbandin his will (thus Dem. 27. 5 and45. 28, discussedfurtherat 11.d.iv below). The term 'natal' kurios is preferableto 'agnatic', because Athenianfamily law was not ~ accordingto an agnaticprinciple(see 11.d.ibelow). 6 The parallelmust not be pushedtoo far.1be issue in canon law concernedthe ere• ation of affinityas a barto a subsequentmarriage(as most famouslyin the case of Henry VIII and Katharineof Aragon);this did not apply in Athens, where divorce, at least for those marriedby engui, was readilyavailableand the affinitybar was weak. ·

214

Substance

is for some reason delayed or fails to take place, may give the bridegroom the use of the dowry, as in the case of Aphobos and Demosthenes' mother (for which see I I.a.iii above). 11.c.ii Ekdosis

Elrdosis(lit. 'giving forth') marks the transfer of kurieia ('control', but see I I.a.iii above) to the husband from his bride's natal kurios. it does not seem to have been a ceremony requiring a recognizable form of words like those used for the engue. Rather, it was the formal recognition by all interested parties that the marriage was now to be consummated: perhaps indeed it may regularly have been associated with the ceremony of the gamos or wedding. Normally elrdosiswill have followed fairly soon after engue; but there will on occasions have been good reasons for postponement, for instance if the bride was too young for marriage. Demosthenes• sister, for instance, was promised by engue (Dern. 28. 15) to Demphon under her father's will, but was not expected to marry him for a further decade because she was aged only 5 at the time of the latter's death (Dern. 27. 4). How definitive a transfer of rights are we considering? For Harrison (1968-71: i. 30-2), the answer depends on evaluating what rights in law the natal /curiosretained over the married woman. In particular, did he have the power of aphairesis, in other words the authority to dissolve her marriagewithouther consentor thatof her husband?This, as he admits, is a complex problem: the only relevant passage in the orators (Dern. 41. 4) is inconclusive: but an episode in Menander (Epit. esp. 657-9 and 714-15) suggests to him that at least in theory the father did have such a power. Wolff on the other hand (1944: 46-51) stresses the effects of divorce, however initiated. In such a case, the natal kurios automatically recovered his full rights, for example the right to give the woman in marriage again, without needing to undergo

any ceremonyto reactivatesuch powers.Wolff concludesthatit is best to see elrdosisas simply a conditional transfer of rights. In one sense at least this question may be unreal, if, as Foxhall (forthcoming)claims, kurieia is not such a fonnal institutionas scholars have tended to assume. In another sense, however, the issue is very important, because divorce for those married by engue and elrdosis seems to have been both easy and (or so our sources suggest) frequent. In theory, such divorce could be instituted at will, with no need to provide justification, either by the husband (conventionally described as apopempsis)or by the wife (apo/eipsis) or by the wife's natal /curios

I I. PersonalRelations

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(aphairesis); although a woman desiring apoleipsis had apparently to register this intention with the Ar/chon(see generally Rosivach 1984). What happened in practice may have been another matter: it is inevitably the complicated family history that leads to inheritance disputes, and cases of divorce therefore tend to be overrepresented in the

sources.17 It is, however,strikingthatonly one survivingcase seems to have been initiated by the woman against her husband's wishes (Hipparete the wife of Alkibiades, Plut. Alkibiades 8); and here the evidence may be partial and we cannot be certain that she did not receive support from her natal family. 11.c.iii Dowry

A dowry (prove) does not seem to have been obligatory at Athens, except in one unusual set of circumstances (thetic epikliroi, see 11.d.iv below): Dern. 40. 26 can conceive of at least the hypothetical possibility of an undowered wife. It was, however, regarded as normal, at least among the leisured elite whose activities fill the speeches. For Isaias (3. 28-9), the idea of a wife without a dowry is suspicious precisely because the putative husband was a rich man. A client of Lysias admittedly regards it as creditable, and indeed as the mark of a true gentleman, to marry a woman without a dowry, provided she is of good breeding (Lys. 19. 14)_;..-hul t., does not take the same attitude towards the women of his ow4 naw'family (Lys. 19. 15). More typical is the attitude of another clieiil:. a gentleman coming into his. inheritance, even if his financial affairs are complicated, ought to provide generously for his sisters' dowries (Lys. 16. 10). 1be dowry may have served several possible functions. Foxhall (1989: 32-3) stresses the idea that it is, for the woman, the equivalent of her inheritance. On this reading, its primary function is as a strategy in the organization of family property; this would fit well with the fact that the dowry was a matter of custom rather than a legal requirement. However, Foxhall can adduce surprisingly little direct evidence for this view from the orators, for whom the dowry seems much more a 17

Acrimonious divorces also will presumably be ovcucpresenled (as may other forms of family dispute, st.c 11.d.iv and 11.c.ii below), Cases like Isai. 2. 9, wherethere is amicableagreementwithinthe family,may have been morecommon in realitythanin the sources;and one functionof the dowry was to moderatethe behaviourof the parties in circumstanceswhich might lead to divorce. As qualificationsto what is said here about the freedomof the partiesto divorce at will, we should note thal in some circumstances divorce was obligatory(n. 13above), andthatit is not clear how easily available it was in the case of marriageIOan epikllros (see further11.e.i below).

Substance

216

defence mechanism, intended to protect the interests of the woman and of her natal family within the marriage. It is on one occasion even implied (lsai. 3. 35---6)that a rich husband marrying a poor and undowered wife might agree to pay a fictitious dowry himself, precisely in order to give her the security that she would otherwise lack. For it is characteristic of the Athenian dowry that it was repayable if the marriage was terminated without male

issue. This rule appearsto have appliedwithout regardto the circumstances of the termination: the death of the wife (lsai. 3. 36) or of the husband (lsai. 3. 78 by implication); divorce, even compulsory divorce in a case in which the woman's natal /auios had used fraud to perpetrate an illegal marriage (inferred from Dern. 59. 52, and presumably therefore a fortiori in all other cases of divorce). There was only one situationin which the dowry did not returnon terminationof marriage to the natal kurios of the woman: that of a woman who was widowed after she had borne sons; they would themselves inherit the dowry on reaching their majority, but had from it to maintaintheir mother (Dern. 42. 27). Even in this case, however, if the woman remarried after her husband's death, the dowry would go with her, as in the case of Diodotos' widow (Lys. 32. 6). The dowry system served to protect the interests of the woman and of her natal family, both by discouraging frivolous divorce on the part of the husband, and also as a threat in case the wife was badly treated. The husband, who administered but did not in any sense own the dowry, was normally expected to provide real security to guarantee its repayment (for details, see 12.c.ii below), but he might be hard pressed to realizein a hurry the necessary assets to meet his obligation. It is in this context that we hear of various legal procedures concerned with the repayment of dowry: the dike proikos to enforce return of the capital, and the dikesitou to ensure that maintenancewas paid out of it. It is the opponents' failure to bring either action after a relationship was terminated, or to demonstrate that they have recovered the dowry by consent, that is treated by Isaios (3. 9 and more fully 3. 78) as pre-

sumptiveevidencethat such a relationshipwas not a marriage. 11.d

INHERITANCE

11.d.i Primary rights of sons The second form of marriage at Athens took effect when a man died leaving no sons, but only a daughter, so that she became his epikleros.it

I I. PersonalRelations

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will therefore be convenient to consider first the rules of inheritance in order to make wider sense of the epiklerate itself. Lipsius (1912: 537) describes inheritance as the most difficult part of Athenian law to understand, because of the particular complexity of the sources. On questions of detail, this is probably true; nevertheless, the underlying assumptions can be readily summari7.ed. It was a male-oriented system, with partible inheritance, and a principle of representation per stirpes. Each of these terms, and particularly the first, deserves some explanation. The Athenian inheritance system was male-oriented but not agnatic. If a man had both sons and daughters, the former inherited his property and the latter did not (although we should note Foxhall's suggestion that a woman's dowry was in some sense intended to stand for her share of the patrimony). Nevertheless, inheritance was possible through the female line. Some scholars indeed argue that the epik/eros, the daughter without brothers, should be regarded as her father's heiress, but this interpretation should probably be rejected, for reasons discussed at I Le.ii below. Certainly it was possible, if unusual, for a childless man looking for an heir to adopt not a son but a daughter: the most famous case is Hagnias' adoption of his niece (lsai. 11. 8). Most

revealing in this context. however, is the organization of relatives within the _ankhisteia,the statutorily defined group of kin who had both rights and duties in default of direct heirs (rights in inheritance, 11.e.i below; obligations in case of homicide, 13.b.ii below). We owe our knowledge of the rules of the ankhisteiato one case, that of Hagnias (above), whose strategy of adopting his niece was foiled by the latter's death. There were no other indisputably legitimate close relatives, anda furious dispute ensued, lasting several generations (though see further 11.e.i below), over precisely who was entitled to inherit as ankhisteus. We possess here two speeches, delivered on opposite sides of the dispute although at different hearings; one of these discusses the law concerning ankhisteia (lsai. ll. ll-12) and the other quotes it (Dern. 43. 51). The picture is generally clear, although there are some obscurities of detail which are well analysed by Harrison (1968-71: i. 144-7). The one significant uncertainty concerns not the internal arrangement but the boundary of the group. Was Theopompos, as second cousin to Hagnias, entitled to inherit as ankhisteus,or did the phrase 'as far as the children of cousins' in the law restrict membership of the

ankhisteiato firstcousinsonce removed?18 11

'First cousin once removed' would seem the obvious translation,were it not clear

from Dern.43 that Theopomposhadby thattime alreadywon two cases (includingthat

218

Substance

Withinthe ankhisteia, relativeswere organizedinto a series of categories on the basis of their relationship to the man at the centre. Assuming the absence of direct descendants and (perhaps) ascendants, there seem to have been four categories on the father's side: first, brothers (thus full brothers and also half-brothers by the same father) and their descendants, apparently without limit; secondly, sisters (subject to the same qualifications) and their descendants; thirdly, paternal uncles, their children, and their grandchildren; fourthly, paternal aunts and their children and grandchildren. These were followed by four fur. ther categories, repeating the same pattern on the mother's side: the fifth group was therefore half-brothers by the same mother and their (unlimited) descendants; the sixth, half-sisters similarly; the seventh and eighth, maternal uncles and aunts, but with the same limits on the rights of their issue as those suffered by the third and fourth

categories.19 In cases of inheritance, relatives within each category of relationship would normally share equally, but for some purposes such sharing was by definition impossible: only one person, for instance, can marry one epikleros; and in such circumstances, although the existence of any member of any one of the eight categories would automatically terminatethe rights of moredistantrelatives,neverthelessthe eldest survivor within a given category would have prior claim (Men. Asp. 254-6, and for the other attested breach in the principle of equal division see n. 20 below). Although the system gives preference to heirs in the male line when relationships are otherwise identical (brothers and their heirs ahead of sisters, uncles ahead of aunts, patrikin ahead of matrikin), nevertheless relationship through a more closely related woman will exclude a more distant relationship in the male like. The demographic of Isai. I I) on precisely this issue. He may have been lying and fooled the jury (for the problem,see Todd 1990c: 172-3) or he may have been correct(this is arguedby Thompson (1976), but involves linguistic problems).If the latter,then we need to add greatuncles and great -aunts,both withthe appropriatedescendants,afterthe thirdand fourth calegories,and again afterthe seventhand eighth,below. MacDowell's summary(1978: 103-8) of the details of this complex disputeis admirablylucid, althoughwe may doubt his assumptionthat the people draftingthe law about the ankhisteia must have known what they meant;the meaning may have been left obscure precisely because the issue hadneverbeenexpected to occur. 19 One of the most notablepeculiaritiesof the Athenianrulesof affinitywas that the marriageof half.siblings was permittedon the father'sbut not the mother'sside(Harri• son 1968--71:i. 22 with refs.). It is perhapsbest to sec this in termsof inheritance(pater• nal half.siblings were much closer relatives within the ankhisteia, which tended to encouragemarriagewithinthe agnaticfamily to unite the property), ratherthanas a bar on incestspecificallythoughthe mother(as e.g. Pomeroy1975:65-6).

I I. Personal Relations

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implications of this are significant: by pennitting the relatively easy transfer of property througlL.women, the law will have tended to break up the association between deme membership (which was hereditary in the male line) and landed property held within the demes. 1be remainder of the assumptions underlying inheritance law can be rapidly glossed. Athens practiced partible _inheritance, not primogeniture: if a man had several sons, his estate would be shared among them, with no special provisions for the eldest. 20 Partible inheritance, again, has significant demographic implications: landowners could not assume, as did English Elizabethan gentry, that one son would retain the estate unencumbered and the others could be sent off with an allowance to make their fortunes. Instead, careful family planning was required, in a pre-industrial society with high mortality rates, to prevent either too many heirs or an absence of heirs. It is when these precautions were ignored, or when they broke down, that disputes were likely to reach the courts. 1be principle of representation per stirpes is not directly attested in the sources, but it is consistently assumed (thus Harrison, e.g. 1968-71: i. 131 n. I, 144 n. I), and is to some extent implicit in what has already been discussed. If a man died after fathering three sons, two of whom had predeceased him but both leaving legitimate sons of their own, these grandsons would each be considered to represent their fathers' claims. If one of the dead sons had had two boys, but the other had left one only, the former would each get one-sixth and the latter one-third, with the remaining third going to the boys' still-living uncle, to the exclusion of any sons that the latter might himself have. The estate would not be divided per capita (lit. 'by heads') with equal portions going to each claimant, but per stirpes (lit. 'according to the lines of descent'), precisely because these two brothers were deemed to be sub-dividing the one-third share that would have been their father's. 21 20

1be nearest to an exception here (sec above) comes in Dcm. 36. II, where the guardiansgive Apollodoros,presumablyas lhc cider brother,firstchoice in the division of property and he choosesthe shield factory in preferenceto the bank.The phrase'the elder brotherPantaleontook everything' in Lys. 10. 5, on the other hand, may refer father,and anyway, either to the brotherof the speakeror to the brotherof his deceased the action in questionis depicled as highly improper,not least because it happenedwhen the speakerwas a child. The nearestequivalentto the pre-I926 rules of primogeniturein English land-lawwas the widespreadAtheniancustom of givingthe grandfalher'sname to the eldest son of the new generation(Dern.43. 74), 21 Representationwas infinite (son, grandson,grcat·grandson,etc.) except in those cases where a limit was specificallyset by statute:cf. the positionof Theopomposandof the son of Slratiosin the argumentover Hagnias'ankhist~ia,discussedbelow.

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Substance

One further point deserves notice here, although it is less an underlying assumption than a fundamental ptinciple of organization. Much of what we have been considering so far, for instance the rules of the ankhisteia, concerns the rights of collaterals, people who are not descended from the dead man but who share a common ancestor with him. This emphasis is predictable in the discussion of any inheritance system, because it is the complicated cases which reveal the hidden assumptions. But hard cases make bad law, and we should never forget that the ideal form of inheritance is by direct descent. At Athens, indeed, a fundamental distinction in procedure was drawn between direct heirs and all other claimants. In the context of this system, a direct heir was any male descendant of the deceased in the male line (that is, a son, or a son's son, etc.), whether by birth or by adoption, provided this adoption had been completed during the lifetime of the adopter: the difference between this and other types of adoption at Athens is explored at 11.d.iii below. Any such heir had the privilege of embateusis (lit. 'entry'): be could claim the property in his own right at the moment of decease without the need to obtain a court's verdict. Indeed, if anybody brought a rival claim, the direct heir need not undergo a court hearing (diadikasia), but could simply block the claim 22 by diamarturia. For all other heirs or potential claimants, however (daughters, people adopted by will, or collateral relatives within the ankhisteia), adjudication in court was required. Such a claim was described as an epidikasia, and a contested claim gave rise to a diadikasia. It is notable that in such cases no rights existed until recognized by the court. We have already encountered Theopompos the client of lsaios (lsai. 11), a second cousin of Hagnias and therefore, at least on his own interpretation, at the very limit of Hagnias • ankhisteia. Some time after the latter's death, Theopompos and his brother Stratokles and their cousin Stratios all claimed the estate as second cousins of the deceased, but Stratios and Stratokles both died before the case came to court (Isai. 22

For the procedure,compare lhe discussion of diamarturia at 8.c.ii above. For examples, contrastthe cases of lsai. 2 and5. 16-17 (where a direct heir is able to block a diadiltasia by bringing a diamanuria, and therebyforce bis opponentsto employ a dilTZ.G. (1929), The Greek City and its Institutions, tnms. N. Mallinson (London). GwCKMAN, M. (195S), The Judicial Process among the Barotse of Northern Rhotksia (Manchester). GowEN, M. (1984), 'Slavery and Homosexuality at Athens', Phoemx, 38: 30S--24. GowllllL. S. D. (1987), 'The Great Dionysia and Civic Ideology', JHS 107: 58-76. GoMME, A. W. (1937), Essays in Greek History and Uterature (Oxford). -and SANOBACH, H. (1973) (eds.), Menantkr: A Commentary (Oxford). ANDREWES, A., and DoVER,K. J. (1945, 1956, 1956, 1970, 1981) (eds.), A HistoricalCommentaryon Thueydides,5 vols. (Oxford). ClouLO,J.P. A. (1980), 'Law, Custom, and Myth: Aspects of the Social Position of Women in Classical Athens',JHS 100: 3S--59. -(1985), 'On Malting Sense of Greek Religion', in Easterling and Muir (1985), 1-33. GaENFEt.L, B. P. and HUNT,A. S. (1919) (eds.), The Oxyrhynchus Papyri, xiii (London). GRat'E,G. (1852), A History of Greece, 2nd edn., v. (London). GUEST, A. G. (1984) (ed.),Anson's Law ofContrac~ 26th edn. (Oxford). HAu, E. (forthcoming), 'Biimaas skiinii', in Foxhall and Lewis (forthcoming). IIAu>auN,D. M. (1990), One Hundred Years of Homosexuality, and Other --

Essays on GreekLove (New YorkandLondon). ffAMzA, G. (1989), 'Quelques aspects de l'i~ du contrat au domain des droits en M~terranee•, in Fernandez Nieto (1989), 9--20. HANSEN, M. H. (1974), The Sovereigntyof the People's Court in Athensin the FourthCenturyBC and the Public Action Against UnconstitutionalProposals (Odense). --(1975), Eisangelia:The Sovereigntyof the People's Court in Athens in the Fourth Century BC and the Impeachmentof Generals and Politicians (Odense).

348

Bibliography

HANsEN,M. H., (I 976), Apagoge, endeixis and ephepis

Against kakourgoi,

atimoiand pheugontes:A Study in the AthenianAdministrationof Justice in the Fourth Century BC (Odense). -(1978), 'Nomos and psiphisma in Fourth-Century Athens', GRBS 19: 315-30, repr. in Hansen (1983a), 161-76. -(1919a), 'How Often did the Athenian dikastiria Meet?', GRBS 20: 24~. -(1919b), 'Misthos for Magistrates in Classical Athens', Symbolae Osloenses 54: 5-22. 'Did the Athenian ecc/;sia Legislate after 403/2 ec?', GRBS 20: --(1979c), 27-53, repr. in Hansen (1983a), 179-205. -(1980a), 'Athenian nomothesia in the Fourth Century ec and Demosthenes' Speech Against Leptines', C&M 32: 87-104. -(1980b), 'Eisangelia in Athens: A Reply [to Rhodes 1979]', JHS 80: 89-95. -(1980c), 'Perquisites for Magistrates in Fourth-Century Athens', C&M 32: 105-25. 'Seven Hundred arkhai in Classical Athens', GRBS 21: 151-73. --(1980d), -(1981), 'Initiativeand Decision: The Separation of Powers in FourthCentury Athens', GRBS 22: 345-70. -(1982), 'Atimia in Consequence of Private Debts', in Modrzejewski and Liebs (1982), 11}-20. -(1983o-9), The Athenian ekkli!sia: A Collection of Articles, 1976-1983 and 1983--89, 2 vols. (so far) (Copenhagen). -(1983b), 'Two Notes on the Athenian dikai emporikai', in Dimakis (1983), 167-75. -(1983c), 'Graphe or diki traumatos?', GRBS 24: 307-20. --(1985a), Demographyand Democracy: The Numberof AthenianCitizens in the Fourth Century BC (Heming). --(1985b), 'Athenian nomothesia', GRBS 26: 345-71. -(1987), The Athenian Assembly in the Age of Demosthenes (Oxfonl). -(1990a), 'Diokles' Law (Dern. 24. 42) and the Revision of the Athenian Corpus of Laws in the Archonship of Eukleides', C&M 41: 6}-71. -(1990b), 'The Political Powers of the People's court in Fourth-Century Athens', in Murray and Price (1990), 215-43. -(1991), The AthenianDemocracy in the Age of Demosthenes:Structure, Principles and Ideology (Oxford). liARDINO, P. (1985) (ed.), From the End of the Peloponnesion War to the Battle of lpsus (Cambridge); insctiptions from this selection are cited by catalogue number:thus 'Harding32'. liARREu.,H. C. ( 1936), Public Arbitration in Athenian law (Columbia, Mo.). l!ARRis,E. M. (1988), 'When is a Sale not a Sale? The Riddle of Athenian Terminology for Real Security Revisited'. CQ 38: 351-8 I.

Bibliography

349

(1990), 'Did the Athenians Regud Seduction as a W~ Crime than Rape?', CQ 40: 370-7. ffARRlsoN, A. R. W. (1955), 'Law-making at Athens at the End of the Fifth Century ec'. JHS 15: Ur35. --(1968-71), The Law of Athens, i: The Family and Property; ii: Procedure --

(Oxford). HARVEY, F. D. ( 1985), 'Dona ferentes: Some Aspects of Bribery in Greek Politics', in Cartledge and Harvey (1985), 76-117. -(1990), 'The Sykophant and Sykophancy', in Cartledge, Millett, and Todd (I 990), 103-21. HAsE&ROEK, J. (1933), Trade and Politics in Ancient Greece, trans. L. M.

Fraser and D. C. MacGregor (London). HEADLAM, J. W. (1891), Election by wt at Athens (Cambridge). HENDRICK, C. W. (1991), 'Phratry Shrines of Attica and Atheos', Hesperia, 60: 241--08. HERBERT, A. P. (1969), UncommonLaw, being 66 Misleading Cases Revised and Collected in One Volume, 2nd edn. (London). HERMAN, G. (1987), Ritualised Friendship and the Greek City (Cambridge). IIIGNEIT, C. (1952), A History of the Athenian ConstituJionto the End of the Fifth Century sc (Oxford). HD..LORUBER, M. (1988), Die zehnte Rede des Lysias: Einleitung, Text und Kommentar mit einem Anhang iiber die Gesetzesinterpretationenbei den attischenRednern(Berlin and New York). HOPPER R. J. (1953), 'The Attic Silver Mines in the Fourth Century ec', BSA 48: 200-45. --(1961), 'The Mines and Miners of Ancient Greece', G&R 8: 138-51. HoRN,N., KOTz,H., and LEsER, H. G. (1982), GermanPrivate and Commercial law: An Introduction,trans.J. A. Weir (Oxford). HUMPHREYS, S. C. (1983), 'The Date of Hagnias' Death', CPhil. 18: 219-25. -(1985a) (ed.), The Discourse of Law(= History and Anthropology vol. i, pt. 2). --(1985b), 'Law as Discourse', in Humphreys (1985a) 241-64. (1985c), 'Social Relations on Stage: Wimesses in Classical Athens', in Humphreys (1985a) 313---{i9. HUNNISETI, R. F. (1961), The Medieval Coroner (Cambridge). HUNT,A. (1988), 'The Theory of Critical Legal Studies', Oxford Journal of Law, 6: 1-45. HUNT,A. S. and EooAR,C. G. (1932-4) (eds.), Select Papyri, 2 vols. (London

--

and Cambridge, Mass.). V. J. (1989), 'Women's Authority in Classical Greece', Echos du HUNTER, monde classique, 8: 39--48. lsAGER,S. and HANsEN,M. H. (1975), Aspects of Athenian Society in the Fourth Century sc: A Historical Introduction to and Commentary on the

350

Bibliography

Paragraphe Speeches and the Speech Against Dionysiodorus in the Corpus Demosthenicum(Odense). JACKSON, R. M. (1972), E,iforcingthe Law, 2nd edn. (London). --(1977), The Machineryof Justice in England,7th edn. (London). JONES,A. H. M. ( 1957), AthenianDemocracy(Oxford). JoNES,J. W. (1956), The Law and Legal Theory of the Greeks (Oxford). JuST,R. (1989), Womenin AthenianLaw and Life (London and New Yotk). KAHRsrEur,U. (1934), Studien zum ojfentlichenRecht Athens, i: Staatsgebiet und Staatsangehiirigein Athen(Stuttgart). -(1936), Studien zum OffentlichenRecht Athens, ii: Untersuchungenzur Magistraturin Athen(Stuttgart). Ka.MAN,M. (I 987), A Guide to Critical Legal Studies (Cambridge, Mass. and London). KIROINER, J. (1901 and I 903), ProsopographiaAttica, 2 vols. (Berlin). Krrro, H. D. F. (I 95 I), The Greeks (Hannondsworth). KNox,R. A. (1985), , ..So Mischievousa Beaste"?The Athenian, M. (1969), Nomosand the Beginnings of the Athenian Democracy (Oxford),

( 1986), From Popular Sovereignty to the Sovereignty of Law: Law, Society and Politics in Fifth-Century Athens (Berkeley and Los Angeles). PAou, U. E. (1930), Studi di dirino anico (Florence). --(1932), 'II processo di Agorato',RFIC 10: 289-308, repr. with additions --

in Paoli (1933), 121-42. -(1933), Studisul processo anico (Padua). --(1950), 'U reato di adulterio (moikheia) in diritto anico', SDHI 16: 123-82, repr. in Paoli (1976), 251-307. -(1953), 'Droit anique et droit romain dans les rhi!teun latins', TvR 31: 17S-99, repr. in Paoli (1976), 79-101. -(1958), 'Le fonti del diritto anico', Quaderni di studi senesi, 70: 161-76, repr. in Paoli (1976), 19-30. --(1962), 'Comici latini e diritto attico', Quadernidi studi senesi, suppl. 8, repr, in Paoli (1976), 31-78. -(1976), Altri studi di dirino greco e romano (ed. A. Biscardi) (Milan). PAIUCER, R. C. T. (1983), Miasma: Pollution and Purification in Early Greek Religion (Oxford). PARTSCH, J. (1909), GriechischeBUTgschaftsrecht, i: das Recht t:ks altgriech-

ischenGemeindestaats(Leipzig and Berlin). PAITERSON, C. B. (1981), Pericles' Citizenship Law of 45110 BC (New York). -(1985), "'Not Worth the Rearing": The Causes of Infant Exposure in Ancient Greece', TAPA 115: 103-23. --(1990) 'Those Athenian Bastards', Classical Antiquity, 9: 39-73. PAITERSON, 0. (1982), Slavery and Social Death: A Comparative Study (Cambridge, Mass. and London). P.efRxA,J. (1966), The Formula/or the Granl ofEnkliisis in Athenian Inscriptions (Prague). PlaAaT, M. (1971), 'Les euthunoi athFF, P. (1922), Outlinesof HistoricalJurisprudence,ii: TheJurispru• denee of the Greek City (Oxford). WAD£,H. W. R. (1982), AdministrativeLaw, 5th edn. (Oxford). M. B. (1983 and 1984), 'Leases of SacredProperty in Attica', HesWALBANX, peria, 52: 100-35, 177-99,200---0,207-31;53:361-l!. W ALICER, D. M. ( 1980), The Oxford Companion to Law (Oxford). WALKER,S. (1983), 'Women and Housing in Classical Greece: The An:haeological Evidence', in Cameron and Kuhrt (1983), 81-91. WAU.ACE,R. W. (1989), The Areopagus Council. to 307 BC (Baltimore and Lendon). WAU.ACE-ilADRn.L, A. F. (1989) (ed.), Patronage in Ancient Society (London). WArn>N,A. (1981), The making of the Civil Law (Cambridge, Mass. and London). WHITEHEAD, D. (1977), The Ideology of the Athenian Metic = PCPS suppl. 4 (Cambridge). -(1986a), The Demes of Attica, 50817-c.250 sc: A Political and Social Study (Princeton, NJ). -(1986b), 'Women and Naturalization in Fourth-Century Athens: The Case of Arkhippi', CQ 36: 109-14. WIEDEMANN, T. E. J. (1987), Slavery= G&R New Surveys in the Classics, xix (Oxford). WD..AMownz-MOLLENOORFF, U. voN (1893), Aristote/es und Athen, 2 vols. (Berlin). WILlEITS,R. F. (1967), The Law Code ofGortyn = Kadmos, suppl. I (Berlin). WINKU.R, J. J. (1990), The Constraints of Desire: The Anthropology of Sex and Gender in Ancient Greece (New Yorlt and London). -and ZErruN,F. I. (1990) (eds.), Nothing to do with Dionysos? Athenian Drama in its Social Context (Princeton,NJ). Wm.FF,H.J. (1943), 'The diki!blabes in Dern. 55', AJP 64: 316-24. -(1944), 'Marriage Law and Family Organization in Ancient Athens', Traditio, 2: 4}-95.

--

( 1946), 'The Originof JudicialLitigationamong the Greeks', Traditio, 4:

31-1!7. --(1952a-b), 'Die Grundlagen des griechischen Eherechts', TvR 20: 1-29; 20: 157-l!I, repr. in part in Bemeker (1968), 620-48, 648-54. -(1957), 'Die Grundlagen des griechischen Vertragsrechts', ZSS 74: 26-72, repr. in Bemeker (1968), 48J-533. -(1966a), Die attische Paragraphe:ein Beitrag zum Problem der

AuflockerungarchaischerProzessformen(Weimar). -(1966b), 'La Structurede l'obligation contractuelleen droit grec', TvR 44: 569-1!3.

358

Bibliography

Wal.FF, H.J., (1970), 'Normenkontrolle'und Gesetzesbegriff in der attischen

Demokratie:untersuchungzur GrapheParanomon (Heidelberg). -(1975a) (ed.), Symposion 1971: Vortrdge zur griechischenund hellenistischenRechtsgeschichte(Cologne and Vienna). (1975b), 'Juristische Grlizistik: Aufgaben, Probleme, M6glichkeiten', in Wolff(1975a), 1-22. -( 1979), Das Problem tier Konlcurrenzvon Rechtsordnungin der Antike (Heidelberg). WORTIDNGTON, I. (1989), 'The Duration of an Athenian Political Trial', JHS --

109: 204-7. WYCHERLEY, R. E. (1978), The Stones of Athens (Princeton, NJ). WYSE,W. (1904) (ed.), The Speeches oflsaeus, with Critical and Explanatory Notes (Cambridge). 'Law', in L. Whibley (ed.),A Companion to Greek Studies (Cam--(1916), bridge). YOUNG, S. (1939), 'An Athenian Clepsydra', Hesperia, 8: 274-114.

Glossary

This glossary is designed to provide a summary of the technical or semi-technical terms used throughout the book (most but by no means all of them Athenian legal terms), in order to avoid over-burdening the text with repeated explanations, while at the same time ensuring that the book is accessible to the non-specialist. It should also provide a convenient way into the terminology of Athenian law for readers approaching the subject from outside. For ease of reference, an asterisk is used to mark terms which are themselves the subject of an independent entty. What follows is based on the similar glossary in Cartledge, Millett, and Todd (1990: 215-40), although a significant number of entries have been added and others deleted, and minor changes have been made to some of those that remain. My thanks are due to Cambridge University Press for permission to reuse material for which they hold the copyright.

adikos heirkhthenai, graphe*: A public indicbllent brought against a private individual for illegally imprisoning somebody. The sole surviving example concerns a man who has been held specifically as a moikhas* (adulterer), and it is possible that the procedure was only available in this type of case. adjective law: See procedural* law. adversarial: An adversarial system of justice is one in which a criminal trial is constructed as a dispute between two sides. with the judge/jury acting as umpire. The aim of the trial is not to discover the truth (though it may be hoped that this will occur incidentally), but to determine whether the side charged with the burden of proof (in this context normally the prosecution) has demonsttated its case. See for conttast inquisitorial* system. English criminal Jaw operates under the adversarial system; but Athenian justice took it to extremes: the court's role was to decide not whether a burden of proof had been sustained, but which of two general theses was preferable, that of the prosecutor or that of the defendant.

360

Glossary

agnate: In Roman law, blood relations in the male line (i.e., where there is a relationshipto a common ancestor which can be traced through males alone): to an English reader, agnates are perhaps best described as the people who share one's surname.See for contrast cognate*. agon: LiL 'contest' of any kind: especially a lawsuit, or an athletic or

dramaticcompetition. agora: The civic centre and market-place of a Greek po/is*. agoranomos, pl. agoranomoi: Lit. 'agora*-regulator(s)'. Public offi. cials attested in a large numberof Greek poleis*; their duties consisted of supervising the commercial aspects of the agora. aidesis: Because homicide in Athenian law was a matter for private prosecution (cf. phonou•, dike), the relatives of the dead man, as prosecutors, were under certain circumstances permitted or expected to grant pardon (aidesis) to his killer. Once this had been done, the killer was immune from further prosecution. aikeias, dike*: A private indictment concerning aikia (sometimes aikeia), a general term for "injury'or 'assault', without the further implications of hubris*.

alien: See metic*;xenos*. Amnesty, General: When the Spartan king Pausanias allowed the democracy to be restored at Athens in 403/2 ec, this was on condition of a wide-ranging Amnesty being agreed to protect former supporters of the Thirty from any legal action arising out of their

behaviourunderthe oligarchy (see restoration*;revolutions*).This Amnesty was widely praised, at least in Athenian sources; but although it was never formally repudiated, its provisions seem at times to have been fairly systematically evaded. anakrisis: A preliminary hearing before the public official within whose court a case will later be heard (for the role of the presiding official within a lawcourt, see arkhbn*). Lit. 'examination', but it should not be equated with the inquisitorial* instruction of civillaw• systems: an Athenian public official had very restricted discretion; and unlike an arbitrator (see diaitetes*), his function was not to settle the case. ankhisteus, pl. ankhisteis; ankhisteia: The ankhisteia was a statutorily defined group of ankhisteis (lit. 'those who are close', i.e. in their relationship to the man at the centre). The precise limits of the group are disputed, but its members had certain rights and duties in the affairs of a man who had died leaving no direct heir. It was, for

Glossary

361

instance, the prerogative of the ankhisteis to bring a prosecution (see phonou•, dike) 0t to grant aidesis• in case of homicide; and only an ankhisteus could claim an inheritance• by epidikasia*. anlidosis:Lit. 'a giving in exchange•. A man who was nominatedto perform a liturgy• could avoid this duty if be could name another citizen who was richer and better qualified to perform the task. (He might also claim to be exempt, for which see skepsis*.) If the man challenged agreed that he was richer, he had to take over the liturgy; if he claimed to be poorer, then the challenger could insist on an exchange of all their property to test the claim-in which case the challenger would himself perform the liturgy as the new owner of the (putatively) greater estate. This process of exchange was called antidosis. The advantage of the system from the viewpoint of the democracy was that it encouraged the rich to be suspicious of each other, instead of being hostile towards the state; but although we know of several challenges, there is no attested case in which the exchange was completed.

antitimesis: See timesis*. antlJmosia:See dibmosia*. apagl>ge,pl. apagl>gai:Lit. 'dragging away', i.e., to the appropriate magistrate•. Summary arrest was permitted against certain categories of criminal, such as thieves and highwaymen, if they were ('red-handed'). If the accused admitted his caught ep' autophl>rl>i* guilt before the magistrate be was promptly executed; only if he claimed to be innocent was he put on trial. See also endeixis•; ep'

autophbrbi*; ephegesis*; kakourgos*. apeleUlheros,pl. apeleutheroi:A 'freedman' (ex-slave). References to freedmenare far less common in Atheniansources than in Roman texts, but they are not unheard of: see apostasiou•, dike and (for the phialai exeleutherikaiinscriptions) steie•. aphairesis: A man who was being improperly held as a slave had no right at Athens to claim his own freedom. Such a claim could be initiated only by a third party, whose action was described as aphairesis (lit. 'taking away', in this case to freedom). The word aphairesis is also used to describe the action of a man who takes his daughter away from her husband and thereby initiates her divorce•. aphanes ousia: Lit. 'non-visible property', a category which roughly corresponded to the English personal• property (i.e., everything except land and houses, which are described in Athens as phanera• ousia and in English law as real* property). In Athenian law, how-

362

Glossary

ever, the distinction seems to have been social rather than legal: extant uses of the terms concern the relative ease with which the two types of wealth can be hidden in disputes over taxation (see eisphora•; /eitourgia*), rather than (as in English law) the different way in which the two types of property are treated in sale or inheritance*. apographe: Lit. 'a (written) list'; a catalogue of some or all of the property of a man in debt to the state. The state took no initiative in the confiscation of property: this was left either to private individuals or else, it appears, to local deme* officials (demarkhs). The term apographe is used to describe the list itself, the process of denunciation, and any judicial hearing arising out of the case. See also phasis*. apoleipsis: See divorce*. apopempsis: See divorce•. apophasis: Lit. 'a showing forth, declaration'. A procedure newly instituted around the middle of the fourth century: either on the invitation of the ekklesia* or on its own initiative, the Areiopagos• could investigate any matter involving public security and present a report (apophasis) to the ekk/esia, recommending particular action, for instance the prosecution of a named individual. apostasiou, dike*: A private prosecution brought by the former owner against a freed slave, alleging that the latter was 'running away' (i.e. failing to fulfil certain residual but ill-defined obligations). A convicted defendant would be handed back as a slave, but we are told that acquittal would terminate the remaining rights of the plaintiff. The phia/ai exeleutherikai inscriptions (see sti!li!*) record what seem to be a series of ghost prosecutions in which an owner brings a dike apostasiou and then fails to argue the case, thereby confirming the freed status of the former slave. apotimema: See horos*. apotumpanismos: One of two forms of capital punishment clearly attested in classical Athens (along with hemlock). The victim was fastened to a plank and left to die probably from exposure. appeal: See ephesis*. aprostasiou, graphe*: A public prosecutionagainsta metic* for failing to have a prostates*. arbitration:See diaitetes*. Areiopagos: The ancient and originally aristocratic council of Athens; its membership comprised those who had completed a term as one

Glossary

363

of the nine arldtons•. Its powers had been severely restricted by the democratic refonns of Ephialtes in the 460s ec, which left it as little more than the main court for cases of homicide; in the fourth centwy, however, other powers were added, most notably apophasis•. argias, graphe•: A public prosecution alleging 'idleness'. It seems to have been directed against those who wasted their family property, e.g. by failing to take care of their farms (see also paranoias•, graphe). arguriou, dike•: A private prosecution claiming money (lit. 'silver'). It appears from the only surviving example to have been an action for simple restitution. arkhe, pl. arkhai (noun): Lit. 'rule' or 'authority' (the term is often used, for instance, to describe the fifth-centwy Athenian Empire). Originally an abstract noun, but often used in a concrete sense, as a general term to describe any public office or official; the term was probably used to include the boute•,but this has been contested. Unlilre arkhon•, the word arkhe is not normally restricted to one of the nine arldtonships. With a few exceptions, most notably the generalship (see strategos•), public offices at Athens were filled not by election but by lot•. Note: The English term 'magistrate' is often used to translate the Greek arkhe; this should be understood in a Roman or Shakespearian sense, to denote a public official with some judicial duties, rather than (as in England and Wales today) to mean a part-lime lay judge. arkhlJn, pl. arkhontes (participle acting as noun), Eng. archon or arkhon: Lit. 'one who is in authority'. Used in three senses: loosely, to refer to any Athenian public official; more strictly (usually a collective plural) to describe the 'nine arldtons'; specifically, as the title of the senior of the nine arldtonships. These were still the titular chief magistrates of Athens, but their real authority had been severely restricted ever since they began to be appointed by lot, apparently in the 480s. They retained, however, an honorific position, particularly in the administration of justice: for instance, former arldtons became members of the Areiopagos* for life; and during their year of office they processed the litigation presented to the most important of the dikasteria•, and presided over trials held there, although in this capacity they were by now little more than non-voting (and nonspeaking) chairmen. The three senior arldtons each had a specific title and competence: the ArkhlJn (the eponymous official of Athens

364

Glossary

who gave his name to the civil year) heard cases involving family and inheritance matters of citizens; the (Arkhlm) Basileus (liL 'king arlchon') presided over religious matters, including sacrilege and homicide; the Polemarlch (Polemarkhos, lit. 'war arlchon', but by now all his military functions had been handed over to the strat;goi•) dealt with family and inheritance cases involving metics•, and apparently cases involving certain other privileged foreigners also. The other six arlchons were called thesmothetai (sing. thesmothet;s•: originally perhaps 'establisher of judgments' rather than 'maker of laws'); they heard those public cases, and perhaps also some private ones, which did not fall within the competence of the three senior arlchons or of other named officials. Note: For convenience throughout this book the term 'arlchon' in Roman script is used to denote the holder of any of the nine arlchonships; the italicized transliteration 'Arkhon' is reserved for the senior such office. arrest, summary:See apagog;•. a"ha (or arrhabon): A word of Semitic origins used by the Greeks to indicate the deposit paid over to secure an option on the purchase of particular goods or services. asebeias, graph;•: A public action against somebody who has allegedly committed impiety or sacrilege (asebeia). In Athenian eyes, impiety was essentially a matter of actions rather than thoughts, but words spoken in certain situations or certain places could themselves become impious actions, as Sokrates found out to his cost. assembly: See ekkJ;sia•. astrateias, graphe•: A public prosecution for 'not campaigning'. One of several closely related procedures (together with the graphi: deilias for 'cowardice' and the graphi! lipotaxiou for 'desertion') available against those who failed adequately to perform military service:the penaltyin eachcase was atimia•. asulia: Lit. 'freedom from (violent) reprisals', a state of affairs in international law guaranteednormally by treaty between independent communities. ataphia: Denial of the right to be buried in Attica: an additional penalty regularly imposed on those executed for treason or for certain religious offences, including homicide. Ath. Pol.: Two separate texts bear the title Athi:naion Politeia (liL 'Constitution of the Athenians'). One is a short work of anti-

Glossary

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democratic polemic, wrongly attributed in antiquity to the historian Xenophon. It is the earliest surviving work of Attic prose literature, dating probably from the 420s BC. Its date and its opinions have earned for the unknown author the conventional title of the 'Old Oligarch'; but since this description conjures up pictures of an angry old man, a less misleading description may be '[Xen.] Ath.

Pol.'. 1be more famous AthenaiOn Politeia. however, is the monograph on constitutional history written either by Aristotle or by a pupil, probably between 332 and 322 BC. Throughout this book, the title of Ath. Pol. without qualification refers to the Aristotelian text. atimetos:See timesis*. atimia (abstract noon); atimos, pl. atimoi (adj. serving as noun): Atimia is lit. 'loss of time• (honour)'. In early archaic Athens, it seems to have meant outlawry, the total deprivation of all rights, such that a citizen could kill an atimos (person suffering from atimia) without committing an offence or apparently incurring blood-guilt Well before the classical period, however, atimia had already been restricted in its scope to mean the loss of some or all of a man•s active rights as a citizen. Such atimia could be partial or total; it could be imposed permanently by a coun, or it could be the (theoretically) temporary result of an unpaid debt to the state, a condition which would automatically terminate if the debt were ever paid off. A man subject to total atimia could not appear in certain public places, could not take part in public life, and coold not appear in court. If he broke any of these bans, he was liable to apagiJge• and death. But he did retain his private rights as a citizen: to kill him would be murder; he was not formally exiled; and he continued to own his property-though his lack of the capacity to sue may have made it difficult procedurally to defend these rights, and many may have found life under such restrictions so intolerable that voluntary exile seemed preferable. A man subject to partial atimia lost either a particular right or rights, or else the power to exercise his rights in a particular situation: for instance, the ability to bring certain types of prosecution. For the position of atimia within Athenian penology, see penalty*. Attic Stelai: See ste/e*. Basileus: See Arkhon•. biail>n,dike*: A private prosecutionalleging either 'acts of violence' in general, or perhaps more specifically sexual assault.

366

Glossary

b/abes, dike*: A private action for damages: the concept of blabe is broad, and seems to have covered any physical or material loss suffered by the plaintiff as a result of action or inaction on the part of the defendant. boule: Lit. 'council'. 'The democratic council of 500 men, appointed annually by lot* from among citizens aged at least 30, and with severe restrictions on repeated membership. Its chief function was to prepare the agenda for meetings of the ekk/esia*, and lo undertake certain routine administrative duties, in particular that of coordinating the activities of numerous boards of minor officials; but it had also certain independent judicial powers, mainly but not only in cases of limited importance:in some cases of eisangelia*, the boule could decide whether lo refer the trial lo the ekldesia or to a dikasterion*. bouleusis; bouleuseos, graphe*: Bou/eusis is the action of 'malting a plan', usually with the pejorative connotation 'plotting'. The term is a broad one, used, for instance, in homicide law about someone who causes death by the handsof a third party. It is also found in administrative contexts, where we hear specifically of a graphe bou/euseos, a public prosecution against an official for failing lo remove from the register of state debtors a man who has discharged his debt (see for contrast pseudengraphes•, graphe); but it is hard lo see why 'plotting' was felt lo describe this as opposed lo any other official misdemeanour. bouleutes, pl. bouleutai: Lit. 'one who gives counsel': a member of the boule*; see also prutanis•. boulomenos, ho: Lit. 'anyone who wishes'. Whereas prosecution in a dike could only be brought by the aggrieved party, in a graphe or other public case it could be brought by any qualified person (which normally meant any Athenian citizen who was not himself atimos*). burial in Attica, denial of: See ataphia•. challenge: See prokJesis•. citizen: See politeia*; polites•; and for contrast metic*; nothos*. civil law: A civil-law system today is one which derives from the ius civile ('law pertaining lo citizens') of classical Rome. Such systems are used throughout much of continental Europe. codification of law: A code of laws is not simply a compilation of statutes; it is a comprehensive and systematic statement of law (or of a branch of law) within a particular jurisdiction. Roman law, for instance, was codified under the Emperor Justinian in the sixth cen-

Glossary

367

twy AD, and the majority of modem civil-law• systems are also codified. It is possible that codification was attempted at Athens after the restoration• of the democracy in 403/2 BC (see stoa basileios• and for comparison nomothesia*), but if so the attempt seems rapidly to have proved abortive. cognate: In Roman law, all blood relations; but the term is often used more narrowly to mean those who are not agnates•. According to this usage, cognstes are blood relations in the female line (i.e., where there is a relationship to a common ancestor, but this cannot be traced entirely through males). coinage: Athenian monetary terms originally referred not to denominations of coin but to weights of uncoined metal. Indeed, even in the classical period, only the smaller denominations (obol, drakhmi;) existed as coins in their own right; the larger (mna, talent) were simply convenient forms of reckoning for large sums of money. The following table sbows the relative values of Athenian monetary terms: 6 obols = I drakhm; (drachma) 100 drakhmai = I mna (mina) 6,000 drakhmai = 100 mnai = 1 talent (There were also various non-Athenian coins, like the stater of Kyzikos and the Persian daric, which were virtually legal tender in Athens.) Equivalent values in modem currencies are impossible to give: calculations based on silver content are useless; and any fixed estimate rapidly gives way before the impact of inflation; moreover, we would tend to pay proportionally more for some things (such as houses) and less for others (such as food) than the Athenians dideven if we take account of the fact that many citizens will have lived as part of a substantially non-monetized subsistence economy. But for what it is worth, a day's wages for a skilled labourer seem to have risen gradually throughout the fourth centwy BC from roughly one to roughly two or even two-and-a-half drakhmai. common law: A common-law system today is one which has developed out of the common law (i.e., the law that is the same throughout the kingdom) of medieval England. English law is a common-law system; and so is the law of those countries which have derived their legal system from it, such as the USA and much of the Commonwealth. consensual contract: A contract in which the agreement ('consent') of the parties involved is considered binding, without the necessity of

368

Glossary

goods and purchase price changing hands (as is the case with a 'real contract'). council: See Areiopagos•; boule•. coort fees: Several words for court fee are attested in our sources: for instance epobelia, parakatabole, parastasis, and prutaneia. These various fees seem to have been payable normally by the plaintiff but in different categories of procedure: in some cases they were clearly a straight fee paid to the court; in others they were apparently more in the nature of a deposit, to be returned in the event of a successful prosecution; in yet other cases they seem to have been closer to the English system of awarding costs, payable to a successful defendant rather than to the state. The precise interpretation of each type of fee, however, is obscure, not least because on the rare occasions when payments are mentioned, the individual terms do not appear to be used in any precisely consistent fashion. debt: We are told that Solon in the 590s ec banned the enslavement of Athenians for debt; and throughout our period private individuals had to rely very largely on their own initiative if they wished to recover from their debtors what they had lent. The law did, however, intervene severely to regulate the position of those who owed money to the state: if such a man failed to pay by a stated time, normally the ninth prytany• of the year, the debt was doubled and the debtor and his heirs became atimos• until this new sum was repaid in full. deilias, graphe•: See astrateias•, graphe. delict: A breach of obligation imposed by law (rather than a contractual obligation) towards another person. The characteristic of delictum (lit. 'that which has been left undone') in Roman law was that it gave rise to a penal action; but delict in modem civil-law* systems has lost its penal character, and its scope corresponds broadly to that of tort (lit. 'that which is twisted') in common law: both terms are used to classify those civil (i.e. non-criminal) actions which arise other than by contract. Delphinion: See ephetai•. demagogos, pl. demagogoi: Etymologically this term has the neutral meaning 'leader of the people', and it could therefore be used to describe any democratic political leader. But it was commonly used like the English 'demagogue' in a pejorative sense ('mis-leader of the people', 'rabble-rouser') in the mouths of the traditional aristocracy, to describe those whom they regarded as upstarts, the new-

Glossary

369

style political leaders of the late fifth century; these were wealthy men such as Kleon, Hyperbolos, and Kleophon, whose wealth was, however, derived from soun:es less respectable than land-owning. demarldl, Gk. di:markhos:See apographi:*;deme• [2]. di:mokratia: 'Sovereign authority (kratos) of the people', either in the interests of the state as a whole (di:mos [la] below), or else serving the narrow interests of the common people rather than those of the rich (di:mos [lb] below), depending on the prejudices of the speaker. di:mos, pl. di:moi (use of Eng. deme is confined to sense [2] below): This term is used in two radically different senses, and with significant further shades of meaning within at least one of the two. [I] It can mean 'the people of Athens', either the whole citizen population or else the common people as contrasted with the rich. In the first sense [la] it is commonly used especially in official documents as a virtual synonym for the e/ckli:sia•;the second sense [lb] is implicit behind hostile interpretations of the term di:mokratia*. [2] But demos is also used to denote the 139 villages or civil parishes (Eng. 'demes') into which Attica (including the city of Athens) was divided; shortly before 500 ec the reforms of Kleisthenes had organized these demes into the ten 'tribes' (phu/ai*), which for many purposes became the electoral districts of Athens. It is in this sense, for instance, that demarkh comes to mean an official of the local deme rather than of the whole state. diadikasia: Lit. 'judgment (contested) between'. A dispute between two people who each claim the same thing, in particular a contested inheritance. It is characteristic of the procedure that neither party is plaintiff or defendant, but both are simply rival claimants. Compare

epidikasia*;and see furtherenepiskemma*;inheritance*. diaiti:ti:s,pl. diaiti:tai:An arbitrator. Throughout the history of Athenian law, it had always been open for litigants to arrange arbitration (diaita) on a private basis: in theory, the decision of a private arbitrator was binding, presumably because the litigants had voluntarily contracted to accept it. There was also, however, a system of public arbitration, introduced c.400 ec: every hoplite• (or possibly every citizen), in the year that he ceased to be eligible for military service at the age of 59, had to serve as public arbitrator; and every dike* (private dispute) was allocated by lot to one of them for an attempt at preliminary resolution. In such cases arbitration was compulsory (litigants were obliged to attend) but it was not binding (ephesis*

370

Glossary

allowed a dissatisfied litigant to refuse to accept the verdict). diamarturia: A formal presentation of a martus• (witness) whose evidence serves to compel the public official before whom it is presented either to act in a certain way, or (more commonly) to desist from so acting. As a result of the introduction of paragraph;• around 400 BC, the scope of diamarturia was rapidly restricted: after 380 BC, its only attested use is in inheritance• cases, where a legitimate son could have a claim by a more remote relative quashed on the groundsthatthe case was not actionable;to re-open the case, the rival claimant would have successfully to prosecute the witness by diki! pseudomarturion•. diapseplusis, pl. diapsephiseis: Lit. 'putting to the vote': the term is used especially to describe the periodic revisions of the lists of deme•-members, in which votes were taken successively about the

statusof every individualmember. Digest, the: A compilation of authoritative exce,pts from the works of earlier jurists•, issued at the command of the EmperorJustinian in the early sixth century AD as the chief part of his codification• of Roman law. dikastai kata demo us: See Fony•, the. dikasterion, pl. dikasteria: One of the numerous People's courts of Athens, to be contrasted with those special courts which were not manned by dikastai•, such as the Areiopagos•. The typical dikasterion consisted of 200-500 dikastai•, selected by lot• (see alsokleroterion•;pinakion•. dikastes, pl. dikastai; Eng. dikast(s): A man who served on an Athenian dikasti!rion•, fulfiling the functions both of a modem juror and of a modem judge. As in the case of the bouJ;• and many other public offices, the position was restricted to citizens who had reached the age of 30. diki!, pl. dikai: A concept of wide scope: 'justice', 'good order', 'judgment'. But it can also refer to the process by which a just settlement is determined,thus 'a lawsuit', 'a trial', and even 'the case which one pleads' or 'the penalty which one has to pay'. In the sense of 'lawsuit', diki! can be used either generically, to refer to any type of indictment, or else (more commonly) in a semi-technical sense, to denote the older 'private suit' (which only the aggrieved party or his immediate personal representatives could bring) as opposed to the newer 'public suit' (graphe*), which could be brought by any citizen in good standing; it should, however, be noted that the category

Glossary

371

of public procedure was broader than that of graph;, and included a number of extraordinary procedures which were not themselves graphai: see, for instance, apogog;•; apophasis*; eisangelia*; eu11um;• phasis*. Note: An ordinary procedure at Athens was normally described as a diki! (or graphe, as appropriate), qualified by the name of the offence, usually in the genitive case: thus graph; hubreos, a public indictmentfor hubris*. For convenience in this glossary, procedures discussed are listed alphabetically under the title of the offence rather than under diki or graph;; for brevity, the glossary does not include those procedures which are simply catalogued (rather than discussed) in Chapter 7. diomosia: A special oath taken in cases of homicide: in all other cases the litigants alone swore the antomosia (lit. 'oath [of two people] against each other'); in homicide cases all the wiblesses had to join in the oath of their principals, which was for this reason known as the diomosia (lit. 'oath between [more than two people]'). See further oath*; phonou•, dik;. disfranchisement:See atimia*. divorce: Divorce at Athens was readily available, at least in theory and in the case of those married by engu;• and ek.dosis*. In at least one set of circumstances it was compulsory: a husband who caught his wife with a moikhos* (adulterer) was obliged to divorce her. We may in general suspect that a significant proportion of divorces were initiated by the husband (apopempsis, lit. 'sending away'); though the obligation in such cases to return the dowry• may have served to deter frivolous use of his rights. We hear al~ of divorces initiated by the wife's father (aphairesis*, lit. 'taking away') and by the wife herself (apo/eipsis, lit. 'going away'), but apoleipsis may have required some form of official registration, and it is not clear how easily in practice a woman or her father could initiate divorce unilatcrally. dokimasia, pl. dokimosiai: An investigation held either by the boule* or in a court, to test whether a man was formally qualified either to hold the public office to which he had been appointed or else to exercise a privilege to which he was laying claim. Dokimasiai were of various types, and were for the most part held in advance: no public official, whether elected or appointed by lot•, could hold office without having passed his dokimasia; and newly enrolled citizens, whether by birth or by naturalization (uncommon), were

372

Glossary

among those similarly tested. In these cases a man who was rejected suffered disqualification but no further penalty; a public speaker, however (see rheto,...), could be challenged by epangelia* to undergo a retroactive dokimasia before a court, and this had more the nature of a regular trial, in that if convicted he would apparently be punished. doron, graphe*: A public prosecution against an official for accepting bribes. doroxenias, graphe*: A public prosecution against somebody who has been acquitted in a graphe xenias (see xenias*, graphe) allegedly by offering bribes. dowry: A dowry (proix") does not seem to have been obligatory in Athenian maniage• law, but it was a normal accompaniment to engue• and ekdosis•. Among other functions, it served to protect the interests of the bride and her natal family, because it had to be returned to them in case of divorce•. drakhme, pl. drakhmai; Eng. drachma: See coinage•. eccltsia: see ekkltsia*. eisangelia, pl. eisangeliai: LiL 'public announcement, laying of information'.We hearof varioustypes of eisangelia, for instanceagainst public ari>itrators (see diaitetes*) and against those who mistreat epikleroi*, orphans, or their property. By far the most common usage of the term, however, refers to a form of public indictment broadly corresponding to impeachment in the USA. This was available for use against any public official during or after his term of office (he would normally be suspended from office for the duratioo of the trial) or against any political leader who had made a public proposal. It seems that the case could be brought either directly to the ekklesia* or else to the boule*, and that the final hearing would take place either before the ekklesia or (more commonly, and in every known case after 360 ac) before a dikasterion•. eisphora, pl. eisphorai: An occasional tax on property (unlike modem taxes, which are usually charged on income), levied at Athens at times of financial shortage. It was imposed on the richer citizens, apparently as a fixed (i.e., non-progressive) percentage of their total declared wealth. The total number liable at any time is unknown, but may have been several thousand; at any rate, considerably more were liable to pay this tax than to undergo liturgies•. ekdosis: LiL 'giving forth'. The moment at which the kurios• of a betrothed bride gave her into the hand of her new husband. Mar-

Glossary

373

riage• in Athenian law took one of two fonns, either by engu;• and ekdosis or else (if a man died leaving his daughter with no kurios to give her away, and no heir to his property) by the epid;/casia• of the epikleros•, for which see further inheritance•. ekhinos: An earthenware pot in which are sealed all the documents produced by the litigants at a preliminary hearing, such that no fresh evidence can subsequently be presented in court. The ekhinos is known to have been used in cases heard by the public arbitrator (see diaitetes*); whetherit was used in otherprivatecases at the anakrisis• is disputed, and so is the function of the rule barring fresh evidence. ekldesia: The public assembly of Athens, held usually on the Pnyx•, at which all adult male citizens were formally entitled to attend, vote, and speak. Eleven, the; Gk. hoi hendeka: A board of public officials responsible for the state prison of Athens. The majority of apagogai• were brought before them, and they were in charge of all executions. embateusis: Lit. 'entry': in Athenian inheritance• law, the right of a direct heir (son or son's son, etc.) to enter the estate of the dead man and assume control of it, without the need for a court decision (contrast diadikasia• and epidikasia*). emmenos dike (or dike emmenos), pl. emm;noi dikai: Lit. 'montltly case'. For the meaning of 'montltly' here, see emporike* dike. emporike dike (or dike emporike), pl. emporikai dikai: A case involving emporoi, traders who import goods (especially the extra grain which was needed to feed the population of Attica). Because of the urgency of the trade, dikai emporikai had rapid and privileged access to the courts, but the details of this are disputed. The term emmenos, commonly used to describe such cases, should probably be interpreted to mean that there was an opportunity every month to initiate them, rather than (as was traditionally assumed) that each case must be completed within a month; and it seems likely that litigation could take place only during the summer months rather than (as has recently been argued) only during the winter. It has also been suggested that these cases were subject to special rules, granting slaves as well as free non-citizens equal procedural rights with Athenians, but this view rests on the disputed interpretation of a single example. endeixis, pl. endeixeis: A procedure closely related to apagoge•. The precise significance of the term is disputed: traditionally it was

374

Glossary

thought to be a denunciation made before a public official who would then himself anest the culprit; but it may instead have been used by the plaintiff in some cases as a voluntary prelimiruuy to

apagoge. enekhuron: A piece of property, usually a moveable object, which serves as security for a loan. See for contrast engue•. enepiskemma or enepiskepsis: A form of action (itself a type of diadikasia*) in which a third party claimed to have a prior right to all or part of an estate which had been successfully denounced by apographe and was about to be confiscated by the state. engue, pl. enguai; enguetes: A surety (see for contrast enekhuron*). The engue is the thing which is pledged as security, and the enguetes the person who pledges or commits himself as a pledge. Such sureties were used in a range of legal contexts: to guarantee the payment of a fine or the appearance of a defendant (particularly a foreigner) in court; and as a deposit payable by those who contracted from the state the right to collect taxes or to operate a mining concession (see poletai*). But the most notable use of engue was as the necessary prelude to ekdosis• in the regular Athenian form of marriage•, corresponding to (but much stronger than) the modem engagement. enklema: The word used at least in dikai* (private cases) to describe the indictmenL enktesis: Tenure of land by a person who is not a citizen of the community in which he holds it. It was one of various privileges (see also isoteleia*) which could be granted at Athens to individual metics•. Survivinginscriptionsrecordgrantsof 'enkttsis of land• or 'of a house' or 'of land and a house', but it is not clear whether the three categories are legally distinct, or simply the product of casual draughtsmanship. epangelia: A formal challenge which served as a necessary preliminary to the dokimasia* of a public speaker. ep' autophoroi: Catching the culprit 'red-handed' was a necessary preliminary to apagoge• and summary execution. It is not wholly certain, however, whether ep' autophoroi meant 'caught in the act (of theft, for instance)' or (more probably) 'caught in such circumstances as to make denial of the offence impossible'. ephegesis, pl. ephegeseis: A procedure closely related to apagoge* and endeixis*; the characteristic feature of ephegesis is that the arrest is made not by the complainant but by a public official acting

Glossary

375

upon his denunciation. ephesis: Refusal ro accept the decision of an official or a court of first instance, combined with a demand for the dispute ro be resolved by a higher authority. For instance, Solon in the 590s ec is said to have introduced 'ephesis ID the dikasterion•• as a curb on the summary jurisdiction of public officials; the Athenians under the fifth-centuty empire insisted that certain serious cases should be transfern:d by ephesis ID Athenian jurisdiction from the couns of their subjectallies; and from their introduction around 400 ec, the decisions of public arbitrators (see diaitetes•) were similarly subject to ephesis. Ephesis is conventionally translated 'appeal', but this can have misleading connotations. An appeal in English law is brought on lhe initiative of a dissatisfied litigant (in criminal cases, a convicted defendant) after the court of first instance has decided against him/her;it is his/her duty ro persuade the appellate court ro reverse this decision, and s/he becomes in a sense the plaintiff in this process. In Athens, there were at least some situations in which ephesis could take place before the lower authority had reached a decision; it was the duty of the original plaintiff, not of the dissatisfied litigant, ro persuade the court ro act (that is, the court was re-ttying the case from scratch and not reviewing a decision already made); and in the case of imperial (and possibly also Solonian) ephesis, this referral was automatic and did not depend on an initiative taken by one of the two litigants. ephetai: A body of men (of uncertain origins, etymology, and composition) who sat as judges, probably throughout our period, in three of the four subsidiary homicide courts (but not, it appears, at the Prutaneion•); the Delphinion (if the killer pleaded justification), the Palledion (if the killing was unintentional or by an agent, or if the victim was not a. citizen), and in Phreatto (if the defendant was already in exile for another killing). See for contrast Areiopagos•. epibo/ai: Summary fines which various public officials had the right to impose up ro a certain limit (we hear, in the case of one group of officials, the figure of 50 drakhma1) without reference ro a court. epidikasia: Lit. 'a judgment (awarded) to': an uncontested claim ro the estate of a dead man. If the claim was contested, it gave rise to a diadikasia*. See further inheritance•. epikli:ros (fem. adj. acting as noun), epik/erate (abstract noun): An epikli:ros was the daughter of a man who died leaving no male heir; she was not his heiress, but possession of his estate went together

376

Glossary

with her hand in marriage. This system of inheritance is described as the epiklerate: for further details see inheritance*; and for comparisonsee engue* andekdosis*. epilakhon, pl. epilakhontes: Lit. 'one who is chosen by lot as a substitute': somebody selected at the same time as a public official to hold office if the latter fails to do so. epitimia, epitimos: Epitimia is the possession of the full time• (honour) and therefore the full rights of a citizen, and an epitimos is a citizen who possesses such rights.See for contrastatimia*. epitropos; epitropes, dike•: A dike epitropes is a private prosecution brought by an orphan on coming of age against his former epitropos (guardian), alleging that the latter has administered the estate corruptly. epbbelia: see court fees. eutlwne, normally pl. euthunai: Lit. 'the action of setting straight'. Every public official at Athens had to undergo at the end of his term an examination of his conduct in office. If he had handled public money, he had to present his accounts (logoi, pl.); in all cases he had to seek approval of the way he had used his powers (euthunai properly so called, but the term eutlwnai came also to be applied to the whole process of audit, /ogoi included). The examination was conducted by boards of logistai (pl.) and euthunai (pl.), as appropriate; but any private citizen could bring a charge at any stage during the proceedings.

euthunoi:See euthune*. execution: For execution in the sense of capital punishment, see penalty*; for the means of execution see apotumpanismos* and ataphia*; and for summary execution in this sense see apagbge•. The term 'execution•,however,is more often used by lawyers to mean execution of judgment. If the court decides in favour of the plaintiff and awards him either damages or some other recompense at the hands of the defendant, how does the plaintiff get his hands on what he is now entitled to? In Athenian law, execution of judgment was left almost entirely in the hands of the individual, with minimalassistancefrom the state:see furtherexoules•, dike. exegetes, pl. exegetai: Lit. 'interpreter'. A group of people who expound the proper procedure in situations which raise unusual

questionsof religious law. Their activityis attestedin severalcases, all of homicide; and in each case they are responding to an enquiry by an individual rather than as expert witnesses before a court. In

Glossary

377

one case they offer also to advise a litigant, implying that this was something more than their regular function of interpreting the law. exeleutherikai,phialai: See stete•. exile: See penalty*. exomosia: Lit. 'an oath rejecting (something)'. An oath denying knowledge of a fact taken by a man who was unwilling to act as witness when challenged. See also lipomarturiou•, dike. exoules, dike•: A private indictment designed to eject the holder from a piece of real* property claimed by the plaintiff. The dike exou/es could only be brought if the plaintiff had one of several statutorily privileged rights to the property in question, the most significant of which was that it had already been adjudicated to him by a previous court-hearing. This procedure therefore played a major role in the execution• of judgment, because in Athenian law it was the responsibility of the successful plaintiff in any action to collect whatever damages he had been awarded: if the defendant proved unable or unwilling to pay, the plaintiff could bring a dike exoules, which would then entitle him to seize property in payment of the debt. Although the state took no active part in the seizure, a plaintiff armed with a dike exoules became in a sense the state's agent: he was licensed to use any necessary violence, and to resist him might constitute the serious offence of hubris•. extraordinary procedure: See for contrast dike•. An extraordinary procedureis one whichis neithera dikenor a graphi*. fine: See penalty•. Forty, the: A board of public officials in the fourth century, whose duties were entirely judicial. They took over the functions of the earlier dikastai kata demous or 'judges in the demes' ('deme' here in di/mos• sense [2]): but the latter term continued to be used loosely to describe the new board, even though the Forty unlike their predecessors did not go out on circuit. They were organized on a tribal basis, with four allocated to each of the ten tribes• (not their own): they received those private cases (see dike*) which did not fall within the competence of other magistrates, a group of cases which corresponded closely if not exactly to those which were subject to public arbitration. Cases were submitted to one (probably) of the judges allocated to the defendant's tribe: if the sum at issue were very small (less than ten drakhmai: see coinage•), he could decide it summarily; otherwise he was obliged to refer it to a public arbitrator, and only in case of appeal would he bring it before a court (see

378

Glossary

diai1;1;s"; ephesis). Four Hundred: See revolutions•, oligan:hic. freedman: See apeleutheros•. General Amnesty of 403/2 ec: See Amnesty•. genos, pl. gen;: Lit. 'race' or 'kindred'. TIie word is sometimes used loosely of a close-knit family group tracing its descent from a particular historical or mythological ancestor: the sixth-s,dike sunthikOn, sec SIUllhikOnparabaseOS paragraphl 135 n., 136-8, 322

and antigraphi 138 n., 168 anddiamamuia 13H, 137--8 and indivisibility of trials 138-9 parakataboli, see court fees parakatathikls, dike 104,279,282

paranoias, graphi 108, 112, 245

paranomon.graphl 108 dikastlrion and ekkllsia 159-60, 298---9

as political process 110, 154,297 possible uses 159, 176 parapresbeia 113 parastasis,see court fees parents, mistreatment of 107, 288

see also kaklJseas parrhlsia 311 partial atimia, sec atimia partibleinheriiance 217,219 see also inheritance parties (political), see politics

palema)ism, see slave, treatment of patria potestas (Roman) 209 sec also buieia patrouk/ws (al Gonyn) 221

pay (public), sec misthos pay (wage levels), see wages Peiraieus 56 n., 321,328 Pcloponnesian War (431--404 ac) 167, 232,250,312,320,328 n.

penalty Gudicial): exactionof penalty 68, 144-S financial andphysical penalties 98, 139-44, 330 for frivolous prosecution 47 n., 93, 109,114, 118-19, 133, 14l-4, 159 severity of penalties 152-3, 159,304, 318 statutory penalties 134-5, 139, 144, 262 ~ntllcosiomedimnoi 318 n. personalproperty, see aphanls ousia pcnons, law of 72 family 204-s,sophist 149 sortition.see arUtai sowcesoflaw 30--1,49--53 SouthAfrica: law 52 n. sport andpolitics 5 sovereignty, constitutional 298-9 Sparta 150 n .• 171, 184 n .• 186 special pleas 135--9 see also diamarturia;paragraphi spocch.speeches: defanwmy 103.258-9. 260-1. 268-9 fioedom of 311-12 and trials 37, 130 as historical evideoce 8. 36-8, 44. IOI, 278 n. spondai 311 sport and politics, see politics Star Chamber, 1be 261 n. stasis 38, 158 state debtors, see debt, to lhe state status, law of 70, 169, 173-4, 199-200, 334,336 social and legal stalU8 173 status and conb'aCt 27, 169-70, 200, 323 statute ~s. 66-7 as evidence 58-60 individual Athenian statutes, see Athenian laws and dcaecs interpmalion 61-2 in modem jurisdictions SO,52-3 see also nomo.r, psiphisma Statuto of TI08SOIIS (1352) 270 statutory penalty, see arimltos still 56, 58,287,313

see also Attic Stelai stirpes,representation ~r 217, 219 see also inheritance stoa basileios 51--8 Slratigoi 92, 114, 292-3 Arginoussaigenerals 38. 294.305 slraw poll, see proboli subject-allies ISO, 156, 242 n. individual allied communities I On., 32, 139 n.• 152 n., 158. 330-2 see also Fmpirc, Athenian substantive law: at Athens 40. 41, 66, 278, 284 n.

418

General Index

substantive law (cont.): its role in this book 71-2, 98

in Roman law 14, 64-5 success: of Athenian democ,acy 20--1 of democratic justice 21, 29, 163 sukophantls, sykophant 26 n., 92-4 criticisms of sykophancy 149, 151, 152 and the graphesukophanlias93, 109, 110 andprobole 121 sumbola 325, 333 swnbolaion (xumbolawn) 332 n., 333, 336 swnbolon,dikai apo 63, 148 n., 329, 33}-4 and dikai xumbolaiai 148,333 summary arrest, summary execution, see apagoge

summarypowers: of Alhenian officials 79-81, I 28 of Alhcnian householders 63, 81 n., 190, 202, 244, 277

summons,summonswitness: klltlres and the graphl psellllokllteias 108-9, 111-12, 125 proskllsis 99, 125

sunlgoros: private advocate 92 n., 94-5, 159, 198 n., 203 public prosecutor 92, 113 s1111genls2C17 sungraphl 336 sunthekon parabasei>s,dill 105,266 surety, see engul sykophant. sykophantic,see sukophantes taxation: direct and indirect taxes 184, 197-8, 239 leitowgiai 120, 184, 197,305,328 tax fanning 249, 305 temple robbery, see hierosulia 1emplcs 310 testamentary adoption, see adoption, l