Survey: Ancient Law - Introduction, Greece, Rome

CONTENTS Volume 33/2, 2018

ARTICLES ZÓLYOMI, GÁBOR: E-ana-tum and the Ruler of Arawa.......................................141 GYSEMBERGH, VICTOR: Hipparchus and the “Ancients:” Nechepsos-Petosiris?.................................................................................165

RESEARCH SURVEY: ANCIENT LAW GÜNTHER, SVEN: Introduction: Legal Studies in the 21st Century........................181 HARRIS, EDWARD M.: Some Recent Developments in the Study of Ancient Greek Law..............................................................187 GÜNTHER, SVEN: Roman Law: Opening the System............................................267 ABSTRACTS...…...………...………...………...………...………...………...……283

INTRODUCTION: LEGAL STUDIES IN THE 21ST CENTURY

Sven Günther IHAC, NENU, Changchun

To what extent is law a closed and autopoietic, and to what degree is it an open system interacting with other social structures?1 This complex question can be regarded as the underlying guideline of the present survey of Ancient Law. The historical development of law, and private law in particular, was not the focus of historical and philological studies in the twentieth century. Attention was paid to certain statutes of prominent law-givers such as Hammurabi or Solon, or grand law codifications such as the Twelve Tables. But, in general, legal history remained the preserve of scholars versed in law, continuing the tradition of developments of the nineteenth century, especially in the field of Roman Law. Although old-fashioned and peripheral, their systematic legal approach made invaluable contributions to our understanding of how law worked in ancient societies. Why then a call for us to adopt new perspectives on legal texts? Primarily because I suspect that a systematic approach has an inherent tendency to perceive and convey the impression of a closed system, that is, an approach that fails to take account of historical developments and their relationship to contemporary political, socio-economic, religious and/or cultural contexts which is where and how specific regulation emerged. To take but one example, in a recent article, Winfried Schmitz has convincingly argued that the Lycurgan law on the “procreation of children” (Aristot. pol. 2.9 1270a 40) and other regulations regarding polyandry, marriage and the recognition of new-born children in Sparta were not an expression of a supposed Spartan separation based on a “eugenic” program but reflect the – ultimately unsuccessful – attempt to integrate freed Helots, who were badly needed as both soldiers and fathers due to Spartan losses during the Messenian War, and their children, the “Parthenians,” who had been forced to emigrate to the newly founded city of Tarentum, into the Spartan polity.2 1

This is also one of the crucial questions Aryeh Amihay asks in respect of his constructed “Essene Law” (Amihay 2017). On the one hand, the author dismisses research views that attempt to deny a common basis in the so-called Dead Sea Scrolls, or try to describe them only in Rabbinic terms; on the other hand, he applies legal and socio-linguistic theory to the extant texts to show to what extent the essentialist sphere communicated with the formalistic one, or in other words: how could strict divine law be used in a world that was far removed from perfectly having been determined? 2 Schmitz 2017. 181

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This example is a perfect illustration of how important it is to examine the actual context of a specific source – and this is the contribution that historical and philological methods in combination with careful legal analysis can provide, together with recent discussions about the integration of theories, models and concepts into these traditional tool-set of Altertumswissenschaften; such as the New Institutional Economics (NIE) with its emphasis on institutions forming frames of actions or principal-agent-relations;3 Social Network Analysis (SNA) for studying connections between actors who did not only build networks for economic purposes;4 or the recent shift away from author-centered analyses of texts, particularly forensic speeches, towards also taking account of that of the audience and their (potential) reactions.5 Comparative studies offer a further potentially fruitful, albeit not entirely unproblematic,6 approach to the study of ancient legal cultures. The conference series “Lebend(ig)e Rechtsgeschichte” organized by Martin Lang, Robert Rollinger, Heinz Barta and Simone Paganini at the University of Innsbruck, for example, has produced several colloquia and conference proceedings, making us aware of common concepts but also differences in ancient legal systems.7 Furthermore, four “Wiener Kolloquia zur antiken Rechtsgeschichte” have already provided a platform for interdisciplinary research, not only including different historical epochs but also fields like archaeology, history of architecture, and sports.8 And recently, Guido Pfeifer and Nadine Grotkamp have edited a volume on extra-judicial decisions and their relations to judicial mechanisms as well as to social and political structures.9 Despite the different degrees and sets of extra-judicial conflict solution strategies it becomes clear that those procedures challenged the authority of hierarchically structured states and their legal systems. Hence, one can observe responses in all ancient societies to frame those, sometimes very traditional, conflict-settlements, either by giving them a legal appearance (e.g. in imitating legal formulae), integrating them into legal practice, or by permitting them up to a certain level. However, as arranging juridical decisions before officials was rather expensive and often privileged the already 3

See Kehoe, Ratzan and Yiftach 2015. For a discussion of the main hypotheses, cf. Günther 2017a, 58–59. 4 Broekaert 2015; Krüpe 2014. 5 Alexander 2016; Steel 2016. 6 See Günther 2017b; see now the German SFB-project “Practices of Comparison. Ordering and Changing the World” with the initializing conference, summarized by Mayar 2018. 7 See the titles of the five already published volumes (in the series “Philippika” at Harrassowitz) under: https://www.uibk.ac.at/alte-geschichte-orient/forschung/projekte/lebendige-rechtsgeschichte. html (20.02.2018). 8 For a summary of the last meeting on building and building law, see Harter-Uibopuu 2016. 9 Pfeifer and Grotkamp 2017.

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stronger, i.e. wealthier or more influential side, these forms of extra-juridical solutions never totally disappeared though they are relatively rarely attested in our extant sources. The diversity of crimes, their classification and punishments in different ancient cultures becomes obvious in the 18 essays compiled by Stefan Nowicki (2016). While one may disagree with the overall linear-development approach from simplicity toward increasing complexity – a differentiation that the editor reads into the contributions (cf. esp. “Introduction;” p. VIII) – the individual articles offer profound analysis of specific rules, their violations and procedures. Particularly interesting from a historical point of view are those few studies where ancient sources are treated not as mere descriptions of what actually happened (though this has of course some value for the reconstruction of legal procedures and law systems), but are contextualized and interpreted as representative of certain social systems, narratives and/or discourses. Thus, the exploration of legal inequality in Hatti and Ancient Egypt by Michaela Knollová (“Inequality in Hittite and Ancient Egypt [sic] Criminal Law;” pp. 55–74) identifies the interplay of social stratification, rulers’ interests and different legal rights perfectly, through a complex leveling that could even protect foreigners – where this served the economic advantages for the ruling elite. The analysis of the rich vocabulary and broad semantics used by Attic orators to express punishment by Janek Kucharski (“How to Punish in Classical Greek Rhetoric;” pp. 93–112) illustrates that speeches did not always aim at using exact legal terminology but rather at provoking emotions among the jury-judges by connecting concepts of justice to shared moral views. In addition, descriptions of cases could differ due to the narratological concept of the author, for instance, when the senator Marcus Scribonius Drusus Libo was tried in AD 16 by the emperor Tiberius for having organized a conspiracy against him. Konstantin Vladimirovich Markov (“The Trial of Senator Libo. A Comparative Analysis of the Versions of Tacitus and Cassius Dio;” pp. 121–128) compares the presentation of the case in Tacitus and Cassius Dio and successfully demonstrates the extent to which Tacitus (with his ethical narrative on the relation between emperor, Libo and sycophantic senators) differs substantially from Cassius Dio who merely looked at the poor condition of senators under Tiberius’ regime, and thereby projected the reality of his own life-time and experiences of imperial rule under the Severan dynasty into the distant past. The importance of relating legal sources and issues to the society is programmatic in the Festschrift for Bruce Frier, entitled “Ancient Law, Ancient Society.”10 Though focusing on Greco-Roman topics, the eight contributions spot the close 10

Kehoe and McGinn 2017.

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links between the two spheres that are neither “primitive” nor “functional” but “complex” in their entangled socio-political, economic and cultural practices. On the Greek side, Adriaan Lanni shows that collective punishments served both, as violent and intentional measures in Athenian law, particularly where state interests or the preservation of the political system, i.e. democracy, were concerned (pp. 9–31). By applying Pierre Bourdieu’s forms of capital to ancient sources, Michael Leese examines marriages in the upper class of Athens as not only pushed by mere economic interests but also framed, and thus restricted to the nouveaux riches, by the potential of transforming economic capital into social, cultural or symbolic capital; this was important especially among the “old” elite (pp. 32–45). And, finally, David D. Philips tries to overcome the debate about the exclusion of certain killings from Draco’s homicide law, i.e., whether these killings were justified or just excusable, by introducing the category of “assumption of risk” whereby the person killed could expect the risk of being killed (pp. 46–65). The following “Roman” chapters deal with communication between the legal spheres of the center and periphery with regard to regulations on river rights (Cynthia C. Bannon; pp. 66–83; see also the section on “Roman Law,” 274– 275). Lauren Caldwell analyzes the relationship between nature and the human sphere in terms of justice in Aelian’s Miscellaneous History (pp. 84–104). She convincingly explains how the actions of the Persian kings as described by Aelian in an anecdotal fashion reflect the theme of how to rule with justice through his use of a terminology complying with the expectations and discourses of Roman readers in imperial times, particularly during the Severan dynasty where topics like centralization of administration and severe punishments were legal issues under constant discussion. The two articles by Dennis P. Kehoe and Thomas A. J. McGinn approach the important question of the extent to which Roman law was made for the elite. Kehoe (pp. 105–132) traces mandatum back to its origins in the aristocratic sphere where trust (fides) and reciprocity in the form of friendship (amicitia) and sense of duty (officium) were the leading principles. These elitevalues framed the later legal design by jurists, while this mandatum-concept competed partly with agency by slaves (or freedmen) acting as procurators. McGinn (pp. 133–166) emphasizes that law not only served the interests of the elite, being not only easily accessible to the upper classes or persons at the fringe, but was also ultimately promoted by them, either in accordance with, or sometimes against, the interests of the less privileged – and reflected the social (aristocratic) idea of taking care of the less well off. Finally, Charles Pazdernik (pp. 167–182) points out the deep connections between the reform of the SC Claudianum undertaken by Justinian in 533, and his politico-military propaganda of libertas, both affecting the interests of property landowners.

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These few examples of recent studies clearly reveal that law is no longer seen as a self-promoting as well as self-referential system, separate from the specific ancient society in which it emerged and was used. However, the scarcity of studies covering more than one ancient civilization also illustrates that communication between the different disciplines working in the legal field has not yet become very common; not in the sense of comparative studies (see above) but from the viewpoint of learning different approaches to, conceptualizations of and interdependencies between ancient societies and their particular laws. The exemplary surveys of the legal world in the Ancient Near East, Egypt, China and the Greco-Roman world has, thus, the aim of fostering communication and strengthening Ancient Law Studies.

Bibliography Alexander, M. C. 2016. “Multiple Charges, Unitary Punishment and Rhetorical Strategy in the Quaestiones of the Late Roman Republic.” In: P. J. Du Plessis (ed.), Cicero’s Law. Rethinking Roman Law of the Late Republic. Edinburgh: Edinburgh University Press, 187–204. Amihay, A. 2017. Theory and Practice in Essene Law. Oxford: Oxford University Press. Broekaert, W. 2015. “Recycling Networks. The Structure of the Italian Business Community on Delos.” In: P. Erdkamp and K. Verboven (eds.), Structure and Performance in the Roman Economy. Models, Methods and Case Studies. Collection Latomus 350. Brussels: Éditions Latomus, 143–182. Günther, S. 2017a. “Research Survey: The Ancient Economy – New Studies and Approaches: Introduction.” Journal of Ancient Civilizations 32/1: 55–67. ——— 2017b. “Ad diversas historias comparandas? A First, Short and Droysen-based Reply to Mutschler and Scheidel (Part of ‘Forum: Comparative Studies – Chances and Challenges’).” Journal of Ancient Civilizations 32/1: 123–126. Harter-Uibopuu, K. 2016. “Bau und Recht in der Antike. 4. Wiener Kolloquium zur antiken Rechtsgeschichte.” Forum Archaeologiae 81/XII, accessed under: https://homepage. univie.ac.at/elisabeth.trinkl/forum/forum1216/forum81recht.pdf (05.06.2018).

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Kehoe, D. P. and McGinn, T. A. J. (eds.). 2017. Ancient Law, Ancient Society (= Festschrift B. Frier). Ann Arbor, MI: University of Michigan Press. Kehoe, D. P., Ratzan, D. M. and Yiftach, U. (eds.). 2015. Law and Transaction Costs in the Ancient Economy. Ann Arbor, MI: University of Michigan Press. Krüpe, F. 2014. “Kennt ein Sklave seinen Kaiser? Das „Small-World-Phänomen“ im Imperium Romanum.” Marburger Beiträge zur Antiken Handels-, Wirtschafts- und Sozialgeschichte 32: 117–135. Mayar, M. 2018. “Tagungsbericht: International Kickoff Conference of the SFB 1288 ‘Practices of Comparing. Ordering and Changing the World’.” H-Soz-Kult (19.02.2018), accessed under: www.hsozkult.de/conferencereport/id/tagungsberichte-7561 (20.02.2018). Nowicki, S. (ed.). 2016. “They Called Me to Destroy the Wicked and the Evil.” Selected Essays on Crime and Punishment in Antiquity. Kārum – Emporium – Forum. Beiträge zur Wirtschafts-, Rechts- und Sozialgeschichte des östlichen Mittelmeerraums und Altvorderasiens 1. Munster: Ugarit-Verlag. Pfeifer, G. and Grotkamp, N. (eds.). 2017. Außergerichtliche Konfliktlösung in der Antike. Beispiele aus drei Jahrtausenden. Global Perspectives on Legal History 9. Frankfurt: Max Planck Institute for European Legal History. Schmitz, W. 2017. “Die Gründung der Stadt Tarent und die Gesetze des Lykurg. Eine neue Sicht auf Spartas Geschichte in archaischer Zeit.” Klio 99/2: 420–463. Steel, C. 2016. “Early Career Prosecutors: Forensic Activity and Senatorial Careers in the Late Republic.” In: P. J. Du Plessis (ed.), Cicero’s Law. Rethinking Roman Law of the Late Republic. Edinburgh: Edinburgh University Press, 205–227.

SOME RECENT DEVELOPMENTS IN THE STUDY OF ANCIENT GREEK LAW

Edward M. Harris University of Durham / University of Edinburgh

The laws of the Greek city-states and the Hellenistic Kingdoms dealt with all aspects of life in the community.1 The laws regulated the main political institutions of the community and gave rules to its officials about how to conduct public business. Meetings of the Council and Assembly were run according to public statutes, and decrees submitted for approval had to conform to legal norms. All public officials were subject to a legal review of their conduct and could be prosecuted in court or punished by special magistrates. The laws dealt with many types of offenses against the public interest such as treason, military duty, penalties for those who owed money to the state, and the bribery of public officials. The law also defined who could be citizens and their duties. All aspects of private life were regulated by the laws: marriage and inheritance, adoption, private property, business transactions and trade in the marketplace, the rights of women and foreigners, the treatment of slaves, slander and violence against private individuals. As well as prescribing substantive norms, the laws also contained numerous rules about legal procedure and legislation. The religious life of the Greeks was not a realm beyond the reach of the law: the community enacted many laws about public priests, the conduct of festivals, and the performance of state rituals. In short, there was not one aspect of life in the Greek city-states and the Hellenistic kingdoms left untouched by the law. It would be impossible in the space of an article to cover even in outline the main trends in the study of the laws of the Greek world in the period after 1945, much less to provide an exhaustive bibliographical survey of the field. For this essay, I have selected some areas that have received attention in the past several decades. For an extensive bibliography of work on Greek law, see A New Working Bibliography of Ancient Greek Law (7th to 4th Centuries BC) compiled by I. Arnaoutoglou, D. Mirhady and M. Sundahl (2011). The list of publications 1

I would like to thank Alberto Esu and David Lewis for reading over earlier drafts of this essay, for catching many errors and for making constructive suggestions for improvement. I apologize to readers in advance for referring to myself in the third person. I have not been able to cover several aspects of Greek Law such as constitutional law, citizenship and women, the family and sexuality, but several of the works mentioned in this essay deal with those topics. 187

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is constantly updated at the website Nomoi. This essay will not discuss the laws of Ptolemaic Egypt. On this topic, see the recent work of J. G. Keenan, J. G. Manning and U. Yiftach-Firanko.2 The Unity of Greek Law Normally when discussing a topic in scholarship, one does not have to argue that it is a legitimate field of study. If one were writing a general survey about Greek religion, Greek warfare, the economy of Ancient Greece, Greek architecture, Greek sculpture, Greek philosophy, or the genres of Greek literature (tragedy, comedy, epic, lyric, etc.), no one would deny that these are legitimate fields of study. In a well known essay, however, M. I. Finley argued that one cannot speak of Ancient Greek Law in any meaningful sense.3 Finley observed that the Greek world was divided into hundreds of different city-states, each with its own political institutions, laws, and legal procedures. According to Finley, there was just too much diversity in the laws of the Greek city-states to justify any discussion of Ancient Greek Law as a unified body of statutes and legal concepts. As a result, Finley claimed that one could not study Greek law as a whole or draw general conclusions about the subject. Finley was reacting against a tendency of certain German scholars to assume that there was a great deal of uniformity among the laws of the Greek city-states. In particular, he was criticizing the book of F. Pringsheim entitled The Greek Law of Sale,4 but the idea that the laws of the Greek poleis were broadly similar went back to the work Reichsrecht und Volksrecht in den östlichen Provinzen des römischen Kaiserreichs of L. Mitteis, 5 and was reflected in the titles of works like Griechisches Bürgschaftsrecht by J. Partsch6 and Griechisches Privatrecht auf rechtsvergleichender Grundlage by E. Weiss.7 The Greeks themselves did not see it this way. In a famous passage from Herodotus (8.144), the Athenians, who have been invited to side with the Persian king, reply that they cannot become traitors to their common Greek identity (to Hellenikon), which consists of their common ancestry, their common language, their shared religious practices, and their similar customs. These common customs often took the form of similar laws enforced by many different citystates. For instance, in 367/366 BC the Athenian Assembly sent a herald to the Achaians to protest against the arrest by the Trichonians of the spondophoroi 2 3 4 5 6 7

Keenan, Manning and Yiftach-Firanko 2014. Finley 1975, 134–152. Pringsheim 1950. Mitteis 1891. Partsch 1909. Weiss 1923.

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sent to announce the truce for the Eleusinian Mysteries, an act that violated the laws of the Greeks (Agora 16.48, ll. 13–14: para tous nomous tous koinous tôn Ellênôn). The decree of the Assembly assumes the existence of a rule recognized by all the Greeks that it is wrong to hold those sent to announce a truce for a Panhellenic festival. This is similar to the Greek rule that one does not harm heralds sent from one city to another.8 Several speakers in Thucydides’ history refer to the laws of the Greeks. When the Athenians invaded Boeotia and fortified the sanctuary at Delium, the Boeotians claimed that they had violated the laws of the Greeks that required those invading a country not to damage sanctuaries (Thuc. 4.97.2; cf. Pol. 4.67.4). The Athenians replied that the laws of the Greeks provided that sanctuaries belonged to whoever was in control of the territory as long as they observed the traditional rites of the sanctuary (Thuc. 4.98.2). They also insisted that the Boeotians follow the rule of the Greeks that the bodies of soldiers killed in battle be returned for burial.9 When the Plataeans were put on trial by the Spartans after their surrender in 427 BC, the former pointed out that they have surrendered as suppliants to the Spartans who have accepted them, and that it is wrong according to the laws of the Greeks to put suppliants to death (Thuc. 3.58.1). As F. S. Naiden (2006) has shown, the norms of supplication were a quasi-legal procedure recognized throughout the Greek world (see the section on Law and Religion). The Boeotians retort that it is the Plataeans who have violated the laws of the Greeks by not honoring the rights of suppliants (Thuc. 4.68.4; cf. 66.2–3). In a debate at Athens, the Corinthians appealed to the laws of the Greeks about the right to discipline members of an alliance (Thuc. 1.41.1; cf. 3.9). Some of these rules relate to international law, but there were also broad similarities in the area of family law. In the speech On the Murder of Eratosthenes written by Lysias (1.1–2), the defendant Euphiletus tells the court that the laws against seduction (moicheia) do not differ in oligarchies and democracies; all Greek city-states condemn this crime and enact harsh penalties against those who seduce wives (cf. Xen. Hiero 3.3). It was also a universal rule among the Greeks that the property and inhabitants of a city conquered in war belonged to the victors (Plat. Rep. 5 468a–b; Aristot. Pol. 1.6 1255a 6–7; Xen. Cyr. 7.5.73).10 A judgment by twenty-three judges from Magnesia in a dispute between the Cretan cities of Hierapytna and Itanos states that men gain ownership by inheritance, sale, conquest or gift from a stronger power and implies that this principle is universally recognized by the Greeks (I. Cret. III iv 9).11 In the field 8

Hdt. 7.136.2 with Mosley 1973, 84–92. Thuc. 4.98.6. Cf. Harris 2006, 65–67; Parker 1983, 48. 10 Cf. Harris 2006, 262-263 and Chaniotis 2004, 194–199. 11 See Chaniotis 1996, 307–311, 333–337; 2004, 185–187; Ager 1996, no. 158. 9

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of real security, the evidence that exists reveals that the Greeks used the collateral form of security and not the substitutive form.12 In contrast to Rome during the Republic and Empire, Greek communities did not grant masters the possibility of making their slaves citizens when they manumitted them (IG IX/2 517 = Syll.3 543, ll. 31–34 (214 BC) with Gauthier 2011, 3–12). Finally, the Greeks made a strict distinction between slavery and debt-bondage.13 Slavery was a permanent status, which gave the master all the rights of ownership. Debt-bondage was a temporary status, which restricted the freedom of a debtor only until he paid off his loan or other obligation. Some recent studies have shown that despite the institutional differences among Greek communities, there were also broad similarities in several areas. The first study is Le mariage grec du VIme siècle av. J.C. à l’époque d’Auguste by A.-M. Vérilhac and C. Vial.14 In all Greek cities, marriage was an agreement between the woman’s father or brother and her husband, which transferred the woman from her natal household to that of her husband (virilocal). The marriage was normally accompanied by a dowry (proix) given by the wife’s family to the husband. Everywhere legitimate children (gnesioi) were distinguished from bastards (nothoi). In general, legitimate children had the right to inherit their parents’ property while bastards did not. In the Greek rules for inheritance, descendants took precedence over collaterals, and males in the same degree received equal portions (partible inheritance); there is no evidence for primogeniture. All heirs were universal successors, which meant that they were responsible for the debts of the estate as well as entitled to the assets. If the liabilities exceeded the value of the assets, the heir(s) had to pay the debts. There were of course, local variations: at Gortyn, for instance, sisters could inherit along with brothers although their share was only half that of their brothers. In some cities, nothoi were citizens, in others they were not. The Greeks also believed in the ideal of the rule of law, and one of the main tenets of this ideal was the belief that all officials should be accountable. This meant that all officials were required to present their accounts after their term of office and might be subject to review during their term of office. In a valuable study, P. Fröhlich has shown how the Greek city-states kept their officials accountable.15 In democratic Athens, all officials had to submit their accounts to a board of logistai after their terms of office, and that private individuals could bring 12

Harris 2013c. Harris 2006, 249–270; Kristensen 2004 for Gortyn. 14 Vérilhac and Vial 1998. Pomeroy 1990 claimed that women in Hellenistic Egypt attained a higher status, but see van Bremen 1996 for an important critique, which shows that whatever improvement there was, there were still firm limits on women’s participation in public life. 15 Fröhlich 2004. 13


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charges against them before the euthynoi (Aeschin. 3.9–31; [Aristot.] Ath. Pol. 48.4; Aristot. Pol. 6.8.16 1322b 7–12). In other cities, other terms are used for magistrates who examined the activities of officials: katoptai, mastroi, apologoi, eklogistai and synegoroi. In some cities, officials were required to provide records of their accounts every month (Myania, Hypnia, Delos, Gambreion and Teos). Several communities required financial officials to make payments in front of the Council or other officials. Different cities devised different procedures for holding magistrates accountable, but the general practice was widespread. In a study of the decrees of the Greek city-states, P. J. Rhodes has observed: “There is enough similarity between what is attested for different states ( ... ) to suggest that, in spite of justified protests against the use of inference from one place at one time to fill the gaps in our knowledge of another place at another time, some valid generalizations can be made about Greek law and Greek judicial procedures.”16 In the area of constitutional law, Rhodes shows that despite local variations, the practice of having all proposals introduced and approved by the Council before being submitted to the Assembly was widespread. The formulas used to express the approval of the people in the Assembly differ in early inscriptions but becomes more uniform as times goes on. Though the balance between the powers of the Council and those of the Assembly might vary, there is much similarity in the relationship between the two bodies in many citystates. A. Esu has recently shown that both at Athens and at Sparta there was a requirement that all decrees of the Assembly should be subject to judicial review (nomophylakia), but each community had different procedures for implementing this principle.17 The Greek city-states also shared a hostility to tyranny, that is, the concentration of power in the hands of one man, which threatened the interests of the community as a whole as well as the rights of individuals. To prevent the rise of tyranny, the Greek city-states devised a common set of strategies as E. M. Harris has shown in an essay about Solon.18 First, they divided different functions among different boards of officials. This made it possible for one group of officials to act as a check on another group. Second, they imposed terms limits on officials and often prevented them from serving in the same office again or only after an interval of several years. Third, they imposed penalties for officials who violated the law and made them accountable as we have seen in Fröhlich’s study. Fourth, states often assigned duties not to a single individual but to a board of magistrates. This tendency is found not just in democratic regimes, but 16 17 18

Rhodes with Lewis 1997, 529–530, n. 2. See also Sickinger 2008. Esu 2017. Harris 2006, 3–28.

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also in aristocratic governments. Fifth, statutes in Greek city-states often added entrenchment clauses to prevent those in power from overturning laws for their own benefit. Such clauses are found in inscriptions “from Tauromenium and Issa in the west to places as far east in Asia Minor as Acmonia and Termessus.”19 One can see the shared understanding of certain legal concepts in the common legal vocabulary found in inscriptions from different city-states. For instance, the Greeks widely recognized that when a debtor did not make payment on time, the creditor had the right to seize and sell his property. This right was expressed by the same verb (enechyrazein), which had exactly the same meaning in inscriptions from poleis widely separated throughout the Greek world (Aeschin. 3.21; IG II2 2492, ll. 5–9 (Athens); IG XI/4 1049, l. 8 (Delos); IG XI 194 (Phocis)).20 The terms hypotheke and hypothema are also found in laws and legal documents from several different cities to refer to the collateral form of real security.21 The Greeks also recognized the principle that in contracts of sale the seller had the duty of warranty of title, that is, he was required to guarantee that he was the legitimate owner of the item.22 The terminology used to express this duty (the noun bebaiotes and the verb bebaioun, the noun prater) is similar in communities as far apart as Amphipolis (SEG XLI 563), Torone (SEG XXIV 574), Tenos (IG XII/5 872, l. 108 (bebaiotes), 27 and passim (prater)), Mylasa (Mylasa 84, ll. 12–13; 87, l. 5), Delphi (FD, many examples), and Athens (Dem. 37.11).23 The term symbolaion is also found in documents from several Greek city-states and always refers either to obligations arising from contract or delict or to disputes arising from such obligations (IG I3 118, l. 22 (Athens); IG XII/5 1065 (Keos), IG XII/6.1 95, ll. 3, 9; Priene 27 [MaCabe], l. 8; Syll.3 344, l. 24; 742, l. 49 (Ephesus); Milet I/3 147, ll. 40, 43).24 One can add many other terms to the list: diatheke (will), engklema (legal charge), gnesios (legitimate child), nothos (bastard), enochos (subject to a legal charge), sulan (take reprisals),25 asylia (immunity from reprisals), enktesis (right to acquire property), proxenos (person appointed to look after foreigners),26 engye and engyetes (personal security and surety), synthekai (agreement in the form of contract or treaty), ateleia (immunity from a tax or duty), etc. This common understanding of basic legal concepts made it possible for Greek poleis to invite foreign judges from other 19 20 21 22 23 24 25 26

Rhodes with Lewis 1997, 524–525. Cf. Harris 2008a. Ibid. For the Ptolemaic practices and terminology about real security, see Alonso 2016. Pringsheim 1950. On warranty of title, see Pringsheim 1950. Harris 2015a, 8–12. On taking reprisals, see Bravo 1980. On proxenoi, see now Mack 2015.


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communities to judge their lawsuits.27 If the legal systems of different poleis were vastly different and did not share common ideas about law, these foreign judges could not have performed their tasks. M. Gagarin has recently argued that the unity of Greek Law lay not in the realm of substantive law but in procedure.28 This view does not take into account the many similarities in constitutional law and substantive law noted above and the major differences between legal procedures of different city-states. The differences are most noticeable in the contrast between the laws of Classical Athens and Gortyn in the fifth century BC. In Athens, average citizens brought a written indictment before a magistrate, then presented their case before a court of several hundred citizens selected by lot from a panel of six thousand judges. The judges swore an oath to abide by the law, but there were no requirements about deciding in favor of litigants who presented witnesses (see below on Legal Procedure in Athens). In the Gortyn laws, there is no indication that litigants initiated a case by presenting a written plaint, and all private cases were decided by individual judges, not a court of many hundred judges.29 Judges at Gortyn were also bound to rule in favor of an accuser who presented one or more witnesses in certain cases, which was not true at Athens. At Sparta, private cases involving delicts and breaches of contract (symbolaia) were decided by the board of Ephors.30 In Athens trials in public cases were decided in one day by a court of average citizens selected by lot; at Sparta important cases were to be tried by the Council, which consisted of the two Kings and the Elders, who were elected, and would take place over several days. At Athens there were abundant written records for use in litigation; there is little evidence of the use of written documents in litigation at Sparta. At his trial in 399 BC, Socrates notes that in Athens defendants are tried in one day, whereas in other cities trials on important charges can last for several days (Plat. Apol. 37a–b). At Sparta, the Ephors appeared to have enjoyed wide discretion in deciding cases, and the Kings had sole jurisdiction in some cases; at Athens, officials could only impose fines of small amounts, the Council up to 500 drachmas, most private cases had to go before a public arbitrator in the fourth century BC; if one of the litigants did not wish to abide by the public arbitrator’s decision, the case went before a court of several hundred judges. A fragment of Theophrastus’ On Laws gives a list of very different legal procedures used in various communities to transfer ownership (frg. 21 [Szegedy-Maszak]). The legal procedures of the Greek city-states tended to 27 28 29 30

On foreign judges, see Magnetto forthcoming with references to earlier scholarship. Gagarin 2005. On legal procedure at Gortyn, see Gagarin and Perlman 2016, 136–139. On the powers of the Ephors, see Richer 1998.

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vary according to the nature of the political regime; aristocratic regimes to entrust cases to single judges or smaller bodies, while democratic regimes had trials take place before large courts of average citizens. In monarchies, the king would issue orders that had the force of law; in constitutional regimes, the Assembly or Council would enact legislation. As a result, there was little unity in procedural matters from one community to the next. Sources The evidence for the laws of the Greek city-states comes mainly from two kinds of sources: literary works and inscriptions preserved on stone. There are many literary sources for Athenian law and legal procedure. Aristotle and his followers collected 158 constitutions of the Greek city-states, but the Constitution of the Athenians is the only one almost completely preserved. This work is divided into two parts: the first covers the history of the constitution from Draco down to the restoration of the democracy in 403 BC (Chapters 1–41), and the second is a detailed analysis of the constitution in the period c. 330–320 BC (Chapters 42–69). The second part contains a discussion of the three main parts of Athenian government, the deliberative part including the Council and Assembly (43.2–49), the officials, starting with the sortitive offices (50–54) and proceeding to the archons (55–59) and other officials (60–62), and the judicial part with a discussion of the courts (63–69). The quality of the information found in the historical part of the work is very uneven. For instance, the interpretation of the seisachtheia is based on an anachronistic reading of a fragment of Solon’s poetry.31 The account of the power of the Areopagus after the Persian Wars and the so-called reforms of Ephialtes are also tendentious and misleading.32 The final section (42–69) on the institutions of contemporary Athens is generally reliable and confirmed by evidence from other sources. There are some omissions such as any discussion of nomothesia but these are not serious.33 The section on the courts of Athens has been enriched by the finds discovered by the American School of Classical Studies at Athens. S. Dow has brilliantly explained the workings of the kleroterion, the machine that assigned judges to different courts, and J. Kroll has published the allotment tickets given to judges each year.34 A. Boegehold has collected the archaeological evidence for the courts of Athens.35 There is a valuable Teubner 31

See Harris 1997. The recent attempt of Blok 2017 to argue that the seisachtheia was a cancellation of debts, is not convincing. A detailed refutation is forthcoming. 32 On the figure of Ephialtes and the contradictory traditions about him, see Zaccarini forthcoming. The account of the Areopagus by Wallace 1989 should be used with caution. 33 For a recent explanation of the omission, see Canevaro and Esu 2018. 34 Dow 1939; Kroll 1972. 35 Boegehold 1995.


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text of the Constitution of the Athenians edited by M. Chambers and a useful commentary by P. J. Rhodes.36 The other main sources for Athenian law are the forensic speeches of the ten Attic orators: Antiphon, Andocides, Lysias, Isocrates, Isaeus, Aeschines, Demosthenes, Hyperides, Dinarchus, and Lycurgus. There are reliable editions for each of these authors. D. J. Murphy and M. R. Dilts have recently published an excellent Oxford Classical Text of Antiphon and Andocides.37 Dilts has published a Teubner edition of Aeschines and a four-volume Oxford Classical Text of Demosthenes’ speeches.38 C. Carey has recently contributed a new Oxford Classical Text of Lysias, 39 which is an improvement over previous editions because it contains all the fragments attributed to Lysias. L. Horváth promises a new edition of Hyperides, which will include the recently discovered fragments of the speeches Against Diondas and Against Timandros.40 There are many useful commentaries on the forensic speeches of the orators. Still valuable and not yet replaced is W. Wyse’s commentary on the speeches of Isaeus.41 Of more recent commentaries one should note in particular H. Wankel’s massive commentary on Demosthenes’ On the Crown,42 D. M. MacDowell’s commentary on Demosthenes’ Against Meidias,43 M. Canevaro’s commentary on Demosthenes’ Against Leptines,44 N. Fisher on Aeschines’ Against Timarchus,45 T. Paulsen’s commentary on the speeches of Demosthenes and Aeschines’ On the False Embassy,46 S. C. Todd’s commentary on speeches 1–11 of Lysias,47 D. Whitehead on Hyperides’ forensic speeches,48 and K. A. Kapparis’ commentary on Apollodorus’ Against Neaira.49 Carey has produced a commentary on selected speeches of Lysias, and Carey and R. A. Reid have 36

Chambers 1994; Rhodes 1981. An abbreviated version with translation is now available: Rhodes 2017, but see the review of Esu 2018 forthcoming. 37 Murphy and Dilts 2018. 38 Dilts 1997; 2002–2009. 39 Carey 2007. 40 For the new fragments, see Horváth 2014. 41 Wyse 1979. 42 Wankel 1976.The commentary of Yunis 2001 addresses mainly issues of style and rhetoric and is not reliable on historical and legal issues, see the review by Harris 1992. 43 MacDowell 1990 with the review by Harris 1992. MacDowell’s treatment of the documents in the speech has now been rendered obsolete by Harris in Canevaro 2013, 209–236. 44 Canevaro 2016. There is also a commentary on Against Leptines by Kremmydas 2012, but its analysis of legal issues has been superseded by Canevaro’s studies of nomothesia. On these, see the section on Legislation. 45 Fisher 2001. 46 Paulsen 1999. This commentary on Dem. 19 is more reliable than MacDowell 2000. 47 Todd 2007. 48 Whitehead 2000. 49 Kapparis 1999.

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produced a commentary on four private speeches of Demosthenes.50 The Texas series of translations of the Greek Orators is now complete. These translations contain introductions, notes and bibliography, though the notes in some of the early volumes are brief and superficial.51 Inserted into some of the forensic speeches of Aeschines, Andocides and Demosthenes are texts that purport to be copies of laws, decrees, witness statements and other documents (oracles and contracts). These documents were the object of intense study in the nineteenth century, but for the most part this ended with the work of E. Drerup in 1898.52 Recently, the study of these documents has been renewed in a series of studies by Harris and Canevaro. In an essay published in 2012, Canevaro and Harris showed that the three long documents and three shorter documents in Andocides’ On the Mysteries are forgeries and that the information contained in them is not reliable as evidence for Athenian law and legal institutions.53 The findings of this study have major implications for our understanding of the amnesty of 406/405, the examination of the laws from 409 to 399 BC, and the laws about killing tyrants.54 In 2013, Canevaro published a study of the laws and decrees in the public speeches of the Demosthenic corpus (On the Crown, Against Aristocrates, Against Timocrates, and Against Neaira) with a chapter by Harris on the documents in Against Meidias. Canevaro made a careful study of the stichometry of these speeches and has shown that the documents inside the stichometry were inserted at an early stage of the transmission of the text and tend to contain reliable information (though not entirely without errors). By contrast, the documents lying outside the stichometry were added to the transmission very late and are forgeries containing unreliable evidence for Athenian law and legal procedure. For the implications of some of these findings, see the section on Legislation. One should also mention the lexica providing information about Athenian law and legal procedure. The most valuable of these is the lexicon of Harpocration, 50

Carey 1989, and Carey and Reid 1985. The least satisfactory are Bers’ translation of Demosthenes 50–59, and MacDowell’s translations of Andocides and of Demosthenes 27–38. 52 Drerup 1898. 53 Canevaro and Harris 2012. Sommerstein 2014, Hansen 2015 and 2016a have attempted to defend the authenticity of these documents, but their analyses are based on flawed readings of key texts, ignore key evidence against authenticity and in some cases seriously misrepresent the views of Canevaro and Harris. For detailed refutation and references to endorsements, see Harris 2013–2014, and Canevaro and Harris 2016. To the endorsements should be added Murphy and Dilts 2018, who place brackets around the documents in On the Mysteries. 54 For instance, Harris 2013–2014 shows that the decree of Demophantus was passed after the overthrow of the Thirty Tyrants. This shows that the views of Teegarden 2014 about the decree of Demophantus and its role in the overthrow of the Thirty are not reliable. Shear 2011 relies heavily on the forged documents in Andocides’ On the Mysteries. 51


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which contains definitions and discussions of legal terms. Unfortunately, the edition of this work by J. Keaney is not reliable and needs to be replaced.55 There are valuable editions of the scholia to Demosthenes and to Aeschines by M. R. Dilts.56 There are very few literary sources for other city-states with the exception of Sparta. The work of Xenophon provides an overview of Spartan laws and institutions but concentrates on constitutional law and the family.57 Plutarch’s Life of Lycurgus contains much information about Spartan institutions, but the reliability of some of the information found in this work has been rightly questioned. There is a valuable study of the laws and political institutions of ancient Lesbos by A. Dimopoulou. 58 The work of Theophrastus’ On Laws, preserved only in fragments, contains information about communities outside of Athens; there is a useful edition by A. Szegedy-Maszak.59 Inscriptions provide much evidence for the laws and legal procedures of the Greek city-states. For Athens, the inscriptions from the fifth century have been edited in two volumes by the late D. M. Lewis. The laws and decrees from 352/351 to 322/321 BC have been edited by S. D. Lambert,60 the laws and decrees 300/299 to 230/229 BC by M. Osborne and S. Byrne,61 and the laws and decrees from 229/228 to 168/167 BC by V. N. Bardani and S. V. Tracy.62 The volumes covering the laws and decrees from the period 403/402 to 353/352 BC and from 321/320 to 301/300 BC are still awaited from A. Matthaiou and from G. Oliver respectively. In the meantime, the old editions of Inscriptiones Graecae II–III are still useful. Translations of many of these laws and decrees are now available online with brief commentaries at the valuable and innovative website Attic Inscriptions Online (AIO) maintained by Lambert. The inscriptions of many cities are also published in the series Inschriften aus Kleinasien (IK), which contains translations into German and brief commentaries in German. The collection of legal inscriptions collected in Receuil d’inscriptions juridiques grecques published over a century ago by R. Dareste, B. Haussoullier and T. Reinach still remains valuable and has not yet been replaced.63 For the Hellenistic period, there are two volumes published by J. Vélissaropoulos, 55 56 57 58 59 60 61 62 63

Keaney 1991. Dilts 1983–1986 and Dilts 1992. For a commentary, see Gray 2007. Dimopoulou 2015. Szegedy-Maszak 1981. Lambert 2012. Osborne and Byrne 2015. Bardani and Tracy 2012. Dareste, Haussoullier and Reinach 1891–1904.

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which present texts, French translations and brief commentaries.64 For over thirty years, G. Thür has been responsible for a series entitled Prozeßrechtliche Inschriften der griechischen Poleis, but so far only one volume about the legal inscriptions of Arcadia has appeared in 1994, and no new volumes have been published since then.65 I. N. Arnaoutoglou has provided a translation with brief bibliography of ancient Greek laws preserved on stone and in the literary sources, but unfortunately several of these have now been demonstrated to be forgeries.66 A revised edition would be a valuable work for students. For collections of laws from the Archaic period, see the section on Archaic Law. There are also valuable collections of certain types of inscriptions. There is a valuable study of leases by I. Pernin;67 A. Chaniotis has collected the treaties between the Cretan cities;68 C. Chandezon analyzes inscriptions about grazing and herds;69 O. Curty collects decrees about gymnasiarchs;70 F. Lefèvre collects the inscriptions about Delphic Amphictyony and analyzes the functions of the Council;71 L. Migeotte has collected inscriptions about public loans and about public subscriptions;72 B. Le Guen and S. Aneziri have studied the epigraphic evidence for the Dionysiac Artists and their contracts;73 A. Bielman has collected decrees about the ransom of captives;74 M. J. Osborne has collected the evidence, both literary and epigraphic, for grants of citizenship at Athens;75 E. Samama has collected the epigraphic evidence about doctors;76 A. Chankowski has published a study of the ephebeia in the Hellenistic period based on a study of inscriptions,77 and A. Magnetto has studied the texts about interstate arbitration from 337 to 196 BC.78 Many of these inscriptions contain information about law and legal procedure even if these are not their main focus. On the so-called leges sacrae, see the section on Law and Religion.

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Vélissaropoulos 2011. Thür and Taeuber 1994. 66 Arnaoutoglou 1998. The same problem of including documents that are forgeries, diminishes the value of the texts about Athenian Law collected by Phillips 2013, which should be used with caution. 67 Pernin 2014. 68 Chaniotis 1996. 69 Chandezon 2003. 70 Curty 2015. 71 Lefèvre 2002, with the analysis in Lefèvre 1998. 72 Migeotte 1984; Migeotte 1992. 73 Le Guen 2001; Aneziri 2003. 74 Bielman 1994. 75 M. J. Osborne 1981–1983. 76 Samama 2003. 77 Chankowski 2010. 78 Magnetto 1997. 65


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Law and Writing In a famous essay published in 1963, J. Goody and I. Watt argued that the invention of the Greek alphabet was the decisive factor in Greek civilization. Unlike the syllabic scripts of the ancient Near East, which had many characters and were difficult to learn, the Greek alphabet was easy to master and permitted widespread literacy, which in turn led to the invention of science, history and philosophy. Goody and Watt believed that this widespread literacy had implications for politics: “To begin with, the case of alphabetic reading and writing was probably an important consideration in the development of political democracy in Greece: in the fifth century a majority of the free citizens could apparently read the laws, and take an active part in elections and legislation.”79 The question of literacy is therefore central to our understanding of the way the legal system worked in Classical Athens and in other Greek poleis. If literacy was widespread, average citizens could then read laws and decrees, participate in running the Council and voting on proposals in the Assembly, and present written indictments when initiating lawsuits and written documents at trials. On the other hand, if literacy was restricted to a small group, the average citizen would have been at the mercy of those who knew how to read and write, and the legal system would not have been accessible to the majority of the population. Shortly after the publication of Goody and Watt’s article, D. Harvey argued that there was widespread literacy in Athenian democracy.80 One of his main pieces of evidence was the use of writing and written documents both in the courts and in legal business (e.g., the use of written contracts). In 1989, W. V. Harris reacted against this optimistic view of literacy in Classical Greece and argued that the level of literacy was not very high and that few outside the elite could read with any facility. As a result, “legal practice like the administration of large-scale business, remained to a considerable extent oral and independent of documents.”81 W. V. Harris went so far as to claim that there was a certain distrust of writing, which might be viewed as the instrument of despots. J. Whitley made a similar argument about law and literacy in Crete during the sixth and fifth centuries BC. Whitley claimed that there was little evidence for the use of writing by average citizens during this period, and argued that the numerous laws found on the island were for the use of the elite, who excluded the majority of the population from participation in politics and the courts.82 In her book Oral Tradition and Written Record in Classical Athens, R. Thomas 79 80 81 82

Goody and Watt 1963, 332. Harvey 1966. W. V. Harris 1989, 72. Whitley 1997; 1998. For detailed criticism of Whitley’s views, see Gagarin 2008, 68–71.

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noted that Aeschines (2.89; 3.75) stresses the importance of written documents in speeches delivered in 343 and 330 BC, but believes that Aeschines’ use of documents was an innovation at the time. On the basis of this interpretation of his words, she concluded: “the significance of the public archives was only beginning to be realized properly around the middle of the fourth century.”83 In his book Writing Greek Law, Gagarin was more pessimistic about the use of writing and claimed that written documents played only a small role in the administration of justice in Classical Athens. According to Gagarin, “[i]t seems that the Athenians restricted the amount of writing in the legal process as far as was practical (...) the exclusion of writing from trials was a feature of Greek law in general (...) Athenian litigants participated in this ambivalence [i.e. about writing], sometimes praising, at other times questioning the value of written documents of all sorts.”84 In the view of Gagarin, “Athenian Law also displays from the beginning a reluctance to use writing for procedural matters or to insert writing into the traditionally oral trial process.”85 Gagarin therefore takes “the restricted role given to written texts in Athenian trials” for granted.86 For instance, Gagarin does not believe that the Athenians kept records of legal decisions.87 D. Cohen adopts a similar view and claims that “the social and legal appreciation of the role that writing might assume was circumscribed and emergent rather than general and complete.”88 In the Cambridge Economic History, B. Frier and D. Kehoe assert without evidence that “ancient states were incapable of maintaining extensive records: the Greeks and Romans generally lacked the systematic public registries that are necessary for the conclusive resolution of disputes over ownership, boundaries, land use, servitudes, liens; adequate resources and bureaucracies were simply unavailable.”89 Recent work has called into question these pessimistic views about the level of literacy and about the rare use of written documents and has drawn attention to evidence neglected by these scholars. In their study of the laws from Crete, Gagarin and P. Perlman draw attention to the fact that the statutes recorded on stone are written in large letters obviously designed for clear legibility, and that there is more evidence for literacy than Whitley assumed.90 J. P. Sickinger has studied the public archive in Athens and observed that litigants had no 83 84 85 86 87 88 89 90

Thomas 1989, 69–70. Gagarin 2008, 196, 197. Ibid., 206. Ibid., 209. Ibid., 195. Lanni 2004 holds a similar view. D. Cohen 2003, 96. Frier and Kehoe 2007, 135. Gagarin and Perlman 2016, 55–62. Cf. Gagarin 2008, 68–71.


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problem finding the laws and decrees relevant for their cases.91 As M. Faraguna has demonstrated, this extensive use of writing was not an innovation of the middle of the fourth century BC in Athens, but was already present in the fifth century BC.92 In an important study about literacy in Athens, C. Pébarthe lists the numerous written documents used in litigation.93 Many private cases were first sent to a public arbitrator, who attempted to reconcile the litigants or, if that did not succeed, to propose a judgment. If either litigant refused to accept the judgment, all the written documents including witness statements, challenges and law were placed in a jar (echinos) to be presented at the trial in court ([Aristot.] Ath. Pol. 53.2–3). At trials, litigants cite laws, decrees, contracts, wills, financial documents, and inventories. In some cases records of previous trials were also brought forward as evidence.94 In two important studies, Faraguna has shown that the Athenians and other Greeks maintained many documents to prove ownership, mainly records of sales.95 In a valuable collection of inscriptions, J. Game has gathered numerous inscriptions relating to sales and transfer of property from Amphipolis, the cities of the Chalcidice, Macedonia, the Cycladic islands, and Sicily.96 At Athens, sellers were required to pay one percent of the sale price as a way of recording the transaction (Theophr. fr. 21 [Szegedy-Maszak]), and Lambert has published the epigraphical evidence for these sales.97 These legal documents had a major impact on the nature of economic exchange. By providing written proof of title, these records helped to expand transfers of property and networks for credit outside the narrow circle of friends, family, and neighbors and to integrate different parts of the city-state into one unified market.98 Written contracts were also important in the leasing of land, and I. Pernin has collected the leases preserved on stone from several Greek communities, showing that the practice was very common.99 According to Aeschines (2.89; 3.75), written documents helped to protect the rights of the innocent and to keep politicians accountable. And as Dio Chrysostomus (31.51) observes, “[t]hen bear in mind that all men regard those agreements as having greater validity that are concluded with the approval of the state and are entered in the public records; and it is impossible for anything 91

Sickinger 1999 and 2004. Faraguna 2017. 93 Pébarthe 2006, 315–344. Cf. Faraguna 2008. 94 See Harris 2013b. 95 Faraguna 1997 and 2000. 96 Game 2008. 97 Lambert 1997. 98 See Harris 2016c for the impact of property records on economic exchange. For the view that most borrowing and lending were limited to the narrow circle of family, friends and neighbors: Millett 1991. 99 Pernin 2014. 92

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thus administered to be cancelled, either in case one buys some land or a boat or a slave from someone else, or if someone lends money to another person, or frees a slave or makes a gift to someone.” The evidence of inscriptions clearly corroborates these two statements and show that written documents played an important role in public business, private transactions, litigation and legal procedure in the Greek city-states. The Laws of the Greek City-States in the Archaic Period During the Archaic period (700–500 BC), many Greek communities started to develop the state institutions that would become widespread in the following centuries. This was also the period of the great lawgivers such as Solon, Lycurgus, and Charondas. These lawgivers acquired almost mythical status and were often credited with single-handedly rescuing their communities from anarchy and violence through their legislation. As Szegedy-Maszak has observed, these legends often fall into a fixed pattern in which there is violence and chaos in the community, a lawgiver comes from the outside to provide a code, which restores order, and after finishing his task, the lawgiver leaves.100 These legends were an effective way of creating respect for the authority of the laws by linking them to a charismatic figure. Instead of viewing the process of creating law as a gradual process that stretched over centuries, Greek communities often attributed their laws to a single lawgiver, who created an entire code of laws. This inevitably led to historical distortions: Demosthenes (20.93–94) states that the rules about enacting legislation were created by Solon, but the evidence shows that these rules were actually created around 400 BC. The Spartans credited Lycurgus with creating their laws, and both Xenophon in his Constitution of the Lacedaemonians and Plutarch in his Life of Lycurgus followed this view. Most scholars now view the laws of Sparta as the product of a gradual process over several centuries and not the invention of a single genius at one decisive moment in time.101 There has been much debate about the authenticity of the laws attributed to Solon, which have been the subject of studies by E. Ruschenbusch and by D. Leao and Rhodes.102 Many of the literary sources for the early lawgivers come from late sources, the reliability of which is often difficult to evaluate, but there are many inscriptions which can be dated to the period before 450 BC that contain legal rules. Many of these inscriptions can be dated by their letter forms thanks to the pioneering work of L. Jeffery in her Local Scripts of Archaic Greece.103 One of the earliest 100 101 102 103

Szegedy-Maszak 1978. See, for instance, MacDowell 1986 and Hodkinson 1997 and Hodkinson 2000. See Ruschenbusch 1966 and 2010, and Leão and Rhodes 2015. Jeffery 1990.


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comes from Dreros on Crete and concerns the re-election of officials. Others are very fragmentary and may contain only a few legible words. The main legal inscriptions for the Archaic period have been collected in two valuable works: Nomima: Recueil d’inscriptions politiques et juridiques de l’archaisme grec (two volumes) by H. van Effenterre and F. Ruzé, and Inschriftliche Gesetzestexte der frühen griechischen Polis by R. Koerner, which was edited posthumously by K. Hallof. The work of van Effenterre and Ruzé is organized thematically under several headings: civic identity (1: 25–162), the city in the Greek world (foreign relations) (1: 163–250), powers of the state (1: 251–291), legal procedure (2: 19–82), rights of persons (2: 83–146), property (2: 147–280), criminal law (2: 281–304), rules about funerals (2: 307–314), about the environment (2: 315– 326), about roads (2: 328–338) and miscellaneous rules (2: 339–349). The work of Koerner is organized by geographic regions and contains German translations and commentary. For the early inscriptions of Crete, there is now The Laws of Ancient Crete c. 650–400 BCE by Gagarin and Perlman. This is a very useful collection of texts, but the analysis of their contents is not always reliable. For instance, the authors translate the term dolos as “slave” and the term woikeus as “serf” and assume that they refer to different statuses.104 The analysis of the Cretan dialect also contains several mistakes; as M. Bile has written in a review, the work “est donc à manier avec beaucoup de précaution.”105 From a historical perspective, there is no attempt to place the laws of Crete in the context of wider social and political developments in the period. For a study of Crete in the Archaic and Classical period that places these laws in their broader historical context, readers should consult the work of G. Seelentag.106 In his study of Early Greek Law, Gagarin attempted to discern an evolutionary development of three stages during the Archaic period.107 The first stage is “pre-legal” in which “the society has no recognized procedures for peacefully settling disputes among its members” and in which legal disputes were settled mainly by voluntary arbitration. The second stage is “proto-legal” in which there are “recognizable procedures for settling disputes.” Gagarin went as far as to claim that the word dikē referred only to legal procedure, but this was refuted by M. Dickie, who showed that the word has a much broader ethical meaning.108 The third or “legal” stage is one in which “a society has 104

For an excellent analysis of slave status in early Crete, see Lewis 2013. Gagarin and Perlman 2016, 85, n. 220 dismiss Lewis’ points without addressing them. Cf. Lewis 2018, 150–153 with the references cited there. 105 Bile 2016–2017, 207. 106 Seelentag 2015. 107 Gagarin 1986, 9–10. 108 Dickie 1978.

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recognized legal rules, as well as procedures, a step that almost always requires the knowledge of writing.” Scholars have noted several problems with this rigid schema. First, Gagarin denies that there were any laws in the strict sense before laws were written down starting in the seventh century, but as K. Burchfiel and E. Cantarella have noted, already in the period of the Homeric poems individuals recognize the existence of norms, shape their conduct to conform to these norms and resolve conflicts by applying these norms.109 C. Pelloso has recently demonstrated that the word dikē in the Homeric poems can denote a subjective right, which implies the existence of substantive norms.110 In a very trenchant yet perceptive review of Early Greek Law, K.-J. Hölkeskamp showed that Gagarin’s scheme is contradicted by the evidence of the laws dated to before 500 BC.111 Finally, Gagarin does not place these laws within the social and political developments of the period and assumes that legal institutions follow an evolutionary trajectory largely independent of their social and political contexts. Some scholars such as Z. Papakonstantinou, S. Forsdyke and J. Hawke hold that laws in the Archaic period were aimed primarily at restraining and managing elite competition. Some laws may have been enacted for this purpose, but the vast majority of laws enacted during this period were directed at regulating the conduct of all members of the community. For instance, Solon’s law against enslavement for debt clearly protected the most vulnerable members of society and not the wealthy and powerful. 112 The law of the East Locrians about Naupaktos contains rules about land affecting all citizens and does not just pertain to the elite (Koerner 1993, no. 49). The same is true for the law of the Locrians about Hyla and Liskara (Koerner 1993, no. 47). A more fruitful way of approaching the laws of the Archaic period is to place them in the context of the development of the polis, the political ideals of early Greece and contemporary political institutions. In a series of studies and in an extensive monograph, Hölkeskamp shows how early Greek laws reflect the development of formal magistracies, which separated power from persons, the division of jurisdictions and functions, and the relationship between officials and citizens.113 The only weakness in Hölkeskamp’s analysis is that he views the laws enacted by the early city-state as ad hoc-solutions to particular questions, which does not do justice to the coherent aims of the early laws such as their intent to protect the rights of individuals and to prevent tyranny (see above on the Unity of Greek Law). 109 110 111 112 113

Cantarella 1987; Burchfiel 1994. Pelloso 2013. Hölkeskamp 1990. See Harris 2006, 249–270. Hölkeskamp 1992, 1999.


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Nomothesia (Legislation) During the Archaic period, it appears that the main laws were written by lawgivers and approved by the community. Measures about specific matters were enacted by the Assemblies of the Greek city-states. In the fifth century BC, the Athenians enacted general provisions relating to all persons or to broad categories of people, honors and privileges for individuals, and temporary ad hoc-measures in the Assembly. In fact, the same measure could be called a nomos (Xen. Hell. 1.7.23) and a psephisma (Xen. Hell. 1.7.20, 34). If the Assembly wanted to make a measure permanent and difficult to overturn, the proposer would add an entrenchment clause, which threatened harsh penalties for anyone who proposed either modifications or to overturn the measure and for those who put such proposals to a vote.114 After the overthrow of the Thirty and the restoration of the democracy in 403 BC, the Athenians started to make a strict distinction between psephismata (decrees) and nomoi (laws). A nomos was a general measure, which applied to all people and was to remain in effect permanently. In fact, there was a law passed in around 403 that forbid any law to be enacted about an individual (Andoc. 1.87; 23.86; 24.59).115 A psephisma (decree) was a measure about a particular situation and either was intended to apply for a short time or was enacted for a specific individual. For instance, a decree might order ambassadors to travel to Macedonia and present King Philip with proposals for peace and alliance or to send a military expedition. Decrees about individuals might take various forms, but two of the most numerous were decrees awarding proxenies for foreigners who looked after Athenians in their native cities and those awarding citizenship to individuals.116 There are several laws enacted in the fourth century BC that have been preserved on stone. These concern the testing of silver coinage,117 or taxes to be paid on the import and export of grain.118 Laws were superior to decrees, and all decrees had to conform to the existing laws. In a survey of all the laws and decrees from 403 to 322 BC, M. H. Hansen has shown that the Athenians followed this distinction consistently. On the basis of the text of a law found at Andocides’ On the Mysteries (1.87), Hansen claimed that exceptions could be made to this rule, and laws for individuals could be enacted if 6,000 voted, but this text is a forgery, and the information in it is not reliable. The laws that Hansen identifies as exceptions to this rule can be interpreted in a different way and certainly do not provide evidence for the authenticity of the 114 115 116 117 118

On entrenchment clauses, see Lewis 1997, 136–149 and Sickinger 2008. See Canevaro and Harris 2012, and Canevaro 2013, 74–75, 145–150. For proxeny decrees, see Mack 2015. For awards of citizenship, see M. J. Osborne 1981–1983. For the editio princeps, see Stroud 1974. For the editio princeps, see id. 1998.

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document at Andocides.119 If someone proposed a decree that violated a law, an accuser could bring a public action against an illegal decree (graphe paranomon) against the proposer.120 There has been some controversy about the procedure for enacting new laws (nomothesia). Scholars who have written on the procedure have relied primarily on a document inserted into the text of Demosthenes’ speech Against Timocrates (24.20–23), but have observed that the information contained in this document appears to contradict evidence found in other sources. For instance, the document states that the procedure for introducing new laws can be initiated only in Hekatombaion, but inscriptions indicate that new laws could be passed at any time during the year (IG II3/1 445 was enacted on the 8th of Skirophorion, IG II3/1 320 in the ninth prytany, IG II2 140 in the fifth, the seventh or the tenth prytany). This led Harrison, MacDowell, Hansen and Rhodes to propose different ways of reconciling the evidence, but none of the proposals was able to resolve the main contradictions in the evidence.121 Recently, Canevaro examined the document at Dem. 24.20–23 in detail and showed that it must be a forgery and does not contain reliable evidence about the procedure.122 There are several grounds for rejecting the authenticity of the document. First, the procedure described by Demosthenes (24.19, 24–25) is for enacting new laws, but the document is about approving all the laws and rejecting some. Second, Demosthenes states there was a preliminary vote to allow new proposals, but the document specifies a vote for existing laws section by section. Third, the document limits the procedure for enacting new laws to the month of Hekatombaion, but Demosthenes, supported by the evidence of inscriptions, states that the procedure could take any time during the year. Fourth, the document provides for the election of five synegoroi on 11th Hekatombaion, the same day or before new laws were presented. In his account of the procedure, however, Demosthenes says that they were appointed later in the process. The document also contains phrases and terminology that are not consistent with those found in contemporary documents preserved on stone. 119

For detailed refutation of Hansen 2017, see Canevaro forthcoming. On the graphe paranomon, see Hansen 1974 and Wolff 1970. Yunis 1988 has claimed that in cases about graphe paranomon the courts could take political considerations into account, but this is contradicted by the evidence for the decisions in these cases (e.g. Dem. 24.14) and by passages such as Dem. 23.95–99, which states that such arguments were considered “shameful.” Yunis believes that the court ignored the law at the trial of Ctesiphon in 330 BC, but this view does not take into account crucial evidence from inscriptions and is unconvincing. For detailed refutation, see Harris 2013, 225–233, and 2017. 121 Harrison 1955, MacDowell 1975, Hansen 1979–1980, Rhodes 1984 and 1987. 122 Canevaro 2013a with a summary in 2013b, 94–102. Hansen 2016b has attempted to defend the document’s authenticity, but his arguments are refuted in detail in Canevaro 2018, who presents additional evidence against authenticity. 120


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Once the unreliable information from the forged document is removed from consideration, it is possible to use the information found in Demosthenes’ Against Leptines and Against Timocrates to reconstruct the procedure: 1) There was a preliminary vote in the Assembly about whether to invite proposals for new laws (Dem. 24.25). 2) All new proposals had to be placed in front of the monument of the Eponymous Heroes so that everyone could read them (Dem. 20.94; 24.25). 3) The secretary was to read out all proposals at every meeting of the Assembly until nomothetai were appointed (Dem. 20.94). 4) During the third meeting of the Assembly, the people were to pass a decree designating the nomothetai (Dem. 20.95; 24.25). 5) If there were any laws contrary to a law being proposed, the proposer had to bring a public action against an inexpedient law (graphe nomon me epitedeion theinai) to repeal these statutes (Dem. 20.93; 24.32, 34–35). 6) After opposing laws were repealed, the nomothetai enacted the new law. The aim of the procedure was to preserve the integrity and the consistency of the system of laws as a whole. As Demosthenes (20.93) states, “opposing laws are repealed so that there is one law for each subject. This avoids confusion for private individuals, who would be at a disadvantage in comparison to those who are familiar with the laws. The aim is to make points of law the same for all to read as well as simple and clear to understand” (trans. Harris). This shows that the Athenians tried to implement two key features of the rule of law: the accessibility to the law for average citizens and the absence of conflicting statutes, which would have led to inconsistent decisions. Another question remains: who were the nomothetai? In a recent essay, Canevaro and Esu have drawn attention to a passage in which Aeschines (3.38–39) describes a procedure to keep the laws consistent and to remove contradictory laws.123 If the thesmothetai find any laws that conflict with each other, they are to write them up on boards and place them in front of the Eponymous Heroes. The prytaneis are then to call a meeting of the Assembly and to “write on” (epigraphein) this meeting nomothetai. This must mean that at this meeting of the Assembly the people sat as “legislators,” which is why all laws passed in this period begin with the phrase “enacted by the legislators” (edoxe tois nomothetais). Rhodes believes that the phrase just means that the prytaneis are to put the appointment of the nomothetai on the agenda for the meeting, but this is impossible because the passage does not mention an appointment, and because the word for putting an item on the agenda is not epigraphein but prographein 123

Canevaro and Esu 2018.

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([Aristot.] Ath. Pol. 43.3). This analysis is confirmed by a passage in Against Leptines in which Demosthenes (20.93–94) speaks about the powers of the Athenian people in general and recalls how proposals for laws are read out many times so that each person in the Assembly will enact legislation (hekastos hymôn ... nomothetêi) after fully considering the merits of the proposals. M. Ostwald and Hansen thought that the new procedures for legislation were part of a package of reforms that marked a transition from popular sovereignty, which prevailed in the fifth century BC under the so-called “radical democracy,” to the sovereignty of law, which prevailed in the fourth century BC.124 According to the Constitution of the Athenians (41.2) attributed to Aristotle, however, the Athenian people still exerted control of all aspects of life in the community through their decrees, their powers in the courts and their control of the Council in the fourth century BC after these reforms.125 Other passages in the orators agree with the view that the people continued to rule in Athens (Aeschin. 1.4–6; 3.6–7; Dem. 20.2–4, 102–103; [Dem.] 59.88). The new rules for nomothesia did not take the process of legislation out of the hands of the people, who still made the decision to set the procedures in motion and to approve the new laws. The Athenians certainly believed in democracy in the fifth century BC, but they also believed at the same time in the basic tenets of the rule of law before 403 BC: the right to trials before impartial judges, resolution of legal disputes according to fixed and stable rules, access to laws and legal procedures, and equality before the law (Thuc. 2.37.1; Eur. Suppl. 429–437). Some have argued that the Areopagus gained new powers toward the end of the fourth century and that these powers made inroads on the powers of the Assembly.126 But even though the Areopagus is mentioned more frequently after 350 BC than before, there is no reason to believe that it acquired a new role, which undermined the sovereignty of the people. The Areopagus could conduct investigations on its own initiative or on the orders of the Assembly and submit a report (apophasis), but the Assembly and courts still had the power to reject the proposals in the report or not to act on its findings (Dem. 18,132; Din. 1.63). The Assembly might also delegate tasks to the Areopagus, but this was no innovation: the Assembly also delegated tasks to the Council in the fifth century BC (Andoc. 1.36; 65; cf. 14; IG I3 102, ll. 39–47). In the fifth century BC as in the fourth century BC, the Athenians attempted to uphold both democracy and the rule of law and did not see any conflict between them.

124 125 126

Ostwald 1986; Hansen 1974. On these points, see Harris 2016a. Wallace 1989 has argued that the Areopagus gained new powers in the late fourth century BC.


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Athenian Law and Legal Procedure There were several studies of Athenian legal procedure in the nineteenth century, culminating in the monumental work of J. Lipsius in the early twentieth century.127 The general work of R. J. Bonner and G. Smith about the administration of justice in Ancient Greece contained a long section on Athenian legal procedure,128 and the second volume of Harrison’s The Law of Athens was devoted to procedure.129 MacDowell produced a book for non-specialists on the law of Athens,130 and Todd’s book The Shape of Athenian Law also contained chapters on legal procedure.131 Recent work has focused on the role of law in the decisions of the courts. In an essay published in 2004, Rhodes argued that litigants in court tended to keep to the point and not to include irrelevant statements in their speeches.132 Rhodes was reacting against studies by D. Cohen, who claimed that litigation in Athens had very little to do with enforcing the law, but was a form of feuding, in which powerful individuals competed with each other for status and prestige (see below). Rhodes noted that litigants in private cases swore to “keep to the point” and not to discuss matters outside the main issue (exo tou pragmatos). One also finds litigants criticizing their opponents for introducing irrelevant material. Though Rhodes’ reaction to D. Cohen’s approach was justified, his essay contained several weaknesses. First, Rhodes never explained how the Athenians knew what the point was, and how they determined what was relevant and what was not. Second, Rhodes never analyzed any specific speeches in detail, and many of his assertions about the contents of speeches are arbitrary. Third, Rhodes never examined how topics like the performance of liturgies or statements about character might be relevant to the legal issues at the trial. Fourth, Rhodes claimed that the Athenians had a looser standard of relevance than modern courts, but never explained how Athenian standards differed from modern standards. The essay contains not a single reference to modern works about relevance either in Common Law or in Civil Law. In an essay published shortly after Rhodes’ essay, Thür commented briefly on the topic of relevance and observed that the charges in the plaint (enklema) submitted to the magistrate such as the thesmothetai indicated what was relevant and what was not.133 If a litigant did not address these charges, the judges would 127 128 129 130 131 132 133

Lipsius 1905–1915. Bonner and Smith 1930–1938. Harrison 1971. MacDowell 1978. Todd 1993. Rhodes 2004. Thür 2007.

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then give a shout (thorubos) to indicate their disapproval. But Thür did not discuss the nature of the plaint, its contents, and the relationship between the plaint and the law. For the most part, Thür relied on the passages collected by Lipsius and Harrison about the plaint. In an essay on relevance, Gagarin followed many of Thür’s points but also failed to connect the contents of the plaint with the substantive aspect of the law.134 In an essay published in 2013, which is summarized in his book The Rule of Law in Action, Harris collected the evidence about the plaint neglected by previous scholars and showed that the accuser had to draw up his charges in the plaint following the language of the substantive part of the law he was following to bring his case.135 If he charged the defendant with theft, he had to state that the defendant had stolen certain items belonging to the accuser. If the accuser charged the defendant with proposing an illegal decree, he had to include the laws the defendant had violated in his plaint. When drawing up his eisangelia against Philocrates, Hyperides closely followed the key substantive terms in the statute about eisangelia (Hyp. Eux. 29–30). This has important implications for the understanding of the way the judges made their decisions. The oath that the judges swore required them to vote according to the laws and decrees of the Athenians, without favor or hostility toward either litigant, with a most honest judgement, and to vote only about the charges in the indictment.136 This meant that the judges had only two options: they could vote to convict because the defendant had violated the law, or they could vote to acquit because the accuser did not prove that the defendant had broken the law. There was no other possibility. When litigants mention the verdicts of the courts, they state that defendants were convicted because they violated a written statute, or were acquitted because the accuser did not prove that they had violated a written law.137 One litigant is reported to have argued that even though the defendant had proposed an illegal decree, the court should still acquit him because the decree was beneficial for the community. But this argument was regarded as shameless, the kind of argument that judges would find offensive because it asked them to violate their duty to vote according to the laws (Dem. 23.100–102). A. Lanni has claimed that only the homicide courts and the so-called “commercial courts” had a stricter and narrower standard of relevance, and that the regular courts had a much broader standard of relevance by allowing litigants to discuss a broad range of issues such as liturgies, and to appeal to pity.138 None 134

Gagarin 2012. Harris 2013b and 2013a, 114–136. 136 On the judicial oath, see Harris 2013, 101–137. 137 For a list of all trials mentioned by litigants, see Harris 2018c. 138 Lanni 2006, passim. Lanni mistakenly believes that the commercial suits (dikai emporikai) were tried in different courts, but these charges were brought in the same courts as other private charges. 135


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of these claims is supported by the evidence from the speeches. First, liturgies are mentioned only when they are somehow relevant to an aspect of the case such a proof of wealth. Litigants occasionally mention liturgies to show that they are good citizens, but these statements are often found in speeches about charges of treason where the defendant uses his patriotism to show that he was unlikely to have committed the crime of which he is accused (e.g. Aeschin. 2.167–170). As D. Konstan has shown, litigants believe that only the innocent deserve pity; those who are guilty do not merit compassion.139 When a defendant asks for pity or a speaker says that a defendant deserves pity, the reason is that he is not guilty of the charges against him. Pity does not operate independently and outside the law; it is the proper emotional reaction for those unjustly accused who have not broken the law. Finally, there is no reason to believe that the homicide courts had a stricter standard of relevance. One finds similar arguments in both kinds of speeches.140 D. Cohen takes a more extreme position and claims that litigation in Athenian courts was a form of feuding. According to D. Cohen, trials in Athens were battles for status and prestige, often between powerful leaders. Instead of addressing the legal issues, litigants boasted about their public service or character and attacked their opponents with insults and personal slander. Basing himself mainly on Demosthenes’ Against Meidias, D. Cohen sees trials as maneuvers in social struggles within the elite, which could be compared to feuding in Medieval Iceland. This attitude to litigation resulted from the allegedly “agonistic” ethic of Athenian culture.141 This approach, though differing from that of Lanni, is vulnerable to many of the same objections and ignores the effect of the plaint and the duties of judges expressed in the judicial oath. Despite occasional insults, litigants for the most part address the legal charges in the plaint. Far from exhibiting an agonistic ethic, litigants portray themselves as cooperative, peaceful and law abiding. As G. Herman observes, The arguments put forward by the litigants show that they hoped, quite consistently, to enlist the dikasts’ support by parading themselves not as vindictive, violent, explosive machos but as moderate citizens. This they did by imputing feuding characteristics to their opponents (hence the abundance 139

Konstan 2000. For detailed criticism of Lanni 2006, see Harris 2009–2010. Lanni 2016 repeats the points made in 2006 without addressing any of the objections to her arguments. 141 D. Cohen 1995. Ober 1989 takes a similar approach to the courts, which he sees as an arena for elite competition and as an institution by which the “mass” controlled the elite. The main problems with this approach are that many Athenian litigants were not members of the elite and that the Athenians saw the courts as an institution enforcing the laws passed in the Assembly. 140

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HARRIS, EDWARD M. of aggressive motives in the speeches) and gentle characteristics (self-restraint, meekness, a low-key sense of honour and a total lack of any explosive or aggressive disposition, for example) to themselves. In other words, they expected to sway their mass audiences by distancing themselves as much as possible from any suggestion that their actions might have been structured by feuding, violence, or vengeance. This must mean that feuding, violence and vengeance were behavioural patterns of which the dikasts, and hence the Athenian civic population in general, strongly disapproved.142

When litigants discuss the reasons why a defendant was convicted, it is because he is guilty of the charges, not because he had less power or prestige than his opponent.143 But the most serious objection to D. Cohen’s approach is that litigation in Classical Athens bears no resemblance to feuding in societies like Medieval Iceland. As W. Miller has shown,144 feuding behavior exhibits certain characteristics: 1. Feud is a [hostile] relationship between two groups. 2. Unlike ad hoc-revenge killing that can be an individual matter, feuding involves groups that can be recruited by any number of principles, among which kinship, vicinage, household, or clientage are most usual. 3. Unlike war, feud does not involve relatively large mobilizations, but only occasional mustering for limited purposes. Violence is controlled; casualties rarely reach double digits in any single encounter. 4. Feud involves collective liability. The target need not be the actual wrongdoer, nor, for that matter, need the vengeance-taker be the person most wronged. 5. A notion of exchange governs the process, a kind of my-turn/yourturn rhythm, with offensive and defensive positions alternating after each confrontation. 6. As a corollary to the preceding item, people keep score. 7. People who feud tend to believe that honor and affronts to it are the prime motivators of hostilities. Cross-culturally, there appears to be a correlation between the feud and a culture of honor. 8. Feud is governed by norms that limit the class of possible expiators and the appropriateness of responses. For instance, most feuding cultures recognize a rough rule of equivalence in riposte, the lex talionis being but one example. 9. There are culturally acceptable means for making temporary or permanent settlements of hostility. 142 143 144

Herman 2000, 18. See Harris forthcoming. Miller 1990, 180–181.


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Virtually none of these features can be found in Athenian litigation.145 In fact, the Athenian courts had several rules that inhibited the development of feuding such as the principle of res iudicata, penalties for frivolous prosecution in public cases, and fines for losing private cases. 146 And out of-court settlements by mediation or private arbitration were viewed a culturally more acceptable than fighting out disputes in court.147 Relying on a passage from Against Androtion (Dem. 22.25–29), R. Osborne has argued that several different procedures were available for each type of offense and that the aim of this plurality of procedures was to enable those less powerful to gain access to the legal system.148 There are several decisive objections to this view. First, the passage from Against Androtion is highly tendentious and should not be taken out of its rhetorical context. The information contained in the passage is not reliable, and the speaker generalizes about the Athenian legal system from a few isolated examples. Second, as Carey has shown, there are major substantive differences between various legal procedures.149 For instance, there were major substantive differences between the private action for theft (dikē klopes) and the procedure of arresting thieves who were clearly guilty and bringing them to the Eleven.150 Third, the way the Athenians made the courts accessible was to make it easy for private citizens to bring charges and to uphold the principle of equality before the law. There have been several studies about specific aspects of Athenian legal procedure. MacDowell has examined the epobolia, the penalty of one-sixth the amount claimed imposed of plaintiffs who lost private cases.151 Pelloso has studied the meaning of the term ephesis and shown that it is not similar to the term “appeal” in modern law, but simply refers to a litigant’s right to reject a legal decision and have the case tried in another venue. L. Rubinstein has studied the role of supporting speakers in Athenian trials.152 The nature of the paragraphe (counter-suit) procedure has also given rise to debate. If an accuser brought a private action that was barred by statute, the defendant could bring a counter suit to bar the action. Paoli noticed that in the 145

For an analysis of several conflicts between individuals that do not conform to this type of behavior, see Harris 2013a, 76–98. Despite the obvious flaws in Cohen’s approach Phillips 2008 also believes that Athenian litigation was a form of feuding. 146 For these and other measures discouraging feuding, see Harris 2103b, 70–76. 147 On the aims of public arbitrators and their implications for the ethos of Athenian litigation, see Harris 2018a. 148 Osborne 1985. 149 Carey 2004. 150 See Harris 2006, 373–390. 151 MacDowell 2008. 152 Rubinstein 2000.

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speeches in the Demosthenic corpus delivered in paragraphe-cases, the litigants discuss not only the procedural issue (was the action barred by statute or not?), but also the substantive issue (was the defendant guilty of the charge and liable for damages?).153 This led Paoli to argue that the court heard both cases at once and decided about the procedural and the substantive issue together. H.-J. Wolff challenged this view and analyzed all the paragraphe-speeches in some detail.154 He drew attention to passages in which the litigant emphasizes the point that the accuser’s suit is not actionable, but he was forced to claim that many passages in these speeches dealt with irrelevant material or deliberately misrepresented the law. Many scholars sided with Wolff, but E. Carawan and M. Talamanca tried to support Paoli’s view.155 In a recent essay, Harris shows that Paoli and Wolff are each partly right and partly wrong.156 Paoli was right that litigants do argue about the merits of the accuser’s suit, but that is because the procedure allowed the defendant to bring a paragraphe because there was no “actionable liability.” This is the meaning of the term symbolaion in the statute about maritime cases, which could be brought only if the defendant had incurred liability either through a delict or a failure to abide by the terms of a contract on a voyage either from or to Athens. The procedure was an attempt to deter frivolous and malicious actions as several litigants state explicitly (Dem. 33.2; 36.2). On the other hand, Wolff was correct to state that the court vote first about whether the suit could go forward. If the court rejected the paragraphe brought by the defendant, the main case was then tried in court with the difference that in the second hearing the court not only heard arguments about liability but also about the amount of the damages to be paid by the defendant. Wolff rightly noted that litigants make a distinction between euthydikia (straight trial without any delay) and the use of the paragraphe. If both the paragraphe and the main case were tried together as Paoli and Carawan believe, this distinction would make no sense. Recent translations such as those of MacDowell need to be completely revised in the light of these findings.157 Hansen has produced a monograph on the procedure of eisangelia, a special procedure for three types of crimes: 1) attempts to overthrow the democracy, 2) treason and betrayal of the armed forces, and 3) bribery of public speakers (Hyp. Eux. 7–9).158 Hansen believes that the procedure had its origins in the fifth century BC, and that trials on this procedure were originally tried in the 153

Paoli 1933. Wolff 1966. 155 Harrison 1971, and Isager and Hansen 1975 side with Wolff. Carawan 2011 and Talamanca 2017 side with Paoli. 156 Harris 2015a. 157 MacDowell 2004a. 158 Hansen 1975. 154


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Assembly before being transferred to the courts around the middle of the fourth century BC. The main problem with Hansen’s analysis is that many of the trials he considers cases of eisangelia do not use this word to describe the procedure and appear rather to be cases brought by ad hoc-procedures in the Assembly (e.g. the trial of the generals in the Assembly in 406 BC: Dem. 19.276–279). A new study of the procedure is a desideratum. Hansen has also produced a study of the various procedures used against atimoi, kakourgoi (criminals), and exiles.159 Much of the study, however, relies on the document inserted into the text of Andocides 1.77–79, which has now been shown to be a forgery.160 Hansen also believes that atimia originally meant “outlawry” and gave citizens the right to kill the atimos with impunity, but this view has rightly been criticized and rejected.161 Finally, Hansen’s analysis of Aeschin. 1.90–92, which is key to understanding the legal category of kakourgoi, is very problematic.162 There has been some debate about the role of witnesses in an Athenian court. The traditional view was that witnesses were expected to provide evidence about key facts to the judges, but S. C. Todd questioned this view and argued that the main role of witnesses was to show that the litigant who presented them enjoyed greater social backing in the community.163 S. Humphreys claimed that the evidence that the witnesses provided was less important than their identity and social status.164 In an extensive critique of both these views, Rubinstein drew attention to the fact that in roughly half of passages in which witnesses are called to testify, the litigant does not identify them by name or discuss their social status or political activity. 165 When litigants explain why a witness is called, they often say that they have summoned the witness because he knows the facts and was present at key events relevant to the case. Finally, the existence of a private action against false testimony (dikē pseudomartyrion) shows that the laws expected witnesses to tell the truth, considered that their main duty and penalized witnesses when they did nor perform their duty. Carey has written on the procedure of issuing summons to witnesses.166 Thür has studied the torture of slaves for evidence in Athenian legal procedure and argued that it was mainly a rhetorical ploy and was not used to settle disputes.167 Mirhady objected to this 159 160 161 162 163 164 165 166 167

Hansen 1976. See Canevaro and Harris 2016–2017, 10–33. Joyce 2018. See Harris 2006, 291–293 with endorsements at 293–295. Todd 1990. Humphreys 2007. Rubinstein 2005. Carey 1995. Thür 1977.

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approach and drew attention to evidence showing that the torture of slaves did actually occur and could be used to end a dispute.168 Litigants might also use private arbitrators to mediate or make a decision in their disputes. These decisions were considered legally binding. In the fourth century BC, if someone attempted to bring a private suit in a case already resolved by arbitration, his opponent could bring a paragraphe to prevent the case from going forward. Around 400 BC the Athenians instituted public arbitrators, and certain cases had to go first before these public arbitrators, who would attempt to mediate the dispute or give a judgment in the case. If both litigants accepted the mediation or the judgment, the case would be settled, but if either litigant did not accept the settlement or decision, the evidence from the arbitration would be placed in an echinos, and the case would be presented to a court. At the trial no new evidence could be presented ([Aristot.] Ath. Pol. 53.1– 7). There have been studies of private and public arbitration by A. Steinwenter, H. C. Harrell, V. Hunter, and A. Cozzo. 169 Harris compares the advantages and disadvantages of private arbitration and trials in court, and shows how the institution of public arbitrators was an attempt to keep the advantages of private arbitration while avoiding the disadvantages.170 On legal procedures in communities outside Athens, there is a valuable study by A. Cassayre.171 Homicide Law In Classical Athens, homicide was considered the most serious crime. In Against Leptines, Demosthenes (20.157) says that the most important goal of the laws is to prevent people from killing each other. Homicide was prosecuted as a private offense (dikē) by the relatives of the deceased, but the procedures for homicide differed from those in other private cases: 1) the accuser had to swear a solemn oath about the truth of his charges calling down destruction on himself for a false accusation, 2) the basileus who accepted the charge banned the defendant from the agora and religious ceremonies, 3) the trial was preceded by three hearings (prodikasiai), 4) cases were tried by special courts, 5) trials were held in the open air, 6) the successful accuser swore an oath asserting the justice of his charges. There are several speeches about homicide in the works of the Attic orators: On the Murder of Eratosthenes, Against Eratosthenes, and Against Agoratus 168

Mirhady 1996. Steinwenter 1925, Harrell 1936, Hunter 1994, 55–62 and Cozzo 2014. On the account of arbitration in Scafuro 1997, see MacDowell 1998 and Harris 2018a, 214, n. 6. 170 Harris 2018a. 171 Cassayre 2010. 169


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of Lysias (1, 12, 13) and three speeches by Antiphon (1, 5, 6). The Tetralogies attributed to Antiphon, but probably written by another author, also deal with hypothetical cases of homicide.172 One of the best sources for homicide law is Demosthenes’ speech Against Aristocrates, which contains a long section about the laws of Draco and the different homicide courts (Dem. 23.22–84).173 The basic features of homicide law are clear. First, there was a charge of intentional homicide, which was tried at the Areopagus ([Aristot.] Ath. Pol. 57.3; Dem. 23.22–23). One still finds the translation “homicide with premeditation” for the term phonos ek pronoias, but several passages make it clear that this covered all cases in which the defendant acted intentionally, not just those in which he planned ahead.174 The penalty was death if the defendant remained in Athens for the verdict. If the defendant left before the verdict, he was condemned to permanent exile and the confiscation of his property (Dem. 21.43). If the defendant committed involuntary homicide, that is, he was responsible for the death of the victim, which however occurred against his will, he was tried at the Palladion ([Aristot.] Ath. Pol. 57.3; Dem. 23.71–73). If he was convicted, he would go into exile until he was pardoned by the relatives (Dem. 37.59). There were complex rules governing the rights of the man convicted on this charge while in exile. If the person accused of homicide admitted that he had killed but claimed that he did so justly or according to the laws, he was tried at the Delphinion ([Aristot.] Ath. Pol. 57.3; Dem. 23.74–75). There were also courts in Phreatto and at the Prytaneion for special cases of homicide. Because of its importance and the numerous sources, homicide law has attracted much attention from legal historians; since 1963, there have been at least six books devoted to the topic.175 The first book to attempt to collect the evidence for this offense was MacDowell. The book still retains its value as a collection of sources, but several of MacDowell’s views are no longer accepted. More seriously, MacDowell did not place the laws and procedures for homicide within the broader context of the nature of the polis and its political institutions. MacDowell starts with an analysis of the purpose of the laws about homicide and weighs the role of vengeance, deterrent and religious pollution (1–8; cf. 141–150). He next studies the role of the family but argued that others besides the relatives of the victim might bring a charge of murder (8–32) and the role of the basileus, the official who received charges of murder (33–38), the different courts for homicide (39–89), the use of oaths witnesses penalties and pardon and 172

There is an edition of the speeches attributed to Antiphon with commentary in Gagarin 1997 with discussion of the authorship of the Tetralogies. 173 For translation and notes, see Harris 2018c, 35–60. 174 See Harris 2013, 182–189. The term is mistranslated by Stroud 1978 and Wallace 1989, 125. 175 MacDowell 1963; Tulin 1996; Carawan 1998; Phillips 2008; Eck 2012; Pepe 2012.

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alternative procedures for homicide (130–140). MacDowell’s view that others than relatives could bring a private charge of homicide was rejected in a detailed study by A. Tulin, whose analysis MacDowell accepted.176 In 2001 Harris, drawing on work by Gagarin, showed that the verb kteinein (“to kill”) included both cases where the offender killed with his own hand or by direct causality and also cases in which the offender caused death indirectly, for instance, by ordering another person to kill.177 The private charge of planning (dikē bouleuseos) was brought in cases of attempted homicide, not for cases where the offender caused death by plotting, as MacDowell believed (60–69). Finally, MacDowell believed that beliefs about pollution did not have much influence on the laws about homicide. In a general study of ideas about pollution, R. Parker took a similar view and argued that beliefs about pollution for homicide originated in the Homeric period when there were no strong political and legal institutions, but faded as the state and the courts grew strong and took over the role of policing murder.178 This approach has much in common with the views of K. Latte, who argued that religious rituals played a large role in legal procedure when central authority was weak.179 In a study published in 2015, Harris showed that there is no evidence for pollution for homicide in the Iliad and the Odyssey.180 For instance, Orestes who is considered polluted in Attic tragedy, is never considered polluted in Homeric epic. Far from weakening, the view that homicide caused pollution remained strong in the fourth century and later. A recently published inscription from Thyateira in Asia Minor shows that concerns about pollution caused by homicide remained strong down to the second century BC.181 Beliefs about pollution for homicide expressed the community’s views about the gravity of the offence, which posed a unique threat to the state’s attempt to monopolize the use of deadly force.182 One should not consider pollution some irrational force existing outside legal institutions; the rules about pollution were enacted by the institutions of the polis and attempted to harness the forces of religion to deter violence and encourage all citizens to enforce the law and uphold the authority of the state. MacDowell did not discuss the inscription recording the republication of Draco’s law about homicide in 409/408 BC. The inscription was found in the 176

Tulin 1996 with MacDowell 1997. Harris 2001 = Harris 2006, 391–404. Additional evidence for the view that attempted homicide could also be prosecuted and caused pollution, can be found at Liv. 45.5. 178 Parker 1983, 104–143. Eck 2012 follows Parker. 179 Latte 1920. Parker 2005, 68–79 later criticized Latte’s views for their evolutionist assumptions. 180 See Harris 2015b which has been endorsed by Todd 2016 and Phillips 2016. 181 Malay and Petzl 2017. For more evidence against Parker’s view, see Harris forthcoming. 182 For the state and its powers in Classical Athens, see Harris 2013, 21–59. 177


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middle of the nineteenth century, and U. Köhler published a text with bold restorations in the parts where no letters could be read. 183 R. S. Stroud reexamined the stone and in 1968 published a new text of the law, which however accepts most of Köhler’s supplements for the gaps in the inscription but claimed to find new letters confirming Köhler’s readings.184 The main puzzling feature of the inscription is that it does not appear to include any provision about intentional homicide. Stroud argued that these provisions were recorded on the lower part of the stone where virtually all the letters have been erased. In a study published in 1981, Gagarin argued that Draco’s law made no distinction between the penalties for intentional and involuntary homicide.185 In both cases, the punishment was exile. Gagarin followed Köhler’s restoration of the crucial line 11, but argued that the words kai ean did not mean “and if he kills intentionally” but “even if he kills intentionally.” Although Carawan followed Gagarin’s view, this interpretation has been widely rejected, yet no scholar has yet offered a satisfactory explanation for the fact the law starts with the word kai (“and”). Both Stroud and Gagarin believed that lines 33–35 contained a provision exonerating a defendant who had killed after the victim had “started unjust blows.”186 In a recent study, Harris reexamined the stone and found that this phrase cannot be read in the letters that are preserved on the stone.187 The phrase was mistakenly restored from Antiphon (4.2.1–2). In fact, Demosthenes (23.50) clearly implies that this phrase was not to be found in the laws about homicide, but in the laws about assault (aikeia). In 1998, Carawan published a study, which took an evolutionary view of homicide law in Archaic and Classical Athens. He saw procedures for homicide developing from a primitive stage in which “the plaintiff’s subjective grievance and what they intend to do about it are of more immediate importance than the objective reality of what the defendant actually did” (extrinsic formal rationalism) to a stage in which “the questions of legal responsibility that statute law defined were ordinarily submitted to citizen juries to decide for the community the objective reality of who had done wrong.”188 He further claims that earlier forms of proofs such as the use of oaths and the torture of slaves persisted in homicide procedure when they were becoming outmoded in other forms of procedure.189 Carawan’s evolutionary schema is hard to reconcile with the evidence of the speeches about homicide and other offenses: the use of 183 184 185 186 187 188 189

Köhler 1867. Stroud 1968. Gagarin 1981. Stroud 1968; Gagarin 1981. Harris 2016b. Carawan 1998, 26. Ibid., 27.

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oaths and the torture of slaves can be found in speeches about murder and other charges such as false testimony (e.g. Dem. 47). In his analyses of Antiphon 1 and Antiphon 6, Carawan also relies on the ideas of Thür about the prominence of oaths and oath challenges in early legal procedure, which have not gained wide acceptance and have encountered much criticism. He also accepts Parker’s views about the fading of fears about pollution in the Classical period and does not take into account the evidence showing that these fears persisted into the Hellenistic period. This undermines his evolutionary approach. The monograph of D. D. Phillips interprets homicide in Athens in terms of the concept of feuding (on the absence of feuding in Athens, see the section on Legal Procedure and Litigation).190 Although there is little evidence from other communities, it appears that many of the basic principles in the Athenian laws about homicide were shared by other Greeks. In a speech of Lysias (1.1), the speaker states that all Greeks whether they live in democratic or oligarchic communities recognize the right of men to kill someone who seduces their wives or young daughters (moichos). Many communities also permitted citizens to kill a tyrant with impunity. 191 The principle that the person who attempted to commit murder or commanded someone else to commit murder was also guilty of homicide, can also be seen in an incident that took place on the island of Samothrace in the second century BC when Evander was banned from the sanctuary because he was polluted from an attempt to kill King Eumenes (Liv. 45.5). An anecdote about a statue of the athlete Theogenes on Thasos killing a man refers to the law of Draco, which indicates that the laws of Athens about homicide were followed in other communities (Paus. 6.11.6). And a decree of Alexander the Great reveals that all Greeks considered murderers to be ritually polluted (Diod. Sic. 17.109.1; 18.8.4). This is another case in which the laws of the Greek city-states exhibited many similarities, which makes it possible to speak of the “unity of Greek Law.” Law and Religion Greek Religion is a topic of perennial fascination among Classical scholars, but it has not attracted much attention from legal historians until recently. In the past, it was fashionable to believe that the laws and legal procedures of early Greece were rooted in religious rituals such as the oath-challenge and the ordeal, but that 190

Phillips 2008. Teegarden 2014 collects these laws, but does not see how there were laws against tyranny earlier than 410 BC. He also mistakenly believes that the document at Andoc. 1.96–98 is a genuine document and can be dated to 409/408 BC, but see Harris 2013–2104, which shows that this document is a forgery and the decree of Demophantos should be dated to after the Thirty, as stated by Lycurgus’ Against Leocrates 124. 191


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the law gradually freed itself from its religious shackles and became “rational” by the Classical period when statutes drew their legitimacy from popular sovereignty and not from religious authority. In a well-known essay, L. Gernet attempted to trace the survivals of “pre-law” in later legal procedures,192 and M. Ostwald, who drew on the work of R. Hirzel, claimed to see a gradual transition from thesmos, law grounded in traditional authority and imposed from above, to nomos, law based on the sovereignty of the people.193 The problem with Ostwald’s view is that the two words thesmos and nomos are used interchangeably, and there is no clear shift from one term to the other.194 The work of Parker on pollution for homicide is influenced by these ideas. Parker believes that the belief that murder created pollution, which might threaten the entire community originated in the Homeric period when central authority was weak, and faded when the polis grew strong, but, as we saw in the section on Homicide, this view clashes with the evidence of our sources. The study of law and religion has been greatly enriched by the publication of four volumes of so-called leges sacrae by F. Sokolowski and E. Lupu.195 The volumes of Sokolowski were based on collections by J. Prott and L. Ziehen, which were begun but never completed. The first volume by Sokolowski was intended as a supplement to the work of Prott and Ziehen, but Sokolowski then re-edited those found in Prott and Ziehen. Recently, Lupu has collected the leges sacrae published since the volumes of Sokolowski. Several of the texts in these collections as well as some other texts not included by Sokolowski and Lupu are now available online at the valuable website Corpus of Greek Ritual Norms with Greek texts, translations into English and French and brief commentaries in English. The collection is, however, limited mainly to texts about sacrifice and purification. The term leges sacrae has recently drawn criticism for several reasons. In 2004, Parker observed that no one had ever attempted to analyze the term and that scholars “often behave as if the texts assembled in Sokolowski are sacred laws, and sacred laws are the texts assembled in Sokolowski.”196 Parker examined the regulations about religious matters found in laws and decrees and drew attention to the fact that they were enacted in most Greek city-states by the Council and the Assembly, that is, the same bodies that enacted laws and decrees about non-religious matters, but this accounted for only a portion of the texts in the four collections. M. Carbon and V. Pirenne-Delforge have also drawn 192 193 194 195 196

Gernet 1948–1949 = Gernet 1968, 7–119. Ostwald 1969; Hirzel 1907. Hölkeskamp 2002. Sokolowski 1955, 1962 and 1969; Lupu 2005. Parker 2004, 58.

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attention to the problems encountered when using the term “sacred laws” and prefer to speak of “ritual norms.”197 S. Georgoudi has made a similar point about the inadequacy of the term “sacred laws.”198 In a valuable preface to his collection of what he calls “sacred laws,” Lupu analyzes the different aspects of religious practices that were regulated by the city-state, subdivisions of the polis and by private associations. But he does not offer a typology of these rules or analyze the different authorities who issued and enforced them. Harris has now proposed a typology for classifying the texts in the four volumes of so-called leges sacrae according to the authority that enacted and enforced the regulation and for distinguishing laws and decrees about sacred matters from other types of documents such as calendars, contracts, and accounts.199 He has also made a distinction between the standard forms of laws and decrees of the state and the by-laws of private associations and “signs,” that is, notices placed in shrines with brief orders commanding certain groups of people to stay out or to enter in a certain way or instructing worshippers what offerings to make or not to make. At the highest level of authority there are regulations created by federal leagues or international bodies like the Delphic Amphictyony or other Panhellenic sanctuaries. Next are regulations enacted by the city-state. This is a rather large category and includes regulations about many different matters such as public priesthoods, calendars for public cults, the building and maintenance of public shrines, and rules about public festivals such as the Dionysia at Athens. Beneath this level are the regulations enacted by the subdivisions of the city-state such as tribes (phylai) and demes. There are also regulations for private associations, which often imitate the institutions of the city-state and are subject to the laws of the community, but operate independently, formulate their own rules, make decisions about accepting new members and excluding those who disobey, and can impose fines for infractions of their rules. These private associations can be based on cults established by a particular family such as the association of Poseidonius (LSAM no. 72 = Syll.3 1044) and Diomedon (LSCG no. 177). With the help of Carbon, Harris has now classified the texts in Sokolowski’s three volumes.200 Rituals such as oaths and curses figure prominently in some laws, which led Latte to argue that these religious elements were relics preserved from an earlier period when legal and political institutions were weak and when the 197 198 199 200

Carbon and Pirenne-Delforge 2012. Georgoudi 2010. Harris 2015c. These are available at the Kernos website.


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Greeks had to rely on the gods to enforce their social rules. As Rubinstein has shown, however, the Greeks continued to include curses against offenders alongside penalties to be imposed by human authorities right down through the Hellenistic period. A project at Nottingham has recently compiled a database for oaths and published several volumes about the role of oaths in the Greek world. A. Sommerstein and A. Bayliss discuss the role of oaths in court in their synthesis about oaths.201 Oaths could take various forms. Officials might swear an oath to perform their duties according to the law (e.g. [Aristot.] Ath. Pol. 55.5). Judges at Gortyn and arbitrators in Athens would swear an oath before rendering judgment. Litigants might also challenge opponents in court to swear an oath about a certain fact relevant to the case or swear an oath before making a statement to enhance their credibility. One topic in religion that has drawn the interest of legal historians is the crime of impiety (asebeia). The most famous cases of impiety in Athens were the trials for those who desecrated the Herms and parodied the Mysteries in 415 BC (Thuc. 6.28–29, 53, 60–61; Andocides’ On the Mysteries), the trial of Socrates for impiety (Plato’s Apology of Socrates) and the prosecution of Andocides for not respecting the ban on participation in the Mysteries, both in 400/399 BC (Andocides’ On the Mysteries). There are also several trials of intellectuals for impiety in the fifth century BC, but these come from late sources, and the information about them may not be reliable.202 D. Cohen has argued that there was no definition of the term “impiety,” and this meant that the courts would interpret the term in different ways at different times and not judge cases of impiety in any consistent way.203 Yet the absence of any definition of the offense in the statute about impiety need not imply that the term might mean anything litigants would want it to mean. The term “illegal” in the statute about the public procedure against illegal decrees also did not define the term “illegal,” but this was not necessary because what was illegal was specified by individual statutes. For instance, when Aeschines brought an action for proposing an illegal decree against Ctesiphon, he charged that Ctesiphon had violated three specific laws about decrees (Aeschin. 3.9–50). When defendants were charged with impiety, their accusers cited specific laws. For example, the orator Apollodorus reports that the hierophant Archias was punished because “he had sacrificed on the altar in the courtyard at Eleusis a victim brought by the courtesan Sinope when it was illegal to sacrifice on that day and when not he, but the priestess had the right to perform the sacrifice” ([Dem.] 59.116–117). There is no reason to believe 201 202 203

Sommerstein and Torrance 2014. See also the essays in Sommerstein and Bayliss 2012. On these trials, see Filonik 2013 with references to earlier scholarship. D. Cohen 1991, 203–217.

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that litigants and the courts could make the term “impiety” mean anything they wanted it to mean. At Athens, there was also a special procedure for passing a motion of censure against those who committed an offense against the festival of Dionysus or the Eleusinian Mysteries. At a meeting of the Assembly held after each festival, any citizen could charge a participant with having “wronged” the festival of the god (Dem. 21.8–11).204 One offense was to seize defaulting debtors during the festival or to use violence to disrupt the peaceful atmosphere of the rites (Dem. 21.175–180). If the Assembly agreed with the accuser, it would pass a motion of censure (Dem. 21.1–4; Aeschin. 3.52). There was no other penalty, but the accuser could bring another, separate charge against the offender as Demosthenes did against Meidias when he charged him with hybris.205 One ritual that became a legal procedure and included legal elements was supplication (hikesia). The ritual of supplication contained four basic steps, the first three performed by the suppliant, and the fourth being the decision made by the person supplicated or supplicandus. In the first step the suppliant approached the person or group whom he or she wanted to supplicate. The person or group would naturally be those who were in a position to grant the request. In the second step, the suppliant would perform a gesture to indicate that he or she was making a solemn request. When someone supplicated a private individual, he or she might grasp the knees of the supplicandus. J. Gould thought that grasping the knees was a quasi-magical gesture, which had the power to compel the supplicandus to grant the request,206 but as Naiden has shown, several suppliants who make this gesture are actually rejected, and their supplicandi suffer no harm as a result (e.g. Iliad 6.37–67).207 Alternatively, the suppliant might carry a bough (Iliad 1.14). When suppliants wished to appeal to an entire community, they would go to a public altar to convey their intention (Hdt. 6.108.4). In the third phase of the ritual, suppliants would present their requests and use various arguments to persuade the supplicandus. These arguments might include legal claims. In the fourth step, the supplicandus would make his decision. He would have to weigh the arguments of the suppliant and determine if the request was justified. If he found the request persuasive he would grant the request and invite the suppliant to rise (Iliad 24.515–516). If he rejected the request, he might thrust the suppliant away or avert his gaze. The Athenians formalized the ritual for public supplication and placed supplication on the agenda of the Assembly ([Aristot.] Ath. Pol. 43.6). An 204 205 206 207

The documents at Dem. 21.8 and 10 are forgeries. See Harris in Canevaro 2013, 211–223. On the probole, see Harris 2008, 79–81 with references to earlier discussions. Gould 1973. Naiden 2006.


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incident described in Demosthenes’ Against Timocrates (24.11–12) illustrates how the procedure worked. During a diplomatic mission, two Athenian trierarchs seized goods belonging to people of Naucratis and brought them back to Athens. The owners of the goods came to Athens and supplicated the Assembly with a request to recover their property. The Assembly however declined their request on the grounds that the property owned by foreign enemies but seized by Athenians belonged to the state (see Pritchett 1971, 85–92). Even though the procedure was grounded in religious ritual, the decision about the request was made on legal grounds. In 333/332 BC, a group of merchants from Cition on Cyprus made a supplication to the Assembly to establish a shrine to Aphrodite, the patron goddess of the island (IG II3 337). The politician Lycurgus moved that because the merchants had made a legitimate supplication (ennoma hiketeuein), their request should be granted, and the Assembly voted to grant them the right to acquire land (normally forbidden to foreigners except for those who obtained a special grant of enktesis – see Pecirka 1966). In contrast to the request of the merchants from Naucratis, the request of the merchants from Cition had legal justification and was therefore granted (for other cases, see IG II3 302 (346/345 BC); 418 (before 336/335 BC)). What is interesting in supplication is the combination of religious ritual and legal rules. One cannot separate the two and assign them to different stages of social evolution. On the contrary, both exist side by side without any visible conflict. The organization of international shrines and festivals often involved legal arrangements between communities. Before Panhellenic festivals, the host city would declare a truce and conclude individual truces with all cities sharing in the event so that participants could travel safely to Olympia, Delphi, Nemea, the Isthmus and Eleusis (e.g. IG I3 6 = LSS 3 = IEleusis 19). The Council of Amphictyons who controlled the sanctuary of Apollo at Delphi had extensive legal powers to keep order and could impose penalties on both individuals and entire communities. A copy of an Amphictyonic law dated before 380/379 BC indicated the wide range of the council’s jurisdiction (IG II2 1126 = LSCG no. 78 = Syll.3 145). The law sets down rules about sacrificial victims, (ll. 13–14), buildings in the sanctuary (ll. 21–26), repairs (ll. 34–40), roads and bridges (ll. 40–43), and the length of the sacred truce (ll. 43–49). If a hieromnemon, an official representative from a city belonging the the Amphictyony, does not contribute to repairs, his city can be banned from the sanctuary (ll. 39–40). The same penalty is imposed on those city-states which do not accept the sacred truce (ll. 47–48). One penalty clause appears to call for the Amphictyons to declare war on a community that violates rules about sacred land (ll. 19–21). This penalty was taken very seriously: in 340/339 BC, Aeschines (3.118–21)

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accused the Amphissans of cultivating sacred land, which led to a declaration of war against the Amphissans (Aeschin. 3.122–129). The Greeks also took violations of the sacred truce for the Olympic games very seriously. When the Spartans were accused of violating the truce in 420 BC, they were banned from the games. When one of their citizens attempted to participate in the games, he was severely beaten (Thuc. 5.49.1–50; cf. Xen. Hell. 3.2.21; Paus. 5.2.2). When the people of Trichonium arrested the men sent to announce the truce for the Eleusinian Mysteries in 367/366, the Athenians sent an official embassy to protest (SEG XXXII 57). Certain sanctuaries were granted the right of asylia, which granted them special protection in international law.208 Sanctuaries also issued special rules for theoroi, officials appointed by communities to represent them at international festivals.209 The rules for festivals could be extensive and detailed: the law about the Mysteries at Andania is 194 lines long and contains many clauses with references to several officials and public bodies.210 Law and Economy The ancient Greeks were well aware of the connection between the rule of law and economic growth. Writing in the late fifth century or fourth century BC, the author of a work entitled the Anonymous Iamblichi noted: Trust (or credit) is the first advantage gained from law and order (eunomia), which brings the greatest advantages to all men and is responsible for the greatest benefits. For as a result of this goods come into common use, and thus even if there is a little, these goods are sufficient because they are circulating; without this (sc. law and order) not even if there were many goods, would they be sufficient. Men’s fortunes in wealth and in life, whether they be good or bad, are governed to their greatest advantage as a result of law and order; the former can be enjoyed in safety and without threat of attack, while the unfortunate are helped by the fortunate because of the interaction and trust that arises from law and order. (...) The following are the evils that come from lawlessness: first, men lack the security to pursue their work and devote themselves to what is most unpleasant, intrigues and not work, and they hoard up their goods and do not share them through distrust and lack of contact, and in this way goods grow scarce even if they are plentiful. (trans. Harris)

208 209 210

On asylia, see Rigsby 1996. On theoroi, see Perlman 2000 and Rutherford 2013. See Deshours 2006 and Gawlinski 2012.


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A litigant speaking before an Athenian court around 322 BC also saw the connection between the enforcement of contracts and the volume of trade (Dem. 56.48; cf. 34.50–52): Do not ignore the fact that by deciding this case you are passing a law for the entire port of Athens. Many of the men who have chosen to engage in overseas trade are watching to see how you decide this case. If you think that written contracts and agreements between partners should be binding and if you will not take the side of those who break them, those involved in lending will more readily makes their assets available. As a result, the port will thrive, and you will benefit.

The study of the economy of Ancient Greece has recently undergone a major transformation, and this has had implications for the understanding of the laws of the Greek poleis.211 The debate about the ancient economy goes back to the late nineteenth century when K. Bücher and E. Meyer clashed. Bücher believed that the economy of ancient Greece was based mostly on the household, and there was little exchange between households.212 As a result, there was little commerce between communities, and the majority of the population existed at subsistence level. This drew a sharp response from Meyer, who pointed to the evidence for trade and commerce, to large issues of coinage, to banks, and to extensive trade between cities.213 M. Weber made several comments on the ancient economy and modified the very pessimistic view of Bücher, but laid much stress on the obstacles to the development of capitalism in the ancient world.214 Weber argued that the main aim of households was self-sufficiency, that most loans were for consumption and not for production, and that urban settlements were primarily consumer-cities, which drew rents from the countryside but did not contain much craft production aside from luxury products for the elite. Weber drew a stark contrast between the citizen of the ancient city, who aimed at being a homo politicus, who spent his time as an official, sitting in the Assembly or serving as a soldier, with the citizen of the medieval city, who aimed at being a homo oeconomicus. Weber’s views were incorporated into the work Staat und Handel im alten Griechenland published in 1928 by J. Hasebroek and translated into English as Trade and Politics in Ancient Greece in 1933.215 Hasebroek also believed that the average citizen of the Greek city was concerned with politics 211

See the survey by Günther et al. 2017. Bücher 1893. 213 Meyer 1895 = Meyer 1910, 79–168. 214 Weber 1976. 215 Hasebroek 1928 and 1933. This book was based on earlier studies on trade and banking in 1920 and 1923. 212

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and left trade and commerce in the hands of metics and foreigners because these activities were viewed as socially inferior. The governments of the city-states were only interested in securing a supply of imports and showed no interest in exports. The overriding objective was to achieve self-sufficiency, not integration into wider trade networks. This approach to the ancient Greek economy was developed by M. I. Finley first in his Columbia dissertation of 1951, published as Studies in Land and Credit, then more extensively in his Sather Lectures, which were published as The Ancient Economy in 1973.216 Legal issues played an important role in the former work, which was a study of real security based on a collection of horoi published up to 1951. The horoi are stones that were roughly worked and carry inscriptions indicating that the property on which they are placed has been pledged as security for a loan. Finley’s general analysis of the horoi was built on three main assumptions. First, Finley thought that there were three basic forms of real security in ancient Athens (hypotheke, prasis epi lysei, and apotimema). In this regard Finley agreed with J. V. A. Fine and previous scholars though (as we will see) differing with him on points of detail. Second, Finley believed that there were no property records in Classical and Hellenistic Athens. Third, Finley thought that there were no extensive markets in Classical Athens and that as a result the Athenians often did not think in market terms. These basic assumptions influenced several of his main conclusions. First, Finley argued that real security in Athenian Law in particular and Greek law in general was substitutive and not collateral. In the substitutive form of security, the creditor accepts the property as a substitute for the loan if the debtor defaults. The creditor does not view the property pledged as security as a commodity that can be exchanged for cash in the market to pay off the debt. He is not interested in the cash value of the security but in the security as property for his own use. This has two important implications. On the one hand, the borrower cannot make further loans on the security after pledging it to one creditor. On the other, if there is a difference between the market value of the security and the amount of the loan, the borrower does not have a right to the excess, and the creditor cannot demand the payment of any deficit. In more general terms, it means that the creditor does not view the security as a commodity, only as property capable of being transferred to his ownership. Second, Finley thought that the practice of real security was confined mainly to the wealthy and did not extend to the other members of society. Third, because Finley believed the use of real security was restricted primarily to the upper class, he claimed that there were no laws regulating the practice of real security. Fourth, according to Finley most loans were for the purposes 216

Finley 1952 and 1973.


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of consumption, not for productive uses. In the years since the publication of Studies in Land and Credit, each of these views has been refuted in detail.217 Finley presented a general approach to the ancient economy in his The Ancient Economy, but the most striking feature of this work was his avoidance of the term “market.” His justification for this is presented at the end of the first chapter where he claims that there was not enough specialization of labor to support the growth of inter-regional markets.218 As a result, Finley asserted (mostly without analysis of the evidence) that most exchanges of goods and services moved along channels shaped by social and political relationships such as family, clientage, patronage, and tribute. It should come as no surprise that one cannot find any discussion of the terms “contract” or “marketplaces.” In fact, one cannot find the terms in the index to the book. Some of the themes in these two works were taken up by Finley’s student P. Millett, who in his study of Lending and Borrowing in Ancient Athens claimed that loans were primarily made to friends, relatives and neighbors according to the ethics of philia (friendship), which placed the emphasis on reciprocity and not on gain.219 Like Marxism under Lenin and Stalin, the main tenets of Finley’s approach hardened into a rigid dogma, which was summarized by K. Hopkins in a volume on Trade in the Ancient World. The main tenets were that most households aimed at just producing for their own needs, that towns were the residence of large landowners, centers of government and religious worship, but craft activities catered mainly to the luxury tastes of the elite, and that there was little interregional trade. Towns did not specialize in the manufacture of cheaper goods, but only luxury products.220 These dogmas were repeated almost without any revision in the introduction to The Cambridge Economic History of the Greco-Roman World.221 In the section, in general, the essays in the volume have almost nothing to say about property rights and the enforcement of contracts (there is only one entry for contracts in the index), and the discussion of market regulations is very brief. E. E. Cohen attempted to challenge some of Finley’s views in his Athenian Economy and Society: A Banking Perspective published in 1992.222 The main critique of this work was that Finley had underestimated the profit motive in the conduct of individuals. But E. E. Cohen took an extreme position by claiming that women and slaves played a greater role in the economy than previous 217 218 219 220 221 222

For analysis of the flaws in Finley’s analysis with references to recent work, see Harris 2013. For analysis, critique and evidence against this view, see Harris and Lewis 2016, 3–5. Millett 1991. Hopkins 1983, xi–xii. Scheidel, Morris and Saller 2007. E. E. Cohen 1992.

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scholars thought, that much of the economy was conducted in secret because the wealthy found the public burdens of performing liturgies and financing the fleet too burdensome. As a result, they hid their assets in banks, which in turn made loans to merchants who carried on trade. As R. Bogaert commented in his review, the study is “fondée principalement sur une interprétation faussée des sources.”223 E. E. Cohen never proves that the wealthy found their duties so burdensome that they hid their money in banks. Further, he underestimates the philotimia (desire for reputation) of the wealthy who desired public honors and were willing to spend lavishly to win golden opinions of themselves. In this regard, E. E. Cohen appears to have been unaware of the valuable work of P. Gauthier on public benefactors.224 There is also no evidence for banks financing maritime loans, and the loans in the bank of Pasion were secured by land in Attica (Dem. 36.6), not ships sailing abroad (which was a very risky investment and thus inappropriate for an institution that needed to win trust for reliability). The maritime loans mentioned in the private speeches of the Demosthenic corpus are all made by private individuals, not by banks (Dem. 32, 33, 34, 35, 56). Finally, E. E. Cohen does not locate his analysis in the wider context of the development of markets in goods and services and within the legal framework of civic institutions designed to facilitate and promote exchange. More serious challenges to Finley’s pessimistic approach to the ancient economy were presented by A. Bresson and Harris. In 1987, Bresson published an essay on “Aristotle and Foreign Trade.” He showed that in all passages discussing trade, Greek authors link exports and imports and see them as mutually reinforcing; in short, there are no imports without exports. No Greek author asserts that a city-state should only secure a supply of necessary imports and attempt to restrict exports except in the special case of grain. Bresson then examined laws and regulations about trade and found that they show an equal concern for imports and exports. In his collection of essays entititled La cité marchande, Bresson reprinted this study and several other questioning key tenets of the “New Orthodoxy.” Shortly after this in 2002, Harris published an essay on the specialization of labor in Classical Athens.225 Most previous studies had assumed that there was little specialization of labor and that most occupations were agricultural. Harris compiled a list of over 170 occupations in Classical period but also observed that while there was much horizontal specialization (the number of different skills needed to produce goods and services), there was very little vertical specialization, which meant that the production of very few goods 223 224 225

Bogaert 1995. Gauthier 1985. Harris 2002.


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required more than a few workers. Lewis has now increased this number to around two hundred.226 The low level of technology meant that workshops were generally small. This had several implications for the development of commercial law. First, the number of occupations fostered the growth of market relations and led to the creation of permanent markets, which were so large that they had different sections for different types of goods and services. This generated a need for different types of contracts and market regulations (for both, see below). On the other hand, because the size of workshops was small, there was no need for the development of the contract of agency and the concept of corporation.227 To some extent, slaves could act as agents for their masters and make contracts on their behalf. The absence of the notion of corporation created a problem in maritime contracts, but this was solved by creating a special type of maritime contract.228 Bresson published a comprehensive study in two volumes of the economy of the Greek city-states in the Classical and Hellenistic periods in 2007 and 2008. An English translation was published in 2015. This is a very rich work, which would be hard to summarize in a short space. One of the most important aspects of the work is that it provides a systematic approach to the ancient Greek economy which emphasizes the role of markets and inter-regional trade and enables the scholars to move beyond the static (if not stagnant) approach of Finley and his followers.229 Bresson draws on the insights of New Institutional Economics pioneered by scholars like D. North and places economic activities within their legal framework. One should also note the work of P. Acton, who shows among other things that the small size of workshops in Athens was economically rational and was not dictated by social ideals (pace Finley).230 In an economy with a low level of technology, there was little scope for economies of scale. The collection The Ancient Greek Economy contains an introduction and fifteen different studies examining the different kinds of commodities, types of markets and institutional frameworks required to promote the expansion of markets, which was one of the main motors of economic growth.231 The main studies of Greek Law relevant to the economy are those concerning 226

Lewis in Harris, Lewis and Woolmer 2016, 24 and 35–36, n. 123. E. E. Cohen 1992, 98–101 claims that the Athenians developed the legal concept of agency, but see Harris 2013d, 105–112 with detailed analysis of the passages which Cohen claims are evidence for agency. 228 See Harris 2006, 241–248. 229 The study of Ober 2015 builds on the essay of Harris 2002 and takes a more optimistic view of the economy, but takes little account of legal institutions and places most emphasis on political institutions. For a trenchant critique, see Manning and Oliver 2017. 230 Acton 2016. 231 Harris, Lewis and Woolmer 2016. 227

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three topics: ownership and property, contracts and their enforcement, and market regulations. In a classic essay, A. M. Honoré analyzed the concept of ownership drawing both on anthropological work and on modern lawcodes in both Common Law and Civil Law countries.232 Honoré showed that in all communities, those who own objects enjoy the same basic rights and liabilities: 1) the right to posssess, 2) the right to use, 3) the right to manage, 4) the right to income, 5) the right to capital, 6) the right to security, 7) transmissibility, 8) absence of term, 9) prohibition of harmful use, and 10) liability to execution. In a careful study of ownership in Ancient Greece, A. Kränzlein showed that the Greeks made a clear distinction between ownership and mere physical control over an object and that those who owned objects enjoyed all these powers enumerated by Honoré.233 For instance, those who owned property in Greece had the right to remain in control of their land and possessions (right to possess). This right was protected by the dikē exoules, which gave owners the right to eject those who occupied their property wrongfully. Athenian law also granted owners the right to arrest thieves caught with stolen goods whose guilt was obvious (ep’autophoro). Those who suspected that someone had taken their goods but did not catch him in highly incriminating circumstances could bring a private action against the offender (dikē klopes).234 Owners were also permitted to kill thieves breaking into their houses at night or who were carrying off their goods (Dem. 23.60). Modern law makes a distinction among three types of theft: larceny, embezzlement, and fraud. In the first case, the thief may take the stolen object without the victim’s knowledge or may use force to take it from him. In the case of embezzlement, the owner entrusts an object to another person who then misappropriates it again the owner’s will. D. Cohen has argued that the term klope covered only cases of larceny and not cases of embezzlement,235 but the evidence from Classical Greece shows that the term covered both kinds of theft in the same way as furtum in Roman Law covered both larceny and embezzlement.236 Owners could also use and manage their property in any way they wished, and this included the right to lease their land as numerous lease contracts attest.237 In these lease contracts all the money gained from rent went to the owner (right to income). Owners had the right to all crops grown on their land. Aristotle (Rhet. 232

Honoré 1961. Thür 2008 claims that the Greeks had a more flexible concept of ownership, but this view is not convincing. See Harris 2008. 234 On these two actions, see Harris 2006, 373–390. 235 D. Cohen 1983. For a more reliable study of theft in Greek and Roman Law, see Pelloso 2008. 236 For detailed criticism, see Harris 2006, 387–388. 237 See Pernin 2014. 233


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1.5.7 1361a 16–19) thought that alienation by gift or sale was the most important feature of ownership (right to capital). The Greek city-states also guaranteed the rights of ownership against unlawful confiscation. For instance, according the terms of the League of Corinth, no community could carry out a redistribution of land, a cancellation of debts or free slaves for the purpose of insurrection (Dem. 17.15). At Athens, the incoming archon swore to maintain safe possession of all property for his term of office ([Aristot.] Ath. Pol. 56.2). Owners also had the right to pass on their property to their descendants or to adopt children if they did not have any legitimate children (transmissibility).238 Finally, if a citizen or resident of a Greek community did not pay a debt to the state or to a private individual, the property he owned was subject to seizure (e.g. Dem. 21.43; 23.45) (liability to execution). The rights of ownership also extended to the master’s rights over his slaves. As Lewis shows, owners considered slaves their property and exercised the powers of ownership over all aspects of their lives.239 Masters had the rights to all the fruits of a slave’s labor and owned the children born from their slaves. They had the right to use their slaves as they wished and could beat, starve and whip them as a means of discipline. Masters could sell their slaves or lease them to others in return for payment of rent. After they died, their slaves would be inherited by their heirs. And when a master owed money to a creditor or the state, their slaves could be seized for pay for the debt. It would be a serious mistake to think that the Greeks considered slaves to be property only after the work of Aristotle; masters clearly had the rights of ownership over slaves as early as the Iliad and Odyssey.240 Even though the basic rights of ownership do not vary from one society to the next, different communities can place different restrictions on ownership. These vary in three main areas: 1) who can own?, 2) what can be owned?, and 3) what restrictions can be placed on the rights of owners? One of the most important restrictions in Greek city-states was the prohibition on foreigners owning land unless they received a special grant (enktesis).241 At Athens, women and children were not allowed to conduct transactions worth more than a medimnos of barley (Is. 10.10). In Athens, women who were the daughters of citizens or the wives 238

There are several examples of wills in the Attic orators (e.g. Dem. 27.8–11) and in the lives of several philosophers in Diogenes Laertius. From Thera there is the will of Epicteta preserved in a long inscription. See Wittenberg 1990. 239 Lewis 2018, 33–48. 240 View that slavery only started to be understood in terms of ownership only after Aristotle: Vlassopoulos 2011. Evidence showing that masters exercised the rights of ownership in the Iliad and Odyssey: Harris 2013. 241 For restrictions on ownership, see Hennig 1994. For enktesis, see Pecirka 1966.

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of citizens do not appear to have owned land and other property, but there does not seem to have been a formal restriction.242 On the other hand, wives might manage their husband’s property.243 At Athens, private citizens were not allowed to own silver mines in the fourth century BC, but could only lease them from the state. There were also restrictions on the way land could be used.244 A stele from Thasos and dated to the early fifth century BC contains several restrictions on the rights of owners along certain streets in the city.245 It has been claimed that land was inalienable in Athens before the end of the fifth century BC, but Finley showed that all the existing evidence for transfer of property during this period indicates that land could be bought and sold.246 Some late sources state that land in Sparta during the Archaic period was divided into equal parcels and distributed to citizens who did not have the right to sell to others, but Hodkinson has demontrated that all the contemporary evidence for land in Sparta indicates that owners had the full right to alienate by gift, will or sale.247 Contracts In a small-scale economy in which most transactions take place among family, friends and neighbors, there may be little need for formal contracts: social pressure and the ties of friendship and kinship provide a sufficient level of trust needed to exchange goods and services and other economic relationships (for this primitivist approach, see Millett 1991). In a large permanent market like the agora at Athens or in other Greek cities where most exchanges occurred between strangers, there was a need for a legal framework to ensure that agreements would be honored. Most of the evidence for contracts in the ancient Greek world comes from Athenian sources,248 but there is no reason to believe that Athens was unusual. In fact, most of the contracts attested in Athens can be found in the sources for other Greek communities. There was no term in Athenian law that was the precise equivalent of the Roman word contractus. The terms homologia and synthēkai were the most common words used to designate agreements that we call contracts, but their range of meaning was more extensive: the term homologia could refer to any written or oral statement, and the term synthēkai could refer to treaties between communities. Symbolaion could refer to 242

Schaps 1979 is still valuable. Foxhall argues that women in Athens exercised a type of ownership, but the evidence she adduces does not prove her point. See Harris 2006, 334, n. 4. 243 See Harris 2014 and Cox 1998. 244 See Kränzlein 1963, 53–70; Hennig 1995. 245 Duchêne 1992. 246 Finley 1968. For the view that land was not alienable before the end of the fifth century BC, see Fine 1951. 247 Hodkinson 1986. 248 See Knopf 2005 for the Athenian evidence about contracts in the orators.


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contractual relationships but also to obligations arising from delicts (Lys. 17.2–3; Isoc. 20.16; Arist. NE 9.1.9 1164b 13; IG I3 118, ll. 18–20; Syll.3 286, ll. 14–17) or from wills (Is. 4.12).249 The term synallagma could denote obligations arising from contract and from delict (Arist. NE 5.2.13 1131a). There was a general statute in Athenian law that all transactions that the parties have agreed to willingly (hekōn) are binding (Dem. 56.2).250 There was also a clause forbidding the parties to do anything illegal (Hyp. Ath. 13). The wording of the law implies that all that was required to create a legally binding agreement was the mutual consent of the parties or a simple promise (or exchange of promises) to perform certain actions. The laws of Athens did not prescribe any formal procedures to create a contract, and there was no requirement for a “consideration” as in Common Law. The speeches of the orators often mention contracts in writing, but there does not seem to have been a requirement that a contract had to be in writing or that an oral contract was not binding (the view that contracts had to be in writing for a maritime suit at Athens is based on a misreading of Dem. 32.1). Nor was it necessary to register contracts with public officials for them to take effect. Litigants often summoned witnesses to prove that an agreement had been made, but the law did not require them to be present (e.g. Dem. 35.9–14). Finally, the Athenians did not classify contracts into separate categories, each of which became binding in a different way. To enforce an agreement, a litigant in an Athenian court did not have to show that certain procedures were followed or that the agreement fell into a category set forth in the law. All he had to do was to prove that both parties had willingly agreed to perform certain actions. The action used for breach of contract was the private action for damage (dikē blabēs). If the plaintiff won his case, the court could only order the defendant to pay damages, not to perform what he had promised to do. Wolff argued that the Greeks did not develop the modern notion of the consensual contract and that the liability in Greek contracts did not derive from the agreement of the two parties but from the misuse of property given by one party to another.251 A binding obligation was not created by a promise or an exchange of promises but by the transfer of a physical object for a set purpose (Zweckverfügung) as in the real contracts of Roman Law. To use terminology borrowed from Roman Law, the liability in a Greek contract was delictual, which would explain why contracts were enforced by the private action for blabē, the 249

See Harris 2016, 8–12 with references to earlier scholarship. There have been some recent attempts to cast doubt on the existence of this law, but see Gagarin 2018. For criticisms of the views of Phillips 2009 about contracts, see Dimopoulou 2014, who shows that there were many laws declaring certain types of contracts invalid (akyron). 251 Wolff 1957. Carawan 2006 attempts to defend the views of Wolff, but his arguments are vulnerable to the objections made above. 250

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same one which was used in cases where an object was damaged. According to this view the homologia, a word often translated as “contract,” was actually a statement by one party acknowledging that he had received an object from the other party. There are several reasons to reject this view. First, this view may work for agreements such as loans, the rental of land, deposits and real security, in which a physical object is passed from one person to another, but it does not work for other agreements such as the hire of services, partnership (koinōnia) and personal security (engyē), where there is no transfer of a physical object. In each of these cases, the liability arises from the promise of one party. Second, there are several cases described in the orators in which the liability clearly arises from the consent of the parties without any physical tranfer of assets (e.g. the loans made to Timotheos by Pasion in [Dem.] 49). Third, it is true that the word homologia can mean “receipt” but there are other cases when the verb homologein is followed by a future infinitive indicating a promise. Fourth, plaintiffs in private cases often state that they are bringing actions for damages because the defendant has not performed what he promised to do in the written agreement, not because he misused an object placed in his hands (e.g. Dem. 37). In a lease made by the members of the deme of Aixone, the terms state explicitly that if the demesmen propose a motion or put a motion to the vote contrary to the terms of the agreement, they are liable to a private action for damages (IG II2 2492, ll. 29–31). This clearly implies that liability would arise from a violation of the terms of the contract, not from a misuse of the property. Although the Athenians (and apparently other Greeks) did not classify contracts in the same way as the Romans did, their courts appear to have enforced most of the bona fide-contracts found in Roman law. An interest-bearing loan was considered a single contract in Athenian law (e.g. Dem. 56.5), not a combination of two contracts as in Roman law. On the other hand, the Athenians distinguished among loans made on interest (daneion), those made to start a business in the agora (aphormē), and those made without interest (eranos), for each of which there was a different action ([Aristot.] Ath. Pol. 52.2).252 It has been claimed that the eranos-loan was the standard form of loan,253 but one finds few examples of them in the ancient sources: in the Attic horoi, there are only thirteen out of a total of about 130 loans, and possibly fewer, and there are very few references to eranoi in the Attic orators in comparison to regular loans.254 The Greeks also recognized and enforced contracts of lease (misthōsis), which includes the same types of agreement covered under the Roman contract 252 253 254

See Harris 2006, 335–336. Millett 1991, 153–159; Herman 2006, 390. For references to eranos-loans in the Attic Orators, see Harris 2006, 335–336 with ns. 10-12.


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of locatio-conductio (lease-hire): locatio rei (lease of land or a movable), and locatio operarum (hire of labor). Roman law carefully listed the incidents of these contracts, describing the rights and duties of each party.255 Although the Greek courts enforced these kinds of contracts, they left it up to the parties to work out each person’s responsibilities. A type of agreement that was very important in banking was the parakatathēkē or “deposit” (Aristot. NE 5.2.13 1131a).256 One might leave an object such as a cup or a sum of money for safekeeping. Bankers in Athens and other Greek states might use money from deposits to make loans at interest (Dem. 36.5). On the other hand, there is no indication that banks paid interest on deposits to attract capital for loans.257 In Greece, those cooperating in a business might enter into an agreement called koinōnia or koinopraxia, which was similar to the Roman contract of societas (Inst. 3.25). This contract did not create a new legal personality akin to the modern concept of partnership or corporation. In private law both in the Greek city-states and at Rome, one brought an action against an individual, not an entity representing the interests of a group. This also held true for the law of Greco-Roman Egypt.258 Each partner made his own contract with third parties; when the third party brought an action, it was against the individual partner, not the group as a whole. For instance, when the Athenian Pantainetos borrowed money on security from the two partners Evergos and Nikoboulos and thought that his creditors had violated the terms of their agreement, he brought one suit against Evergos, then another against Nikoboulos (Dem. 37.1).259 In the Grain Tax Law of 374/373 BC, there are associations that receive the right to collect taxes, but all of the members are subject to joint and several liability (SEG XLVII 96, ll. 33–36).260 The concept of limited liability did not exist. If one of the partners suffered a loss, the other partners were obligated to share in the loss. In Roman law if they did not compensate him, the remaining partner could bring an actio pro socio, which dissolved the partnership. The dikē koinōnikē in Athenian law may have been similar ([Aristot.] Ath. Pol. 52.2).261 The laws of the Greek states also recognized two accessory contracts, personal security and real security. The Athenians (and apparently other Greeks) had only one form of personal security (engyē), which is first attested in the Odyssey

255 256 257 258 259 260 261

Nicholas 1962, 182–185; Crook 1967, 192–198. Beauchet 1897, 3, 324–340. Pace Cohen 1992. Taubenschlag 1944, 49. See Harris 2006, 241–247. Stroud 1998, 66–67. See Harrison 197, 22.

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(8.347–348).262 This contract is found in conjunction with loans, leases, contracts to collect taxes, and public fines. At Athens, the law limited the liability of sureties to one year (Dem. 33.27). If there were two or more sureties, it appears that each was responsible for the entire obligation, not just a share. Personal security played an important role in allowing foreigners, who could not own land, to provide security for various types of contracts. For instance, a metic was able to obtain a contract for work in the sanctuary of Amphiareos at Oropos by providing an Athenian guarantor (I. Oropos 292, ll. 36–37 (= IG VII 4255)). Kanon, a citizen from Thespiai was awarded a large contract for work on Delos during the Athenian hegemony after providing five Athenian citizens as guarantors (IG II2 1678, ll. 29–32). It thus helped to expand the circulation of goods and labor beyond the confines of the city-state. From a legal perspective, the Athenians and other Greek city-states had essentially one form of real security, which was in effect a lien against the debtor’s property. In the event of default, the debtor had the right to any excess over the amount of the debt (collateral security).263 Some scholars have assumed that the Athenians made a distinction between two or more forms of real security, but they lacked the distinction between procedural remedies for dominium (the vindicatio) and those for possessio (possessory interdicts), which would have made such a distinction possible. By contrast, Roman law began by distinguishing between two types of real security, fiducia cum creditore, by which the creditor gained ownership of the security, and pignus, by which the creditor gained only possessio.264 Though Finley claimed that there were no laws regulating real security and that most loans on security were taken by the wealthy, both of these assumptions are contradicted by the evidence.265 Market Regulations and Interstate Trade The growth of permanent markets required the enactment of market regulations and the appointment of officials to enforce these regulations. In a Berkeley PhD-thesis, P. Stanley collected the evidence for market regulations in ancient Greece,266 and L. Capdetrey and C. Hasenohr have edited a valuable collection of essays about agoranomoi in the Greek world and aediles in charge of markets in the Roman world.267 This includes an essay by G. O. Oliver about agoranomoi in Athens. There are also essays about the regulation of Greek markets in the 262 263 264 265 266 267

Partsch 1909. Harris 2008. Harris 2006, 175–176. See Harris 2013. Stanley 1976. Capdetrey and Hasenohr 2012.


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important collection Tout Vendre, Tout Acheter edited by V. Chankowski and P. Karvonis.268 The essays of P. Themelis, C. Hasenohr, S. Fritzilas and G. Geraci in this volume provide studies of sekomata, which were used to measure liquids and regulated by public officials. The essays of O. Kakavogianni and M. Anetakis reveal the existence of markets in Attica outside of Athens and cause scholars to revise their views about Greek farmers living on their autarkic plots of land.269 The most extensive set of regulations for the market are found in an inscription dated to the second century BC, which has been lost but was copied by M. Fourmont in the eighteenth century and now republished by C. Doyen.270 These regulations order officials to make public measures for wet and dry goods and compel buyers and sellers to use them (ll. 7–9). Officials must enforce the standard weights or face penalties (ll. 10–15). The Council is to supervise the use of weights and measures (ll. 16–18). There are detailed rules about measuring items such as nuts and beans (ll. 19–26). If merchants do not use official measures, the official should confiscate the goods and sell them at auction (ll. 27–29). Public slaves are to be given official measures and are to make them available to anyone who wishes to use them (ll. 37–42). The final clause of the law grants the Areopagus the power to commit offenses against official weights and measures (ll. 56–60). To encourage trade, communities might grant special privileges to individual foreign merchants or groups of merchants. These privileges might include exemption from taxes (ateleia), the right to own land (enktesis), and gold crowns for exceptional public service.271 D. T. Engen has collected Attic inscriptions granting honors to merchants.272 In some cases, communities might conclude commercial treaties (symbola), which have been well studied by Gauthier.273 International Law As discussed in the section about The Unity of Greek Law, the Greek communities of the Classical and Hellenistic period recognized several norms in their relationships such as the duty to respect heralds and truces for international religious festivals. In interstate arbitration judges might also justify their decisions by appeal to generally recognized legal principles such as in the judgment given by the Magnesians judges in the dispute between Itanos and Hierapytna. 268

Chankowski and Karvonis 2012. For more markets outside Athens in Attica, see Harris and Lewis 2016, 12–13. 270 Doyen 2016. 271 For types of ateleia, see MacDowell 2004b. For privileges to merchants, see the general treatment of Woolmer in Harris, Lewis and Woolmer 2016, 66–89. 272 Engen 2010. 273 Gauthier 1972. 269

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These interstate arbitrations have been studied by L. Piccirilli, S. L. Ager and Magnetto.274 Two valuable studies by P. Low and A. Giovannini examine the principles underlying international relations in Greece. As in interstate arbitrations, the Greeks also recognized some shared norms which shaped their relations.275 As Low perceptively observes, these norms “do not make up a single, straight-forward code of international behaviour, still less do they absolutely control the ways in which states and individuals behave. But they do provide an overall framework within which that behaviour operates and can be judged, and within which arguments about proper conduct of interstate relations can be situated.”276 Prospects for Future Research As Margaret Thatcher once said, “there is now work to be done.” One area that would repay study is the relationship between the laws of the Greek city-states and the laws of Hebrew Scriptures and the Near Eastern kingdoms. R. Westbrook, who edited A History of Near Eastern Law, wrote several essays comparing laws about homicide and laws about marriage in Greece and the Near East. Harris has examined the similarities between debt bondage in Archaic and Classical Greece and in Israel and other parts of the Near East.277 Lewis applies the concept of ownership in defining slavery to a comparative study of Greek systems of slavery and those found in the ancient Near East.278 A volume of essays edited by Yiftach-Firanko compares the legal use of letters in Egypt, Greece and the Near East,279 and another volume of essays edited by Faraguna studies legal archives and archival documents in Greece and the Near East.280 Lewis has also compared laws about debt and enslavement in Attica and ancient Israel.281 A recent Durham doctoral thesis by B. Clapperton compares laws about homicide and about adultery in the laws of Athens and in the Hebrew Scriptures.282 There is clearly more scope for other comparative studies in areas like property law and contracts. At the same time, there is a need to look to the West and to compare the laws of the Greeks to those of Rome in the early Republic. There have been some studies comparing aspects of Greek Law with aspects of Roman Law such 274 275 276 277 278 279 280 281 282

Piccirilli 1973, Ager 1996 and Magnetto 1997. Low 2007; Giovannini 2007. Low 2007, 252. Harris 2006, 249–270. Lewis 2018. Yiftach-Firanko 2013. Faraguna 2013. Lewis 2017. Clapperton 2018.


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as Wolff’s study of Greek contracts, but more needs to be done.283 The work of Mitteis published in 1891 traced the relationship between the laws of the Greek communities under the Roman Empire and Roman Law, and this topic has recently attracted interest among scholars such as J. Fournier and C. Brélaz, which is summarized in an essay by G. Kantor.284 This is a very promising area for future study. There is a recent volume edited by J. Powell and J. Patterson on Cicero the Advocate, and it would be good to have a volume comparing the legal rhetoric of Cicero with that of the Attic orators.285 There have been several recent commentaries on speeches of the Attic orators, but there are several speeches for which there are no scholarly commentaries taking account of recent work in Ancient Greek Law. Demosthenes’ Against Aristocrates and Against Timocrates are rich sources of information about homicide law and about legislation, but there are no modern commentaries.286 The speeches in the Demosthenic corpus about maritime suits (Dem. 32–35) would also benefit from new commentaries, and there are other speeches that merit detailed treatment. The commentary of Wyse on the speeches of Isaeus, noted above, is still a valuable source of information, but now very out of date. There are no up-to-date commentaries in English on Aeschines’ On the False Embassy and Against Ctesiphon, and Todd has covered only in the first eleven speeches in his Oxford Commentary on Lysias. A new commentary on Andocides’ On the Mysteries is also needed to replace that of MacDowell. Whitehead promises a commentary on the forensic speeches of Isocrates. As noted at the beginning, this essay does not cover recent scholarship on the law of Ptolemaic Egypt. Wolff was of the few scholars who made notable contributions both to the study of the laws of the Greek city-states and the laws of Ptolemaic Egypt,287 but since his death there has been little dialogue between scholars working in these two fields. The work of A.-M. Vérilhac and C. Vial on marriage is one of the few exceptions. But this topic would require a separate essay. Perhaps the most promising area for future study in ancient Greek Law is the analysis of inscriptions. There have been several valuable studies of individual inscriptions such as Gauthier and M. Hatzopoulos on the gymnasiarch law from Beroea, A. V. Walser on the debt law from Ephesus, Saba on the municipal 283

Harris 2006, 163–206 compares Roman and Greek practices concerning real security and finds differences, and Harris 2006, 373–390 compares laws concerning theft and finds major similarities. 284 Kantor 2015. See Brélaz 2005 and Fournier 2008. 285 Powell and Patterson 2004. 286 On the documents in these speeches, see Canevaro 2013a, 37-180. 287 See Wolff 1978-2002 for this study of the law of the papyri in Ptolemaic Egypt and during the Roman Principate.

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ROMAN LAW: OPENING THE SYSTEM

Sven Günther IHAC, NENU, Changchun

Throughout the 20th century, Roman Law was mainly an enigma for historians and classical philologists alike. Its position in the Faculties of Law as Legal History and a systematic, and sometimes even synchronic, perspective of many researchers on legal sources together with self-referential tendencies made it appear a closed system, even though the nestor of Altertumswissenschaften, Theodor Mommsen had once encompassed the trias history, law and philology, albeit with his own taxonomy and connected with his liberal ideas that can be frequently found in his Römische Geschichte and Römisches Staatsrecht.1 For this reason, many researchers in these separated fields did not recognize the new approaches and concepts on the “other” sides. Similar developments had apparently already occurred in the nineteenth century when the so-called Pandectists 2 detached themselves from the historians and philologists, and thereby became increasingly less acquainted with legal sources and “alternative” methods of interpretation.3 However, this has fundamentally changed in recent years, first due to the attempts and steps taken by both sides to communicate about theories, models and methods, and second due to the mere need of accessing “new” approaches as well as materials in an increasingly more competitive research environment, not only within the specific fields but also in consequence of policies aimed at reducing funding for the Humanities (including history). A landmark with respect to integrating Roman legal topics into the socioeconomic context is The Oxford Handbook of Roman Law and Society.4 Divided into seven sections with 50 articles in total, the scope of possible connections between law and society becomes obvious from the beginning though not every possible topic is covered. Sources, constitution and public law, legal experts and their culture, law of procedure, questions of status and private law – the interdependences and particularly the praxis of law in Roman society is 1

His Staatsrecht is now again available in an edition with a comprehensive introduction: Mommsen 2017 (reprint of the 3rd ed. 1887). 2 See the critical remarks of Haferkamp and Repgen 2017. 3 See Günther 2012. 4 Du Plessis, Ando and Tuori 2016. 267

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dealt with in many of the contributions. Of particular interest are surely (1) the activities of the praetors using their quite flexible praetorian edict, (2) legal fictions to bridge the gap between static law and continuously changing political, social and economic developments as well as practical necessities, (3) the frames of jurisprudents who are no longer understood as fungible but as individuals each of whom belong to specific cultural contexts (in the form of education, functions within the state administration, philosophical background, even style of writing, etc.), and (4) certain areas where law is closely connected with other fields like economy and status, and a mutual interaction between regulations and socio-economic behavior can be proven with a high degree of certainty.5 Other areas such as the law of obligations, property rights or family law are mainly touched from a legal viewpoint. Nonetheless, the bibliographies appended to each article usually provide a useful tool for further studies. The source- as well as the key word-indices help to see the sometimes important connections between different articles and sections (e.g. status law, family law and economic activities). Thus, the Oxford Handbook provides a good basis for further studies along the borderline of legal and historical spheres, and even helps to cross them though many more topics could have been covered or are not treated in full.6 So a reading should be accompanied by a systematic introduction to Roman law. The new one, by Rafael Domingo, a promotor of global law system that has the human beings not states at its core, is very helpful in this respect.7 The individual chapters provide concise and well-written descriptions of the specific legal topics, systematic and easy-to-follow structures of the sub-divisions, and a “further reading” bibliography at the end. Particularly useful is the chapter on basic legal concepts and values (pp. 3–26) where he gives comprehensive definitions of terms such as ius, iustitia, mos maiorum etc. The section on the historical development of the Roman constitution is rather uncritical towards the sources, especially regarding early Roman history, and his narrative of legal institutions, concepts and issues is equally uncritical, as it clearly admires the everlasting global and elegant system Roman law, and Roman Law Studies, have established. 5

For the economic sphere, see the survey of Günther and Reinard 2017. Regarding the connection between New Institutional Economics and Law, see especially Kehoe, Ratzan and Yiftach 2015. 6 Cf. the rather critical review of Sirks 2018a, with details on specific papers. He is also certainly right in criticizing the narrow focus on the classical period, the omission of specific topics like military law, religious law or international relations and thus the non-Handbuch character of the volume. However, I interpret the handbook to be mainly for classicists and ancient historians who normally do not or even consciously avoid dealing with Roman law. A full and updated treatment of Roman private law, supplementing Max Kaser’s Das römische Privatrecht (Kaser 1971–1975), is in preparation by Ulrike Babusiaux, Christian Baldus, Wolfgang Ernst, Franz-Stefan Meissel, Thomas Rüfner and Johannes Platschek (Babusiaux et al. forthcoming). 7 Domingo 2018.

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Fundamental, though very provocative, were and are the studies of the legal historian Okko Behrends on Roman public law, of which nine (partly monograph-long) essays are now easily accessible in his selected papers.8 On the one hand, he frequently points out, and challenges, the orthodox views of legal historians who rely heavily on an understanding of Roman law formed by Mommsen, such as the rule of magistrates over law and law-making procedures, a reflection of 19th century national liberalism in the Second German Empire. On the other hand, however, he does not have much interest in the situational context and the individual actors involved in legal decisions but rather studies the underlying principles, in respect of Greek philosophical impact on law and jurists in particular, and rhythms of developments; for instance, in the case of the Gracchian “revolution” and its aftermath where law, mixed with philosophical ideas of usefulness, benefits for underprivileged members of society and educational aspects, became political and led in the end to the emperor as unframed lord-protector of people’s rights. One may disagree with several of Behrends’ judgments, for instance, when he reconstructs the philosophical background of jurists out of Cicero’s philosophical writings (which is a kind of circular argument), or when he suggests a dichotomy in early Roman society in times of peace and war with respect to the participation of the people in lawmaking procedures, signifying a reduction in the king’s role. However, his reflections are thought-provoking, analyze the sources in depth and must be refuted with detailed and concise arguments. Yet perusing the papers would enrich any study on Roman constitutional law from its beginnings to the Principate. Behrend’s philhellenic-philosophical approach to Republican jurists also forms one part of the comprehensive volume on Roman Law in the Late Roman Republic, edited by Paul du Plessis.9 Entitled Cicero’s Law, it reveals the extent to which our view on legal development in this period is based on the writings of Cicero, who was, for a long time, regarded as a politician, philosopher, orator, etc.: anything but a jurist. Many papers, explicitly or implicitly, refute this view, and aim to replace it, in contesting it with nuanced studies of how Cicero and his works reflect profound legal knowledge and discourses in the context of the political challenges of the Late Roman Republic. Divided into three sections (“On Law;” “On Lawyers;” “On Legal Practices”), the eleven papers modify traditional perspectives on the law and legal practice in the Late Roman Republic in three respects. First, it is shown that it is not possible to clearly distinguish Greek philosophy, oratory and the traditional Roman legal principles 8 9

Behrends 2014. Du Plessis 2016.

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forming law and its application in Cicero’s time, but rather that all frames can be read in the specific works of Cicero. Thus, his Topica can be read as a legal handbook but simultaneously as a piece of rhetorical advice and a discourse on philosophical principles; further, his legal-philosophical writings like De Re Publica and De Legibus interrelate with his forensic speeches, for example, with regard to the construction of a good citizen and a bad outlaw. Second, it becomes clear that the discussion of juristic issues was a prerogative of the elite, and very common among them. So, the legal knowledge of magistrates and their staff, business administrators and jurists helped to rule the Roman state and formed the idea of the sovereignty and continuity of law, even later after the transition, or transformation, to the Principate. On the other hand, the elite’s competition and consensus demanded a broad, manifold appearance that ran at times against an emerging specialization, and could be used against such experts, particularly on the public stage, foremost by Cicero himself. Third, the analysis of how audiences are addressed and targeted is a central achievement of the volume. While advocates attempted to use their networks as well as behavioral norms of the judging elite to create “one mind” in favor, or against, a person in court – which is also reflected in theoretical works like the Rhetorica ad Herennium or Cicero’s first extant work, De Inventione – the grants and spread of Roman law, procedures or forms of actions to allies and conquered people all contributed to forming an Imperium Romanum (“Roman Empire”) that was no longer only an imperium Romanum (“Roman rule”).10 Into these frameworks provided by the collected papers fits the extensive commentary on Cicero’s agrarian speeches of the year 63 BC by Gesine Manuwald.11 Although a classical philologist, Manuwald does not restrict herself to an analysis of literary devices, rhetorical structures et sim., with the fig-leaf of a short historical introduction. One the one hand, she tackles important historical issues like the preceding agrarian legislation, to place the bill of the plebeian tribune Rullus into a wider context.12 On the other hand, she takes the audience into consideration when she treats the political and rhetorical strategy of Cicero who here, as elsewhere, was very bold in creating frames of “good” citizens and “evil” outsiders harming the res publica. Her work will surely be the reference 10

On this framing, see also Ando 2011. Manuwald 2018. 12 Her statement that the bill of Tiberius Sempronius Gracchus “intended viritane assignments of ager publicus to poor citizens (plots of 500 iugera each, plus 250 iugera per child, with a maximum of 1,000 iugera per person) to be inalienable (Liv. Epit. 58)” (Manuwald 2018, xv) is implausible, because it is probably the maximum size of public land for those already in possession, i.e. the wealthy. Often, following the later Lex Agraria of 111 BC, 30 iugera are thought to be the basic allocation, but that is contested. Cf. Stockton 1979, 48 and 215–216. 11


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for further scholarship on the interplay between law, legal procedure, rhetoric and socio-economic as well as political frames in Cicero’s orations. The emergence and style of imperial adjudication in the Early Roman Empire is, along with the legislative function of the emperor, perhaps the battlefield with the most controversies due to the fragmentary source material. Based on one’s specific opinion of the Principate as a whole, with the emperor as either a legal and legitimate ruler established by law or, on the contrary, the Principate itself being a revolutionary abolition of the Republic with only the façade left, the accretion of jurisdictional powers to the emperor was interpreted from either a legalistic or a power-based point of view. With his new study of the narratives around imperial judgements, Kaius Tuori shows the weaknesses of both positions and carves out how different roles and narrated role-expectations as well as communications formed the basis of the gradual usurpation of jurisdictional functions by the emperor, beginning in the Late Roman Republic with the emergence of individual rulers, in particular Julius Caesar. 13 In this respect, magistrates’ legal power like that of the praetor – but much more so – the jurisdictional power of provincial governors played only one part in the whole story. Pull-factors like the role of a patron, the necessity of control and a standardization of different legal procedures were intertwined with push-factors like the quest of people for legal protection, especially in the East where the ruler enjoyed far greater authority due to Hellenistic (and oriental) traditions, and the easier legal procedures provided by the imperial court (cognitio- instead of formula-procedure). Under this perspective, Tuori examines important source materials like the literary descriptions of the jurisdictional behavior of emperors in Tacitus or Pliny the Younger, Mirror-of-Prince-literature like Seneca’s De Clementia, but also epigraphic evidence (SC de Cn. Pisone patre; Lex de Imperio Vespasiani), and places them in the specific context. Very useful is, furthermore, the extensive list of legal cases judged from the time of Julius Caesar down to Severus Alexander in an appendix (pp. 299–416). Although many of the individual interpretations of the sources used can be disputed, for instance the rather short discussion of the restoration of law by Augustus and the role of the jurists therein, or the main focus on actual judgements rather than further including the regulation of jurisdictional procedures (e.g. in the Lex Portorii Asiae),14 the work provides a great step forward towards integrating the concept of narratives and their anchoring in existing frameworks of communicator and targeted audience in legal studies. Simone Blochmann’s study of the political culture of the Senate in the Early 13 14

Tuori 2016. On such jurisdictional measures, and their perception by later jurists, Snee Zhang and Günther 2017.

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Roman Empire15 takes us in the same direction, although approaching it from a historical perspective. Based on theoretical considerations of communicationmechanisms and symbolic communication and (re-)presentation of both, the emperor and the senators, her analysis lays particular stress on the procedures of the Senate’s meetings as a mirror of the complexity of symbolic acts and a ritualized system. Therefore, she also deals with the new senatorial jurisdiction in one chapter where she examines the emerging maiestas-procedure in particular (pp. 105–124). In contrast to Tacitus, she sees conflicts and opposition within the Senate as largely directed not so much against the emperor himself as merely reflecting contests among the aristocrats themselves. The newly acquired “power” to judge maiestas-cases became, in her opinion, a huge challenge for the customarily consensus-orientated body, particularly due to the unclear role of the emperor, the lack of clear criteria for procedures and judgements, and the uncertainty of how to deal with socio-political equals being both accused and accusing, within the Senate and the senatorial order. One may add the idea that such internal struggles and instability may have been one aim of those emperors who could thereby destroy, or at least temporarily disturb, existing elite networks for the sake of stabilizing their precarious positions, particularly in the early imperial period. Further analysis could show that for many other measures, such as the Augustan moral legislation or taxation policies, such an interpretation could indeed be convincingly explanatory. Anchored in this discussion of the creative space and scope of design, the impressive doctoral thesis of Raphael Brendel opens an innovative historical perspective on legal sources from the time of the emperor Julian. In meticulous detail, he examines the extant sources in a systematic way by carefully analyzing the meaning of the often cryptic texts, embedding them in the specific historical and legal context, comparing them with legal acts as well as the documents of other emperors, and particularly by a cautious interpretation of the whole legislation including the secondary literature, over which he has an excellent command. Brendel thus arrives not only at a better understanding of the specific regulations by sorting out tendentious interpretations by earlier scholars – usually judging Julian’s imperial constitutions to be anti-Christian in accordance with the general picture of this emperor as the “Apostate.” Moreover, by anchoring himself in the enduring debate about Fergus Millar’s “government by response” with his hypothesis of “innovation on demand,” he can also modify and thereby usefully dismantle the picture of the emperor as only “passive-reactive,” advanced by Sebastian SchmidtHofner in his analysis of the governmental style of Valentinian I.16 15 16

Blochmann 2017. See Schmidt-Hofner 2008.


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For further research on Late Antique Law, the English translation – with facing Latin and Greek texts – of the Codex Justinianus, edited by Bruce W. Frier, is essential.17 Based on the life-work of Justice F. H. Blume who devoted every free minute to it and applied not only his historical knowledge but also his expertise in legal practice, it is the long-awaited edition, replacing the dated and unreliable translation of Samuel P. Scott. The lengthy introduction (pp. xiv– clxxxvi) gives a list of titles in the Codex Justinianus; another chapter deals with the tantalizing evolution of the translation by Blume and its final revision;18 a note on the problematic dating of many imperial constitutions as well as the attempts of researchers offers a perspective into the confusion, and ongoing discussion; and a particularly useful chapter by Simon Corcoran goes into the genesis and transmission of the text (with a description of the surviving textual witnesses), from antecedent codices, which were named after their writing material and not according to their (later ascribed) code-character, the Justinian commission, its work of compilation and revising the text up to the modern editions. This last mentioned chapter has to deal with various amendments and annotations which had flowed into the text, testifying to the historical development of the various appropriations over time. The presentation of the original texts with a translation which is not English-Latin legalese, along with explanatory notes and cross-references, as well as occasional further comments makes the work useful, especially when one takes advantage of the glossary of important law terms provided in volume 3 (pp. 3050– 3087) and, for historical studies, the chronological list of constitutions (pp. 3088– 3176). As research on the Codex Justinianus has often been unjustly avoided by giving preference to the Digests, this new edition offers a chance to revive interest – which has never ceased – and is complemented by the possibility of updating translations on a webpage so that there is an excellent opportunity to combine a printed edition with the potential of digital scholarly exchange.19 Recently, the relation between imperial law and local law (in out-dated phraseology: “Reichsrecht” and “Volksrecht”) has gained increasing attention, particularly through the legal culture-approach. In this sense, law is not seen as a detached philosophical system imposed on subjects by an abstract “state” – with several surviving niches where local legal traditions were applied, when the interests of the imperial authority were not touched.20 Instead, the use of law is seen as a bottom-up process whereby different factors and actors influenced the specific decision to use one, or even combine several, law-spheres. A good 17

Frier 2016. See also the remarks of Qiang Li in the survey of Byzantine Law Studies, forthcoming in JAC 34/1. 18 See: http://www.uwyo.edu/lawlib/blume-justinian (20.02.2018). 19 See: http://www.iuscivile.com/materials/codex (20.02.2018). 20 On the legal integration of Italians during the Republic, see Roselaar 2016.

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example of this approach is the revised doctoral thesis of Kimberley Czajkowski on the Babatha and Salome Komaise archives whose documents cover the transition from Nabataean to Roman rule in Arabia. Czajkowski studies the extant documents in various languages (Nabataean and Jewish Aramaic; Greek) and does not use the traditional either-or-approach by which scholars seek to relate certain formulae, expressions or forms to Jewish, Greek or Roman legal systems. Instead, she rather carefully examines the contexts of the documents: the actors and their known background (foremost the two women Babatha and Salome Komaise), the cases and parties involved, the targeted audiences and officials, the scribes. As a result, she can lead us out of the quite common thinking in law systems that must have confined the participants, and shows the potential of those documents to mirror the extent to which the composers and parties consciously or unconsciously acted within their specific frameworks of experience, reference and purpose. Most importantly, she can successfully point out that the extant documents were often composed to target specific audiences, either real authorities (Roman officials) who were easier to deal with if the document was also available in Greek (and constructed with Roman legal concepts or formulae), or only constructed authorities, where the object was to gain an advantage in pre-court negotiations attaining the high ground with respect to the legal opponent on the information slope. Even the scribes play an important role in her story as they have some legal expertise or are at least trusted by the partly illiterate parties. Thus, she can broaden the perspective, to see “localized law” as an active and useful appropriation of different legal cultures for specific contexts that could be very different at other times and/or regions. This should certainly stimulate future studies in provincial or regional laws within different legal frames.21 Such a use of Roman law with regional specifics can be seen in the lex rivi Hiberiensis, an inscription found at Agón, near Caesaraugusta (Zaragoza), in the Roman province Hispania Citerior, which Vanessa Einheuser has examined in her doctoral thesis.22 Starting from a Roman-law perspective, she does, however, not stop after comparing the legal procedures laid down in this regulation, that organizes the irrigation arrangements of a “water-community,” with the extant Roman legal sources, but goes on to set the inscription into the socio-economic 21

A different approach is taken by Amihay 2017 who sees his supposedly consistent “Essene Law” as a system separated from other systems, particularly contemporary Rabbinic laws – a reaction to the appropriation of the texts of the so-called Dead Sea Scrolls by Rabbinic scholars. However, he detects a struggle between “essentialism” and “formalism” in the extant regulations that hints at the difficult relations of the sectarians when distinguishing the divine and human spheres. 22 Einheuser 2017. On the topic with focus on communication between center and periphery, see also Bannon 2017.


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and administrative context where the specific topographical structures demanded not a pure distribution of water rights but a comprehensive regulation of how to preserve a stable water supply, and where the territorial administration via pagi affected the decision-making and punishment regulations. Furthermore, her close analysis of the oath – sprocedure in the second part of the book reveals to what extent both plaintiff and defendant were protected by law, and that enforcement of an oath, which could end the legal dispute at once but forced the party swearing to “lose” his social face or even to commit perjury, was not the main aim of the extant regulations so much as reflecting the ongoing communication strategies of the parties involved, to attain the better legal position. Parallel to research on the individuality of jurists,23 studies of legal structures as related to individual authors (and thus the systems they embody and respond to) are badly needed as they are highly relevant for a historical approach to law, especially its understanding and formation within Roman society. Particularly important and a desideratum is a comprehensive analysis of Livy. Writing in Augustan times but about the Roman Republic, this author can no longer be read as the ultimate scholar of the annalist tradition, upon whom one can rely and trust; instead, the influence of his own times and position must be taken into account before reaching any judgments – let alone before citing him as a source and extrapolating legal norms from that. Recent studies have taken account of discourse analysis and studies of cultural memory, highlighting the complex interaction between the author’s own life-time – the formation of an imperial rule – and his narrative about the alleged origins of the imperial res publica in regal and republican history. However, this has been done largely from a politico-cultural perspective. Hitherto, however, neither public nor private law have received much attention, despite Livy’s highly visible legal scope and language throughout the work. In view of the philological, historical and legal skills that could be expected of a contemporary study of Livy, the monograph of Jörg Reimann is totally disappointing. He neither develops a methodological approach to examine the author nor attempts an accurate and comprehensive analysis of the specific passages. His work is thus not more than a collection of sources in ten sections, covering many legal topics that can be found in Livy, merely rephrasing those sources. His explanations, usually bereft of suitable terminology, contextualization or relevant research literature, are insufficient; even basic works – for instance on the many statutes that reinforced and resolved the Struggle of the Orders or in respect of constitutional law – are not mentioned, beginning with Mommsen’s Staatsrecht. The book offers nothing of or for in-depth research, and cannot be recommended. 23

See Baldus et al. 2012; also Frier 1985; Harries 2012; Stepan 2018.

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The series Ius Romanum. Beiträge zur Methode und Geschichte des römischen Rechts (Ius Romanum. Contributions to Methods and History of Roman Law) has already brought out six volumes, all of which treat special legal questions, and offer further insights into the relations of law and society. From the viewpoint of an entanglement of religious and civil law, Anna Margarete Seelentag carefully examines the adrogatio-procedure, one form of adoption in Roman law, whereby the adopted person was already sui iuris, so that the adrogatio had to be approved by both the pontiffs and, effectively in legal terms, the people’s assembly, through the comitia curiata. 24 She convincingly argues that, firstly, our modern differentiation between legal spheres – for instance, public, private, and religious law – resulting from attempts to a-historically and a-socially systematize Roman law over the course of history and expansion of the Roman Empire, did not exist in the Early and Middle Roman Republic. So, it is better to speak of order and rules that structured the behavior of citizens in a face-to-face society, for instance, when the transfer of a free person to a new family (later classified as a “private” act) involved not only the interests of the specific family, above all those of aristocratic families, but also had potential effects on the (aristocratically shaped) society as a whole, with respect to religious obligations (sacra), property, and political influence, among other details of social importance. Yet in the Late Roman Republic, this subtle and complex balancing act of negotiations ceased to function, prominently in the case of the adrogatio of Clodius by an even younger client, so that the former could become a plebeian. This breach of traditional rules is reflected in attempts to enforce the old norms by legally non-binding pontific responses as well as a gradual transformation of those consensual rules into institutionalized law, whereby step-by-step the latter became an issue of private instead of public law, with complicated regulations in case of socially and religiously inadmissible but nevertheless legally effective adrogationes. That, in the end, the emperor had recourse to this still “public” adrogatio-procedure to grant exemptions further underscores the constitutional change from Republic to Principate where the emperor became a legal innovator where necessary, while civil law often remained fossilized in a conservative way. Susanne Lösch investigates the coniunctio in testamentary law, particularly in questions of accretion, and can show how what was initially a strictly grammatical and formal understanding of when and how a “conjunction” of heirs or legatees comes into being, gradually changed into a more contextual and content-based interpretation among the jurists.25 For historians, her observations 24 25

Seelentag 2014. Lösch 2014.


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are not so important concerning the very specific context of the juristic discussion, but are significant with regard to changes in that formalism often thought to be the prime characteristic of Roman law, religion, administration, etc. The consequences of such changes for our view of the functioning of the Roman Empire require further examination. In a detailed analysis, Andreas Groten examines the topic of corporate law.26 He rightly observes that the legal conceptions of corpus and universitas developed with the political, economic, social and cultural-philosophical changes in Roman society in the transition from Republic to Empire. Thereby, the originally public term universitas was initially extended to all corporations in the Later Roman Empire. Yet, the term corpus underwent several conceptual changes: at first, philosophically un-reflected, it was used for the public commonwealth and, in analogy, applied to private corporations, to include them in legal relations. Then, under Stoic influence, it was framed by ontological ideas of the specific body-concept. Aristotelian skepticism challenged that view, and hence corpus had to be defined by, and filled with, rights, opening the path to a variability of terms, inter alia the common term collegia, and legal discussion about them, in the course of the Late Roman Republic and Roman Empire. This positively legal view did, however, not survive the Justinian codification where the ontological unity of corpus was stressed again, and even economic corporations could now be seen as a universitas. Thus, this study clearly shows that one cannot separate public and private spheres, and has rather to study the entanglement of both, for instance, to understand the problems early Christianity had to face from Roman authorities, or for economically acting business corporations and their reliabilities. The collected papers of a conference on the maligned interpolation-critique as an emerging and widely used and discussed method at the end of the nineteenth century shed light on just how intertwined linguistic, philological, historical and legal readings of a juristic text are.27 Beginning with one of the “founding fathers,” Otto Gradenwitz, the development, spread and critical evolution or denunciation of this method to extract later additions from the legal texts of classical jurists, mainly in the Justinian Digests, are assessed by studying often unpublished material. In their work – among other sources –, the authors have used the archive of Salvatore Riccobono who had studied with Gradenwitz, and modified his method. Particularly important is the inconclusive discussion of whether Gradenwitz had already developed the rudiments of the idea of 26

Groten 2015. Avenarius et al. 2018. On another main figure, Paul Koschaker who shaped the Romanistic approach, particularly systematic and comparative analysis, see Beggio 2018. 27

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textual steps, and how the interpolation-method prevented, but on the other hand also prepared, the recognition of the individuality of jurists. This study of individuality is a new approach, possibly revealing how we can better understand the interdependencies linking the worlds of the jurists working in their own political, socio-economic and cultural environments on the one hand, and the historical (i.e. temporal) development of legal ideas and maxims on the other.28 A similar tendency, i.e., demolishing the still wide-spread image of a uniform, consistent and constant system of Roman law, is pursued in the dissertation by Adolfo Wegmann Stockebrand who convincingly argues against a full set of real contracts.29 Instead, he perceives only credit (mutuum) as the one and only obligatio re contracta to which other forms such as loan, deposit et alia were gradually assimilated. They had their origin, however, not in a strictly legal contractual obligation with an obligation to refund the credited res. The historical importance of this study – despite the notion of the problems the systematizing Pandectist-approach of the 19th century has caused – in respect of topics like “trust” (fides) and credit money circulation among the elite of the Roman world has to be further explored. With the new interest in ancient economies,30 legal institutions, their frames as well as their interconnections with economic actors and socio-political conditions have also come into the focus of research. Besides the short articles in the Oxford Handbook of Roman Law and Society, the comprehensive overview of legal institutes and instruments by Boudewijn Sirks is of particular importance.31 While rightly refuting an ancient concept of “commercial law,” he systematically presents the different legal spheres in which Romans and non-Romans alike interacted within the bounds of the imperium Romanum, and treats the different jurisdictional procedures as well as the legal devices such as contract-forms. Beyond that, he shows that real capital and credit money were at least both conceptualized, and structured, by law and legal practice, although the extent of credit money and the effects on the economy are still disputed. The extensive bibliography will surely serve as starting point for any further study in this still not fully explored field. In the same volume, Elio Lo Cascio views the state as an institution forming and guaranteeing institutional structures for economic transactions. 32 In his 28

See Baldus et al. 2012. See also now Stepan 2018 who shows by a meticulous analysis of language, style and structure to what extent the 2nd/3rd century AD jurisprudent Claudius Tryphoninus might have been influenced by his supposed teacher Q. Cervidius Scaevola. 29 Wegmann Stockebrand 2017. 30 See note 5. 31 Sirks 2018b. 32 Lo Cascio 2018; see also 2017, 44–66.


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opinion, the state aimed mainly at ensuring a “fair” market price, and to protect producers, sellers and consumers by adjusting the “rules of the game” when necessary, for instance, in times of supply-shortage. And his view is that even in Late Antiquity, the maximum price regulations were intended to keep market transactions in order. However, one can also observe that the local and regional demand of goods, persons and services played a particular role in these imperial interventions, as Peter Eich has recently, and convincingly, shown.33 The aims of imperial economic policies are thus still under review. However, particularly the recent interest in, and appreciation of, the close entanglement of politics, policies, economy and law raises the present author’s hope that such interconnections will be commonly studied in the future, in all fields in, and around, the sciences of Antiquity or Altertumswissenschaften.

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