The Discourse of Law in Archaic and Classical Greece

The Discourse of Law in Archaic and Classical Greece S. C. HUMPHREYS This essay is an attempt to put theory into practi...

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The Discourse of Law in Archaic and Classical Greece S. C. HUMPHREYS

This essay is an attempt to put theory into practice.Three years ago I publisheda paper'in which I arguedthat historiansand anthropologists should shift their perspectivefrom looking at laws as rules intendedto keep the social system working, and at lawcourtsas places in which these rules are applied (or misapplied,bent, challenged),and should instead look at both laws and forensicargumentas forms of discourse about the state of society. In using the term "discourse"I wanted to directattentionboth to the factthatin lawmakingand litigationdialogue is going on between differentinterest-groupswho want to have their claims and views of society acceptedas legitimate,2and to the unequal power relationsby which the dialogue is conditioned. Thus when legislation is passeda powerfulgrouphas succeededin acquiringsanctions to use in enforcingits view of the good society upon others. Litigants who can get advice from legal specialiststend to fare better in court than those who cannot. Controlof discourseand control of institutions are closely linked. In societies that have institutions such as legislativeproceduresand courts, it is clear that part of the discourse of law will be concerned with the working of these institutions. Hence a historicalanalysis of legal discourse will focus not only on general trends in the types of practicea society tries to regulateby legislationand in the legitimizing concepts deployed in legislative and forensic debate, but also more specificallyon criticismsof existing laws and legal institutions,and on the responsessuch criticismprovokes.In societiesin which legalexperts have clearlydefined and influentialroles, the natureof legal discourse

S. C. Humphreys is Professor of History, Anthropology,and Greek at the University of Michigan, Ann Arbor. Law and HistoryReviewFall 1988, Vol. 6, No. 2 ? 1988 by the Boardof Trusteesof the Universityof Illinois

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will also be affectedby their conception of their own status honor and of the best means of promotingit. In the case of Greece,on the contrary, we have to examine the effect on legal discourseof the absenceof legal experts in an otherwise relatively sophisticatedsystem. But whether legal expertsare presentor not, the natureof legal discourseas debate about the state of society implies that besidesits specificconcernswith legislationand legal institutionsit will also look toward,and be influenced by, the other major forums and discoursegenres or idioms in which the nature of society is discussed-those of theology, moral philosophy,economics, or whateverthe cadre may be in each society. This latter aspect of legal discourseopens an agenda too vast for the presentanalysis,but attemptswill be made to indicateits relevanceat various stages in the argument. I shall be looking firstat Greeklaw generallyfrom c. 750 to 450 B.C. and then at Athens from 460 to 307. This shift of focus is dictatedby the evidence;largejury-courtsand speechesdeliveredto them areknown to us only from classical Athens. As noted, specializationin law is minimal even in the latter period. In classicalAthens the activity of specialists was channelled into speech-writingrather than advocacy, whereaslegaltheorybecamethe provinceof philosophers.Earlier,making and interpretinglaw was a function of the upper class in general. We do hear of members of priesthood-owningclans (gene) who specializedin the interpretationof religiouslaw (exegetai),but becausecities tended to appealto the Delphic oracle,or sometimesto holy men from outside, ratherthan to local specialistswhen problemsrequiringritual action affected the whole community,their influence was not great.3 This makes the Greek case atypicalin legal history,but perhapsinterestingjust for that reason. I.

The legal discourseof the archaicperiod is about stayingin line. We get an idealized picture of the judicial process in Homer's descriptionof the shield made for Achilles by the god Hephaestus(Iliad 18, 490-508). Two cities were depictedon it, one at peace and the other at war; the image of the city at peace shows a weddingand a lawsuit. Peace is not characterizedby the absence of differencesand potential tensions,but by their successfulresolution(cf. Hesiod, Worksand Days 225-29). In the lawsuit, two men dispute in a public place before the rest of the community.The elderswill give judgment in turn, and the bestjudgmentwill be rewarded.Dikazein,the wordforgivingjudgment,

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can mean either giving sentence or proposing a means of settling a dispute(by oath, ordeal,appealto witnesses,etc.);the eldersareexpected to display wisdom like that of Solomon and presumably,as in the judgment of Solomon, an ideal solution would be one in which an apparentproposalfor compromiseleaves one party incontestablyvictorious.4Somethinglike this indeed happensin Iliad 23, 570-611, when Menelaus proposes that Antilochus shall settle their dispute over the result of a chariot race by swearingan oath that he did not win by guile, and Antilochus gracefullybacks down.5 Otherdisputesin epic are not so easily solved,becausethe contestants are more powerfulthan those about them and more or less equal in rank.Achillesand Agamemnonin the Iliad, Telemachusand the suitors in the Odyssey,recognize no superiorauthoritythat could impose a settlement on them. Not that settlementsimposedby superiorauthoritydid not sometimes arouseresentment.Hesiod complainsof the "gift-devouringkings"who had favored his brother in their disputes over dividing their father's estate (Worksand Days 27-41). A poor man had even less chance of pressingclaims successfullyagainsta magistratewho had fined him, or a landlord claiming a debt. Hesiod is well aware, too, as his fable of the Hawk and the Nightingaleshows, that it is only his control of the medium of song that allows him to protest that he had been treated unjustly.He could voice his protestmore openly in poetrythan in court. In Athens a few years after 600 B.C., populardiscontent came to a head, finding another poet, Solon, to act as spokesmanand mediator. In the backgroundto the upheaval lay an attempted coup d'etat a generationearlier,which had ended in the massacreof the rebels by their opponents after they had sought sanctuary.This traumaticevent and the resentmentsit left behind must have shaken the authorityof the aristocracy.It is probablyno coincidencethat Draconwas appointed soon after it to clarify disputed points of law. His law on homicide begins, "Evenif a personkills someone unintentionally,he is to go into exile"; the form of this law clearly indicates that written law is here supplementingunwrittenlaw ratherthan supersedingit, and therefore there is no good reason to believe that he tried to produce a comprehensive code.6 Againstthis backgroundof division and loss of authorityamong the aristocracy,othercomplaintswere voiced. Officehad been monopolized for almost a century by a closed corporationof aristocraticpatriclans, the Eupatridae.Because estates were divided equally among sons, and land was normallyacquiredby inheritanceor marriage,7inequalitiesin family size and variablesuccess in bringinghome portablewealth and

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prestige from war and trading ventures, which affectedthe marriage market, will have produced downwardmobility in some aristocratic familiesduringthis period,and upwardmobilityfor some commoners. The latternow wanteda sharein office,which Solon gavethem, making wealth ratherthan birth the criterionof eligibility.Increasingcompetition for land, perhapsexacerbatedby a run of poor harvestsand the opportunitiesfor trade with areas worse hit by famine that they provided,8had broughtconflicts between landlordsand tenants, creditors and debtors,to a head; the poor were calling for cancellationof debts and a redistributionof land. By puttingtogetherSolon's laws with the poems in which he justified the measureshe was taking and related them to the demands of the people, we can get two cross-bearingson the legal discourseof his day. The poems serve as commentaryto the legislation;the two must be seen together.9In his poems he picks up themes and images that had been prominentin legalprocesssince Homer.His lawswill "fita straight judgment to every man" (frag. 36 West, 18-20);the metaphorof the straight(ithus)as just, the crooked(skolion)as unjust,occursin Homer (Iliad 16.387, 23.580); in Hesiod (Worksand Days 212-285, cf. 27-39); and in a Spartanlaw of the seventh centuryin which the council and kings reservethe right to dismiss an assemblyif the people propose a "crooked"resolution(PlutarchLycurgus6; Tyrtaeusfrag.4 West). Crookedjudgmentsare a form of hybris,of oversteppingthe bounds of properbehavior(cf. hyper,beyond);Hesiod says explicitlythat they go aside out of the way of the just (parekbainousidikaiou, Worksand Days 226). Hybris is, literally,perverse;monsters are hybristic,they cross categoryboundaries.'0Hybrisis connectedin Solon and Theognis (39-52) with greed for gain; with koros, a word with an interesting history.In Homer, koros is a peak, a climax followed by exhaustion and satiety;one reacheskoros of fighting,or of weeping (cf. Theognis 596). In Tyrtaeus (seventh century), the young men of Sparta have driven to the limits (es koron)of both flight and pursuitin war (frag. 11. 9-10 West).Solon echoes this phrase:"Youwho have drivento the limit of many good things, calm your bold heart and set your lofty mind on moderation;for we are not going to be obedient, and things will not go your way" (frag.4c West).But from this point on his use of the word takes a differenttack. Againstthe backgroundof economic crisis, koros becomes for him not a limit but a perpetualincitement. "The leadingmen among us" do not know how to controltheirkoros." "Eunomia... smoothes out roughthings,puts an end to koros,makes hybris lose its sharpness.""Korosbegets hybris"(frags.4.9, 34; 6.3).

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The crisis is blamed on the rich and powerful,who fail to limit their desire for wealth and their exercise of power. Because the class interestsof the poor were openly involved in this conflict, the "straightness"of Solon's laws is given a new definitionnot found in earlier sources:it is by being shaped alike for the base and for the prestigious(kakos and agathos)that his thesmoi will providea straightjudgment for every case (36.18-20). Hesiod has earliersaid that the good king will give straightjudgmentsboth to locals and to strangers (Worksand Days 225-29). This was the reason for writinglaws down: not so much a question of information(we do not know how many Athenians could read in the 590s) as of fixity.Writingobjectifiedthe law, ensuredthat it would remain the same in every case. Two proceduralmechanismsin particularwere to be used to secure fairjudgment for all: the grapheby which a thirdpartycould prosecute on behalf of a victim of attack,and ephesis,which providedfor referral of a case from judgment by a magistrateto trial by the community.'2 Neither of these procedureswas novel or exceptional, but Solon extended and formalizedtheir use. Prosecution(or, in some cases, legitimatehomicide) by any citizen who becomes aware of the offense is standardprocedurethroughout the Greek world in cases where the public interestis directlyaffected: breach of regulations concerning sacred areas (I.G.i34.24-5,phasis); offensesin the militarysphere(graphaifor absencefrom campaignand for throwingaway one's shield, in Athens); derelictionof duty by officials;offenses concerningcitizenship;throwingrubbishonto roads.'3 In Thasosin the fifthcentury,voluntaryprosecutionis the regularmeans of enforcingcity regulationsand ensuringthat officialsdo their duty; furthermore,the standardprocedurecited as a model for voluntary prosecutionis the suit for assault (biaia), which implies that here too the rights of private individualscould be defended by third parties.'4 Solon's laws providedthis protectionin cases of adulteryand wrongful imprisonmentfor adultery;procuring;ill-treatmentof orphans,brotherless girls or aged parents;failure to provide for a family; wrongful enslavement;and hybris,which seems to have coveredboth sexualand other assaults resultingin humiliation and loss of honor.'5According to Demosthenes (21 Meidias 45), the penalty in hybris cases went entirely to the state instead of being divided between state and prosecutor-which emphasizesthe point that hybrissuits were broughtby men concernedwith honor ratherthan materialgain or loss. Althoughthe grapheprocedurewasto be usedin the laterfifthcentury, in chargesof breachingstate regulations,by professionalinformerswho representedthemselvesas the watchdogsof the demos-an ambiguous

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term that identifiedthe interestsof the common man with those of the state-it can hardlyyet have acquiredquitethis plebeiantone in Solon's day. It is more likely to have been a weapon for moderates,perhaps especially well-to-do commoners, to use against arrogantaristocrats, either in their own defense or on behalf of poorer clients. Aristocrats retortedthat it was the nouveauxricheswho were upsettingthe balance of society.'6 Ephesis was another form of protectionspecificallydirectedagainst the misuse of power by judges. Hybris cases had to be referredto the assembly,and the humiliatingpunishmentof exposurein the stocksfor theft could only be imposed with its consent. The more controversial cases probablyalways had been tried in public assembly (as in Iliad 18), especiallywhen magistratesfelt uncertainof theirauthority.By the early fifth century in Athens, voluntaryreferralof cases to the assembly-perhaps by this time holding separatesessions as a court-may have been common. In Aeschylus'Suppliants(468 B.C.), King Pelasgus of Argos is representedas a ruler who will decide nothing without a formalvote of the demos, and the portraitmay well have contemporary features.17But Solon also apparentlyallowed dissatisfiedlitigants to appealagainstmagistrates'judgments.This, togetherwith a more comprehensivebody of writtenlaw and the opportunityto complainabout notables'behaviorat the dokimasiawhen qualificationsfor officewere scrutinizedand at the euthynaiwhen outgoing officeholderspresented their accounts,'8providedAthenianswith a range of sanctionsagainst the arbitraryuse of authority. Laws from other archaic cities confirm that arbitraryuse of power and authoritywas one of the major anxieties in early Greek communities. The development of the state, of the conception of a public sphere of action and interests,was closely bound up with the development of rulesfor legitimizing,sharing,and limitingpowerby dividing responsibilitiesbetweenelectedofficeholderswho servedfor a fixedterm, usually in collegiategroupsbetweentwo and ten in number.However, early laws betrayconstant fearthat officeholderswill refuseto abdicate when their term ends,'9or will not enforcethe rules for which they are responsible.Earlylegaltexts regularlyincludeprovisionsfor controlling magistrateswho fail to fine offenders;often an elaboratechain of fallback sanctionsis laid down. A fifth-centuryrecordof boundariesfrom Chios ends as follows: If anyone uproots or moves or obliteratesany of the boundarystones, thus causing an injury to the city,20let him owe 100 statersand lose his citizen rights,21and let the boundary guards exact the fine. If they do


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not, let them owe it themselves and let the Fifteen exact it from the boundaryguards.And if they do not, let them be cursed.22 Elis, between 475 and 450, published at Olympia a decree giving protection to Patrias, the state's gropheus, or official recorder: If anyone "dedicates"(katiarauseie,curses?)Patrias,he is to be doomed to destructionas an Elean(werren,i.e. lose his citizen rights?).If whoever holds the chief magistracy,and the kings, do not enforcejudgment,each is to pay 10 minas to Zeus Olympios, and the Hellanodikasis to enforce this. The magistrates(damiorgia)are to enforce otherjudgments,and if not, pay double when they present their accounts on leaving office. If anyone flogsan innocent defendant,knowingly,he also is to pay 10 minas to Zeus Olympios. The same law is valid for Patriasthe recorder.23 In Thasos in the late fifth century (I.G. xii Suppl. 347), anyone may sue offenders against the law governing the purchase and sale of wine. If no volunteer prosecutor comes forward, the officials responsible for relations with the mainland are to take the offender to court, in which case the whole fine will go to the city. If they learn of an offense and fail to prosecute, they are to owe double the penalty, and anyone may charge them and get half the fine as a reward. Many further examples could be quoted.24 In Crete, provision for failure of magistrates to do their duty continues into the Hellenistic period; but in Athens, after an example in 485/4, (I.G.i34), this elaborate provision of fall-back sanctions disappears; apparently Athenians had acquired confidence in the regular functioning of procedures for scrutinizing magistrates' conduct.25 Another striking feature of early laws, which continues even in Athens well into the fifth century, is a marked dichotomization of fine levels between small sums and extremely large ones. An exemplary case of the latter is the oath in which each of the nine leading Athenian magistrates swore to dedicate a gold statue if he did not obey the laws.26 Miltiades was fined fifty talents (one hundred years' working wages) in 489, according to Herodotus (6.136), and fifth-century Athenian laws quite regularly impose fines of ten thousand drachmas (one and twothirds talents). Anyone who attempts to repeal a Thasian law, in the early fourth century, is to be fined two talents (I.G. xii Suppl. 350). In contrast, fines for minor offenses may be a few drachmas, or fractions of a drachma. Ordinary worshipers on the Athenian acropolis may be fined up to half a drachma, in a law of 485/4 (I.G.i34); treasurers absent when responsible for opening buildings are fined two drachmas for each absence; but treasurers who turn a blind eye to other offenders are fined one hundred drachmas. Discrepancies sometimes may be due to the enactment of fixed pen-

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altiesat differentdates,sincethe valueof the drachmadroppedgradually over the centuries,and they may also reflecta tendencyto dichotomy in the distributionof money. Before 480 the subsistencefarmer had little contact with coin, and officeholdingwas monopolizedby the rich. As the Athenian empire grew,wages for troops and rowersincreased the circulation of cash among the demos, but the upper classes also found new sources of monetary profit. However,we are not dealing merelywith attemptsto set finesat a level highenoughto deterpotential offenders.The higher levels of fines would have had a cripplingeffect on almost anyone, and debtors(if they did not go into exile) lost their civic rightsuntil they could pay. These extremelyseverepenalties,like the death sentences of eighteenth-centuryBritish law, are a way of making statementsabout the seriousnessof offenses-in this case offenses by officials.The large fine is an act of communicationat least as much as a mechanism for deterrence.27 The oppositionbetweenarbitrariness and the ruleof law also supplied a metaphorfor the pre-Socraticphilosophersin their search,between c. 550 and 450, for models of cosmic processthat could be presented in less personalterms than those of mythical cosmogonies.Their perception of legal process is a revealingone. The natural world is not seen as designedby a supreme legislator,despite the emphasis on the role of the lawgiverin archaic Greek culture, nor as ideally just; the regularityof the cosmic process is due to the existence of corrective mechanisms that keep aggressionwithin limits. The question "Quis custodiet ipsos custodes?,"which surfacesso insistentlyin early legislation, is echoed in HeraclitusfragmentXLIIA, "The sun, which is overseer28 of the cycles and seasons,is itself subjectto judgment(dike). But the main image in both Anaximanderand Heraclitusis of a reciprocalseriesof lawsuitsthroughwhichbalanceis maintainedbetween opposingforcesas in no-faultautomobileinsurance.ForAnaximander, "of necessitythingsin being dissolveinto the elementsfrom whichthey came into being, for [the elements] sue and repay each other for their usurpationsas time gives each its turn."Heraclitussays:"Whatappears unjust to men is just to the gods" (LXXI-II, cf. LXVIII);"Strifeand judgment (eris and dike) are one" (LXXXII). Each lawsuit and judgment is part of a continuingprocess.29Such a view is not surprisingin membersof the small communitiesof archaicGreece.Anthropologists have often shown how disputes between households or larger units smolderover long stretchesof time, breakingout periodicallyinto open conflict;and we still take this for grantedwhen assessingthe likelihood of war between modern states.The same patterncan be seen in Attica in the fourth century:disputes over the estate of Hagniaslasted more


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than thirtyyears,Demosthenes57 Eubulideswas writtenfor one round in a continuingstrugglein the deme of Halimus,politicalrivalriesoften generateda series of suits and countersuits.30 The same view of legal process, perhapswith a deliberatereference to Heraclitus,seems to appearin a famous fragmentof Pindar:"Law the king of all, of mortalsand immortals,exertsits high-handedcontrol to justify even the most violent acts."We can understandthe reference to violenceif we rememberthat self-helpwas an acceptedand recognized part of legal procedure.The fragmentcomes from a poem about the theft of the man-eatinghorses of Diomedes by the culture-heroHeracles.31

II.

ClassicalAthens was conscious of havinga law that was effectiveand man-made. Was law, then, molded by public opinion?Or should it be used to mold beliefs and values? In Pindar'sfragmentthe nomos that is king is a body of traditional customs in which no markeddistinctionis made between writtenand unwrittenrules.32New enactmentsare graduallyabsorbedinto the body of nomoi, but it is not until c. 460-450 that a new law actually uses the term nomos to referto its own provisions(M/L 32, Halicarnassus). Earlierlaws referto themselvesas the stele, the writings,the resolutions, the thing laid down (thesmos),etc. The earliestAthenianinscriptionto use nomos indubitablyof written law is dated 418/7 (I.G.i384).References to unwrittenlaw in the Antigoneand in Thucydides'reportof Pericles' funeral speech show that the relation between written and unwrittenlaw was beginningto be a focus of attentionin the 440s and 430s. Thucydidesuses nomos(oftenwith the qualification(pro)keimenos, published)of written law (e.g. 2.37.1, 3.45.3, 4.133.3, 5.49.1), but he also frequentlywritesof the nomoi of mankind, of the Hellenes, of the Spartans;none of these was written. It is not until the end of the fifth century that nomos comes to denote primarilywritten law, and that the Athenians start to make a distinctionbetween nomoi, which have permanentgeneralvalidity,and decrees,psephismata,which deal with individualsor with specific situations.33 This late crystallizationin Athens of the concept of law as essentially a body of written rules may perhapsbe relatedto an implicit contradiction between the Athenians' experienceof making law and of applying it, in the decades after 460. In assembly,the citizens formally made law in decrees that became steadily more frequentand detailed

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as Athens' hold on her empireincreasedand as the organizationof sea trade and of the upkeep of the fleet became more complex. The fact that a highproportionof thesedecreesregulatedthe behaviorof othersallies subject to Athenian control or noncitizen traders34-may have giventhe Atheniansan addedsensationof consciouslyexercisingpower.35 In the debate over the fate of the rebel Mytileneans,in 427, Diodotus warns the Athenians against overestimatingthe efficacyof legislation. No amount of revision of the laws will produce a perfect society, no nomos can eliminateerror,althoughmen have run throughall possible In the punishmentshoping, by addingyet another,to detercriminals.36 law courts,however,the equivalentof this consciousnessof controlover law-makingwas freedom in interpretingwritten laws to fit the jury's If we can believe sense of what was fair in particularcircumstances.37 this law and the people's will Xenophon, potential conflict between in when a was to condemn the made proposal emerged openly 406, en bloc for survivors and dead after to year's generals failing pick up the sea battle at Arginusae.Opponents,using the grapheparanomon,3 protested that such a condemnation, without formal trial, would be illegal, and this move was greetedwith an uproar:a shockingbusiness if the demos can't do as it likes! Thus we have moved from a periodin which law was like a city wall (HeraclitusLXV) protectingthe public interest against assaults from the powerful,against hybris,to an age in which law is the expression of the will of the majority.New questions arise. Can the majoritybe mistaken about its own interest?Why do differentsocieties produce different laws? Can a series of ad hoc expressionsof majority will, formulatedto meet particularhistoricalcircumstances,result in a coherent set of laws? Law beganto become a subjectfor a new kind of specializationbased on critical and theoreticalargumentratherthan traditionalauthority; this specializationboth providedchannels for criticism and increased the generalpublic'sfeelingsof disquiet.Peoplewere accusedof "trying to be clevererthan the laws"(Thucydides3.37.3-4,cf. 1.84.3and H.C.T i:300-301). The phrase covered a range of new and challengingkinds of behavior and argument:justificationsfor controversialpolicies in war, teaching "how to make the worse argumentappear the better" (Aristophanes,Clouds, cf. Antiphon's Tetralogies),ingenious interpretations of written law, philosophicalargumentsthat law is merely the will of the bosses, deliberatedisregardof convention. The spectrum covered sycophantswho made a living out of prosecuting(or blackmailing) rich men for breachesof law, specialistsin giving behind-thescenes advice and writing speechesfor litigants(cf. Thucydides8.68.1


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on Antiphon),right-wingcriticsof democracy,and criticsof traditional religion who were alternatelytoleratedas eccentricsor prosecutedfor impiety,dependingon the mood of the demos. The attitudeof the man in the street was ambiguous;he enjoyed displays of clever argument, yet could sympathize with the victim (Thucydides 3.38.4-7; Aristophanes,Acharnians679-718). Traditionalismwas not the monopoly of old aristocraticfamilies,nor superstitionassociatedsolelywith the mob. The demagogueCleon could pose as a defenderof establishednorms (Thucydides 3.37.3-4), and the rich and cultivated Nicias was superstitious.39 This variableclimate did not allow specializationin law to develop very far. Weberhas shown how legal culture is influenced,both in its values and in its techniques,by the statusethic of the stratafrom which specialistsin the administrationand/or interpretationof law are drawn, and by the relations between these strata and the other main power groups in their society: kings and their court officials,lords of landed estates,militarycommanders,holy men, etc. The upholdersof the rule of law speak for themselves,as its guardians,and influence the development of law by their concern to enhance their own status, but they also act as middlemen who can both legitimate and limit the claims that competing power groups can make on each other'sdomains.40In classicalAthens there was not much middle ground on which to base such an operation. Rule by majority vote seemed to need no legitimation; opposition had to be based on practicalargumentsabout the state's interests ratherthan on principle.41Individualsneeded skilled help in the courts,with the rapidspreadof litigationbeforelargejuries from 460 onwards;42but from the point of view of the collectivity, expertise in speaking and in the conduct of suits was ambiguously regarded.Advocacy did not become a profession.Speech-writingdid, but speeches had to be suited to the persona of the litigant and the sympathies of the jury. Speech-writersdid not develop an esprit de corps;speech-writingwas either a step on the way to a political career or a well-paidniche for a talented litterateur. Some signs of technical sophisticationdo appear in the late fifth century. Aristophanesuses kyrbis-the name for the old blocks on which Solon's laws were inscribed-as a term for a clever speakerin the Clouds (448), suggestinga penchantfor quoting obscurelaws;in a fragmentfrom a lost play43a cheeky son, when subjectedto a test in Homericvocabulary,retortswith posersin legalterminology.The speaker of Lysias 10 Theomnestus,in 384/3, tries to impress the jury by explaining archaic terms. But later the fashion for such displaysof erudition seemsto havedied out. When Demosthenes,in 352/1, undertakes

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an extensive and sophisticatedexegesisof the Athenianhomicide laws (23 Aristocrates22-62), he speaksin a verydifferenttone, not obtruding his own skills but taking the jury throughthe law by simple stages,so that each step seems obvious, part of "what you all know" (31).44 In

the 450s, if we canjudge fromAeschylus'Eumenides(585-673),litigants could cross-questiontheir opponents' witnesses. Socrates'style of argument also suggestsa culturefamiliarwith cross-examination(cf. also AristophanesPlutus 901-920). But in 378/7 the possibility of crossexaminationof witnessesin court was formallyabolished,when the use of writtentestimonywas made compulsory.45 Aggressivedisplaysof skill in court argumentand tactics may have tended to alienate the jury's sympathies;most litigants preferredto present themselves as simple, quiet folk with no experienceof the courts.46 The sophists' tactics led to pressurefor law reform as well as to sympathyfor a deliberatelyunprofessionalstyle in forensicargument. Criticismof the law was strongestin right-wingcircles;the recodification carriedout in 410-399 may well have been initiated by the oligarchic governmentof 411/0, and the Thirtyin their still more oligarchicrule in 404/3 rewrotesome of Solon's laws to eliminate ambiguities.47 The which a in the council or proposal graphe paranomon, by assembly could be indictedas contraryto existinglaw,firstattestedin use in 415, may have been introducedin the 440s or 430s, when we have other evidence of conservativereactionagainstPericles'radicaldemocracy.48 Criticssaid that Solon had deliberatelywordedhis laws vaguelyin order to give more power to juries. Diogenes Laertius'story about the man who asked Solon why he had not laid down a penaltyfor parricidemay have originatedin this period (1.59; cf. Lysias32 Philo 27-28). Lysias' justificationof the prescriptionof severerpenaltiesfor seduction than for rape49again shows that the Solonian code was provokingcritical argument. Unfortunately,we know far too little about the revision of the laws carriedout between 410 and 399. The men in chargewere apparently regardedas mere archivists,whose task was to collect the laws, arrange them in order, and have them reinscribed.There was presumablya procedurefor consultingthe council and assemblyin cases whereprovisions seemedto conflict,but the commissionmay well have exercised a good deal of discretionin decidingwhethermore recentlaws should be regardedas supersedingearlierones, or should be added to them.50 This recodificationproducedsome new technicalrules:a procedurefor scrutinizingnew laws,and repealingold ones with whichthey conflicted, was set up; a new central archive for laws may have been created;51 courts and officialswere instructedto use only writtenlaw; futurelaws


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were to be valid from the day on which they were passed unless they carried some other date (Demosthenes 24 Timocrates42). The procedure of paragraphe,by which a defendantcould object that he was being sued in an invalid way, was also introducedat this time.52 But the legacy of classical Athenian democracyin the field of law was not a technicalone. The prevalenttone was set by the nontechnical interestsof the jurors,53and these workedin two divergentdirections. On the one hand, the moralizingtone adoptedby many speakersmade for a stronglink betweenlaw and morals,that led philosophersto claim that law should be designedto achieve moral ends. On the other hand, appeals to the jury's sense of what was fair and reasonablewere particularlylikely to be used by those who did not have the law on their side; their argumentsthus carriedan implicationthat existinglaw was unreasonableand unnatural,which might suggest,ultimately,that law oughtto changein accordancewith popularsentiment.Boththesetrends are characteristicof a society in which the legal discourseis addressed to a mass lay audience. AlthoughPlato, proposingto use law as a tool for shapingthe good society in the Laws, is restatingthe claim of the elite to speak with special authorityin mattersof law, he is restatingit in a way that is typical of democratic societies (and that recurs in The claim is campaignsfor "law and order"in moder democracies.54 not based on special technical competence, but on a moral authority derived,in Plato's case, from the superiorlife-styleof the philosopher. Plato's conception of law is repressive.He seems to have startedout with a bias against law which may derive from Socrates'attacks on conventional definitions of virtue. The society of the Republic,ruled by philosophers,would hardly even need laws; their education would enable the Guardians to take appropriatead hoc decisions in each situation.55Even in the Laws Plato says that if people could be perfectly socialized, deviant behavior would not occur and laws would be unnecessary(853b-c).This attitudeis very differentfrom that of the ruling elite in republican Rome, where the praetor'sundertakingto "give judgment"to litigantson specifiedgroundsappearsas a servicerather than as a means of social control. There are aspects of Athenian law that correspondto Plato'spoint of view:the law of contractis subsumed under that of damages.56Even Plato's readinessto treat the law of inheritanceas a kind of publiclaw,becausemaintaininga fixednumber of households is necessaryto the equilibriumof the state, could find some justificationin Attic law, which gave the chief magistrateof the archaic state special responsibilityfor householdswithout adult male heads (oikoi eremoi).

Plato's attitude leads him to ask some interestingquestions about

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law. The Laws opens with a discussion about the advisabilityof forbidding everythingthat is potentiallyharmful:should alcohol be prohibited?(635b-674c.)57The conclusion is that it is better to train the citizens to drink only in an appropriatemanner. How much detail should the laws include in regulatingthe citizens' private lives? Too many rules about, for example, the way to look after babies, might make the laws appear ridiculous (788a-b, 789d-790a). Because laws have an educationalfunction, they should have preamblesexplaining why each law is necessary;this suggestion may have influenced the increasinglylengthyexplanatoryprefacesattachedto decreesand royal edicts from the late fourth century onward.58 Happily,no Greek state adopted Plato's scheme for examining and reeducatingpersistentoffendersin prisons.But some of the disturbing implicationsof his less obviouslypunitiveideastake on a cleareroutline under the governments of the decades after the battle of Chaeronea (338), when MacedonianpowerdominatedGreece.Lycurgus,who took over the city immediatelyafterChaeroneawith the aim of restoringthe economy and keeping out of involvementswith foreign affairs,maintained the forms of democracy but believed in educating his fellow citizens by praisingthe rich in honorarydecreesfor their benefactions to the city and in making violent attacks in the assembly and courts on those whose behaviorhe consideredantisocial.Eitherthe pro-Macedonianoligarchyof 322-318 or the puppetrulerDemetriusof Phalerum (317-307) was probablyresponsiblefor introducinggynaikonomoi,"supervisorsof women" whose task was to supervisefestivals in which women took part, and private life in general;59they had to enforce a law limiting the numberof guestsat privatebanquets(FG.H. 328F65). Plato's warnings against making the law appear ridiculous had been rapidlyforgotten. Some of the sections of the Laws that differfrom the Athenian law of Plato's own day, however,have a more liberaltone.60Women over forty can testify,sue on their own behalfif single,and act as supporting speakersfor others (937a). Matrilateralhalf-siblingsrank after patrilateral half-siblingsin the orderof intestatesuccession,whereasin Attic law they come in only after second cousins on the father'sside.61 This latter point shows the influence not so much of philosophical discussionsof law and society as of the type of argumentdeployedin court casesconcerninginheritanceand relatedmatters.It is, admittedly, difficultfor the historiantoday to decidewhen Athenianpublicopinion was running counter to establishedlegal rules. It would obviously be rash to deduce a change in public opinion solely from the attemptsof litigantsto justify in court claims that had no basis in law, or to cir-


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cumvent legal rules. However, where such attempts show a regular patternthat is supportedby other evidence (as, in this case, by Plato's modification of Attic law in the Laws), there is some solid basis for argument.In practicalterms, it was only by tryingto win casesin court on argumentsabout equityratherthan law that Athenianscould change private law in the traditionalisticfields of inheritanceand family law. Law was, in Holmesian style, what the courts decided,and it was very difficultto assesshow the decision would go. Whereasa Roman praetor in the late republic could introduce changes in the interpretationof law,basedon assessmentof shiftsin practiceand publicopinion,without engagingin public debate,therewas no mechanismby which Athenian courts could announce such a change in policy, or indeed make any conscious effortto produceconsistentdecisions. Precedenthad no authority,and referencesto earliercourt decisions are made only in the most general terms.62Only supplementarylegislation could alter the interpretationof a law authoritatively,and new legislation required public debate that was expected to focus on benefits accruingto the city as a whole ratherthan to citizens as individuals. Plato's treatment of matrilateralhalf-siblingsseems to be part of a regularpatternin which "natural"kinshipis opposedto kinshipin law. Athenianwomen marriedyoungerthan men-at about fifteeninstead of thirty-and since men were also at risk in war through much of their adult lives, it was not uncommon for a widow to remarrywhile still of child-bearingage and bringup two familiesof childrentogether. Matrilateralhalf-siblingsthereforewere often on affectionateterms.63 Marriagebetween them was forbidden,64but there were ways of circumventingthis rule.Apollodorus,whoseestatewasthe subjectof Isaeus 7, adopted the son of his matrilateralhalf-sisteras his heir, a move contested in court by his patrikin.Diodes (Isaeus8 Ciron41) claimed to have been adoptedby his mother'ssecond husband,who had daughters but no sons.65Althoughhis half-sistersand their husbandstried to oppose this move, his motherhad presumablyconnivedat it. The estate of Hagnias,subjectof Isaeus 11 and [Demosthenes]43 Macartatus,was claimed by his matrilateralhalf-brotherGlaucon, who produceda will that the court rejectedas forged,again clearlywith his mother'shelp. The speakerof Isaeus 9 Astyphilusalso claimed the estate of his matrilateralhalf-brother,againstthe latter'spatrilateralcousin (FBS)Cleon, who claimedthat his son had been adoptedby will as Astyphilus'heir.66 The speakerstressesthe close relationsbetweenhimselfand Astyphilus, dating from their sharedchildhood;associationin the same household, and the ties of affectionthat result (27-31), are consideredto produce

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a more real and natural kind of closeness than the rules by which degrees of kinship are calculated in law.67 The rule that a brotherless girl had to marry her next-of-kin is not challenged in any extant court speech, but we know of cases in which it was disregarded (Demosthenes 41 Spudias), and it may have more or less fallen out of use after the fourth century. Comments in drama indicate the grounds on which it could be found objectionable. In Menander's Shield, the heroine's hand is claimed by an elderly father's brother who is only interested in her money. Both the discrepancy in age and the motive are condemned. Marriage for money was disapproved of both on moral grounds and because a rich wife had too much ascendancy over her husband.68 Adoption, in law, severed all ties of kinship between the adopted child and his (or, much more rarely, her) genitor. This rule could, however, be evaded through the permission granted to an adopted son to return to his family of origin if he left a son of his own begetting behind in his place.69Such maneuvers were ambiguously viewed, especially if the result was control of two estates, but it was admitted that ties of affection between son and genitor would subsist; and because adoption normally took place within the kindred, there was a resistance to reclassifying close nuclear relationships as some more distant degree of kinship. For example, in Isaeus 10 Aristarchus, the speaker was by adoption d.c.'s sister's son (ZS), by "natural" kinship his cousin (FZS), while his opponent was by "natural" kinship a brother, but by adoptive kinship only a first cousin once removed (FBDS). The speaker of [Demosthenes] 44 Leochares, while deploring the maneuvers by which his opponents have maintained their hold both on their own estate and on the one that he claims, has to concede that it is only reasonable for a genitor to carry out the funeral of a son who has been adopted into another household: Forwhen Leocrateshad died and his funeralwas takingplace,we went to take possession of his property,since he had died childless and unmarried;but Leostratus,our opponentherein court,expelledus, claiming that the propertywas his. Maybe it is reasonable(echei logon) that he prevented us from carryingout the customaryrites for the dead, since he was Leocrates'father-even though this behaviorwas quite contrary to custom (paranomon).For the natural father to be conceded the arrangementsfor burialis fairenough (eikos);however,since the dead man was our kinsmanby adoption,we should have been allowedto take part too. (32). It is consonant with this recognition of natural ties that we find men


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in many Hellenistic inscriptionsidentifyingthemselves officiallywith the names of both their adoptive and their naturalfathers,as well as an increasedtendency to recognizemixed marriagesand the existence and rights of illegitimatechildren(nothoi).70 The classicalbeginningsof the concept of naturallaw71may go back to the use of this type of argumentin court about the way in which people can be expected to feel and react. Among the sophists of the fifth century,observanceof the laws of other states and ethnic groups had led to extreme relativism, stress on divergences,and a contrast betweenvariable,arbitrarylaw, nomos,and rationalnature,physis. The ius gentium, the laws common to all mankind, consisted of only two rules: worship the gods, honor parents.72But in the fourth century a more positive attitude emerged. The Aristotelianschool consideredit worth making collections of the laws and customs of both Greeksand barbarians,and fragmentsof Theophrastus'Laws show that he treated the laws of differentGreekstatesas alternativeways of solvingthe same basic problems.73The absence of legal specialistsand of any elaborate, entrenchedtradition of modifying existing law by interpretationmay have influencedthis pragmaticreadinessto look about and see if other societies had producedlaws worth adopting.74 III.

It is time to returnto the questionswith whichI set out. The dominant featureof social experiencein the field of law in the archaicperiodwas the opposition between "straight"judgmentsand "crooked"or biased ones, between just behavior and hybristicuse of power that ignored and overrode norms and laws. Varyinginterpretationswere given to the ideal of straightnessin law in different cities, according to the historical circumstancesin which legislatorsworked. Seventh-century Spartalaid the stresson making the citizens similarin way of life and material possessions;75Solon emphasized that the law would be the same for rich and poor. In the classical period, this fear that the law will fail more or less disappears.Briberywas not unknown in Athens, but it does not seem to have been a major worry.Litigantswho lose claim that the court was "deceived."Jurorswere faced with two contendinglitigants,each of whom arguedthat law and equity were on his side. Tragedies-the Antigone, the Oresteia76-showed the same pattern of two conflicting

rights. Votes were often close, althoughDemosthenesclaimed to have

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won a knockout victory over Apollodorusin his speech for Phormio (36). Did juries vote for the man who had the law on his side, or for the clevererspeakers?Wasthe just man, perhaps,the man who stayed out of court and settled his disputes peacefullythroughvoluntaryarbitration?77 Litigantsare too waryto claim openly in court that the law on which their opponent is relying is an unjust law, but the question hangs in the air; it is more insistentlypressedin tragedy,and the distinction between good and bad laws is openly made by philosophers (e.g. Plato, Hippias Major 284d). We should not forget, too, that the Athenian assembly and commissions of legislators(nomothetai)regularly debated proposals for new laws. Demosthenes' speeches against Leptines(20), Aristocrates(23), and Timocrates(24) give us an idea of the argumentsused, which includesophisticatedanalysesof the relation of the new proposalsto existinglaw as well as assessmentof theirutility for the city in the currentpolitical situation. But althougha great mass of everydaylegal argumenthas vanished from the historicalrecords,the use made by historiansof drama and philosophicaltexts in the study of Greek law is not a mere searchfor substitutes. The experiences of watching plays and of judging court cases were closely connected; dramatistsand oratorsilluminate each other'stexts.78Greek legal thought developedin close associationwith political philosophybecausethe right-wingoppositionto Atheniandemocracy could seldom get a hearingthroughthe political institutions of the city, and developed in close associationwith moral philosophy because of the untechnical,moralizingcharacterof forensicrhetoric. In other societies,the nearestneighborsof the legal discoursewould be found in differentgenres:exegesis of sacred texts in Judaism and Islam, economic theory in the nineteenth-centuryWesternworld.... The thrustof my argumentis thereforeparticularistic.I would not deny that we can make plausiblesociologicalgeneralizationsabout some of the characteristicfeaturesto be expectedof law wherelegalexpertshave built up a strongcorporateorganization,or where everyonein a small community has ongoing relationshipswith litigants, or about the directions in which law will be elaboratedin responseto urbanization and growthin marketexchange.But once we abandonthe crude functionalist assumptionthat lawmakersalwayssucceedin makingthe law that best suits their interests,we have to start askinghow interestsare perceived,and this means analysisboth of specific historical-political situations and of the culturallyshaped presuppositionsthat opposed groups bring to them.


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NOTES This article was originally presented in a symposium on "Ethnohistorical Models for the Evolution of Law in Specific Societies" in August 1985 sponsored by the Wenner-Gren Foundation for Anthropological Research. The author wishes to thank the Wenner-Gren Foundation, the organizers of the symposium, and the other participants for the stimulus provided by this occasion. The following abbreviationsare used: APF J. K. Davies, AthenianPropertiedFamilies, 600-300 BC (Oxford, 1971) Ath. Pol. [Aristotle],AthenaionPoliteia (Constitutionof the Athenians) F Jacoby,ed., Die Fragmenteder griechischenHistoriker(Berlin/Leiden, FGH 1923-) A. W. Gomme a.o., eds., A Historical Commentaryon Thucydides,5 vols. HCT (Oxford, 1945-1981) IC M. Guarducci,ed., InscriptionesCreticae,4 vols. (Rome, 1935-1950) IG InscriptionesGraecae(Berlin, 1873-) R. Meiggsand D. M. Lewis,eds., A Selectionof GreekHistoricalInscriptions M/L to the End of the Fifth CenturyB.C. (Oxford, 1969) SEG SupplementumEpigraphicumGraecum(Leiden, 1923-) SGDI ed. H. Collitz a.o. (GottinSammlung der griechischenDialekt-Inschriften, gen, 1884-1915) W Dittenberger,ed., SyllogeInscriptionumGraecarum,3 vols. (Leipzig,3rd Syll.3 ed., 1915-1924) West Martin L. West, ed., Iambi et elegi graeci, 2 vols. (Oxford, 1971-72) 1. S. C. Humphreys,"Lawas Discourse,"Historyand Anthropologyi.2 (1985):24164. 2. Cf. E. P. Thompson, Whigs and Hunters (London, 1975), especially pp. 259ff. Paralleldevelopmentscan be seen in other fields.Assyriologistshave been arguingthat Hammurabi'slaws were designed to present an image of Hammurabias a good king ratherthan to provide guidanceforjudges:Norman Yoffee,"Contextand Authorityin Early MesopotamianLaw" (n.d.);J. J. Finkelstein,"Ammisaduqa'sEdict and the Babylonian 'Law Codes,'" Journalof CuneiformStudies 15 (1961):91-104;Jean Bottero, "Le 'Code' de Hammurabi,"Annali della Scuola NormaleSuperiore,Pisa xii.2 (1982): 409-41. Similar points have been made about medieval law: PatrickWormald,"Lex Scripta and VerbumRegis: Legislationand GermanicKingshipfrom Euric to Cnut," in Early MedievalKingship,ed. P. H. Sawyerand I. N. Woods (Leeds, 1977), 105-39; Michael Toch, "Askingthe Way and Tellingthe Law: Speech in Medieval Germany," Journal of InterdisciplinaryHistory 16 (1986): 667-82. It has been pointed out that impressive death-sentencerituals in eighteenth-centuryEnglishcourts were often followed by pardon or commutationof sentence:Douglas Hay, "Property,Authorityand the CriminalLaw,"in Albion'sFatal Tree,ed. Hay a.o. (London, 1975), 17-63. 3. On priesthood-owningclans see S. C. Humphreys,"Fustelde Coulangesand the Greek 'genos," 8 Sociologia del diritto (1983): 35-44. Athens called in the seer Epimenides from Crete ratherthan a local expert,in the early sixth century,to deal with a pollution scandal that had split the upper class. On oracles see S. C. Humphreys, Anthropologyand the Greeks(London, 1978), 237, 254-55. 4. See M. Talamanca," 'Dikazein'e 'krinein'nelle testimonianzegrechepiu antiche,"

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in Symposion1974 (Cologne,1979), 103-33;S. C. Humphreys,"The Evolutionof Legal Processin Ancient Attica,"in Tria Corda.Scritti in onore di ArnaldoMomigliano,ed. E. Gabba (Como, 1983), 229-56 (131-32, n. 2). The appeal of Solomon'sjudgment is that it combinesthe two opposite solutionsto the problemof judging,compromiseand exposureof guilt-as the myths of Oedipus, Romulus, Arthur,etc., combine two opposite solutions to the problemof successionto kingship,by revealingthe charismatic strangeras the lawful heir. 5. See MichaelGagarin,"Antilochus'Strategy:The ChariotRace in Iliad 23,"Classical Philology78 (1983) 35-39. The ingenuityof Menelauslies both in the wordingof the oath Antilochusis challengedto take-he could not lightly swearthat no trickery, dolos, was involved in his victory-and in the opportunityofferedby the challengefor Antilochusto yield without losing too much face. 6. This seems to me an important implication, not yet sufficientlyexplored, of Gagarin'sproof (Drakonand Early AthenianHomicideLaw [New Haven, 1981])that Drakondid not writedown rulesfor the treatmentof intentionalhomicide.PaceRonald S. Stroud (Drakon'sLaw on Homicide [Berkeley,1968], 75-82) and Robert Develin ("The Constitutionof Drakon,"Athenaeum62 [1984]: 295-307), we cannot place any relianceon later Athenianstatementsthat Drakondrafteda complete code. These are clearly based on a conception of the lawgiver'srole shaped by the later legislationof Solon. On legendsabout early lawgiverssee AndrewSzegedy-Maszak,"Legendsof the Greek Lawgivers,"Greek,Roman and ByzantineStudies 19 (1978): 199-209. Drakon may have been responsiblefor a law againsttyrants:MartinOstwald,"The Athenian LegislationagainstTyrannyand Subversion,"Transactionsof theAmericanPhilological Association86 (1955): 103-28. 7. On Eupatridaesee Humphreys,"Genos,"supra note 3. Daughtersgot dowry.A brotherlessgirl marriedher next-of-kin,and her father'sestate passed to her offspring when they came of age. On portablewealth see Humphreys,Anthropology,supranote 3, 165-69. 8. It seems to me likely that Solon'sprohibitionof the exportof all foodstuffsexcept olive oil was triggeredby a crisis, even though no reason was ever found to repealit. In a year of droughtthe islands would suffermore than the mainland. 9. It is instructiveto compare Solon's work with Mesopotamianlaw-codesas analyzed by Finkelstein(supranote 2, 99-104;cf. D. J. Wiseman,"TheLawsof Hammurabi Again,"Journal of Semitic Studies 7 [1962]: 161-72).Like the "codifications"of early Mesopotamianrulers,Solon's restorationof balancein society involved a combination of (1) specific, one-off measuresto alleviate economic distress (cancellationof debts); (2) new laws designed to be valid in perpetuity(wealth as criterionof eligibility for office);(3) fixing in writtenform rules for just behaviorthat were alreadycurrent;and (4) personalstatementsexplainingand justifyinghis actions (poems;the proemiumto Hammurabi'slaws is also poetic).Writingdown currentnormswas not solelya response to complaints from litigants about arbitraryjudgments;it was also part of Solon's presentationof his reformsas a restorationof order.(Cf., from a slightlydifferentpoint of view, W. Eder, "The Political Significanceof the Codificationof Law in Archaic Societies:An UnconventionalHypothesis,"in Social Strugglesin ArchaicRome: New Perspectiveson the Conflictof the Orders,ed. Kurt Raaflaub(Berkeley,1986). 10. Cf. Hesiod, Theogony306-7;Louis Gernet,Recherchessur le developpementde la penseejuridiqueet morale en Grece(Paris, 1917);MaryDouglas,ImplicitMeanings (London, 1975), chap. 3; CliffordGeertz, Local Knowledge(New York, 1983), 80-84. Apollodorusson of Pasion of Acharnaethreatenedto bring suit for hybrisagainsthis father'sex-slave Phormio for marryinghis mother (Demosthenes45 Steph. i 3-4; cf.


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36 Phormio 30). Solon says that the sea is the most just of elements if not stirredup (Bruno Gentili, "La giustizia del mare: Solone, fr. 11 D, 12 West,"QuaderniUrbinati 20 [1975]: 159-62).Whatis just, dikaios,stayswithin bounds,on the mark.See passages collectedby Eric A. Havelock, The GreekConceptof Justice(Cambridge,Mass., 1978). 11. Demou hegetores,the rulingclass; cf. GregoryNagy, "Poet and Tyrant. Theognidea 39-52 = 1081-1082b"ClassicalAntiquityii.l (1983): 82-91. 12. See E. Ruschenbusch,"Heliaia:die Traditiontiberdas solonischeVolksgericht," Historia 14 (1965): 381-84; Humphreys,"Evolution,"supra note 4. I hope to discuss elsewhere the argumentsof Mogens Hermann Hansen, "The Athenian Heliaia from Solon to Aristotle,"Classica et Medievalia33 (1981): 9-48. 13. Phasis: R. Herzog,Heilige Gesetzevon Kos (PreussischeAkademieder Wissenschaften,philos.-hist.Klasse,Abhandlungen1928.6)no. 11(= F Sokolowski,Lois sacrees des cites grecques[Paris, 1969], no. 150). I do not accept the readingto p[rytanin]in IG i34.24:phasis is open to anyone. Militarygraphai:A. R. W. Harrison,The Law of Athens ii Procedure(Oxford, 1971), 32. Dereliction of duty: e.g., IC i.XVI.1, 31-34, Gortyn and Lato, 3rd c. B.C. Citizenship:H. Englemannand R. Merkelbach,eds., Die Inschriftenvon Erythraei (Bonn, 1972), no. 2. Rubbish:IG xii.5 Suppl.p. 105, SGDI iv pp. 856-7 = L. H. Jeffery,Local Scriptsof ArchaicGreece(Oxford, 1961), 305, no. 37, Paros c. 475-50. In this law, unusually,the prosecutorgets the whole fine instead of sharingit with the city. 14. J. Pouilloux,Recherchessur l'histoireet les cultes de Thasos (Paris, 1954), i no. 7, dated c. 460-50 by Jeffery,Local Scripts,supranote 13;IG xii Suppl. 347, c. 425-12; IG xii.8.264 + Suppl. (Pouilloux, op. cit. 205-13). The new Thasian legal text SEG xxx.1090 shows that Thasianlaw came underAttic influenceduringthe classicalperiod (cf. D. Gofas, "Les carpologuesde Thasos,"Bulletin de correspondancehellknique93 [1969]:at 364-69; id., "Emmenoidikai a Thasos,"in A. Biscardi,ed., Symposion1974 supra note 4, 175-88;cf. W Lambrinudakisand M. W6rrle,"Ein hellenistischesReformgesetzUiberdas 6ffentlicheUrkundenwesenaus Paros,"Chiron 13 [1983]:at 31420). There is no reason to suppose, however, that Attic models were already being followed before 450, especially since in Attica only the victim could bring a suit for biaia, although the state exacted a fine equal to the damagesawarded:see Harrison, Procedure,supra, note 13, 78. 15. On graphai see A. R. W. Harrison, The Law of Athens,2 vols. (Oxford, 1968, 1971), s.v., also L. C. Winkel, "Quelquesremarquessur l'accusationpubliqueen droit grec et romain,"29 Revue internationaledes droits de l'antiquite(1982): 281-94. Illtreatmentof orphansand brotherlessgirlswas perhapsalreadycoveredby the procedure of eisangelia,denunciationto a magistrate,which would have grownup automatically from the eponymousarchon'sresponsibilityfor "empty"households:Harrison,op. cit. i 117ff.;E. Ruschenbusch,Untersuchungenzur Geschichtedes athenischenStrafrechts (Cologne, 1968), 54-55;L. Lerat,"Une loi de Delphes sur les devoirsdes enfantsenvers leurs parents,"Revue de philologie 68 (1943): 62-86. For protection of widows and orphansas a function of rulers in Mesopotamiasee Yoffee,"Contextand Authority," supranote 2. Ruschenbusch("Hybreosgraphe.Ein Fremdkorperim athenischenRecht des 4. Jh. v. Chr.,"82 Zeitschriftder Savigny-Stiftung[rom. Abt.] [1965]: 302-9) and M. Gagarin("The Athenian Law against Hybris,"in Arktouros.Hellenic Studies Presented to B. W Knox [Berlin, 1979], 229-36) date the suit for hybristo the fifth century because in Demosthenes' quotation of the law (21 Meidias 47), "If anyone commits hybrisor does anythingparanomon,"they assumethatparanomonmust mean "contrary to written law."The term iloweveris often used of breachesof unwrittennorms, even

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in the fourth century,and in any case it is not certain that Demosthenes is quoting verbatim. 16. Theognis43-60, 145-54, 183-96,289-92, 321-22, 743-52, 1061-62.In premoder Chinese law, which was based on the view that all unjust acts are a threatto cosmic order,victims of civil wrongscould only takethe offenderto courtif a magistrateagreed to prosecutehim for a breach of law. Otherwisedisputes were settled by arbitration. See Derk Bodde and ClarenceMorris,Law in ImperialChina (Philadelphia,1967). 17. Aeschylus in the Eumenides (458 BC) representsAthena as voluntarily renouncingthe role of judgeand settingup a courtin whichthe magistratemerelypresided over a jury, as Athenianmagistrateshad done since 462/1. The transferof powerthat took place in this year had been precededby a series of attacks on ex-magistratesfor misconduct,which must have increasedtheirreluctanceto takeresponsibilityforjudicial decisions (Ath. Pol. 25.1-2, cf. Humphreys,"Evolution,"supra note 4). 18. Perhapsintroduced,with coinage,underthe Pisistratidtyrantslaterin the sixth century. 19. M/L no. 2 (SEG xxvii 620), Dreros, Crete, seventh century;IC iv Gortyn 14, c. 600-525(Jeffery,Local Scripts,supranote 13);Aristotle,Politics 1272a27-bl5suggests that conflicts over office were endemic in Crete.The "tyrants"of archaicGreecewere men who held on to office for what their opponents consideredan undue length of time, sometimes with a show of constitutionality;in a crisis a leader could be given wide powers to re-establishorder. Cf. G. Nagy, "Poet and Tyrant,"supra note 11; Herodotusi.95-100 on Deioces the Mede. 20. Ep' adikiai tes poleos: not so much an instructionto take motive into account as an emphasis on the seriousnessof the crime. 21. 100 statersmight approximatelyamount to a small craftsman'sannualincome. 22. B. Hainsworth,Tituli ad dialectos Graecasillustrandasselecti, ii. Tituli Dorici etIonici (Leiden, 1972), no. 74. To be cursed meant public opprobriumas well as spiritualdanger;referenceis made laterin the text to a customary(nomaia)set of curses pronouncedby the basileus,the religioushead of the state. Such cursingswere a ritual reaffirmationof law and order;cf. Adolf Wilhelm, GriechischeInschriftenrechtlichen Inhalts (Pragmateiai tes Akademias Athenon xvii. 1, 1951), 86; Lambrinudakisand Worrle,"Reformgesetz,"supranote 14, 310-13;SEG xxxi.984-85. 23. Hainsworth,op. cit. (n. 22) no. 19; SEG xxxi.359. Ten minas might be four or five years' earningsfor a craftsman. 24. Cf. nos. 3, 7, 11 (?)of the recentlypublishedlegaltextsfromTiryns,SEG xxx.380; IC iv Gortyn 78-80 (c. 450-400, Jeffery,Local Scripts,supranote 13). 25. Standardizedpenalties for delinquent magistratescontinue to be included in legislation,but the procedurefor exacting them is not specified.Detailed regulations on phasisand endeixisin MarcusN. Tod,ed.,A Selectionof GreekHistoricalInscriptions, ii. From 403 to 323 BC (Oxford, 1948), no. 162 (IG ii21629+, 325/4 BC) are designed for the island of Keos. Collectionof fines from debtorsto the statecontinuedto present problems;for an apographe,denunciationof debtors'undeclaredassets, an informer got 75 percent of the denounced propertyas reward,accordingto [Demosthenes]53 Nicostratus2. Cf. Harrison,Procedure,supra note 13, 211-17, 172-75. D. M. Lewis, "Afterthe Profanationof the Mysteries,"in Ancient Society and Institutions.Studies Presentedto VictorEhrenberg(Oxford, 1966), 188 with nn. 66-67, followedby Robin Osborne,"Lawin Action in ClassicalAthens,"Journalof HellenicStudies 105 (1985): 40-58, suggestsamendingthe text from ta tria mere to ta trita mere, citing as parallel an inscriptionset up by the public auctioneers(poletai):M. Crosby,"The Leasesof the LaureionMines,";' Hesperia 19 (1950):237, no. 14, line 42. But the absenceof any other


487

mentionof rewardsin thepoletaiinscriptionsis disturbing.The workingof the informant system may well have been less simple than we imagine;Apollodorusin [Demosthenes] 53 speaks of foregoinghis reward,and in IG ii21631.365-8the informeris a friend of the debtorwho contributeshis rewardtowardsthe paymentof the debt. See R. Dareste, B. Haussoullier,and Th. Reinach, eds., Recueil d'inscriptionsjuridiques(Paris, 1898), ii.1.153-7. Cf. also [Demosthenes]25 Aristogitoni, Hypothesis 3-5. Osborne,"Law in Action,"notes that many denouncersmay have foregonethe reward. 26. Ath. Pol. 7.1. Plato Phaedrus235 d8-el and PlutarchSolon 25.3 say that the statue is to be life size and dedicated at Delphi. Cf. M/L no. 13B (IG ix.12 (3) 609, SEG xxix.468, Locris late sixth century). See also J. Rudhardt,"Le delit d'impiet6 d'apresla legislationattique,"Museum Helveticum17 (1960), 96. 27. Valueof drachma:Ruschenbusch,"Hybreosgraphe,"supranote 15. Heavy penalties: Hay, "Property,Authorityand the CriminalLaw,"supra note 2. In Athens, as in England,there may have been ways of avoiding payment in full; cf. Demosthenes 22 Androtion,24 Timocrates. 28. Epistatesand skopos.The quotationmay not be verbatim(G. S. Kirk,Heraclitus. The Cosmic Fragments[Cambridge,1956], 294). Fragmentsof Heraclitusare quoted here from CharlesH. Kahn, TheArt and Thoughtof Heraclitus(Cambridge,1979).Cf. frag. XLIV. There is no need to suppose with Kahn that in XLIIA Heraclituswas thinkingof Persiansatraps.Note the emphasis in AeschylusSuppliants595f. on Zeus' freedom to act with no dependenceon higherauthority. 29. CharlesH. Kahn,Anaximanderand the Originsof GreekCosmology(New York, 1960); id., Heraclitus(n. 28) on frags.XL-XLI, LXVII-LXXXIII.Like Kahn (op. cit. 206-7, cf. id., "A New Look at Heraclitus,"AmericanPhilosophicalQuarterlyi.3 [1964]: 189-203),I do not think Heraclitusis polemisingagainstAnaximander.He does, however, introducea more specificstress on the mathematicalexactitudeof the balanceof justice achieved in naturalprocesses (fr. XXXIX) which might suggestan interest in the assessmentof damagesby courts. The supremepower in the cosmos, in this view, is not a creator/legislatorbut a judge who intervenes periodicallyto restore balance. (Cf. note 9 supra).A similar view of justice is put forwardin AeschylusPrometheus 551-52. In the Oresteia(Agamemnon750-81, Choephoroe144, 306-14)it appearsas an old, well-knownview that Aeschyluswants to modify; althoughit might offer a new wayof findingmeaningin the sufferingsof mythicalheroes,the dramatisthadto interrupt the unending cycle of aggressionand counter-aggressionto round off his trilogy.The evolutionarytransitionfrom self-helpto courtjudgmentprovides a conclusionfor the Oresteia;we do not know how the problemwas solved in the othertrilogies.Fortheories of legal evolution in other ancient sources see MarilynArthur,"CulturalStrategiesin Hesiod's Theogony:Law, Family, Society,"Arethusa 15 (1982): 63-82; Dieter Norr, Rechtskritikin der rdmischenAntike,BayerischeAkademieder Wissenschaften,philos.hist. Klasse, AbhandlungenN.F lxxvii (1974). 30. Isaeus 11 Hagnias, [Demosthenes] 43 Macartatus;S. C. Humphreys,"Social Relationson Stage:Witnessesin ClassicalAthens,"HistoryandAnthropologyi.2 (1985): 319, 351; ead. "KinshipPatternsin the AthenianCourts,"Greek,Roman and Byzantine Studies 27 (1986): 57-91. For anthropologicalstudies see, e.g., Sally F. Moore, "Chagga 'Customary'Law and the Propertyof the Dead," in Mortalityand Immortality:The Anthropologyand Archaeologyof Death, ed. S. C. Humphreysand H. King (London, 1981), 239-43; Jacob Black-Michaud,FeudingSocieties (Oxford, 1975), 63-70. 31. See S. C. Humphreys,"Law,Custom and Culturein Herodotus,"Arethusa20 (1987);AndrewF.Stewart,"PindaricDike and the Templeof Zeusat Olympia,"Classical Antiquityii. 1 (1983): 133-44. For the associationof violence and justice see also Solon

488


fr. 36, 15-17 West and Aeschylus Seven Against Thebes244, with the comments of Havelock, Justice, supra note 10. 32. Cf. Kahn, "New Look,"supranote 29, 198. 33. Cf. Humphreys,"Law,Custom and Culture,"supra note 31. Thucydidesuses nomos keimenosof a law of human behavior (unwritten)in v 105.2. 34. For referencesto recent discussionsof the actual proportionsof Atheniansand non-Atheniansamong traderssee ClaudeMoss6, "The 'Worldof the Emporium'in the PrivateSpeechesof Demosthenes"in Tradein theAncientEconomy,ed. PeterGarnsey a.o. (London, 1983), 53-63. The question here is one of stereotypes.In Sophocles' Antigone,becauselaw is made by an individualruler,Creon,the distancebetweenthe lawmakerand the public to which law is addressedis patent, and the question of the right to resist inevitably follows. 35. Note the use of the formalphraseologyof the assemblyto add dignityand weight to actors' decisions in Aeschylus(e.g. Suppliants600ff., 940-49;Agamemnon577-79, 1353; Seven 271-79). Aeschyluslived throughthe period c. 507-450 when the number and momentousnessof assemblydecisions increasedmost strikingly. 36. Thucydidesiii.45.3. Rudhardt'sdiscussionof Athenianlegislationagainstimpiety (asebeia;supra note 26) shows that the method of dealingwith laws that came to be thoughttoo loosely wordedwas not to incorporatea definitioninto the law but to pass additionalmeasurespermittingspecificacts to be prosecutedunder it (cf. Hyperides3 Euxenippus5-6, Plato Laws 630e). In my view, prosecutorswere not therebydebarred from bringingchargeson groundsnot so specified,if they thoughta jury would accept them; but the inclusion of behavior explicitly defined as actionablein a wider charge would increaseits chances of success. 37. Cf. Max Pohlenz, "Nomos und Physis,"Hermes 81 (1953): 429-30; Aristotle, NicomacheanEthics 1137b;A. Biscardi,"La 'gnome dikaiotate'et l'interpr6tationdes lois dans la Grece ancienne,"17 Revue internationaledes droits de l'antiquite(1970): 219-32. H. Meyer-Laurin,Gesetz und Billigkeit im attischenProzess (Weimar,1965), rightlypointed out that jurors are not openly invited by speakersto disregardwritten law. Litigantspreferto claim, however speciously,that they have both law and equity on theirside. But we shouldnot creditjurieswith too cleara consciousnessof distinction betweenlaws and othernormativestatements(cf. JohnL. ComaroffandSimon Roberts, Rules and Processes. The CulturalLogic of Dispute in an AfricanContext [Chicago, 1981]).The absenceof any sourcein court of authoritativerulingson the interpretation of law, the lack even of controlover selectivequotationand paraphrasingof legal texts, is telling; and speakersoften concentrateon questions of equity and ethics where a more legalisticculturewould have demandedargumentsaboutthe interpretationof the law.Cf. Biscardi,op. cit. 228-29;M. Hardcastle,"SomeNon-legalArgumentsin Athenian InheritanceCases";'Prudentia 12 (1980): 11-22;below, note 67. On "unwrittenlaws" see now M. Ostwald,"WasThere a Conceptof agraphosnomos in ClassicalGreece?" in Exegesis and Argument.Studies in GreekPhilosophyPresentedto GregoryVlastos, ed. E. N. Lee a.o. (Assen, 1973; Phronesissupplementi), 70-104. 38. Xenophon Hellenicai.7.12. PaceAndreasMehl "Fureine neue Bewertungeines Justizscandals"99 Zeitschriftder Savigny-Stiftung,[r6m. Abt.] [1982]:32-80),the legal situation cannot have been clear. Xenophon's account is biased, but provides useful evidence about upper-classconceptionsof the function of the grapheparanomon. 39. Superstition,to judge fromTheophrastus'account(Characters16)was associated with effeminacyratherthan lack of education. However,education was supposed to inculcatequalities associatedwith masculinity:self-controland rationality.On impiety


489

see Araldo Momigliano,"Impietyin the ClassicalWorld,"in Dictionaryof the History of Ideas (New York, 1973), 564-67. 40. Max Weber,Economy and Society, trans EdwardShils a.o., 2 vols. (Berkeley, 1978), ii, chaps. VIII.iv-v, XII.16-19. Weber'scross-cuttinginterestsin the formal rationalization of law, in the relation between law and economic development,and in the differentiationand competitionof elites, producea successionof suggestivetangents ratherthan a clearlystructuredmodel. On the rule of law and class conflict see also E. P. Thompson, Whigs and Hunters,supra note 2. 41. Unfortunatelywe do not know how the oligarchAntiphonangledthe argument in his speeches in defence of allied communities. 42. This development is discussed in more detail in Humphreys,"Evolution"and "Social Relations on Stage,"supra notes 4, 30. ix (Wies43. 222 Kock; E. Ruschenbusch,Solonos Nomoi, Historia-Einzelschriften baden, 1966), fr. 41=52c. 44. The accounts of legal technique in George M. Calhoun, GreekLegal Science (London, 1944), and J. WalterJones, Law and Legal Theory of the Greeks(Oxford, 1956), are inadequate.Rome is better served:for recentwork see, e.g., BruceW. Frier, The Rise of the Roman Jurists(Princeton,1985);MarioBretone,Technichee ideologie dei giuristi romani 2d ed. (Naples, 1982), especially 340-42; Aldo Schiavone,Nascita della giurisprudenza(Bari, 1976); B. Vonglis, La lettre et l'esprit de la loi dans la jurisprudenceclassiqueet la rhetorique(Paris, 1968). 45. G. M. Calhoun,"Oraland WrittenPleadingin AthenianCourts,"Transactions of theAmericanPhilologicalAssociation50 (1919): 177-93.Cf. Glenn R. Morrow,Plato's Cretan City (Princeton, 1960), 283; J. J. Keaney, "Theophrastuson Greek Judicial Procedure,"Transactionsof the AmericanPhilologicalAssociation104 (1974): 179-94; Humphreys,"Social Relations on Stage,"supra note 30, note 6. Edwin M. Carawan, "Erotesis:Interrogationin the Courts of Fourth-CenturyAthens,"Greek,Roman and Byzantine Studies 24 (1983): 209-26, collects examples of cross-examinationof opponents in court and points out that cross-questioningmay have been used more fully in arbitration,and in anakrisisand otherformsof preliminaryexamination(noteAeschylus Suppliants387f. Differencesin form of preliminaryprocedureprobablyhave no bearing on this question). 46. Cf. LawrenceCarter,The QuietAthenian(Oxford, 1986). 47. Ath. Pol. 35.2, cf. 9.2 and Peter J. Rhodes, A Commentaryon the Aristotelian Athenaion Politeia (Oxford, 1981), ad locc. See also E. Ruschenbusch,"Dikasterion panton kyria,"Historia 6 (1957): 257-74. The type of argumentto which the Thirty objected is illustrated in Biscardi, "Gnome dikaiotate,"and Hardcastle,"Non-legal Arguments,"supra note 37. D. Norr, Rechtskritik,supra note 29 sketchessome of the main lines of criticism of laws in classical Greece but does not try to relate criticism to historicalcontext. 48. Conservative reaction: H. T. Wade-Gery,"Thucydidesthe Son of Melesias," Journal of Hellenic Studies 52 (1932): 205-27 (= id., Essays in GreekHistory [Oxford 1958], 239-70). F Jacoby (FGH 328 F 120-1, n. 12), H.-J. Wolff(Normenkontrolleund in der attischenDemokratie,Sitzungsberichte derHeidelbergerAkademie Gesetzesbegriff der Wissenschaften,philos.-hist.Klasse 1970.2),and R. Sealey("On the AthenianConcept of Law,"ClassicalJournal 77 [1982]: 289-302) have all suggestedthat the graphe paranomon may have been introducedafter Pericles'sdeath. Second thoughts in the assembly in 427 and 416 (see K. J. Dover, "Anapsephisisin Fifth-CenturyAthens," Journalof Hellenic Studies 75 [1955]: 17-20)are not relevantto this question.Afterits suspension by the oligarchsin 411 the grapheparanomoncame to be seen as a con-

490


stitutionalsafeguard,but it may originallyhave been introducedas a checkon confusion in legislationratherthan as an impedimentto radicalchange. See also D. M. Lewis, in Attic Decrees,"in Phoros.Tributeto BenjaminDean Meritt "Entrenchment-Clauses (Locust Valley,N.Y., 1974), 21-38. 49. 1 Eratosthenes32-33; cf. PlutarchSolon 23, HarrisonLaw, supranote 15, i:34; F Salviatand C. Vatin,"La repressiondes violences sexuellesdans la conventionentre Delphes et Pellana,le droit d'Atheneset les Lois de Platon,"in idd., Inscriptionsde la Grececentrale(Paris, 1971), 63-75. 50. See A. Fingarette,"A New Look at the Wallof Nikomakhos,"Hesperia40 (1971): 330-35; K. Clinton, "The Nature of the Late Fifth CenturyRevision of the Athenian Law Code,"Hesperia,Supplement19 (Studies Vanderpool,1982):27-37. Lysias'attacks on Nicomachus,a memberof the commission,for leavingout old sacrificesand inserting new ones (Lysias30), howevertendentiousit may havebeen, suggestssome discretionary powers.M. Gagarin,"The Organizationof the GortynLaw Code,"Greek,Roman and Byzantine Studies 23 (1982): 129-46, helps us to understandwhat would have been involved in rearrangingthe laws of Athens. We badly need a study of citationsof laws in the Attic orators;it cannot be assumedthat any text cited belongswholly to a single date, nor that citations are complete and unabbreviated. 51. A. Boegehold,"A CentralArchiveat Athens,"AmericanJournalof Archaeology 76 (1972): 23-30. For recent work on ancient archivessee Lambrinudakisand Wtrrle, "Reformgesetz,"supranote 14; S. M. Sherwin-White,"AncientArchives:The Edict of Alexander to Priene, a Reappraisal,"Journal of Hellenic Studies 105 (1985); Callie Williamson,"Monumentsof Bronze,"ClassicalAntiquityvi. 1 (1987). 52. Douglas M. MacDowell,"The Chronologyof AthenianSpeechesand LegalInnovations 401-398 BC," 18 Revue internationaledes droits de l'antiquite(1971): 26774. 53. If jurors' interests resembledthose of the readingpublic (on which see Humphreys,"Social Relations on Stage,"cit. n. 30, 316-21), they were interestedneitherin legal nor in financialtechnicalities,preferringtopics which lent themselves to ethical argument.The numberof suits dealingwith mining, banking,and sea trade had by c. 350 grown to the point where it was worth making special arrangementsto deal with them promptly(L. Gemet, "Surles actions commercialesen droit athenien,"Revuedes etudesgrecques51 [1938]:1-44 = Gemet, Droitet societedans la Greceancienne[Paris, 1955], 173-200;in these suits the usual division of procedureaccordingto the civil status of the parties was abolished and even slaves were allowed to plead). But most of the speechesthat surviveor areknownfromtitles dealwith familyaffairs:inheritance, legitimacy,guardianship,etc. Apollodorus,son of the bankerPasion,mademanyspeeches in banking cases (Demosthenes 36 Phormio 20,41) but only two are preserved([Demosthenes] 49 Timotheusand 52 Nicostratus),one of which was of interest because the defendant,Timotheus,was a famousgeneral.Wehave fourspeecheson tradematters under Demosthenes'name (32-35):one on bankingfrom Isocrates(17), six fragments on similar topics from Lysias(35-40 Gernet).Disputes over the expensesof warships, probablyvery frequent,accountfor only four preservedspeeches(Demosthenes42, 47, 50 and, ostensibly,Isocrates 15 Antidosis)and two fragments(Hyperidesfrags.43-44 Kenyon). 54. It recurs in campaignsfor "law and order"in modem democracies;cf. Stuart Hall a.o., eds., Policing the Crisis:Mugging, the State and Law and Order(London, 1978). 55. See especiallyPoliticus294c, Meno 71e-73c, and cf. Humphreys,Anthropology,


491

supra note 3, 232-33; A. Szegedy-Maszak,The "Nomoi"of Theophrastus(New York, 1981), 2-7. 56. L. Gernet,"Note surla notion de delit priveen droitgrec"in Droitsde l'antiquite et sociologiejuridique,Melanges H. Levy-Bruhl(Paris, 1959), 403-5; H.-J. Wolff,"La structurede l'obligationcontractuelleen droitgrec,"44 Revuehistoriquede droitfranqais et etranger(1966): 569-83; id., "Zum Problem der dogmatischenAuffassungdes altgriechischenRechts" in P.Dimakis,ed., Symposion1979 (Athens,1983),7-20;cf. David Cohen, Theft in AthenianLaw ((Munich, 1983), 11-13. When Epicurussuggestedthat it is particularlyin makingcontracts(synthekai)that men perceivetheirmutualinterest in obeyinglaw, he may have been influencedby the growingimportanceof contractual relations in his own day (Ratae Sententiae 31-32 Arrighetti;cf. Reimar MUller,Die epikureischeGesellschaftstheorie, [Berlin, 1972],chap. 4). Earlierversions of the Greek "socialcontract"theoryof legalevolutionlaid morestresson the preventionof violence: see ThomasCole, Democritusand the Sourcesof GreekAnthropology(AnnArbor,1967), chap. 6 and pp. 112-17;V. Goldschmidt,"La theorieepicureennedu droit,"in Science and Speculation,ed. JonathanBarnesa.o. (Cambridge,1982), 304-26. 57. Laws 635b-674c;cf. P. Boyance, "Platonet le vin," Bulletin de l'AssociationG. Bude n.s. 4 (1951): 3-19. 58. Gerhard Ries, Prolog und Epilog in Gesetzendes Altertums(Munich, 1983), doubts the connection, but Lycurgusclearly regardedhis honorarydecrees as having an educationalfunction:Humphreys,"Lycurgusof Butadae:An AthenianAristocrat," in The Craftof the AncientHistorian,Essays in Honor of ChesterG. Starr,ed. J. Eadie and J. S. Ober (Lanham,Md., 1985), 199-252. 59. See the commentaryon FGH 328 F 65: C. Wehrli,"Lesgyn6conomes,"Museum Helveticum19 (1962): 33-38;Billie Jean Garland,"Gynaikonomoi"(Ph.D. diss., Johns Hopkins University, 1981). 60. It is not clear how far Plato differedfrom Attic law in allowingslaves to testify and act as supportingspeakersin homicide cases (Laws 937a-b; Glenn R. Morrow, Plato's Law of Slavery [Urbana, 1939], 77-89; Harrison,Law i, cit. note 15, 170-71); nor is it clear whether his silence on the torture of slaves implies that it was to be eliminated. 61. [Demosthenes] 43 Macartatus51, cf. W. E. Thompson, "Some Attic Kinship Terms,"Glotta 48 (1970): 75-81. 62. Jurors are exhorted in general terms to pass sentences that will deter future offenders(Lysias 14 Alcibiades4, cf. Lycurgus1 Leocrates9). Occasionallya past cause celebremay be recalled.But pastdecisionsareexempla,not a sourceof bindingauthority. Cf. J. F Cronin, The AthenianJuror and his Oath (Chicago, 1936);Jones, Law and Legal Theory,supra note 44, 133-35. Praetor:Alan Watson,"The Development of the Praetor'sEdict,"Journal of Roman Studies 60 (1970): 105-19. 63. Platohimselfhad a youngermatrilateralhalf-brother, Antiphonson of Pyrilampes (APF8792.viii), who is gentlyteasedabouthis horsytastesin Parmenides126a-c.Where remarriagewas due to divorce, the fatherwould have formal custody of the children, but thereis no evidence of problemsover continuedcontactwith the mother.Relations with stepmothers,however, are expected to be bad: Humphreys,"Kinship Patterns" supra note 30. 64. Allowed by Plato, in agreementwith his changein inheritancelaw (Laws 924ef, cf. E. Karabelias,"Homere,Platon et survivancesde l'epiclerat,"in Symposion1979 [Cologne, 1983], 177-96),and in Sparta,perhapsbecauseadelphicpolyandrywas practiced there. In Athens only patrilateralhalf-siblingscould marry;this did not disrupt inheritancepatterns.

492


65. The same situation is portrayed,without the conflict, in Menander'sDyskolos, where the girl and her adoptive half-brothermarrya brotherand sister;cf. Menander's Shield, where Chaereasand his matrilateralhalf-sistermarrya sibling pair. 66. Cf. Humphreys,"KinshipPatterns,"supranote 30. 67. The speakerof Iseaus 9 arguedthat the will was forged,that Cleon had been on bad terms with d.c. and that since his fatherhad been adoptedout of the family he no longer had any ties of kinship with d.c. The two latter points are broughtin to show that it was unlikely that d.c. would have adoptedCleon's son. In Isaeus 1 Cleonymus, d.c. had left his estate by will to kin more distantthan the speaker,his sister'sson. The latterclaimsthatthe will shouldbe disregardedbecaused.c.hadtriedto alterit, although he had died before he could do so. The argumentdoes not hinge on the legal standing of an intention to alter a will, but on the unfairnessof excludingby will those who would have inheritedunder the rules for intestatesuccession(4, 12-13, 27-28, 49) and on the intimate and affectionaterelations the speakerand his brothersenjoyed with d.c. (cf. Biscardi,"Gnome dikaiotate" and Hardcastle,"Non-legalArguments,"supra note 37). 68. Stobaeus22.vi, cf. 23.5, 39; E. Karabelias,"L'epiclerat dans la ComedieNouvelle et dansles sourceslatines,"in Symposion1971 (Cologne,1975),215-54;id., "Lasituation successoralede la fille unique du defunt dans la koine juridique hellenistique,"in Symposion 1977 (Vienna, 1982), 223-34. 69. This may well be part of the originalSolonian law. Cf the similar rule that a colonist could returnto the metropolisif he left an adult son or brotherin the colony in an early 5th c. Locrianlaw (M/L no. 20). 70. J. Meleze-Modrzejewski, "Drytonle cretois et sa famille ou les mariagesmixtes dans l'Egypte hellenistique,"in Aux origines de l'hellenisme.Hommages a H. van Effenterre(Paris, 1984),355-56;cf. Hans-JuliusWolff,Writtenand UnwrittenMarriages in Hellenistic and PostclassicalRoman Law (Haverford,1939);id., "The Background of the PostclassicalLegislationon Illegitimacy,"3 Seminar(1945):21-45 (repr.in Wolff, OpusculaDispersa[Amsterdam1974], 135-59);J.-M.Hannick,"Droitde cite et mariages mixtes dans la Grece classique,"L'Antiquiteclassique45 (1976): 133-48;A. P. Christophilopoulos,"Ho met' allodapesgamoskatato archaionhellenikonkaito hellenistikon dikaion,"Pragmateiai tes AkademiasAthenonxvii.2 (1951; reprintedin id., Dikaion kai historia [Athens, 1973], 68-85). The family memorialcult set up by Diomedon of Cos c. 300 BC admits nothoi to the association, though not to priestly office (Syll.3 1106.140;cf. Humphreys,The Family, Womenand Death: ComparativeStudies [London, 1983], 119-20). 71. GerardWatson,"The NaturalLaw and Stoicism,"in Problemsin Stoicism, ed. A. A. Long (London, 1971),216-38;M. Ducos, Les Romains et la loi (Paris,1984),esp. p. 229. 72. Incest taboo not universal,Xenophon Memorabilia4.iv.19-23, presumablyreferringto Zoroastrians(Norr,Rechtskritik,cit. supranote 29, 44 note 209). 73. Keaney,"Theophrastus,"supra note 45, 188; Keaney and A. Szegedy-Maszak, "Theophrastus'De EligendisMagistratibus:Vat. Gr. 2306, FragmentB," Transactions of the AmericanPhilologicalAssociation106 (1976):227-40;Szegedy-Maszak,"Nomoi" of Theophrastus,supra note 55. On Plato, Boyance,"Platonet le vin," supranote 57, 12.

74. Althoughlaws differedsomewhatfrom one Greekcity to another,the idea that culturesmight have radicallyincompatiblelegal systemsnever occurredto the Greeks. It was believed that in the past states had copied laws from each other and borrowed wise men to act as legislatorsand arbitrators(Szegedy-Maszak,"Legendsof the Greek


493

Lawgivers,"supra note 6), and the practiceof inviting a panel of visitingjudges from a neutral city to settle disputes between states or factions, known alreadyin archaic times, seems to have become increasinglycommon. 75. James M. Redfield,"The Womenof Sparta,"ClassicalJournal 73 (1978): 14661. 76. Michael Gagarin,AeschyleanDrama (Berkeley,1976). 77. Norr,Rechtskritik,supranote 29, chap. 6; LawrenceCarter,The QuietAthenian, supra note 46. 78. Humphreys,"Social Relations on Stage,"supra note 30.

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