Michael Gagarin

The Nature of Proofs in Antiphon

Of all the Athenians of his day Antiphon was second to none in virtue and had the greatest power both in intellect and in the expression of his thoughts. He did not come forward in public or willingly enter any dispute, being regarded with suspicion by the multitude because of his reputation for cleverness (6t6 66btav t). Nevertheless, for those involved in a dispute, whether legal or political, he alone was most able to help whoever consulted him for advice.

Athenian Citizenship Law

From Aristotles perspective in the late fourth century, the question “who is a citizen ( politēs )?” is one of the first questions that arise when thinking about the nature of the state. “The state,” he says at the opening of Book 3 of the Politics , is composite, like any other whole made up of many parts - these are the citizens, who compose it. It is evident, therefore, that we must begin by asking, who is the citizen [ politēs ], and what is the meaning of the term? (1274b40-42) After considering and then rejecting various options, such as those who “live in a certain place” or those who have the “legal right to sue or be sued,” as too broad, Aristotle arrives at the conclusion: “he who has the power to take part in the deliberative or judicial administration of any state is said by us to be a citizen of that state” (1275b19-21). He then dismisses the “practical” definition that a citizen is the child of citizen parents as not in fact much of a definition - e.g., what about the founder of a new state - is he not a citizen (1275b23-33)?

Writing, Law, and Written Law

Athenians of the classical period so venerated their ancient law-giver, Solon, that the laws of Solon still formed the basis of Athenian law in the radical democracy. Even after they revised the law code in the late fifth century, Athenians still referred to Athenian laws as “the laws of Solon,” confusingly mingling new and old laws under this one description. Yet we are told, even these laws were flawed. Some critics are mentioned by the Aristotelian Constitution of Athens ( Ath. Pol . 9.2): Solons laws, they claimed, suffered from lack of clarity, which created disputes, and “some think this was deliberately to put the demos in charge ( kyrios ) of the trials.” This example brings out several of the themes of this chapter: the role of early Greek laws and law-givers like Solon, the perceived and actual importance of writing down the law, the problems that arose even when the laws were recorded in writing, and the intimate connection between written laws and the bodies which put them into action.

Relevance in Athenian Courts

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

The Rhetoric of Law in Fourth-Century Athens

Following a brief exposition of the rise of rhetoric in Athenian democracy, the first task of this chapter is to explain how rhetoric became a primary instrument of the judicial process in fourth-century Athens even though rhetoric had no intrinsic interest in the law. The second task of this chapter is to demonstrate how rhetoricians spoke about the law and used it for rhetorical purposes in speeches delivered by them or others before the law courts of Athens. Athenian Democracy and the Rise of Rhetoric The Athenian democracy of the fifth and fourth centuries B.C.E had no executive office or executive council. Rather, official, binding decisions were made in two public, democratic institutions, the Assembly and the courts. The purpose of both institutions was to express the will of the demos – that is, the mass of ordinary citizens who made up the vast bulk of the citizen body and wielded power in the state – in a fair, open, institutionally stable way. The demos delegated tasks and decisions to lesser institutions or colleges of magistrates in the name of efficiency. Initiatives in the Assembly and courts were in the hands of individuals, who competed for political leadership. And the demos often reconsidered or revised its own decisions. But there were no institutional mechanisms to limit the demos ’ sphere of activity, and there was no doctrine of rights restricting the will of the demos . The power of the demos within the state was absolute, its decisions in the Assembly and courts were final and not subject to appeal.

Crime, Punishment, and the Rule of Law in Classical Athens

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

Theories of Punishment

Legal punishment typically involves the deliberate infliction of pain, harm, or loss on an individual by the state or community in the form of a judicial response to the violation of a legal norm. Legal punishment is what gives the criminal law its coercive force and distinguishes, in modern legal systems, criminal law norms from the norms of contract, property, and the like. In different legal systems punishment may take different forms: loss of life, liberty, or property; deprivations of civic rights or social status; banishment; dishonor; torture, branding, or mutilation; outlawry/prescription; or the infliction of such penalties on family or relatives of the convicted person. All of these forms of punishment are found in some manner in Athenian law, though not all of them could be inflicted on citizens, as opposed to foreigners or slaves. As Demosthenes puts it in Against Androtion (22.55-56), what distinguishes the slave from the free man is that the latter is sacrosanct in his person/body, which is respected even when he is convicted of wrongdoing. The slave, on the other hand pays the penalty with his body. Indeed, punishment in most premodern legal systems was linked to civic and social status. It is beyond the scope of this chapter to address the practices and modalities of punishment at Athens, though there is much room for further research in this area.

Greek Law in Foreign Surroundings: Continuity and Development

Egypt came under Greek rule after the conquest of Alexander the Great in 332 B.C.; the Ptolemaic dynasty ruled until the conquest by Octavian in 30 B.C. Egypt was then a province of the Roman Empire until the Arabs conquered it in 641 A.D. After the Greek conquest, an important migration of Macedonians, Greeks, and other groups took place from Greece and the surrounding areas of the Mediterranean. These groups then settled either in Greek poleis , such as old Naucratis, or in the newly founded cities of Alexandria and Ptolemais, but by far the majority settled all over the flatland of the chora (countryside). In keeping with their ancient customs, the immigrants brought their own law and lived according to it. The resulting questions about the continuity and development of law, the possibility of mutual influence between Greek and native Egyptian law, as well as questions about the practice of law, are of general legal-historical interest. In this chapter, these questions will be examined primarily for the Ptolemaic period. The problematic nature of the relationship of Roman law (“Reichsrecht”) to native law, or better, to native laws (“Volksrechte”) developed in different ways after the Roman conquest, and the question of provincial law will only be sketched here.

Women’s property at Gortyn

In two earlier articles (Gagarin 2008, 2012) I argued first, that women could own property in their own right and could manage and dispose of it without the need of a “guardian” (kyrios), such as we find at Athens, that they could appear in court on their own as plaintiffs or defendants, and that they had more rights in choosing a husband than Athenian women. Second, we can infer from the wording of the laws at Gortyn that women’s rights in these respects had only recently been granted or had been expanded, and that resistance to these greater rights led to greater protection for women in the Gortyn Code. Third, the Code suggests, however, that despite these greater rights, most women probably continued to live fairly traditional lives, allowing men to manage their property as they always had. This paper defends these views against objections raised by Alberto Maffi in Maffi 2012 and in this same journal (Dike 15), as well as by two anonymous readers. In due articoli precedenti (Gagarin 2008, 2012) ho sostenuto che le donne potevano essere proprietarie di beni, e potevano amministrarli e disporre di essi senza bisogno dell’intervento di un tutore (kyrios), quale troviamo invece ad Atene; che potevano stare in giudizio per proprio conto sia in veste di attore che di convenuto, e che avevano maggiore liberta di scegliersi un marito rispetto alle donne ateniesi. In secondo luogo possiamo desumere dal testo delle leggi di Gortina che i diritti delle donne riguardo a questi punti sono stati garantiti o addirittura accresciuti solo in tempi recenti, e che la resistenza a questo ampliamento dei loro diritti ha condotto a una protezione accentuata delle donne nel Codice di Gortina. In terzo luogo il Codice induce a ritenere che, nonostante questo accrescimento di diritti, la maggior parte delle donne probabilmente continuava a vivere secondo canoni tradizionali, consentendo agli uomini di amministrare i loro beni come era sempre avvenuto. Questo articolo ribadisce questi punti di vista contro le obiezioni sollevate da Alberto Maffi 2012 e in questo stesso numero della rivista (Dike 15), nonche da due anonimi revisori.

Early Greek Legal Thought

To write about early Greek legal thought requires, first, some consideration of what this expression might have meant at the time. “Legal philosophy” in the modern sense did not exist before Plato, but “legal thought,” in the sense of thinking about law, undoubtedly did. We find various reflections on law explicitly or implicitly in the writings of many who are now classified separately as poets, philosophers, sophists, or historians, but whom the Greeks would have grouped together under the term sophoi—“wise men.” In thinking about law, however, the Greeks differed considerably from us in their basic construction of the subject.