Routledge Revivals

Law and Society in Classical Athens

Law and Society in Classical Athens, first published in 1987, traces the
development of legal thought and its relation to Athenian values. Pre-
viously Athens’ courts have been regarded as chaotic, isolated from the
rest of society and even bizarre. The importance of rhetoric and the
mischief made by Aristophanes have devalued the legal process in the
eyes of modern scholars, whilst the analysis of legal codes and practice
has seemed dauntingly complex.

Professor Garner aims to situate the Athenian legal system within the
general context of abstract thought on justice and of the democratic
politics of the fifth century. His work is a valuable source of informa-
tion on all aspects of Athenian law and its relation to culture.
This page intentionally left blank
Law and Society in Classical
Athens

Richard Garner
First published in 1987
by Croom Helm Ltd
This edition first published in 2014 by Routledge
2 Park Square, Milton Park, Abingdon, Oxon, OX14 4RN
and by Routledge
711 Third Avenue, New York, NY 10017
Routledge is an imprint of the Taylor & Francis Group, an informa business
© 1987 Richard Garner

The right of Richard Garner to be identified as author of this work has been
asserted by him in accordance with sections 77 and 78 of the Copyright,
Designs and Patents Act 1988.
All rights reserved. No part of this book may be reprinted or reproduced or
utilised in any form or by any electronic, mechanical, or other means, now
known or hereafter invented, including photocopying and recording, or in any
information storage or retrieval system, without permission in writing from the
publishers.

Publisher’s Note
The publisher has gone to great lengths to ensure the quality of this reprint but
points out that some imperfections in the original copies may be apparent.

Disclaimer
The publisher has made every effort to trace copyright holders and welcomes
correspondence from those they have been unable to contact.

A Library of Congress record exists under LC control number: 87004587

ISBN 13: 978-0-415-74433-1 (hbk)

ISBN 13: 978-1-315-81309-7 (ebk)
LAW& SOCIETY
IN CLASSICAL
ATHENS
Richard Garner

CROOM HELM
London & Sydney
© Richard Garner 1987
Croom Helm Ltd, Provident H ouse, Burrell Row,
Beckenham, Kent BR3 1AT
Croom Helm Australia 44-50 Waterloo Road,
North Ryde 2113, New South Wales

British Library Cataloguing in Publication Data

Garner, Richard
Law and society in classical Athens.
1. Law, Greek 2. Law— Greece— Athens
I. Title
343.8'5 [Law]
ISBN 0-7099-3847-0

Phototypeset by Sunrise Setting, Torquay, Devon

Printed and bound in Great Britain
by Billing & Sons Limited, Worcester.
 Contents

Foreword vii
Abbreviations viii
One: Justice, Traditional Values and Law 1
1. Introduction 1
2. Dike and Justice 4
3. General Values 11
4. The Law or Laws? 19
Two: The Courts 31
1. Introduction 31
2. The Religious Origin of Athenian Law 32
3. Homicide Law and Homicide Courts 35
4. The Popular Courts and Their Secular Nature 39
5. Law, Religion and the City 48
Three: The Administration of Justice 58
1. Introduction 58
2. The Contest 59
3. Quantity 71
4. Symmetrical Balance and Oppositions 75
5. Women and Law 83
Four: Law and Drama 95
1. Introduction 95
2. Historical Development 96
3. Dramatic Festival and Court: Institutional
Similarities 97
4. Complications and Comedy 99
5. Law in the Content and Tone of Tragedy 101
6. Tragedy and the Development of Attitudes towards
Law and Justice: Preliminary Considerations 105
7. A Chronological Study 109
8. The Final Outcome 123
Five: The Fourth Century 131
1. Introduction 131
2. The New Arguments 133
3. Legal Change 136
4. Fourth-century Literature 140
Bibliography I11
Index of Passages Cited I11
General Index I11
 Foreword

This book is aimed at a varied audience. I have tried to keep it acces­

sible to all educated readers including those with no Greek. I hope
particularly that it will be of use to those interested in the history of
ethics and the history of law. Still, it is meant to be used most by
classicists, and for this reason I have tried to include all the refer­
ences, both to primary and to secondary materials, that a specialist
might want or need.
The result is inevitably a text in which any given reader is almost
certain to find some sections which are either too general or too
specialized. Nevertheless, I feel that the material deserves to be
presented to both audiences.
David Grene, James Redfield, and Arthur Adkins encouraged
my earliest efforts in this work. The manuscript would never have
materialized without a luxurious Fellowship in the Society of
Fellows at Harvard University. In this atmosphere I gained
immensely from the company of Peter Galison, Donald Reid, Terry
Castle, Alec Marantz, Nita Krevans, Susan Blaustein, and Denis
Feeney. Lillian Doherty, Victor Bers, and Elizabeth Meyer all read
the manuscript and provided valuable comments. From the
beginning to the end my greatest debt is to Anne Burnett. Her
detailed criticism and suggestions are responsible for countless
improvements in the text. The Greeks, who were so interested in
quantity and who used quantification so much, would not have been
able to measure what she has done or what I owe her in return. But
then, they would not have needed to: they could simply call it charts.

I11
 Abbreviations

Abbreviations in the Text and Notes

FGrH Fragmente der griechischen Historiker, F. Jacoby. Berlin

and Leiden, 1923-58.
FHG Fragmenta Historicorum Graecorum, 5 vols., C. Muller.
Paris, 1841-70.
GHI2 A Selection o f Greek Historical Inscriptions, 2nd edn, M.N.
Tod. Oxford, 1946-48.
IG Inscriptiones Graecae
LSJ A Greek English Lexicon, 9th edn, Oxford, 1940.
N2 Tragicorum Graecorum Fragmenta2, ed. A. Nauck.
Leipzig, 1889.
2 Scholiast
SIG Sylloge Inscriptionum Graecarum, ed. W. Dittenberger.
Leipzig, 1915-24.

Titles of Journals Abbreviated in the Notes

AJA H American Journal of Ancient History

AJP American Journal of Philology
CJ Classical Journal
CP Classical Philology
CQ Classical Quarterly
CR Classical Review
GRBS Greek, Roman and Byzantine Studies
HSCP Harvard Studies in Classical Philology
JHS Journal of Hellenic Studies
TAP A Transactions of the American Philological Association
ZPE Zeitschrift fur Papyrologie und Epigraphik

References to classical authors and works generally use the abbrevi­

ations of LSJ. However, where doubt might arise, fuller forms have
been used.

I11
 1 Justice, Traditional Values
and Law

1. Introduction

In recent years there has been a great deal of writing and almost as
much disagreement about popular values and moral thought in
ancient Greece. One of the better known and more controversial
books in this area is devoted entirely to the topic of justice. The
review of the book which the author most liked included one
particular criticism which he found the most interesting: the book
does not deal with law.1The decision not to treat the topic is under­
standable. In any society the relationship between law and morality
— and in particular between law and justice — may be complex and
difficult to characterize. For example, the legal and moral uses of
our word justice overlap but are not identical. Thus when we use the
word to refer to an abstract ideal we may mean something very
different from what is designated by the same word in the phrase
‘the administration of justice’.
The development of legal thought in classical Greece and its
relationship to Greek values and society have remained relatively
unexplored. The great work by Gernet, cited by the reviewer and
author above, is discussed at some length below; but it has called
forth little response since it appeared almost seventy years ago. In
part, the splendor of the Roman legal system has long eclipsed the
importance of Athenian law and contributed to its neglect. Even
excellent handbooks of Greek law have tended to go out of print
quickly. The business of Athenian courts has often been treated or
regarded as a chaotic or relatively isolated part of the society. In his
Rhetoric Aristotle tried, after his fashion, to separate and
systematize forensic oratory and the matters appropriate to law:
accusation and defense should properly be made about the just and
the unjust with regard to the past. He opposed this to two other
types of oratory: deliberative rhetoric, which dealt with exhortation
to the expedient or dissuasion from the inexpedient with regard to
the future; and epideictic, which, in a timeless way, praised the
noble and blamed the base.

1
2 ,
Justice Traditional Values and Law

Yet Aristotle was well aware that this was merely an ideal division
(R h. 1.1.5-6). Most courts admitted presentation of all sorts of
materials; and the topic of expediency was one of the most common
in fourth-century court speeches — even Aristotle allows that it
must sometimes be considered (1.15.25). He acknowledges that
there are those who consider justice unimportant (1.7.37-8) and
that those most likely to break the laws are the eloquent and wealthy
who have legal experience and many friends, all of which advan­
tages make acquittal more likely (1.12.1-3). And he notes that
success at competition in the law courts provides great pleasure just
as it does in sports and games (1.11.15-16). All these observations
indicate that law as practiced was not neatly separated along
abstract conceptual lines.
Now as will become clear in the course of this study, by Aristotle’s
time legality was far more autonomous and clearly defined than it
had ever been in Athens before. Nevertheless, many peculiarities
had been inherited from a system which had developed under much
different circumstances. In order to understand the Athenian
popular courts and the administration of justice in them it is
necessary to go back to their genesis in the mid-fifth century and the
forces which shaped their formation and growth.
For the same reason that a book on justice would profit from a
consideration of law, a book on Athenian law must come to grips
with the topic of justice. This first chapter outlines the nature of the
concept so that the degree of its relevance to the courts can be made
clearer. However, the remainder of the book examines the nature
of Athenian law and its place in society by approaching the topic in
other ways. The second chapter concentrates on historical factors in
the development of the popular courts which affected their place in
the city. The third chapter characterizes Athenian law by
identifying some unusual formal patterns in legal procedure and
substantive law. The fourth chapter examines literature as one way
of tracing the development of attitudes toward law. And the final
chapter describes fundamental changes which occurred in law and
legal thought in the fourth century b c .

Aristocratic leaders struggling for honor brought endless woes to

the Greeks. Thus begins the Iliad. The quarrel of Achilles and
Agamemnon is not settled by the rule of law. Theirs is a society of
traditions and customs which apply to narrowly defined categories
of persons and relationships rather than to general classes. These
 Justice, Traditional Values and Law 3

customs, nomoi, regulate the competition for honor and aristocratic

rank. There are behaviors characteristic of various types of men.
These may be called dikai; and the dike of even the ‘best’ men, the
people’s leaders, is not impartial (O d. 4.687-92). By the mid-fifth
century b c in Athens, disputes were settled in court by large democ­
ratic juries. Customs had been supplemented with written laws, but
the traditional competitive aristocratic value system had not been
replaced or systematically augmented by a new moral or legal order
of values. The words nomoi and dikai were used but had not been
clearly redefined in terms of democratic institutions.
In Athenian law, therefore, we confront a great paradox. On the
one hand, we find a high degree of institutional autonomy in the
form of courts which probably involved a greater portion of the
citizen body in more hours of court adjudication than in any society
before or since. On the other hand, this activity occurs in a society in
which the concept of justice is far from clearly defined. Athenian
law had almost no methodological autonomy; there was no legal
reasoning or style distinct from moral or political discourse.2 As a
result, the language of the democratic courts was peculiarly tied to a
traditional aristocratic value system which at times placed
competitive ideals above justice. Another way of describing the
situation would be to say that ‘justice’ in some senses was not in
clear conflict with competition or aggression.
In addition, Athenian legal procedure was linked to aristocratic
competition by a pervasive isomorphism in Athenian public
activities. Athletic competition, assembly meetings, dramatic festi­
vals, and court cases all involved large groups of citizens who were
the audience for a very small number of individuals competing
against each other. In some cases, the law courts served merely as a
forum for the extension of political conflict and power struggles.
Yet even though the administration of justice in Athens was
remarkably susceptible to traditional competitive values, and the
courts resembled other competitive institutions, the legal order was
structurally committed to a cooperative resolution of conflict and
was more general and autonomous than custom. The Athenians
were quite proud of their laws which guaranteed a degree of civic
equality in court.3 And since the courts played such a large role in
Athenian life, the formal aspects of the legal order had an effect on
popular values and ethics. The effects may have been magnified by
a general crisis in values in the late fifth century. At any rate, the
laws and courts influenced the moral climate of the city, and the
4 ,
Justice Traditional Values and Law

moral climate in turn determined how the laws and courts were used
in the society.
In order to see how the legal processes grew out of the value
system we will turn first to the uses of the word dike and the question
of the traditional notions of justice. This will lead to a brief consider­
ation of some other aspects of popular morality and values in mid-
fifth-century Athens which are relevant to social behavior. Finally,
we will consider the word nomos and attitudes towards law and
laws.

2. Dike and Justice

The recent volume of work and intensity of debate on the notion of

justice in ancient Greece stems at least in part from apparently deep
disagreements on the subject.4 It is difficult to identify an aspect of
the topic which is not bitterly disputed. Some studies have focused
on the use of certain words — the so-called lexical approach; others
claim that this is too limited to be a satisfactory method. Some have
held that ideas of justice change radically between the time of
Homer and the classical period; others defend basic continuity. And
it is even maintained by some that dike, the word often translated as
‘justice,’ is not a moral term at all in early Greek. In fact there is
much less distance separating the various positions than many of
their defenders claim.
The contention that dike does not have a general moral sense in
early Greek derives from a fact on which everyone agrees: at least
some uses of dike are non-moral. Specifically, in the Odyssey and
later Greek, dike is often the order of nature, the way some group or
class of people or things normally behaves. Various patterns and
properties of society and nature may provoke various responses: the
Greeks considered the world far from perfect, and the structure of
society was obviously more pleasant for some members than for
others. But each element of the standing order, if it is a mark or a
characteristic of a group, is unquestionably dike. The common man
does not commend or take comfort in the fact that kings behave out
of bounds and act on partialities. But this is nonetheless the dike or
the way of kings (O d. 4.687-93). Similarly, no one would claim that
it is ‘good order’ or ‘justice’ when men lose their flesh and bones at
death and the soul flies away. It is simply the way things are {Od.
11.216-22).5
 ,
Justice Traditional Values and Law 5

Another meaning of dike, found in both the Iliad and Odyssey

and potentially more important for moral usage, is ‘ruling’ or ‘settle­
ment’. It can be the decision itself or the process of peacefully
settling a dispute whether by arbitration or higher command. Of this
usage there are many instances. There is more to be said about
Homeric usage, but there is also a point of non-usage stressed by
those who make the case for the absence of moral connotation in
dike. That is that whatever the word dike means, it is not important
in Homer.

No important character is called dikaios; no one ever appeals to

dike when he has been wronged; no warnings or threats mention
dike; and none of the major actions of the epics, such as the
avenging of Paris’ theft, or the punishment of the suitors, or of
Aegisthus, is ever spoken of as dike.6

Such analysis has been criticized both for its characterization of

Homeric usage and for limiting its approach to the occurrence of
specific words. Indeed, even using this lexical approach one finds
that elsewhere in early Greek poetry, specifically in the works of
Hesiod, dike figures much more prominently. Here, as in Homer,
dike may sometimes simply mean ‘settlement’ or ‘legal process’. But
other uses, as well as the general framework of Hesiod’s narrative,
indicate that dike may mean more than this. Even as legal process, it
is clear that it is a highly valued process which should help peacefully
to protect a man from having his rights transgressed by another.7
Moreover, there are Homeric uses for which the translations ‘legal
process’ and ‘settlement’ seem forced and artificially restrictive (II.
16.387-8, Od. 14.81-4). In these and similar passages, dike words
seem to have a moral force as terms for evaluating the approp­
riateness of various human behaviors. Such a finding should not be
surprising: other Homeric words such as themis and hybris are also
used to approve or disapprove of men’s actions. And yet this in itself
indicates very little. As Plato’s Protagoras explains so eloquently,
no human society is possible without some orderly restraints on
behavior (Prt. 322-3). But it is crucial to establish what guidelines
for action the society sets. It is true that dike entails respecting a set
of traditional limitations and commends the due order of Homeric
society, perhaps even in a fairly abstract way. But it must be remem­
bered that this due order need not necessarily include a
6 ,
Justice Traditional Values and Law

commitment to a legal or democratic order which would apply

equally to the community members with respect to their actions
toward each other. In fact, in the aristocratic world of the Homeric
poems dike even as a moral term will mean very different things for
different men since rights and appropriate behaviors vary greatly
from individual to individual.
In part, then, the modern confusion and disagreement over the
meaning of dike have stemmed from this original range of Homeric
and early usage which includes both the moral and the non-moral.
As we shall see, both these senses continue into the classical period
and at times partially fuse. This creates special difficulties in the uses
of dike in reference to the gods. That is, the topic of theodicy, which
might be of particular interest in a legal system, actually involves a
number of complicated ideas rather than one clear one.
In turning to fifth-century usage, we find that ‘dike is used in
prose predominantly in the senses “lawsuit” , “settlement” , “satis­
faction”, “penalty”, i.e. the readjustment of a contested balance of
gain or loss’.8 In fact, as has been recently re-emphasized, ‘dike in
the sense of “justice” is not an Attic usage’.9 Poetic usage in the
period is far more complex. But before examining poetry in detail, it
is worth noting that dikaiosyne, a word which in the fourth century
becomes common and is then the regular word for ‘justice’, is found
only once in extant Greek literature before Herodotus and less than
a dozen times before the fourth century.10 Of these, the five which
occur in Herodotus generally concern great men upholding specific
agreements, and the remaining instances are mainly from sophistic
fragments. Dikaiosyne seems not to have been a popular word in
any sense. In tragedy it is confined to one Euripidean fragment
(486N2).11 Finally, it is noticeable that no rhetor cared to use it in
any of the extant court speeches from the fifth century.
If we turn to tragedy, we find that the usage of dike and its related
adjectives shows a general continuity and conformance with
Homeric usage. For example, the chorus in Medea uses dike at line
411 in its common Homeric sense of ‘natural order’ (‘both dike and
all things are turning back’). As Verall explains (ad loc.):

To give dika here its later sense of justice is exactly contrary to the
meaning, for the women are arguing that justice is about to be
satisfied, and women to have their rights through a signal
contradiction of common experience.
 ,
Justice Traditional Values and Law 1

A similar use of the dike words relates statements, appearance or

behavior to the facts of the situation. In such passages the English
should usually contain a phrase such as ‘in fact’ or ‘really.’ So when
Jocasta explains that Apollo’s oracle can never be fulfilled dikaios
orthon, it makes no sense to import any moral terms into the phrase.
It simply means ‘as stated’ or ‘corresponding to actual events’
(Soph. O. T. 852ff., 1282; cf. Trach. 347). Similarly, dike, especially
in the phrase pros dikes, often has nothing to do with approval or
disapproval of action. Rather it is used to clarify the sole logical
response in a given situation. In these passages, the English would
run something like, ‘Given these facts, there is no need to fear/sigh
etc.’12
This non-moral equation or weighing of two quantities is also
found with the adjective dikaios. The regular construction for this
sense uses dikaios applied to a person coupled with an infinitive
followed by a finite form of einai (Eur. Supp. 186, Heracl. 142,775),
something like Aeschylus’ kyrios eimi throein (Ag. 104). Perhaps
the best single word for this usage is ‘competent’. This was noted by
Paley, who was more anxious than most to find justice in his
G reek.13 The adjective axios is used in the same way to indicate the
required equivalent in totally matter-of-fact situations (Eur. Hipp.
236).
All this calculated balancing is likely to make us think of equity
and the scales of Justice. Moreover, such associations are
encouraged by passages such as Agamemnon 250 — ‘Dike weighs
out understanding to those who have suffered.’ But it will be almost
impossible to obtain Greek sense from the Greek by using modern
ideas of justice and of what things may be appropriately weighed
against each other in the scales. More helpful material for
comparison may be found in Greek poetry where we find that
Bacchylides, Pindar and Aeschylus obsessively match various
actions and events as the required or fated equivalents of each
other. In epinician poetry and the tragic choral ode responsion, the
existence of metrically equivalent positions which can be used for
echoes is particularly suited for juxtaposing and relating quantities
we would have considered neither commensurate nor commensura­
ble.14
Now Greek tends to label these correspondences dike, and we are
apt to confuse ourselves if we call the acts of birds which require the
sacrifice of a child justice. Nevertheless, when something is called
forth by something else, it is dike; and as we noted at the beginning