Bryn Mawr Classical Review 97.4.17


Alexander Tulin, Dike Phonou: The Right of Prosecution and Attic Homicide Procedure. Beiträge zur Altertumskunde, Band 76. Stuttgart: B. G. Teubner, 1996. Pp. x + 135. ISBN 3-519-07625-X.


Reviewed by Michael Gagarin, The University of Texas at Austin, gagarin@mail.utexas.edu.

This book addresses a single question: according to Athenian law, who had the right to bring a prosecution for homicide? More specifically, was the prosecution of homicide restricted to those family members specified in Draco's law (or in the case of a woman her kyrios, or a slave his master), or was prosecution by a relative only the general rule, with exceptions being possible in certain cases? Tulin's monograph is directed against several scholars1 who have argued that although the law directs family members to prosecute, it is not explicitly restrictive and would not prevent others from prosecuting in certain cases. Tulin examines the three pieces of evidence bearing on the issue -- IG I3 104 (Draco's law), Dem. 47.68-73, Plato, Euthyphro 3E7-5D7 -- and concludes that the law clearly restricted prosecution to specific relatives and neither was, nor was thought to be, ambiguous. He argues that the degree of relationship had to be declared in the plaintiff's oath and if it was not within the limits set by the law, the case would not be allowed to proceed. Tulin acknowledges that the nature of Athenian law imposes certain limitations on this restrictive argument, but insists that the possibility of non-relative prosecution exists only as a theory of ingenious modern scholars; for the Athenians themselves homicide was always, de facto and de jure, a family matter.

Tulin's treatment of these passages is detailed and narrowly focused; consideration of procedures other than the DI/KH FO/NOU is explicitly excluded. The extensive footnotes appear to comprise about 50% of the total words, and it is not unusual to find a dozen or more scholars cited on a given issue; an 18-page bibliography and indices conclude the work. Despite this thoroughness, however, I am not fully persuaded. Tulin treats many details with sound logic, but his argument as a whole is less conclusive and is not likely to win over his opponents. The following brief and highly selective comments are meant to explain some of my main reservations. I will naturally dwell on disagreements with Tulin and pass over many points of agreement.

Draco's law (lines 20-23) states that agnate relatives "are to make the proclamation" (PROEIPEI=N) and others "are to join in the prosecution" (SUNDIW/KEIN). For Tulin this text, though "not so explicit as we might have hoped," clearly implies and intends that only relatives could prosecute. I would agree that Draco envisaged only standard cases where relatives would prosecute, but the fact that he did not explicitly make the law restrictive (e.g. by adding "and no one else") leaves open the possibility that a later litigant could argue for a less restrictive understanding. It is impossible to say "there was no ambiguity in the archaic law"; litigants ancient and modern often find ambiguity where their predecessors, including the original legislator, may have been confident that none existed, and we have several examples of an Athenian litigant pushing the law beyond what would appear to be its clear intent (e.g., Ant. 6, Lys. 13).

In Dem. 47 the speaker, or Trierarch, relates an episode concerning a woman who was formerly his slave; she was freed but later returned to live in his house, where she was assaulted by intruders in his absence. When she died from the blows, the Trierarch was unsure what to do, and so he consulted the exegetai (religious expounders) who both explained the law and gave him advice. I summarize the Trierarch's account with Tulin's translation in quotes and the Greek at significant points.

First, the law: if there be anyone related to the woman (PROSH/KWN TH=S A)NQRW/POU), he should carry a spear and make a proclamation at the tomb and guard the tomb for three days. And this is our advice: since you were not present and have no witnesses except your wife and children, do not make a proclamation against anyone by name, but in general against the perpetrators and the murderers, and do not bring suit before the basileus. "For that course is not open to you under the law (OU)DE\ GA\R E)N TW=| NO/MW| E)/STI SOI),2 since the woman is not a relative of yours" (E)N GE/NEI SOI) nor your servant,3 as you say, "and it is to relatives or to masters that the law appoints the duty of prosecuting." The exegetai then add some further explanation and justification: "if you should take the oath at the Palladium" (a specially solemn homicide oath) ... "you will lose the goodwill of many, and if your opponent is acquitted, you will be thought to have committed perjury, and if you convict him, you will be an object of malice." They urge him just to bear his misfortune, and since his friends give the same advice, he does as they say. "For the law ordains (KELEU/EI) that prosecution shall be by relatives (TOU\S PROSH/KONTAS) within the degree of children of cousins; and that4 in the oath inquiry shall be made as to what the relationship is (O(/ TI PROSH/KWN E)STI/N), even if the victim be a servant, and it is from these persons that criminal actions shall proceed. But the woman was in no way related to me by blood" (E)MOI DE\ OU)/TE GE/NEI PROSH=KEN H( A)/NQRWPOS OU)DE/N), nor was she my servant. "Now (the Trierarch concludes), to tell a false story to you and support it by an oath ... was a thing I dared not do, even if I knew well that I should convict these men."

from prosecuting because he was neither a relative nor the master of the victim. He could only have prosecuted by swearing a false oath that he was one of these. Tulin makes much of this oath, insisting that the point on which the Trierarch refused to swear falsely must be his relationship to the victim. The rhetorical structure of the story (he feels) requires this conclusion.

In all this, Tulin seems more concerned with the trees than the forest. The Trierarch goes to great lengths to defend his behavior,5 and we may suspect that he is presenting a self-serving view of the situation -- a possibility Tulin seems not to take seriously (50-51). Nor does Tulin confront the obvious objection that the recommendation not to prosecute is presented as advice, not law; the exegetai could easily have said (or the Trierarch could have reported that they said), "the law requires a proclamation but prohibits you from prosecuting because you are not her relative or master." As it is, they surely imply a difference between their advice and the strict legal requirement; and the explanation and justification they add to their advice (including considerations other than the issue of relationship) further imply that it would not have been uncontroversial. Even today, when the law has far greater precision and clarity than it had in classical Athens, a lawyer may assert that certain conduct is legal, while fully aware that the law could be interpreted differently. Athenian litigants may claim their behavior was required by law when we can be quite certain that other courses of action would also have been legally sanctioned (Lysias 1 has a well-known example). Indeed, even if the exegetai had issued a clear and unequivocal interpretation of the law, we could not rule out the possibility that they were mistaken or biased. In short, this passage is far from conclusive.6

Tulin bases his discussion of Euthyphro on the conclusion reached from the first two passages, that the law restricted prosecution for homicide. He thus defines his task as determining whether Plato's dialogue "when properly understood" is consistent with this conclusion. The crucial passage is 4B4-6. Euthyphro has just informed Socrates that he is prosecuting his own father for homicide. Socrates expresses amazement at the special insight into piety Euthyphro must have in order to undertake such an action, and then asks, "Is the man your father killed a relative (TW=N OI)KEI/WN TIS)?7 Of course he is; you surely wouldn't prosecute him (AU)TW=|) for homicide on behalf of someone outside the family (U(PE\R A)LLOTRI/OU)." Tulin takes this as implying unequivocally that the law is restrictive. To reach this conclusion, he is forced to downplay the clear emphasis Plato puts on the fact that Euthyphro is prosecuting his own father. Such an action would normally require a compelling moral obligation, such as the murder of a relative, whereas in this case the death is arguably unintentional and the victim is a dependent but not a family member. But nothing in the discussion suggests that Euthyphro would not legally be allowed to prosecute, and Socrates does not say this; rather, he says (or implies) that one would surely not prosecute one's own father8 unless he had killed a relative. Moreover, although Euthyphro's family and friends are silent on the issue of his relationship with the victim (as Tulin notes), they voice their objections to the idea of prosecuting one's father at some length (4D5-E1) without mentioning the victim's relationship with Euthyphro. Clearly this was not a major factor in their view that he should not prosecute.

Anyone who wants to study this subject in detail must begin with Tulin's book. Others, however, will want to rely on more summary treatments elsewhere.9


NOTES

1. Especially Douglas Macdowell, Athenian Homocide Law (Manchester 1963); Michael Gagarin, GRBS 20 (1979) 301-23.

2. I would translate this key phrase less restrictively: "for according to the law it is not your (concern, task, duty)."

3. Throughout this passage, "servant" (therapaina or oiketes) implies "slave."

4. This is a mistranslation and "that" should be omitted; the clause about the oath is separate and independent and is often treated as parenthetical (even by Tulin, p. 29).

5. I have omitted a good bit in the above summary.

6. It may be important that there seems to be a significant distinction between the language of the law, which uses PROSH/KWN for "relative," and the justifications offered for the Trierarch's not prosecuting, which use the limiting expression (E)N) GE/NEI). The former might be understood more broadly than "relative," and could include the Trierarch's relationship with his former servant; the latter restricts interpretation of the law to "blood relatives."

7. "Relative" may be too restrictive for OI)KEI=OS.

8. Tulin omits the word AU)TW=| in his discussion of 4B5-6.

9. E.g., most recently Stephen Todd, The Shape of Athenian Law (Oxford 1993) 272-73.