Odile de Bruyn, La compétence de l'Aréopage en matière de procès publics. Historia Einzelschrift 90. Stuttgart: Steiner 1995. Pp. 226. DM 80. ISBN 3-515-06654-3.
Reviewed by Robert W. Wallace, Department of Classics Northwestern University, email@example.com.
This study of the Areopagos began as a Louvain dissertation, defended in March 1993.1 B(ruyn) divides her work chronologically into four sections: "the age before Ephialtes," "Ephialtes and the age of the radical democracy," "the age of the orators," and "the Hellenistic age"; an appendix follows, on "the age of Roman domination." B. thus continues beyond the early Hellenistic period where most previous studies of the Areopagos have stopped. By contrast, she restricts her investigation to the Areopagos's competence in public cases, especially those involving tyranny, treason and bribery, and also (more briefly) impiety and "idleness." On the grounds that others have done so, she does not discuss the Areopagos's competence in homicide or other private cases, and she does not consider such questions as the Areopagos's composition, its significance in Aeschylus's Oresteia, or -- in detail -- its role in fourth-century ideologies of the "ancestral constitution."
Overall, B.'s is a lucid, courteous and intelligent presentation of the evidence for the Areopagos's role in public cases. Each chapter sets out texts and translations, with an up-to-date bibliography including some older items that had largely been forgotten. These are followed by discussion. Each chapter has something new. In particular, B.'s criticisms of various arguments regarding the Areopagos are often compelling.2 B. is especially worth reading on apophasis (a denunciatory procedure) in the second half of the fourth century. She also provides a catalogue of all known apophaseis.
Although on many specific points B. sensibly does not seek originality, her focus on public cases has produced a new thesis, which has shaped the contents and arguments of the book. Down to 146 B.C., she argues, in a "très grande unité" (13, cf. 85), all of the Areopagos's competence in public matters pertains to its role as "guardian of the safety and équilibre of the polis" (195), especially against hidden threats. Even in the period before Ephialtes it exercised no wider governmental or administrative functions (197). The Areopagos exercised this competence more or less continuously from its origins down to 146, doing little more than this (by way of public procedures) before Ephialtes, and continuing to do it after him by means of apophasis, which was introduced not in the 340s (as generally thought) but probably by Ephialtes himself. The primary change is that after 462/1, the Areopagos's condemnations had to be confirmed by a democratic court. B. advances this thesis knowing full well that the lacunose state of the evidence necessitates that the sources for it cannot be satisfactory. "In such a situation, hypercritical temperaments would have refrained from any conclusion, or almost. We have chosen to present hypotheses, despite the risk which that has brought" (14).
The first chapter of Part One deals with the crimes of subversion and tyranny before 462/1. Solon's amnesty law (Plu. Sol. 19.4) seems to imply (in B.'s view) that before 594 the Areopagos had banished some people for attempting a tyranny. Subsequently, by a provision of Solon the Areopagos "tried those charged with conspiring to dissolve the democracy, under the law of denunciation (eisangelia) which Solon enacted to deal with them" (Arist., Ath. Pol. 8.4, tr. Rhodes). B. seeks to explain why the Areopagos apparently did not intervene against Kylon, the usurpation of Damasias, or the tyranny of Peisistratos and his sons, and appears not to have been involved in their overthrow or the events surrounding Isagoras or Miltiades' trial for tyranny in the Chersonese. B.'s explanation is "not historical but juridical": according to her precise reading of the terms of Solon's law in Ath. Pol. 8.4, the Areopagos was competent to investigate "only when the criminal acts were still hidden, still in their preparatory phase" (49, see also 84). The "Areopagos's passivity" against Kylon and the others "explains itself naturally: these events did not pertain to its competence, since they had as their object an actual attempt to establish a tyrannical government and not the initiation of a plot" (49).
B.'s juristic observation regarding Ath. Pol. 8.4 is perceptive, but problems arise with the conclusions she draws from this. First, any actions by the Areopagos against tyranny before Solon are so uncertain that no conclusions about them can be drawn. Second, we are expressly told that Peisistratos's tyranny was preceded by activities which revealed -- to Solon anyway -- that he was planning a tyranny (see Diod. 9.20 = F 9 West and Diog. L. 1.49-50). Here on B.'s own hypothesis the Areopagos could have acted. To explain why it did not we must fall back on political and other types of explanations. Third, we may ask how "juristic" and legalistic Athenians were in the sixth century. Can we suppose that when Damasias declined to depart the archonship after his appointed term, the Areopagos refused to get involved on some legalistic basis? Surely someone could have denounced Damasias to them ("he wants to become tyrant!") and they taken action. Again, therefore, we must fall back on wider, more political explanations for the Areopagos's inactivity. (Part of my own explanation was that Solon first gave the Areopagos extensive new powers to protect the polis, and hence it lacked any tradition of activity in this context.3) These and other points do not encourage a narrow reading of Solon's eisangelia measure.
Chapter 2 of Part 1 (51-62) discusses the crimes of deceiving the people and treason (prodosia), in the cases of Miltiades, Hipparchos and Themistokles. With admirable clarity B. establishes that the procedures employed in these cases and hence the Areopagos's involvement in them are uncertain. Her tentative conclusion, that the Areopagos was involved in those cases where the offenses were unknown to the public, is accordingly based not on sources but on her general conclusions regarding the Areopagos's competence and the uncertain point that one can only "denounce" (eisangellein) what is hidden.
Chapter 3 (63-73), on the corruption of magistrates before 462, deals only with the case of Kimon, about which B.'s verdict is again non liquet. She argues (73, also 82), as have I, that in this period euthunai were heard by the Heliaia (I add -- perhaps the Boule?) and not the Areopagos.4 However, her principal argument is based on a Kleisthenic date for the institution of euthunai, the defense of which she refers to M. Piérart.
Chapters 4 (74-78) and 5 (79-81) discuss impiety (the Alkmaionid execution of the Kylonians; Aeschylus's trial for revealing the Mysteries), and idleness. B. concludes that the Areopagos's role in impiety is uncertain, and that in punishing the idle the Areopagos was acting in defense of the polis. This type of explanation for the law against idleness is not new (perhaps best in A. Dreizehnter, "Nomos argias. Ein Gesetz gegen Müssiggang?," AAAH 26  371-86, which for once B. misses). However, B. should discuss an alternative interpretation advanced by Lipsius (Attische Recht [Leipzig 1908] 340) and (following him) A. Harrison (The Law of Athens I [Oxford 1968] 79-81) that such cases were brought by heirs attempting to ensure that owners maintained property.
Perhaps the central difficulty raised by this first part of B.'s study of the Areopagos's competence in public cases is her unnecessarily restrictive interpretation of the orientation of that competence, to hidden activities directed against the polis. Also, by limiting herself to public cases she does not fully evaluate the other components of what she admits is the central source for the Solonian Areopagos, Ath. Pol. 8.4. The Areopagos was a council as well as a court. What did that mean? What is nomophylakia? Since both Drakon and Solon called their laws thesmoi, nomophylakia could be some broader authority than merely guarding the laws -- and what would even "guarding the laws" entail? B. does not discuss nomophylakia, but only eisangelia. What Ath. Pol. 23 describes as the Areopagos's "management" of Athens between 479 and 462/1 is also not evaluated in detail, except by the claim that any political role of the Areopagos after 479 "could" have come from "its regular function" as protector of the state in difficult times for the city (95-96). Aristotle said that it "managed the city," a statement which B. does not consider.
The first chapter of my own study of the Areopagos challenged the conventional reconstruction of the pre-Solonian council, arguing that the Areopagos was not the oligarchic government of Athens before Solon but only a place (or a court) for homicide trials. Though a number of scholars have questioned my reconstruction, none has made a case against it. B. rejects my reconstruction only on the grounds that it is difficult to see why "Solon would have suddenly transformed a simple tribunal for homicide cases into a Council with extended attributes" (20 n. 11). However, for starters, except for the Ath. Pol. all ancient sources say that he did. The argument of my first chapter still awaits a detailed response.
Part Two, "Ephialtes and the age of the radical democracy," begins with a survey of opinions on Ephialtes and his reforms. It then explicates the sources, discussing various points such as the term epitheta ("added powers": Ath. Pol. 25.2), the political sympathies of Kimon's hoplites, and details of Ephialtes' revolution. The striking new argument of this section is that Ephialtes' reforms "were not as brutal and radical as most modern historians, content with a study 'au premier degré' of the ancient texts, have supposed" (109). In B.'s opinion, Ephialtes probably retained the Areopagos as protector of the polis, but required that its judgments be confirmed by the Heliaia through apophasis, "reporting."
In the first instance this "audacious" (109) hypothesis is grounded on an analogy (104) with reforms of the Boule of 500, which perhaps in the early fifth century lost its authority to initiate or terminate war, to execute or imprison citizens, and to levy fines of more than 500 drachmas without a vote of the Assembly, but which otherwise continued to exercise significant functions. B.'s idea is that the same may have happened to the Areopagos, which was thus not reduced to a simple homicide court. "It is probable that the Areopagos continued, as before, to exercise surveillance to detect crimes threatening the stability and order of the polis, but that, as with the Boule, it had to submit its decisions -- as soon as they involved a penalty of more than a certain amount -- for ratification by the tribunal of the Heliaia" (104). As she knows, however, actual evidence supporting this hypothesis is extremely weak: first, a story in Aetios that Euripides -- or Kritias -- was unwilling to reveal his ideas about the gods out of fear of the Areopagos, and second, an inscription of 409 which mentions apophainein but where the name of the Areopagos is entirely restored. This evidence is too weak. Sources earlier and better than Aetios provide no indication that after 462/1 the Areopagos had any supervisory role in the democracy, for example in the religious trials of the later fifth century or the mutilation of the Herms -- precisely the kind of "hidden" conspiracy where on B.'s hypothesis we might expect to find it. By contrast, biographical anecdotes such as that in Aetios are a standard sort of invention of the genre of Hellenistic biography. Aetios's tale also appears to have been conditioned by the supervisory religious authority that the Areopagos enjoyed in the second half of the fourth century. B. herself (97-98, 104) quotes Philochoros F 64, that Ephialtes "left to the Areopagos only ta huper tou somatos." She quotes Plutarch Cim. 15, that "the masses deprived the Areopagos of all its kriseis except a few." A narrow interpretation of such passages, that what the Areopagos lost was simply final authority to pass judgment while retaining its traditional sphere of interest and auctoritas, does not convince. These authors did not mean to say that the Areopagos retained its supervisory role and importance, while merely losing final authority. There is no reason to question the major significance of Ephialtes' reforms.
Part Three, the age of the orators, begins (113-16) with a discussion of the Areopagos's competence in offenses against the sacred olive trees, which B. again regards as "dangerous for the balance and stability of the city." She then turns to apophasis, first (117-20) for a general description of the procedure (where she argues skillfully against an interpretation of my own -- I don't yet surrender, but this is very much worth reading!), and then a case-by-case analysis. These begin in what can only be called a grossly speculative manner, with (1) the inscription where the Areopagos's name is wholly restored, (2) the late report in Aetios that Euripides or Kritias was afraid of the Areopagos -- "perhaps [B. says] lest he become the object of an apophasis" (120), (3) the Areopagos's authority in 403/2 to ensure that magistrates applied the law, "probably by apophasis," (4) the late tradition that Sokrates was tried by the Areopagos: perhaps by an apophasis? (all this B. rejects, but she still gives Sokrates a number in her list); and (5) Justin Martyr's report that Plato was afraid of the Areopagos -- "perhaps he feared an apophasis for asebeia." I hope both reader and author can forgive my candor in stating that these are just impossibly thin reeds on which to rest the hypothesis that apophasis was an Areopagite procedure since 462/1. Cases (6) -- the Areopagos's scrutiny of sacred territories in 352/1 -- and (7) -- its examination of the basileus Theogenes -- also do not mention apophasis.
Following these, however, is a series of genuine apophaseis, from 345 to 323/2. (B. sometimes loses sight of the fact that "apophasis" means "report" to the Assembly, and hence cases where the Areopagos investigated but did not report should perhaps not be so categorized.) From these B. reconstructs the procedures involved. She concludes (145) that apophasis was used especially when offenses were in some way concealed: this is implied by the need to investigate. This section is the most valuable of the book.
Part Four, on the Hellenistic age, discusses the twelve attestations of the Areopagos in a public context down to the mid-second century. As B. admits, this material is exiguous, especially after the rule of Demetrios of Phaleron (317-307). B. rightly notes (171) that the Areopagos's traditional competence in crimes of subversion was now restrained under the force of outside domination. Extant evidence shows that under Demetrios the Areopagos had some expanded role especially in the oversight of idleness, religion and women's behavior, and that after Demetrios it continued to play some role in supervising some aspects of cult (especially that of Asklepios). B.'s repeated insistence on the continued use of apophasis -- which as she states (171) is nowhere actually attested -- and the Areopagos's continued exercise of its traditional role as protector of the "good order" of the polis, go beyond what the evidence will justify. Thus, e.g., on an episode involving the philosopher Kleanthes after 281 B.C., B. admits that apophasis is not attested, but "nothing requires us to exclude it" (169). "The manner in which the Areopagos summoned the grandson of Demetrios makes one incontestably think of apophasis" (170), although this is not attested or necessary. When Areopagites are appointed to help inventory the offerings to Asklepios in 244/3, can we reasonably categorize these as reflecting that Council's role as "defender of the stability of the polis" (177)? On 171-72 while admitting that the sources for apophasis are "very poor," she states that "apophasis appears never to have been suppressed or modified in the Hellenistic period: in effect, no document alludes to such a change," and the examples of Areopagite intervention "do not contradict the idea of a continuity" of procedure. Better is her conclusion regarding any possible political actions by the Areopagos in this period: "it is difficult to draw precise conclusions, given that one does not know grand-chose" (183). The few references to the Areopagos after Demetrios indicate that that Council continued to play a minor role in Athens, perhaps trying occasionally (if in vain) to enforce traditional moral standards -- though the two bits of evidence for this look anecdotal -- and occasionally given minor administrative tasks in the administration of cult. The evidence does not indicate that it had any larger role. The problems of pressing an overly rigid thesis are acute in this chapter.
Finally, B.'s brief appendix (185-96) includes a series of good discussions of incidents (notably, that of St. Paul) involving the Areopagos under Roman domination. B. concludes that despite certain echoes of the Areopagos's earlier authority, in various ways this period marks a break with the past. The Council enjoyed much more extensive political powers, but reduced judicial capacities.
Overall, B.'s intelligent study is marred by a doubtful use of sources, and the unnecessary shoehorning of too much of the Areopagos's diverse competence into a single conception -- that of protecting the polis from hidden offenses. The sources for the Areopagos are often problematic. B.'s method is to admit this, but then to press uncertain data into service for her cause, claiming that nothing forbids it. She is often aware of the problems of using late evidence, but she nonetheless uses it. She builds from Aetios's tradition about Euripides (or Kritias) and another late tradition about Plato. On this basis she interprets events surrounding St. Paul, five centuries later. Activity by the Areopagos before the battle of Salamis, treated with caution on 92-95, is listed as fact on 181 and 183. Indeed, a consistent characteristic of the volume is that it advances claims and hypotheses while admitting (elsewhere, or sometimes even in the same breath) that the evidence for them is weak, late or insufficient.
B.'s focus on a single idea is the principal explanation for the distortions of this otherwise intelligent book. Why so constrain the Areopagos's rich, complex, and evolving history? Why interpret asebeia and argia as crimes against the polis (e.g., 168)? (This interpretation is not actually defended.) Many of the Areopagos's activities revolve around religion: why ignore this? On the wider picture, if the Areopagos had exercised similar powers and a similar role continuously from Solon down to 146, why then the fourth-century emphasis on the Areopagos in the patrios politeia? Why would Isokrates stress that the Athenians should return to the good old days when the Areopagos supervised the young, and so forth?
Despite these criticisms of its central thesis, B.'s is an attractive book, well written and thoughtful, and skilled in its criticism of others. Useful observations occur throughout. Even if the traditional outline of the history of the Areopagos remains intact, B. reinforces the good point that the Areopagos was not always or automatically a bastion of anti-democratic activity. Above all, B.'s study is worth reading on apophasis ca. 345-323, and has inspired me to see better the nature of that procedure, which has perhaps not yet been fully grasped. The text itself is well produced. The absence of an index (except of sources) limits usability.
1. A different version of this review, in German, is to be published in the Zeitschrift der Savigny Stiftung. For the record, I note two other recent dissertations on the Areopagos, less accessible than B.'s: V. A. Korsunkov, L'Aréopage d'Athènes: une assemblée aristocratique dans une cité democratique, diss. Leningrad 1989 (in Russian), and Che Ya-joung, The Areopagos in ancient Athens, diss. Ioannina 1991 (in modern Greek).
2. E.g., on the problems associated with Miltiades' trial for tyranny, B.'s discussion (43-45) is excellent (although I would like greater argumentation that Herodotos could call a trial before the Areopagos "being brought into a dikasterion"). By contrast, on for example the "basileis" of Plutarch's and Drakon's homicide law which B. (26-27) regards as the archontes basileis of different years, she does not confront the central difficulty that Drakon's law clearly refers to the procedure at a single trial.
3. R. W. Wallace, The Areopagos Council, to 307 B.C., Baltimore 1989, 70-72.
4. Ibid. 53.