Bryn Mawr Classical Review 2006.11.32
Edward M. Harris, Democracy and the Rule of Law in Classical Athens: Essays on Law, Society, and Politics. Cambridge: Cambridge University Press, 2006. Pp. 518. ISBN 0-521-85279-X. $85.00.
Reviewed by Michael de Brauw, Northwestern University (email@example.com)
Word count: 2911 words
To scholars of Athenian law and history, Edward M. Harris (henceforth H) needs no introduction. In these fields he has been known for many years for his influential research, heterodox opinions, and generous teaching (full disclosure: he was part of my dissertation committee). Democracy and Rule of Law in Classical Athens: Essays on Law, Society, and Politics is a diverse collection of previously published papers and articles. Some focus on very specific topics, such as meanings of legal terminology. Others tackle big questions concerning the place of law in Athenian politics and society.
The republication of this material serves multiple purposes. Some of the chapters originally appeared in specialist venues (such as Dike and Symposion), and so are made more visible in this volume; some are complementary treatments of a single topic. More significantly, the book is greater than the sum of its parts. Bringing these pieces together under a single introduction allows H to put forth larger points about methodology and the nature of Athenian law and democracy. Not everyone will agree -- or, not everyone has agreed -- with H's conclusions. Yet his arguments are significant, and even his critics will be citing them for a long time. To have many of them together in one place, with a subject index, an index locorum, and a general bibliography, will be very useful to those with serious interests in Athenian democracy.
The book contains a total of 21 chapters grouped into four main sections: Constitutional History, Economy, Family, and Aspects of Procedure. It concludes with a short "Comic Envoi." The material is largely unrevised, but H has appended "Afterthoughts" to each chapter, which are devoted mostly to commenting on more recent bibliography. The chapters vary in length and in the level of sophistication expected of the reader. H states his hope that the book will appeal to the "general classicist." Some chapters indeed will. Others, H admits, are mostly aimed at specialists in Athenian history, epigraphy, and law. The volume is elegantly produced and contains very few misprints.1
There are too many different arguments in the book to critique them all. In the following resume I try to indicate the contents of all of the chapters while saving more detailed comments for the Introduction and select chapters (I.3, II.2, III.1-2, and IV.3). I deal with matters of form at the end.
In the Introduction, H explains that the essays in the volume are united by a common method: a focus on the substance of Athenian laws. Most recent work on Athenian law, including much of H's,2 has focused on litigation, for an apparently good reason: an only recently challenged consensus held that Athenian statutes were procedurally oriented, that is, they did not define terms for wrongdoing, but rather only stipulated procedures for remedies.3 For example, the law against hubris explains how a citizen may prosecute for hubris, but does not define hubris. Consequently, it has often seemed that there is more to be learned from reading Attic oratory with an eye toward how litigants tried to win cases than from posing questions such as "What was the Athenian law of...?" That type of question, searching for the substance of a legal provision, has been considered more appropriate to the study of Roman law, where the jurists filled volumes expounding definitions.
But the lack of definitions in Athenian laws does not mean that their terms were undefined in the minds of litigants and judges. H suggests that the substance of Athenian laws is recoverable through "philological analysis of key terms in statutes" and "awareness of legal issues" (p. xvii). By examining the substance of Athenian laws, H aims "to show that the Athenians were more sophisticated in legal matters than many have assumed" (ibid.). He does not argue that the Athenian law was as sophisticated as Roman law, and he notes that several of the essays contain warnings against importing anachronistic concepts. Yet he also maintains that cautious analogies to Roman and other legal systems can serve a heuristic function. Comparisons generate hypotheses to be tested against Athenian evidence. In some cases, the substance of an Athenian law is explained by similar provisions in Roman law; in others, it is illuminated through contrast.
After describing this method, H turns to summarizing the chapters and explaining themes that link them. Through discussing these links he also explains how the chapters support parts of his overall view of Athenian democracy, which is roughly this: Athenians equated democracy with the rule of law as opposed to the sovereignty of the people.4 Their laws and government were viewed as common possessions of all citizens and were intended to serve the common good. In this, the rule of law was the opposite of tyranny (government for one, by one). Athenian laws regulating the economy were sophisticated enough to support complex economic activity, even though they lacked important concepts such as the corporation. Average Athenians had at least basic knowledge of laws and the legal system and they took their duties as legislators and judges seriously. Litigants in Athenian trials assumed that the court sought to apply the laws impartially and looked unfavorably upon those who used the law to pursue personal vendettas. Despite the progressive aspects of the democracy, women and slaves were treated deplorably in Athenian law. I say the chapters "support parts of" this view because H indicates that the book is not an attempt to justify all these positions in detail (hence the subtitle: "Essays on..."). Nevertheless, I found it quite helpful to have the individual studies situated within both broader debates and H's coherent -- if controversial -- set of positions.
Part I, "Law and Constitutional History," divides into two halves. The first three chapters approach broad questions about law and democracy, primarily through literary sources. The latter three deal with more technical questions, using mainly (but not exclusively) epigraphic sources.
Chapter I.1, "Solon and the Spirit of Greek Law," contrasts the attitude towards law exhibited in Solon's poems and early inscriptions to the views found in Near Eastern law codes (Hammurabi's and Lipit-Ishtar's): whereas law appears to emanate from an absolute ruler in the Near East, in Greece it is described as a common possession of the citizenry. Chapter I.2, "Pericles' Praise of Athenian Democracy," argues that the ambivalence towards democracy detected by many readers of the Funeral Oration is based on a misinterpretation of Thucydides 2.37, whose purpose is not to contrast "the democratic fac,ade of Athenian government with its aristocratic reality" (p. 34) but to contrast Athenian democracy with Spartan oligarchy.
Chapter I.3, "Antigone the Lawyer, or the Ambiguities of Nomos" is one of the longer pieces in the book. It approaches Antigone's debate with Creon through analyzing the Athenian concept of nomos. In the Athenian view, a proper law is supported both by the will of the gods and by the consent of the community. H thinks the audience's sympathies would lie with Antigone practically from the beginning of the play; when Antigone buries her brother, she is not violating a true law of the polis, but merely the decree (kerygma) of a tyrant. H's argument concerning the meaning of nomos indeed demonstrates that the opposition informing so many modern readings of the play, i.e. the laws of the polis versus laws of the gods, would be a false dichotomy to the audience. Nevertheless, I was not convinced by his point concerning the audience's sympathies. He is right to note that Creon rules undemocratically, and perhaps sounds undemocratic even in the famous 'ship of state' speech (pp. 69-73). But the audience must have given Creon some leeway to be a king; the play, after all, is set in mythological Thebes. By contrast, they would probably see Antigone's behavior, at least at the opening, as subversive by the standards of their world as well as her own.
Chapter I.4 deals with the question of whether Athenians in the fourth century strictly limited meetings of the assembly to four per prytany (as Athenaion Politeia 43.4 might indicate, and as has been argued by Mogens Herman Hansen) or extra meetings could be convened. This hinges on the meaning of ecclesia sunkletos (literally, 'convened assembly'). Does it mean a specially convened (i.e. extra) meeting, or one convened on irregular notice? H argues convincingly for extra meetings; he strengthens this case in Chapter I.5, "When Did the Assembly Meet? Some New Evidence." Chapter I.6, "Demosthenes and the Theoric Fund," argues that Demosthenes was not, contrary to widely held belief, in conflict with Eubulus over the value of the Theoric Fund.
Part II, "Law and Economy," begins with a general introduction to these topics coupled with a case study, "Law and Economy in Classical Athens: [Demosthenes] Against Dionysidorus." This chapter aims and largely succeeds at being general enough for undergraduates or non-classicists.
Chapter II.2, "When is a Sale not a Sale? The Riddle of Athenian Terminology for Real Security Revisited," is the longest piece in the book. The riddle mentioned in the title is this: most horoi (boundary stones) that mark a plot of land as security for a loan describe the land as "sold on condition of release" (πεπραμένου, -ης, -ων ἐπὶ λύσει); a handful say the property is "lying under an obligation" (ὑποκειμένου, -ης, -ων). Why? Decades ago, scholars tried to uncover distinctions between different types of real security for different types of loans, analogous to ones that existed in Roman law. H first shows why such attempts fail, then proposes a solution (which is now widely accepted): the terms in question are not technical and in fact refer to the same type of loan. The terminology varies because Athenians could consider either the lender or the debtor the owner of real security. Lenders (who were responsible for the horoi) preferred to think of themselves as owners. This chapter is a fine illustration of H's methodology and its rewards: by giving attention to substantive terms without forcing analogies to Roman law, he clarifies how part of Athenian law actually worked.
Chapter II.3, "Apotimena: Athenian Terminology for Real Security in Leases and Dowry Agreements," pursues an argument similar to the one II.2. Chapter II.4, "The Liability of Partners," considers how Athenians managed loan agreements without the concept of the corporation. Chapters II.5 and II.6 deal with slavery. "Did Solon Abolish Debt-Bondage?" distinguishes between "debt-bondage" and "slavery for debt" and then argues that Solon abolished only the latter. "Notes on a Lead Letter from the Athenian Agora" argues that a recently published letter was authored by a slave.
Part III, "Law and the Family," begins with two studies of rape in Athenian law. In III.1, H dissects a notorious argument from Lysias 1: since the lawgiver permits a husband to kill an adulterer caught in the act, but names monetary penalties for sex accomplished by force with a wife, child, or concubine, seduction is evidently the more serious crime. Not so, argues H: Lysias fails to mention that a man caught having sex with another's wife, whether by seduction or force, could be killed by the husband. What is more, the charge of hubris could apply to what we call rape and it could carry the death penalty. So Lysias is misleading. There is nothing wrong with this reasoning. But it is not the same as showing (as the title implies) that the Athenians considered rape a worse crime than seduction. For one thing, as H points out in III.2, "Did Rape Exist in Classical Athens," Attic Greek has no term that corresponds to our concept of rape. Athenians distinguished between acceptable and punishable acts of forced intercourse according to whether or not such acts seemed to be inspired by an intent to dishonor the victim (as opposed to, for example, the intense and often drunken passion that overwhelms so many goodhearted young men in New Comedy). Again there is nothing wrong with H's reasoning. But if I understand his conclusion -- "Sexual violence against women was... evaluated not so much for its impact on the victim as for its effects on men's power and honor" (p. 330) -- I can't see who would disagree (certainly not most of the scholars he criticizes in the chapter).
Chapter III.3 is divided into parts A and B, "Women and Lending in Athenian Society: A Horos Reexamined" and "Notes on a Horos from the Athenian Agora" (originally published with Kenneth Tuite). These return to epigraphic evidence for lending, but this time to make a point about the economic activities of Athenian women. There was a law in Athens barring women from participating in transactions involving more than a small sum (specifically, one medimnus of barley). Yet H makes a compelling argument that women could be involved in making loans of much greater amounts if they collaborated with a man who would receive the security.
Chapter III.4, "The Date of Apollodorus' Speech against Timotheus and Its Implications for Athenian History and Legal Procedure," argues [Demosthenes] 49 was delivered some 4-8 years earlier than its traditional date of 362/61. This conclusion, when viewed with other evidence, suggests that Athenian courts did not (contrary to widely held belief) have a law barring testimony of minors. Chapter III.5, "A Note on Adoption and Deme Registration," attempts to explain how the Clearchus of Dem. 44 could be his father's heir yet registered in different deme.
The title of Part IV, "Aspects of Procedure," sounds like a departure from H's focus on the substance of laws, but in fact the essays here are still dealing with sanctions and meanings of terms; in effect, substantive aspects of procedure. Chapter IV.1, "'In the Act' or 'Red-Handed'? Apagoge to the Eleven and Furtum Manifestum," considers the question of what types of offenders in Athens were subject to arrest and summary judgment (apagoge). It has often been held that thieves needed to be caught 'in the act' for such procedure to apply. H argues that it in fact also encompassed those merely caught red-handed (i.e. in possession of the stolen goods). In this case H maintains that an analogy to the Roman furtum manifestum is helpful. Chapter IV.2, "How to Kill in Attic Greek," seeks to clarify the legal distinction between phonos and bouleusis by observing that the typical term for "kill" in Attic Greek encompasses both killing directly and causing death.
Chapter IV.3, "The Penalty for Frivolous Prosecution in Athenian Law," makes both a point about measures against legal abuse and one concerning the purpose of Athenian courts in general. It is widely held that prosecutors who either dropped their cases before coming court or failed to obtain at least one fifth of the jury's vote were required to pay a fine of 1000 drachmas and were thereafter barred from bringing the same type of suit. H argues that such losers in fact lost the right to bring any type of public suit. This point alone is enough to make the chapter a valuable study. But H argues at the same time that the severity of this penalty is strong evidence against the notion that Athenians viewed the courts as an arena for pursuing private vendettas and in support of his often stated position that Athenian courts were concerned first and foremost with impartially applying the city's laws.5 Here I would split hairs with H. I agree that the purpose of Athenian courts was to enforce the laws impartially, or, to borrow terminology from a parallel debate in Roman studies, I think Athenian litigants pursue "a strategy of truth" in their speeches and that Athenian judges did "believe in their verdicts."6 Yet I also think what is remarkable is that the Athenians apparently did not find private enmity at odds with this purpose. There seems to be nothing wrong with a prosecutor using the courts to pursue a vendetta,7 so long as he also happens to show that the defendant is guilty. The problem with the prosecutor who does not follow through with a suit or who fails to obtain one fifth of the jury's votes is perhaps not that he seems overly invidious, but that he is unreliable.
Part V, "Comic Envoi," contains a single chapter, "Pheidippides the Legislator." In this short piece H shows that a joke in Aristophanes' Clouds presupposes the audience's familiarity with the wording of Athenian laws. Thus H ends by underscoring his point about Athenian legal sophistication. Athenian law was not as sophisticated as Roman law, but it was not primitive, either. Instead of a class of experts like the Roman jurists, Athens had a citizenry with working knowledge of the city's laws.
As for matters of form: H's writing is generally clear and engaging. This serves the material well; not everyone can make an argument about terminology for real security so easy to follow. However, when he discusses opinions of other scholars, he can be unnecessarily combative. This doesn't serve the material, because it turns attention to personalities instead of arguments.
A quibble: under "Acknowledgements" (p. xi), H notes Chapter II.1 was originally published online, but gives only a web address and does not indicate that it was part of an online lecture series, "Athenian Law in its Democratic Context," hosted by the Center for Hellenic Studies.
Criticisms aside, this is a useful book. At $85, I am not sure I would buy it for myself. But it belongs in every university library, and especially on the reserve shelf for seminars on Greek Law and Greek History.
1. Westbrooke for Westbrook (pp. 19 n. 26 and 450); idiots for idiotês (p. 447); pages numbers are missing following "ZPE 128:" (p. 439).
2. Notably: "Law and oratory," in I. Worthington, ed., Persuasion: Greek Rhetoric in Action (London 1994), pp. 130-50; "Open Texture in Athenian Law," DIKE 3 (2000) 29-79; and "Feuding or the Rule of Law?" in M. Gagarin and R. Wallace, eds, Symposion 2001: Vorträge zur griechischen und hellenistischen Rechtsgeschichte (Cologne and Vienna 2005), pp. 125-41. H indicates in the preface (p. ix) that he intends to use these essays and others as the basis for a book on Athenian litigation and interpretation of laws.
3. See C. Carey, "The Shape of Athenian Laws," CQ 48 (1998) 93-109.
4. Contrast J. Ober, Mass and Elite in Democratic Athens (Princeton 1985) and M. H. Hansen, The Athenian Democracy in the Age of Demosthenes (London 1991).
5. See "Law and Oratory" (n. 2); for an opposing view, see D. Cohen, Law, Violence, and Community in Classical Athens (Cambridge 1995).
6. See A. Riggsby, "Did the Romans Believe in their Verdicts?" Rhetorica 15.3 (1997) 235-52. His suggestion, in essence, is that the Romans had roughly the same notion of a trial as we do; they just had radically different notions of evidence.
7. Indeed, a vendetta is one way for a speaker to explain why he, and not someone else, has taken up the prosecution (e.g. [Dem.] 58.1-2). Which is not to say it is the only way: see L. Rubinstein, Litigation and Cooperation: Supporting Speakers in the Courts of Classical Athens (Stuttgart 2000), pp. 179-80.