Bryn Mawr Classical Review

BMCR 2014.06.38 on the BMCR blog

Bryn Mawr Classical Review 2014.06.38

David D. Phillips, The Law of Ancient Athens. Law and society in the ancient world.   Ann Arbor:  University of Michigan Press, 2013.  Pp. xvii, 540.  ISBN 9780472035915.  $50.00 (pb).  


Reviewed by Brenda Griffith-Williams, University College London (b.griffith-williams@ucl.ac.uk)

Table of Contents

The Law of Ancient Athens is, as David Phillips rightly claims in his Preface, ‘the first book of its type and scale to be published in English’. Its purpose is to present, for the widest possible readership, the main literary and epigraphical sources of Athenian law in the archaic and classical periods. As a comprehensive collection of source material in English translation, it is a potentially important resource for students and teachers of Athenian law, complementing, but not replacing or competing with, the standard monographs on the subject such as those of Harrison,1 MacDowell,2 and Todd,3 or the various collections of speeches by the Attic orators in English translation such as those by Carey,4 Wolpert and Kapparis,5 or Gagarin.6 It is more closely related to Arnaoutoglou’s English language collection of ancient Greek laws,7 but that volume, as Phillips again notes, is both wider in geographical coverage and more selective in its choice of sources.

The Preface, in which Phillips outlines his aims and methods, should not be overlooked. Specialist readers may choose to skip the first part of the Introduction, ‘Archaic and Classical Athens: a Short History’, since much of its content is very basic and only indirectly relevant to the study of Athenian law in the fifth and fourth centuries. The second part, ‘Athens in the Age of the Orators: Sources, Institutions and Procedures’, gets to the heart of the subject, including a discussion of the sources; this is essential reading for everyone. The bulk of the book comprises nearly 400 selections from the sources, numbered sequentially and divided into twelve chapters, each devoted to a substantive area of the law and beginning with a subject-specific bibliography and short introduction. The headnote to each individual item identifies the legal point(s) that it is intended to illustrate, and gives the date of the source. There is a brief introduction to every source the first time it is cited (with cross-references from subsequent citations), and further bibliographic and other guidance is provided, as appropriate, in the headnotes to individual items. The book concludes with a Bibliography (where the main focus is on English language material, but some French, German, Italian, and modern Greek items are also listed), an Index Locorum, and a General Index.

The compiler of a volume such as this faces three fundamental problems: how to select the material, how to organize it, and how to interpret or explain it. The solution on all counts must have regard for the needs of the intended readership, which in this case means that the book has to be accessible to non-specialists, including students beginning the study of Athenian law.

The problem of selection is particularly acute in relation to Athenian law because of the nature of the sources. Authentic verbatim texts of Athenian statutes rarely survive, so that they must be supplemented with other sources. This raises two issues: which sources can be considered reliable, and what material should be selected from them. Phillips’s selection is inclusive: while recognizing that the primary sources of Athenian law are the speeches of the fifth and fourth century orators, the surviving inscriptions and the pseudo-Aristotelian Ath. Pol., he also includes material from literary sources in a range of genres (drama, historiography, lexicography) and periods. His selection has the overall aim of ‘isolating and emphasizing the legal matters at issue, both substantive and procedural, and including evidence not only for the content of the laws but also for their interpretation and application’ (p. xi). This is a broad definition of ‘law’, and in practice Phillips ranges even more widely. In addition to the expected paraphrases and discussions of legal texts, his selection encompasses historical accounts of famous trials (notably those of the Alcmaeonids for homicide, of Themistocles for treason, and of Alcibiades and others for impiety), and incidents from comedy with no strictly legal relevance (such as the betrothal formulae used in several of Menander’s plays and the dispute over the hand of the epiklēros in Menander’s Aspis).

Thus, in some selections it is not easy to identify the legal point at issue, while others (such as the passing reference to a graphē kakōseōs in a fragment of Menander, or Isaios’s anecdote about the fight between Thoudippos and Euthycrates (Isa. 9.17-19), which Phillips cites as an attested case of fratricide) seem to add so little to our knowledge of the points at issue that we may question the value of including them. Moreover, questions of authenticity arise in relation to some of the later material, such as Plutarch’s account of the ‘Solonian’ laws on epiklēroi, especially when it is not corroborated by fifth or fourth century sources. The inclusion of so much disparate (and sometimes doubtful or marginally relevant) material increases the size of the volume, which may in itself be intimidating or confusing for some readers; but the advantage of inclusivity is that it enables readers to form their own judgments, mindful of Phillips’s warning that ‘each genre, and each text [carries] its own evidentiary merits and risks’ (p. 18).

Phillips has, sensibly, decided to organize the material along substantive lines, which means that the structure of the book will mirror that of many taught courses on Athenian law. Categorization, nevertheless, is always difficult, and some overlap is inevitable, especially in the area that we would now broadly call ‘family law’ (covered by chapters 5-7: ‘Marriage and Dowry’, ‘Children and Citizenship’, and ‘Estates and Epiklēroi)’. In the Athenian context, given that adoption was concerned with inheritance rather than child care, and that most adoptees were adults, the appearance of a section on adoption in chapter 6, ‘Children and Citizenship’, seems strange. As the introduction to the chapter explains, the material presented here ‘addresses the adoptive son’s entry into (and possible departure from) his adoptive family’, while ‘sources that deal primarily with the inheritance rights of adoptees’ are dealt with in chapter 7. But the distinction seems artificial, and it might have been simpler and more transparent to collocate all the material on adoption in chapter 7. And ‘Estates and Epiklēroi’ is an obscure title (albeit based on Ath. Pol.) for a chapter about inheritance (especially since there are no index entries under ‘Inheritance’, ‘Wills’, or ‘Succession’). One might also quibble about the section headed ‘Kakōsis (Maltreatment)’, which separates mistreatment of orphans (kakōsis orphanōn) from the rest of the material on orphans and guardianship, and mistreatment of epiklēroi (kakōsis epiklērou) from the chapter on ‘Estates and Epiklēroi. But all these judgments, whether of principle or of detail, are inevitably subjective. There is no definitively right or wrong structure, and what is important is that the extensive system of internal cross-references provides the guidance needed by readers who want to approach the material from a different angle.

There is ample scope for disagreement about the interpretation of Athenian law; and, while it would be unreasonable to expect a full account of every scholarly debate in a book of this scope, readers need to be made aware that some of the issues covered are controversial. Phillips’s stated aim is to alert the reader throughout the book to scholarly debates and controversies, while inclining in his analysis towards the interpretation that he personally favours. This approach is nicely exemplified in his introduction to the chapter on homicide (pp. 45-47), which includes a concise summary of the issues concerning the mental element of the offence with a clear indication of Phillips’s own position. Another example where his approach works well is in the discussion of evidence (especially witness testimony) in the Athenian courts (pp. 38- 39), where, however, some important contributions to the scholarly debate, such as those of Stephen Todd and Sally Humphreys, are not mentioned.8 Other, perhaps less important, points of controversy are not always so clearly flagged. For instance, Phillips’s assertion that the law ‘mandated’ the appointment of a guardian for an underage orphan is not actually supported by the laws he cites, and some scholars have in fact suggested that the law on guardianship was permissive rather than mandatory.9

Translation, as Phillips acknowledges, is ‘by its very nature an act of interpretation’ (p. xi); since the majority of readers will not be in a position to consult the original texts for themselves, they rely on the translator to make judgments on their behalf. In pointing out the most significant textual obscurities and ambiguities, Phillips makes liberal use of transliterated Greek to explain, for example, the distinction between proix (‘dowry’) and phernē (‘trousseau’) in the marriage laws attributed by Plutarch to Solon, or the ambiguity of words such as sēkos in Lys. 7 (‘olive tree’ or ‘fence’?) and opyesthai in Plut. Solon 20 (‘marry’ or ‘have sex with’?).

On a point of detail, a striking feature of this book is the absence of footnotes or endnotes. This, presumably, was intended to make the book more readable, but, if so, it is only superficially successful. Information that might conveniently have been consigned to a note is often, instead, contained in a lengthy parenthesis, so that the reader is forced to pause and go back to the beginning of the sentence. Perhaps the most egregious example is the sentence on p. 34 beginning ‘In most cases. . . ’, where the main clause is split by a five-line parenthesis detailing exceptions.

In sum, The Law of Ancient Athens is an extremely ambitious work: Phillips has assembled, organized, and elucidated a wide range of primary sources, taking care not to impose his own interpretation of the material on readers and offering ample guidance to those who want to pursue their studies in greater depth. The book is likely, in particular, to become a valuable resource for teachers and undergraduate students of Athenian law, while specialist scholars and more advanced students will also find it helpful for the signposts it provides to the original sources and the secondary literature.


Notes:


1.   A. R. W. Harrison, The Law of Athens (2vols), Oxford, 1968-1971.
2.   D. M. MacDowell, The Law in Classical Athens, London and Ithaca, N. Y., 1978.
3.   S. C. Todd, The Shape of Athenian Law, Oxford, 1993.
4.   C. Carey, Trials from Classical Athens (2nd ed.), London and New York, 2012.
5.   A. Wolpert and K. Kapparis, Legal Speeches from Democratic Athens, Indianapolis, 2011.
6.   M. Gagarin, Speeches from Athenian Law, Austin, Tex., 2011.
7.   I. Arnaoutoglou, Ancient Greek Laws: A Sourcebook, London and New York, 1998.
8.   See S. C. Todd, 'The purpose of evidence in Athenian courts', in Nomos: essays in Athenian law, politics and society, ed. P. Cartledge, P. Millett and S. Todd, Cambridge, 1990, pp.19-39; S. C. Humphreys, 'Social relations on stage: witnesses in classical Athens', in The Discourse of Law, ed. S. C. Humphreys, London, 1985, pp. 313-69 [reprinted in Oxford Readings in the Attic Orators, ed. E. Carawan, Oxford, 2007, pp. 140-213].
9.   See H. F. Jolowicz, 'The wicked guardian', Journal of Roman Studies 37 (1947), pp. 82-90 (at 82-3); R. V. Cudjoe, The Social and Legal Position of Widows and Orphans in Classical Athens, Athens, 2010, p. 166.

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