Bryn Mawr Classical Review

BMCR 2020.01.18 on the BMCR blog

Bryn Mawr Classical Review 2020.01.18

Konstantinos A. Kapparis, Athenian Law and Society.   London; New York:  Routledge, 2018.  Pp. x, 358.  ISBN 9781472449184.  $165.00.  


Reviewed by Alberto Esu, Universität Mannheim (aesu@mail.uni-mannheim.de)

Preview

Kapparis’ new book builds on the author’s numerous studies on Athenian society, oratory and legal history, and provides an investigation of Athenian law within the social context of classical democracy. While previous general studies on Athenian law in English by Harrison, MacDowell and Todd adopted different approaches but shared a focus on Athenian law and legal procedure, the aim of this survey, as the author states in his Foreword, is not to provide a new monograph on Athenian law or another study about Athenian society, but to explore ‘the interaction between the two during the classical period’ (p. viii).1 The main argument of the book is that the laws of Athens were the ‘voice of the Democratic Constitution’, and the study of social life works as an effective guide to understanding the principles of Athenian law in every-day life. The book’s structure is clear and its argumentation is grounded in the discussion of the ancient evidence, even if the reader is often confronted with typographical errors and editorial inconsistencies (e.g. Africa instead of Attica, p. 78). The result is an accessible and clearly structured account dealing with several aspects of Athenian law against its social and cultural background, which will especially interest undergraduate students.

The volume is organised into an introduction, nine thematic chapters discussing the legal institutions informing the social structures of Athenian democracy, a short epilogue, and a general index. Each chapter opens with a selection of Greek sources with an English translation related to the topic of the relevant chapter. While this choice provides a useful tool for beginners of Athenian law and society, Kapparis’ selection of texts should be used with caution, especially the texts of several documents inserted in the speeches of the Attic orators that have been proven to be late forgeries, as well as several dubiously reliable passages from Plutarch.2

The introduction (pp. 1-17) starts with a brief and traditional overview of the historical development of Athenian law from the archaic legislation of Draco and Solon to fourth-century Athens. Some of Kapparis’ arguments on Athenian law and comparison with the social and legal institutions of other Greek communities are puzzling. For example, the author’s contention that after 403 BC the distinction between nomoi and psēphismata ‘was never rigid’ is surprising since the strict hierarchy of legal sources was a tenet of the Athenian law in the fourth century.3 Kapparis emphasises the correlation between the democratic constitution and the character of Athenian laws in opposition with the ‘totalitarian’ Spartan constitution, an oversimplification found often throughout the book.4 Kapparis moves then to a presentation of the sources of Athenian law: it includes the Aristotelian Athenaiōn Politeia, the inscribed decrees and laws, plays from the Old and New Comedy, and especially the Attic orators and the documents inserted in their speeches. Kapparis asserts the authenticity of all documents inserted in Andocides’ On the Mysteries and in Dem. 21, 23, 24, [Dem.] 59, and he rejects Canevaro’s thorough studies that demonstrate the inauthenticity of many of these documents. It is puzzling that the author, whatever his opinions, should choose to present Canevaro’s arguments in such an inaccurate fashion. Kapparis states that Canevaro’s methodology assesses authenticity of documents on the basis of stichometry (p. 5), yet Canevaro argues that stichometry only tells us whether the documents were part of the Urexemplar of the speeches, whereas the assessment of their authenticity relies on thorough analyses of their contents, which must be consistent with external evidence for Athenian laws, with the paraphrases of the orators, and with the relevant language of contemporary inscriptions.5 The author concludes his book’s introduction with a succinct and valuable survey of the body of scholarship with emphasis on the studies about social aspects of Athenian law.

Chapter 1 (pp. 18-69) analyses ‘the administration of justice in the polis’. Much of this chapter is dedicated to discussing the issue of the rule of law in classical Athens. Kapparis sensibly accepts the view already explored in a detailed monograph by Edward Harris that Athenian democracy achieved the rule of law. By building on the standards of the rule of law established by the World Justice Project, the author concludes that democratic Athens successfully meets the principles of accountability of officials and private citizens before the law, protection of individual rights, fair dispute resolution, and open government. These notions were implemented by a brief and clear body of laws, accountability procedures for officials, several public actions as well as shared responsibility among different boards of magistrates, and free access of citizens to the decree-making and the nomothesia process.6

Chapter 2 (pp. 70-115) deals with ‘citizens, metics and slaves in Athenian law and life’. Kapparis briefly discusses the notion of citizenship in the Greek world. The author then turns to the procedures for induction into the Athenian civic body and the rights of male citizens, as well as the role of metics and slaves. Both metics and slaves used to play a key role in Athenian society. Metics were free men who shared some rights with the Athenian citizens, such as access to the legal system. For their benefactions to the city, metics could even obtain citizenship by decree (and not by nomos ep’andri, as the author claims), while slaves were usually not protected by the laws of Athens except by the graphē hybreōs. Kapparis then moves on to discussing the procedures for status disputes, in particular the graphē xenias and the aphaeresis eis eleutherian.

Chapter 3 (pp. 116-37) discusses the ‘Athenian oikos’ and prepares the ground for the following three chapters (138-206) in which the author tackles the relationship between family and Athenian law. Kapparis analyses the legal and customary rights and obligations of the kurios as well as the prerogatives and role of women within the oikos. His analysis partially downplays the huge gender imbalance pictured by some ancient sources such as Xenophon’s Oeconomicus.

Chapter 4 explores the ‘formation and purposes of marriage’ and the role of wives and concubines (pp. 138-62). It discusses the two ways an Athenian marriage was initiated: 1) by contract (enguē) between the kurios and the future husband or 2) by epidikasia, an adjudication used in case a woman had no father or other male relatives. The primary purpose of marriage between two Athenians is identified as the procreation of legitimate children and the continuation of the oikos. This latter topic is further analysed in Chapter 5 dealing with inheritance and succession, which discusses the legal procedures regulating the inheritance of legitimate and illegitimate children, the role of epiklēros (heiress), and the institutions of wills and adoption.

Chapter 6 ‘the oikos in peril’ (pp. 182-206) concludes the survey of Athenian family law, and deals with divorce, moicheia, and prostitution. Kapparis argues that divorce was relatively easy in Athens, especially for men, though not very frequent. Women could also divorce their husbands if their native family agreed. The author then moves on to the discussion of the crime of moicheia. He decides to translate moicheia with the term ‘adultery’ because this is the technical term found in modern statute books. This choice is confusing since the author notes (p. 203, n. 26) that the meaning of the Greek term is closer to ‘seduction’, and indicates any extra-marital intercourse. On the other hand, prostitution per se was not punished by law, yet the laws of Athens protected free people from exploitation and forbade adult male citizens from practicing prostitution. Kapparis accepts the interpretation of the purpose of the law as given by Demosthenes in the Against Androtion, where the orator suggests that the law on prostitution was designed to prevent unworthy speakers from addressing the Assembly (Dem. 22.21-24). Nevertheless, Kapparis believes that the likely rationale of this law was to ban male prostitutes from those offices, such as the archonship and priesthoods, that entailed the performance of religious rituals (p. 200). The religious aspect must have certainly been important, yet it was only one of the citizen’s prerogatives that the law on hetairēsis aimed to protect. The law forbade any citizen who prostituted himself to serve in any public office (e.g. syndikos and councillor), whether religious ritual was involved or not (Aeschin. 1.19-20). The reason behind this seems rather to preserve the standard level of respectability required to maintain the status of Athenian citizen vis-à-vis the other citizens. This behavioural standard was checked through different procedures, including the dokimasia tōn rhētorōn, as Kapparis acknowledges, but the case of the Against Androtion shows that it was also relevant in graphai paranomōn cases.

Chapter 7 ‘Criminal Justice’ (pp. 207-40) examines the procedure of arbitration, property crimes and violence including assault and sexual violence, slander and hybris. The author rightly takes side against those scholars who overstress the violent attitude of Athenian society, and points out that Athens had several mechanisms to keep violence under control. Crimes such as slander (kakēgoria) and physical assault (aikeia) were prosecuted by the relevant private procedures, whereas deliberate wounding was prosecuted through a public lawsuit (graphē traumatos ek pronoias). In his analysis of hybris, Kapparis supports MacDowell’s view that hybris was a dispositional ‘attitude to harm others for pleasure’ but because this was difficult to prove in court, he argues, there is no evidence of a single case of graphē hybreōs that went to trial. Kapparis therefore sees the case of Demosthenes’ Against Meidias as a probolē rather than a graphē hybreōs. The probolai, however, consisted only in a vote of censure in the Assembly with no penalties, and the arguments in Demosthenes’ speech as well as the penalty of a fine are only consistent with a graphē hybreōs.7

Chapter 8 discusses the important intersection between religion and law in Classical Athens (pp. 241-79). The chapter first discusses the legal framework of the most important Athenian festivals and their significance for the polis. Kapparis then turns to providing an account of prosecution for religious offences, and in particular the crime of impiety (asebeia). The chapter concludes with a survey on homicide and the relevant procedures and courts. This topic is included in this chapter because of the strong religious dimension of the pollution (miasma) of the murderer in Athenian homicide law. Chapter 9 ‘the Safety Net’ (pp. 280-303) discusses the laws protecting old parents and minors from maltreatment, the support system for disabled and needy people, and the laws regulating the medical profession.

The book ends with an epilogue (pp. 309-14) in which Kapparis notes the continuity of Solon’s legislation in the classical period and the pragmatic ability of the Athenians to adapt their laws to their changing political and cultural circumstances.

Overall, despite several problems and idiosyncrasies, this is a generally useful volume. The Greek is always translated, making the book accessible to a wider readership. Kapparis provides a helpful introduction to the legal background of classical Athenian society for students of Ancient History and Classics, but one perhaps should not yet leave aside MacDowell’s classic The Law in Classical Athens.


Notes:


1.   A. R. W. Harrison, The Law of Athens (2 vols), Oxford, 1968-1971; D. M. MacDowell, The Law in Classical Athens, London; Ithaca, N. Y., 1978; S. C. Todd, The Shape of Athenian Law, Oxford, 1993.
2.   For example, the authoritative new OCT edition of Antiphon and Andocides’ speeches accepts that the documents in And. 1 are spurious. See M. R. Dilts, D. J. Murphy, Antiphontis et Andocidis Orationes, Oxford, 2018.
3.   M. H. Hansen, ‘Nomos and psephisma in fourth-century Athens’, GRBS 19, 1978, 315-30.
4.   See S. Hodkinson, ‘Was Sparta an exceptional polis?’ in S. Hodkinson (ed.) Sparta: Comparative Approaches, Swansea, 2009, pp. 417-72.
5.   M. Canevaro, The Documents in the Attic Orators. Laws and Decrees in the Public Speeches of the Demosthenic Corpus, Oxford, 2013, pp. 27-36; M. Canevaro, ‘The Authenticity of the Document at Demosth. Or. 24.20-3, the Procedures of Nomothesia and the so-called ἐπιχειροτονία τῶν νόμων’, Klio 100, 2018, pp. 72-6.
6.   On fourth-century lawmaking, the author omits to cite the work by M. Piérart, ‘Qui étaient les nomothètes à Athènes à l’époque de Démosthène?’, in E. Lèvy (ed.), La codification des lois dans l’antiquité, Paris, 2000, pp. 229-56, and all the substantial studies by M. Canevaro, ‘Nomothesia in Classical Athens: What Sources Should We Believe?’, CQ 63 2013, 1-22; M. Canevaro, ‘Making and Changing Laws in Ancient Athens’, in E. M. Harris, M. Canevaro (eds.), Oxford Handbook of Ancient Greek Law, Oxford, 2015; M. Canevaro, Demostene, Contro Leptine. Introduzione, traduzione e commento storico, Berlin, 2016.
7.   E. M. Harris, Demosthenes. Speeches 20-22, Austin, TX, 2008, pp. 79-87.

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