BMCR 1994.06.06

1994.06.06, Todd, Shape of Athenian Law

, The shape of Athenian law. Oxford: Clarendon, 1993. ix, 433 pages ; 22 cm. ISBN 9780198148944. $65.00.

“This is intended to be not merely a handbook of Athenian law, but, more fundamentally, an attempt to change the way in which the subject is perceived and studied” (29). In this important new survey of Athenian law, Stephen Todd sets out both to update D. M. MacDowell’s The Law in Classical Athens (Ithaca 1978) and to provide a methodological framework for the study of Athenian law that takes into account anthropological and comparative legal perspectives. Furthermore, Todd aims to do all of this in such a way that the result will be of interest both to the general reader and to specialists. Although Todd’s success in meeting these diverse goals varies, this is not surprising since they are ambitious and at times, as Todd recognizes, incompatible with one another. I start with a few general observations concerning The Shape of Athenian Law, and then focus on three facets of it: its treatment of methodological issues, Athenian legal procedures, and Athenian litigiousness.

Because specialists are likely to take issue with Todd on a number of questions, as I will below, it is important to acknowledge from the outset that he has succeeded in writing a work that is accessible and likely to be of interest to a general audience. Todd avoids polemic and writes readable prose; he translates or transliterates all Greek (specialists may gripe about this); he provides a forty-three page glossary of technical terms (adapted from Nomos: Essays in Athenian Law, Politics and Society [Cambridge 1990], which Todd coedited with P.A. Cartledge and P.C. Millett); he draws frequent comparisons with modern legal systems, especially Britain’s; he incorporates interesting (if sometimes technical) case studies.

Todd covers the modern bibliography and ancient sources relatively well. Because scholarly interest in Athenian law has intensified considerably over the past decade, it is a challenge to keep track of the growing bibliography. Todd’s coverage is good up through the late 1980s, but then becomes less thorough. This presumably reflects the fact that much of the book was written in 1990/1 and that there was a hiatus between its completion in June of 1992 and its recent release. Scholarship from the last two years therefore has not made it into the notes and bibliography, and some less recent, but important, works (notably J. Ober, Mass and Elite in Democratic Athens [Princeton 1989], and M.H. Hansen, The Athenian Democracy in the Age of Demosthenes [Oxford 1991]) are cited, but not fully incorporated. Coverage of Continental scholarship could be better: no mention is made, for example, of J. Triantaphyllopoulos, Das Rechtsdenken der Griechen (Munich 1985).

Although Todd’s knowledge of the ancient sources, especially the Attic Orators and inscriptions, is impressive, scholars will note oddities and omissions. Most conspicuously, a disproportionate number of citations come from Lysias: Todd explains that he originally set out to write a historical commentary on Lysias, and only later did his work take its current shape (vii). In addition, Attic comedy is represented only by Aristophanes (for whom no fragments are cited) and Menander; Sophocles appears only once; Xenophon and Plato are covered lightly.

Todd divides his study into three sections: method (3-73), procedure (77-163), and substance (167-340). One misses a concluding chapter. Although the third and longest section provides a useful survey of the substance of Athenian law, it is traditional in its organization (Personal Status, Personal Relations, Relations between Persons and Things, Relations within the Polis, Relations with the Polis, Relations with People Outside the Polis) and in its execution (Todd is not much influenced, for example , by recent work in feminism and the history of sexuality). This review will focus therefore on the first two sections, since it is here that Todd diverges most strikingly from his predecessors and makes his most significant contributions.

Todd rightly observes that earlier handbooks have tended to sidestep methodological issues and to rely too much on ideas imported from the study of Roman law (14-17). By contrast, he explicitly addresses numerous methodological questions and does so with considerable sophistication. Two important questions arise at the outset: what is the relation of Athenian law to “Greek law,” and how much did Athenian law evolve during the classical period? Todd adopts a position of “agnostic scepticism” on both questions (35-36). He warns that, although it can be fruitful to draw comparisons between Athenian and non-Athenian legal practices, gaps in our knowledge of Athenian law cannot be filled simply by drawing on the known practices of other Greek states: to engage in this kind of analysis would be a mistake since it wrongly assumes the unity of Greek law. While this is a reasonable stance, Todd’s skepticism may prevent him from delving further into the rich comparative material, such as the evidence for volunteer prosecution outside of Athens (on which, see S. C. Humphreys, “The Discourse of Law in Archaic and Classical Greece,”Law and History Review 6 [1988] 470-71).

On the question of legal evolution, Todd argues that Athenian law did not evolve significantly (or at least not as much as some scholars have maintained) from the late fifth to the late fourth centuries (69-70). For Todd this does not mean that there was no innovation during this period—he discusses, for example, the emergence of the paragraphe (136-38), and the way eisangelia supersedes euthunai in the fourth century (113)—but rather that changes were gradual and modest in scope. The establishment of dikai emporikai around 350 B.C. presents a possible challenge to this non-evolutionist position, but Todd (following MacDowell) argues persuasively that emporic suits were not heard by separate courts and suggests furthermore that the privilege granted in them to written agreements may be seen “as a development rather than as a radical innovation” (336). Although this last point is debatable, on balance Todd makes a strong case for the “static, non-evolutionary nature of Athenian law” (64, note 1) in the fourth century.

An important feature of Todd’s view of Athenian law is his emphasis on “its intense ‘otherness'” (29), although his vantage point on the alterity of Athenian law is that of a legal historian rather than that of a legal anthropologist. He repeatedly and intelligently distinguishes between Athenian assumptions and modern (especially British) ones about law (e.g., “Ownership and possession are bundles of rights which we package together in particular ways; Athenians may have packed them differently” [243]). This process of comparison and contrast illuminates Athenian culture, but does so more from the outside than from the inside. One hears relatively little of Athenian “codes,” “values,” and “symbols,” and a good deal instead of modern legal terminology. Todd justifies his use of modern legal terms “on the grounds that such ideas would be implicit even if the words were not explicit” (71). A dependence on modern terms and rubrics, however, may hinder the location of Athenian law within its proper place and time.

The very notion of a “legal system,” for example, is problematic in an Athenian context. Todd states: “Our focus throughout will be on the concept of ‘shape’: we shall be exploring how, and how effectively, Athenian law made and makes sense when viewed as a system” (64). He argues that, although we have “no systematic statement of the principles” of Athenian law (13), and “the logic of the system was itself never more than implicit and unconscious” for Athenians (17), there was nonetheless “a latent logic behind the system…” (21). This vision of Athenian law as a logical system is not entirely convincing.

First, this view unduly minimizes the impact of piecemeal legislation (at least before the reform of law-making procedures in 403/2) on Athenian law. Although Todd is conscious of this difficulty, he does not come to terms with it fully. For example, when he discusses the wide range of severe punishments meted out in Athens, he notes: “it seems possible that the method in any given case was chosen as the result of piecemeal legislation. If so, this would be an interesting comment on the nature of the Athenian legal system” (141). This would indeed be an interesting comment: it raises broader questions about how much “latent logic” as opposed to political and social exigencies gave shape to the Athenian “system.” If the reforms of 403/2 brought some order to Athenian law (the role of the thesmothetai in legal housekeeping is noteworthy), the “system” still remained eclectic and open-ended.

Second, there is a danger that, in our search for a logical system, we may overlook unsystematic or “aberrant” features. While these elements muddy the analytical waters, they may reveal as much about Athenian legal culture as consistent patterns do. Although Todd is not insensitive to this, the handbook format that he adopts necessarily emphasizes systematic rather than unsystematic features of Athenian law. It is interesting that Todd seems to back away from the idea of a logical system as his study unfolds: while he is optimistic in his methodology section about discerning a system, the diverse material he presents in the body of his study often defies systematization and Todd, to his credit, does not force resistant material into a rigid framework. One wonders if the absence of a concluding chapter is a tacit acknowledgement that the pieces of the puzzle do not fit together very neatly.

Third, the idea of an Athenian legal system is problematic because it raises the question of parameters: to what extent can Athens’ legal “system” be distinguished from the larger cultural system of which it is a part? Todd broaches this question at a number of points, but does not probe it in sufficient detail. One might well ask, for example, what the relation is between informal rules (norms) and formal ones (laws) in Athenian society (on which, see now V. Hunter, Policing Athens [Princeton 1994]).

Todd does well to follow M.H. Hansen in stressing Athenian law’s procedural orientation and astutely observes that “rights in such a system can only exist when there is available a procedure to protect or indeed to create them” (65). In categorizing the different kinds of procedures, however, Todd runs into some difficulties. He speaks of “two broad but nevertheless precise distinctions: first, between ordinary and extraordinary procedures, and secondly, within that, between private and public ones… ” (99). Todd argues reasonably enough that the ordinary procedures ( dikai and graphai) are “far more homogeneous than their extraordinary counterparts” (99). When he turns to the category of extraordinary procedures (including eisangelia, euthunai, dokimasia, and diadikasia), however, he observes that these are “heterogeneous and do not form a true group” (112). One may wonder therefore how useful the distinction between ordinary and extraordinary procedures is. Furthermore, this nomenclature may mislead: Todd’s extraordinary procedures in all likelihood constituted a significant part of court business and were perfectly ordinary in the eyes of Athenians.

Todd calls attention to the crucial fact that Athenian plaintiffs could often choose from a variety of legal procedures and thereby select the degree of risk that they were willing to assume and to which they wished to expose their opponents: “[t]his very special flexibility lies at the heart of Athenian procedural law” (122). This arrangement has important social implications, since wealthy plaintiffs could best afford the risks associated with the procedures that carried the most severe penalties for their opponents. Todd goes rather too far, however, when he follows R.G. Osborne in inferring from this arrangement that “the purpose of litigation at Athens … was not so much to secure justice in the modern, objective sense, but rather to reassess the relative social position of the two litigants” (161). First, one might ask (as scholars working in critical legal studies would) if modern justice is so objective and removed from questions of social status. Second, one must wonder if this is a balanced view of Athenian litigation: litigants came to court for a variety of reasons—personal, social, political, and economic—and the degree to which relative social position was at issue surely varied with the identities of the litigants and the matters in dispute.

An interesting feature of The Shape of Athenian Law is that Todd addresses the question of Athenian litigiousness in more detail than earlier handbooks. The subject is of particular interest to me, since I am completing work on a book that explores the Athenian representation of legal excess and abuse. Todd distinguishes between ancient and modern complaints of Athenian litigiousness: whereas modern writers have often been critical of the politicization of the courts in Athens, ancient critics complain rather that “Athenians, both as individuals and collectively, were too keen on litigation” (147). This distinction (from which Todd backs away somewhat in an accompanying note) is not compelling. Although Athenians were more comfortable with the merging of the political and legal spheres than most modern Westerners are, they were acutely conscious that the legal process (especially volunteer prosecution) could be abused for political purposes: see e.g. Ar. Eq. passim. To say therefore that “politics and law were at Athens ultimately indistinguishable” (29) is to overlook contemporary concern among Athenians over the interplay of the two.

In assessing ancient complaints of litigiousness, Todd endorses R.G. Osborne’s view that complaints of sukophantia are “part of the coded rhetoric of rich men hostile to democracy…” (93). While it is true that those hostile to the democracy often complain of sycophancy, the idea was also very much a part of popular discourse: sukophantes was a powerful term for elite litigants to invoke, because it played on the popular perception that sukophantia—whatever it was—was bad. 1

Todd also suggests that urbanization may have made Athenians more willing to engage in litigation from the fifth century on (157). Although this is plausible, legal anthropologists caution that we must not assume that increased litigation in a society is evidence of disintegrating social ties. It is difficult, moreover, to distinguish the influence of urbanization from other factors that may have led to rising levels of litigation: the ready accessibility of popular courts; the rise of “new politicians” who found litigation an effective instrument against their rivals; the use of litigation by members of the elite to win prestige in a democratic setting that limited traditional aristocratic competitions.

It is far easier to criticize than to write a handbook of Athenian law. On balance, Todd has succeeded in writing a stimulating and useful work. He notes that, as he prepared his book, MacDowell’s and Harrison’s handbooks were open on his desk (28). Those working in Athenian law in the future will want to have Todd’s book in front of them, along with the guides of his predecessors. This is a considerable achievement. 2

  • [1] On the democracy’s use of the term, see my article, “Ostracism, Sycophancy, and Deception of the Demos: [Arist.] Ath. Pol. 43.5,”CQ 42 (1992) 336-46. [2] Although the book is for the most part nicely produced, my copy contained a large number of miscut pages (285-315).