In recent decades, the subject of Athenian Law has generated considerable interest among Anglophone scholars without a specialized legal background, like the contributors to this volume, who were mostly trained in social history (to my knowledge, only Cohen has a law degree). The papers, come from a 1997 conference at York University (Toronto), organized to “explore further the interplay between law and social status.” “Status” here designates the traditional trio, citizen, metic-foreigner, and slave, each seen as a “juridically defined group” with privileges and disabilities “enshrined in law.” Status distinctions among members of the same group are only rarely mentioned.
All the papers have something of interest for students of Athenian law, but, regrettably, there is almost no interaction among them. One assumes the usual discussions occurred during the conference, but the volume shows little sign of this. Hunter’s introductory chapter and Golden’s brief summation include brief comments on the other papers, but debate on the big issues is largely avoided. Most disappointing is the absence of any serious discussion of Ed Cohen’s recent challenge to the assumption underlying this collection, that a strict legal separation exists between the three groups mentioned above. Cohen’s book 1 appeared too late to be discussed here, but his position was clear from earlier papers,2 and his paper (see below) repeats the challenge. Hunter, however, simply notes Cohen’s “challenging and iconoclastic” views and comments: “but a reading of other chapters in this volume reveals that he has not made many converts.” Similarly, Golden’s assessment is simply that Cohen’s case is “overstated.” Perhaps Hunter felt that simply by examining legal regulations governing the three groups, the contributors would ipso facto disprove Cohen’s thesis; but overstated though they may be, his views deserve to be dealt with directly (especially in a book with this title), and Hunter would seem ideal for this task.3
In Chapter One, “Introduction: Status Distinctions in Athenian Law,” Hunter also rejects the broader perspective suggested by Garnsey and Saller for Rome and by Finley for Athens.4 She recognizes that “privileges and liabilities that inhere in the law itself and in the legal system are only part of a larger picture,” but apparently the smaller picture is enough for this volume. In this chapter, Hunter also surveys legally-based status distinctions in Plato’s Laws and elsewhere before turning to Athens, where she gives an overview of the restrictions imposed on slaves and metic-foreigners. She concludes that despite the Athenian ideology of equality ( isonomia, isegoria), Athens manifested the same fundamental inequalities between citizens and others as we find in the Laws.
In Chapter Two, Todd muses on “How to Execute People in Fourth Century Athens.” He reviews what we know about execution in Athens (not much), and the main lines of scholarship on the issue. He finds attractive the possibility that the condemned man’s status affected his mode of execution—hemlock being an option reserved for citizens, whereas apotympanismos was for traitors and slaves, and apagoge for those with no status at all. But this is only a possibility (and the absence of any discussion of the form of execution in prosecution speeches demanding death for the defendant may suggest otherwise), and Todd wisely avoids firm conclusions.
In Chapter Three, “The Athenian Rationale for Torture,” Mirhady treats a subject he has treated before, and on which I also have written.5 He offers a four-part rationale for basanos : (1) slaves had critical knowledge [sometimes, but not always, as in Antiphon 6, where slaves are challenged to confirm a fact already confirmed by free witnesses]; (2) slaves were excluded from participation in trials; (3) the Athenians had no compunction about physically abusing slaves; and (4) they believed torture was effective at eliciting the truth from slaves. He concentrates on (4), arguing that the Athenians plausibly believed that when slaves were in a neutral situation, with both parties to the dispute present, they believed that their own best interest, which they identified with their immediate bodily welfare, lay in telling the truth. This is confirmed, he argues, by scenes in Prometheus, Oedipus Rex, and Frogs. Although Mirhady is perhaps too ready to take the orators’ words at face value and identify what they say with what they think, his analysis is sensible and useful.
The main issue between Mirhady and me has centered on “evidentiary basanos,” where one party to a dispute challenges the other to have a slave interrogated under torture. There are no known cases of such an interrogation being carried out to completion, and I have argued that challenges are primarily rhetorical moves and that actual torture in such circumstances was rare, at best. Mirhady thinks such torture was common but is not mentioned by the orators because, when carried out, it settled the case. This hypothesis is unprovable, but I cannot prove that it never happened, though it is absent from speeches where other dispute-ending procedures, such as arbitration, are mentioned. Given this impasse it may be more fruitful to consider other approaches, such as the role of basanos in maneuvering a case into court.6
In Chapter Four, “Religion, Imperial Politics, and the Offering of Freedom to Slaves,” Osborne continues to see the courts as “places in which social standing is contested.”7 He proposes that the sycophant exemplifies the “fundamental conflict between law enforcement and the maintenance of existing social relations” and that this same conflict underlies the restrictions on metics as third-party (volunteer) prosecutors and on all but male citizens as witnesses. In each case, the excluded party might gain an improper share of honor from a winning case.
Osborne then argues that a slave’s informing ( menuein) against his master would pose a similar threat to status distinctions and that, therefore, slaves could only inform in cases involving the interests of the gods (notably, after the events of 415); even in cases of political subversion, slaves were not allowed to inform against their masters. This conclusion seems prima facie implausible: it requires special pleading regarding Plato’s Laws and it ignores the likelihood that before being tortured in criminal interrogations, slaves were first questioned and allowed to give their evidence freely. The scene between Oedipus and the shepherd, discussed by Mirhady, suggests the normal procedure. Certainly it is hard to believe that, if a slave informed on a leading citizen that his master was planning a revolution, such information would have been disregarded.
Osborne bases his conclusion on the absence of explicit provisions about informing in Demophantus’ decree and other laws versus the presence of such provisions in laws from other cities. But this may only mean that in Athens menusis was a matter of custom, not mentioned in laws and decrees. The claim (Antiphon 5.34) that “everyone else treats informers in just the opposite way [from my opponents], rewarding free men with money and slaves with their freedom,” states a custom (no law existed rewarding free men with money); most likely it was customary to reward slaves with freedom if their information succeeded in stopping a serious crime. Of course, if it did not, the slave’s master would likely retaliate, and so the Athenians might add a monetary reward in serious cases.
In Chapter Five, “The Hospitality of Athenian Justice: The Metic in Court,” Patterson maintains that the metic in court “was a peculiarly isolated and thus vulnerable figure.” Metics had certain legal rights ( Ath. Pol. 58), but, she argues, their lack of an extensive kinship structure prevented their taking full advantage of these. Anti-metic rhetoric added to their difficulties. Lysias is exceptional, but even he is a desperate man, pleading with the jurors to consider their own interests in convicting Eratosthenes even if they have little concern for a metic like himself. Patterson’s thorough discussion is useful, but she overstates her case. Lysias’ very rich family had lived in Athens thirty years and he must have had many citizen friends and supporters. His pleading differs little from that of citizens, and in fact he makes it a point against the Thirty that they treated metics as less deserving than citizens (12.20). Metics undoubtedly suffered some legal disadvantages, but some, especially the rich, probably lived very similar lives as citizens. (There is a significant typo on p.99.7up: for Eratosthenes’ read Polemarchus’.)
Chapter Six, “Whoring Under Contract: The Legal Context of Prostitution in Fourth-Century Athens,” is another chapter in Cohen’s attempt to show that the Athenian economy was more market-driven than status based.8 Prostitution, he argues, was a commercial activity open to all—slaves, metics and citizens. The law against hybris explicitly protected every inhabitant in Attica from sexual exploitation or abuse. Unlike moderns, who see prostitution as morally degenerate and inherently exploitative, Athenians had no moral qualms about it. Conservative forces later objected to this profit-making activity and passed a law restricting men from exchanging sex for money, but the coexistence of such conservative measures with “the widespread, lawful purchase of sex from citizens” merely exemplifies the discontinuities and contradictions that exist in any society.
Cohen’s challenge to prevailing views is welcome and there is certainly some truth in his analysis. But he pushes his evidence too far and neglects some evidence to the contrary. Female citizen prostitution may not have been unlawful but it was hardly “widespread.” Male citizen prostitution appears to have negotiated a fine line between gift exchange and commercial exchange, and both parties probably tried hard to maintain the appearance of the former. And the law against hybris may have protected slaves against rape but hardly against more subtle forms of exploitation, such as we see in Philoneus’ treatment of his mistress ( pallake) in Antiphon 1.
Chapter Seven, “The Scrutiny of New Citizens at Athens” by Robertson, is a study of the dokimasia procedure for admitting new citizens into the deme. Robertson argues that the requirement that a young man be eighteen at the time was primarily satisfied by a physical inspection of the youth’s naked body. A person’s precise age, at the dokimasia and in other situations, seems of relatively little interest to Athenians; they depended, he argues, on evidence of physical maturity, imprecise as it may be, to decide if a young man was old enough to be admitted. Robertson connects this conclusion to the ideology of the citizen’s (naked) body, which confirmed the inequality of citizen and non-citizen: the latter engaged in physical labor, and so their bodies differed from that of “a poised and supple citizen.”
Robertson’s discussion of Greek attitudes toward age is useful, though he should perhaps give more credit to material circumstances, especially the scarcity of writing and written records, even in the fourth century. And the indications that physical inspection played a role in the dokimasia are worth noting, though it was hardly the only factor and perhaps less important than the issue of citizen parents. Moreover, physical evidence for maturity commonly involved a factor ignored by Robertson, the beard. Protagoras 309a, which he cites in the context of men admiring youth’s naked bodies in the gymnasium, says nothing of this but mentions Alcibiades’ beard as evidence of his age. Finally, Robertson ignores the fact that many citizens labored, especially on farms, alongside slaves and also ignores completely the metics, many of whom led similar lives as citizens. As in other essays, this neglect of differences within these status groups weakens the analysis.
The volume ends with a witty and provocative little piece by Golden (“Epilogue: Some Trends in Recent Work on Athenian Law and Society”). In eight pages he summarizes and then raises questions about three such trends: law as parallel discourse (“law does not necessarily provided accurate portrayal of social reality”); law as productive discourse (“law creates and reinforces differences and hierarchies”—why not similarities as well?); and law as permeable discourse (law was “integrated into and strongly influenced by other areas of social life”). In each of these areas Golden mentions a wide range of recent works. His own assessment of these comes in the form of questions, and he generally avoids giving his own opinion on most works, though he is clearly in sympathy with the collection’s prevailing views of citizen ideology. I expect the piece worked well as an inducement to discussion at the end of the conference.
Conferences and the subsequent publication of their proceedings are a growth industry that (unlike high-tech) shows no sign of a recession. I am all for the trend as far as holding conferences is concerned, for I find the personal interaction not only beneficial but often indispensable, especially in fields like Greek law where scholars are scattered all over the world and it is often difficult to find, let alone keep up with, their work. But publication is another matter. These papers contain some interesting material, but overall they gain little from being published together rather than in traditional journals.
Notes
1. Edward E. Cohen, The Athenian Nation. Princeton 2000.
2. Already foreshadowed in Edward E. Cohen, Athenian Economy and Society. Princeton 1992; further developed in “Status and Contract in Fourth-Century Athens: A Reply to Stephen C. Todd,” in Symposion 1993, Gerhard Thür, ed. (Cologne 1994) 141-52; and “The Astoi of Attika: Nationality and Citizenship at Athens,” in Symposion 1995, Gerhard Thür and Julie Vélissaropoulos-Karakostas, eds. (Cologne 1997) 57-87.
3. Virginia Hunter, Policing Athens: Social Control in the Attic Lawsuits, 420-320 BC. Princeton 1994.
4. Peter Garnsey and Richard Saller, The Roman Empire: Economy, Society and Culture. London 1987; M. I. Finley, Economy and Society in Ancient Greece (New York 1981) 133-49.
5. See David Mirhady, “Torture and Rhetoric in Athens.” JHS 116 (1996) 119-31; Michael Gagarin, “The Torture of Slaves in Athenian Law.” CP 91 (1996) 1-18; both depend on the magisterial work of Gerhard Thür, Beweisfuehrung vor den Schwurgerichtshoefen Athens: die Proklesis zur Basanos (Akad. der Wiss., Sitzungsberichte 310). Vienna 1977.
6. See, e.g. Stephen Johnstone, Disputes and Democracy: The Consequences of Litigation in Ancient Athens. Austin 1999.
7. Robin Osborne, “Law in Action in Classical Athens.” JHS 105 (1985) 40-58; “Vexatious Litigation in Classical Athens: Sykophancy and the Sykophant,” in Nomos: Essays in Athenian Law, Politics and Society, Paul Cartledge, P. Millett and Stephen Todd, eds. (Cambridge 1990) 83-102.
8. Athenian Economy and Society (above, note 2). Cohen also treats prostitution in forthcoming articles in Symposion 1999 and in Kerdos, a collection edited by Cohen together with Paul Cartledge and Lin Foxhall.