Ancient Athenian Law Bleg

by John Holbo on August 18, 2007

So it’s the time of year when I teach Plato’s Euthyphro and I’m getting ready to run through my usual very short history of Athenian homicide law: how before Draco there was no legal distinction between intentional and non-intentional killing; after Draco, the state began to take greater interest in what had previously been strictly family business; how after Solon it was possible, for the first time, for a citizen who was not a blood relation of the victim to bring suit. (I hope I got that right.)

And then I asked myself: pre-Solon (and even after) what did happen, in practice, if a stranger – some traveler – was killed, and there was no family to bring suit on his behalf? In the dialogue, Euthyphro explains to Socrates that it shouldn’t matter whether the victim is family or a stranger – the pollution is the same either way. And, theologically, that is a perfectly orthodox thing for him to say. More specifically (although Euthyphro doesn’t mention it) Zeus is well-known for having a soft spot for travelers. So if someone kills a traveler or stranger then, theologically, the public has a very legitimate interest in getting all that miasma cleaned up quick before lightning strikes.

So what did the ancient Athenians do in cases in which there was a killing – in which it may have been known who did the killing – and no family with standing to bring suit?

Specific follow-up question: suppose the victim was a guest-friend of an Athenian citizen. Would the citizen then have had legal standing to bring suit on the victim’s behalf?

{ 1 trackback }

Crooked Timber » » Ancient Athenian Law Bleg, Special Cleruchy Edition
08.19.07 at 5:13 am



abb1 08.18.07 at 10:37 am

All I know is that the illegal aliens should have no rights in this country.


John Holbo 08.18.07 at 12:22 pm

That’s keeping your eye on the ball, abb1!


abb1 08.18.07 at 12:53 pm

Also, it seems to me that in a purely libertarian David Friedman-style anarcho-capitalist society murdering a stranger who has no friends or relatives shouldn’t create any problem with the law – there’s no plaintiff, obviously.

I think it was alluded to in HBO’s Deadwood series. Kill the guy, feed the body to pigs, that’s all there is to it.


Robert Chatel 08.18.07 at 12:59 pm

I cite from James Davidson’s _Courtesans and Fishcakes_ that “Athens not only had no police force but even lacked a public prosecution to service, relying instead on ‘anyone who wanted to’ (ho boulomenos) to bring infringements of the law to the city’s attention often in return for a substantial reward” (p 216). He cites several sources on Athenian law in the accompanying footnote.


John Holbo 08.18.07 at 1:20 pm

Thanks Robert. I knew about the ‘no police’ ‘anyone who wanted to’ quality of the enforcement. But – I should clarify – what really struck me was the thought the, before Solon, you could have a strong, positive, religious duty to clean up some miasma, but no legal way for anyone to do it. It’s like the difference between making toxic waste clean up a voluntary activity for whoever decides to take it up and actually making it so there is no legal way to clean up the toxic waste, even if you wanted to.


Matt 08.18.07 at 1:30 pm

I don’t have the specific answer but you might try to look at the (fairly new) Cambridge Companion to Ancient Greek Law. The parts of it I’ve read are very, very interesting. I don’t recall if it specifically answers this question but it also has a large bibliography that can probably point you at the right place to look.


Robert Chatel 08.18.07 at 2:47 pm

Sorry, John. I think the issues would have been not just legal but also religious and perhaps might have been answered through imposed exile and purification or, as in the case of Epimenides’ reputed cleansing of the miasma in Athens around 600 (the pre-Solon time-frame), by bringing in someone with a reputation for purification. Walter Burkhert’s _Greek Religion_ has a bit that might be useful for thought when it treats pollution.

This review might also be of use.

A provocative issue for your students!


John Emerson 08.18.07 at 3:33 pm

As I understand, sponsorship exists primarily for the purpose of giving this kind of protection. Sort of an “as if family” kind of relationship. I don’t know about Greece specifically, but this is a widespread institution. In locally based kinship societies the big players normally make distant non-kin alliances (which tend, however, to be modeled on kinship). (Rabinow and Gellner have written about this kind of thing WRT North Africa; Rabinow writes specifically of a sheikh who killed two junior clansmen of his who had plundered a Jewish trader who had been under his protection.

Temples also served as protectors, and pilgrims were also often protected.

But the bottom line is that strangers were fair game unless shown otherwise. It wasn’t even lawlessness — many societies, including Athens, were unashamedly predatory. Furthermore, with a political shift the defeated party’s protectees were usually plundered. (For example, this happened to the Shah’s clients when he went down.)

Black-Michaud’s “Cohesive Force” is a great comparative study of vendetta, feud, etc. as sources of order in stateless societies.

Glotz’s “Solidarity of the Family in Ancient Greece” (in French) makes the point that the nub of the problem in tragedy is often that vengeance is not possible because the killer (father, son, brother, uncle, cousin) is the victim’s next-of-kin, and thus would normally be the avenger. (With husband and wife, the blood kin of the victim take vengeance on the murderer and his kin). These are also the cases which lead to curses and plagues, when the gods avenge what men do not.


thag 08.18.07 at 6:37 pm

yeah, I looked into this a few years ago myself.

came to the following conclusion, which is pretty useless without the details, but will at least suggest a line of thought:

if you look at the details of Athenian law, it looks like it would have been a pretty tough call.

More than that: if you look at the details, it looks as though Plato wrote this precisely so that it would be a pretty tough call.

More than that: if you look at the details, it looks as though Plato wrote this with such exquisite attention to making it a tough call, that he must have wanted to foreground for us the very fact that it was a tough call. (“for us” at least in the sense of “for his contemporaries, or any audience properly apprised of the details”).

To the extent that this is a correct reading of the facts and the law, I conclude the following:

Plato constructed his hypothetical at least in part for the purpose of showing us that it’s precisely the tough cases that reveal the need for a deeper, non-conventional analysis of the ethical issues. Euthyphro’s religion won’t tell you, and Athenian law won’t tell you, whether Euthyphro really should or should not prosecute his father. Easy cases don’t give rise to philosophy; hard cases do.
(Whether philosophy actually does any better on them is a different question; Socrates and Plato at least thought it could, if done right.)


Robert Chatel 08.18.07 at 8:07 pm

If I can come back in again, there are at least three or four issues that I need to try to clarify on what I have said in the comments previously. They might be grouped into two questions: which set of Athenian laws are at issue (caveat: I am not a lawyer or historian of the law) and what is the status of miasma?

In regard to the laws at issue, the Draconian laws (if such actually existed and were codified in written form in the late 6th c, since there is some question in this regard) and the reforms introduced by Solon (a bit later, perhaps as much or as little as ten year later) were controversial as the law changed and came into question in the next several centuries especially as the Sophists appeared on the scene in the late 5th c. Thag is certainly correct in his take on Plato’s dialogue, although I hesitate to impute intention as much as he or she seems to do. What we might infer about the legal situation pre-Solon or often even after Solon is colored by what we have inherited from the later writers. The tragedies do point up many of the ethical and political dilemmas (to respond to John Emerson) , but it is not just the issue of revenge and the problems for members of one’s family to exact revenge or prod a system or prosecute an individual for an injustice. This is not the case in the _Ajax_ or _Philoctetes_ to name jsts two. Antiphone’s _Tetralogies_ might shed some light on the terms of debate (mid-4th c).

To some extent that I am unable to specify more clearly at the moment I am at a loss to address how exactly this ties in with the question of miasma or pollution. In my earlier comments, I did not make clear that for the Greeks of this period (6th-4th works problematizing this) as far as we seem to know miasma attached to an individual and perhaps to his/her family as well as the progeny and the society (city) at large, since it was believed it might incur the wrath of one or more of the gods and bring down plagues and other devastation on a city (witness Oedipus, perhaps the most famous example of this but there are also Agamemnon and many others). When disasters struck, augurs or oracles or priests were consulted to seek the reason, and often exile of the offending party as well as possible demolition of the party’s property were ordered by whomever was in power–in the 7th to 6th century I have no clear idea who this might have been in Athens. To cut to the chase, or mine anyway, for the Greeks of this period miasma or pollution was largely a moral and religious or political issue; they believed the gods would punish them if they did not carry out justice in divine eyes. In today’s world the toxic waste and pollution are known to be threats to health; we know we will all pay a price for it and the question is who is to pay how much.

Sorry for being prolix, and I do not intend to patronize if you find this comment patronizing. Please let me know if this comment is too long; I do not comment often on sites, but I found this piece irresistible.

As an aside to John Emerson, guest friendship did and does exist in strong forms in Greece–this from an American who has lived and taught in Greece on and off (mostly on) for 30 years. It is there in Homer and here today.


John Emerson 08.18.07 at 9:48 pm

I think that the answer to John’s original question, regarding pre-Solonic Greece, is that the murder of an unconnected, unprotected stranger (sub-slave) during that period would hardly have been noticed at all, much less punished. But there probably were very few of these, except for refugee supplicants.

Before some relatively recent point in time, an individual not part of some kinship group and protected by no power was fair game for anyone. They were actually worse off than slaves, whose masters had a motive to protect them. Likewise anyone who was part of an enemy group — the entire populations of captured cities were sometimes massacred, in some cases routinely massacred, and being sold into slavery was a mercy (one seldom given to adult males). Even poor but honest Greeks of low status seem to have been poorly protected before Solon, though this at least was regarded as wrong.

Tandy’s “Warriors into Traders” describes the transformation of Greece around 800 BC from a relatively egalitarian tribal society into a hierarchal urban society dominated by rich traders. It’s worht a look. In Tandy’s book the Homeric poems are historically multi-leveled: an ancient legendary story from the Mycenaean era (before 1000 BC) is told as if it had taken during the Greek Dark Ages (down to ?800 BC?) in the service of the new aristocracy which arose after the Dark Ages (from 800 BC.) It pretended to be about the earliest period, described a world which actually was Dark Age Greece, but worked as the myth of a newly-arising hierarchal society. I’d love to hear a Hellenist’s critique of this book.


John Holbo 08.19.07 at 2:09 am

Thanks for all the useful comments. (Feel free to continue chatting while I baby-sit the kids of a Sunday afternoon.)


R 08.19.07 at 3:30 pm

how after Solon it was possible, for the first time, for a citizen who was not a blood relation of the victim to bring suit. (I hope I got that right.)

It’s been a while since I’ve studied this, but this isn’t my understanding. The tradition in 4th C. Athens was that Drakon’s homicide law was the one law Solon alter or scrap. This may well be wrong–the 4th C. Athenians didn’t know much reliable about Drakon and Solon–but I can’t recall any reason to think that Solon formally opened up murder prosecutions to non-relatives. (Unless maybe you’re talking about apagoge? But I don’t think there’s any reason to attribute that to Solon, nor to think it was about empowering non-relatives to prosecute homicide.)

I think there’s no possibility of a definitive answer to the question. There’s essentially no evidence at all for the earlier periods (i.e, of actual practice, as opposed to [part of?] the text of the law, which is ambiguous on this point), and not much even in the 4th C. The two major possibilities, as I recall the state of the evidence, are either that a) Drakon’s law didn’t exclude prosecution by non-relatives (though it presumably anticipated prosecution by relatives as the norm, and perhaps meant to affirm some degree of duty to do so); or that b) Drakon’s law excluded prosecution by non-relatives, and that the exclusion persisted into the 4th C. The review linked in #7 is a pretty good account of the controversy. (I guess there’s a third possibility, that the introduction of apagoge at some point changed things. But I don’t think the change was radical, and I think the best understanding of apagoge was not as a prosecution for murder itself, but for going places a murderer isn’t supposed to go; I’m pretty sure there are only two attested cases, neither involving non-relative prosecution.)

But without any attested cases of a non-relative prosecuting a murder, we’re guessing. The closest things we have are Euthyphro and a speech of Demosthenes concerning the murder of a freed slave, both of which suggest that prosecution by a non-relative would be really, really odd, but not necessarily precluded on that basis. But certainly some scholars have concluded otherwise. (Again, the review linked above is useful on this.)

As an aside to an already too-long comment, there’s an argument (probably a minority argument, but, as I recall w/o recalling the details, plausible) that homicide-related miasma was a largely post-Drakonian issue, and never as central to Athenian homicide law as it was to, say, Athenian tragedy.


John Emerson 08.19.07 at 10:07 pm

Not sure but I think Glotz sidd that miasma was only a factor in cases where the murderer was near kin or next of kin.

Gagarin’s book on Drakon / Dracon claims dateable archeological evidence for Dracon’s homicide law.


R 08.19.07 at 11:59 pm

Yes, there’s no question that there’s dateable archaeological evidence for Drakon’s homicide laws (here’s a picture), but it’s from a reinscription of the laws in 409/8, and there’s no way to be sure (and some reasons to doubt) that what was inscribed then was the unchanged and/or complete Drakonian law.


John Emerson 08.20.07 at 10:06 am

Tim, your link speaks of three years active service. Bush wasn’t in active service, and he seems to have blown off a lot of his weekends too.

Bush signed up for reserve (NG) part-time status outside the war zone. He then failed to satisfy the part-time obligation he had signed up for, but he was allowed to slide on that. It is perhaps true that if he had signed up for something quite different, and if he had satisfied that obligation, he would have been in a bit more than half as much danger as the typical US soldier in Vietnam (most of whom were not combat soldiers.)


John Emerson 08.20.07 at 10:20 am

Whoops, wrong thread. Two windows open. And a mistake too.


John Holbo 08.20.07 at 2:07 pm

No, I wouldn’t change a word, John. Somehow the tone of it fits with the thread.


lemuel pitkin 08.20.07 at 7:49 pm

Before some relatively recent point in time, an individual not part of some kinship group and protected by no power was fair game for anyone.

I think the “point in time” falls somewhere in the future, actually. What’s changed is that the state has taken over the role of kinship groups and other private associations. But an individual outside of the state system (without citizenship and not a recognized resident of any state) is still fair game. This argument has been made explicitly with regard to Guantanamo prisoners, and extends to Palestinians and other stateless groups. Hannah Arendt argues that stripping the Jews of citizenship and nationality was a critical first step in the Final Solution. And so on.

There is, obviously, a long term trend in history (one of those forms of “progress” whose existence has been disputed here) away from specific personal bases of solidarity to more universal ones, but it isn’t done yet.


Katherine 08.21.07 at 9:44 am

This rather reminds me of having to learn Roman Law in my first year at university. I always thought the point might be to demonstrate the whole of an alien legal system as a way of showing that there are many different ways of constructing legal structures. An old fashioned way of teaching comparative law perhaps. Which therefore made me wonder sometimes why we bothered going into some of nitty gritty details and why there was also a comparative law option in the third year too.

Which is a roundabout way of asking – why are you asking this question?

Comments on this entry are closed.