THE CONCEPT OF “IMPURE BIRTH” IN 5TH CENTURY ATHENS AND JUDEA
Lisbeth S. Fried
It is a great honor for me to participate in this tribute of appreciation to my friend and mentor Tikva Frymer-Kensky. Tikva was instrumental in directing scholars’ attention to the roles and concerns of women both in antiquity and in the present, and it is fitting therefore that I dedicate this study of the notion of “impure birth” in 5th-century Athens and Judah to her memory. The book of Ezra records that at the time of Ezra’s arrival in Jerusalem, the people of Israel were mingling the “holy seed” with that of the “peoples of the lands.” After these things were finished, the officials approached me and said, “The people of Israel, the priests, and the Levites have not separated themselves from the peoples of the lands whose abominations are like those of the Canaanites, the Hittites, the Perizzites, the Jebusites, the Ammonites, the Moabites, the Egyptians, and the Amorites. They have taken some of their daughters as wives for themselves and for their sons. Thus they mixed the holy seed with the peoples of the lands, and the hand of the officials and magistrates was first in this rebelliousness” (Ezra 9:1–2). The antidote to the problem was mass divorce: Then Ezra the priest stood up and said to them, “You have rebelled and have caused foreign women to dwell with you, and so increased the guilt of Israel. Now make confession to YHWH the God of your fathers, and do his will; separate yourselves from the peoples of the land and from the foreign women.” Then all the assembly answered with a loud voice, “Yes; it is incumbent upon us to do according to your word.” (Ezra 10:10–12).
121 122 IN THE WAKE OF TIKVA FRYMER-KENSKY
Many commentators have been uncomfortable with these texts. Williamson admits to finding this section “among the least attractive parts of Ezra–Nehemiah.”253 He and other commentators see ugly racial overtones.254 Mowinckel, for example, likens the attitude to Nazism. Janzen argued recently that foreign women were expelled because they were viewed as dangerous to the community, and that what resulted was a “witch-hunt,” a purification ritual.255 Yonina Dor finds the idea so reprehensible that she is driven to deny that the whole thing ever happened, it is pure fiction.256 Some commentators rationalize and explain that intermarrying with the “peoples of the lands” would imply adopting some of their religious practices.257 They argue that since the restored community was to be a religious one, it needed to establish strict criteria for membership in order for the distinctive elements of the Jewish faith to survive.258 The foreign women are emphasized because the mother teaches her beliefs to her offspring; those who grow up to follow Jewish practices are more likely to have had Jewish mothers.259
253 Hugh G. M. Williamson, Ezra, Nehemiah, Word Biblical Commentary, 16 (Waco: Word Books, 1985), 159. 254 Williamson, Ezra, Nehemiah, 130–32; Joseph Blenkinsopp, Ezra– Nehemiah: A Commentary, The Old Testament Library (Philadelphia: Westminster Press, 1988), 176; Sigmund Mowinckel, Die Ezrageschichte und das Gesetz Moses, Studien zu dem Buche Ezra–Nehemiah, III, Skrifter ut gitt av Det Norske Videnskaps-akademii Oslo II, Hist.-filos. Klasse ny serie, 7 (Oslo: Universitetsforlaget, 1965), 34–35. 255 David Janzen, Witch-Hunts, Purity and Social Boundaries: The Expulsion of the Foreign Women in Ezra 9–10, Journal for the Study of the Old Testament. Supplement Series, 350 (London: Sheffield Academic Press, 2002). 256 Yonina Dor, Did They Really Divorce the Foreign Women? The Question of the Separation in the Days of the Second Temple (Jerusalem: Magnes Press, 2006) (Hebrew). 257 Jacob M. Myers, Ezra–Nehemiah, Anchor Bible, 14 (Garden City, NY: Doubleday, 1965), 77. 258 E.g., Peter R. Ackroyd, I & II Chronicles, Ezra, Nehemiah, Torch Bible Commentaries (London: SCM, 1973), 253; Blenkinsopp, Ezra–Nehemiah: A Commentary, 176f.; F. Charles Fensham, The Books of Ezra and Nehemiah, New International Commentary on the Old Testament (Grand Rapids: Eerdmans, 1982), 125; Williamson, Ezra, Nehemiah, 160. 259 Fredrick Carlson Holmgren, Israel Alive Again: A Commentary on the Books of Ezra and Nehemiah (Grand Rapids: Eerdmans, 1987), 73. CONCEPT OF “IMPURE BIRTH” 123
Daniel Smith-Christopher takes a different approach to the intermarriage crisis by referring to modern sociological data.260 Research shows that the majority of inter-racial marriages in 20th- century America, for example, consisted of professional and educated black men “marrying-up” to non-professional women of the white higher status culture.261 Studies of intercaste marriages in India also predominantly involved a professional male of a lower caste and a non-professional woman of a higher caste.262 Data also show that Jewish-Gentile intermarriages in Europe between 1876 and 1933 consisted predominantly of Jewish males and Gentile females.263 Smith-Christopher suggests that the intermarriages in 5th- and 4th- century Judah consisted primarily of these lower caste Judean men attempting to marry up by marrying higher status non-Judean women. Smith-Christopher ventures that the prohibitions against these types of intermarriages indicate a concern by the lower status group for its own identity. This concern arises especially when minority groups within a larger dominant culture find themselves uprooted and isolated and faced with a strong pressure to conform to alien standards of behavior. They then instinctively fall back on the kinship network to defend against threats of extinction. A fourth group of exegetes see the opprobrium attached to “mingling the holy seed” as an exegetical elaboration of the older idea of Israel as a “holy people,” an idea frequent in both the Deuteronomic and in the Holiness materials (e.g., Exod 19:6; Lev 20:26; Deut 14:2).264 In Ezra’s reference to the eight forbidden Canaanite nations (Ezra 9:1), Fishbane sees a clear allusion to Deut 7:
260 Daniel L. Smith-Christopher, A Biblical Theology of Exile, Overtures to Biblical Theology (Minneapolis: Fortress Press, 2002), 137–62. 261 Ibid., 153. He bases his findings on the research he cites in 152 n. 34, 153 n. 37. 262 Ibid., 154. 263 Ibid. 264 Michael Fishbane, Biblical Interpretation in Ancient Israel (Oxford: Clarendon Press, 1985), 114–29; Saul M. Olyan, Rites and Rank: Hierarchy in Biblical Representations of Cult (Princeton: Princeton University Press, 2000), 83; idem, “Purity Ideology in Ezra–Nehemiah as a Tool to Reconstitute the Community,” Journal for the Study of Judaism in the Persian, Hellenistic and Roman Period 35 (2004): 1–16; Christine Elizabeth Hayes, Gentile Impurities and Jewish Identities: Intermarriage and Conversion from the Bible to the Talmud (Oxford: Oxford University Press, 2002), 19–59. 124 IN THE WAKE OF TIKVA FRYMER-KENSKY
1–6, where the prohibition against intermarriage is justified “because you are a holy people (M(a #$wOdqf).265 The addition of the Ammonites, Moabites, Egyptians and Amorites (probably to be read Edomites with 1 Esdras 8:66) is simply the addition of the four peoples prohibited from immediately entering the congregation of YHWH (Deut 23:3–8; cf. Neh 13:1–3). The antidote of divorce expels those who had entered the congregation of YHWH illegally. Since two of these peoples were forbidden even up to the tenth generation and the other two up to the third generation, it follows that their children are forbidden as well. It is the fear of defiling the land, and being expelled from it again, combined with their immersion in a sea of alien peoples, that leads the returnees not only to zealously follow Torah law but also to extend it to the new situation through exegesis.266 What this analysis misses, however, is that Ezra 9:1 should probably not be translated as most do: The people of Israel, the priests, and the Levites have not separated themselves from the peoples of the lands with their abominations, from the Canaanites, the Hittites, the Perizzites, the Jebusites, the Ammonites, the Moabites, the Egyptians, and the Amorites. This translation implies that only those eight nations are forbidden. Rather, it should most likely be translated: The people of Israel, the priests, and the Levites have not separated themselves from the peoples of the lands whose abominations are like Mheyt'bo(jwOtk; the Canaanites, the Hittites, the Perizzites, the Jebusites, the Ammonites, the Moabites, the Egyptians, and the Amorites.
265 Fishbane, Biblical Interpretation, 115–16. 266 In contrast, Jonathan Klawans, “Notions of Gentile Impurity in Ancient Judaism,” Association of Jewish Studies Review 20 (1995): 285–312; idem, Impurity and Sin in Ancient Judaism (Oxford: Oxford University Press, 2000), 43–46, argues that the restoration community believed that the moral practices of the neighboring peoples defiles the land and that such defilement would lead to exile. Separating from the peoples of the land is a separation from such defiling practices. However, it cannot be fear of the practices which led to the mass divorce, or there would have been provision for conversion or for other demonstration of relinquishing foreign ways. As both Olyan and Hayes point out, an impermeable boundary is created independent of the behavior of the foreigner. CONCEPT OF “IMPURE BIRTH” 125
According to this reading, every foreigner is as the foreigner who is prohibited by Torah law, because every foreign people exhibits customs comparable in some way to the customs of the proscribed nations. The Philistine from Ashdod is as the Ammonite and Moabite (cf. Neh 13:23–25). Moreover, since the possibility of conversion does not exist in these texts, foreignness becomes a permanent, trans- generational attribute. In contrast to Torah literature, in Ezra- Nehemiah the foreign wife conveys foreignness to her offspring. The child of an Israelite and his foreign wife is also foreign. Thus, uniquely in these texts, access to Israelite identity is conditioned on having two Israelite parents. These texts illustrate how categories like “alien” and “native” are social constructs and malleable. Thus two types of interpretation have been suggested to account for the strong prohibition against Judean/non-Judean intermarriages in Ezra–Nehemiah, religious and sociological. Nevertheless, both approaches stress the reaction of an embattled minority trying to maintain group identity and cohesion against the threat of the larger—perhaps higher-status—civilization within which it is embedded. The problem in accepting these explanations is that similar prohibitions against intermarriages are revealed in the law codes of 6th- and 5th-century Athens, yet classicists do not interpret these laws as a response to a religious or cultural threat from a non-Athenian civilization. Classicists do not view Athenians as an embattled minority trying to maintain their cultural identity against the larger Hellenic civilization within which they find themselves, nor do they regard Athenian men who marry non-Athenian women as attempting to “marry up.” The prohibition against intermarriage and the mass divorce described in Ezra and Nehemiah seem to mirror the similar prohibitions and divorces in contemporary Athens.267 It is reasonable to inquire, therefore, if these similar events were a response to similar pressures in the two cities. Understanding the events which occurred in 5th-century Athens may shed light on the very similar events that occurred in 5th-century Jerusalem.
267 This was suggested to me originally by Tamara Eskenazi, personal communication. See now Tamara Cohn Eskenazi, “The Missions of Ezra and Nehemiah,” in Judah and the Judeans in the Persian Period, ed. Oded Lipschits and Manfred Oeming (Winona Lake: Eisenbrauns, 2006), 509–29. 126 IN THE WAKE OF TIKVA FRYMER-KENSKY
ATHENI AN CITIZENSHIP L AWS 268
Solon The notion of Athenian citizenship begins in 594 BCE, when Solon, the archon, was asked to quell the unrest and civil strife caused by landholding practices in which according to Aristotle, “the many were becoming enslaved to the few” (Ath. Pol. 5 a 1).269 To create peace between creditors and debtors, Solon enacted a series of entitlements for Athenian citizens: Debts were forgiven; tenants were given ownership of the land they worked on; those enslaved for debts were released; and those who fled abroad from their debts were brought back (Ath. Pol. 12.4). Debt-bondage was ended since loans to Athenians could no longer be taken on security of persons and no Athenian (male or female) could be enslaved by another. Since non-Athenians were not so protected, these laws required a strict definition of citizenship, and a strict distinction between citizen and non-citizen. Prior to Solon, the categories of xenos (ce/noj, i.e., stranger, foreigner, non-resident alien) and metoikos (me/toikoj, resident alien) did not exist as legal statuses. In his legislation, Solon
268 Unless otherwise noted, the following discussion is based on: Ilias A. Arnaoutoglou, Ancient Greek Laws: A Sourcebook (London: Routledge, 1998); Sara Forsdyke, Exile, Ostracism, and Democracy: The Politics of Expulsion in Ancient Greece (Princeton: Princeton University Press, 2005); Nicholas G. L. Hammond, A History of Greece to 322 B.C., 3rd edition (Oxford: Clarendon Press, 1986), 153–66, 179–91, 299–310; Philip Brook Manville, The Origins of Citizenship in Ancient Athens (Princeton: Princeton University Press, 1990); Cynthia B. Patterson, Pericles’ Citizenship Law of 451–50 B.C. (New York: Arno Press, 1981); eadem, “Those Athenian Bastards,” Classical Antiquity 9 (1990): 39–73; eadem, “Marriage and the Married Woman in Athenian Law,” in Women’s History and Ancient History, ed. Sarah B. Pomeroy (Chapel Hill: University of North Carolina Press, 1991), 48–72; eadem, “Athenian Citizenship Law,” in The Cambridge Companion to Ancient Greek Law, ed. Michael Gagarin and David Cohen (Cambridge: Cambridge University Press, 2005), 267–89; Greg R. Stanton, Athenian Politics c. 800–500 BC: A Sourcebook (London: Routledge, 1990). See also my “From Xeno- Philia to - Phobia— Jewish Encounters with the Other,” in A Time of Change: Judah and Its Neighbours in the Persian and Early Hellenistic Periods, ed. Yigal Levin (London: T & T Clark, 2007), 179–204. 269 Whether Aristotle himself or Pseudo-Aristotle is beyond the competence of this writer to determine. CONCEPT OF “IMPURE BIRTH” 127 admitted metoikoi (i.e., those foreigners who worked in Athens as artisans and tradesmen and who had no other place of residence) to the ranks of citizen. They were admitted to artists guilds, and assigned to phratries, but because they were not members of the ancient clans, they could not own land. All land was clan land and inalienable. Itinerant foreigners whose families lived elsewhere remained outside the system. In addition to political reforms, Solon enacted a broad package of family law.270 Bastards, “nothoi” (no/qoi), that is, offspring born to Athenian fathers, but not to their legally recognized wives (i.e., children born to concubines or mistresses) were disenfranchised, deprived of citizenship. They could no longer participate in the rites and privileges of the polis. They had now no next-of-kin, and could not inherit any more than the token 500 drachmas that was the “bastard’s share.”271 Thus Solon privileged the marriage bond and legitimacy, and restricted the inheritance of wealth and status to legitimate children. A childless man could adopt heirs, but he could not adopt his own bastard (or anyone else’s) as his heir (Demosthenes, Against Neaira XLIII.51; XLVI.14, etc.).272 Since each man could have only one legitimate wife, the status of women increased correspondingly. Solon furthermore allowed legitimate daughters to inherit if there was no legitimate son, only requiring that the heiress marry a member of her father’s line.273 Nor was a man allowed to marry a woman for her wealth and then ignore her. Solon required him to be a proper husband and to have intercourse with his wife at least three times a month (Plutarch, Solon 20.2–3). In addition, Solon passed his well-known Law of Associations. Prior to Solon, membership in a phratry constituted citizenship, and the phratry could admit or refuse whomever it liked. This freedom was now superceded by the decisions of the polis:
270 Patterson, “Those Athenian Bastards;” Susan Lape, “Solon and the Institution of the ‘Democratic’ Family Form,” The Classical Journal 98 (2002– 2003): 118; Daniel Ogden, Greek Bastardy in the Classical and Hellenistic Periods (Oxford: Clarendon Press, 1996), 36–43. 271 Ogden, Greek Bastardy, 36–39, 42; Cynthia B. Patterson, The Family in Greek History (Cambridge, MA: Harvard University Press, 1998), 89–90. 272 Lape, “Solon,” 122. 273 In classical Athens, relatives of the mother of the deceased could also marry the heiress if there were no eligible partners on the paternal side (Patterson, The Family in Greek History, 97–98). 128 IN THE WAKE OF TIKVA FRYMER-KENSKY
If a demos (dh=moj==) or members of a phratry (fratri/a) or of a cultic society or of a ship-command or messmates or members of a burial society or revelers or people going abroad for plunder or for commerce make an arrangement concerning these matters (i.e., matters appropriate to their association) among themselves, it is to be valid unless the written statues of the People (dhmosi/a gra/mmata) forbid it. (Solon’s Law of Associations, Gaius in Justinian’s Digest 47.22.4) 274 Thus, the laws of the dŸmos, the people, took precedence over the laws of the individual phratries. This law created the notion of citizenship, of being Athenian, of belonging to a polis that had jurisdiction over its members.
Peisistratos and Kleisthenes Solon left the city after his archonship in 594, and Athens degenerated into anarchy, civil wars, and finally in 546, into tyranny under Peisistratos and his sons. With the aid of Argive mercenaries, Peisistratos set himself in opposition to the leading aristocratic families whose sons he held hostage on the acropolis. He claimed the support of the lower classes, including tradesmen who received the franchise under Solon, but were not able to buy land (Herodotus, Hist. I.59–61; Aristotle, Ath. Pol. 13.4–15.3).275 All these flocked to Peisistratos. With the aid of Spartan mercenaries, Isagoras and Kleisthenes, scions of two major aristocratic families of Athens, collaborated in 510 to overthrow the Pisistratid tyranny. No sooner did the tyrants flee Athens, but civil war broke out between the supporters of Isagoras and Kleisthenes. Kleisthenes, losing the battle, attempted to draw the masses to himself by appealing to those poor who had supported Peisistratos. In response, the oligarchic Spartans allied themselves with Isagoras, forcing Kleisthenes into exile. The aristocratic Isagoras, elected archon in 508, subjected the Athenian population to a civic scrutiny or diapsŸphismos, diayhfismo/j, in which those of ‘impure birth’ (oi(/ tῷ ge/nei mh\
274 Quoted in and translated by Nicholas F. Jones, The Associations of Classical Athens: The Response to Democracy (Oxford: Oxford University Press, 1999), 34. 275 Hammond, A History of Greece, 163–66; Forsdyke, Exile, Ostracism, and Democracy, 101–33. CONCEPT OF “IMPURE BIRTH” 129 kaqaroi\) were purged from the citizenship rolls. According to Herodotus, 700 families were purged (Aristotle, Ath. Pol. 13.5; Hist. V.72, cf. Ath. Pol. 20.1–3), an act carried out by a largely Spartan military force. Peisistratus … was thought to be an extreme advocate of the people. And on his side were also arrayed, from the motive of poverty, those who had been deprived of the debts due to them [under Solon’s reforms]; and, from the motive of fear, those who were of impure birth (oi/ tw~ ge/nei mh\ xaqaroi).\ This is proved by the fact that after the deposition of the tyrants the Athenians enacted a scrutiny of the roll (diayhfismo/n), because many people shared the citizenship who had no right to it (Ath. Pol. 13.5). Of those purged, some were put to death, others were exiled, some were allowed to live in Attica, but declared atimia, i.e., deprived of their rights as citizens, with no recourse to the protection of justice or courts of appeal—(Andocides, On the Mysteries 1.106).276 These 700 families would have included descendants of the foreign artisans and traders who had been assigned to a phratry and given citizenship by Solon, but no land.277 The validity of their citizenship and their admittance to the phratry may now have been questioned. It may have been at this time that a decree was passed according to which “anyone, having been born of two alien parents and is a member of a phratry—anyone who wishes of the Athenian citizens that have the right of private prosecution may prosecute him and be allotted a hearing before the nautodikai on the first of the month.”278 This may have been the decree which caused the fear in sons of men who were
276 Manville, The Origins of Citizenship, 183. 277 Herodotus (Hist. V.71, cf. Aristotle, Ath. Pol. 20.1–3) states that these seven-hundred families were descendants of the followers of Kleisthenes’ ancestors and who were now accused of being “accursed” because in the seventh century they had killed Cylon, the would-be despot, and his followers, while they clung to the altar of Athena on the Acropolis. If they had really been viewed as “cursed” since the seventh century however, it does not seem likely that exile would have awaited these events which occurred a century later. This explanation for the purge seems more likely due to Herodotus’ need to view evil outcomes as a result of hubris. 278 Craterus, in Felix Jacoby, Die Fragmente der Griechischen Historiker 3B (Leiden: E. J. Brill, 1950), no. 342 F 4 , quoted in Ogden, Greek Bastardy, 49– 50. 130 IN THE WAKE OF TIKVA FRYMER-KENSKY newly enrolled in the phratries under Solon. These men supported the Peisistratid tyranny, and were threatening now to support Kleisthenes who apparently, according to Aristotle, was going to “hand power over to the masses” (Ath. Pol. 20.1). After the purge, Isagoras, with Spartan aid, attempted to disband the Assembly and to create an oligarchy with himself and other members of the ruling elite in charge. The Assembly refused to disband, however, and chased Isagoras and his supporters to the acropolis, where they besieged them for two days, allowing them to leave only on the third (Hist. V.72, 74.1, Ath. Pol. 20). They then dispatched envoys to bring back the pro-democratic Kleisthenes and those of the 700 families who had been exiled. As part of the democratic reaction against Isagoras’ purge, Kleisthenes was able to drive through a series of reforms that solidified the definition of citizenship. He changed the basis of the deme to a geographical unit rather than one based on lineage. Every legitimate (non-bastard son) of an Athenian was newly enrolled in one of thirty demes according to his current place of residence (Ath. Pol. 21).279 These thirty were composed of ten each from the three major areas of Attica—town, plain, and coast.280 A family’s residence in a deme in 507 was now the condition of citizenship. Wherever a family lived thereafter, it was a member of the deme in which it had been living in 507. Kleisthenes moreover randomly assigned these demes to one of ten newly created “phylai” “tribes,” each composed of a deme from the city, the plain, and the coast. According to Ath. Pol. (21), Kleisthenes’ purpose was to “mix up” the Athenians, so that “more would have a share in the politeia.” Aristotle asserts in his Politics that Kleisthenes “enrolled in the tribes many foreigners and slaves” (1275b34–09). Thus the polity was enlarged. To avoid being labeled “impurely born” and removed from the citizenship rolls, men had only to trace their lineage back to their father’s house (oikos), to the deme, and to the tribe to which his family was assigned in 507. Every citizen—plus every non-citizen resident alien—now had a systematic and tangibly defined place in society. Metoikia became a securely attested legal status, identifying the foreigner who lived in Athens but who was not a citizen. Metoikoi registered as such in the deme in which they resided. The name of the deme now became the citizen’s last
279 Patterson, The Family in Greek History, 281. 280 Ibid., 276. CONCEPT OF “IMPURE BIRTH” 131 name, and created a theoretical equality among the demesmen. Herodotus refers to this Kleisthenes as “the one who reorganized the tribes and established democracy in Athens” (Hist. VI.131).
Pericles During the following decades the democrats remained dominant. In 461, while the pro-aristocratic Kimon happened to be away, Pericles put through democratic reforms in which judicial responsibilities were taken from the powerful Areopagos, the aristocratic final court of appeal, and distributed among the lower courts and the Assembly.281 It may have been during this period that the pro-democratic general Pericles proposed that Athenians be paid a daily wage for sitting as a juror in the popular courts and in the Assembly.282 This enabled those who previously could not have afforded to give up a day’s work now to participate in government. The lower classes, those needing the two-obols daily wage, began to predominate in the juries, the Assembly, and the councils. Pericles may also have been behind the creation in 453/2 of a popular court (dikastai/ kata dh/mouj) of 30 jurors which traveled throughout the countryside giving preliminary judgments or even final judgments in the case of small claims.283 This court was instrumental in taking justice out of the hands of the aristocratic families of the phratries and placing it in the hands of jurors appointed by the polis. There was now one common judicial system throughout Athens. Pericles also supported the poor through public building projects and, in spite of the cessation of the war with Persia, by maintaining 200 triremes with their hundreds of rowers in active service. He paid for these with funds expropriated from the tribute of the member-states of the Delian League, whose treasury had been moved from Delos to Athens soon after the war with Persia. These funds were to provide for the members’ common defense, not to beautify Athens. In 451–450, Pericles persuaded the Athenians to restrict further their definition of Athenian citizenship, although according to Plutarch (Pericles 37.2), this was a law “about bastards” (peri\ tw=n no/qwn), not about citizenship per se.
281 Hammond, A History of Greece, 288. 282 Patterson, Pericles’ Citizenship Law, 93–94; Hammond, A History of Greece, 301. 283 Patterson, Pericles’ Citizenship Law, ibid. 132 IN THE WAKE OF TIKVA FRYMER-KENSKY
And in the year of [the archonship of] Antidotus, owing to the large number of the citizens an enactment was passed on the proposal of Pericles prohibiting a person from having a share in the city who was not born of two citizens (Ath. Pol. 26.3). For the first time Athenian citizens had now to prove descent from an Athenian mother, that is a woman whose father was a citizen. Those unable to prove this were reckoned as bastards. Though not often stated, this law recognized for the first time the status of the Athenian woman, and may have even elevated it.284 The decree of 451/450 was followed by another scrutiny (diayhfismo/j) in 445 when the Egyptian king sent grain to be distributed to Athenian citizens. And so [in 445] when the king of Egypt sent a present to the people [of Athens] of forty thousand measures of grain, and this had to be divided up among the citizens, there was a great crop of prosecutions against citizens of illegal birth by the law of Pericles, who had up to that time escaped notice and been overlooked, and many of them also suffered at the hands of informers. As a result, a little less than five thousand were convicted and sold into slavery, and those who retained their citizenship and were adjudged to be Athenians were found, as a result of this selection, to be fourteen thousand and forty in number. (Plutarch, Pericles 37.3–4) Indeed, 4760 Athenians were struck from the citizenship rolls then as being of “impure birth” and not entitled to the grain.285 Deprived of their rights as citizens, they had no recourse to the protection of the courts; if murdered, their family had no right of vengeance. Many fled or were exiled. Confiscation of property and often loss of life followed even those allowed to remain in Athens. Those who sued for their citizenship rights and lost their suit were executed. These laws were allowed to lapse during the Peloponnesian Wars, but in 403 they were reinforced and strengthened. Another census and mass exile ensued. Manville characterizes these periodic
284 Robin Osborne, “Law, the Democratic Citizen and the Representation of Women in Classical Athens,” Past and Present 155 (May 1997): 3–33. 285 Philochoros, in Jacoby, Fragmente der Griechischen Historiker, no. 328 F 119; John K. Davies, “Athenian Citizenship: The Descent Group and the Alternatives,” The Classical Journal 73 (1977–78): 105–21. CONCEPT OF “IMPURE BIRTH” 133
“scrutinies” as “reigns of terror”.286 Davies notes the constant status anxieties which are reflected in contemporary tragedies.287 Laws prohibiting intermarriage between Athenians and foreigners followed upon Pericles’ citizenship law. Two laws in particular are noteworthy, both quoted in Demosthenes, Against Neaira LIX.16, 52.288 If a foreign man lives as husband with an Athenian woman in any way or manner whatsoever, he may be prosecuted before the thesmothetai by any Athenian wishing and entitled to do so. If he is found guilty, both he and his property shall be sold and one-third of the money shall be given to the prosecutor. The same rule applies to a foreign woman who lives with an Athenian as his wife, and the Athenian convicted of living as husband with a foreign woman shall be fined a thousand drachmas (Against Neaira LIX.16). If any Athenian gives a foreign woman in marriage to an Athenian citizen, as being his relative, he shall lose his civic rights and his property shall be confiscated and one-third shall belong to the successful prosecutor. Those entitled may prosecute before the thesmothetai, as in the case of usurpation of citizenship (Against Neaira LIX.52). These laws imply a mandatory divorce for all marriages between an Athenian and non-Athenian, whether male or female. According to the law, the foreigner living as spouse with an Athenian shall be sold into slavery, and his or her property confiscated (with one-third given to the man who brings the suit). Since women did not give themselves in marriage, anyone giving a foreign woman to an Athenian in marriage was also subject to sanctions. This was then the situation in 5th- and 4th-century Athens.
286 Manville, Origins of Citizenship, 184. 287 Davies, “Athenian Citizenship.” 288 Although quoted in a mid-4th-century document, it has not been possible to date the laws themselves (Patterson, Pericles’ Citizenship Law, 95). 134 IN THE WAKE OF TIKVA FRYMER-KENSKY
MOTIVATION FOR THE CITIZENSHIP L AWS IN ATHENS AND JERUSALEM
Athens Various reasons have been proposed for Pericles’ Citizenship Law, one being Aristotle’s explanation that there were too many people. It is true that the population of Athens grew unusually between 480 and 450, admittedly most likely due to the increased presence of foreigners in the city, but the population did not decrease as a result of the law.289 It is unlikely, moreover, that (Pseudo-)Aristotle would have known the demographics of 5th-century Athens.290 Aristotle writes in Politics (1278a26–34),291 however, that cities define citizenship generously when short of men and strictly when numbers are buoyant. The explanation proffered for Pericles’ Law may only be an application of that rule. In any case, the law did not prevent foreigners from living and working in Athens, and was not intended to. It was only intended to prevent them from marrying Athenians. Patterson assumes that a large number of foreigners were passing themselves off as citizens, causing serious problems in regard to jury duty or other public offices.292 It is difficult to see how the citizenship law would prevent this, however, since it does not attempt to exclude foreigners from Athens. Another explanation is a supposed concern for racial purity.293 This proposal echoes Aristotle’s wording (i.e., that those excluded
289 Patterson, Pericles’ Citizenship Law, 102. 290 Osborne, “Law and the Representation of Women,” 5. 291 Book III iii 5. 292 Patterson, Pericles’ Citizenship Law, 103. 293 Charles Hignett, A History of the Athenian Constitution to the End of the Fifth Century B.C. (Oxford: Clarendon Press, 1952), 346; Alick R. W. Harrison, The Law of Athens, Vol. I: The Family and Property (Oxford: Clarendon Press, 1968), 25 n. 2; Malcolm F. McGregor, “Athenian Policy at Home and Abroad,” in Lectures in Memory of Louise Taft Semple, Second Series 1966–1970, ed. Cedric G. Boulter, et al., University of Cincinnati Classical Studies, 2 (Norman: University of Oklahoma Press for the University of Cincinnati, 1973), 53–66; Cecil M. Bowra, Periclean Athens (New York: Dial Press, 1971), 93 (“since they could not be guaranteed to put Athenian interests first, they should not enjoy the true Athenian’s privilege of governing the country … [or] Athenians were congenitally superior to other Greeks”); A. R. Burn, Pericles and Athens (New York: Macmillan, 1949), 92 CONCEPT OF “IMPURE BIRTH” 135 from the franchise were of “impure birth,” oi(/ tῷ ge/nei mh\ kaqaroi;\ Ath. Pol. 13.5). Classicists agree that this explanation is anachronistic, however, as the concept of “race” did not yet exist. This charge has also been leveled at the Judeans, as noted above, and is equally anachronistic in that context. The possibility of an “Athens for the Athenians” mindset has also been proposed, but again, the law was not intended to keep foreigners out of the city, but only to keep their daughters from marrying your sons. One problem with foreign marriages was that of inheritance. Technically speaking women did not inherit, but wealthy women received a pre-mortem inheritance through their dowries, and these could include lands and estates, or sums of money easily turned into land. Women without brothers also received a post-mortem inheritance. In this way, a woman served as a conduit, conducting her father’s estate to her sons. Sons of brotherless women were often adopted into the household of their maternal grandfather, and if the women were foreign, non-Athenians could wind up owning land in Athens. Eskenazi interprets the shared concern with “mixed” marriages as a function of both Athens and Judah’s drive toward democracy.294 The greater push toward citizen participation that she sees as evident in Ezra 10 requires a stricter definition of who was a citizen. This does not explain why offspring of mixed marriages would present a problem, however. Moreover, the presence of an assembly described in Ezra 10 does not indicate a push toward democracy in Yehud.295 Mesopotamia had assemblies under the Babylonians and Assyrians, and now under the Persians, and these states were always tyrannies. Nor was any satrapy or province anywhere in the Persian Empire a democracy. Assemblies in these areas were routinely used to observe and ratify decisions of the governing officials, and at the same time to inform the populace of the decision. They created transparency in
(“the whole ancient character of Athens was in danger of being altered by the flood of immigrants”). 294 Eskenazi, “The Missions of Ezra and Nehemiah,” 524–26. 295 See my discussion of assemblies in Lisbeth S. Fried, The Priest and the Great King: Temple-Palace Relations in the Persian Empire, Biblical and Judaic Studies from the University of California, San Diego, 10 (Winona Lake: Eisenbrauns, 2004), 190–93, and references cited there. 136 IN THE WAKE OF TIKVA FRYMER-KENSKY government. Members of the assembly were passive observers, however, and did not vote. More relevant in comparing the two cities is the fact that each was part of an empire. Pericles’ Citizenship law, and the democratic reforms which he fostered, should more likely be seen against the background of Athens’ war with Persia (493–480) and against Pericles’ all-consuming preparations for the war with Sparta which followed (i.e., the first Peloponnesian War, 431–404). Pericles’ overriding intention was to maintain the Athenian Empire. The Delian League, formed in response to Persian aggression, became the Athenian League after the war when its treasury was moved to Athens and came under the disposal of men like Pericles. Those from among the 150 member-states of the Delian, now Athenian League, who no longer felt the threat from Persia, and attempted to withdraw from the League, met with a harsh and punitive Athenian response. Athens’ primary rival for Hellenic dominance was oligarchic Sparta, and the aristocratic factions in Athens tended to favor alliances with her while democratic elements tended to oppose it. In 464, for example, when Spartan helots revolted against that city, the aristocratic Athenian Kimon led a battalion of 10,000 men strong to Sparta to put down the revolt. It was while Kimon was gone, that Pericles instituted the bulk of the democratic reforms, and when he returned to Athens he was ostracized by Pericles’ new democratic regime. Part of the Athenian hostility against Kimon may have stemmed from the fact that he named his son Lakedaimonios, i.e., he named his son “Spartan,” indicating the close ties of friendship, if not actually marriage, that he had with Sparta’s ruling families.296 The law’s purpose, therefore, may have been to prevent the Athenian aristocracy from forming dynastic alliances with wealthy families from other states—not only those with which Athens had hostilities, like Sparta, but also with those dependent states paying tribute to the coffers of the Athenian League.297 Any of these alliances
296 Gabriel Herman, “Patterns of Name Diffusion Within the Greek World and Beyond,” The Classical Quarterly N.S. 40 (1990): 363. 297 Sarah C. Humphreys, “The Nothoi of Kynosarges,” Journal of Hellenic Studies 94 (1974): 88–95, esp. 93–94; Loren J. Samons II, “Introduction: Athenian History and Society in the Age of Pericles,” in idem, The Cambridge Companion to the Age of Pericles (Cambridge: Cambridge University Press, 2007), 14. CONCEPT OF “IMPURE BIRTH” 137 could easily have upset the balance of power. Since only the aristocratic elites of the Greek city-states had the means enabling them to travel, only they would have been able to meet people from other city-states. The friendships that resulted from these meetings led to an exchange of gifts often including large donations of grain, timber, land, and as we saw with Kimon, even troops. Such alliances provided a power base outside of the polis, a power base which could threaten Athens’ autonomy and supremacy. The law succeeded in sharply reducing foreign marriages. While common before 480, they are unknown after Pericles’ law of 450.298 Moreover, charges of “foreign birth” and “treachery” were the most common allegations scrawled on potsherds used to ostracize politicians from the city.299 The main effect of the law was on the large number of men serving as imperial officials in cities throughout the Athenian empire.300 In prohibiting their fraternization with locals, the law prevented families in other cities from accessing property in Athens through the marriage of their daughters to Athenians. If Athenian men married abroad, their children would not inherit Athenian land. Claims of kinship could never lead non-Athenians to power or influence at Athens.
Jerusalem Does this understanding of Pericles’ citizenship law illuminate events in 5th- and 4th-century Judah? If the purpose of the Athenian legislation was to prevent aristocratic families from forming a power base independent of the Athenian polity, then this may shed light on the edicts of Ezra and Nehemiah. Like Pericles, these imperial Persian officials may also have sought to limit the influence of aristocratic families so that all power would stem from Persia (and from themselves as her representatives?). Dynastic marriages among the aristocracy of the various provinces in the satrapy Beyond-the River enhanced the wealth and influence of patrilineal groups and cemented alliances among them, alliances which may have been seen as a threat to the status quo in Persia. Eskenazi states that Judah was a provincial backwater and not on Persia’s radar screen.301 Nevertheless, provincial
298 Osborne, “Law and the Representation of Women in Athens,” 6–7. 299 Ibid. 300 Ibid., 9. 301 Eskenazi, “The Missions of Ezra and Nehemiah,” 526. 138 IN THE WAKE OF TIKVA FRYMER-KENSKY governors had garrisons and militias at their disposal, ostensibly to collect taxes and tribute to send on to Susa. These resources led to a strong centrifugal force among local governors increasing their desire for independence and autonomy.302 Marriages pooled these resources, and threatened resistance against Persia. Nehemiah and Josephus report marriages between the families of Sanballat, the governor of Samaria, and Eliashib, the Judean high priest (Neh 13:28; Ant. XI.2); between the families of Tobiah, the governor of Ammon, and that of the high priest of Judah (Neh 13:4; Ant. XII iv. 160); and between the family of Tobiah and the nobility of Judah (Neh 6:18). These marriage alliances threatened to create a power base and source of wealth independent of Persia. In sum, whatever theory or explanation of Pericles’ citizenship law is finally adopted, viewing the events in Judah against the backdrop of events in contemporary Athens—and viewing events in Athens against the backdrop of events in contemporary Judah— should allow historians of both cultures to see beyond the narrow confines of religion, race, and theories of witch-hunts and “impure blood,” and outwards towards the larger concerns of empire— Athenian and Persian.
BIBLIOGRAPHY Ackroyd, Peter R. I & II Chronicles, Ezra, Nehemiah. Torch Bible Commentaries. London: SCM, 1973. Arnaoutoglou, Ilias A. Ancient Greek Laws: A Sourcebook. London: Routledge, 1998. Blenkinsopp, Joseph. Ezra–Nehemiah: A Commentary. The Old Testament Library. Philadelphia: Westminster Press, 1988. Bowra, Cecil M. Periclean Athens. New York: Dial Press, 1971. Briant, Pierre. Histoire de l’Empire Perse de Cyrus à Alexandre. Paris: Fayard, 1996. Burn, A. R. Pericles and Athens. New York: Macmillan, 1949. Davies, John K. “Athenian Citizenship: The Descent Group and the Alternatives.” The Classical Journal 73 (1977–78): 105–21.
302 For further discussion of the relations between local elites and the Persian empire see Pierre Briant, Histoire de l’Empire Perse de Cyrus à Alexandre (Paris: Fayard, 1996); Lisbeth S. Fried, “The Political Struggle of Fifth Century Judah,” Transeuphratène 24 (2002): 9–21 and eadem, The Priest and the Great King. CONCEPT OF “IMPURE BIRTH” 139
Dor, Yonina. Did They Really Divorce the Foreign Women? The Question of the Separation in the Days of the Second Temple. Jerusalem: Magnes Press, 2006 [Hebrew]. Eskenazi, Tamara Cohn. “The Missions of Ezra and Nehemiah.” In Judah and the Judeans in the Persian Period. Edited by Oded Lipschits and Manfred Oeming, 509–29. Winona Lake, IN: Eisenbrauns, 2006. Fensham, F. Charles. The Books of Ezra and Nehemiah. New International Commentary on the Old Testament. Grand Rapids: Eerdmans, 1982. Fishbane, Michael. Biblical Interpretation in Ancient Israel. Oxford: Clarendon Press, 1985. Forsdyke, Sara. Exile, Ostracism, and Democracy: The Politics of Expulsion in Ancient Greece. Princeton, N.J.: Princeton University Press, 2005. Fried, Lisbeth S. “From Xeno- Philia to – Phobia—Jewish Encounters with the Other.” In A Time of Change: Judah and Its Neighbours in the Persian and Early Hellenistic Periods. Edited by Yigal Levin, 179–204. London: T & T Clark, 2007. ______. “The Political Struggle of Fifth Century Judah.” Transeuphratène 24 (2002): 9–21. ______. The Priest and the Great King: Temple-Palace Relations in the Persian Empire. Biblical and Judaic Studies from the University of California, San Diego, 10. Winona Lake, IN: Eisenbrauns, 2004. Hammond, Nicholas G. L. A History of Greece to 322 B.C. 3rd edition. Oxford: Clarendon Press, 1986. Harrison, Alick R. W. The Law of Athens, Vol. I: The Family and Property. Oxford: Clarendon Press, 1968. Hayes, Christine Elizabeth. Gentile Impurities and Jewish Identities: Intermarriage and Conversion from the Bible to the Talmud. Oxford: Oxford University Press, 2002. Herman, Gabriel. “Patterns of Name Diffusion Within the Greek World and Beyond.” The Classical Quarterly N.S. 40 (1990): 349– 63. Hignett, Charles. A History of the Athenian Constitution. Oxford: Clarendon Press, 1952. Holmgren, Fredrick Carlson. Israel Alive Again: A Commentary on the Books of Ezra and Nehemiah. Grand Rapids: Eerdmans, 1987. Humphreys, Sarah C. “The Nothoi of Kynosarges.” Journal of Hellenic Studies 94 (1974): 88–95. 140 IN THE WAKE OF TIKVA FRYMER-KENSKY
Jacoby, Felix. Die Fragmente der Griechischen Historiker. Part 3 B. Leiden: E. J. Brill, 1923. Janzen, David. Witch-Hunts, Purity and Social Boundares: The Expulsion of the Foreign Women in Ezra 9–10 Journal for the Study of the Old Testament. Supplement Series, 350; Sheffield: Sheffield Academic Press, 2002. Jones, Nicholas F. The Associations of Classical Athens: The Response to Democracy. Oxford: Oxford University Press, 1999. Klawans, Jonathan. Impurity and Sin in Ancient Judaism. Oxford: Oxford University Press, 2000. ______. “Notions of Gentile Impurity in Ancient Judaism.” Association of Jewish Studies Review 20 (1995): 285–312. Lape, Susan. “Solon and the Institution of the ‘Democratic’ Family Form.” The Classical Journal 98 (2002–2003): 117–39. Manville, Philip Brook. The Origins of Citizenship in Ancient Athens. Princeton: Princeton University Press, 1997. McGregor, Malcolm F. “Athenian Policy at Home and Abroad.” University of Cincinnati Classical Studies 2 (1968). Mowinckel, Sigmund. Die Ezrageschichte und das Gesetz Moses. Studien zu dem Buche Ezra–Nehemiah, III. Skrifter ut gitt av Det Norske Videnskaps-akademii Oslo II. Hist.-filos. Klasse ny serie, 7. Oslo: Universitetsforlaget, 1965. Myers, Jacob M. Ezra–Nehemiah. Anchor Bible, 14. Garden City, NY: Doubleday, 1965. Ogden, Daniel. Greek Bastardy in the Classical and Hellenistic Periods. Oxford: Clarendon Press, 1996. Olyan, Saul M. “Purity Ideology in Ezra–Nehemiah as a Tool to Reconstitute the Community.” Journal for the Study of Judaism in the Persian, Hellenistic and Roman Period 35 (2004): 1–16. ______. Rites and Rank: Hierarchy in Biblical Representations of Cult. Princeton: Princeton University Press, 2000). Osborne, Robin. “Law, the Democratic Citizen and the Representation of Women in Classical Athens.” Past and Present 155 (1997): 3–33. Patterson, Cynthia B. “Athenian Citizenship Law.” In The Cambridge Companion to Ancient Greek Law. Edited by Michael Gagarin and David Cohen, 267–89. Cambridge: Cambridge University Press, 2005. CONCEPT OF “IMPURE BIRTH” 141
______. “Marriage and the Married Woman in Athenian Law.” In Women’s History and Ancient History. Edited by Sarah B. Pomeroy, 48–72. Chapel Hill: University of North Carolina Press, 1991. ______. “Those Athenian Bastards.” Classical Antiquity 9 (1990): 39–73. ______. Pericles’ Citizenship Law of 451–50 B.C. New York: Arno Press, 1981. ______. The Family in Greek History. Cambridge, MA: Harvard University Press, 1998. Samons, Loren J., II. “Introduction: Athenian History and Society in the Age of Pericles.” In idem, The Cambridge Companion to the Age of Pericles, 1–23. Cambridge: Cambridge University Press, 2007). Smith-Christopher, Daniel L. A Biblical Theology of Exile. Overtures to Biblical Theology. Minneapolis: Fortress Press, 2002. Stanton, Greg R. Athenian Politics c. 800–500 BC: A Sourcebook. London: Routledge, 1990. Williamson, Hugh G. M. Ezra, Nehemiah. Word Biblical Commentary, 16. Waco: Word Books, 1985.