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Conceptions of Law in Classical Athens CONCEPTIONS OF LAW IN CLASSICAL ATHENS Anna Stevenson King’s College Faculty of Classics University of Cambridge This dissertation is submitted for the degree of Doctor of Philosophy August 2018 1 2 DECLARATION This dissertation is the result of my own work and includes nothing which is the outcome of work done in collaboration except as declared in the Preface and specified in the text. It is not suBstantially the same as any that I have suBmitted, or, is Being concurrently suBmitted for a degree or diploma or other qualification at the University of CamBridge or any other University or similar institution except as declared in the Preface and specified in the text. I further state that no suBstantial part of my dissertation has already Been suBmitted, or, is Being concurrently suBmitted for any such degree, diploma or other qualification at the University of CamBridge or any other University or similar institution except as declared in the Preface and specified in the text It does not exceed the prescriBed word limit of 80,000 words. Anna Stevenson 2019 3 4 ABSTRACT CONCEPTIONS OF LAW IN CLASSICAL ATHENS Anna Stevenson This thesis investigates the underlying assumptions Athenians had about their laws: it seeks to ask what Athenians assumed their laws were for, and where they thought those laws got their authority. It neither answers nor seeks to answer the difficult question of how Athenian juries made decisions, But By focussing on Athenian conceptions of their laws it offers a tool for those who would study Athenian litigation and legislating. These questions are first explored through a study of the responses of the restored democracy to the remnants of the Thirty’s attempts at legislating. The various and inconsistent responses made help to frame jurisprudential questions within the actions of democratic Athens. The modern jurisprudential theory of interpretativism is used to access Athenian ideas on the principles assumed to underlie Athens’ laws, and the thesis argues that Athenians were equally likely to present arguments which rely on polis expediency as the principle underlying Athens’ laws as they were to present arguments relying on justice as that principle. The same theoretical framework is used to explore the accepted role of morality as the principle underlying Athens’ laws and the thesis argues that though morality could Be used for this purpose, such uses were rare. The thesis then explores Athens’ weak enforcement of laws and weak ideal of oBedience to law as law and concludes that the enforcement of morality did not form a large part of Athenians’ 5 assumptions about what their law was supposed to achieve or from where it drew its authority. How far Athens recognised the authority of law via the authority of the person or Body which made that law is then explored. Fourth-century Athenians are shown to have held amBivalent views about democratic law making and law makers, and the thesis concludes that democratic Athens’ respect for its ancient lawgivers came to affect its ability to fully realise its own institutions’ legislative authority. Finally, the thesis looks at Athenian idealised views of Spartan law to clarify the questions raised in the study of Athenians’ conceptions of their own laws. 6 To Kim, who asked questions. 7 8 CONTENTS PREFACE .............................................................................................................................. 11 INTRODUCTION ................................................................................................................... 13 CHAPTER 1: THE THIRTY, THEIR LAWS AND THEIR FOURTH-CENTURY RECEPTION ................ 25 1.1 LEGISLATIVE ACTS OF THE THIRTY ...................................................................................... 28 1.2 RESPONSES OF THE RESTORED DEMOCRACY TO THE THIRTY ................................................... 31 CHAPTER 2: INTERPRETATIVE ROLE OF JURIES – POLIS GOOD .............................................. 41 2.1 THEORETICAL FRAMEWORK ..................................................................................................... 43 2.2 DWORKIN’S MODEL’S RELEVANCE FOR ATHENIAN LAW ................................................................ 44 2.2.1 Role of Athenian juries .............................................................................................. 44 2.2.2 Constructive interpretation in Athens ....................................................................... 46 2.2.3 Interpretative community ......................................................................................... 47 2.2.4 Principles ................................................................................................................... 49 2.3 PRINCIPLES IN THE INTERPRETATION OF ATHENIAN LAW ............................................................... 53 2.3.1 Private suits ............................................................................................................... 56 2.3.2 PuBlic suits ................................................................................................................. 64 2.4 CONCLUSION ........................................................................................................................ 88 CHAPTER 3: MORALITY – ROLE IN INTERPRETATION OF LAW ............................................... 91 3.1 PRIVATE SUITS ...................................................................................................................... 96 3.1.1 Lysias’ Against Simon ................................................................................................ 96 3.1.2 Lysias’ Against Theomnestus ..................................................................................... 97 3.1.3 Demosthenes’ Against Conon ................................................................................... 99 3.1.4 Hyperides’ Against Athenogenes ............................................................................ 102 3.2 PUBLIC SUITS ...................................................................................................................... 104 3.2.1 Andocides’ On the Mysteries ................................................................................... 104 3.2.2 Aeschines’ Against Timarchus ................................................................................. 106 3.2.3 Lycurgus’ Against Leocrates .................................................................................... 109 3.2.4 Hyperides’ In Defence of Euxenippus ...................................................................... 113 3.3 CONCLUSION ...................................................................................................................... 115 CHAPTER 4: OBEYING AND ENFORCING THE LAW AT ATHENS ............................................ 117 4.1 INTRODUCTION ................................................................................................................... 117 4.2. SOCIAL OBLIGATION TO OBEY ............................................................................................... 119 4.2.1. EpheBic oath ........................................................................................................... 123 9 4.3 ENFORCING LAW ................................................................................................................ 128 4.3.1 Bringing a case to court .......................................................................................... 128 4.3.2 Law in the courts .................................................................................................... 139 4.3.3 Ideology of law which rejects compulsion .............................................................. 149 4.4 CONCLUSION ..................................................................................................................... 154 CHAPTER 5: LAWGIVERS AND LAW-GIVING IN CLASSICAL ATHENS .................................... 157 5.1 SOLON .............................................................................................................................. 157 5.1.1 Solon’s fifth- and fourth-century prominence ......................................................... 158 5.1.2 Reception of original authority of Solon’s laws ...................................................... 159 5.1.3 How Solonian is Solonian? ...................................................................................... 162 5.1.4 Coherent programme of laws ................................................................................. 165 5.1.5 StaBility of Solon’s laws .......................................................................................... 167 5.1.6 Why did the fourth century need Solon? ................................................................ 168 5.2 LAW-MAKING IN THE FIFTH CENTURY? .................................................................................... 170 5.3 REPUBLICATION AT THE END OF THE FIFTH CENTURY .................................................................. 176 5.4 LAW-MAKING IN THE FOURTH CENTURY .................................................................................. 184 5.4.1 Fourth-century nomothesia .................................................................................... 184 5.4.2 Graphai paranomon and nomon mē epitēdeion theinai ........................................ 189 5.4.3 OBsolete laws ........................................................................................................
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