The book under review is one of a long and respected series of publications, the Symposion volumes, published in the Akten der Gesellschaft für Griechische und Hellenistiche Rechtsgeschichte. The Symposion conference from which these proceedings derive was held in Paris in September 2011, organized by Bernard Legras. It was only the second Symposion ever to be held in France (the first having been organized by Joseph Mélèze-Modrzejewski in 1977). The format is the usual one: a series of mostly unconnected essays of variable size (and quality) followed by responses which range from two-pages notes to full (and impressive) essays in their own right, written in English, German, French and Italian. The book is, uncompromisingly, one of conference proceedings, and therefore the editing (by Legras and Thür) is minimal, enriched only by an index locorum. Because Symposion volumes are often difficult to track down in university libraries and rather expensive to buy, and given the minimal editing, it would perhaps be worth considering publishing future proceedings in open access, to ensure better dissemination. Given the nature of the volume, this review will consist of a series of ‘mini reviews’ of the individual contributions.
Ruzé (5-16) goes back to the Great Rhetra and while she argues convincingly that this text neither reflects class conflict nor does it constitute an example of anti-tyranny legislation, her reading of it as the affirmation of popular sovereignty in Sparta is problematic. The ‘amendment’ in particular, as argued by Gagarin in his response (17-20), strongly suggests the possibility of vetoing the Assembly’s resolutions. Ruzé’s dismissal of Van Wees’ arguments against the connection with Tyrtaeus’ Eunomia is also hasty. Nafissi’s suggestion that this should be read as a piece of intentional history seems to me the way forward.
Maffi (20-31) explores the different applications in the Greek poleis of the principle of majority decision. The discussion is useful in isolating characteristic features of majority decision in ancient Greece, but is also (despite claims to recognize the differences) too conditioned by modern, liberal-democratic conception of how political deliberation occurs. What is missing is a discussion of consensus practices as the other end of the polarity of which majority rule is one end (Maffi fails to see the distinctive role of homonoia in this respect, and reads it in terms of enforcement of majority rule). Maffi creates an easy alternative between majority decision and unanimity, and traces a historical development from Homeric/archaic unanimity to majority decision. In fact, many of the passages analyzed show traces of an ideological and institutional interplay between the two. E.g. at Hom. Od. 24.463 ss. the fact that more than half of the participants of an Assembly leave does not express a majority vote, but rather their refusal to take part in any action such as that proposed by Epithes. This is why, although the rest could still take action, they desist. Consensus (rather than unanimity) is a desirable outcome because it is the only outcome than can keep the community together, in absence of formal mechanisms to enforce compliance (and even, in the long run, when such mechanisms exist). Likewise at a later point, although democratic practice seems to accept the majority principle, this is always balanced by deliberative procedures that tend towards consensus – the vote of the majority is not simply binding for the whole community; an effort must be made to make it representative of the whole community (cf. Thuc. 6.39.1, where Athenagoras claims that demos equates with xympan; and the case of Chaniotis n. 5, where three contrary votes are sufficient for a proposal to fail). Todd’s response (33-48), which usefully collects the epigraphical evidence for voting figure from around the Greek world, confirms this picture: most recorded figures show no or very few votes against the proposal. But this has to do with building and affirming consensus, rather than with ‘acclamation’.
Banfi (49-76) discusses the effectiveness of fourth-century Athenian procedures of ‘constitutional control’. He denies that they constitute ‘judicial review’, because of the identity of the popular judges with those that take parts in the Assembly. After providing a rather old-fashioned (and questionable) account of the development and workings of the legislative procedures between the fifth and the fourth century, he proceeds to describe their shortcomings on the basis of the evidence of philosophers and orators. The sources he uses however are taken at face value, and more attention to the discursive context of each criticism would have resulted in a more nuanced picture (this is something the response by Couvenhes, 77-92, perceptively points out). That the Demetrian nomophylakes were an oligarchic and philosophically inspired response to perceived problems with the democratic procedures is probably correct (pace Couvenhes, 85-91), but it is dubious that Aristotle’ misgivings about fourth-century procedures match the instrumental criticism we find in the orators.
Lanni (99-111) paints a nuanced and perceptive picture of the role of social sanctions in enforcing law compliance and order in the Athenian polis. Cantarella (111-12) correctly observes in her response that Lanni seems to underestimate the formal ways of law enforcement by the Athenian polis (notice however that Hansen showed that at least 6,000 Athenians attended the Assembly, not 30,000, the entire citizen population, as stated by Cantarella). Yet this problem does not affect significantly the rest of the argument, in which Lanni discusses how the stress in scholarship on the role of informal sanctions, by a community depicted as a ‘shame society’, seems only partially justified in the light of the sources. On the ideological level, the Athenians seemed to be committed to individual freedom and, with nuances, did not normally justify recourse to e.g. shunning for sanctioning deviant behaviour. In practice, social sanctions are prominent only in the case of serious offenders and never replace legal sanctions, but rather reinforce them. Lanni suggests that the solution to the riddle of the remarkable ‘orderliness’ of Athenian society may lay in the complex interaction between the means of formal and informal sanction. One may add that the solution of this riddle would benefit from a more sophisticated understanding of the workings of honour, not just as external recognition (or shaming), but as dispositional, working within the subject to encourage compliance with a set of social norms even in the absence of external social (and legal) sanctions.
Wallace (115-25) gives a comprehensive list of cases in which the Athenians may have failed to enforce their laws, and speculates about reasons and implications, arguing that it was acceptable for them not the enforce the laws when the polis would benefit from it. Concern for the welfare of the community could occasionally override the law. His examples however are often unconvincing, and generally inconclusive. For instance, occasional references in the orators to the fact that the judges may choose not to enforce the law and take into account extra legal factors is no evidence that they regularly did (cf. Harris, Rule of Law in Action, Oxford 2013: 101-37, 274-304; epieikeia is not an extra-legal criterion). A further example: the only evidence that divorcing a wife who had committed moicheia was compulsory is a document ([Dem.] 59.87) of very dubious authenticity (cf. Canevaro, The Documents in the Attic Orators, Oxford 2013: 190-6). So the case of husbands that fail to divorce unfaithful wives is not one of laws not enforced. Conversely, in the case of the conviction of the generals after the battle of Arginousai, it is likely that the law that had been broken was that against convicting somebody without trial (the generals had not been given a chance to defend themselves), and this is in fact what Euryptolemus tries to argue (Xen. Hell. 1.7.25). So this was indeed a case of not enforcing the law, but a rather special one, the illegality of which the Athenians soon came to appreciate. Ismard (127-34) provides some useful correctives to Wallace’s views, stressing that interpretation and discussion of the law’s open texture was well within the remit of legal (not extra-legal) argument, and did not constitute a case of non-enforcement. He also stresses that there may have been, in particular in the fifth century, several ‘layers of legality’ on particular issues.
In a richly textured contribution Leão (135-52) explores the paradoxes, and the legal implications, of the Athenian myth of autochthony, in the aftermath of Pericles’ citizenship law (or better, as argued by Scafuro, 153-64, of the collapse of Pericles’ law during the Peloponnesian War). He points out that the ideological implications of the myth are not limited to an ideal of racial purity, but extend to the very right to own Athenian land, originally exclusive to those that can trace their ancestry back to the soil of Attica. Because of this, a particular symbolism was attached e.g. to grants of enktesis that allowed foreigners to own Athenian land, and at the same time subtle distinctions of symbolic status applied to immigrants, whether they had enktesis or were even naturalised. In the second part of the essay, Leão applies this nuanced understanding of the issue of authochthony to Euripides’ Ion, and is able to trace in the text an underlying critical commentary on the contradictory Athenian attitudes to immigrants vis-à-vis the issue of autochthony.
Faraguna (165-86) offers a very rich study of the legal status of tombs and funerary enclosures in ancient Athens (the study is extended to Hellenistic and Imperial Athens and Asia Minor in the response by Harter-Uipobuu, 187-98). He collects an impressive array of evidence to shed light on a problem seldom studied comprehensively. He demonstrates that the land of funerary monuments for Athenians could be privately owned, and periboloi were either carved out of bigger land properties, or bought for the very purpose of burial. To explore the possibility of the use of public ground for burial, Faraguna then proceeds to analyse the evidence for metics and xenoi, an astute choice, because these categories could not normally own Attic land (he also takes into account the issue of enktesis in relation to private burial land, and what would happen if the enktesis was not hereditary). He concludes that public funerary grounds were of key importance for foreigners (and Athenians), and were mostly administered by deme officials, who acted in this respect as agents of the polis. In the conclusion, Faraguna turns to the Kerameikos, arguing persuasively that this cemetery was a mixture of private land, land administered by the polis and land managed by two separate demes (Kerameis and Melite). The very complexity of the administrative arrangements of the Kerameikos reflects the level of sophistication of the administrative structure of the polis, which has significant consequences for the issue of whether the polis was or not a ‘stateless society’.
De Polignac (199-210), in his richly textured study, goes back to the much-debated question of the ‘public’, ‘private’ and ‘civic’ nature of Athenian cults, and of the transition between them. Building on the model proposed by Ismard, he suggests that we should not envisage the evolution of a cult from private to ‘civic’ too teleologically as a linear development, but rather recognise that within most cults one can identify various layers of practices and solidarities, to be connected with various institutional and even non-institutional actors (private associations, territorial divisions of the polis, the city as a whole). Likewise, we should avoid positing too stark hierarchies of cults, on the sole basis of the level of polis-wide administration involved. He tackles the issue by concentrating on one case study: the introduction of the cult of Asclepius in Athens. He points out the high level of involvement of the Kerykes and of the Eleusinian environment in the introduction of Asclepios. He also shows that there is no clear evidence that they had to seek formal authorisation from the polis to introduce the cult, and that once the god was the object of private cult in Attica, sponsored by the Kerykes (perhaps by Callias son of Hipponicus), he was no longer a new god. But there was a difference between introducing a cult and founding a sanctuary as a specific plot of land. It is likely that Telemachus was the first to create a sanctuary dedicated exclusively to Asclepius, which roused the hostility of the Kerykes. The earliest evidence for the involvement of the demos in this cult is an inscription of the first half of the fourth century dealing with the Asclepieion at the Piraeus, followed by another of 350 about the urban Asclepieion. De Polignac observes that if we conclude from this evidence that initially the sanctuary at Piraeus was the most important one, and the urban one was secondary, as argued by Parker, we ignore ignore the reality that a cult could be public without being necessarily ‘civic’ (i.e. administered by the polis). In fact, the evidence suggests a picture of non-linear interventions by the city, with different purposes, at different points in time, which interacted with multiple layers of institutionalization by private and less private actors, all however working towards the establishment and management of a very public cult (the same interplay of various dimensions is to be found, as pointed out by Mossé, 211-12, in IG II2 337).
Cohen (213-23)’s chapter is a response to Maffi’s criticism (in Symposion 2007) of his positions on the legal liability of slaves for debts incurred in business activities. Maffi argued against Cohen that Athenian slaves were not personally liable, their masters were, and when a slave was sold his liabilities were transferred automatically to the new master. Both Maffi’s essay and Cohen’s centre particularly on Hyperides’ Against Athenogenes, concerned with the sale of a retail perfume business managed by a slave, and on whether the previous master or the new one is liable for the debts incurred by the slave. While Cohen argued that the slave had a certain level of personal legal liability, Maffi countered that he did not – the liability was ultimately the master’s, and was transferred to a new master with the sale of the slave. Cohen relies on the wording of the speech to reargue his case that slaves were personally liable. He reads a law of Solon (§22) that makes owners liable for the slaves’ zemias… kai a[dikem]ata to refer only to delicts but not to contracts. The master could potentially be held liable for the contractual obligations of the slave, but this was not, according to Cohen, automatic, because otherwise one would not understand Athenogenes’ insistence on Epicrates’ explicit assumption of the debts of the slave. Both Cohen’s and Maffi’s arguments are at places unconvincing. Even if adikemata were to mean exclusively and precisely delicts, to the exclusion of contractual obligations (which is far from clear), the argument that the rationale of the law should apply also to contractual obligations (with which the archaic lawgiver was for obvious reasons not yet concerned) would be a very easy one to make in court, and a very effective one given the clear intent of the lawgiver to make the owner of the slave liable. It is unlikely therefore (pace Cohen) that the small print of the sale contract was meant to affirm that the owner and not the slave was liable, which would have been quite obvious (that the liability of the slave per se is not an option is stressed by Dimopoulou, 225-36). It makes better sense as an attempt to make the new owner liable, whereas normally the original owner would be liable (cf. Dimopoulou): the issue in the law of Solon is not really whether adikemata can refer to contractual obligations, but rather that the law (pace Maffi) quite clearly states that the liability is with whoever is the owner at the time of the adikemata (παρ᾽ ᾧ ἂν ἐργάσωνται). Cohen also argues that the fact that slaves make contracts and leases with their owners is evidence of their legal personality. It is worth however seeing the problem from two vantage points: first, the formal position of the law (the master is ultimately liable) and second, the problems of pragmatically running a business (the master cannot hover over the slave and sign-off on every last transaction). Contracts and leases between masters and slaves are useful instruments to encourage the slaves’ hard work, setting clear boundaries and incentivizing the slaves’ appetite for business, but they must not necessarily imply a legal personality for the slaves. Parents often make agreements with children that set contextual rights and duties, but this does not mean that they would be held to them in a court of law!
Pébarthe (236-59) tackles once again the debated question of the place of the market in the ancient economy. His is a programmatic piece that discusses and criticises past and present approaches and tries to provide a new framework for this study. While criticising primitivist approaches that deny the role of the market, he also warns against simply extrapolating modern, hyper-theoretical views of the market and applying them to Greece. We would invariably end up deeming the ancient economic reality deficient. The reason is that modern views of the market are themselves a historical construct. The way out of this impasse is to reject the stark contrast between homo sociologicus and homo oeconomicus, to aspire to a more comprehensive model in which utility is contemplated but the economic actor also attempts to give to his choices a social sense (Pébarthe explores the possibilities of Weber’s ‘social economics’), and to recognize the particular historical institutions that made ancient markets work, and study therefore ancient market exchange historically and institutionally. Pébarthe then proceeds to explore Athenian conceptions of money and law in connection with the market, with the purpose of reaching a comprehensive ‘economic sociology’ of Athens: what the market meant to the Athenians, how they thought about it, how they intervened collectively to shape it and secure its workings, and therefore how social attitudes about markets contributed to the actual workings of the ancient markets (Pfeifer, 262-6, in this respect, alerts us, with reference to the Near Eastern evidence, to the dangers of assuming that legislative intent must have an effect in social practices; this is less of a problem for Athens, were the people making the decisions are the same that are affected by it). Pébarthe stresses the Athenian understanding, and the importance, of the concept of legal tender: even bronze coins, if legally recognized by the city which enforces their acceptance in exchanges, could constitute a recognized form of wealth. The very fact that the city could and did intervene in such matters and affirm with penalties what coins people were obliged to accept (cf. the discussion of Nicophon’s law, 253-5) is evidence of the commercial nature of the Athenian economy, but at the same time that it is vain to attempt to oppose separate social, political and economic spheres. Laws, political decisions and social attitudes were all part of the workings of the market, and interventions on the internal market were interrelated with the workings of external markets.
Velissaropoulos (267-81) analyses an interesting Hellenistic horos from Paros (SEG 54.794), one of four that demarcated the boundaries of a particular plot of land, set there following a sale between an individual and an association. The text of the horos in part confirms and in part supplements what we know of Greek contracts of sale. The extant horos informs us that the second horos reported the one, which Velissaropoulos shows to have various meanings, from contract of sale to the title of ownership to property. In this context, the mention of the one stresses the finality of the sale (Dreher, 283-4, argues that it must mean specifically sale). Velissaropoulos then discusses the actors of the transactions, and then moves to discuss the meaning of the term periegeta, a hapax in our sources, followed in our inscription by the significant sum of 300 drachmas. Velissaropoulos argues that the term refers to the act of surveying the boundaries of the land to check the actual identity of the object of the transaction (analogous to the meaning of the term amphourion in P. Hal. 1; one could add that the word periegesis is used with the same meaning of autoptic survey of a particular piece of land in border disputes between poleis, cf. Magnetto, L’arbitrato di Rodi fra Samo e Priene, Pisa 2008: 169-70), so the periegeta were the costs of the formal inspection of the limits of the property sold. Dreher (283-91) offers a different interpretation and argues that this could also plausibly be a security horos, that one may be connected to a case of prasis epi lysei, and that the sum connected to the word periegeta may simply be the purchase price.
Thür’s (294-316) contribution discusses an important new inscription, a dossier of documents regarding a controversy (which took place over two years, or possibly more, from 182/1) between Messene and Megalopolis (both at the time members of the Achaean League) over the ownership of the land of Akreiatis and Bipeiatis. The first part of this inscription (101 lines, a Messenian decree summarizing the history of the controversy) was published in 2008 by Themelis, and again with a full historical discussion by Luraghi and Magnetto in 2012 (Chiron 42: 509-48). The second part (88 lines, which contain a challenge from Megalopolis to Messene, a fine imposed on the Messenians by the magistrates of the Achaian League, and an arbitration by a panel of Milesian judges in favor of the Messenians) is still unpublished. It is likely that many of the disagreements about the circumstances described in the decree will not be solved until this second part is published. But particularly notable is that Thür is able to anticipate on many points the contents of the unpublished proklesis, which gives us information e.g. about an earlier stage of the dispute not properly discussed in the decree, when the Megalopolitans issued an earlier proklesis, claiming ownership of Akreiatis, just before the Messenians were allowed to enter the league after their defeat in 183/2. The Messenians accepted to submit to the judgement of a panel of Mitilenian judges. But, as Thür argues (apparently on the basis of the text of the proklesis that we cannot read), until the decision was made the fruits of Akreiatis were to be taken half by the Megalopolitans and half by the Messenians, on the understanding that eventually the losing party should hand its half to the winning one (Luraghi-Magnetto have argued instead that before the dispute started the Megalopolitans exploited the Akreiatis under condition of giving the Messenians half of the produce, but stopped doing so upon lodging their claim over the land). It would appear that the Messenians, after the judgement in Aigion, proceeded against the Megalopolitans to be handed over the Megalopolitans’ half of the fruits, and the Megalopolitans reacted with the proklesis preserved in the epigraphic dossier, calling for a further judgement by claiming that the judgement in Aigion regarded the Kaliatai alone, but not them. Thür more generally contends that the dossier shows the existence of two completely different procedures in international law, one about ownership of land and the other about borders, but Youni (317-28) contests his conclusions.
Rubinstein (329-55) investigates, in a very rich study, the numerous epigraphic cases of collective sanctions (usually fines) against boards of magistrates in the Greek poleis. These sanctions were in breach of what seems to be a basic principle of Greek law: individual responsibility – officials were personally responsible for their own conduct in office. This problem could be obviated by granting all members of a board the right to an individual hearing, yet in some cases it is impossible to determine from the phrasing of the inscription whether such individual hearings were held, and in others it is quite clear that the sanctions were imposed summarily on the entire board. On the other hand, Rubinstein argues, they were justified by the practical benefits they brought to the polis: the danger of a collective fine encouraged cross-accountability within the board of magistrates, because honest officials would not run the risk of paying a fine because of someone else’s dishonesty. Moreover, collective fines to entire boards composed of several magistrates could amount to very significant sums, to be taken from several fortunes, which secured for the polis adequate compensation in cases of extensive corruption. This novel approach is applied to Thasian inscriptions by Fournier (355-64), who identifies three forms of control on magistrates: performed by their colleagues, by their successors and by the citizens more widely.
Yiftach-Firanko (365-82) examines the legal position of the surety on a loan in Ptolemaic Egypt. He explores the reasons for a change in the role of the surety that happened in the 130s BCE – while in earlier papyri the surety is a third party (usually a member of the debtor’s family) from whom the creditor is allowed to exact the debt in the same way as with the debtor himself, in the later papyri the surety as a distinct legal actor seems to disappear, and two debtors take a loan in common and act as co-sureties, i.e. as sureties of each other. Yiftach-Firanko argues that the previous system was abandoned because unsustainable: the surety was meant to come into play only if the debtor ran away or was likely to abscond, but in fact, because the legal procedures against the debtor were so complex (the creditor needed to prove before the court the existence of the debt), it was easier for him simply to turn directly against the surety, and if the surety did not keep his pledge, he would be fined by the praktor (with no need to prove the actual existence of the debt). The fact that on the one hand the creditor could turn directly against the surety, and on the other the only actor that could challenge the creditor on substantive grounds was the debtor (who often had no interest in stepping in), gave rise to widespread abusive conduct. This is, according to Yiftach-Firanko, why the system was reformed in the 130s. Rupprecht (383-7) observes that we do have some evidence for traditional sureties even after the 130s, but these become infrequent, while the new arrangement seems to take over. So, rather than a sudden legal change, we should imagine that the dangerous position of the surety must have encouraged more and more people to resort to a new arrangement.
Helmis (389-99) discusses the use of the fictio iuris in Hellenistic law. Against scholars that want to identify forms of legal fiction in Hellenistic papyri, parallel to the Roman practices (in particular Bertrand; one may add those that see cases of legal fiction even in Athens, cf. e.g. various interpretations of the dike apostasiou as a fiction to publicize the manumission of a slave), Helmis argues, through an analysis of papyri concerned with contracts, marriages and criminal law, that all we can find in Ptolemaic Egypt are examples of legal reasoning by analogy (or extension, association, metaphor). Despite some problems of definition (highlighted in Jörden’s response, 399-406, which then proceeds to provide an interesting historiographical study of Pringsheim’s Symbol und Fiktion in antiken Rechten), his contribution is a good warning against any simplistic attempt to apply the Roman concept of legal fiction to Greek law.
Mirko Canevaro (The University of Edinburgh)
mis en ligne le 4 septembre 2015