Violence and the Athenian Legal System

There was a great deal about Athenian society that required self-sufficiency and self-help. This was the case for legal matters as with most things. The state did little to police itself despite the existence of the well-known Scythian archers - public slaves charged with keeping order within the city.

Citizens had to do much that might be termed self-policing. In theory, Athenian law always seems to have required witnesses to support claims against miscreants. Indeed, Hunter thought that this created an environment in which bystanders would become involved in altercations as more than just witnesses. They would actively intervene on behalf of those being physically wronged. Against this view Sternberg argues that in the absence of prior relationships, bystanders had no other duty than to bear witness.^{^[1065]}

Arguably the most vivid illustrations of the role of violence in real Athenian relationships come from the legal speeches. Scholars are well aware of the loose interplay between state, as represented by the legal system, and private self-help in achieving justice in Athens. A good illustration of this relationship comes from Ps.-Demosthenes 47. The speech sets out a long saga that charts the enmity between two trierarchs, and thus men wealthy enough to be required to command and subsidise the maintenance of an Athenian naval ship. The name of the first trierarch, the speaker, remains unknown, but his antagonist is named Theophemus. The story begins when Theophemus refuses to hand over the additional equipment (skeue) that went with the state warship (trireme) that he had relinquished to the speaker's command. The central council of the Athenian government had passed a decree enabling trierarchs to collect the equipment in whatever way they could, thus empowering our speaker. Significantly, Theophemus hits the speaker and overcomes him physically as he attempts to recover the gear.

The council then advises the speaker to bring a prosecution through the law of eisangelia, by which any public office-holder might be ‘impeached' for improper behaviour during their term of office. The speaker thus successfully prosecutes Theophemus, but only suggests a small fine and offers to go to arbitration over the violence. Theophemus refuses arbitration and both parties file suits concerning their violent encounter against each other. Sadly for the speaker, the courts hear Theophemus' suit first and he wins. In the complex processes that follow whereby the speaker needs to pay a fine but delays doing so, Theophemus (with his relatives) goes to the speaker's estate to ‘recover' the equivalent value of the fine, and in the process leaves a freewoman seriously hurt and she subsequently dies. The speaker goes to the exegetai, religious officials who oversee crimes of pollution, to ask permission and advice to take Theophemus to court for the crime of killing the woman. They refuse him but suggest he seeks retribution through other means. The case of Ps.-Demosthenes 47 is the one in which our speaker has charged the brother and brother-in-law of Theophemus, as his accomplices, of violating his home and killing a freewoman.

What this whole episode illustrates is the significant role of personal action and responsibility for what was essentially a state issue from the beginning - notably, the passing of state-nautical equipment from one trierarch to his successor. The second and more damning point lies once more with status. The woman who died, free though she was, was not considered important enough to warrant a prosecution in her own right by the religious-legal exegetai. She was technically neither a member of the speaker's household (if she had been a slave she would have been) nor a member of the Athenian state (she was not a citizen's wife, daughter or mother). Finally, both issues demonstrate the privatised nature of the whole system. The state lacks the resources to assist our speaker in claiming the property that the law had decreed should come to him in the first instance, just as the state has no physical mechanism to enforce its own legal decisions.

Gabriel Herman noted rightly that ‘the formal agencies that existed in Athens to enforce the law seem totally inadequate to the task'.^{^[1066]} Matthew Christ unpicks the legal speech in spatial as much as legal terms, whereby the private oikos represents the inner sanctum of the family, almost as a separate sphere from the polis that other citizens (and therefore the state) should respect. By extension, we might suggest that its violation was as much an act of violence as striking a citizen in the street.^{^[1067]}

Murder remained an extreme act, despite the apparent ambivalence of the exegetai to the death of the freewoman connected to the house of the speaker in Ps.-Demosthenes 47. Murders even of dependants required purification and attention. Most famously, the Platonic dialogue Euthyphro centres round the deaths of two non-citizens within the household of the father of Socrates' discussant in the dialogue. The father had bound and left to die a dependant worker (pelates) who had himself killed a household slave. The son has decided to take his father to court on a charge of murder (dike phonou). Socrates seems surprised at these events and Reiss suggests most Athenians would not have been concerned at the death of this dependant, especially in light of the fact he was a murderer.^{^[1068]} Of course the whole issue provides an excellent platform for a Platonic dialogue on justice.

In fifth-century bce Athens, democratic though it was, justice in every sense remained the province of family and connections, despite the democratic courts and communal ideology. We have seen this well illustrated in the loose relationship between state and individual in issues of self-help (vigilantism) and state-involvement (law). Even murder in Classical Athens retained traditional retributive norms in certain specific instances, rather than familial vengeance. A citizen was within his rights to kill anyone he found uninvited on his property if he considered them to be a threat or a thief, and further he might kill any man who sexually compromised his wife or any female relative under his authority.

This included even his friends who had entered his house while he was absent if his wife was present inside. The most famous discussion of such legal execution is found in Lysias' speech On the Death of Eratosthenes in which the prosecution contended that Euphiletus used the law to murder the man he ‘caught' in his house ‘with his wife' having invited him there, while the defence argued that Euphiletus was merely exercising his time-honoured rights in defending his oikos. The defendant's arguments invoked the invasion of the sanctum of the citizen's household or oikos by an intruder and the transgression of his familial boundaries, equivalent to the physical space of his territory. Reiss identifies the ‘overlap and clash between archaic and modern notions of violence' in the case.^{^[1069]}

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Source: Fagan Garrett G., Fibiger Linda, Hudson Mark, Trundle Matthew (eds.). The Cambridge World History of Violence. Volume 1: The Prehistoric and Ancient Worlds. Cambridge University Press,2020. — 756 p.. 2020

Violence and the Athenian Legal System

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