Bryn Mawr Classical Review

This study of the Athenian practice of homicide litigation in the late fifth and fourth centuries, anchored in the Draconian law of homicide, grew out of the author's 2000 University of Michigan dissertation on homicide, wounding and battery in the fourth century orators. This book, in the Historia Einzelschriften series, has narrowed the topic to homicide, but widened the chronological scope to include Draco's law as well as the re-inscriptions and trials of the last two decades of the fifth century. The audience is scholarly. The arguments rely on close readings of the Greek texts (English translations included) with attention to nuances of language and historical detail. The structure of the book is logical rather than chronological, and offers functional interpretations of legal practices with particular reference to enmity as a personal and public motive. This is an important contribution to the study of Athenian law, and offers an important perspective on how the fourth century orators viewed their late seventh-century past, as interpreted through the lens of late fifth-century legal re-inscriptions.

Phillips' basic orientation toward Draco, and toward the relationship between the pursuit of revenge and the courts, is laid out in his introduction. Draco's law on homicide is presented as more than a foundation for Athenian law: it was central to Athenian civic identity. Revenge--which the law tried to control but not to eliminate--was also vital to Athenian civic ethos, and Phillips identifies himself with those many scholars who see the courts as a means to pursue vengeance, not to end it. Draco's law was used in the fourth century "because the concept of private vengeance, sanctioned by custom and acknowledged in law, survived, adapted, and remained at the core of the Athenian psyche." (15) Phillips draws on David Cohen and others when he defines enmity (echthra)--which lies at the base of numerous lawsuits--as "a publicly recognized state of hostility that is ended officially by reconciliation."(18) He then proceeds to describe the various aspects of the public recognition, litigation, and reconciliation associated with enmity.

Part I, chapters 1 through 4, first examines Draco's legislation, and then Athenian homicide law and practice in the fourth century. Chapter 1 considers the legislation of Draco, first in its historical context, and then with a close reading of the text as preserved in the Demosthenaic corpus. Historically, Phillips denies the existence of a "horizontal stasis" between members of the aristocracy in the late seventh century (as upheld by Plutarch), and rather finds a "vertical stasis" between the nobility and the masses, as upheld by the Aristotelian Constitution of the Athenians. Phillips makes a good case--one of the strong points of this book is that it supports claims with direct textual evidence--but there is at times a tendency to overly-generalize from that selected evidence. Phillips does not consider the possibility that some of the nobility attained positions of power with the support of "the masses" (as Solon suggested he could have done, in fragments 6, 36 and 37). By widening the claim to imply that all of archaic Greece was caught up in this class war, Phillips does not consider, say, the struggle between the Bacchiadae and the Cypselids in Corinth. Even the description here of the "bribe-devouring kings" in Hesiod's Works and Days fails to consider that gift-giving was a normal part of early dispute mediation, and not necessarily evidence for class warfare. If Hesiod's relative and opponent Perses was one of the nobility, what of Hesiod himself? One must wonder how much of the vengeance thesis actually turns on this "vertical stasis" argument. But these criticisms aside, Phillips provides a focused, cogent reading of the texts and a strong functional interpretation of the law itself.

Chapter 2 continues the functional examination, now of the process of litigation in fourth-century classical Athens. Beginning with a clear explication of the nature and function of the courts, Phillips walks us through the summary arrest (apagôgê), the religious aspects, and the penalties, mainly as background to the process of public enmity itself. To bring out one point of contention, Philipps notes that even though religious aspects of the homicide law were strong in the fifth century, Draco's law "displays no awareness of any sacral aspect of homicide." (62) Yet we should remember that what we have of this law is from an inscription dated 409/8; it is a reconstruction that points more to Athenian memory than a literal preservation of the law. The trial, exile, and curse associated with the Alcmaeonids, the purification of Athens by Epimenides, and indeed the entire context of the late seventh century BC suggests a much greater role for religion in Draco's time than the inscription itself suggests. Since the central thesis of this book is the continuity of Draco's law over nearly three centuries, a closer discussion of the religious parallels is in order. As always, Phillips works engagingly, and persuasively, through the public process of enmity in the fourth century, from the dying injunction to pursue vengeance and the aggressive funeral through the pursuit of vengeance, the trial, and the reconciliation or pardon after conviction. This is all well supported, but there are again some over-generalizations; for instance, pardon after conviction may be sanctioned in Draco's law, but Athenian evidence for it is less forthcoming, and sources for it are not directly cited.

Chapters 3 and 4 take us to the family--central to Draco's laws--but from different perspectives. One of Draco's main tasks was to maintain the solidarity of the family, in order to prevent independent vengeance actions against the killer of a relative. Chapter 3 considers fourth-century cases when the family is split by enmity, and vengeance is pursued in a lawsuit by one member of the family against another. This widens the concept of piety beyond the family, as Plato makes clear in the Euthyphro. The strong link between impiety (traditionally understood) and lawsuits against family members again suggests a deep connection between religious ideals, family solidarity, and Draco's law. The close reading of the texts here does much to unveil the nature of the enmity in the fourth century--the Euthyphro, Isaeus 9, Demosthenes 22 and 24 are central texts here--but not always enough to connect it back to the norms of Draco's day and thus to establish the continuity that constitutes the thesis of the book.

Chapter 4--focused on Demosthenes 47--takes on fourth-century cases when the victim is left with no relative closer than a cousin. The essential Athenian advance over Draco here is their expansion of the prosecutions beyond family members, to anyone who wishes to prosecute. Phillips considers how the Athenians first created the legal means to prevent a suspected killer from avoiding trial by flight, in the event that there was no relative to bring charges. "In practice," Phillips writes, these procedures closed a "loophole" in Draco's law, "since any Athenian citizen could employ these procedures, regardless of his relationship to the victim." (126) As always, Phillips admirably supports his conclusion with serious and sustained textual readings to which this review cannot do justice. But there remains a problem, for this is reading Draco through fourth-century lenses without considering the implications. If we are trying to understand how Demosthenes et al understood the murder laws they attributed to Draco, this all well and good, but surely the underlying norms had changed to some degree by this time, and a thesis upholding continuity over three centuries should better engage with this issue. What Demosthenes--and we--see as a "loophole" may have been seen otherwise in Draco's time, and this might have profound implications for the concepts of revenge understood at each time.

Part II, chapters 5 through 7, turns to the period of the Thirty Tyrants and the re-inscription of Draco's laws, with special focus on Andocides I, Lysias 12 and 13. Chapter 5 reconstructs the events surrounding the re-inscription, the continuity and change associated with the Thirty, the Amnesty and the reconciliation. Phillips applies his "vertical stasis" model, taken from Draco's time, to explain the civil strife, and the restoration of the democracy. The understanding of homicide adopted here includes important and nuanced reforms to the idea and practice of endeixis and apagôgê, two forms of prosecution, in context with the strict limits set by the Amnesty. In addition to cases from Antiphon and Andocides, Phillips refers to the trial of Socrates, which he sees as motivated primarily by the events of 404/3, especially by Socrates' connection to Critias of the Thirty, a connection revealed in the charge of having corrupted the youth. This, Phillips claims, illustrates the willingness of the Athenians "to remember past wrongs" and "to act on that remembrance"--another illustration of the vengeance motive that remains the theme of this examination.

Chapters 6 and 7 show vengeance as resurgent in the years after the Amnesty. Chapter six focuses on Lysias 12, the euthynai, or prosecutorial review of Eratosthenes' actions while in office as a member of the Thirty. Emnity remains the dominant motive in this analysis, as the speaker attempted to widen the scope of the dispute to include every member of the polis versus the defendant and the Thirty. This complied with the Amnesty, but also attempted to unify the jury against the defendant, and in doing so, Lysias set the terms for later prosecutions "to redress wrongs suffered under the Thirty by means whose relation to the letter and spirit of the Amnesty was not as clear."(184) Phillips follows this with a rich discussion of the Lysias 12 text.

Chapter 7, focused on Lysias 13, the trial of Agoratus in 398 for serving as an informer for the Thirty. The procedure of the trial was an apagôgê, which Lysias states several times, and which amounts to a resurgence of this form of vengeance. According to the Amnesty, the defendant must have been caught "ep'autophôrôi" or "in the act," but the "act" was five years earlier. Phillips shows how Lysias attempted to expand the "act" back to the denunciation of the defendant years earlier, and thus to expand the meaning of ep'autophôrôi to allow for the belated trial. All of this, and much more, Phillips argues, is consistent with, and driven by, the underlying motive for vengeance that remained at the heart of Athenian homicide trials. It also follows the mutability of words in times of strife, noted by Thucydides (as well as the rhetorical skill of the sophists, which is not here discussed). This is, overall, a far richer discussion of these trials and their relationship to the Amnesty of 403 than any short review can convey.

One critical issue does challenge the stated aim of this book: despite its subtitle and its claim to deal with homicide from Draco to Demosthenes, it is almost totally devoid of discussion of developments from Draco to the oligarchic counter-revolution of 411 (other than passing references, and some discussion of Antiphon). Of course the evidence is sparse at best, and Draco's laws likely fell out of use prior to the re-inscription, but the central thesis is not only about those laws, but about the continuity of vengeance at the foundation of Athenian homicide litigation. There is but a single mention of Ephialtes and his removal of jurisdiction from the Areopagus--was it originally a murder court?--and little to no consideration of how that continuity was achieved. Was it in fact a continuity of the law at all, or rather a rebirth of the Draconian code?

Further, a reader must wonder why the book is arranged to jump from Draco's legislation (chapter 1)--preserved in a 409/8 inscription--to the procedures and functions of mature Athenian law in the fourth century (chapters 2 through 4), and then back to 409/8, when that inscription was carved (chapter 5). This organization is not explained, but perhaps the book was assembled from the PhD and other material rather than as a singularly conceived project. In any event, the final product leaves questions unanswered. For instance, the preamble of the Draconian inscription and the circumstances of its carving are on p. 137 (with the 409 BC discussion), while lines 10-23 of the inscription are on pp. 49-50 (with the Draco material), a division that suggests the meaning of the inscription can be understood apart from the context of the decision to re-inscribe it. Phillips maintains that there is no evidence that the Athenians changed Draco's law in any substantive way--and he cites Antiphon, prior to 411, as claiming that the homicide law as having "always been the same regarding the same things" (151)--but without seventh-century material there is also no direct evidence that the 409 law is accurate to Draco's day. The position taken in this book, as well as its architecture, should be better explained. The entire thesis of the book depends upon a generally rock-solid, unchanging set of norms from 620 BC to 409 BC--a claim that should be much better supported, especially given the modern scholarship that has examined the conceptual changes engendered by the intellectual revolution of the fifth century.

These are the criticisms reserved for an excellent piece of work, which is required reading for all scholars of Athenian law, rhetoric, and history. At every step Phillips backs his claims with direct citations from textual evidence, and a high-level of valuable, sustained arguments. There is an appendix on androlêpsia ("man-seizure"), and a ten page bibliography.