Reviewed by David M. Ratzan, New York University (david.ratzan@nyu.edu)
[Authors and titles are listed at the end of the review.] Rarely have I gone to a volume in the Symposion series in search of an article without reading at least one or two others in the same sitting. Such has been its quality, year in, year out. And the years are adding up. This is the eighteenth volume in the series, which has been published continuously since 1975, when Symposion 1971 appeared. It is also the first to be reviewed in BMCR, despite the fact that the series is widely recognized as the most prestigious in ancient Greek legal history. Indeed, Symposion volumes are very rarely reviewed, and when they are, often cursorily or in highly specialized journals. This is hardly surprising: they are conference proceedings, with contributions in multiple languages, dedicated to what has always been a recherché subfield. Yet it is also, perhaps, a function of poor marketing: Symposion 2011 seems to be the first volume ever offered to BMCR for review. Whatever the cause, the result is clear. Of the 49 libraries participating in the book-sharing program with New York University, none at the time of writing (including NYU) held more than six, nor was there a complete run between them all; none held the previous volume, Symposion 2009. Given this state of affairs, I will review the present volume in light of the series, discussing specific contributions as space permits. Symposion are the acts of the Gesellschaft für griechische und hellenistischen Rechtsgeschichte, an informal, international seminar dedicated to ancient Greek legal history. The categories "Greek" and "legal history" are both broadly construed. One always finds in every volume a predictable concentration of essays on Athenian legal procedure or core legal texts; yet one also regularly finds legal readings of non-legal texts and, vice versa, discussions of legal texts from the perspectives of ancient history, political theory, sociology, anthropology, economics, philosophy, or literature. Two examples from the present volume illustrate this methodological breadth. Leão and Scafuro consider what Euripides' Ion tells us about the collapse of the Athenian ideology of autochthony and the concomitant (and contentious) changes in citizenship and property rights at the end of the fifth century. In a different vein, Banfi and Couvehnes debate the nature of Athenian "constitutional control." Banfi reconstructs both the philosophical and political discourse of legislative legitimacy and the practical attempts to assert control over the legislative process, concluding with the suggestion that the office of the nomophylax, reportedly instituted by Demetrius Poliorcetes, was a direct product of this history. Couvehnes responds with a systematic critique, including a full discussion of the keys texts relating Demetrius's innovation, helpfully assembled in an appendix. The definition of "Greekness" is similarly—and provocatively—inclusive.1 Indeed, most Symposion volumes showcase essays by scholars whose primary interests are papyrology, Greek or Roman Egypt, or Byzantine studies. This ecumenical brand of "Greek legal history" is the vision of the seminar's founder, Hans Julius Wolff, one of the greatest and most wide-ranging of the last century's juristic scholars, equally at home in Athens and Oxyrhynchus. Wolff's grand project was the articulation of a properly "Greek" legal tradition by liberating its study, especially in the Hellenistic and Roman periods, from the distorting prism of implicit or privileged Romanist categories, and embedding it firmly in "Greek" culture and history.2 The contributors and format of these volumes are also noteworthy, as both affect the contents. First, participation is by invitation, and consequently each volume brings together leading scholars to publish original scholarship or work in progress. Though at times this imparts a distinctly clubby air to the proceedings (see Legras's opening essay), the overriding impression is that of a true Gesellschaft of scholars practicing their vocation at the highest level.3 Typically, there is no set theme: Symposion 1990, dedicated to criminal and family law, remains an outlier; but the continuity of participation forges a continuity of agendas and debates For example, Cohen's essay in this volume is a direct response to Maffi and Talamanca's debate in Symposion 2007 about the liability Athenian owners incurred for slaves' debts and the proper role and limits of Roman law in comparative analysis. Second, although the thematic innovation of Symposion 1990 was not repeated, its formal experiment of printing responses has become a hallmark of the series: all subsequent volumes have adhered to this most classical of rhetorical practices by presenting dissoi logoi. Occasionally, the responses are mere formalities or addenda. Thus Mossé in this volume offers only a short (though substantive) note to Polignac's fascinating study of the anthropology, politics, and legal articulation of the private and public cults of Asclepius in classical Athens. More typically, however, the responses are direct, critical replies or occasions for extended essays on related topics. So Todd responds to Maffi's Tocquevillian essay on the origin and ideology of majority rule in classical Greece by assembling a revealing epigraphic corpus of dissenting votes. Whereas the practice of recording legislative votes seems to have varied according to time and place (perhaps illuminating different ideological commitments to or projections of consensus, an important theme in Maffi's essay), legislative dissent seems everywhere to have been recorded only exceptionally, even as it was commonly recorded in judicial decisions (an interesting case of which is discussed by Thür and Youni). Unlike some past volumes, the editors chose not to impose an explicit organization, but the contents are arranged chronologically and then grouped loosely by topic. Also unlike many previous volumes, Symposion 2011 is strongly Athenocentric and does not venture in any substantive way beyond the Hellenistic period (cf. Symposion 1985 and Symposion 2007). Archaic law is represented by the first pair of essays on the Grand Rhetra and Hellenistic law by the last five pairs, leaving nine pairs on classical Athens, which progress thematically from constitutional issues or political theory to enforcement and then to miscellanious discussions on property rights, status, religion, and economics. The contributions are lightly edited: the English is not always idiomatic; bibliographic style and transliteration are not uniform; and typographical errors and compositing infelicities are more frequent than one would wish. A decade ago David Cohen announced a changing of the guard in his introduction to the Cambridge Companion to Ancient Greek Law, celebrating the new perspectives, methodologies, and questions a younger generation of largely Anglo-American scholars had brought to a disconnected and doctrinaire study of Greek legal institutions. While justified at the widest remove, his brief and polemical intellectual history of the field is, it seems to me, complicated by the history of this series. All the same, I think readers of Symposion 2011 might well wonder along with Cohen whether its brand of Greek legal studies might not benefit from a new comparative moment, moving away from the original engagement with classical studies and re-orientating toward the wider world of contemporary legal studies, especially as several of the essays in this and recent volumes tackle questions or problems that have been the recent subjects of intense and successful theorization. For example, the Maffi-Todd discussion of classical Greek majoritarianism may now be fruitfully juxtaposed with the second chapter of Melissa Schwartzberg's new book on the origins of the supermajority rule, which investigates a version of the same phenomenon but from the explicit perspective of normative democratic theory, somewhat in the vein of Josh Ober's work, which Maffi (pointedly?) ignores.4 Another example is the Rubinstein-Fournier exploration of public accountability in classical and Hellenistic Greece. Rubinstein erects a set of analytical categories through which we may better understand the welter of collective and individual penalties Greek cities imposed on their officials. She thus connects types of penalties (individual or corporate) and whistle-blower laws to classes of misdemeanors or situations, e.g., deeds of commission versus those of omission, crimes with and without victims, etc., explaining the logic of liability or incentive in each case. Fournier responds by adroitly applying Rubinstein's "nouvelle approche" to a particular epigraphic dossier from Thasos. The problem outlined here is ultimately a version of the general puzzle of legal liability: how does one deal with strategic behavior born of information asymmetries between parties and those who would hold them accountable? There is now a fully-fledged literature on the law and economics of liability, and it would be interesting to see how someone versed in that methodology or game theory might analyze the same data. Laani's essay is one of the most theoretically engaged. Drawing almost exclusively from forensic speeches, she examines the role of "social sanctions," or punishments "unilaterally imposed by third parties with no involvement of government institutions" in Athenian society, framing her investigation in terms of recent law and society research. Laani finds that "social sanctions were largely used as a last resort, when the offense was too serious to ignore" (105); and further that Athenian legal institutions "helped promote the operation of social sanctions by publicizing norm violations" (108), thereby contributing to the orderliness of Athenian civil society. Seeing Athenian legal institutions primarily as amplifiers of social norms is a stimulating suggestion, but in a society where the personal was often the political, could social sanctions ever be a last resort rather than an opening and ongoing gambit in a complex and deeply integrated strategy of conflict resolution? Also, as Cantarella intimates in her response, how does this fit with what we know of the larger context and mechanisms of social control, particularly the evidence from, e.g., drama? Of the papyrologically oriented essays at the end of the volume the Helmis-Jördens discussion of legal fictions stands out, not least for its comment on the sociology of juristic scholarship. Helmis compiles an illustrative catalog of what have often been identified as "legal fictions" in Ptolemaic papyri, e.g., the "prāxis kathaper ek dikēs" clause, which permitted parties to proceed with summary execution "as if in accordance with a judicial decision." Taking the Romanist fictio as his point of departure, he argues that none are in fact proper legal fictions, but rather examples of other modes of legal thought, e.g., association, extension, assimilation, analogy, etc. This, he suggests, reveals a deep-seated difference in the legal mentalités of "Greeks" and "Romans." Jördens begins on Helmis's turf, finding examples that fit his bill, but then moves to deconstruct the entire project. She returns to an essay published by Pringsheim in 1956, not only to adopt his typology of fictions, but also to contrast Pringsheim's bald moralization of the subject with Helmis's multicultural approach. Even so, it is hard to escape the implicit suggestion that the study of fictions, at least in these terms, still suffers from a lingering Romanist hangover and reveals more about presentist preoccupations than ancient law. Although Symposion was instituted to further Greek juristic study by contextualizing it in classical studies, one can easily imagine—were it more widely read—that its mission today might be to give as much as it takes from classical studies, to illustrate the ways in which juristic research contributes to current discussions. Velissaropoulos-Karakostas and Dreher, for example, debate the interpretation of a single horos stone from late third-century Paros, specifically the meaning of some key technical terms (What did the sympōlētēs and mnēnones do? Why did one pay the periēgēta?), what are the relevant comparanda (contemporary papyri or inscriptions or both?), and does the stone record a sale or a form of mortgage? Implicated in the answers to these particular questions are our models of ancient property rights, the recording and uses of information, the role of the community and state in "private" transactions, and the cultural and legal unity of the Hellenistic world. The core aims of traditional juristic study, namely the interpretation of legal texts, the recovery of legal categories, and the reconstruction of the processes of memorialization, adjudication, and enforcement, thus remain fundamental to wider discussions of ancient social relations, politics, and economics, as even David Cohen is quick to affirm.5 At its best, that is, when the intellectual and theoretical stakes are clear, the essays collected in Symposion encourage students and scholars alike to get into the legal weeds so as to render ancient legal thinking and practice intelligible and relevant not only to themselves and their ancient studies colleagues, but also to those in other departments and faculties where the interplay of law, society, and economics are today hotly debated.Table of Contents
Préface IX
Bernard Legras, De Chantilly (1977) à Paris (2011) : le droit grec et hellénistique en France 1
Françoise Ruzé, Dire le droit : retour sur la grande rhètra 5
Michael Gagarin, Observations on the Great Rhetra : A Response to Françoise Ruzé 17
Alberto Maffi, Origine et application du principe de majorité dans la Grèce ancienne 21
Stephen C. Todd, The Publication of Voting-Figures in the Ancient Greek World: A Response to Alberto Maffi 33
Antonio Banfi, Qualche considerazione intorno al controllo di legittimità a Atene 49
Jean-Christophe Couvenhes, Quel remède à quelle crise ? La fonction des nomophylaques dans le « contrôle de la légitimité constitutionnelle » athénienne sous Démétrios de Phalère : réponse à Antonio Banfi. 77
Adriaan Lanni, Social Sanctions in Classical Athens 99
Eva Cantarella, How Was Order Maintained in Classical Athens? A Response to Adriaan Lanni 111
Robert W. Wallace, When the Athenians Did Not Enforce Their Laws 115
Paulin Ismard, Le périmètre de la légalité dans l'Athènes classique:
réponse à Robert Wallace 127
Delfim F. Leão, The Myth of Autochthony, Athenian Citizenship and the Right of Enktesis : A Legal Approach to Euripides' Ion 135
Adele C. Scafuro, The Legal Horizon of Euripides' Ion : A Response to Delfim Leão 153
Michele Faraguna, Società, amministrazione, diritto: lo statuto giuridico di tombe e periboloi nell'Atene classica 165
Kaja Harter-Uipobuu, Öffentliches und privates Eigentum an Grabstätten in kaiserzeitlichen Inschriften aus Athen und Kleinasien : Antwort auf Michele Faraguna 187
François de Polignac, Entre privé, public, civique : à propos de l'intégration de cultes extérieurs dans l'Athènes classique 199
Claude Mossé, Réponse à François de Polignac : l'introduction d'un culte étranger à Athènes 211
Edward E. Cohen, Juridical Implications of Athenian Slaves' Commercial Activity 213
Athina Dimopoulou, Le rôle des esclaves dans l'économie athénienne : réponse à Edward Cohen 225
Christophe Pébarthe, Droit et marché en Grèce ancienne. De la monnaie athénienne comme loi 237
Guido Pfeifer, The Character of Ancient Near Eastern Economy : Response to Christophe Pébarthe 261
Julie Velissaropoulos-Karakostas, Périègèta : un nouveau terme de la vente grecque 267
Martin Dreher, Ein Kauf-horos aus Paros : Antwort auf J. Velissaropoulos-Karakostas 283
Gerhard Thür, Dispute over Ownership in Greek Law : Preliminary Thoughts about a New Inscription from Messene (SEG LVIII 370) 293
Maria S. Youni, Remarques sur une inscription messénienne : réponse à Gerhard Thür 317
Lene Rubinstein, Individual and Collective Liabilities of Boards of Officials in the Late Classical and Early Hellenistic Period 329
Julien Fournier, Les modalités de contrôle des magistrats de Thasos aux époques classique et hellénistique : réponse à Lene Rubinstein 355
Uri Yiftach-Firanko, The Death of the Surety 365
Hans-Albert Rupprecht, Zur Bürgschaft in den Papyri : Antwort auf Uri Yiftach-Firanko 383
Andréas Helmis, La problématique de la fiction dans le droit de l'Égypte hellénistique 389
Andrea Jördens, Zur Fiktion im Recht der Papyri und bei Fritz Pringsheim: Antwort auf Andréas Helmis 399
Index des sources 407
Participants 431
Notes:
1. Cf. The Cambridge Companion to Ancient Greek Law, ed. M. Gagarin and D. Cohen (CUP 2005), pp. 29-40.
2. See Wolff's programmatic statements: Symposion 1971: 1-22; Washington University Law Review 1975.2 (1972): 395-408.
3. Cf. Symposion 2003: 435-42; Symposion 2005: 413-38.
4. Counting the Many: The Origins and Limits of Supermajority Rule (CUP 2014).
5. Cambridge Companion to Ancient Greek Law (n1 supra), p. 14.
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