A conference in honor of Michael Gagarin on his retirement
March 31st - April 2nd, 2011Waggener Hall, Room 116 • The University of Texas at Austin

ABSTRACTS

Eva Cantarella, Università di Milano
Revenge, Punishment and Related Problems: Past and present

In recent years the traditional understanding of the difference between revenge and punishment has been challenged. Some Greek law scholars criticized the idea that revenge was a private pre-civic reaction of the victim (or of his relatives) to an offensive behavior, while punishment was the civic reaction to the violation of a law rule. After a brief survey of the Greek attitude toward punishment and its function, the paper will discuss these critiques, focusing on the new interpretation of Aeschylus' Oresteia proposed by, among others Danielle Allen, and R. Phillips' idea that "the concept of private revenge was not abolished by Draco's law, but merely redirected, with the Athenian courts serving as its primary locus." The paper will then discuss the role of anger and enmity in Athenian society, and will oppose the ideas that the Athenian system of judgment "was not coolly distant from anger" (Allen), and that "we should not see the pursuit of echthra and the goal of law as opposing principles" (Phillips).

The second part of the paper will deal with the contemporary neoretributionist conception of punishment as "just desert," and with the contemporary discussion of the role of emotions in law and the possibility that these emotions could include the desire of revenge. This survey suggests that some aspects of the recent theories of punishment seem to blur to evanescence the borderline between revenge and justice and to lead back in time, to a moment preceding the one in which the Greeks started this course indicating an intellectual path whose direction seemed irreversible, but like everything in history, may change and even be overturned.


Edward Cohen, University of Pennsylvania
Slaves' Commercial Activity: Legal Ramifications for Ancient Athens—and for Modern Scholarship.

Scholars have long recognized the leading role of slaves in Athenian commercial activity. But only minimal academic attention has been directed to the paradox of an Athenian economy dependent on slave entrepreneurs operating within a legal system that supposedly treated slaves as nullities, a system absolutely closed to slave participation (except perhaps as witnesses through torture). Extensive evidence and multiple studies, however, have demonstrated that legal systems invariably develop mechanisms to close significant gaps that may arise between changed societal reality and traditional juridical principles. Athens was no exception

I will accordingly first consider modern historians' recent efforts to reject (and even to athetize) Athenian evidence confirming (1) slave entrepreneurs' liability for their own debts and (2) slaves' participation in commercial litigation. Then I will consider in economic context the factors that facilitated a system of credit at Athens in which slaves bore legal responsibility for their own business obligations—a system consonant with the Roman juridical principles that in a different time and in a different society likewise effectively limited owners' liability for the financial obligations of slaves independently operating businesses.


Martin Dreher, Universität Magdeburg:
`Heiliges Recht´ and `Heilige Gesetze´: Law, Religion, and Magic in Ancient Greece.

Greek Sacred Law is often neglected in the study of Greek Law. One reason certainly is that sacred law has many features in common with non-sacred law, that it is in many aspects not a specific area. Therefore my paper starts with problems of definition. What is Sacred Law (Heiliges Recht) and what are sacred laws (heilige Gesetze)?

In what follows I will concentrate on the more juridical part of the subject, that is on the regulations of religious matters, especially on cult practice. The categorazation is up to now almost exclusively influenced by the practice of the corpora in collecting the leges sacrae. The last work of this kind by Lupu has, based on the earlier collections of Sokolowski, developped a table of contents. But for the study of Greek sacred law these collections, limited to only inscriptions, are not sufficient. They do not include, decidedly, laws on the cult of living and dead people. And they do not include, undiscussed, laws on sacred wars or sacred peace neither documents on asylia (after the term has received a legal meaning). Of specific interest should also be the curse tablets, a class of documents oscillating between religion and magic, between official cult practice and illegal magic.

Not always convincing are the opinions of modern scholars on the forms of the sacred laws and their issuing authority and on the kind and quantity of sanctions contained in these laws. Much too less work has been done on questions like these: How and when did changes occur to sacred law in the course of Greek history? Which kind of juridical competence and of jurisdiction had the priests of the sanctuaries? In which cases are the regular courts or the regular institutions to give judgment on "sacred delicts" and in which cases did the Greeks establish special tribunals?

On the basis of these considerations I will in the end discuss if it is possible to write and if it is desirable to have a kind of handbook of Greek Sacred Law.

Essential literature:
K. Latte, Heiliges Recht, Untersuchungen zur Geschichte der sakralen Rechtsformen in Griechenland, Tübingen 1920, ND Aalen 1964.
E. Lupu, Greek Sacred Law. A Collection of New Documents (NGSL), Leiden / Boston 2005.
R. Parker, Law and Religion, in: M. Gagarin / D. Cohen (eds.), The Cambridge Companion to Ancient Greek Law, Cambridge 2005, 61-81.


Michael Gagarin, University of Texas at Austin, Emeritus
The Athenian Law on Contracts. What Law?

The law on agreements in its simplest form was said to be "whatever one person agrees on with another is to be binding." Hyperides' client in Against Athenogenes claims that the law also includes the qualification (only) "those that are just"; others cite the law with other qualifications: (only) agreements that are lawful, or voluntary, or made in front of witnesses. I agree with those who argue that the written text of the law probably was the simple form cited above, but I argue that the qualifications just, lawful, and voluntary, were inherent in the meaning of the law for any Athenian. More generally, I examine what the Athenians meant by "the law on X," and argue that in addition to the words written on stone and the interpretation of those words given by litigants (which sometimes strays quite far from those words) there is an intermediate level of meaning, namely how the words on stone were understood at the time. Since the Athenians lacked our legalistic demand for precision, they could easily take for granted that, for example, "to agree" meant "to agree voluntarily," without having to inscribe this qualification into the text. This conclusion will affect how we understand the arguments in Against Athenogenes.


Mogens Herman Hansen, University of Copenhagen
Oral Law

I treat two issues: First: is it at all possible to have orally transmitted laws in the proper sense, i.e. unwritten general rules passed by a legislator or some legislative institution, whereafter they are remembered and transmitted to the next generation by all or some of the members of the community? Second: if that is possible, did the ancient Greeks have laws of that kind in the Archaic period before they began writing down their laws? I spend most of my time on the first question and I believe that I can come up with several examples that suggest a positive answer. In the last part of the lecture I treat some of Kleisthenes' constitutional measures as a possible example of orally transmitted laws in this sense.


Adriaan Lanni, Harvard Law School
From anthropology to sociology: New directions in ancient Greek law research

In the second half of the twentieth century scholars of ancient law made important contributions by applying insights from legal anthropology. This paper evaluates the advantages and disadvantages of a turn toward sociology. A sociological approach to Greek law would involve a shift (1) from an emphasis on "culture" to a focus on the workings of institutions and the structure of society; and (2) the use of generalized insights about human behavior rather than focusing on the individuality of each ancient society. The paper concludes with cautious optimism about the potential of using contemporary research in legal sociology to shed light on Greek law.


Alberto Maffi, Università di Milano
The Study of Greek Law in the XXI century: towards a new shape of Greek private law

1. How to study Greek law? Two criteria are obvious but still very important: 1) The geography of Greek law. Not only the law of Athens, of Gortyn, of Sparta. We need a scheme where informations coming from the whole Greek world may find their place (Hansen, A Catalogue of Poleis, doesn't pay attention to private law).

2) The historical approach. Against the tendency to restrain it to Athens in the fourth century BC, we must try to put all informations concerning Greek private law in a chronological series (from Mycenae to Justinian). The challenge is not to "fill in the gaps" (Todd, Shape, 33), but to reconstruct fragments of codes or of legal practice moving from a largely common terminology which is to find in literary and epigraphical sources. The study of Greek legal terminology should bring the Gesellschaft to publish a Dictionary of Greek legal terms (like Preisigke) 2. To perform the task 1) we must be able to collect all relevant sources. The most important steps in this direction are the collections of epigraphical sources (with translation and commentary) concerning procedure from particular zones of Greece, like IPArk for Arkadia by Taeuber and Thuer (Attica by Thuer is forthcoming) and the Alexandrinoi nomoi by Julie Velissaropoulos. A new commented edition of the Cretan inscriptions will be published soon by Gagarin and Perlman. But we need much more: first of all a collection of the Athenian laws documented by literary and epigraphical sources. This could be performed by a group of members of the Gesellschaft. A different, as well very useful, way has been followed by Lene Rubinstein, through her collections of sources concerning a specific topic, like the volunteer accuser or the execution of judgments, or by Léopold Migeotte (L'emprunt public).

3. At same time we have to check the corpus of principles or doctrines which represent the scholarly heritage of the last century, being aware that we don't have a shared theoretical framework or an "overall structure of the system" (Todd, Shape, p.15), like the pandectistic system for Roman law. It is quite amazing that, after the "Greek Law of Sale" by Pringsheim, no monographs on contracts have been written, and after "Eigentum und Besitz" by Kraenzlein no monographs on ownership. We have only articles on the interpretation of single sources or groups of sources: this is true also for the Symposia. One could say that the awareness of the absence of ancient juridical conceptualization discouraged theoretical research on the "juristische Denkformen", as H.J. Wolff proposed them. After Wolff indeed not only his theories haven't been checked but no new attempt has been made to explore this field. I'll try to discuss some points concerning the main theoretical topics (like "ownership" and "obligations").

4. The problem of a new organization of the scholars, which study Greek law, is to be discussed: many of us ("historical" members of the Gesellschaft) are unsatisfied with the structure of the Symposion.


Lene Rubenstein, Royal Holloway, University of London
Summary Fines

This paper will examine the epigraphical evidence for the discretion granted to officials to impose and exact penalties without prior reference to a court in the Greek cities in the late classical and early Hellenistic world. I shall focus first and foremost on the epigraphical material from Greek communities other than Athens. The discussion will treat some of the methodological problems that arise in connection with our use of this material. I shall also attempt to map out the contexts in which officials were given authority to impose sanctions summarily and the mechanisms by the communities concerned attempted to prevent abuse of their powers. It will be discussed to what extent the practice of bestowing powers on officials to impose summary penalties may have reflected wider constitutional principles. It will be suggested that summary justice dispensed by polis officials, as a practical measure, was not a characteristic of any particular form of government.


Gerhard Thür, Universität Graz, Emeritus
The Future of Classical Oratory

In this paper I will not furnish new scientific results, rather my aim is to establish new didactic methods in classics and law based on my previous investigations. Studying classical oratory can contribute to social communication. Today, in practical life everybody faces the situation to persuade or convince an audience. In teaching classical oratory not rhetorical theory but practice is demanded. The first step of such a course is analyzing a court speech — best examples are the Athenian ones — among all participants: in several term papers students reconstruct and discuss the facts presented by the speaker, his legal arguments and the possible different view of the opponent. Then the group separates into the roles of a jurisdictional magistrate and the two parties, the plaintiff and the defendant with supporters on both sides. The parties separately prepare the outlines of their arguments. Later, in an anakrisis held by the magistrate, they disclose to each other their written documents (statutes, witness depositions etc.). Finally the parties write and memorize their speeches and perform the trial before a larger audience acting the part of judges, who cast their secret votes. The trial is conducted strictly according to the Athenian pattern.

I will discuss some examples, the necessary equipment, and a guidebook for the rules. The Austin series "Oratory of Classical Greece" will be an excellent basis for this project.


Julie Velissaropoulos-Karakostas, University of Athens
Soft Law in Ancient Greece?

I am fully aware of the danger of anachronism immanent in the attempt to identify in ancient Greece a legal form corresponding to modern soft law or even in seeking concepts analogous to legal pluralism or customary forms of law, of the kind, breadth and longevity of the lex mercatoria. Nevertheless, this is exactly what I wish to attempt, with the reservation that the object of my inquiry is not the origins or the construction of a genealogy of soft law, but rather the identification of related phenomena affirming the view of Grant Gilmore that the development of institutions is not always linear. It frequently makes a full circle, thus returning to its starting point.

Is it plausible, without fear of anachronism, to speak of globalization and the consequent emergence of soft law(s) from the times of Alexander's successors onwards? I think it indeed is, with two provisos: Firstly, that we acknowledge that the geographical space to which our concept of globalization refers, is limited to and coincides with the eastern part of the Mediterranean basin; and secondly admit that 'hard law' never managed to satisfy the needs of multicultural societies, like those of the Hellenistic East, even when they endorse the dominant mode of cultural expression. Even in the context of monocultural societies, as in the case of traditional cities, the consequences of being different would never have the same intensity and meet with the same opposition as in 5th century Athens.


Robert Wallace, Northwestern University
Administering justice in ancient Athens: framework and core principles

The first part of my presentation critiques the standard view that Greek (and in particular Athenian) law was far more concerned with specifying judicial procedures than with punishing offenses. This view is based especially on the brief and indirect way many laws mention crimes and punishments, in contrast to their typically elaborate details on the procedures to be followed in the administration of justice. I shall argue that the reason why Attic penal laws typically say little about offenses but much about procedures is that even in classical Athens the concept of defining terms emerged only toward the end of the fourth century, and the Athenians were aware that any such effort in their laws could not be inclusive. Explaining the details of an offense was the function of the indictment, which a magistrate had to accept as relevant to the statute under which it was brought. As for procedure, the Athenians necessarily had to set out in detail the procedures to be followed in each type of case, because they lacked general procedural laws. Each law specified its procedures (which might be idiosyncratic), as otherwise cases could not be adjudicated. For example, the procedure involved in "showing" (phainein) something to a magistrate varied from statute to statute: no general statute detailed a single "phasis procedure." Therefore, the disparity in length between substantive and procedural components of Greek laws need not imply that the Greeks thought procedures more important than punishing offenses. Other considerations will confirm that this is not the case.

The second part of my paper outlines an argument that the administration of justice at Athens was even systematically organized ("shaped") not by procedural or substantive law but in accordance with democratic principles and community interests. Many scholars have posited problems with Athens' administration of justice, including sycophancy, appeals to the dikasts' emotions, and irrelevant material in court speeches. Many such "problems" were a consequence of the system's democratic principles and community orientation, and were not always construed as problems.