The republication of Draco's law on homicide

Classical Quarterly

Volumn 54, Issue 2, 2004, Pages 451-460

  Gallia, Andrew B ^a  

^a UNIVERSITY OF MINNESOTA   (United States)

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[No Author keywords available]

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EID: 67650115463     PISSN: 00098388     EISSN: 14716844     Source Type: Journal    
DOI: 10.1093/clquaj/bmh051     Document Type: Article

References (69)

1. 3 104 (= ML 86), lines 1-9.
2. The most useful discussion of these lines is that of R. S. Stroud, Drakon's Law on Homicide (Berkeley, 1968), 19-30.
3. To cite a single example, M. Gagarin, Drakon and Early Athenian Homicide Law (New Haven, 1981), 1:
4. 'In 409/8 B.C., during a period of general investigation into and revision of the laws of their city, the Athenians passed a decree . . .'. The character of this wider project has been the subject of numerous specialist studies, including: P. J. Rhodes, 'The Athenian code of laws, 410-399 B.C.', JHS 111 (1991), 87-100;
5. N. Robertson, 'The laws of Athens, 410-399 B. C. : the evidence for review and publication', JHS 110 (1990), 43-75;
6. K. Clinton, 'The nature of late fifth-century revision of the Athenian law code', in Studies in Attic Epigraphy, History, and Topography Presented to Eugene Vanderpool (Princeton, 1982), 27-37;
7. A. R. W. Harrison, 'Law-making at Athens at the End of the fifth century B. C. ', JHS 75 (1955), 26-35.
8. On the significance of this process in the development of the Athenian political consciousness, see especially the discussion of M. Ostwald, From Popular Sovereignty to the Sovereignty of Law (Berkeley, 1986), 337 ff.
9. Cf. Thuc. 8. 67. 1, with the analyses of A. Andrewes, A Historical Commentary on Thucydides 5 (Oxford, 1981), 164-5.
10. P. J. Rhodes, A Commentary on the Aristotelian Athenaion Politeia (Oxford, 1981), 373-7.
11. For the interpretation of the slogan patrios politeia as opportunistic propaganda, see C. Hignett, A History of the Athenian Constitution to the End of the Fifth Century B. C. (Oxford, 1952), 5-7;
12. and K. R. Walters, 'The "ancestral constitution" and fourth-century historiography in Athens', AJAH 1 (1976), 129-44.
13. arguing against the views of A. Fuks, The Ancestral Constitution. Four Studies in Athenian Party Politics at the End of the Fifth Century B. C. (London, 1953).
14. Note also the insightful remarks of M. I. Finley, 'The ancestral constitution', in The Use and Abuse of History (London, 1975), 34-59.
15. These are not to be identified with the nomothetai mentioned by Thucydides (8. 97. 2), appointed during the intermediate regime of the Five Thousand, as is suggested by Ostwald (n. 2), 407.
16. See Stroud (n. 1), 22-3 and Rhodes (n. 2), 89.
17. Ath Pol. 7. 1;
18. Plut. Sol. 17.
19. For an analysis of the possible legal grounds for prosecution, see the discussion by S. C. Todd, 'Lysias Against Nikomakhos: the fate of the expert in Athenian law', in L. Foxhall and A. D. E. Lewis (edd. ), Greek Law in Its Political Setting: Justifications not Justice (Oxford, 1996), 101-31, at 104-6.
20. For these dates, Stroud (n. 1), 23. Lysias will have counted the years of Nicomachus' tenures inclusively.
21. Harrison (n. 2), 30.
22. Clinton (n. 2), 29;
23. cf. Rhodes (n. 2), 90-1.
24. Rhodes (n. 2), 92;
25. Todd (n. 7), 115.
26. On the problems associated with locating and obtaining legal texts at the end of the fifth century and the need for a consistent compilation of laws, see J. P. Sickinger, Public Records and Archives in Classical Athens (Chapel Hill, 1999), 95-7;
27. A. Boegehold, 'The establishment of a central archive at Athens', AJA 76 (1972), 29.
28. Rhodes (n. 2), 92-3. Lysias insinuates that Nicomachus received payments other than his salary (i. e. bribes) while he performed these tasks: Todd (n. 7), 109. This charge is made explicit at 30. 25. Also on this sentence, cf. The provocative interpretation of the phrase proposed by Robertson (n. 2), 47-9.
29. S. Dow, 'The Athenian calendar of sacrifices: the chronology of Nikomachos' second term', Historia 9 (1960), 270-93, at 271.
30. On the 'sophistry' employed here, see Todd (n. 7), 110.
31. Rhodes (n. 2), 89.
32. Todd (n. 7), 110.
33. On the relationship between these inscriptions and the work of the anagrapheis, see Robertson (n. 2), 52-60. It is not clear whether the act of compilation always resulted in a new inscription or not. In the case of Nicomachus' second term, compilation does not seem to have been separate from publication. Although dissatisfied with the outcome of Nicomachus' research, his accuser was unable to hold him accountable until after the laws were inscribed on stelai already, such that he can observe, 'when we make sacrifices according to the stelai which he has produced, many rites are dissolved' (30. 21:
34. For an interpretation, see A. Fingarette, 'A new look at the Wall of Nikomakhos', Hesperia 40 (1971), 330-5.
35. along with the physical description of S. Dow, 'The walls inscribed with Nikomakhos' law code', Hesperia 30 (1961), 60-8.
36. 3 105, the 'charter of the new democracy', on which see H. T. Wade-Gery, 'Studies in Attic inscriptions of the fifth century B. C. ', BSA 33 (1932-3), 101-35, at 113-22.
37. On the various dates of the laws in this compilation, see P. J. Rhodes, The Athenian Boule (Oxford, 1972), 198.
38. 2 114', JHS 87 (1967), 132.
39. See esp. Lys. 30. 28-30. Ostwald (n. 2), 415-16 and Clinton (n. 2), 28-9 suggest that the anagrapheis were mere copyists, and that any substantive decisions about the laws were made by a more responsible board of syngrapheis or by the boule itself. The existence of a separate board of syngrapheis in this period is, however, far from certain: Stroud (n. 1), 27-8.
40. Rhodes (n. 2), 93.
41. Robertson (n. 2), 56.
42. The classic example occurs in Demosthenes' speech Against Aristocrates (23. 28), where provisions for a trial before the heliaia are anachronistically attributed to Draco. On this as evidence for the revision of the homicide law by later amendments, see Gagarin (n. 2), 23-9.
43. The argument that follows is essentially a restatement of Stroud (n. 1), 61-4.
44. On the restoration of the heading in line 56 and its implications, see Stroud (n. 1), 58-60.
45. See Stroud (n. 1), 44-5, 51.
46. The reference to (lines 27-8) was antiquated in the middle of the fourth century, leading Demosthenes (23. 39) to speculate about what these markets were like. Stroud (n. 1), 53 suggests that they were already a thing of the past in 409/8. It is less certain that courts of ephetai (mentioned in line 13) had been superseded by the end of the fifth century, as was argued by G. Smith, 'Dicasts in the ephetic courts', CP 19 (1924), 353-8.
47. See now the discussion of E. M. Carawan, EφETAI and Athenian courts for homicide in the age of the orators', CP 86 (1991), 1-16.
48. Stroud (n. 1), 64. Aspirates are consistently indicated in the text of the law itself, but are left out of the prescript: eg. at line 14, but at line 9.
49. The question centres on the unusual use of at the beginning of line 11. Either this was the first word of the Draco's homicide law, or some portion of the law (perhaps that concerning intentional homicide) has been omitted. An argument for the latter case is presented by E. Ruschenbusch, zum Recht Drakons und seiner Bedeutung für das Werden des athenischen Staates', Historia 9 (1960), 129-54, at 130-1.
50. This line is followed by R. Sealey, 'The Athenian courts for homicide', CP 78 (1983), 275-96, at 291-4;
51. Robertson (n. 2), 55;
52. and Rhodes (n. 2), 91. Stroud (n. 1), 37-40 and Gagarin (n. 2), 65-100 offer arguments to the effect that was the first word of Draco's homicide law, but this position has not found wide acceptance.
53. Thucydides tended to downplay the brutality of the Four Hundred, which he did not witness. Note also his dismissal of the bleak description of the situation at Athens under the Four Hundred that was given by Chaireas to the troops at Samos as incendiary fiction (8. 74. 3). Cf. Andrewes, HCT 5,266.
54. See the discussion of R. Sealey, 'The revolution of 411 B. C. ', in Essays in Greek Politics (New York, 1965), 111-32, at 120-2.
55. 3102 (= ML 85). Note in particular the commentary of M. J. Osborne, Naturalization in Athens 2 (Brussels, 1981), 16-21.
56. 2).
57. It is perhaps not surprising that Thucydides does not make the connection, given his attitude towards the popular traditions about Harmodius and Aristogiton (1. 20. 1-2, 6. 53. 3-59). Notice, however, the intriguing parallels between his version of the murder of Phrynichus (8. 92. 2) and that of the murder of Hipparchus recorded in the Ath. Pol. (18. 4-5). In both cases, one of the conspirators is captured and questioned under torture, but still gives no useful information about the plot. Could Thucydides' anonymous Argive accomplice in some way be connected to the legend of Aristogiton?
58. Compare Demophantus' phrase, 'if someone should rise up to form a tyranny or should assist a tyrant' (Andoc. 1. 97:), described as 'more than an accidental echo' by M. Ostwald, 'The Athenian legislation against tyranny and subversion', TAPA 86 (1955), 103-28, at 112.
59. Ostwald (n. 37), 106-8. Ostwald's position is challenged by M. Gagarin, 'The thesmothetai and the earliest Athenian tyranny law', TAPA 111 (1981), 71-7, who would assign the law's authorship to a pre-Draconian board of thesmothetai. However, even if the ancestral thesmia cited by Aristotle antedated Draco, there is no good reason to suppose that its terms were not subsequently incorporated into Draco's written law code.
60. E. M. Carawan, 'Tyranny and outlawry: Athenaion Politeia 16. 10', in R. M. Rosen and J. Farrell (edd. ), Nomodeiktes: Greek Studies in Honor of Martin Ostwald (Ann Arbor, 1993), 305-19.
61. For the suggestion that Draco wrote no other fundamental law outside of the homicide code, see Ruschenbusch (n. 31), 149-51.
62. Also quoted in Dem. 23. 60;
63. see Stroud (n. 1), 57.
64. M. Gagarin, 'Self-defence in Athenian homicide law', GRBS 19 (1978), 111-20, at 116-19. Cf. The argument of Lysias 1. Gagarin ([n. 38], 73) later retracted his inclusion of the tyranny law in this category of 'lawful homicide'.
65. Ostwald (n. 37), 104-6;
66. Carawan (n. 39), 314-16.
67. Cf. Gagarin (n. 38), 72-3.
68. As part of the homicide law, the tyranny provisions would have been retained on the original Draconian axones, which were not altered to reflect later modifications of the homicide code. See Gagarin (n. 2), 23-5;
69. Carawan (n. 39), 309.