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Revenge, Punishment, and Justice in Athenian Homicide Law

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Notes

  1. I am grateful to participants in the workshops in Oslo and in Uppsala for their comments on this paper, and am especially indebted to my colleague, Mirko Canevaro, for his detailed and salutary observations, and to Edward Harris for casting a critical eye over a penultimate draft. I had the honour of presenting an earlier version of the argument as the second D. M. MacDowell Memorial Lecture, University of Glasgow, 2011.

  2. Douglas M. MacDowell, Athenian Homicide Law in the Age of the Orators (Manchester: Manchester University Press, 1963), pp. 62–3, argues that this is a case of bouleusis (planning, plotting) of intentional homicide (phonos hekousios/ek pronoias), while Michael Gagarin, “Bouleusis in Athenian Homicide Law,” in G. Nenci and G. Thür (eds.), Symposion 1988: Vorträge zur griechischen und hellenistischen Rechtsgeschichte (Cologne and Vienna: Böhlau, 1990), pp. 81–99, 94–5 regards it as a straightforward case of intentional homicide. The issue appears to be settled in the latter’s favour by the careful discussion of Edward M. Harris, Democracy and the Rule of Law in Classical Athens: Essays on Law, Society, and Politics (Cambridge: Cambridge University Press, 2006), pp. 391–404, esp. pp. 398–9 on this speech.

  3. The Areopagus, a court consisting of former archons, heard all cases of phonos hekousios. [Aristotle] Ath. Pol. 57. 3 indicates that another court heard cases of involuntary homicide (phonos akousios), adding “and also cases of bouleusis.” MacDowell (1963, pp. 64–9) takes this to mean that bouleusis might be of both intentional and involuntary homicide and that all cases of bouleusis were heard at the Palladion; the traditional view (e.g. of Lipsius and Wilamowitz, cited by MacDowell loc. cit.) had been that Ath. Pol. is referring only to bouleusis phonou akousiou (planning of involuntary homicide, i.e. the planning of acts that led unintentionally to the victim’s death); but more recently it has been argued that, though bouleusis could refer to the planning of actions that did result in death (which would be dealt with by the appropriate court, depending on whether the killing was alleged to be intentional or otherwise), its primary reference in practice was to actions that did not (thus covering attempted homicide); such cases would be dealt with by the Palladion. See Harris (2006, pp. 400–2).

  4. Again, MacDowell stipulates bouleusis phonou akousiou (1963, pp. 63–4); but see Gagarin (1990, p. 95); Harris (2006, pp. 399–40).

  5. Apagôgê was a procedure that might be used against killers who trespassed upon the agora or the sacred places from which homicides were banned (Demosthenes 23. 80), or against exiled killers who returned (Demosthenes 23. 28–35, 51–2). For the view that these are the only legitimate uses of apagôgê in homicide cases, see e.g. MacDowell (1963, p. 134); Christopher Carey, “Offence and Procedure in Athenian Law,” in Edward M. Harris and Lene Rubinstein (eds.), The Law and the Courts in Classical Athens (London: Duckworth, 2004), pp. 111–36, p. 125; Mirko Canevaro, “Thieves, Parent Abusers, Draft Dodgers … and Homicides? The Authenticity of Dem. 24. 105,” Historia 62 (2013a), pp. 25–47, esp. pp. 26, 42–3, 46 (rehearsed at Mirko Canevaro, The Documents in the Attic Orators: Laws and Decrees in the Public Speeches of the Demosthenic Corpus (Oxford: Oxford University Press, 2013b), pp. 158–73). For a different view, based mainly on Antiphon 5 and Lysias 13, see Eleni Volonaki, “‘Apagoge’ in Homicide Cases,” Dike 3 (2000), pp. 147–76.

  6. So MacDowell (1963, pp. 19–20); for the view that the speech was composed for a process that never took place, see Edwin Carawan, The Athenian Amnesty and Reconstructing the Law (Oxford: Oxford University Press, 2013), pp. 150–70.

  7. 7 See David D. Phillips, “Trauma ek pronoias in Athenian Law,” Journal of Hellenic Studies 127 (2007), pp. 74–137, esp. pp. 86–8, 99; cf. Canevaro (2013b, p. 43), and for the contrary view, Stephen C. Todd, The Shape of Athenian Law (Oxford: Oxford University Press, 1993), p. 269.

  8. Gabriel Herman, Morality and Behaviour in Democratic Athens: A Social History (Cambridge: Cambridge University Press, 2006), p. 207. Cf. Adriaan Lanni, Law and Justice in the Courts of Classical Athens (Cambridge: Cambridge University Press, 2006), pp. 75, 112.

  9. See the list of all attested offenses and cases in Todd (1993, pp. 102–9).

  10. See Alexander Tulin, Dike Phonou: The Right of Prosecution and Attic Homicide Procedure (Stuttgart: B. G. Teubner, 1996); in response to Tulin’s arguments, Douglas M. MacDowell, in Classical Review 47 (1997), pp. 384–5, withdrew the reservations he had expressed at (1963, pp. 11–18, 94–7).

  11. For this (i.e. the possibility of aphesis), see Demosthenes 37. 59: “If the victim himself before his death releases the murderer from bloodguiltiness, it is not lawful for any of the remaining kinsmen to prosecute.” Cf. Euripides, Hipp. 1442–3, 1448–51 (with Douglas M. MacDowell, “Unintentional Homicide in the Hippolytus,” Rheinisches Museum 111 (1968), pp. 156–8).

  12. MacDowell (1963, p. 148). For an extensive exposition of the alleged role of vengeance and enmity in Athenian homicide law and litigation, see David D. Phillips, Avengers of Blood: Homicide in Athenian Law and Custom from Draco to Demosthenes (Stuttgart: Franz Steiner Verlag, 2008).

  13. MacDowell (1963, pp. 8–11).

  14. See Demosthenes 23. 69 (cf. Aeschines 2. 181–2). Execution (by apotympanismos, being fastened to a board) was possibly public: see Stephen C. Todd, “How to Execute People in Classical Athens,” in Virginia Hunter and Jonathan Edmondson (eds.), Law and Social Status in Classical Athens (Oxford: Oxford University Press, 2000), pp. 31–52, 47–8. That executions for homicide were probably rare is the view of Edwin Carawan, Rhetoric and the Law of Draco (Oxford: Oxford University Press, 1998), p. 149.

  15. See Dracon’s homicide law, IG 1.3 104. 13–19; cf. Demosthenes 21. 43; 23. 72, 77; 37. 58–9; 38. 21–2; Ath. Pol. 57. 3. See further Ernst Heitsch, Aidesis im attischen Strafrecht (Abh. Mainz 1984.1, Wiesbaden: Franz Steiner Verlag, 1984); cf. MacDowell (1963, pp. 123–5); Michael Gagarin, Drakon and Early Athenian Homicide Law (New Haven: Yale University Press, 1981), pp. 48–52, 139–40. For Gagarin, the restriction to cases of phonos akousios did not apply in Dracon’s original law; cf. Carawan (1998, pp. 33–83, esp. pp. 34–6, 81, 151); but contrast Heitsch, op. cit., pp. 12–18.

  16. Cf. MacDowell (1963, p. 123).

  17. See e.g. Carawan (1998, p. 142).

  18. Demosthenes 58. 28: “Not long after he was removed from office, when his brother died by a violent death, Theocrines showed himself so utterly heartless toward him that, when he had made inquiry concerning those who had done the deed, and had learned who they were, he accepted money, and let the matter drop.”

  19. MacDowell (1963, pp. 8–10) regards the episode described in Demosthenes 59. 28–9 as involving the payment of a bribe; but the reference in Harpocration's lexicon to a technical term, hypophonia, for the payment of money to the relatives of a homicide victim with a view to dissuading them from prosecution (MacDowell 1963, p. 9) does not immediately suggest bribery. MacDowell adduces Demosthenes 22. 2, where a relative is prosecuted for impiety for failing to prosecute a killer (1963, pp. 9–10), but this does not entail that settlement before trial should also be regarded as impiety or that failure to prosecute for homicide was an offense in its own right. The idea, however, that homicide creates an objective problem (namely “pollution,” miasma) with major consequences for the entire community may be regarded as creating powerful disincentives against purely interpersonal settlement and as expressing the community’s interests that homicide cases, though left to the deceased’s relatives to initiate, are resolved by due process; see Edward M. Harris, “The Family, the Community, and Murder: The Role of Pollution in Athenian Homicide Law”, in Clifford Ando and Jörg Rüpke (eds.), Public and Private in Ancient Mediterranean Law and Religion (Berlin: Walter de Gruyter, 2015), pp. 11–35.

  20. Cf. Carawan (1998, pp. 112, 272).

  21. For the various aspects of state control, see already Dracon’s homicide law, esp. the protection it afforded a killer who chose exile, 26–9. Cf. Demosthenes 23. 37–43, 51–2 (the exiled killer is not to be pursued or killed, though he may be killed with impunity or arrested if he breaks exile, 28–35); 44–6, 49 (protection for those exiled for involuntary homicide); 69 (the prosecutor can witness the execution of a relative’s killer, but punishment, kolasis, is carried out by the city in the name of its laws); 71–3 (only the law has authority over someone convicted for involuntary homicide; the exile is to leave by a specified route and must be allowed safe passage; he may appeal for aidesis and return); 80 (regulations specifying limits on the prosecutor’s actions and a degree of protection for those prosecuted by apagôgê). See Canevaro (2013b, pp. 55–64). According to Demosthenes, the general principle of Athenian homicide law is “to prevent an endless succession of timôriai” (ἵνα μὴ … ἀπέραντοι τῶν ἀτυχημάτων αἱ τιμωρίαι γίγνωνται, 23. 39). Cf. (e.g.) David Cohen, “Crime, Punishment, and the Rule of Law in Classical Athens,” in Michael Gagarin and David Cohen (eds.), The Cambridge Companion to Ancient Greek Law (Cambridge: Cambridge University Press, 2005), pp. 211–35, 227–8. On the many ways in which a dikê phonou differed from other kinds of private suit (dikê), including the belief in pollution (n. 19 above), see Harris (2015).

  22. I use the word “feud” in the everyday sense of a protracted cycle of retaliation or persistent mutual hostility (OED s.v. 2). Edward M. Harris, The Rule of Law in Action in Democratic Athens (Oxford: Oxford University Press, 2013), pp. 76–8 draws on anthropological studies to restrict the term to hostilities between two groups (OED s.v. 3), but he himself uses it in its ordinary sense elsewhere in the relevant chapter of his book, and I see no need for prescriptive redefinition of the word.

  23. See David Cohen, Law, Violence, and Community in Classical Athens (Cambridge: Cambridge University Press, 1995), passim.

  24. See Kenneth J. Dover, Greek Popular Morality in the time of Plato and Aristotle (Oxford: Blackwell, 1974), p. 182; Cohen (1995, pp. 61–86); Peter J. Rhodes, “Enmity in Fourth-Century Athens,” in Paul Cartledge, Paul Millett, and Sitta von Reden (eds.), Kosmos: Essays in Order, Conflict, and Community in Classical Athens (Cambridge: Cambridge University Press, 1998), pp. 144–61. The importance of the distinction between private and public cases is emphasized by Asako Kurihara, “Personal Enmity as a Motivation in Forensic Speeches,” Classical Quarterly 53 (2003), pp. 464–77. For instances in public cases, see e.g. Aeschines 1.2 (“very often private enmities correct public abuses”); [Demosthenes] 53.2 (“I thought it the most outrageous thing ever seen among men, that I should myself suffer the wrong, but that another should lend his name on behalf of me, the one wronged; and that this would then serve as presumptive proof to my adversaries that I am lying whenever I speak to you of our enmity”). In such cases, however, it is in fact more common to find statements that public cases should not be subject to private enmities: see e.g. Lysias 31. 2, Demosthenes, 18. 12–16 (cf. 143), 21. 7–8, 23. 1, 5, 190; Lycurgus 1. 6; with Kurihara, op. cit., pp. 468–9, 471–3, 476; Harris (2013, pp. 61–2, 68).

  25. On Lysias 10, see Todd (1993, pp. 258–9); cf. e.g. the ongoing feud between Demosthenes and Meidias, Douglas M. MacDowell, Demosthenes against Meidias (Oration 21) (Oxford: Oxford University Press, 1990), pp. 1–13; Cohen (1995, pp. 87–118). It is, however, important to set this phenomenon in context – it occurs, but is by no means all-pervasive: see Lene Rubinstein, Litigation and Co-operation: Supporting Speakers in the Courts of Classical Athens (Stuttgart: Franz Steiner Verlag, 2000), pp. 179–80; Harris (2013, pp. 65–6, 68–76, 79–98).

  26. Todd (1993, p. 153).

  27. The Areopagus in particular had a reputation for expertise and judgement, and procedures in homicide cases were felt to demand high standards of seriousness and relevance (MacDowell 1963, pp. 42–4, 100). This less a matter of formal differences in the rules governing the Areopagus and other courts (MacDowell 1963, p. 43; Lanni 2006, pp. 75–114), since the importance of relevance was recognized (e.g. in the dikasts’ oath, but also by litigants themselves) in other courts too, than of the Areopagus’ reputation for competence in enforcing these rules. See Peter J. Rhodes, “Keeping to the Point,” in Edward M. Harris and Lene Rubinstein (eds.), The Law and the Courts in Classical Athens (London: Duckworth, 2004), pp. 137–58; Harris (2013, pp. 102–3, 114, 127–37).

  28. See Antiphon 6. 34–6, 39–40.

  29. See Isocrates 18. 52–4 (in context of a property dispute, Callimachus charges Cratinus with killing a slave woman; Cratinus produces the “deceased,” alive and kicking, at his trial); [Demosthenes] (i.e. Apollodorus) 59. 9–10 (Stephanus has allegedly been bribed by Apollodorus’ enemies to accuse him of involuntary homicide of a slave woman).

  30. See Demosthenes 23. 53, with Canevaro (2013b, pp. 64–70).

  31. See Lysias 1. 30–1, with the law quoted at Demosthenes 23. 53 (“in intercourse with his wife, or mother, or sister, or daughter, or concubine kept for procreation of legitimate children”); also Ath. Pol. 57. 3; Aeschines 1. 91; Plutarch, Sol. 23. 1.

  32. Demosthenes 23. 60; cf. the law itself, IG 1.3 104. 37–8. For this interpretation, see Canevaro (2013b 70–1); cf. ibid. 60–1.

  33. Michael Gagarin, “Self-Defense in Athenian Homicide Law,” Greek, Roman, and Byzantine Studies 19 (1978), pp. 111–20.

  34. See Herman (2006, pp. 168–73, 403).

  35. See Demosthenes 21. 75. This would license a blow in return for a blow, but killing only where one believed that one’s life was in danger; cf. Edward M. Harris, Demosthenes, Speeches 20–22 (Austin: University of Texas Press, 2008), p. 113; Edward M. Harris, “Is Oedipus Guilty? Sophocles and Athenian Homicide Law,” in Edward M. Harris, Delfim F. Leão, and Peter J. Rhodes (eds.), Law and Drama in Ancient Greece (London: Bloomsbury, 2010), pp. 122–46, p. 136; Harris (2013, p. 186).

  36. See Lysias 1. 49; Aristophanes, Nub. 1083; Plut. 168; Xenophon, Mem. 2. 1. 5.

  37. See [Demosthenes] 59. 66.

  38. Ath. Pol. 57. 3.

  39. For typical modern formulations, see Mary Margaret Mackenzie, Plato on Punishment (Berkeley and Los Angeles: University of California Press, 1981), pp. 5–17; Trevor J. Saunders, Plato’s Penal Code: Tradition, Controversy, and Reform in Greek Penology (Oxford: Oxford University Press, 1991), pp. 21–2 (with pp. 21–32 in general on the application of such criteria in Arthur W. H. Adkins, Merit and Responsibility: A Study in Greek Values (Oxford: Oxford University Press, 1960) and Mackenzie 1980); Danielle S. Allen, The World of Prometheus: The Politics of Punishing in Democratic Athens (Princeton: Princeton University Press, 2000), pp. 18–19 (with pp. 15–38 in general). For Mackenzie (op. cit., pp. 10–12) “revenge is characterized as a transaction taking place between individuals” (p. 11 n. 27), whereas punishment must be institutionalized, carried out in the name of an (impersonal and impartial) authority, and imposed on the offender as a penalty (rather than as the “price” payable for the advantage of offending); victims have no authority to punish.

  40. See Allen (2000, p. 21): “Our intuitive distinction between ‘revenge’ and ‘punishment’ [that ‘punishment is legitimate, but revenge is not’, p. 18] breaks down in the face of the [Athenian] record.” Cf. ibid. n. 23: “The definitions of ‘revenge’ and ‘punishment’ do not even capture contemporary penal practices” (or, one might add, contemporary English usage either, in which many forms of simple interpersonal retaliation can be described as “punishment,” and (for example) a busy schedule at work can, in the absence of an offense, an offender, and a punitive authority, be described as “punishing”). I do not discuss here the many cogent criticisms of the penology of contemporary societies or of current theories of punishment, but it is indeed relevant to note that many contemporary legal and political thinkers do not share the view of “punishment” as an uncontroversially civilized and “advanced” notion that is held by both camps in our debate, those who characterize Athenian practice as “revenge” and those who describe it as “punishment.”

  41. Thus Allen (see previous note) recognizes the inadequacy of the distinction between revenge and punishment, but then proceeds to use “punishment” as the default category. The danger of equivocation that this entails is apparent when, in her discussion of Pindar’s fifth Nemean (2000, pp. 100–1), she applies the term “punishment” both to the retaliation of Acastus’ wife when Peleus spurns her sexual advances and to Acastus’ attempt to kill Peleus as a result of his wife’s false accusation of rape. Allen has insisted that Greek timôria resembles “punishment” when it is used to enforce widely accepted social norms; but though it is a perfectly legitimate colloquial use of the English terminology to say that the wife of Acastus “wishes to punish” Peleus (Allen, op. cit., p. 100), it is not a widely accepted social norm that a wife whose attempt to persuade a virtuous young man to have sex with her has failed is entitled to retaliate by plotting his death. There is an important distinction to be made here, and a role for the category of “revenge” that is not being given its due. Cf. her p. 135: “Modern worries about vendetta are based on … anxiety about the valorization of anger. For that matter, we moderns generally expect that vendettas will arise when anger is made the basis for responses to wrongdoing. Where anger is a legitimate ground for punishing, one act of punishment will constantly lead to another since those who are punished will become angry at the loss of honour entailed in their own punishment and with then try to punish in turn.” But if one act of punishment constantly leads to another it is moot whether we are talking about punishment at all – if one believes that one has been punished, then there is nothing for one “to punish in turn.” At the very least, Allen’s use of the relevant terms here is non-standard. For different reasons (i.e. because the timôria that Athenian litigants seek is pursued “in conformity with the laws of their state and through the medium of… the proper agents of that state’s power and authority”), Herman too (2006, pp. 190–1) insists that such timôria “has very little to do with ‘primitive’ vengeance and a great deal to do with what we would call punishment.” A substantial section of Herman’s book is devoted to the alleged failure of scholars who engage in conceptual analysis of Greek social and ethical terminology to avoid the pitfall of “the fusion of moral norms” (p. 158), i.e. imposing modern categories on ancient realities. Herman makes no attempt to analyze the concept of timôria by investigating its usage; yet there is a clear “fusion of moral norms” in his insistence that in legal contexts timôria is not revenge, but punishment (and repeated inconsistency with the several passages in which he himself uses “revenge” words to translate timôria words, e.g. pp. 191, 397).

  42. See also the Appendix in Lene Rubinstein, “Stirring up Dikastic Anger,” in Douglas L. Cairns and Ronald A. Knox (eds.), Law, Rhetoric and Comedy in Classical Athens: Essays in Honour of Douglas M. MacDowell (Swansea: Classical Press of Wales, 2004), pp. 187–203, 196–200, which gives the distribution of these terms (together with words for “hatred” and “anger”) in all forensic speeches, public/private and prosecution/defence.

  43. Antiphon 1. 27 (offender receives timôria); 5. 93 (timôria for offenses, genitive); Lysias 12. 70 (timôria extracted from the offender).

  44. For the victim (dative of interest): Antiphon 1. 3, 24; 5. 79, 88; on behalf of the victim, hyper + genitive: Antiphon 5. 95; 6. 6; Lysias 1. 47; 12. 94, 100; 13. 1, 41, 42, 74–5.

  45. Antiphon 1. 5 (using the possessive genitive); cf. 1. 21 (timôria given to the victim).

  46. This is not to imply the simplistic, “zero-sum” notion of timê that one still occasionally encounters; for further discussion, see Douglas L. Cairns, “Honour and Shame: Modern Controversies and Ancient Values,” Critical Quarterly 53.1 (2011), pp. 1–19.

  47. See Rhetoric 1369b12–14: “There is a difference between timôria and kolasis; the latter is inflicted in the interest of the sufferer, the former in the interest of him who inflicts it, that he may obtain satisfaction (ἵνα πληρωθῇ).”

  48. Demosthenes 23. 69: though the victim may witness the imposition of the penalty, “only the laws and the appointed officers have power over the man for punishment (kolasai).”

  49. Stephen C. Todd, A Commentary on Lysias: Speeches 1–11 (Oxford: Oxford University Press, 2007), p. 90, chooses “redress” as a translation precisely because of the inadequacy of both “punishment” and “revenge,” but does not go into detail.

  50. When, in modern jurisdictions, the law fails to address the needs of victims and their families, families will continue to seek “justice for so-and-so.” What an Athenian had to pursue by initiating a prosecution in his own person sometimes has to be pursued by private prosecution even in modern states, when the institutions of the state are felt to have failed victims and their families – witness the prosecutions initiated by the parents of Stephen Lawrence (murdered in 1993; private prosecution initiated 1994; failed 1996) and (successfully) by the families of the 29 victims of the 1998 Omagh bombing from 2000–2009. What the Lawrence family and the Omagh families feel when justice fails is presumably what all relatives feel until justice is done. This will be comparable, in my view, to what relatives of Athenian homicide victims will have felt in seeking the timôria that they believed was their due and their duty.

  51. See e.g. Antiphon 1. 29 (“if they are able and have time before they die, they summon their friends and relatives, call them to witness, tell them who the murderers are, and charge them to obtain timôria for them for the wrong that they have suffered,” ἐπισκήπτουσι τιμωρῆσαι σφίσιν αὐτοῖς ἠδικημένοις); Lysias 13. 41–2 (“Dionysodorus … referred to this man Agoratus as responsible for his death, and charged me and Dionysius, his brother here, and all his friends to timôrein Agoratus on his behalf; and he charged his wife, believing her to be with child by him, that if she should bear a son she should tell the child that Agoratus had taken his father's life, and should bid him timôrein Agoratus on his behalf as his killer”). Note that what the victim in Antiphon 1. 29 is explicitly said to want is timôria for the injustice he has suffered.

  52. Demosthenes 47. 70: ἄλλῃ δὲ εἴ πῃ βούλει, τιμωροῦ.

  53. Cf. his opening gambit in presenting his killing of Eratosthenes as the imposition of a lawful penalty (zêmia) in 1. 1: “I should set great store, gentlemen, on your judging this matter in the same way as you would if it had happened to you. For I know that, if you had the same opinion about others as about yourselves, every one of you would be angry [aganaktein] at what has been done; indeed, you would all consider the penalties for those who do such things to be too lenient.”

  54. Lysias 13. 1–2, 92–4, 97.

  55. See Antiphon 1. 21 (legal process enables the timôria to which the victim is entitled, axios, on account of the adikia he has suffered; dikasts as well as prosecutors are agents of timôria); Lysias 1. 2, 5, 31 (victim’s rights guaranteed by law).

  56. See Antiphon 1. 3 (timôria for both the laws and the victim: τιμωρῆσαι πρῶτον μὲν τοῖς νόμοις τοῖς ὑμετέροις … δεύτερον δ᾽ ἐκείνῳ τῷ τεθνηκότι), 24 (“I am prosecuting to ensure that she pays for her crime and to obtain timôria for our father and your laws (τιμωρήσω τῷ τε πατρὶ τῷ ἡμετέρῳ καὶ τοῖς νόμοις τοῖς ὑμετέροις); in this you should support me one and all, if what I say is true”); Lysias 12. 94 (the dikasts as dêmos in its judicial capacity are urged to seek timôria on their own behalf); 13. 48 (remember what the Thirty did to you as individuals and to the city in general, and extract timôria), 51 (the rejected notion that the Thirty, in putting their victims to death, were pursuing timôria on behalf of the polis), 76 (timôria against Agoratus for his offenses against the city), 78 (timôria for those who wronged the dêmos), 95 (remember what the Thirty did to you as individuals and to the polis and impose timôria).

  57. For timôria for adikia against the polis, see Lysias 13. 2–3, 78, 82–4; for adikia against the victim: Antiphon 1. 21, 27, 29; 5. 79–80, 88; 6. 6–7; Lysias 1. 2, 39.

  58. See e.g. Herodotus 2. 120. 5: The Trojan war shows “how great acts of injustice attract great timôriai from the gods” (ὡς τῶν μεγάλων ἀδικημάτων μεγάλαι εἰσὶ καὶ αἱ τιμωρίαι παρὰ τῶν θεῶν).

  59. See e.g. Hipponax 115. 15 W; Sappho 1. 19–20 L-P; Theognis 1283. Cf. Lionel Pearson, Popular Ethics in Ancient Greece (Stanford: Stanford University Press, 1962), p. 17 and passim.

  60. On the role of anger in Athenian litigation, see Rubinstein (2004), “Evoking Anger through Pity: Portraits of the Vulnerable and Defenceless in Attic Oratory,” in Angelos Chaniotis and Pierre Ducrey (eds.), Unveiling Emotions II: Emotions in Greece and Rome: Texts, Images, Material Culture (Stuttgart:Franz Steiner Verlag, 2013), pp. 136–65 – more nuanced and discriminating than Allen (2000). See also Ed Sanders, “‘He is a Liar, a Bounder, and a Cad’: The Arousal of Hostile Emotions in Attic Forensic Oratory,” in Angelos Chaniotis (ed.), Unveiling Emotions: Sources and Methods for the Study of Emotions in the Greek World (Stuttgart: Franz Steiner Verlag, 2012), pp. 359–87, 364–9.

  61. That anger is a regular response to adikia in Greek is too obvious to require documentation; it emerges uncontroversially in the passing remark about the ferocity of those who are angry at unjust treatment at Lysias 12. 20 (n. 69 below).

  62. See Rubinstein (2013); cf. Sanders (2012, pp. 361–2 and passim).

  63. Rubinstein (2004).

  64. Ibid., p. 192.

  65. Ibid., pp. 188, 190.

  66. Ibid., p. 192.

  67. Ibid., p. 191.

  68. Ibid., p. 190; cf. (Rubinstein 2013, pp. 135, 141–3).

  69. The dikasts’ anger is also implicated in the statement at §20 that the Thirty despoiled the wealth of Lysias’ family with the kind of ruthlessness one finds in those who are angry at some great injustice. That the services of Lysias’ family to the city did not in any way warrant such treatment (ibid.) reinforces the message that the adikêmata are those of the Thirty themselves, and anger the appropriate response.

  70. Quoted in n. 53 above.

  71. His opening invitation to the dikasts to put themselves in his place and share his anger (1. 1 once more; cf. n. 53 above) implies that his own anger, like that of any victim of such an offense, is self-evident. Cf. his claim that his enmity towards Eratosthenes stems from no pre-existing grievance, but only from the latter’s seduction of his wife (1. 4). Note, too, his general presentation of Eratosthenes’ actions as hybris (1. 2, 4, 16, 25), and cf. Sanders (2012), Rubinstein (2013). There are also two incidental uses of orgê words (§12 of the speaker’s anger at his wife when she was reluctant to feed their child, §15 of the anger of another women, seduced by Eratosthenes in the past, but now abandoned and aggrieved, feeling herself wronged, ἀδικεῖσθαι).

  72. Lysias 1. 2, 5, 31 (bis), 41, 42, 47.

  73. ἐγὼ μὲν οὖν, ὦ ἄνδρες, οὐκ ἰδίαν ὑπὲρ ἐμαυτοῦ νομίζω ταύτην γενέσθαι τὴν τιμωρίαν, ἀλλ’ ὑπὲρ τῆς πόλεως ἁπάσης· οἱ γὰρ τοιαῦτα πράττοντες, ὁρῶντες οἷα τὰ ἆθλα πρόκειται τῶν τοιούτων ἁμαρτημάτων, ἧττον εἰς τοὺς ἄλλους ἐξαμαρτήσονται, ἐὰν καὶ ὑμᾶς ὁρῶσι τὴν αὐτὴν γνώμην ἔχοντας. εἰ δὲ μή, πολὺ κάλλιον τοὺς μὲν κειμένους νόμους ἐξαλεῖψαι, ἑτέρους δὲ θεῖναι, οἵτινες τοὺς μὲν φυλάττοντας τὰς ἑαυτῶν γυναῖκας ταῖς ζημίαις ζημιώσουσι, τοῖς δὲ βουλομένοις εἰς αὐτὰς ἁμαρτάνειν πολλὴν ἄδειαν ποιήσουσι. πολὺ γὰρ οὕτω δικαιότερον ἢ ὑπὸ τῶν νόμων τοὺς πολίτας ἐνεδρεύεσθαι, οἳ κελεύουσι μέν, ἐάν τις μοιχὸν λάβῃ, ὅ τι ἂν οὖν βούληται χρῆσθαι, οἱ δ’ ἀγῶνες δεινότεροι τοῖς ἀδικουμένοις καθεστήκασιν ἢ τοῖς παρὰ τοὺς νόμους τὰς ἀλλοτρίας καταισχύνουσι γυναῖκας. ἐγὼ γὰρ νῦν καὶ περὶ τοῦ σώματος καὶ περὶ τῶν χρημάτων καὶ περὶ τῶν ἄλλων ἁπάντων κινδυνεύω, ὅτι τοῖς τῆς πόλεως νόμοις ἐπειθόμην.

  74. As Rubinstein shows (2004, p. 194) appeals to orgê in prosecution speeches in private suits tend to focus on widely accepted forms of antisocial behaviour; thus explicit appeals to orgê in both public and private cases tend to focus on offenses against the common good.

  75. On the relation and interaction between those “reactive attitudes” which express our ethical attitudes towards others (e.g. indignation, sympathy) and those which express and assert our concern for ourselves (e.g. anger, grief), see Peter F. Strawson, “Freedom and Resentment,” Proceedings of the British Academy 48 (1962), pp. 1–25, reprinted in Freedom and Resentment and Other Essays (London: Routledge, 1974). There is, of course, a wider and vigorous contemporary debate, into which we cannot enter here, on the relation between emotion (on the one hand) and legal and moral norms (on the other): for a brief and stimulating discussion, with relevant bibliography, see Ronald De Sousa, “Really, What Else is There? Emotions, Value, and Morality,” Critical Quarterly 50.4 (2008), pp. 12–23. See also the monographs by Jesse Prinz, The Emotional Construction of Morals (Oxford: Oxford University Press, 2007) and John Deigh, Emotions, Values, and the Law (Oxford: Oxford University Press, 2008), and the essays in Carla Bagnoli (ed.), Morality and the Emotions (Oxford: Oxford University Press, 2011).

  76. Cf. Stephen Johnstone, Disputes and Democracy: The Consequences of Litigation in Ancient Athens (Austin: University of Texas Press, 1999), esp. pp. 126–7.

  77. For the differential treatment of citizens and resident aliens in homicide law, see above, text to n. 38.

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    D. L. Cairns

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Cairns, D.L. Revenge, Punishment, and Justice in Athenian Homicide Law. J Value Inquiry 49, 645–665 (2015). https://doi.org/10.1007/s10790-015-9522-9

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