Atimia and Outlawry in Archaic and Classical Greece

Christopher Joyce

Atimia and Outlawry in Archaic and Classical Greece

2018, Atimia and Outlawry in Archaic and Classical Greece

This article challenges the commonly held belief that atimia in its earliest Greek usage meant exile, arguing instead that atimia and outlawry were always two entirely distinct, though not mutually exclusive, concepts. It is often claimed that atimia originated as a penalty of death or exile, but that over time its harshness became modified so that those who suffered under its restrictions could not be killed or assaulted with impunity. A careful study of the evidence will show that atimia never meant outlawry, and moreover, its archaic cognates do not imply that in early times to lose timê was the same as losing membership in a political community. Rather, atimazesthai entailed the loss of social honour and status which was an all-encompassing value in the aristocratic societies of archaic Greece. Atimia in the Classical period is similarly a loss of rights (timai), and because penalties and conditions such as exile and outlawry can be easily described, in Greek, as involving the loss of prerogatives (timai), they are conceptually forms of atimia. However, in the legal language of democratic Athens atimia is and always was something distinct from exile, and this legal distinction went back to the very earliest times.

polis, The Journal for Ancient Greek Political Thought 35 (2018) 33-60 brill.com/polis Atimia and Outlawry in Archaic and Classical Greece Christopher Joyce Teacher of Classics, The Haberdashers’ Aske’s Boys’ School, Butterfly Lane, Elstree, Hertfordshire, WD6 3AF, U.K. [email protected] Abstract This article challenges the commonly held belief that atimia in its earliest Greek usage meant exile, arguing instead that atimia and outlawry were always two entirely distinct, though not mutually exclusive, concepts. It is often claimed that atimia originated as a penalty of death or exile, but that over time its harshness became modified so that those who suffered under its restrictions could not be killed or assaulted with impunity. A careful study of the evidence will show that atimia never meant outlawry, and moreover, its archaic cognates do not imply that in early times to lose timê was the same as losing membership in a political community. Rather, atimazesthai entailed the loss of social honour and status which was an all-encompassing value in the aristocratic societies of archaic Greece. Atimia in the Classical period is similarly a loss of rights (timai), and because penalties and conditions such as exile and outlawry can be easily described, in Greek, as involving the loss of prerogatives (timai), they are conceptually forms of atimia. However, in the legal language of democratic Athens atimia is and always was something distinct from exile, and this legal distinction went back to the very earliest times. Keywords atimia – epitimia – exile – death penalty – Arthmius of Zeleia – Solon – Draco – Cylon – rule of law – tyranny – citizenship © koninklijke brill nv, leiden, 2018 | doi 10.1163/20512996-12340139 34 I Joyce Modern Treatments Ever since Heinrich Swoboda published his important and influential study of the famous fifth-century Athenian decree against Arthmius of Zeleia, the broad scholarly consensus has held that between the archaic and classical periods an evolution in the meaning and application of the term ἄτιμος and its cognates in Greek usage occurred.1 On the basis of Homeric attestations, Swoboda argued that ἄτιμος as a legal category originally meant ‘with impunity’ or ‘without any compensatory fine’, whereby any member of an archaic community who was declared ἄτιμος could be killed without recourse to justice or vindication, and went on to claim that over time the term acquired a more technical sense, so that in the classical period a decree of ἀτιμία did not, as previously, in effect impose a death sentence, but simply deprived the person against whom it was levelled of special rights and privileges. Subsequent scholarship has been divided over the question of when this semantic shift happened,2 but with two important exceptions most scholars of the first half of the twentieth century concurred that a shift of meaning did take place, and that by the fourth century ἀτιμία had evolved from its original sense of ‘outlawry’ to a more moderate penalty which resulted in a citizen losing specified rights.3 One of those 1 H. Swoboda, ‘Arthmios von Zeleia’, Archaeologisch-epigraphische Mitteilungen, 16 (1) (1893), pp. 49-68; Beiträge zur grieschischen Rechtsgeschichte (Weimar: H. Böhlau, 1905), pp. 1-42 and p. 152. I would like to thank the referees of Polis for their astute comments and remarks on the first draft of this script and for their suggestions for improvement; all remaining errors and inconsistencies are my own. I would also like to pay special thanks to Edward Harris for having taken time to read through earlier drafts of this paper and for his insightful remarks and comments. 2 Swoboda himself dated the change to period before Solon claiming that the neutrality law cited at [Arist.] Ath.Pol. 8.5 is genuine and invokes a softer sense of atimia than ‘exile’ (see ‘Arthmios’ cited at n.1, pp. 57-60). This provoked disagreement among those who otherwise accepted his ‘evolutionary’ approach; see especially U.E. Paoli, Studi di diritto attico (Florence: Università degli studi di Firenze, 1930), pp. 307-12; and E. Ruschenbusch, Untersuchungen zur Geschichte des athenischen Strafrechts (Cologne: H. Böhlau, 1968), pp. 20-3. Paoli did not accept wholesale the claim that the atimia ever lost the sense of ‘outlawry’ completely and maintained that even in the fourth century a distinction remained between what he termed ‘atimia normale’, which implied a loss of rights, and ‘atimia proscrittiva’ which entailed a harsher penalty of exile. Ruschenbusch accepted Swoboda’s thesis in its essence but disagreed that the terminus post quem could be pushed as high as Solon’s archonship, arguing from the terms of the decree against Arthmius, who was a non-Athenian, and which he took to be a genuine decree of the first half of the fifth century, that atimia did not change its meaning until after c.460. 3 Those who followed Swoboda without any significant difference of position include G. Busolt, Griechische Staatskunde (Munich: C.H.Beck, 1920), vol. 1, pp. 230-3; U. Kahrstedt, Griechisches Polis, The Journal for Ancient Greek Political Thought 35 (2018) 33-60 Atimia and Outlawry in Archaic and Classical Greece 35 exceptions was Theodor Thalheim, who objected that the term ἀτιμάζοντες as attested in the Odyssey meant no more than simply ‘dishonouring’ and not ‘outlawing’ or such like; furthermore, we find ἄτιμος frequently in conjunction with other words and phrases like πολέμιος or τεθνάτω or νηποινεὶ πασχέτω which are not identical in meaning, but rather which add to the disgrace of ἀτιμία a penalty which incorporates death or exile.4 Nevertheless, aside from Thalheim and Lipsius, Swoboda’s view became virtually canonical for about a century.5 Recent decades have witnessed renewed discussion of the meaning, application and usage of ἀτιμία. Perhaps the most significant single contribution in the last fifty years was the seminal study by Mogens Hansen of the various legal procedures available at Athens against different categories of offenders, including ἄτιμοι.6 Hansen re-affirmed Swoboda’s basic position that ἀτιμία in the archaic period inflicted death or exile and that it later became a more limited type of penalty; but Hansen was rather more sceptical than Swoboda or Busolt that the term as used in later times completely divested itself of the sense of impunity, observing that many ἄτιμοι in the fifth and fourth centuries Staatsrecht (Göttingen: Vaendehoeck & Ruprecht, 1922), p. 121; A.R.W. Harrison, The Law of Athens (Oxford: Oxford University Press, 1971), vol. 2, p. 169. 4 Th. Thalheim, ‘Ἀτιμία’ in Paulys Realencyclopädie der classischen Altertumswissenschaft vol. II,2 (Stuttgart, 1896), cols. 2101-2104; see also J.H. Lipsius, Das Attische Recht und Rechtsverfahren, vol. 2.1 (Leipzig: O.R. Reisland, 1908), p. 396. More recently the important and widely neglected observations of Thalheim and Lipsius have been revived by M. Youni, ‘The different Categories of Unpunished Killing and the term ΑΤΙΜΟΣ in Ancient Greek Law’ (Symposion, 2001), pp. 117-37 at pp. 124-5. See also the discussion of E. Beneviste, Le vocabulaire des institutions indo-européennes (Paris: Les Éditions de Minuit, 1969), pp. 43-55. 5 More recent scholars who have with varying degrees of modification accepted the idea that the sense of atimia evolved over time include: P.J. Rhodes, A Commentary on the Aristotelian Athenaion Politeia (Oxford and New York: Oxford University Press, 1981), pp. 158, 221-2; S. Vleminck, ‘La valeur d’ ἀτιμία dans le droit grec ancien’, Les Études Classiques, 49 (1981), pp. 251-65; R. Sealey, ‘How citizenship and the city began at Athens’, American Journal of Ancient History, 8 (1983), pp. 106-10; S. Humphreys, ‘A historical approach to Drakon’s law on homicide’, Symposion, 1990 (1991), pp. 33-5; S.C. Todd, The Shape of Athenian Law (Oxford: Oxford University Press, 1993), p. 365; V.J. Hunter, Policing Athens: Social Control in the Attic Lawsuits, 420-320 B.C. (Princeton: Princeton University Press, 1994), p. 63; R.W. Wallace, ‘Unconvicted or Potential Atimoi in Ancient Athens’, Dike, 1 (1998), pp. 63-78; C. Patterson, ‘Athenian Citizenship Law’, in M. Gagarin and D. Cohen (ed.), The Cambridge Companion to Ancient Greek Law (Cambridge and New York: Cambridge University Press, 2005), p. 274; P. Liddel, Civic Obligation and Individual Liberty in Ancient Athens (Oxford and New York: Oxford University Press, 2007), pp. 186-7. 6 M.H. Hansen, Apagoge, Endeixis, and Ephegesis against Kakourgoi, Atimoi, and Pheugontes (Odense: Odense University Classical Studies, 1976), pp. 55-90. Polis, The Journal for Ancient Greek Political Thought 35 (2018) 33-60 36 Joyce at Athens, the most notorious example being the orator Andocides, chose to leave the city rather than endure the disgrace which ἀτιμία incurred and thereby run the risk of being assaulted or even killed. Hansen maintained on the strength of various passages from the fourth century, most notably Plato’s Gorgias (486b-c and 508c-d), that in the classical age ἄτιμοι could still be vulnerable to violence, and whilst adhering partially to Swoboda’s ‘evolutionary’ doctrine, argued instead that ‘whereas in classical times it was possible with impunity to assault an atimos, in the archaic period it must have been almost a civil duty’ (my italics).7 As Brook Manville has commented subsequently, to distinguish between archaic and classical usages purely on the basis that one involved ‘civil duty’ and the other ‘civic spirit’ is hardly persuasive; besides, the notion that the boundaries of ἀτιμία in the classical age lacked a precise legal definition is a priori.8 Others, including Manville, have followed the principle that, in early times, ἀτιμία meant ‘loss of honour’, and as time passed this took on a more legal definition. Like Hansen, Manville endorsed Swoboda’s view that ἀτιμία in the archaic period inflicted outlawry but, unlike Hansen, held that the difference between the archaic and classical uses was not that one was harsher than the other, but that whereas archaic usage was couched in moral terms, in classical times the penalty acquired a clearer legal definition which was intimately linked to citizenship.9 Others still have maintained that ἀτιμία never lost its moral or social sense and that even in classical times we observe it being used with moral, rather than legal, connotations. For example, Elisabetta Poddighe has argued that ἀτιμία began as a moral term which from the time of Solon began to acquire a legal sense, and the idea that ἀτιμία retained its extra-legal sense beyond has since been argued by Evelyn van t’Wout.10 More recently, Sviatoslav Dmitriev has maintained that even in 7 8 9 10 Hansen, Apagoge, Endeixis, and Ephegesis, p. 75. B. Manville, ‘Solon’s law of stasis and atimia in archaic Athens’, Transactions of the American Philological Association, 110 (1980), pp. 213-21 at p. 215. Manville, ‘Solon’s law’ and The Origins of Citizenship in Ancient Athens (Princeton: Princeton University Press, 1990), p. 147. E. Poddighe, ‘L’ἀτιμία nel διάγραμμα di Cirene: la definizione della cittadinanza tra morale e diritto alla fine del IV secolo A.C.’, Aevum, 75 (2001), pp. 37-55; ‘Ateniesi infami (atimoi) ed ex Ateniesi senza i requisiti (apepsephismenoi)’, Annali della Facoltà di Lettere e Filosofia dell’ Università di Cagliari, 61 (2006), pp. 9-12; P.E. van ᾿t Wout, ‘From oathswearing to entrenchment clause: the introduction of atimia-terminology in legal inscriptions’, in A.P.M.H. Lardinois and J. Blok (ed.), Sacred Words: Orality, Literacy, and Religion (Leiden and Boston: Brill, 2011), pp. 144-5; ‘Neglected evidence for the nature of atimia: Agora P 17615 and DTA 107’, Zeitschrift für Papyrologie und Epigraphik, 176 (2011), pp. 126-34. Polis, The Journal for Ancient Greek Political Thought 35 (2018) 33-60 Atimia and Outlawry in Archaic and Classical Greece 37 the fourth and third centuries, ἀτιμία even in a legal sense could inflict death or exile.11 Thus, since Swoboda, the debate has hinged on the extent to which atimia and outlawry became conceptually and semantically distinct, with some, like Ruschenbusch and, perhaps to a lesser extent, Hansen, claiming that an evolution in the meaning of atimia occurred between the archaic and classical ages, but with others like Dmitriev claiming that atimia never divested itself of its archaic meaning of outlawry. But at the heart of this discussion lies one assumption which, with one very important exception, has remained virtually unchallenged since the time of Swoboda, namely that atimia entailed outlawry in its earliest sense and application.12 But the evidence supporting that crucial assumption is exceedingly thin. As soon as atimia appears in literature, there is no conclusive reason to think that it ever meant outlawry. As far as the Homeric poems are concerned, there is little evidence that ἀτιμάζεσθαι and φεύγειν were really compatible terms; though regularly used in conjunction with respect to those who had fallen foul of society, the one had the sense of dishonour, the other exile.13 At this point a cautionary note must be sounded: it is frequently the case that verbs, adjectives and nouns of the same stem carry a variety of connotations, and as David Whitehead argued, abstract nouns like atimia could have a meaning and effect somewhat different from the adjective atimos.14 There is consequently a limit to the use which can reasonably made of the Homeric attestations of the cognates of atimia when seeking to reconstruct a picture of what atimia might have meant in the archaic age. Meanwhile, the legal documents which scholars have often adduced to argue that ἀτιμία in its original sense meant something akin to outlawry admit of a range of possible interpretations and do not demonstrate, with any of the conclusive force which Swoboda and Hansen both asserted, that ἄτιμοι at any point in history suffered impunity under the law. Maria Youni has perceptively demonstrated that this sense cannot be extrapolated from the famous 11 12 13 14 S. Dmitriev, ‘Athenian atimia and legislation against tyranny and subversion’, Classical Quarterly, 65 (2015), pp. 35-50. The exception is Youni, ‘The different Categories of Unpunished Killing’, whose insights into the uses of the phrase ἄτιμος τεθνάτω in the decree against Arthmius of Zeleia and other comparable documents have not been given sufficient consideration in more recent treatments. A. Maffi, ‘Ἀτιμάζειν e φεύγειν nei poemi omerici’, Symposion, 1979 (1983), pp. 251-60. Maffi argued that the verb ἀτιμάζειν implies in a moral sense the ‘giudizio negativo emesso dalla collettività’ and defined it as ‘privare di onori (ἀ- τιμή = senza onore). D. Whitehead, ‘Cardinal virtues. The language of public approbation in democratic Athens’, Classica et Mediaevalia, 44 (1993), pp. 37-74. Polis, The Journal for Ancient Greek Political Thought 35 (2018) 33-60 38 Joyce decree against Arthmius of Zeleia, to which I will return shortly. This paper will expand her arguments by looking at other documents where it has casually been assumed that such a sense is meant, but where a more careful reading of the evidence in question might suggest otherwise. There are admittedly some fifth- and fourth-century sources which, when taken at face value, might indicate that ἄτιμοι had no legal rights. These however must be read with extreme care. It is undeniably true that for many ἄτιμοι, the prospect of staying in Athens, especially in times of political crisis when the mood of the community was at fever-pitch, would have been unbearable, and so, in practice, exile was the more desirable option for them than staying in disgrace. But it is equally clear from his second speech (On His Return) that the decree of Isotimides which made Andocides ἄτιμος did not in any official or legal capacity inflict exile; in §10 he stipulates that by his own choice he left Athens because the dangers to himself were too great for it to be safe to remain. Furthermore, the two passages from Plato’s Gorgias to which Hansen drew attention, and on which he built much of his argument, need to be read in context: Gorg. 486c links ἀτιμία not to outlawry but to confiscation of property, as it implies that ἄτιμοι continued to live in the community; Gorg. 508c-d talks at greater length about receiving physical threats, losing property, being driven into exile or even being put to death, but does not clarify if any of those indignities were the legal consequences of ἀτιμία or whether, instead, being ἄτιμος resulted in a loss of credibility and put one more at the whim of a hostile jury in the event of a further trial. These references in the Gorgias to ἀτιμία do not furnish good historical evidence because they are both heavily rhetorical and harp on the bleakness of a philosopher’s fate, and on the nobility of Socrates choosing such a course in the face of ‘common sense’ arguments to the contrary. If we examine carefully the legal texts in which the terms are used, we will conclude that to be ἄτιμος meant to lose specified rights for specified violations of specified statutes, not to lose one’s place in the civic community or to be denied all legal protection. To assert such a claim is to read a modern assumption about the primitive nature of Athenian justice into ancient texts which, in fact, give just the opposite impression. Rhetorically, of course, Plato and Demosthenes could bewail the fall from grace which an ἄτιμος underwent, but it is crucial not to conflate rhetoric with sound legal argument. In what follows I propose to argue that ἀτιμία need not at any stage in the history of its evolution have entailed outlawry. From Homer onwards there is a clear conceptual distinction in social terminology between being ἄτιμος on the one hand and being a fugitive or outlaw on the other. That is not to deny that one could be both. The Homeric poems show that those who fled their Polis, The Journal for Ancient Greek Political Thought 35 (2018) 33-60 Atimia and Outlawry in Archaic and Classical Greece 39 communities were normally thought of as ἄτιμοι, but it is important here to emphasise that being ἄτιμος does not automatically entail that one takes flight, as there are plenty of examples where becoming ἄτιμος denotes nothing more than loss of dignity. As for the archaic period at Athens, none of the legal documents on which scholars have based their assumptions about the early meaning of ἀτιμία show with any certainty that to be ἄτιμος in the sixth century or before meant the same as being an exile or lacking all form of legal protection. What little we can gather from early material indicates that even at an early stage a conceptual separation might have existed between the two categories of exile and ἀτιμία, and that whilst all exiles were probably ἄτιμοι, not all ἄτιμοι were necessarily exiles. Besides, it is questionable whether in the archaic age Greek communities had yet developed a clear-cut system of citizenship rights which could be withdrawn as soon as someone became atimos. The early laws of the Greek poleis were concerned first and foremost with what might be labelled in modern terminology ‘civil law’, such as inheritance, homicide, sexual offences, legitimacy, debts, and dowries, and in the second place the constitutional laws which defined the various competences of political, deliberative and juridical bodies within those early communities; but there is precious little evidence that early communities in Greece possessed, much less set down in writing, clearly defined ‘citizenship rights’, which even as late as the fourth century at Athens were still under construction.15 If so, the development of atimia as a legal term which entailed deprivation of citizen rights and prerogatives must be seen not so much in terms of an evolution away from an older sense of outlawry, which is impossible to demonstrate or document firmly, but as part of a developing understanding of citizen rights in democratic societies in the fifth and fourth centuries, where the violation of particular statutes entailed the loss of rights spelled out in law. In arguing my position, I will approach the question in three stages: i) the meaning of ἀτιμάζειν and its cognates as attested in Greek literary sources from Homer onward; ii) archaic laws; and iii) ἀτιμία as a legal concept fifth- and fourth-century Athenian law and practice. 15 Against the commonly held view that Solon created a concept of Athenian citizenship, see now A. Duplouy, ‘Les prétendues classes censitaires soloniennes: à propos de la citoyenneté athénienne archaïque’, Annales. Histoire, Sciences Sociales, 69 (2014), pp. 629-58. This has been convincingly answered by M. Faraguna, ‘Citizen Registers in Archaic Greece: The Evidence Reconsidered’, in A.P. Matthaiou and M. Papazarkadas (ed.), ΑΞΩΝ: Studies in Honor of Ronald S. Stroud (Athens: Greek Epigraphic Society, 2015), pp. 649-67. Polis, The Journal for Ancient Greek Political Thought 35 (2018) 33-60 40 II Joyce The Evidence of the Homeric Poems It has long been recognised that the society envisaged by Homer was an honour-based culture in which the preserving τιμή was paramount. In a recent discussion, Douglas Cairns has argued that in Homer to preserve τιμή was not merely to defend one’s individual reputation but, in a wider overarching sense, to defend an entire moral code.16 Having τιμή could denote a range of recognition: prowess in war (Il. 9.319; 12.310-21, social rank (Il. 1.278), wealth (Od. 14.205-6), nobility of birth (Il. 9.237-9), age (Il. 9.160-1), skill or profession (Od. 8.480; Il. 5.78; 16.605), and friendship (Il. 9.630-1; 17.576-7; 22.233-5; Od. 19.247-8). But what is also clear is that to preserve one’s τιμή involved not only showing off wealth, rank or might in battle, but behaving in a way which upheld and respected the τιμή of other members of society (Il. 23.494; Od. 6.286; 15. 69-71). Cairns writes: ‘[h]onour in Homer is an ethic of specific interpersonal obligations enforced by popular disapproval and individual sentiment, yet it also allows the impartial, universalisable perspective that is essential for any ethical system worthy of the name.’17 To behave with dishonour is therefore much more than to lose social status or standing but involves a subversion of the moral norms which held aristocratic society together. One of the methodological limitations we face is that the noun ἀτιμία appears only once in the Homeric poems. Swoboda argued that when combined with τεθνάτω the adjective ἄτιμος had the sense of ‘without compensation’, and from there inferred that in its earliest sense ἀτιμία resulted in death or exile. The dangers of trying to infer the meaning of an abstract noun from its etymological counterparts as verbs and adjectives have been noted, yet excepting Thalheim and more recently Youni, Swoboda’s inferences have barely been questioned. Even if we can suppose that such inferences can realistically be made, what is most noteworthy in the Homeric poems is how little support there is for the view that words etymologically linked to ἀτιμία can imply banishment. In its most literal sense, the verb ἀτιμάζειν means ‘to remove τιμή’ from a person or group. In the first book of the Iliad Thetis beseeches Zeus to intervene in the dispute between her son Achilles and Agamemnon over rights to the slave-girl Briseis, bidding him τίμησόν μοι υἱὸν (‘honour my son’) and complaining that μιν νῦν γε ἄναξ ἀνδρῶν Ἀγαμέμνων ἠτίμησεν (‘now at least Agamemnon king of men has dishonoured him’).18 The question at stake is the 16 17 18 D.L. Cairns, ‘Honour and Shame: Modern Controversies and Ancient Values’, Critical Quarterly, 53 no. 1 (2012), pp. 23-41. Cairns, ‘Honour and Shame’, at p. 30. Hom. Il. 1.505-7. Polis, The Journal for Ancient Greek Political Thought 35 (2018) 33-60 Atimia and Outlawry in Archaic and Classical Greece 41 rights and honours that were special to a chieftain. A similar sense is attested in Book 9, where Achilles replies to the overtures of the warrior Odysseus that he is unwilling to re-join the war effort because ἐν δὲ ἰῇ τιμῇ ἠμὲν κακὸς ἠδὲ καὶ ἐσθλός (‘in the same honour are we, both cowardly and brave’), where the meaning is that whether we live nobly or as cowards we will be rewarded just the same when we die. In the eighth book of the Odyssey king Alcinous invites Odysseus to offer a portion of the meat to the bard Demodocus, because πᾶσι γὰρ ἀνθρώποισιν ἐπιχθονίοισιν ἀοιδοὶ τιμῆς ἔμμοροί εἰσι καὶ αἰδοῦς (‘of all men who dwell upon the earth bards have their share of honour and dignity’).19 In none of these examples is the matter at stake whether a man should be allowed to remain in society or not. To have τιμή means to enjoy a special status or privilege, and to behave with honour is to show the respect that is due to one who holds τιμή. The retort of Achilles to Odysseus inverts this principle by saying that no man enjoys any privilege, because the outcome of life, death, applies to all regardless of the life led. In Homeric usage to hold τιμή means to hold honour, and, conversely, that deprivation of τιμή entails the loss of that social honour or privilege.20 The sense of ‘privilege’ or ‘status’ for τιμή is the normal one in which we find the term used in tragedy, comedy and prose.21 In a legal sense, the term eventually comes to mean a public office or magistracy and, in some instances, can even refer to a person in authority.22 Though in democratic Athens any adult male citizen could occupy a position of responsibility in the city, the idea that such a position endowed the one who filled it with a special status or privilege was never lost. The purpose of the democracy was to ensure that access to such ‘privileges’ was not reserved for a social or political elite, and that everybody, regardless of his social status, could hold a τιμή. What did it mean to deprive someone of τιμή? In the Odyssey the verb ἀτιμάζειν appears several times to mean ‘to hold in low esteem’, but does not mean ‘to drive from the community’ or ‘to outlaw’.23 In prose it usually implies ill-treatment of another: Andocides 19 20 21 22 23 Hom. Od. 8. 480. On the non-juridical nature of the Homeric usage, see J.-C. Riedinger, ‘Remarques sur la τιμή chez Homère’ Revue des Études Grècques, 89 (1976), pp. 244-64. For a similar view of the meaning of ἀτιμία in Tyrtaeus, see A.W.H. Adkins, Moral Values and Political Behaviour in Ancient Greece: From Homer to the End of the Fifth Century (London: Chatto and Windus, 1972), p. 36; R. Scodel, Epic Facework: Self-Presentation and Social Interaction in Homer (Swansea: The Classical Press of Wales, 2008). See for example Hdt. 1.134; Plat. Rep. 451c, 538e; Laws 837c; Xen. Cyr. 8.8.24; Aesch. Pers. 166; Soph. Ant. 208, 699, where τιμή refers to a special privilege or prerogative. Hdt. 1.59; 7.36; Thuc. 2.63; Xen. Cyr. 1.3.8-9; Plat. Apol. 35b; Isocr. 9.81. Od. 6.283; 21.332; for a longer list of references, with discussion, see Maffi, ‘Ἀτιμάζειν’. Polis, The Journal for Ancient Greek Political Thought 35 (2018) 33-60 42 Joyce uses it to mean ‘bring dishonour upon the city’, echoing Sophocles who uses the verb in reference to slander.24 When observed in this particular sense it tends to appear in the passive: Demosthenes shows sympathy to any who when provoked (ἀτιμαζόμενος) takes the law into his own hands; Herodotus uses the term in a similar way when describing the behaviour of Peisistratus towards the daughter of Megacles with whom he engaged in an unnatural sexual practice to avoid producing offspring who would inherit the curse of the Alcmeonids.25 The cognate ἀτιμᾶν is attested in Homer to mean ‘to disgrace’, but never is there any sense when used that legal protection has been denied or that the person who has been disgraced has been flung out of a community.26 Only very rarely in archaic literature does the noun form ἀτιμία actually appear (Hom. Od. 13.142; Tyrt. Fr. 10 line 10; Alc. Fr. 311). In none of those instances does it equate with exile or outlawry. As with the Homeric usage it means simply dishonour, and that is the sense we find in the lyric attestations. On that basis, it seems hazardous to concur with the majority since Swoboda that ἀτιμία originally meant outlawry.27 From Homer onwards, the verbs ἀτιμάζειν and ἀτιμᾶν are therefore normally used in a moral sense to imply the imparting of disgrace or dishonour, rather than in a legal one to imply the infliction of exile or outlawry. The question which follows is whether their noun cognate, ἀτιμία, ever acquired the latter meaning. Here the Homeric poems are not especially helpful because, where attested, ἀτιμία tends to be used in a social rather than in a legal sense, as is also the case in Pindar and tragedy, where the sense of ‘disgrace’, rather than ‘exile’ or ‘flight’, is meant.28 The noun crops up in literary prose for the first time in Herodotus and later in Plato and the Attic orators. Here, while moving to a more legal definition in places, in the great majority of instances it rarely means more than infamy or social degradation.29 By the fifth century, however, while the moral sense of ἀτιμία was never lost and can even be found 24 25 26 27 28 29 Andoc. 4.31; Soph. OT 340. Dem. 21.74; Hdt. 1.61. Il. 1.11; 8.163; Od. 16.307; 21.99; 23.28; see also Hes. Works and Days 185. Swoboda’s treatment of the problem in fact presupposes the very thesis it needs to prove. If, as he claimed, the word ἄτιμος came to be replaced over the course of time by the words πολέμιος and ἀγώγιμος, we need some independent proof that ἄτιμος ever meant ‘public enemy’ or the like, to which Swoboda could not point. What his thesis further leaves unexplained is why from Solon’s time ἄτιμος began to acquire a different meaning from what it supposedly meant in pre-Solonian Athens. Od. 13.142; Pind. Olynth. 4.21; Aesch. Eum. 796; Soph. Electr. 1035; Eur. Heracl. 72. Hdt. 3.3; 7.11; Plat. Hipparch. 229c; Polit. 309a; Rep. 492d; Dem. 18.205; 21.23; Arist. Pol. 1336b11. Polis, The Journal for Ancient Greek Political Thought 35 (2018) 33-60 Atimia and Outlawry in Archaic and Classical Greece 43 on ostraca sherds where its sense cannot be legal,30 we begin to find the word used much more often as a legal concept. In the Eumenides of Aeschylus the words οὐδ᾽ ἀτιμίας κύρω are put into the mouth of the chorus to suggest a loss of privilege, and, as we will see in greater detail in the third section, the term when attested by the orators usually implies that specified civic rights have been revoked.31 As a legal term, ἀτιμία in the classical period means ‘loss of rights’, but there is surprisingly little to connect it to the concept of exile or expulsion. Its counterpart ἐπιτιμία, which involved a reversal of ἀτιμία, never seems to have meant ‘return from exile’: Demosthenes and Aeschines refer to moneys collected for recovery of full civic rights; neither of them suggest that the funds were used to bring people back from abroad.32 Historians and orators in the fifth and fourth centuries often used the term ἐπιτίμοι in reference to Athenian citizens who enjoyed full civic rights,33 but this usage does not imply necessarily that to be ἐπιτίμος meant that one had previously gone into exile and later come back when the decree of exile had been reversed.34 In every documented usage, outlawry is never associated with ἀτιμία. III Early Legal Texts Early literary sources connect ἀτιμία not explicitly with outlawry but with the loss of particular rights and privileges which defined a man’s standing in relation to a community or society. If, as Cairns argues, timê was a communal notion which described both the recognition that the community granted an individual and an individual’s worth vis-à-vis the community’s expectations of his behaviour, then it makes perfect sense that atimia should be the withdrawal by the community of particular rights or prerogatives in response to particular 30 31 32 33 34 See Agora P 17615 with the discussion of van t’Wout (n.10, ‘Neglected Evidence’), pp. 127-30. Aech. Eum. 394. For the sense of ‘loss of civic rights’, see Andoc. 1.74; Xen. Lac. Pol. 9.6; Dem. 9.44. Dem. 21.106; Aechin. 2.88. Thuc. 5.34; Xen. Hell. 2.2.11; Andoc. 1.73. This point is often missed by modern historians who treat epitimos as if it means ‘enfranchised’ or ‘full-rights-citizen’, a recent example being J.H. Blok, Citizenship in Classical Athens (Cambridge: Cambridge University Press, 2017). In line with the views stated here, and against the communis opinio, see M. Canevaro, ‘The decree awarding citizenship to the Plataeans [Dem] 59.104’, Greek, Roman and Byzantine Studies, 50 (2010), pp. 337-69, at pp. 353-4; The Documents in the Attic Orators: The Laws and Decrees in the Demosthenic Corpus (Oxford: Oxford University Press, 2013), pp. 203-4. Polis, The Journal for Ancient Greek Political Thought 35 (2018) 33-60 44 Joyce breaches of the communal ‘honour code’.35 Such a dynamic is not necessarily ‘legal’ and ‘institutionalised’, but it is certainly suitable for institutionalisation into a legal mechanism, as we see in Athens from the archaic period onward. Some might object that Homeric epic cannot be used as evidence for what atimia might have meant as a ‘legal’ concept in the archaic age because, unlike legal texts which refer to the laws of specific cities, the Homeric poems use a composite language referring to a shared imagined past. This is to envisage a distinction between a ‘moral’ and a ‘legal’ usage which can be overplayed and exaggerated. What can at any rate legitimately be inferred from early poetry is that ἀτιμία and its cognates had a social meaning which, as later sources show, survived into the classical age and could easily be translated into law. In the Classical period, we have an abundance of evidence for its various legal usages, but the archaic attestations are much sparser. Three archaic Attic laws are often cited to show that ἀτιμία in its oldest sense meant outlawry, but when read carefully none show with conclusive force that in archaic times ἀτιμία and φεύγειν were one and the same, though they may at times have been overlapping concepts. a) Plut. Sol. 19.3: ὁ δὲ τρισκαιδέκατος ἄξων τοῦ Σόλωνος τὸν ὄγδοον ἔχει τῶν νόμων οὕτως αὐτοῖς ὀνόμασι γεγραμμένον. ‘ἀτίμων ὅσοι ἄτιμοι ἦσαν πρὶν ἢ Σόλωνα ἄρξαι, ἐπιτίμους εἶναι πλὴν ὅσοι ἐξ Ἀρείου πάγου ἢ ὅσοι ἐκ τῶν ἐφετῶν ἢ ἐκ πρυτανείου καταδικασθέντες ὑπὸ τῶν βασιλέων ἐπὶ φόνῳ ἢ σφαγαῖσιν ἢ ἐπὶ τυραννίδι ἔφευγον ὅτε ὁ θεσμὸς ἐφάνη ὅδε.’ The thirteenth table of Solon has the eighth of its laws written thus: ‘Of the atimoi, let those who were atimoi before the archonship of Solon be epitimoi, except for those who were fleeing from the Areopagus or from Ephetai or Prytaneum, condemned by the kings for homicide or woundings (?) or tyranny before this law was published.36 35 36 See the article of Cairns, ‘Honour and Shame’; similar points are made in a more general way by K.A. Appiah, The Honor Code: How Moral Revolutions Happen (New York and London: W.W. Norton & Company, 2011). Not everyone will accept the rendition of σφαγαῖσιν as ‘woundings’. There was no legally defined category of σφαγή in Athenian homicide law at any point in history that we can discern, and so any translation of this term can only be a guess. In the most recently published edition of the fragments of Solon’s laws, to reflect a known sub-category of homicide known as τρᾶυμα in the fifth and fourth centuries, σφαγαῖσιν has been rendered ‘wounding’; see D. Leão and P.J. Rhodes, The Laws of Solon: A New Edition with Introduction, Translation and Commentary (London: I.B. Tauris, Limited, 2016), pp. 37-8. It is true that the noun σφαγή is attested in tragedy to refer to an open gushing wound Polis, The Journal for Ancient Greek Political Thought 35 (2018) 33-60 Atimia and Outlawry in Archaic and Classical Greece 45 Plutarch cites the law in the backdrop of a long-standing antiquarian dispute which raged in his own day as to whether the Council of the Areopagus existed before the time of Solon. Ancient scholars were befuddled by the silence of the Draconian laws about the Council of the Areopagus, whereas this law implies that it existed before 594/3. Modern scholars have thrashed through the problem without reaching any final agreement, although since the discovery of the Ath. Pol. most historians have concluded that the Areopagus did predate Solon, discounting Plutarch’s strained explanation.37 My purpose here is not to revisit an old and insoluble problem but to examine the received assumption, which has hardly been questioned to date, that the law implied a conceptual equivalence between ἀτιμία and φεύγειν.38 Swoboda did not discuss this law in any detail, even though of the three archaic texts on which most modern assumptions about archaic ἀτιμία are grounded, this is undoubtedly the most important for his case, since it might at face value be taken to suggest that those declared ἄτιμοι had gone into exile (ἔφευγον).39 Hansen, who defended Swoboda’s understanding of archaic 37 38 39 (Aesch. Agamemn. 1389; Soph. Trach. 573; Eur. Electr. 1228), though the more normal sense is slaughter, mostly but not always in animal or human sacrifices. The question of whether the Areopagus predated the reforms of Solon preoccupied scholars of the nineteenth and early twentieth centuries. For the older view that the Areopagus was a Solonian creation, see A. Philippi, Der Areopag und die Epheten (Berlin, 1884), with his bibliography at v-x for scholarship predating the nineteenth century. With the one notable exception of E. Carawan, Rhetoric and the Law of Draco (Oxford: Oxford University Press, 1998), most since the discovery at Oxyrhinchus have discounted that view and affirmed the earlier existence of the Areopagus; see U. von Wilamowitz-Moellendorff, Aristoteles und Athen (Berlin: Weidmann, 1893), p. 199; G. Glotz, La solidarité de la famille dans la droit criminel en Grèce (Paris: A. Fontemoing: 1904), pp. 301-2; Histoire Grecque, vol. 1 (Paris: A. Fontemoing, 1925), pp. 420-24; G. Busolt and H. Swoboda, Griechische Staatskunde (Munich: C.H. Beck, 1926), pp. 811-9. For the view that this law is a bogus citation, see C. Hignett, A History of the Athenian Constitution (Oxford: Oxford University Press: 1958), pp. 12-27 and p. 303. Hignett rejected this law claiming that its understanding of ἀτιμία is anachronistic, but Hignett was beholden to a conception of ἀτιμία which he had inherited from Swoboda. From a similar theoretical starting point, but reaching an opposite conclusion, Ruschenbusch, Solonos Nomoi. Die Fragmente des solonischen Gesetzwerkes mit einer Text- und Überlieferungsgeschichte (Wiesbaden: Historia Einzelschriften 9, 1966), pp. 147-52, defended the law’s authenticity arguing that ἀτιμία could apply to homicides, though he could point to no evidence from homicide law of the archaic or classical periods that this was the case. More recently, Leão and Rhodes (n.36, loc. cit.) have endorsed Rushenbusch’s reading of the law. See references to Swoboda at n.1. Polis, The Journal for Ancient Greek Political Thought 35 (2018) 33-60 46 Joyce ἀτιμία, quoted the law as supporting evidence but eschewed any detailed discussion of its legal terms.40 Even the latest study, which refers to the law as ‘proof’ of the early sense of ἀτιμία as outlawry, fails to give a clear analysis of its meaning.41 Earlier in the Life of Solon, Plutarch mentions that the poor of Attica had been under the yoke of debt, and that many, through indebtedness, were obliged to yield a sixth of their produce to their creditors, or to pledge their own persons as surety, or to sell their children into slavery, and that Solon was brought in to alleviate their condition.42 Some have argued that Solon’s reforms were less far-reaching than once believed and that his primary achievement was to abolish slavery for debt, not debt bondage.43 But the important point here to note is that those encumbered by debt had not in all cases been obliged to leave Attica, even though for many this may indeed have been the only option.44 Plutarch does not say explicitly that the removal of debt slavery was one of the ways in which under Solon former ἄτιμοι became ἐπιτίμοι. Nevertheless, the wording of this statute shows that ἀτιμία and φεύγειν were entirely different legal concepts. At the start of the nineteenth chapter, in which the law is cited, Plutarch states that the reason for Solon’s decision to create new constitutional bodies was that the people (meaning here ‘the poor’) had become emboldened by its most recent liberation from debt (οἰδοῦντα καὶ θρασυνόμενον τῇ τῶν χρεῶν ἀφέσει) 40 41 42 43 44 Hansen (n.6) at p. 77 cites the ‘amnesty law’ as one of four laws which support Swoboda’s understanding of archaic ἀτιμία, and 78 devotes a short paragraph to the problem, claiming that in the law of Solon ‘homicides are singled out as a special group of atimoi excluded from the amnesty’ and that ‘we have numerous examples of exiled homicides being outlaws’. This is simply to confuse the categories, and fails to address the question of whether being an atimos and an outlaw was one and the same. Dmitriev (n.11) at p. 41 states: ‘It is safe to say … that the earliest Athenian regulations against tyranny and subversion predated Solon’s reforms, because we know that Solon’s amnesty law pardoned all ἄτιμοι, except those punished for murder, slaughter and tyranny.’ To paraphrase the law in those terms is to misrepresent it, since the paraphrase appears to link the penalty of ἀτιμία to a crime committed. The law, however, does not state or imply that ἀτιμία was the consequence of a crime such as murder or tyranny. Plut. Sol. 15-18. E.M. Harris, ‘A New Solution to the Riddle of the Seisachtheia’, in L.G. Mitchell and P.J. Rhodes (ed.), The Development of the Polis in Archaic Greece (London: Routledge, 1997), pp. 103-12; ‘Did Solon abolish debt-bondage?’ Classical Quarterly, 52 (2002), pp. 415-30. At Sol. 15.5, Plutarch quotes a fragment of Solon’s poetry which refers to citizens who no longer uttered Attic speech and were wandering abroad far from their homeland. This is a reference not to citizens who had been condemned under the law for crimes committed but to those who had been sold off into slavery through debt. It would be otiose to connect those with citizens exiled by the Areopagus and Ephetai for homicide and tyranny. Polis, The Journal for Ancient Greek Political Thought 35 (2018) 33-60 Atimia and Outlawry in Archaic and Classical Greece 47 and demanded democratic counterpoises to the authority of older, less democratic, institutions like the Areopagus (Plut. Sol. 19.1).45 The beneficiaries of the amnesty were all whose legal status had previously been diminished, whether by judicial verdicts or by other means.46 The express purpose of the law was to reverse ἀτιμία. Though this might have included ἄτιμοι who had gone into exile as a result of judicial verdicts, we have no firm reason beyond the questionable remark of Plutarch to think that all condemnations before Solon resulted in death, not least since Herodotus specifies that even before Draco the penalty for accessory to tyranny was other than death or exile.47 At any rate, nothing in the quoted law expressly equates ἀτιμία with φεύγειν. If Solon had meant that anyone who had been in exile prior to his archonship with the exception of homicides and would-be tyrants could return to Attica, the law would surely have been phrased differently. But its beneficiaries notably are not ὅσοι ἔφευγον ὅτε ὁ θεσμὸς ἐφάνη ὅδε (‘those in exile when this law was passed’) but rather ὅσοι ἄτιμοι ἦσαν πρὶν ἢ Σόλωνα ἄρξαι (‘those who were atimoi before the archonship of Solon’). The point must surely be that ἀτιμία as a legal category at this time was not co-extensive with φεύγειν as a legal category, because ὅσοι ἔφευγον κτλ. are construed as an exception to the rule that all ἄτιμοι became ἐπιτίμοι. That is 45 46 47 The law refers to two other constitutional bodies, the Ephetai and the Basileis. Those who have denied that the Palladium, Delphinium and Phreatto in the fourth century were Ephetic courts include G. Smith, ‘Dicasts in the Ephetic Courts’, Classical Philology, 19 (1924), pp. 353-8; R. Sealey, ‘The Athenian Courts for Homicide’, Classical Philology, 78 (1983), pp. 294-5; The Justice of the Greeks (Ann Arbor: The University of Michigan Press, 1994), pp. 118-9. More recently it has been suggested that until Solon only the Areopagus, Palladium, and Prytaneum existed, the other two courts being added later; see L. Gagliardi, ‘Ruolo e competenze degli efeti da Draconte all’ età degli oratori’, Dike, 15 (2012), pp. 33-71. The communis opinio, however, agrees with Kenyon’s restoration at Ath. Pol. 57.4; see Harrison, The Law of Athens, pp. 20-2; D.M. MacDowell, Athenian Homicide Law in the Age of the Orators (Manchester: Manchester University Press, 1963), p. 50. Which bodies in pre-Solonian Athens delivered judicial verdicts which resulted in banishment is unclear from the terminology of the law. Grammatically, condemned citizens fled from the Areopagus, the Ephetai, and the Prytaneum, but the participle καταδικασθέντες in reference to the judgement of the kings suggests finality, despite the suggestions of some that this was comparable to the three προδικασίαι in classical times which took place before the Basileus who sat in the Prytaneum (see Antiph. 6.42; [Arist.] Ath. Pol. 57). Yet the finality of the verb καταδίκαζειν in judicial proceedings is suggested by comparison with its attestation as a compound verb in fifth- and fourth-century literary and inscribed texts, where there is no sense that it denotes a pre-trial (Hdt. 1.45; Thuc. 5.49; Xen. Cyr. 3.1.9; Anab. 5.8.21; 6.6.15; Lys. 23.14; Dem. 47.18: Isae. 4.9; 10.24 Plat. Leg. 857a; 958c; Diod. 3.12; 4.26; Luc. Ver. Hist 1.29; IG ii2 1126 line 5). Hdt. 5.71; for a more detailed discussion of this passage, see below. Polis, The Journal for Ancient Greek Political Thought 35 (2018) 33-60 48 Joyce to say, the law does not imply that all ἄτιμοι were exiles, but only that a specified class of ἄτιμοι who happened to have been in exile for an unrelated matter, namely that they had been condemned for homicide, wounding or tyranny by specific courts, could not have had their ἀτιμία reversed. The courts listed are responsible not for the infliction of all types of ἀτιμία, but the only penalties which attach themselves to their jurisdictions are for homicide, wounding and tyranny.48 Far from implying that ἀτιμία and φεύγειν are the same, the implication is that as legal concepts they were distinct. Following Ruschenbusch the law’s authenticity is now accepted almost universally, but it has to be admitted that there are still some strange features.49 Most important among them is the quandary which Plutarch and his contemporaries observed, namely that its implications are incompatible with the silence of Draco’s laws concerning the Areopagus. But for our purposes there is perhaps an even stranger feature, namely that an exemption was made for those who had been previously convicted ἐπὶ τυραννίδι. Who were these criminals? They cannot have been ousted tyrants, as Athens did not oust a tyrant until Hippias over a century later. Moreover, they cannot have been accessories to tyranny, as our three main accounts attest that the Cylonians had been massacred and not tried. The law as preserved is difficult to place in any precise historical context, and it is prima facie unlikely that Plutarch was citing an original text from the axon to which he refers, since elsewhere he states that the monuments on which the laws of Solon were first inscribed had perished by the time he was writing.50 Almost certainly Plutarch was drawing upon an edition of Solon’s laws which had been reinterpreted, and even if the text he was quoting captured the spirit of the original there is no good reason to suppose that the wording as he represents it was a faithful reproduction. The law which came down to Plutarch may have re-calibrated in much later legal language and terminology an earlier statute whose terminology bore little if any resemblance to that which appear in the preserved text. b) Dem. 23.62. ὃς ἂν ἄρχων ἢ ἰδιώτης αἴτιος ᾖ τὸν θεσμὸν συγχυθῆναι τόνδε, ἢ μεταποιήσῃ αὐτόν, ἄτιμον εἶναι καὶ παῖδας ἀτίμους καὶ τὰ ἐκείνου. 48 49 50 It might be objected here that until Solon the penalty for all offences was, according to Plutarch, death. But this is almost certainly a false generalisation, as the entrenchment clause (see below) in the early homicide law shows. For the most recent defence of Ruschenbusch’s reading, see Leão and Rhodes, The Laws of Solon, pp. 37-8. For a full discussion of the ancient evidence for the life expectancy of the axones, see Ruschenbusch, Solonos Nomoi, pp. 37-8; Leão and Rhodes, The Laws of Solon, p. 9. Polis, The Journal for Ancient Greek Political Thought 35 (2018) 33-60 Atimia and Outlawry in Archaic and Classical Greece 49 Any magistrate or private citizen who caused this statute to be undermined, or changes it, shall be atimos, as well as his children and possessions. Scholars disagree whether Demosthenes here quoted from the original law of Draco or a more recent Solonian law which (with modifications) reduplicated the Draconian original.51 Either way, a close study of the MSS shows that this comes from an extremely old law on homicide containing an entrenchment clause forbidding anyone to alter it on pain of becoming ἄτιμος.52 Following Swoboda, Hansen pointed out that not only the person but his property and children fall under the same umbrella, and went on to argue from this that the term must mean ‘unprotected’.53 Elsewhere, Demosthenes quotes another portion of the homicide law which declares that anyone who should physically harm or pursue a convicted homicide who has fled beyond the boundaries of Attica whose goods are ἐπίτιμα will be liable to the same penalty as if he had behaved in a similar manner at home (Dem. 23.44). Using this second reference as an inverse parallel, Hansen inferred that if ἐπίτιμα in reference to the goods of a convicted homicide means ‘protected’, ἄτιμα must mean the reverse. But Demosthenes cites these laws not, as Hansen inferred, to show the merciless nature of Athens’ earliest lawgiver but rather his relative mildness, despite the proverbial harshness of Draco’s legislation. The point is precisely that convicted killers were not completely unprotected even when exiled. Hansen missed a more fundamental point: the law of Draco banished killers, whereas those who changed the law became ἄτιμοι. Like the so-called ‘amnesty law’ of Solon, Draco seems to have distinguished between outlawry and ἀτιμία; there is no evidence, either in the inscribed portions of the Draconian law (IG i3 104) or in the quoted excerpts, that the two concepts overlapped. Hansen concluded from the wording of Dem. 23. 44 (ἐλαύνῃ ἢ φέρῃ ἢ ἄγῃ) that a killer in exile was to all intents and purposes unprotected under the law because his 51 52 53 For the belief that it comes from a Solonian law see: E. Ruschenbusch, Solonos Nomoi, F22 and F93ab; R. Wallace, The Areopagos Council to 307 B.C. (Baltimore: Johns Hopkins University Press, 1989), p. 58. For the contrary view that the entrenchment clause predates Solon, see M. Gagarin, Drakon and Early Athenian Homicide Law (New Haven: Yale University Press, 1981), p. 23; Carawan, Rhetoric, p. 58. The law quoted in the speech of Demosthenes Against Aristocrates is both genuine and very old; see now M. Canevaro, The Documents in the Attic Orators: Laws and Decrees in the Public Speeches of the Demosthenic Corpus (Oxford: Oxford University Press, 2013), pp. 71-3. Hansen, Apagoge, Endeixis, and Ephegesis, at p. 78. Polis, The Journal for Ancient Greek Political Thought 35 (2018) 33-60 50 Joyce property could be pillaged with impunity. The Greek phrase ἐλαύνῃ ἢ φέρῃ ἢ ἄγῃ corresponds exactly with the Latin ferre et agere (‘to despoil for booty’ or ‘to plunder’),54 and so Hansen was not wrong in his interpretation of the text when he implied that the passage has also to do with ‘unprotected property that can be pillaged with impunity’. He was however wrong in drawing the conclusion that being atimos means simply ‘unprotected’. One of the normal prerogatives (timai) of a citizen and of a resident free man was that his property could not be randomly pillaged: the community saw to it that property was protected. Stating that the killer’s goods were ἐπίτιμα is a clear way to assert that he is given the same rights (timai) to the protection of his goods as anyone else in spite of the exile. Thus, the atimia language here is used to describe a situation in which atimia would consist in having one’s goods unprotected, but it does not at all follow that atimos absolutely means ‘unprotected’. c) [Arist.] Ath. Pol. 16.10. ἐάν τινες τυραννεῖν ἐπανιστῶνται [ἐπὶ τυραννίδι] ἢ συγκαθιστῇ τὴν τυραννίδα, ἄτιμον εἶναι καὶ αὐτὸν καὶ γένος. Anyone who rises up to establish a tyranny or who aids and abets a tyranny shall be atimos, both he and his family. The tyranny law quoted by [Aristotle] in his discussion of the Peisistratid regime indicates that from early times the penalty of ἀτιμία was inflicted upon those who aspired to tyranny or collaborated with a tyrant and was extended to his family. Though it is not absolutely certain that this law came from Solon, the prevailing consensus is that it did.55 Curiously, the law is cited as an example of moderation, and if ἀτιμία at this stage meant something akin to exile or banishment, it would hardly be appropriate to have stated that the laws on tyranny were πρᾷοι (‘gentle’). Hansen, following an older argument of Charles Hignett, argued that [Aristotle] had simply misinterpreted the law.56 Yet this assumes what needs to be proved: the law has only been misinterpreted if we are right in the first instance to understand ἀτιμία as exile. Neither the Homeric attestations nor the other two archaic laws surveyed support that understanding. Whilst true that the early portions of the Ath. Pol. are fraught 54 55 56 See Canevaro, ‘The decree awarding citizenship to the Plataeans’, ‘Documents’, pp. 60-1; D.L. Cairns, ‘Revenge, punishment and Athenian homicide law’, The Journal of Value Inquiry, 49 (2015), pp. 645-65, at p. 652. See A. Martina, Solone: testimonianze sulla vita e l’opera (Rome, 1968), p. 208; Ruschenbusch (n.35), p. 81; Leão and Rhodes (n.36). Compare Hignett, History, p. 161. Polis, The Journal for Ancient Greek Political Thought 35 (2018) 33-60 Atimia and Outlawry in Archaic and Classical Greece 51 with inconsistency and misrepresentation, here there is little reason to doubt that its author has understood the law correctly. In modern times, there has been widespread disagreement as to when the earliest laws on tyranny and subversion came about at Athens. Some have pushed the date back before Draco;57 but the majority holds that Draco, who passed his legislation in the wake of the Cylonian conspiracy, was the author of the first anti-tyranny laws, though a small body of opinion holds that the anti-tyranny legislation began with Solon himself.58 With the exception of the law on homicide, which Solon kept, all the other laws of Draco were replaced by milder laws.59 The so-called ‘amnesty law’ implies that under the old Draconian system, the penalty for tyranny was banishment, though it is not immediately clear from the terms as represented in the quotation of Plutarch whether this was the normal penalty meted out for holding a tyranny or merely aspiring to establish one.60 If the older tyranny law of Draco was superseded by a milder law under Solon, a claim which cannot be proved on the basis of the impoverished evidence at our disposal, the penalty prescribed under the new system must have been something less condemnatory, and if the penalty was ἀτιμία as the quoted law states, the only implication can be that ἀτιμία and exile were not one and the same category at the time that the law was passed. This inference drove Swoboda to date the shift in the meaning of ἀτιμία to Solon, but that assumes two things: first that the tyranny laws quoted by [Aristotle] are Solonian, and secondly, even if they are Solonian, that ἀτιμία meant something else in earlier legislation. Neither of those assumptions can be established from the evidence as it stands. 57 58 59 60 See M. Gagarin, ‘The Thesmothetai and the earliest Athenian tyranny law’, Transactions of the American Philological Association, 111 (1981), p. 72. Subsequently Gagarin has taken a more circumspect view of this; see Writing Greek Law (Cambridge and New York: Cambridge University Press, 2008), pp. 115-16. For the view that the anti-tyranny law is Draconian, see: Ostwald (n.60), pp 103 and 108; A.B. Gallia, ‘The republication of Draco’s law on homicide’, Classical Quarterly, 54 (2004), pp. 458-9; F. Bourriot, Recherches sur la nature du génos (Paris: University of Lille, 1976), pp. 310-1. For the view that it is Solonian, see B.D. Meritt, ‘Greek inscriptions’, Hesperia, 21 (1952), p. 358 with n.38. [Arist] Ath. Pol. 7.1; Plut. Sol. 17.1. On the origin of Athenian laws against tyranny, and for different views as to when they originated, see M. Ostwald, ‘The Athenian legislation against tyranny and subversion’, Transactions of the American Philological Association , 86 (1955), pp. 103 and 108; F. Bourriot, Recherches, pp. 310-1; M. Gagarin, ‘The Thesmothetai and the earliest Athenian tyranny law’, Transactions of the American Philological Association, 111 (1981), p. 72; A.B. Gallia, ‘The republication of Draco’s law on homicide’, Classical Quarterly, 54 (2004), pp. 458-9. Polis, The Journal for Ancient Greek Political Thought 35 (2018) 33-60 52 Joyce But let us assume for argument’s sake that the laws cited by [Aristotle] superseded earlier tyranny legislation. Are there good grounds to think that the penalty for tyranny in earlier times was death or exile? It is possible that from early times it was permitted to kill with impunity a man who had successfully subverted the constitution and was later toppled, a penalty which applied right down until the fourth century, as the law of Eucrates of 337/6 (see below) shows, and that this punishment applied to those who succeeded in setting up a tyranny as well as to accessories and other non-successful aspirants. If so, then the archaic tyranny law amounted to a death sentence. But crucially, the earliest evidence we have of a coup at Athens at the end of the seventh century shows that just the reverse was the case. A local noble named Cylon, whose father-in-law was tyrant at Megara, occupied the Acropolis in an attempt to set himself as tyrant at Athens; when the coup failed, his supporters took refuge in the sanctuary of Athena and were starved into submission, whereupon they were massacred at the hands of the Alcmeonid Megacles and his partisans.61 Most significant is Herodotus’ telling of the story, who states explicitly that death was not the normal punishment for this sort of crime (ὑπεγγύους πλὴν θανάτου = liable to all penalties except death). The point Herodotus emphasises is that the outrage was that the Cylonians were killed while taking refuge in a sacred precinct. This must imply that it was not permitted to kill tyrants with impunity. The significance of the episode for Athenian history is that those who killed the Cylonians were guilty ones who incurred pollution, which is the exact reverse of what appeared in the tyranny law of 337/6 which declared the tyrannicide katharos. This incident vitally proves that the interpretation of Ath. Pol. is correct. When the first law on tyranny appeared, its purpose was not to expose aspirants to tyranny to lynching but to impart was evidently the milder penalty of atimia. When the tyranny law was recast in the fourth century, paradoxically the new modification entailed a harsher punishment for tyrants, which was death, but preserved atimia for those who aided and abetted. In truth, we do not know when the first legislation against tyranny came into effect. If, as Martin Ostwald argued, it was Draconian and survived as part of the law on homicide which Solon kept, there cannot have been any change in the meaning of ἀτιμία from the pre-Solonian to the post-Solonian period, assuming of course that ἀτιμία was the penalty under the old Draconian system. Yet Ostwald’s argument was very weak: we have no evidence whatsoever that tyranny and homicide law were part of the same body of law at any stage of Athenian legal history, and certainly the penalties inflicted on Antiphon 61 Hdt. 5.71; Thuc. 1.126; Plut. Sol. 12.1-2. Polis, The Journal for Ancient Greek Political Thought 35 (2018) 33-60 Atimia and Outlawry in Archaic and Classical Greece 53 and Archeptolemus for tyranny after the fall of the Four Hundred made no reference to any law on homicide.62 In any event, the assumption that Solon retained Draco’s tyranny laws is only a priori. If the tyranny legislation did predate Solon, this has little bearing on the question of whether ἀτιμία in the period preceding Solon was harsher than in the period subsequent. Quite possibly Solon re-asserted and maybe expanded existing tyranny laws, passing them off as his own creations as part of his anti-tyranny manifesto. The statements of [Aristotle] and Plutarch that Solon jettisoned all but the homicide law of Draco have to be read with some flexibility, as it is quite likely that some older laws were preserved in the main portions of their content but perhaps adapted slightly, or else reproduced under a different authorship. Whether the tyranny law which [Aristotle] cites came from Solon or before, the argument that ἀτιμία entailed exile is difficult to prove. In short, none of the three laws which we know came from the early lawgivers demonstrate with any force that in the archaic sense the penalty of ἀτιμία necessarily resulted in the death or banishment of its victim. It has to be admitted here that I have not succeeded in establishing a positive definition of what ἀτιμία amounted to in the archaic period, nor is it possible to do so given the poor state of evidence. But what the evidence, fragmentary though it is, does show is that even at this early stage ἀτιμία did not mean exile. The third and final section turns to ἀτιμία in the fourth century and argues that, as in earlier usage, the term ἀτιμία at Athens never entailed the idea of ‘outlawry’, and, while the adjective ἄτιμος and its cognates could still be used in a moral sense to mean ‘dishonoured’ or ‘disgraced’, there is little evidence to connect the penalty of ἀτιμία with withdrawal of legal protection or impunity under the law. IV Atimia in the Fifth and Fourth Centuries Lipsius defined ἀτιμία as ‘Rechtslosigkeit’, Thalheim as ‘Verlust des Anspruchs auf den Schutz der Gesetze’. According to both those definitions, ἀτιμία in the classical period amounted to a limitation on the rights of a citizen.63 Paoli in contrast claimed: ‘Chi era colpito da atimia totale relativa conservava la personalità giuridica e i diritti privati (ma non la loro difesa processuale) e poteva rimanere indisturbato nel territorio della polis.’64 More recently Hansen argued that in the fourth century it was not true that ἄτιμοι enjoyed total protection 62 63 64 [Plut.] Mor. 834a. Lipsius, Das Attische Recht, pp. 930-1; Thalheim, ‘Ἀτιμία’, col. 2101. Paoli, Studi di diritto attico, p. 317. Polis, The Journal for Ancient Greek Political Thought 35 (2018) 33-60 54 Joyce under the law and identified instances where it was not possible for an ἄτιμος to gain redress for wrongs sustained at the hands of enemies.65 Hansen’s main objection was against the widespread assumption that ἄτιμοι were legally protected, and he pointed to evidence which showed that it was legally impossible in the fourth century for ἄτιμοι to access due legal process in the event that person or property had been violated. In this regard, Hansen reaffirmed what earlier scholars, including Paoli, had already recognised, namely that the ordinary legal processes which were available to citizens were unavailable to ἄτιμοι because they were barred from entering temples and sacred areas, including the Agora. This of course was true of private suits (δίκαι), but not of public actions (γραφαί) which could be brought by a third party on behalf of an ἄτιμος.66 Hansen acknowledged that ‘[i]n the case of offences dealt with by public actions other citizens were undoubtedly entitled to initiate proceedings against the offender’, and so while the same legal processes available to ἐπιτίμοι were at least partially unavailable to ἄτιμοι, it is simply untrue that in the fourth century to be ἄτιμος meant that a citizen was legally unprotected. Even so, Hansen claimed that even in the classical age ἀτιμία could entail much more than just a loss of specified citizen rights, and went on to argue that ἄτιμοι were in some situations de facto unprotected under the law so that anyone could assault them with impunity.67 Very recently Hansen’s formulation has been taken to an extreme in an article which claims that even as late as the Hellenistic period a decree of ἀτιμία could de jure as well as de facto result in death or exile for a citizen and his family.68 Dmitriev argues from four pieces of evidence, one of which (the archaic law against tyrants) we have already dealt with, that as in the fifth and fourth centuries, if not beyond, the penalty of ἀτιμία could entail death or banishment. The other three include an inscribed decree from Erythrae dating from the middle of the fifth century, or thereabouts, punishing any who 65 66 67 68 Hansen, Apagoge, Endeixis, and Ephegesis, esp. pp. 55-70. See Lys. 6.24 and Isae. 10.20, both of which indicate that it was not possible for an ἄτιμος to gain legal redress by means of a dike because recourse to public spaces was not open to him. A similar implication is to be found in the speech of Andocides On his Return, where the orator complains that he could not plead his case because he was banned from entering the courts. The same view is shared by P.J. Rhodes, ‘Bastards as Athenian citizens’, Classical Quarterly, 28 (1978), pp. 89-92, at p. 90 of the decree outlawing Arthmius of Zeleia, where the term ἄτιμος is used in reference to a non-Athenian (on this see further below). See also S. Forsdyke, Exile, Ostracism, and Democracy: The Politics of Expulsion in Ancient Greece (Princeton and Oxford: Princeton University Press, 2005), p. 10. See Dmitriev, ‘Athenian atimia and legislation’, esp. pp. 39-44. Polis, The Journal for Ancient Greek Political Thought 35 (2018) 33-60 Atimia and Outlawry in Archaic and Classical Greece 55 tried to set up a tyranny and his progeny with ἀτιμία (IG i3 14), the law to which Andocides refers in the speech On the Mysteries which ordains the killing with impunity of any who seeks tyranny (Andoc.1.95-8; see also Lyc. 1.124-5), and a law from 337/6 which declares ἄτιμος both the Areopagite and his family who ascends the Acropolis when the city is held under by a tyrant (SEG 12.87).69 Only three of those four examples contain the word ἄτιμος, but combining them Dmitriev claims that ἀτιμία could entail outlawry even in the mature democracy. As Dmitriev recognises, the first two cannot shed light on the matter, as the laws cited at Ath. Pol. 16.10 mention ἀτιμία but say nothing about what this involved whereas the Erythrae decree mentions death for a would-be tyrant but does not use the term ἀτιμία or its cognates to refer to the punishment meted out to him or his progeny. But he concludes from the last two pieces of evidence that in the fourth century, death was the normal punishment for anyone declared ἄτιμος for conspiring against the democracy. Dmitriev’s inferences from the so-called ‘decree of Demophantus’ and the fourth-century tyranny law are much more problematic. The first, as Mirko Canevaro and Edward Harris have recently argued convincingly, is a forgery and cannot be relied upon to draw any meaningful inference about what ἀτιμία did or did not entail.70 The much more reliable evidence of Lycurgus shows, to the contrary, that the law on tyranny which Andocides meant to cite at §§96-8 was passed after 403, and stated that anyone convicted of tyranny and caught in the territory of Attica could be put to death with impunity; there is no reference to ἀτιμία in Lycurgus’ description of the law, and the claim that convicts became ἄτιμοι slips into circularity. The fourth testimony is the only one which mentions both ἀτιμία and the death penalty, but it is vital to read its provisions accurately. In the fourth-century law on tyranny, death is conferred on anyone who sets himself up as a tyrant, but the penalty of ἀτιμία is reserved exclusively for Areopagites and their children who hold office while the democracy has been suspended. The wording of the law makes this distinction plain: it begins 69 70 B.D. Meritt, ‘Greek Inscriptions, Hesperia, 21 (1952), pp. 355-6 no. 5 = IG ii3 320.7-21; J.M. Rainer, ‘Über die Atimie in den griechischen Inschriften’, Zeitschrift für Papyrologie und Epigraphik, 64 (1986), pp. 168-9, no. 5. For other discussions of this document see R.W. Wallace, The Areopagos Council to 307 B.C. (Baltimore: Johns Hopkins University Press, 1989), pp. 179-84. M. Canevaro and E.M. Harris, ‘The documents in Andocides’ On the Mysteries’, Classical Quarterly, 62 (2012), pp. 98-129, at pp. 119-25. Since Canevaro and Harris published their paper, the ‘decree’ has been defended by A.H. Sommerstein, ‘The Authenticity of the Demophantus Decree’, Classical Quarterly, 64 (2014), pp. 49-57, but none of his arguments are convincing; see now E.M. Harris, ‘The document at Andocides On the Mysteries 96-98’, Tekmeria, 12 (2015), pp. 121-53. Polis, The Journal for Ancient Greek Political Thought 35 (2018) 33-60 56 Joyce with a proclamation that anyone who kills a man for rising against democracy shall be blameless, but then states that any member of the Areopagus who ascends to the Council or deliberates anything while the democracy is in abeyance is to be considered atimos and his family and his children (ἄτιμος ἔστω). Dmitriev admits that in this instance it is unclear what ἄτιμος ἔστω means, but what ought to be more interesting in context is what it does not mean. The law mentions two types of offence, overthrowing the democracy and sitting in the Council in the interim, for which two entirely distinct punishments are meted out, the first of which is death with impunity and the second of which is ἀτιμία. Far from showing that ἀτιμία entailed death, it shows that the meaning was distinct. Dmitriev further argues from the story about Lycidas, put to death for treachery, along with his wife and family, that from early times, ἀτιμία was byword for exile or the death penalty. For this we have three versions of the story, the earliest and perhaps most reliable of which is related by Herodotus, the other two by Demosthenes and Lycurgus.71 According to Herodotus, when Mardonius came to Athens he sent to Salamis a man called Murychides to bribe the Athenians. One of the members of the Council of Five Hundred, Lycidas, proposed that the messenger be received. The rest of the Council, however, was so angry that they made a ring around Lycidas and stoned him to death. When the women heard what was afoot, they went to the house of Lycidas and stoned his wife and children. What is curious about the account of Herodotus is that, unlike one of the later versions, there is no reference to a formal decree; the shame of what happened consists in the fact that it took place without legal sanction. The tradition that Lycidas was put to death by decree is indeed a later version for which we do not have any witness until the late fourth century. Herodotus attests that the killings were spontaneous and did not follow a formal vote or judgement. In the later version, by contrast, a tidier account is told, possibly to circumvent embarrassment, whereby the execution was mandated by decree. It ought to be noted in this context that in the later account there was no mention of the killing of the wife and children by the Athenian women. Dmitriev believes that he can extrapolate from this episode an instance where ἀτιμία resulted in death, yet underestimates the difficulty that we do not know that a decree of ἀτιμία was passed: Lycurgus refers elusively to 71 Hdt. 9.5; Lyc. 1.122; Dem. 18.204. For earlier discussions of this historical episode see A.W. Verrall, ‘The death of Cyrsilus, alias Lycides: a problem in authorities’, Classical Review, 23 (1909), pp. 36-40; Ch. Habicht, ‘Falsche Urkunden zur Geschichte Athens im Zeitalter der Perserkriege’, Hermes, 89 (1961), pp. 1-35 at pp. 18-19 and 24; V.J. Rosivach, ‘Execution by stoning in Attica’, Classical Antiquity, 6 (1987), pp. 232-48 at pp. 237-41. Polis, The Journal for Ancient Greek Political Thought 35 (2018) 33-60 Atimia and Outlawry in Archaic and Classical Greece 57 a decree relating to ‘the man executed in Salamis’ without stating that it was a decree of ἀτιμία, whereas Demosthenes, who calls the traitor Cyrsilus and places the episode before the Battle of Salamis, mentions nothing of a formal legal injunction. The evidence as it stands is just too flimsy to make any convincing suggestion that ἀτιμία at this stage of history could entail death. The other legal text which has created much befuddlement is the famous decree under which Arthmius of Zeleia was declared a public enemy for having brought gold into Greece in the service of the Persia King to bribe the city states to medize. Our main source for this decree is a passage from Demosthenes’ Third Philippic which recorded Arthmius son of Pythonax of Zeleia ἄτιμος and an enemy of the people of Athens for conveying gold to the Peloponnese.72 The difficulty lies in the fact that Arthmius was not a citizen of Athens and therefore could not have been deprived of citizen rights. Modern scholarship has got itself into a muddle over this because if ἀτιμία means to have a limitation imposed on citizen rights, why make a foreigner ἄτιμος? Modern commentators have widely concluded that the term here is used in its archaic sense to mean ‘public enemy’, an assumption which goes back to Swoboda.73 But in two careful studies of the legal terminology used, Maria Youni has argued convincingly that the moot point is not the use of the adjective ἄτιμος but the contextual formulation in which it appears. Comparing this decree as reported by Demosthenes with two other inscribed decrees from Cyme and Hion of different periods, Youni argues that when in combination with the verb τεθνάτω it bears a different legal meaning from when it appears in conjunction with the verb ἔστω.74 In the latter, it means ‘let him be atimos’ where ἄτιμος means ‘deprived of legal rights’, but when used in the former context it means ‘let him die in disgrace’, where ἄτιμος has an extra-legal connotation and therefore has little bearing on what atimia as a legal concept can and cannot entail.75 72 73 74 75 Dem. 9.41-4; cf. also Plut. Them. 6. See, for example, Rhodes, ‘Bastards as Athenian citizens’, who stated that ‘fourth-century orators cited a fifth-century decree which had declared Arthmius of Zelea ἄτιμος καì πολέμιος [κτλ], and Demosthenes explained that ἄτιμος was used here not in its usual sense … but with the meaning “may be killed with impunity” ’, and went on to conclude that the adjective ἄτιμος was being used in the stronger of two senses, which following Swoboda he took to have been the older, whereby a sentence of death was in effect imparted. But this is simply to ignore the legal context of the decree, as Youni, ‘The different Categories of Unpunished Killing’, rightly argues. For the Cyme decree, see H. Engelmann, Die Inschriften von Kyme (Bonn: Halbet, 1976), number 11 esp. lines 10-11; for the Hion decree see OGIS 218 = Michel, Recueil 524, III, esp. lines 18-19. See Youni, ‘The different Categories of Unpunished Killing’, at pp. 128-132. Polis, The Journal for Ancient Greek Political Thought 35 (2018) 33-60 58 Joyce Youni’s claim that the two phrases mean different things must be right, but I would go further and stress that ἄτιμος τεθνάτω certainly meant something akin to νηποινεὶ πασχέτω because if one died atimos there was no right to a dike phonou. That is a far cry from asserting that atimia as a legal category could ever entail banishment. To pronounce in a decree ἄτιμος τεθνάτω is quite different in legal terminology from the decree of ἄτιμος ἔστω. The most important source of evidence for ἀτιμία in the fourth century is Andocides’ discussion of the different classes of ἄτιμοι (Andoc. 1.75-6). The penalty of ἀτιμία was divided between total (πανταπάσιν) and partial (κατὰ πρόσταξιν); for the first we have an abundance of evidence in other sources, but for the second we have virtually none, with the result that Ulrich Kahrstedt even denied that partial ἀτιμία existed at all.76 Total ἀτιμία meant that a citizen could not move decrees, vote in the assembly, serve on juries, prosecute in private or public suits (dikai and graphai), give evidence in the court, hold a magistracy, or enter sanctuaries or other sacred spaces.77 There was in addition a distinction in the fourth century between permanent and temporary ἀτιμία, where non-payment of state debt resulted in a temporary condition of becoming ἄτιμος which was dissolved once the debt had been repaid.78 In the fourth century the offences which earned ἀτιμία were many and varied, and some were much more serious than others: failure to perform military service, insubordination, cowardice, desertion, failure to perform duties to the state as an arbiter, maltreatment of parents, disobedience to a public ordinance, nonpayment of debts to the state, false evidence, unconstitutional proposals, and idleness.79 Hereditary ἀτιμία could be inflicted for treason,80 attempts to abolish or change certain laws,81 for theft of public property,82 and bribery.83 In 76 77 78 79 80 81 82 83 U. Kahrstedt, Griechisches Staatsrecht, p. 116 with n.1. For the right to move decrees, see: Dem. 22.29-34; 24.50, 201-3; 25.94; Aeschin. 1.88; Plut. Phoc. 26; Dein. 2.2. For the right to participate in the assembly, see: Dem. 24.123; Plut. Phoc. 33; schol. Aechin. 3.176. For the right to prosecute in public suits, see: Ant. 6.36; Dem. 25.74, 94. For the right to prosecute in private suits, see Lys. 6.24-5; Dem. 21.92; 54.14. For the right to give evidence, see: Dem. 21.95; Dem. 59.26-7. For the right to hold a magistracy, see: Andoc. 1.132; Xen. Mem. 2.2.13; Aeschin. 1.19-20. For the right to enter sanctuaries, see: Lys. 6.9, 24; Dem. 22.77; 24.60, 103, 126; Aeschin. 1.164; 2.148; 3.176. For a discussion of this distinction, see Hansen, Apagoge, Endeixis, and Ephegesis, pp. 67-72. For a full list of the sources, see Hansen, Apagoge, Endeixis, and Ephegesis, pp. 72-3. See the fourth-century tyranny law quoted above. Dem. 23.62. Andoc. 1.74. Aeschin. 1.30-2, 94-105, 154. Polis, The Journal for Ancient Greek Political Thought 35 (2018) 33-60 Atimia and Outlawry in Archaic and Classical Greece 59 none of those cases is there any clear sign that banishment was the necessary or expected outcome, though Athenian history furnishes examples such as Andocides, Timotheus, Aeschines, and Demosthenes, where an ἄτιμος of his own volition chose to leave the city rather than remain and endure the disgrace which ἀτιμία inflicted.84 The only two sources which might lead us to believe that ἀτιμία left a person unprotected under the law are the two passages mentioned earlier in Plato’s Gorgias and a statement by Demosthenes in the speech Against Meidias that ἀτιμία was tantamount to καὶ νόμων καὶ δικῶν καὶ πάντων στέρησις (‘deprivation of the laws and of rights and of everything’).85 As argued above, the evidence of Plato is unreliable because it is highly rhetorical, and the same should be said here also of Demosthenes, who lambasts his opponent for moving ἀτιμία against an innocent man with ruinous consequences.86 V Conclusion It has been argued here that at no stage in the evolution of Greek legal terminology did ἀτιμία necessarily imply exile or outlawry. The closest we get to such an identification is in the early sixth-century law which Plutarch quotes from Solon’s ordinances, but even here we need to be watchful of the terminology used. Almost certainly, from an early stage exile would have implied ἀτιμία, as the references to confiscated property of convicted killers in early homicide law show, as well as references in the Homeric poems where it was possible to be ἄτιμος and outcast. But to recognise this is a far cry from claiming that ἀτιμία and banishment were one and the same concept. The legal documentation from archaic Athens shows that, even in the earlier period, ἀτιμία was not commensurate with exile, though it is likely that the two categories overlapped, as Solon’s ‘amnesty law’ seems to indicate. The conceptual and legal distinction between the terms survived into the classical age. We cannot know when the different sub-categories of ἀτιμία came into currency, but it is important not to 84 85 86 Lys. 20.35, Isocr. 16.47; Lys. 6.26; Plut. Mor. 605f; Nep. Tim. 3.5; [Plut.] 840c-d; Dem. Ep. 2.24. On the passages in Plato’s Gorgias and their general unreliability, see above. For the reference in Demosthenes, see Dem. 21.92. Hansen, Apagoge, Endeixis, and Ephegesis, pp. 56-8 conceded that the two passages from the Gorgias should be treated with care, but was not nearly so circumspect about the statement of Demosthenes in the speech Against Meidias. Against the view that Athenians were lax about imposing or enforcing their laws, see the very persuasive arguments of E.M. Harris, The Rule of Law in Action in Democratic Athens (Oxford: Oxford University Press, 2013), pp. 246-301. Polis, The Journal for Ancient Greek Political Thought 35 (2018) 33-60 60 Joyce think that ἀτιμία ever meant banishment. As a term, ἀτιμία probably meant in the classical age essentially what it had in the archaic; the only difference was presumably that in later times clearer definitions of its use and application came into effect. The term never lost its moral sense either. The study of ἀτιμία shows that the term had a wide range of uses, but rather than changing its meaning over time in a fundamental way its evolution as a legal term appears to have sprung from the social and moral senses attested in the archaic period of dishonour and loss of public dignity. Polis, The Journal for Ancient Greek Political Thought 35 (2018) 33-60

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