It is a truism of modern discussions of Athenian law and oratory that the Athenians regarded adultery as a more heinous offence than rape. This consensus has been challenged in a valuable paper by E. M. Harris. But although Harris has successfully (at least in my view) placed in question a number of assumptions about this area of Athenian law and ethics, I wish to argue that the traditional position is in its broad outlines correct. In this as in so (...) many aspects of Athenian law it is difficult to make firm statements. Firstly, for the Athenian system as a whole we lack evidence for many issues of legal prescription and procedure for the period before the restoration of the democracy, and our evidence is frequently lacunose even for the period after the restoration. As a result we are presented with a ‘snapshot’ of the Athenian system at a particular stage in its development and are rarely able to trace chronological developments in detail and frequently unable to trace them in broad outline. A further result of this ‘snapshot’ effect is a false impression of coherence. Legislative measures belonging to different periods are likely to present themselves as the result of an integrated design rather than the product of accretion. Finally, and most importantly, our sources distort. Occasionally they provide information on the laws and on legal procedure in passing, in order to contextualize an argument or narrative; but in general they are presenting us with information in an attempt to persuade. (shrink)

The title is unashamedly plagiarized from Stephen Todd's excellent book, The Shape of Athenian Law. The plagiarism is slightly misleading, however, since my interest is in law as enactment while Todd's title expresses his interest in law as system . The issue I wish to address is the formulation of written laws in Athens during the late archaic and classical period, specifically the balance between procedural and substantive law. Substantive law deals with rights, obligations, offences, etc. Its role is to (...) define behaviour which is required, allowed, or prohibited. These are what Hart terms ‘primary rules’. Procedural law, on the other hand, deals, as the name suggests, with the administration of justice, that is with jurisdiction, process, etc. Hart's term for these is ‘secondary rules’. The two cannot be separated quite as neatly as I have suggested, of course. A procedural law can scarcely avoid mentioning the offences or rights whose punishment or protection it regulates, while a substantive law may need to address issues such as jurisdiction. This is therefore an issue of orientation, not a simple binary division. However, as a broad basis for classification it is of value. (shrink)

The title is unashamedly plagiarized from Stephen Todd's excellent book,The Shape of Athenian Law. The plagiarism is slightly misleading, however, since my interest is in law as enactment (Gesetz) while Todd's title expresses his interest in law as system (Recht). The issue I wish to address is the formulation of written laws in Athens during the late archaic and classical period, specifically the balance between procedural and substantive law. Substantive law deals with rights, obligations, offences, etc. Its role is to (...) define behaviour which is required, allowed, or prohibited. These are what Hart terms ‘primary rules’. Procedural law, on the other hand, deals, as the name suggests, with the administration of justice, that is with jurisdiction, process, etc. Hart's term for these is ‘secondary rules’. The two cannot be separated quite as neatly as I have suggested, of course. A procedural law can scarcely avoid mentioning the offences or rights whose punishment or protection it regulates, while a substantive law may need to address issues such as jurisdiction. This is therefore an issue of orientation, not a simple binary division. However, as a broad basis for classification it is of value. (shrink)

This article is a response to an essay written by an academic in English Literature, Professor John Sutherland. Through close textual analysis,Sutherland purports to resolve a well-known literary question: whether the sexual encounter outlined in the Victorian novel Tess of the d'Urbervilles should be classified as rape or seduction. The present article rejects his conclusion on the matter. An(equally) close analysis of the fictional text in question and of Sutherland's gloss, demonstrates the partiality of his critique, both in literary-critical and (...) critical-legal terms. In addition, examination of the conceptual and historico-legal context regarding the notions of rape and seduction on both sides of the Atlantic highlights parallels between Sutherland's own partiality and that of the law. In short, the apparent objectivity of the textual analysis and subsequent critique undertaken by Sutherland is revealed as a continuation of legal and patriarchal prejudices defining rape and seduction. The use of close textual analysis as the key critical device promotes the apparent probity of his findings. Locating them in an essay collection designed for mass lay public consumption completes the circle – from partisan scholarship to `informed' popular prejudice. (shrink)

It is a truism of modern discussions of Athenian law and oratory that the Athenians regarded adultery as a more heinous offence than rape. This consensus has been challenged in a valuable paper by E. M. Harris. But although Harris has successfully placed in question a number of assumptions about this area of Athenian law and ethics, I wish to argue that the traditional position is in its broad outlines correct. In this as in so many aspects of Athenian law (...) it is difficult to make firm statements. Firstly, for the Athenian system as a whole we lack evidence for many issues of legal prescription and procedure for the period before the restoration of the democracy, and our evidence is frequently lacunose even for the period after the restoration. As a result we are presented with a ‘snapshot’ of the Athenian system at a particular stage in its development and are rarely able to trace chronological developments in detail and frequently unable to trace them in broad outline. A further result of this ‘snapshot’ effect is a false impression of coherence. Legislative measures belonging to different periods are likely to present themselves as the result of an integrated design rather than the product of accretion. Finally, and most importantly, our sources distort. Occasionally they provide information on the laws and on legal procedure in passing, in order to contextualize an argument or narrative; but in general they are presenting us with information in an attempt to persuade. (shrink)

A reiteration of the main details of the case may be helpful. Euphiletus killed Eratosthenes and was prosecuted for premeditated homicide by Eratosthenes' relatives. The present speech, our sole source of information concerning the case, was written for the defendant, partially or totally, by a professional speechwriter, presumably Lysias. In this speech Euphiletus admits killing Eratosthenes. He pleads, however, that, since he killed Eratosthenes after catching him in the act of adultery with his own wife, this was a case of (...) justified homicide. At the same time, he denies a charge of the prosecution that he had killed Eratosthenes for reasons unrelated to the adultery. The speech was delivered before a court of fifty-one judges especially set up to judge such cases, as is attested elsewhere:T1Arist. Ath. Pol. 57.3: ‘If…a person admits that he has killed someone but claims that he had a right to do so, as, for instance, when he has surprised an adulterer in the act,… then the trial takes place in the Delphinion’. (shrink)

A reiteration of the main details of the case may be helpful. Euphiletus killed Eratosthenes and was prosecuted for premeditated homicide by Eratosthenes' relatives. The present speech, our sole source of information concerning the case, was written for the defendant, partially or totally, by a professional speechwriter, presumably Lysias. In this speech Euphiletus admits killing Eratosthenes. He pleads, however, that, since he killed Eratosthenes after catching him in the act of adultery with his own wife, this was a case of (...) justified homicide. At the same time, he denies a charge of the prosecution that he had killed Eratosthenes for reasons unrelated to the adultery. The speech was delivered before a court of fifty-one judges especially set up to judge such cases, as is attested elsewhere:T1Arist. Ath. Pol. 57.3: ‘If…a person admits that he has killed someone but claims that he had a right to do so, as, for instance, when he has surprised an adulterer in the act,… then the trial takes place in the Delphinion’. (shrink)