BRIBERY IN CLASSICAL ATHENS Kellam ... - Historia Antigua

Conover Bribery in Classical Athens Chapter Five
discrete offenses and later grouped them together into a comprehensive law (thereby
creating overlap), or that they first identified a general offense (dōrodokia) and later re-
legislated its most egregious types, perhaps with harsher penalties in a further attempt to
discourage potential offenders. 5 Alternatively, it is surmised that the overlap was
consciously created to increase the likelihood of prosecution; procedural flexibility would
enable someone to prosecute a dōrodokos and thereby incur just the right amount of risk. 6
There are considerable problems in painting a broad legal history based on such
generalizations about the development of Athenian law 7 ; even if we put these to one side,
however, there are still further problems with this approach. In accounting for legal
innovation, these scholars have proceeded from two basic assumptions: to curb
corruption, the Athenians decided to define dōrodokia in law and they thereby created
legal penalties that would act as deterrents to future dōrodokoi. To my mind, both of
these assumptions are incorrect.
These assumptions are remarkably similar to contemporary legal scholars’
discussions of the rule of law. For those scholars, the rule of law is a central goal of anti-
bribery legislation: the law, and ideally only the law, is to be used to provide a definition
5 Broadly, these are the approaches taken by Hashiba (2006: esp. 76) and MacDowell (1983a), respectively,
who have offered the only in-depth examinations of the legal history of dōrodokia in classical Athens. Of
these, only the treatment of MacDowell (1983a) is comprehensive, but its conclusions have been rightly
criticized by Todd (1993: 303n.16) and especially Hashiba (2006), whose own examination is more evenhanded
yet does not aim to be exhaustive.
6 Demosthenes posits precisely this reason for the variety of Athenian laws on theft: Dem. 22.25-7. He has
been followed by Osborne (1985), Ober (1989: 144-5), Todd (1993: 160-3); see especially Carey (2004)
for the criticism that this explanation does not account for the entire Athenian legal system. As I will
argue in Chapter Seven, the motivation behind procedural flexibility in dōrodokia suits potentially
stemmed from the need for different authoritative bodies to be the judge in different circumstances.
7 See especially Humphreys (1983: 229-31), Cantarella (1987), Cohen (1989: 91), Todd (1993: 69-70) on
the various dangers of adopting an evolutionary approach in the study of Athenian law. It is puzzling, in
this regard, that Hashiba (2006: 68n.27) notes the problems with making evolutionary assumptions about
the development of Athenian law, yet nevertheless posits that the general law against dōrodokia (as cited in
Dem. 21.113) evinces “some intellectual sophistication of legislative language.” In effect, diachronic
changes in the Demosthenic law are understood as increasingly sophisticated attempts at defining
dōrodokia comprehensively. I offer a different approach below.
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