BRIBERY IN CLASSICAL ATHENS Kellam ... - Historia Antigua

Conover Bribery in Classical Athens Chapter Five
Towards a Theory of Athenian Legal Innovation:
If how the Athenians innovated is something of a black-box question in Greek
history, how they created legal innovation is perhaps closer to a black hole. Most of the
precious few testimonies we have about deliberative politics in action—Thucydidean
speeches and the occasional report in other historiographers, comic parodies, as well as
scattered, biased references in the orators—pertain to policymaking not legal regulation
in its own right. Recently, in an attempt to explain how the Athenians innovated
politically, Josiah Ober has examined the specific ways in which Athens’ political
institutions aggregated the knowledge of her citizens and thereby fostered collective
action and innovation. 20 Ober’s idea can be helpfully mapped onto legislation like that
on dōrodokia, but we are still left with a couple key questions. First, what kinds of
knowledge were considered ‘expert’, or what kinds of considerations went into drafting
such legislation? Did the Athenians focus only on solving a discrete ‘problem’, or did
they tailor the legislation so that the overall shape of the legal system was ideally
maintained? And second, to what extent did the intended effect of this legislation shape
how it was created? Did the Athenians modify, say, the legal process or penalty involved
so that the law might act as more than a mere deterrent?
For Ober’s framework to be readily applicable to Athenian laws on dōrodokia, we
must unpack the social meaning of that legislation, in effect defining the various kinds of
20 Ober (2008), the basic conclusions of which I build off of in constructing a theory of Athenian legal
innovation. It should be noted that my argument does not require that the Athenians strived for efficiency
in legal regulation, or what we might call legal efficacy. Still, Ober’s perceptive model will be a helpful
backdrop for understanding how the Athenians strove to reach the ‘best’ policy, by whatever criteria that
might be judged. Chapter Seven offers a couple different aims of Athenian laws on dōrodokia, each
predicated on a different way in which the law in action was being used for broader political purposes.
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