BRIBERY IN CLASSICAL ATHENS Kellam ... - Historia Antigua

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Conover Bribery in Classical Athens Chapter Five dispute to law, therefore, invariably there are ways in which legal space constrains or expands, distorts, refracts, or clarifies litigants’ narratives about an offense. Legal historians of ancient Athens have helpfully outlined a number of ways that the law in action transformed everyday experiences. 21 I focus here on three specific areas in which such translation would have occurred when a law was first drafted: defining an offense, assigning it a penalty, and choosing a process by which it could be prosecuted. For each of these areas, I would like to underscore that there were two kinds of considerations that shaped the final form of the legislation: the social meaning of an offense, viz. the way it was understood in society irrespective of any legal meaning attached to it; and the social meaning of law more generally, that is, how specific features of the law were articulated in relationship to each other, irrespective of how the offenses were commonly conceptualized in society. For Athenian laws on dōrodokia, therefore, we would expect that how dōrodokia was conceptualized in society would have at least some bearing on how it was consequently defined, punished, and prosecuted in law; yet as dōrodokia was transformed into a legal space, its precise shape may have been conditioned by other entities within that space, like how similar crimes were punished or prosecuted. These considerations amount to, respectively, exogenous and endogenous factors that affected the process of translation: the first affecting the starting point, or how dōrodokia was understood within society; the second, the end point, or how dōrodokia was incorporated into law. 22 If we 21 See especially Humphreys (1983, 1985), Todd (1993), Carey (1994, 2004), Johnstone (1999), Lanni (2006). 22 Ultimately, we should not seek to isolate completely these exogenous and endogenous factors. As recent sociolegal scholars have demonstrated, the way an offense is conceived affects how it is incorporated into law, but how it is incorporated into the law shapes, too, how it is conceived in society. In this sense, law both structures and is structured by cultural norms: Silbey (1992, 2005), Sarat and Simon (2001), Ewick and Silbey (2005), Mezey (2003), Rosen (2006). 225
Conover Bribery in Classical Athens Chapter Five think of these factors as endpoints on a sliding scale, then ultimately our goal here is to pinpoint the balance struck between them. At different points in time, and for different aspects of a given law, the balance will shift closer to one end or to the other; tracking these shifts for any given law will provide a framework for tracing the role of that law in society. In terms of defining an offense, Athenian laws were notorious for being substantively vague. 23 Moreover, there is little reason to think that legal definitions entailed considerable translation from common understandings of what an offense was. After all, there were no real legal professionals in Athens, so there was no institutional context by which a legal definition could be fixed, have precedent, and consequently be refined over time—traditionally the very processes by which ‘law’ becomes divorced from social realities. 24 Even when litigants referred to the legal definition of an offense, for example, they did so only informally, focusing on the spirit not the letter of the law. 25 We can expect, then, that when dōrodokia was given legal expression, its definition closely matched prevailing ideas of what constituted dōrodokia. Inasmuch as Athenian litigants commonly cited legal definitions only informally—and only rarely tried to determine whether an offense in question matched its legal definition—we would expect that there would be relatively little correlation 23 Noted already in antiquity: AP 9.2, cf. AP 35.2; Arist. Rhet. 1.1354a27-30, b11-16, 1374a8; Pl. Polit. 294a10-295a7. 24 Precisely because it was left to jury members to define, for themselves, which social norms applied to a particular case, rigorous legal definitions were unnecessary: see further Chapter Seven, cf. Carey (1994: 178-9), Lanni (2006: 117-18). The divorcing of legal norms from social experience has been underscored in sociolegal scholarship on legal consciousness. To the extent that social actors are aware that their actions are constituted by legal norms in particular, they reframe their own experience of those actions: see especially Yngvesson (1989), Ewick and Silbey (1992, 2003), Silbey (1992: esp. 45-6). 25 Todd (2000a: 29-30) rightly points out that informal definition of the law, focusing on the broader meaning of a statute, not on the details of its wording, was common in Athenian courtrooms in large part because statutes were mere evidence (cf. Arist. Rhet. 1.15.2-12), not strict rules by which evidence was judged: cf. Harrison (1971: 134-5), Harris (1988: 367-70), Todd (1993: 58-60), Carey (1994: 178-9). 226
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BRIBERY IN CLASSICAL ATHENS Kellam
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legislating dōrodokia. Rather than
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encouragement that made me crazily
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and long-lasting patience were crit
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CHAPTER SEVEN: Athenian dōrodokia
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BRIBERY IN CLASSICAL ATHENS Kellam ... - Historia Antigua

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