BRIBERY IN CLASSICAL ATHENS Kellam ... - Historia Antigua

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Conover Bribery in Classical Athens Chapter Five between changes in the wording of a law and how litigants presented their case. As we will discover in Chapter Seven, however, this was not the case with Athens’ laws on dōrodokia. There, changes in the legal definition of dōrodokia seem to have had a direct effect on how litigants conceptualized the offense. This exception needs explanation, and the same chapter will accordingly take up the question of the specific role dōrodokia legislation played. How did the Athenians assign a penalty to a particular offense? Hyperides suggests that the punishment should fit the crime (Hyp. 3.4-6), and we can understand this idea in two different ways. A punishment should meet general expectations for what kind of recompense is required for a particular crime. Officials guilty of adikion, or petty financial mismanagement, were thus liable to repay the sum in question (AP 54.2). We can readily imagine that this particular penalty ‘fit’ the crime insofar as the offense was conceptualized as a financial offense—it was investigated by financial auditors, after all—and an insignificant one at that, requiring only repayment of lost monies. In this way, both the type and magnitude of the penalty could be calibrated with how an offense was conceptualized by the Athenians. At the same time, a punishment might be calibrated to other legal punishments; in this sense, it might reflect how an offense was incorporated into law, rather than how it was conceptualized within society. Note how the magnitude of the penalty could also be measured according to other legal penalties, not necessarily to the offense itself. For instance, certain orators remark that dōrodokia was given a tenfold fine, whether opposed to the simple fine of adikion or equivalent to the tenfold fine for embezzlement, precisely 227
Conover Bribery in Classical Athens Chapter Five because it was such a grave offense. 26 Here it is clear that the penalty for each offense was grouped together with other similar legal offenses—similar because they were prosecuted in the same manner and applied to the same legal category of individuals (i.e. public officials or archontes)—and the grouping of offenses was thought relevant for how to assign a specific penalty for each offense. Thus, both exogenous norms about the kind of recompense demanded by a crime and endogenous norms about how other similar crimes were punished could be used to determine whether a punishment fit a crime. As we will see in the next chapter, in assigning a penalty to dōrodokia, Athenian law translated the dōrodokos from a social to a legal entity in very specific ways. He was first deemed either an ‘insider’ of or an ‘outsider’ to the moral community of the dēmos; it was then determined, also based on the way that the offense was conceptualized, whether or not he deserved to be an ‘insider’ or an ‘outsider’. These determinations were based on the kind of social figure he was. The disobedient citizen was an insider who needed to be kept out of the community; the thief was an insider who tried to become an outsider, so his punishments reflected a desire either to keep him out or to try to reintegrate him into the community; finally, the traitor was an outsider who must always remain an outsider. These assignations underpinned both the content of the laws on dōrodokia and hence the changing penalties for dōrodokia throughout the democracy. In tracing this process of translation, we have tacitly assumed that law’s role within society is to settle disputes and restore reciprocity, yet this is never a given in any society. 27 Indeed, we saw above how Dinarchus posits two different functions of law 26 Din. 2.16, Hyp. 5.24; cf. AP 54.2. Din. 1.60 errs in calling the simple fine a twofold fine, but nevertheless singles out dōrodokia for the death penalty. 27 Cohen (1995: 9-24) helpfully lays out recent legal anthropological work outlining, and critiquing, just such a functionalist approach to conflict and the law’s assumed role in defusing it. 228
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BRIBERY IN CLASSICAL ATHENS Kellam
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© Copyright by Kellam McChesney Co
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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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