BRIBERY IN CLASSICAL ATHENS Kellam ... - Historia Antigua

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.
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