The Prohibition of Just and Unjust Homicide in Antiphon's "Tetralogies" Gagarin, Michael Greek, Roman and Byzantine Studies; Jan 1, 1978; 19, 4; Periodicals Archive Online pg. 291 The Prohibition of Just and Unjust Homicide in Antiphon's Tetralogies Michael Gagarin A THE END of the last century serious doubts were raised, especially by Dittenberger,l concerning the legal accuracy of the Tetralogies ascribed to Antiphon. A rebuttal by Lipsius2 explained several of the alleged discrepancies between the Tetralogies and Athenian law, but in his reply to Lipsius Dittenberger3 stuck firmly to one point above all: that the prohibition /L~7"€ oLKaLwc /L~7"€ &OLKWC &1TOK'TELVELV, which is quoted four times in the Second and Third Tetralogies (3.2.9,4 3.3.7, 4.2.3, 4.4.8), is clearly inconsistent with Athenian homicide law, which from the time of Drakon recognized that certain cases of homicide were lawful and went unpunished.s Following Dittenberger some critics6 have accepted this inconsistency and taken it as part of the evidence for the 'sophistic', non-legal and non-Antiphontic nature of the Tetralogies. Others have sought to ex­ plain the inconsistency and to reconcile the prohibition of just and unjust homicide with Athenian law. PaolF argued that as the city magistrates gradually assumed the legal tasks originally left to self-help, individuals were no longer allowed to kill a criminal themselves except in their own homes but had to bring him (by the process of apagoge) to a magistrate for execu­ tion. This change, he argues, was reflected in the law prohibiting all homicides, even those previously considered just. Paoli's theory of the development of Athenian legal institutions is not supported by the evidence.s We know, for instance, that Athenian law in the fourth 1 Hermes 31 (1896) 271-77, 32 (1897) 1-41; the topic of the present paper is treated in the first of these articles. 2 Berichte LeiPzig 56 (1904) 191-204. 8 Hermes 40 (1905) 450-70, esp. 451-55. '" The word order in 3.2.9 is p:rl"'€ aO{Kwc P:lj-T€ oLKa{wc. This variation does not appear Significant. 6 Cf, e.g., Drakon's law (IG 12 U5) lines 37-38 (=Dem. 23.60). 6 E.g., L. Gerner, Antiphon, Discours (Paris 1923) 6-16. 7 RIDA 1 (1948) 153-61, esp. 158-60. 8 Cf M. H. Hansen, Apagoge, Endeixis and Ephegesis against Kakourgoi, Atimoi and Pheugontes (Odense 1976) 113-18. 291 292 PROI-llBITION OF JUST AND UNJUST HOMICIDE century allowed certain kinds of homicide outside one's own home to go unpunished,9 and there is no evidence that this category was less restricted in early times ;10 indeed Solon apparently enlarged the category of lawful homicide as a means of self-help.u More recently MacDowell,12 following Maschke,l3 has proposed a differentiation between killing ~, <' ,,, > , f)' .,' ~ "A d 1 h TOLV £YK/\TJfkaTO'V, fkTJT aKWV fkTJ £KWV a7TOKT£tVat- n a so t e law acquits us in which the plaintiff puts his faith25 in prosecuting us as killers, [the law] prohibiting killing unjustly or justly. For on the one hand, by the error of the dead boy himself this youth is acquitted of having unintentionally killed him; and on the other hand not even being accused by the plaintiff of killing intentionally, he [the youth] is acquitted of both charges, of killing unintentionally and intention­ ally." Though this argument is a bit awkward in its striving for rhetorical effect,26 it is clear that the prohibition against unjust and just homicide is introduced as part of an argument for acquittal. The argument, simply stated, is as follows: the prohibition prohibits two kinds of homicide; the youth is innocent of these two kinds of homi­ cide; therefore the prohibition acquits the youth of homicide. Two observations are necessary. First, the defendant must be equat­ ing the pair of terms in the prohibition, &SlKWC /SLKalwe, with the pair of terms in his supporting argument, EKclJV/aKwv (&Kovclwe). Without this equivalence the argument would be transparently nonsensical, which is not only prima facie improbable but is disproved by the fact that the plaintiff repeats and responds to this argument in his reply (3.3.7, see below). The fact that &SlKwe/SLKalwe must here be equivalent to EKwv/aKwv was suggested long ago by Blass27 but was rejected by Dittenberger28 and has for the most part been ignored ever since. For support Blass cited only a law P-T]TE aOLKOV jLT]T€ olKaLOV AEYELV mentioned by Lysias (fr.152), but this expression seems not to provide a parallel and was easily dismissed by Dittenberger. I should emphasize, however, that even if no exact parallel can be adduced, the terms dSlKwe and SLKa{wc 24 I use the Blass-Thalheim Teubner text of Antiphon (Leipzig 1914) throughout, except where noted. In 3.2.9 Aldus' emendation is required by the context and is accepted by all recent editors. 25 For '7TtC'T€t$w with V6fLOC see Aeschin. 3.1; the expression does not imply that the law was actually mentioned by the plaintiff. 26 Note that the two clauses beginning Vrro fLlv ••• ~7T(l OE are not quite parallel. 27 F. Blass, Die attische Beredsamkeit2 I (Leipzig 1887) 164, esp. n.3. 28op.cit. (supra n.1) 274 D.l; Lipsius, op.cit. (supra n.2) 198 n.2, approves this rejection. 296 PROHIBITION OF JUST AND UNJUST HOMICIDE in the above passage must be taken to designate intentional and unintentional homicide. There is, in fact, one other passage (Aeschines 2.88, discussed in the Appendix below) where aOtKOC and O{K(I.tOC seem to be used to designate intentional and unintentional homicide. Our second observation is that one half of the prohibition, namely the prohibition of unjust (= intentional) homicide, has no relevance whatsoever to the defendant's case in the Second Tetralogy.29 The plaintiff has already conceded that the killing was unintentional, so that there is no question of intentional homicide and the defendant's innocence on this count is a moot point. The only relevant question is the charge of unintentional (or (}ElpaVTa Aap.f3&vwv-H I believe I would have done the right thing in no matter what way I got hold of the man who destroyed my wife." But in fact, he continues (1.39), he did not entrap the man." It is clear that in this passage the term 8lKat.ov does not designate the specific legality of a homicide but refers more generally to a claim of moral justification, and the same is true of the defendant's use of 8t.Kaltuc in Ant. 4.2.3. These observations tend to support MacDowell's view45 that certain homicides might have been considered 8lKat.ot. by most Athenians but would nonetheless have been punished by law. Certainly it is not surprising to find someone in court claiming to have killed 8t.Kalwc. whether or not his case could legally be classified as lawfu1.46 On the other hand, our conclusions also suggest a rather different view of the historical context for the prohibition against just and unjust homicide from the one suggested by Paoli and accepted in its general outline by MacDowell and Caizzi.47 In their view the pro­ hibition should be understood in the context of the change from an earlier system of self-help, where the relatives of a homicide victim were allowed to take their vengeance on the killer, to the later system of compulsory judicial procedure, under which such retaliatory kill­ ings were no longer allowed. This change was expressed in the law by a provision prohibiting all homicides, those that were once con­ sidered just together with those that were unjust. Thus the prohibition is a sign of the gradual replacement of the system of self-help by a legal process under the authority of the polis. This view, however, is not supported by the evidence we have examined. In the first place it is not accurate to say that the retributive killing of someone who had killed one's relative was 'allowed' under " On entrapment in cases of adultery if. the Gortyn laws (l.Cret. IV 72) n 36-45. U Zoe.cit. (supra n.12). " Orestes' killing of Clytemnestra. as it is presented by Aeschylus in Eumenides, does not fall into the legal category of lawful homicide (though it might if it were argued as a case of tyrannicide). Yet Orestes believes he killed Clytemnestra &Kalwc (if. 468, 612, 615) and is in fact acquitted, though not strictly on legal grounds (see Gagacin, Aeschylean Drama [Berkeley 1976] 76-79). Though this acquittal does not have any firm legal basis, we must remember that Athenian juries were not so strictly bound by the law as are modern juries. Note that Demosthenes sees Orestes' acquittal as the prototype for a plea of lawful homicide at the Delphinion (23.74), even though he was originally tried at the Areopagus (23.66). t7 opp.citt. (supra no. 7, 12, 16). MICHAEL GAGARIN 303 the system of self-help since such a killing could itself be avenged and could thus scarcely have been considered just. Secondly, the prohibi­ tion against just and unjust homicide has, as far as we can tell, nothing to do with retaliatory killing but is introduced in two cases only, accid~ntal homicide and homicide in self-defense. To our knowledge both of these cases "Would have been equally if not more severely punished in the pre-Drakontian period.48 Finally, there is no evidence for any significant decrease in the kinds of homicide allowed by law between the seventh and fourth centuries. As I remarked at the be­ ginning of this paper, the change if any seems to have been to expand rather than narrow the category of lawful homicide. For all these reasons the traditional explanation of the prohibition against just and unjust homicide is impossible. Rather than seeing the prohibition as the result of a process of development in the homicide laws, I believe it was the result of the increasing moral sophistication of the mid-fifth century, stimulated by the intellectual investigations of the sophistic movement. The discussions of responsibility or guilt in homicide cases, of which the Tetralogies are a good example,49 led to a sharper distinction between various kinds of homicide, such as intentional and unintentional, and a more careful delineation of the nature of criminal responsibility than was the case earlier. From this more developed moral perspective certain homicides, such as those involving accidents or extreme provocation, could be considered morally just, even though they were still punishable according to the rather conservative letter of the law, since they were not included in the category oflawful homicide. From this perspective it was a moral comment on the Athenian legal sys­ tem to observe that even though a certain killing might be morally justified, the killer must be punished, since "the law prohibits both just and unjust homicide." This cannot have been a common observa­ tion, or we would probably see traces of it elsewhere in the orators or in some of the rhetorical debates in Euripides; but the author of the TetralOgies seized on the observation in order to experiment twice with its rhetorical possibilities. 48 For accidental homicide see Odysseus' killing of Antinous (Od. 22.1-33), which I shall discuss in a forthcoming work on Drakon's law. The only possible example of killing in self-defense in the epics is Odysseus' killing of the suitors, whose relatives certainly expect to exact vengeance for their deaths (Od. 24.430-37). U Cf Pluto Per. 36.3. 304 PROHIBITION OF JUST AND UNJUST HOMICIDE In sum, both defendants call upon "the law prohibiting just and unjust homicide" for their own rhetorical purpose. In so doing they are not referring to a specific piece of statutory legislation, but rather to a characterization of Athenian homicide law based on a moral rather than a legal perspective. This characterization is certainly not inconsistent with Athenian law, and it thus provides no reason to reject the traditional ascription of the Tetralogies to Antiphon. ApPENDIX: Aeschines 2.87-88 In his speech De Palsa Legatione Aeschines assails his prosecutor Demosthenes for telling lies about him when he (Aeschines) is facing the possibility of a capital sentence. 50 He continues (2.87-88):51 7TWC OVK elK(hwc Ot 7Ta'rEp€C ~fLWV EV TaLC rpoVtKaLC OtKatc tc()aL TWV SLKacTwv 8co£ riJv !f~rpov T/V€YKav avTCp, Kat !f€VSOC ~ \ , , , ~ \ , 'i:' \ ,\ ~ , ~ () \ \ " \ • ~ fL'1]O€V €tp'1]K€VaL, €t OE fL'1], EsWIl'1] aVTOV ELVat E7Tapac at Kat T'1]V OLKLav T'1]V aVTOV, TOLC S€ OLKacTaLc EVx€c()at 7ToAAo: Kat aya()o: ElvaL; Kat fLaAa op()WC Kat7TOAL7'£KWC JJ avOp€c J4()'1]vaLot· El yo:p fL'1]O€LC av VfLwV £avTov ava7TMICCY.L rpovov StKalov f3 '\ ~ ,~ , -I.. \ 'i: ,,, \ .1. \ .. \ " .. " , OVIlOtTO, '1 7TOV aotKoV y€ 'f'Vlla<:,atT av, T'T]V 'f'VX7JV '1] T'1]V OVCLav '1] T'T]V E7Tt7'£fLLaV 7'£VOC arpEAO/-'EVOc--"Surely it was reasonable for our ancestors to introduce the practice in homicide trials at the Palladion that the one who wins the verdict should cut the pieces and swear an oath-and this has remained your traditional custom even now-to the effect that those of the jurors who voted for him had voted truly and justly and that he had spoken nothing false, and that otherwise he prays that he and his household be destroyed and asks for many blessings for the jurors. And this custom, gentlemen, is right and befits the city, for (a) if no one of you should wish to infect himself with 'just' homicide, surely (b) he would guard himself against 'unjust' homicide, depriving another of life or property or civic rights." I have quoted this passage at some length because the full context helps clarify the sense of StKatOC and as£KOC in the last sentence. In my translation I have divided this sentence into two parts corresponding formally to the pro­ tasis and apodosis of a conditional sentence, but the sense of the sentence is not truly conditional but rather: "since (a) is the case, it is even more true that (b) is the case."52 Now it appears that the two kinds of homicide mentioned in these two parts of the sentence, StKa£oc and aStKOC, must correspond to two 50 K£v8vv"voYTOC lnr~P TOV cwp.aToc (2.87). The case is a ypa,pT, '7Tapa'7Tp"c{Jdac for which the penalty was 'T£p:lrroc (to be assessed by the court); see A. R. W. Harrison, The Law of Athens II (Oxford 1971) 82. n I follow Blass' Teubner text (2d ed. 1908), except that I read T£p.vOYTa for ·r£p.vOYTfic. 52 As the scholiast notes, 1} '7TOU here is equivalent to '7ToM '7TMov. MICHAEL GAGARIN 305 different kinds of homicide suggested by the long preceding sentence, which in my view are (a) actually killing someone and (b) causing someone's death through a false prosecution. Aeschines is apparently saying, "we try to avoid cfoovoe SLKatOe (for which we are brought to trial at the Palladion), and even more do we try to avoid cfocwoe aStKOe (by making a false accusation which might lead to someone's conviction and death)." If this is indeed his meaning, then he must be using the terms S{KatOe and ciStKoe to refer to unintentional and intentional homicide respectively, since the Palladion was primarily the court for unintentional homicide. 53 I believe this is the correct interpretation of Aeschines' words here, though an objection can be raised to it: since, as Philippi54 argued, the penalty of depriving someone of life or property was seldom if ever imposed on anyone convicted at the Palladion (though these could be penalties for intentional homicide tried at the Areopagus),55 the cfo6voe ciStKoe which might result from a false prosecution does not seem to fit the context of prosecution at the Palla­ dion. Philippi thus deleted E7TL IIa'JV.aS{cp as a gloss on EV 'Tate cfooVtKate SlKate. It is difficult, however, to account for this gloss,56 and furthermore, although Philippi's revised text might give us an easier context for understanding the cfo6voe ciStKoe, it provides no satisfactory explanation of the cfo6voe S{KatOe which Aeschines assumes we all seek to avoid. Homicide in general is of course not SlKawc, and homicide tried before the Delphinion as lawful (i) would not be referred to here without a specific mention of this court, (li) would probably not be thought of as something everyone obviously seeks to avoid, and (iii) would probably not have been considered an 'infection' (i.e. a religious pollu­ tion).57 Lipsius58 accepted Philippi's deletion of E7TL IIaAAaSlcp but assumed a differ­ ent explanation of the first half of Aeschines' last sentence: the cfo6voe SlKatoe which people seek to avoid is a just conviction voted by the court (presumably the Areopagus). Again, however, obtaining a just conviction in court can scarcely have been thought to bring pollution upon the plaintiff, and moreover the sentiment that one would not wish to infect oneself by justly prosecuting 53 Oem. 23.71, Arist. Ath.Pol. 57.3. The Palladion was also the court where the killers of slaves, metics and foreigners were tried, but Aeschines can hardly be referring to these cases. D4 RhM 29 (1874) 10-11. DD See Oem. 21.43. 58 Philippi, loc.cit. (supra n.54), thinks the glossator was thinking of Oem. 47.70, where an oath at the Palladion is mentioned, but a commentator who knew this passage would surely also know that a similar, if not identical, oath was sworn at the Areopagus (see Oem. 23.67-{i8). 57 See MacDowell 128-29 on the difficult question whether purification was ever required of persons judged guilty of lawful homicide. 68 J. H. Lipsius, Das attische Recht und Rechtsverfahren (Leipzig 1905-15) 833 n.17. 306 PROI-llBITION OF JUST AND UNJUST HOMICIDE a killer and obtaining a just sentence of death conflicts with the commonly expressed desire to see justice done, the guilty one punished, etc. Indeed it could be said to be one's legal and moral duty to prosecute and if possible convict the murderer of a relative. 59 If we reject Philippi's deletion,6o we do, however, have to explain the end of Aeschines' statement, where he seems to imply that a false prosecution at the Palladion might have the result of depriving people of life, property and civic rights. I suggest that Aeschines does not intend such an implication, but rather is conflating the situation of bringing a false prosecution before the Palladion and his own situation, where Demosthenes (he maintains) is bringing a false prosecution against him. In essence Aeschines is saying, "[this analogy with the oath sworn at the Palladion is significant since] just as one would not wish to infect oneself with a ~6voc 8lKa£oc [and be tried at the Palladion], so one would even more avoid a ~6voc a8£Koc, depriving someone of life, property and civic rights [as will be the result if Demosthenes wins his false prosecution against me]." In sum, on the most likely interpretation of this passage, Aeschines uses 8lKa,oc and a8£KOC to refer to unintentional and intentional homicide, the latter arising indirectly from a false prosecution. THE UNIVERSITY OF TEXAS AT AUSTIN July, 1978 .e See MacDowell 9-11. eo No editor to my knowledge even mentions Philippi's deletion. All recent editors accept Scaliger's < Ta&c).