BMCR 2009.08.18: Lewis on Phillips, Avengers of Blood: Homicide in Athenian Law and Custom from Draco to Demosthenes. Historia Einzelschriften; Bd. 202

David D. Phillips, Avengers of Blood: Homicide in Athenian Law and
Custom from Draco to Demosthenes. Historia Einzelschriften; Bd. 202.
Stuttgart:  Franz Steiner Verlag, 2008.  Pp. 279.  ISBN 9783515091237.
EUR 59.00.

Reviewed by John David Lewis, Duke University ([email protected])
Word count:  2221 words
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This study of the Athenian practice of homicide litigation in the late
fifth and fourth centuries, anchored in the Draconian law of homicide,
grew out of the author's 2000 University of Michigan dissertation on
homicide, wounding and battery in the fourth century orators. This
book, in the Historia Einzelschriften series, has narrowed the topic to
homicide, but widened the chronological scope to include Draco's law as
well as the re-inscriptions and trials of the last two decades of the
fifth century. The audience is scholarly. The arguments rely on close
readings of the Greek texts (English translations included) with
attention to nuances of language and historical detail. The structure
of the book is logical rather than chronological, and offers functional
interpretations of legal practices with particular reference to enmity
as a personal and public motive. This is an important contribution to
the study of Athenian law, and offers an important perspective on how
the fourth century orators viewed their late seventh-century past, as
interpreted through the lens of late fifth-century legal
re-inscriptions.

Phillips' basic orientation toward Draco, and toward the relationship
between the pursuit of revenge and the courts, is laid out in his
introduction. Draco's law on homicide is presented as more than a
foundation for Athenian law: it was central to Athenian civic identity.
Revenge--which the law tried to control but not to eliminate--was also
vital to Athenian civic ethos, and Phillips identifies himself with
those many scholars who see the courts as a means to pursue vengeance,
not to end it. Draco's law was used in the fourth century "because the
concept of private vengeance, sanctioned by custom and acknowledged in
law, survived, adapted, and remained at the core of the Athenian
psyche." (15) Phillips draws on David Cohen and others when he defines
enmity (echthra)--which lies at the base of numerous lawsuits--as "a
publicly recognized state of hostility that is ended officially by
reconciliation."(18) He then proceeds to describe the various aspects
of the public recognition, litigation, and reconciliation associated
with enmity.

Part I, chapters 1 through 4, first examines Draco's legislation, and
then Athenian homicide law and practice in the fourth century. Chapter
1 considers the legislation of Draco, first in its historical context,
and then with a close reading of the text as preserved in the
Demosthenaic corpus. Historically, Phillips denies the existence of a
"horizontal stasis" between members of the aristocracy in the late
seventh century (as upheld by Plutarch), and rather finds a "vertical
stasis" between the nobility and the masses, as upheld by the
Aristotelian Constitution of the Athenians. Phillips makes a good
case--one of the strong points of this book is that it supports claims
with direct textual evidence--but there is at times a tendency to
overly-generalize from that selected evidence. Phillips does not
consider the possibility that some of the nobility attained positions
of power with the support of "the masses" (as Solon suggested he could
have done, in fragments 6, 36 and 37). By widening the claim to imply
that all of archaic Greece was caught up in this class war, Phillips
does not consider, say, the struggle between the Bacchiadae and the
Cypselids in Corinth. Even the description here of the "bribe-devouring
kings" in Hesiod's Works and Days fails to consider that gift-giving
was a normal part of early dispute mediation, and not necessarily
evidence for class warfare. If Hesiod's relative and opponent Perses
was one of the nobility, what of Hesiod himself? One must wonder how
much of the vengeance thesis actually turns on this "vertical stasis"
argument. But these criticisms aside, Phillips provides a focused,
cogent reading of the texts and a strong functional interpretation of
the law itself.

Chapter 2 continues the functional examination, now of the process of
litigation in fourth-century classical Athens. Beginning with a clear
explication of the nature and function of the courts, Phillips walks us
through the summary arrest (apago^ge^), the religious aspects, and the
penalties, mainly as background to the process of public enmity itself.
To bring out one point of contention, Philipps notes that even though
religious aspects of the homicide law were strong in the fifth century,
Draco's law "displays no awareness of any sacral aspect of homicide."
(62) Yet we should remember that what we have of this law is from an
inscription dated 409/8; it is a reconstruction that points more to
Athenian memory than a literal preservation of the law. The trial,
exile, and curse associated with the Alcmaeonids, the purification of
Athens by Epimenides, and indeed the entire context of the late seventh
century BC suggests a much greater role for religion in Draco's time
than the inscription itself suggests. Since the central thesis of this
book is the continuity of Draco's law over nearly three centuries, a
closer discussion of the religious parallels is in order. As always,
Phillips works engagingly, and persuasively, through the public process
of enmity in the fourth century, from the dying injunction to pursue
vengeance and the aggressive funeral through the pursuit of vengeance,
the trial, and the reconciliation or pardon after conviction. This is
all well supported, but there are again some over-generalizations; for
instance, pardon after conviction may be sanctioned in Draco's law, but
Athenian evidence for it is less forthcoming, and sources for it are
not directly cited.

Chapters 3 and 4 take us to the family--central to Draco's laws--but
from different perspectives. One of Draco's main tasks was to maintain
the solidarity of the family, in order to prevent independent vengeance
actions against the killer of a relative. Chapter 3 considers
fourth-century cases when the family is split by enmity, and vengeance
is pursued in a lawsuit by one member of the family against another.
This widens the concept of piety beyond the family, as Plato makes
clear in the Euthyphro. The strong link between impiety (traditionally
understood) and lawsuits against family members again suggests a deep
connection between religious ideals, family solidarity, and Draco's
law. The close reading of the texts here does much to unveil the nature
of the enmity in the fourth century--the Euthyphro, Isaeus 9,
Demosthenes 22 and 24 are central texts here--but not always enough to
connect it back to the norms of Draco's day and thus to establish the
continuity that constitutes the thesis of the book.

Chapter 4--focused on Demosthenes 47--takes on fourth-century cases
when the victim is left with no relative closer than a cousin. The
essential Athenian advance over Draco here is their expansion of the
prosecutions beyond family members, to anyone who wishes to prosecute.
Phillips considers how the Athenians first created the legal means to
prevent a suspected killer from avoiding trial by flight, in the event
that there was no relative to bring charges. "In practice," Phillips
writes, these procedures closed a "loophole" in Draco's law, "since any
Athenian citizen could employ these procedures, regardless of his
relationship to the victim." (126) As always, Phillips admirably
supports his conclusion with serious and sustained textual readings to
which this review cannot do justice. But there remains a problem, for
this is reading Draco through fourth-century lenses without considering
the implications. If we are trying to understand how Demosthenes et al
understood the murder laws they attributed to Draco, this all well and
good, but surely the underlying norms had changed to some degree by
this time, and a thesis upholding continuity over three centuries
should better engage with this issue. What Demosthenes--and we--see as
a "loophole" may have been seen otherwise in Draco's time, and this
might have profound implications for the concepts of revenge understood
at each time.

Part II, chapters 5 through 7, turns to the period of the Thirty
Tyrants and the re-inscription of Draco's laws, with special focus on
Andocides I, Lysias 12 and 13. Chapter 5 reconstructs the events
surrounding the re-inscription, the continuity and change associated
with the Thirty, the Amnesty and the reconciliation. Phillips applies
his "vertical stasis" model, taken from Draco's time, to explain the
civil strife, and the restoration of the democracy. The understanding
of homicide adopted here includes important and nuanced reforms to the
idea and practice of endeixis and apago^ge^, two forms of prosecution,
in context with the strict limits set by the Amnesty. In addition to
cases from Antiphon and Andocides, Phillips refers to the trial of
Socrates, which he sees as motivated primarily by the events of 404/3,
especially by Socrates' connection to Critias of the Thirty, a
connection revealed in the charge of having corrupted the youth. This,
Phillips claims, illustrates the willingness of the Athenians "to
remember past wrongs" and "to act on that remembrance"--another
illustration of the vengeance motive that remains the theme of this
examination.

Chapters 6 and 7 show vengeance as resurgent in the years after the
Amnesty. Chapter six focuses on Lysias 12, the euthynai, or
prosecutorial review of Eratosthenes' actions while in office as a
member of the Thirty. Emnity remains the dominant motive in this
analysis, as the speaker attempted to widen the scope of the dispute to
include every member of the polis versus the defendant and the Thirty.
This complied with the Amnesty, but also attempted to unify the jury
against the defendant, and in doing so, Lysias set the terms for later
prosecutions "to redress wrongs suffered under the Thirty by means
whose relation to the letter and spirit of the Amnesty was not as
clear."(184) Phillips follows this with a rich discussion of the Lysias
12 text.

Chapter 7, focused on Lysias 13, the trial of Agoratus in 398 for
serving as an informer for the Thirty. The procedure of the trial was
an apago^ge^, which Lysias states several times, and which amounts to a
resurgence of this form of vengeance. According to the Amnesty, the
defendant must have been caught "ep'autopho^ro^i" or "in the act," but
the "act" was five years earlier. Phillips shows how Lysias attempted
to expand the "act" back to the denunciation of the defendant years
earlier, and thus to expand the meaning of ep'autopho^ro^i to allow for
the belated trial. All of this, and much more, Phillips argues, is
consistent with, and driven by, the underlying motive for vengeance
that remained at the heart of Athenian homicide trials. It also follows
the mutability of words in times of strife, noted by Thucydides (as
well as the rhetorical skill of the sophists, which is not here
discussed). This is, overall, a far richer discussion of these trials
and their relationship to the Amnesty of 403 than any short review can
convey.

One critical issue does challenge the stated aim of this book: despite
its subtitle and its claim to deal with homicide from Draco to
Demosthenes, it is almost totally devoid of discussion of developments
from Draco to the oligarchic counter-revolution of 411 (other than
passing references, and some discussion of Antiphon). Of course the
evidence is sparse at best, and Draco's laws likely fell out of use
prior to the re-inscription, but the central thesis is not only about
those laws, but about the continuity of vengeance at the foundation of
Athenian homicide litigation. There is but a single mention of
Ephialtes and his removal of jurisdiction from the Areopagus--was it
originally a murder court?--and little to no consideration of how that
continuity was achieved. Was it in fact a continuity of the law at all,
or rather a rebirth of the Draconian code?

Further, a reader must wonder why the book is arranged to jump from
Draco's legislation (chapter 1)--preserved in a 409/8 inscription--to
the procedures and functions of mature Athenian law in the fourth
century (chapters 2 through 4), and then back to 409/8,  when that
inscription was carved (chapter 5). This organization is not explained,
but perhaps the book was assembled from the PhD and other material
rather than as a singularly conceived project. In any event, the final
product leaves questions unanswered. For instance, the preamble of the
Draconian inscription and the circumstances of its carving are on p.
137 (with the 409 BC discussion), while lines 10-23 of the inscription
are on pp. 49-50 (with the Draco material), a division that suggests
the meaning of the inscription can be understood apart from the context
of the decision to re-inscribe it. Phillips maintains that there is no
evidence that the Athenians changed Draco's law in any substantive
way--and he cites Antiphon, prior to 411, as claiming that the homicide
law as having "always been the same regarding the same things"
(151)--but without seventh-century material there is also no direct
evidence that the 409 law is accurate to Draco's day. The position
taken in this book, as well as its architecture, should be better
explained. The entire thesis of the book depends upon a generally
rock-solid, unchanging set of norms from 620 BC to 409 BC--a claim that
should be much better supported, especially given the modern
scholarship that has examined the conceptual changes engendered by the
intellectual revolution of the fifth century.

These are the criticisms reserved for an excellent piece of work, which
is required reading for all scholars of Athenian law, rhetoric, and
history. At every step Phillips backs his claims with direct citations
from textual evidence, and a high-level of valuable, sustained
arguments. There is an appendix on androle^psia ("man-seizure"), and a
ten page bibliography.