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date: 08 May 2021

homicide, Greekfree

  • Edward Harris

Summary

Homicide was considered the most important crime in Athenian law because the killer attempted to usurp the state’s monopoly of legitimate violence. To express the special nature of homicide, the laws of Athens created special courts and procedures. The person accused of murder was considered polluted and was banned from agora and shrines. There were four basic categories of homicide: intentional homicide tried at the Areopagus, involuntary homicide and planning a homicide tried at the Palladion, and just homicide according to the laws tried at the Delphinium. Similar rules and procedures were found in other Greek communities. In the Laws, Plato proposed certain reforms for Athenian homicide law.

Procedures for Homicide

According to Demosthenes (20.157–158), the most important goal of the Athenian legal system was to prevent men from killing one another. Draco, the author of most of the laws on homicide, therefore made the act of killing an object of fear and terror. Because homicide was the most serious offense, the laws, oaths, sacrifices, proclamations and procedures were very different from those for other offenses; it was so heinous that it was considered a crime against both gods and men (Antiph. 6.6. Cf. Antiph. 4.1.1–2). The reason why homicide was the most serious offense was because the killer attempted to usurp the state’s monopoly of legitimate deadly force. In the society depicted in the Iliad and the Odyssey (see homer), there was no strong central authority, and the community allowed relatives of the victim of homicide to kill the murderer (Od. 1.35–43; 3.303–310; 4.519–537; 11.422–430) or to accept payment in compensation (Il. 9.632–636). Because there was no central authority powerful enough to enforce different rules for those who committed homicide deliberately and those who killed in extenuating circumstances, someone who killed unwillingly would still have to go into exile to avoid vengeance (Iliad 23.85–90). With the growth of state institutions during the Archaic period, however, public officials were the only ones who could use deadly force aside from a few exceptional circumstances (Dem. 23.69).

Despite its importance, the main procedure for prosecuting homicide was a private accusation, which would be brought only by relatives of the victim (Dem. 47.69–70; Pl. Euthyd. 4b. Cf. Pl. Leg. 866a, 871a-b; Poll. 8.118).1 Unlike other private cases, however, accusations for homicide were brought in special courts: the Areopagus, the Palladion, the Delphinium, a court at the Prytaneion, and a court in Phreatto (Dem. 23.65–79). Charges of homicide were brought before the archon called the Basileus (“King”) (Pl. Crito; [Arist.] Ath. Pol. 57.2). In normal cases, the accuser just submitted his plaint to the relevant official; the accuser in a case of homicide had to swear a solemn oath calling down destruction on himself and his relatives if his charges were not true (Antiph. 5.11–12; Dem. 23.71). After the verdict, the victor swore on the meat of sacrificial victims that his charges were true (Aeschin. 2.87). The case was not heard by public arbitrators (see arbitrators) and did not go to trial immediately but only after three prodikasiai (preliminary hearings) heard over three months (Antiph. 6.42). There is no reason to believe that the standard of relevance was more strict in the homicide courts; in both the regular courts and the courts for homicide, litigants had to keep to the point and address the charges in the plaint (Lycurg. Leocrates 12–13; Lys. 3.46; [Arist.] Ath. Pol. 67.1).2

Pollution for Homicide

Because murderers were considered polluted, the basileus made a proclamation banning those accused of homicide from “lustral water, libations, bowls of wine, holy places, and the marketplace” (Dem. 20.158; Antiphon 6.35–36. Cf. [Arist.] Ath. Pol. 57.4; S. OT 236–242). It was important to keep murderers away from sacred rituals because their presence was thought to cause offerings for the gods to be rejected (Antiph. 5.82–83). To prevent the accuser from being stained by the defendant’s pollution, trials for homicide were conducted not inside buildings but in the open air (Antiphon 5.11). There is no reason to believe that beliefs about pollution for homicide were a survival from the Homeric period and were dying out by the end of the 5th century.3 On the contrary, there is no evidence for pollution caused by homicide in the Iliad and the Odyssey; the earliest evidence for the belief is attested in the pollution incurred by the officials who killed Cylon and his followers around (Her. 5.71; Th. 1.126). Several passages also demonstrate that the view that murderers were polluted continued into the 4th century bce (SEG 12.87 [336 bce]; D.S. 17.109.1; 18.8.4) and persisted at least until the 2nd century bce (Pol. 4.21.8–9; Liv. 42.15–16; 45.5; Malay and Petzl 2017: no. 1).

Categories of Homicide

Intentional homicide (phonos ek pronoias) was tried at the Areopagus (Dem. 23.24). This charge could be brought against anyone who caused the death of the victim either by direct physical violence or by ordering another to kill (Andoc. 1.94; Dem. 54.25).4 This is the charge brought in the case Against the Stepmother, in which the accuser charges that the wife of Philoneus killed her husband by ordering her slave to give him poison (Antiph. 1.5–10). This charge covered all cases in which the killer acted with deliberate intent either after planning in advance or on the spur of moment.5 There is some debate, however, about whether the accuser had to prove the defendant’s intent to kill or only to show that the action causing death was intentional.6 To use the terminology of modern law, the charge of intentional homicide (phonos ek pronoias) could be brought in cases of first degree murder (premeditated homicide), second degree murder (intentional murder without premeditation), and voluntary manslaughter (killing after provocation) (Dem. 21.71–75).7 The penalty for conviction was death with confiscation of goods (Dem. 21.43). If the defendant left Attica before the court voted to convict, the penalty was permanent exile (Dem. 54.25).8 It has been claimed that in Draco’s original laws about homicide, the penalty for intentional homicide and for involuntary homicide was exile, but this view has not been widely accepted.9 The murder of Laius in Sophocles’ Oedipus Tyrannos was a case of intentional homicide, which is the reason why the oracle at Delphi says that the killer is polluted and should be punished with death or permanent exile (S. OT 95–101, 1383–1385, 1426–1427).10

If someone caused death against his will (phonos akousios), he was tried at the Palladion by the ephetai who were special judges selected by lot ([Arist.] Ath. Pol. 57.3; Dem. 23.71–73). If the defendant was convicted, he did not lose his property but went into exile until he received pardon from the relatives of the victim and underwent purification (Dem. 23.72; 37.59). This was the charge brought against the choregos (see choregia) by the relatives of a boy who was being trained for a chorus and died from drinking a potion to improve his voice (Antiph. 6). His relatives admitted that the death occurred against the will of the choregos, who was still guilty by reason of negligence. There were detailed rules regarding the man convicted of involuntary homicide. If anyone killed someone in exile for homicide, he could be prosecuted for murder (Dem. 23.37). If anyone seized the convicted murderer in exile or took his property, he was subject to the same penalty as someone who did this in Attica (Dem. 23.44). On the other hand, if a convicted murderer returned to Attica without receiving pardon, he could be arrested or put to death, but not held for ransom or mistreated (Dem. 23.28). The Palladion also tried cases of “planning” (bouleuseôs), in which the defendant plotted to kill, but the victim did not die ([Arist.] Ath. Pol. 57.3; Cf. Pl. Leg. 872a).11 The Palladion also tried cases of homicide involving slaves, metics and foreigners ([Arist.] Ath. Pol. 57.4). If a slave was killed, his master brought the charge (Dem. 47.72), but there was no punishment for a master who killed his slave (Antiphon 6.4).12 In the case in which a slave had killed his master, it is possible that the relatives were not allowed to kill the slave but had to hand the killer to an official for trial (Antiph. 1.20; 5.47). This was obviously an exception to the general rule and done to prevent relatives from ordering a slave to kill a master with the aim of inheriting his money.

If the defendant admitted that he had killed the victim but claimed that he did so justly and according to the law, the case went to the Delphinium (Dem. 23.74–75; [Arist.] Ath. Pol. 57.3). First, the law permitted someone to kill a person caught having sexual relations with his wife, mother, sister, daughter, or concubine kept for the purpose of free children ([Arist.] Ath. Pol. 57.3; Dem. 23.53–54; Lys. 1.30). This law covered those committing sexual violence and those who had seduced the woman.13 Second, the law allowed anyone to kill a person who was attacking from an ambush (Dem. 23.53; Harp. s.v. ε‎̓ν ο‎̔δῶ‎ͅ καθελών‎).14 Third, it was permitted to kill someone carrying off property without justification, provided one did so immediately (Dem. 23.60–61). Fourth, if one killed a competitor in athletic games unwillingly, one was not punished. According to Demosthenes (23.60), the rationale for this was that the defendant did not intend to kill but to win victory. Fifth, it was permitted to kill a thief caught stealing at night (Dem. 23.113). Sixth, if a soldier killed someone mistakenly during battle thinking that he was an enemy, he was considered innocent (Dem. 23.55). In addition, after the overthrow of the Thirty, the Athenians passed a decree allowing anyone to kill people who were attempting to set up a tyranny, overthrow the democracy, or commit treason (Lycurg. Against Leocrates 127. Cf. Dem. 20.159).15 Another law was passed in 336 by Eucrates, renewing the right to kill those attempting to set up a tyranny or to overthrow the democracy (SEG 10: 23, lines 7–13). On the other hand, there is no reason to believe that there was a law permitting a person to kill someone who merely “initiated unjust blows.”16 The person who committed just homicide according to the laws incurred no pollution and did not have to undergo purification (Dem. 9.44; Dem. 20.158; Lycurg. Against Leocrates 125).

Two courts dealt with special cases of homicide. If someone in exile for involuntary homicide was accused of intentional homicide or wounding, he was tried by the ephetai before a court at Phreatto and delivered his defense in a boat anchored off shore (Dem. 23.77–78; [Arist.] Ath. Pol. 57.3). The boat could not have contact with the shore by an anchor or a gangway from fear of pollution (Poll. 8.120). When the basileus did not know the identity of the killer, or the death was caused by an animal or inanimate object, the basileus and the phylobasileis investigated the case at the Prytaneion (Poll. 8.120). If an inanimate object caused death, it was cast beyond the borders of Attica because the object was considered polluted by the bloodshed (Aeschin. 3.244).

Demosthenes (23.80) mentions a special procedure by which a person suspected of committing homicide could be arrested and placed in prison until his trial. This may have been the procedure followed in the case Against Agoratus (Lys. 13).17 The law about kakourgoi (wrongdoers) could be used to prosecute homicide. This appears to be the procedure followed in the prosecution of Euxitheus (Antiph. 5.8–11).18

The basic features of Athenian homicide law appear to have been shared by other Greek poleis. For instance, the rule that husbands and fathers were allowed to kill seducers was observed both in democracies and oligarchies (Lys. 1.1–2). At Thyateira, there is evidence for a distinction between voluntary and involuntary homicide.19 Laws from Euboea and from Ilion of the Troad reveal that other communities condoned the killing of those attempting to set up a tyranny or an oligarchy (IK 3,25 Cf. Xen. Hell. 7.3.7–11 for Sicyon and Thebes).20 The view that homicide caused pollution was also widespread (D.S. 17.109.1; 18.8.4).

The Reform of Homicide Statutes in Plato’s Laws

In the Laws (865a–874d), Plato proposes an elaborate reform of Athenian homicide law.21 There is no reason to believe that Plato’s rules were conservative. On the contrary, they are very innovative and depart from the traditional rules in several ways.22 Plato retains the distinction among deliberate homicide (869d–871e), involuntary homicide (865b–866b), plotting a homicide (872a), and just homicide (865a–d; 874b–c), but he carefully specifies the cases that fall under involuntary homicide. Plato also retains the principle that those who kill with their own hand and those who successfully plot to kill should be treated in the same way with two minor changes (872a). Plato’s greatest innovation is the addition of two categories of homicide committed in anger (866d–867e): someone who kills in anger without planning ahead must go into exile for two years, and the person who kills in anger after plotting, for three years.23 Instead of allowing the relatives of the victim to grant pardon, Plato places this decision in the hands of officials: at the end of their exile, the Guardians of the Law (nomophylakes) are to send twelve of their members to the borders and have them decide whether to pardon them and allow them to return (867e). The rules about the murder of slaves (865c–d, 868a–c, 869d) and the murder of parents (872a–873b) are also more detailed than those in Athenian law and were designed to reduce the open texture found in Athenian rules about homicide.24

Primary Texts

Antiphon Speeches 1–6

Demosthenes Against Aristocrates

Lysias 12, 13

Plato Laws Book 9

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Notes