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Enmity and Feuding in Classical Athens

Enmity and Feuding in Classical Athens

Through an in-depth analysis of hostile relationships in Athenian society and the works of Attic orators, Alwine’s book uncovers fundamental aspects of Greek political and social life.

Series: Ashley and Peter Larkin Endowment In Greek and Roman Culture

November 2015
This is a print-on-demand title. Expedited shipping is not available.
$27.95
271 pages | 6 x 9 |
ISBN: 
978-1-4773-1216-2
Description: 

Much has been written about the world’s first democracy, but no book so far has been dedicated solely to the study of enmity in ancient Athens. Enmity and Feuding in Classical Athens is a long-overdue analysis of the competitive power dynamics of Athenian honor and the potential problems these feuds created for democracies.

The citizens of Athens believed that harming one’s enemy was an acceptable practice and even the duty of every honorable citizen. They sought public wins over their rivals, making enmity a critical element in struggles for honor and standing, while simultaneously recognizing the threat that personal enmity posed to the community. Andrew Alwine works to understand how Athenians addressed this threat by looking at the extant work of Attic orators. Their speeches served as the intersection between private vengeance and public sanction of illegal behavior, allowing citizens to engage in feuds within established parameters. This mediation helped support Athenian democracy and provided the social underpinning to allow it to function in conjunction with Greek notions of personal honor.

Alwine provides a framework for understanding key issues in the history of democracy, such as the relationship between private and public realms, the development of equality and the rule of law, and the establishment of individual political rights. Serving also as a nuanced introduction to the works of the Attic orators, Enmity and Feuding in Classical Athens is an indispensable addition to scholarship on Athens.

Contents: 
  • List of Abbreviations for Primary Sources
  • List of Abbreviations for Journals
  • Acknowledgments
  • Introduction
  • Chapter 1: The Social Dimensions of Enmity
  • Chapter 2: The Rhetoric of Enmity as a Legal Strategy
  • Chapter 3: The Flexibility of the Rhetoric of Enmity
  • Chapter 4: Enmity under the Law: The Limits to Vengeance
  • Conclusion: Personal Enmity and Public Policy
  • Notes
  • Works Cited
  • Index
  • Index Locorum
Author: 

Charleston, South Carolina

Alwine is an assistant professor of classics at the College of Charleston.

Excerpts: 

Introduction

It is unlikely that jurors in a modern court would hear a plaintiff introduce a case by airing his personal grievances against the defendant saying, “With your help I will try to retaliate against him both now and for the future.”¹ It is equally unlikely that a plaintiff would say, “Everybody was coming to me in private and urging me to try to get back at him for what he had done to us. They were scolding me, saying I was no man if I didn’t get justice for people who were so close to me.”² Statements of this sort would probably not go over well. For the ancient Athenians, however, such a declaration of one’s desire for vengeance was a conventional way to open a lawsuit,³ and discussion of a longstanding enmity between the litigants was commonplace. Any reader of the Attic orators will be struck by the overtones of anger, hatred, and fear of humiliation. Lawsuits were high-stakes, personal affairs that encouraged the enthusiastic venting of all sorts of negative feelings and emotions.

Not only the Attic orators but all of Athenian literature is peppered with references to, discussions of, and arguments about enmity. The men (and probably women) of ancient Greece evidently spent a great deal of time thinking and talking about this subject, and so it is a priori plausible that they were much concerned with the dynamics of hostile relationships. A close scrutiny of the sources demonstrates that this was in fact the case. Everyone needed to know how enmity was contracted, pursued, aggravated, or avoided and to adjust his or her behavior toward others accordingly. Enmity could be ignored only at one’s peril. For this reason, any historical model of Athenian society, legal practice, or politics that omits consideration of this fundamental fact of Greek political and social life will miss the full picture. The study of enmity is an important step toward understanding the Greeks.

The discussions of enmity in the ancient texts, especially those of oratory, provoke a series of questions. What exactly was enmity in the Athenian context, and how did it work? Why did the orators feel so comfortable talking about their hostile relationships? What was at stake when they deployed the rhetoric of enmity against their opponents? Did the Athenians recognize enmity as a problem, and, if so, what were they prepared to do about it? Broadly speaking, these questions may be differentiated into two separate though related lines of inquiry: (1) the question of how enmity fit within the broad context of Athenian politics and society and (2) the question of how enmity was used as a rhetorical strategy in the extant law court speeches. These two questions must be recognized as separate but at the same time must be considered together as they have implications one for the other.

The legal speeches composed by the Attic orators are our best sources for enmity in Athens, but using them to make historical claims about Athenian society and values is a tricky business. This problem must be encountered head-on by an analysis of the rhetorical function of enmity in the Attic orators. All the same, a basic understanding of the nature of enmity in Greek culture is necessary for analyzing the deployment of rhetorical strategies that rely on the audience’s familiarity with the social dimensions of enmity. Accordingly, chapter 1 lays the basic groundwork for the study by providing a model for how enmity worked. After this, chapters 2 and 3 analyze the rhetorical use of enmity in the Attic orators. Finally, chapter 4 will advance broader arguments about how Athenian political, legal, and social practice put limits on enmity in the interests of the stability of the democratic regime.

A Model For Enmity In Athens

The citizens of the city-state of Athens accepted as fact that many people had enemies; this was an integral part of everyday life. They also believed that harming one’s enemy was an acceptable practice and even the duty of every honorable citizen. Enmity was therefore more than mere emotional dislike of another person; it was a relationship that entailed responsibilities of those involved, including the expectation that enemies would engage in a cycle of repeated attacks and retaliations. Such acts of harm were the necessary building blocks of a relationship of enmity. Athens was full of competitive, honor-driven citizens who were seeking opportunities to score public victories against their rivals and were concomitantly on their guard against being shamed themselves. Enmity was a critical element in the power dynamics of these competitions for standing in the eyes of the community.

Obsession with the recognition of one’s personal merit and insistence on respect and deference from others are familiar attributes of Homeric warriors and have sometimes been relegated to the preclassical past, but there is little reason to believe that this mentality met with significant challenge in classical Athens. The basic logic of the societal honor game between “agonistic” competitors remained more or less the same. Achilles’ macho responses to threats to his honor are not qualitatively different from those of the fourth-century Athenian Conon, who, according to his opponent, humiliated his enemy by beating him senseless and then standing over him, flapping his arms like wings while imitating the crow of a victorious cock.⁴ Conon’s actions were over the top, but nevertheless the underlying system of values—defeating enemies, winning honor, shaming opponents—was still operating along roughly the same lines as it did in Homeric society. The pursuit of enemies even crossed over into the legal sphere, which is why many prosecutors open their speeches with bald declarations of aggression. Anything as public and antagonistic as a lawsuit was bound to have a profound impact on the negotiation of status and standing that was such a hallmark of social life.

Classical Athenian democracy led not to a radical questioning of the premises of such honor games but rather to a pragmatic concern with their implications. Enmity threatened the internal stability and harmony of the citizen body, and that threat could not be ignored. For example, several litigants point out that private animosities incited feuding citizens to ignore justice in single-minded pursuit of their enemies. Such overly aggressive law-court bullies pose a potential threat to modest citizens who are less experienced in court and have less rhetorical training and are thus less able to defend themselves. On the other hand, the honor games were there to stay; the entire system by which Greek men evaluated themselves was not likely to evaporate in a few generations. The resulting tension between the interests of democratic stability and the drives of the feuding ethos is an undercurrent in many episodes of Athenian history. The Athenians never attempted to stifle enmity outright, nor did they approve of it without qualification.⁵ Enmity had to be channeled, not forbidden.

Given the limited nature of our sources, no comprehensive treatment of the various ways in which these opposing forces collided is possible. Consequently, a study of enmity in democratic Athens must focus on hotspots, the areas in which the competing values were most clearly at odds. Three such hotspots will form a major theme of the present work. The first was the potentially devastating impact of private enmities on public policy and everyday governance. If office holders were permitted to abuse their positions to pursue their own personal feuds, chaos could result. The Athenians’ radically participatory system was designed to minimize the problematic role of personal relationships. Strict term limits and large administrative and deliberative bodies diffused the effect of personal likes and dislikes through the incredible number of citizens involved in the process.

The second was the intersection between enmity and the legal sphere of the courts. Although Athenian jurors were tasked with identifying whether a real breach of law had occurred and then voting based on justice and “without favor or enmity,”⁶ litigants actively employed lawsuits in the service of their feuds to win honor for themselves and humiliate their enemies. Following the old feuding ethic, they cared more about defeating their opponents than they did about the broader issues at stake. The ideals of justice and fairness that the jurors were supposed to be upholding undoubtedly influenced litigants’ strategies, but prosecutor and defendant were most concerned with winning.

The third hotspot was the public regulation of violence between citizens. The state had an obvious interest in preventing escalation of feuds that might lead to the murder of citizens or even to civil war (stasis). On the other hand, there was no logical endpoint to enmity other than complete defeat of one’s opponent. As the Homeric proverb had it, “Foolish is the man who kills the father and spares the son.”⁷ Strong restrictions on homicide were already in place in Athens, and the absence of a special legal category that stipulated less severe penalties for declared enemies distinguishes Athens from other societies such as thirteenth-century France.⁸ Yet, stronger regulations than homicide laws were needed to protect a poor Athenian from coercion by wealthy elites or gangs of thugs.

This study proposes that in these hotspots, when the conflict between enmity and the interests of the Athenian polis became clear, it was enmity that was forced to give way. While Athenians allowed their fellow citizens to engage in feuds and to pursue their personal enemies, they established parameters for enemies’ conduct. Those parameters banned violence, which was a violation of the bodies of other citizens, and deceitful and vexatious abuse of the courts, which was a violation of the integrity of the legal sphere. Violence was unacceptable because it reduced a citizen to the status of a slave, who was liable on his body for his offenses and could therefore be whipped or tortured. Athenians saw the citizen’s body as sacrosanct and brooked no violation of this space even by those involved in feuds. They were likewise concerned that excessive pursuit of vendettas not lead to abuse of public institutions, especially the courts. Enmity with one’s opponent was no excuse for bringing a frivolous charge. Adversaries were expected to play by the rules, to put real offenses on trial, and to prove that their cases had not been fabricated.

These boundaries within which personal enmities were expected to be pursued were real. Athens did not sanction violence even in pursuit of feuds, nor did it look favorably on those who prosecuted their enemies in blind personal rage and without concern for truth and justice. These ideological expectations underlie many discussions of enmity in our sources. Athens was thus a city with two seemingly contradictory aspects: it was in many ways a feuding society but not a violent or unstable one.⁹ Athenians expected feuds, but they expected restrained feuds.

Athenians were concerned not to abolish the feuding ethic but to channel it so that it would not threaten the integrity of the city. The chief tenets of democratic ideology and practice were equality, freedom, and security for each individual citizen,¹⁰ all of which aimed at allowing Athenian men to exercise their “shares” in the governing process without fear of coercion. Unrestrained feuding would threaten to undo the democracy by allowing the strong to oppress the weak by threat and force, and so enmity had to have limits. For Athenians to be able to “live as they please,” as Pericles famously put it, they had to be able to serve as jurors and magistrates, vote in the Assembly, and generally order their daily political lives without fear. This commitment to freedom led to a curtailing of the privileges of the historic feuding culture. At the same time, citizens were also free to pursue their feuds so long as they observed the publicly sanctioned boundaries.

This understanding of the Athenians’ attitude toward enmity differs markedly from several previously proposed models, including most notably the divergent models of David Cohen and Gabriel Herman. Cohen (1995), focusing on the extant law court speeches from fifthand fourth-century Athens, argues that Athens was a “feuding society” in which litigants appealed to the rules of an all-encompassing societal honor game. Not only Athenian litigants but even the juries were uninterested in abstract ideas such as legality and justice (at least as we conceive of them) and more interested in “a social judgment of the parties,”¹¹ a referendum on the acceptability of the respective parties’ behavior in carrying out their feud. Jurors approved of prosecutors who asserted that they were taking vengeance on their enemies so long as they were carrying out their feuds honorably. Moreover, it was perfectly honorable to engage in some casual violence. In fact, to bring one’s enemy to court for assault was to risk appearing a weakling and coward. Ariston, who prosecuted Conon for nearly beating him to death, was in danger of being laughed out of court. A certain degree of violence was tolerated, and the use of the courts simply to continue a feud was perfectly acceptable and normal.

Against Cohen, Herman points to speeches in which prosecutors deny that enmity prompted them to lodge their suits, and downplay their personal incentives for revenge.¹² He argues that litigants presented themselves as moderate, restrained, and prone to underreact to the wrongs suffered at the hands of their arrogant, insulting opponents. The ability to make a convincing display of such behavior tied in directly to the outcome of the cases. Athenians were not supposed to seek personal, tit-for-tat vengeance in any context.

Others have endeavored to reconcile the divergent claims of Cohen and Herman by attempting to find a compromise position between the two. Matthew Christ takes a “middle ground” between Herman and Cohen: “While there is surely a gap between collective ideals of cooperation articulated in the courts and individual behavior outside of them, the courts and the peaceful values institutionalized within them in all likelihood had real and salutary effects on disputing behavior.”¹³ Similarly, Danielle Allen asserts that Cohen and Herman each emphasize only one of two values that were both at work in Athenian society.¹⁴ Citizens were supposed to pursue their enemies in anger, as Cohen points out, but society also expected them to respect the honor of others, as Herman shows.¹⁵ Other scholars have arrived at similar conclusions though disagreeing on which parts of the arguments of Cohen and Herman are sound and which are to be rejected.

The problem is that the middle ground is too spacious. When two theses are as divergent as Cohen’s and Herman’s, simple concessions to both sides do not bring us much closer to a workable model. In an attempt to accommodate these competing viewpoints, scholars have occasionally resorted to vague ideas about two competing “codes,” but such a nebulous compromise leaves unanswered many important and interesting questions, including how Athenians would have appealed to different codes, which code (if either) was dominant, and whether there were any consistent underlying principles. The middle ground may seem attractive, but it does not offer much help for our understanding of Athenian society. Perhaps because of the unsatisfactory nature of these compromise positions, the debate between the extremes has continued, as can be seen in Christ’s critical review of Herman’s book and Herman’s heated response to Christ.¹⁷ The model proposed above offers a different interpretation of the interplay between feuding and the state that is not obscured by an attempt to reconcile irreconcilable views. Instead, it clearly defines the parameters within which the pursuit of enmity was acceptable.

The Attic Orators As Sources For The Athenian Worldview

An important step in advancing this debate is to lay some methodological groundwork. Our concern is primarily with the speeches of the Attic orators since they are the major source of information about personal enmity in Athens. Every study that delves into questions about Athenian values or societal practice must at some point draw on the rich material in these speeches, but what is the method by which we may legitimately extract general principles from them? Will a litigant’s statement about his own or his opponent’s behavior provide information about Athenian values generally? How are we to discriminate between widespread beliefs and dissenting views about a controversial topic?

Because these texts are rhetorical, the rhetorical nature of arguments based on enmity must be understood before conclusions about other issues, such as the values of Athenian culture, can be drawn. Close attention to the intricacies of litigants’ arguments is therefore an important prerequisite to appreciating how these texts can be useful to the historian.

Law court speakers desire first and foremost to win the case at hand and are generally willing to use any means that will further that end. Consequently, we must ask how these litigants’ rhetorical presentations of enmity were thought to aid them in winning their cases. Although we can assume that everything in a speech will support the speaker’s case, we cannot assume that everything in a speech is descriptive of a broad pattern in Athenian society or a common Athenian belief. The issue is slightly more thorny than that.

A starting point is to recognize that speakers portray themselves and their enemies in ways that allow them to support character and probability arguments about the legal points at issue.¹⁸ Furthermore, they had many different strategies available to them depending on the particular features of their cases. For instance, a prosecutor in a case of physical assault may assert that the defendant had been his enemy for many years to establish a credible motive for the crime. Enemies are more likely than strangers or casual acquaintances to assault each other, and so a relationship of enmity would support the argument. On the other hand, a prosecutor in different circumstances may deny that his opponent is a personal enemy to prevent the jury from suspecting that he is an antagonistic and vexatious litigator who is likely to trump up frivolous charges to humiliate his opponent. Speakers must take every precaution to avoid the appearance of attempting to deceive the jury, and enmity can be an effective weapon with which defendants can batter their opponents’ credibility. The flexibility inherent in the rhetoric of enmity allowed a litigant to choose from many different approaches and adapt his presentation of enmity to his own needs. Speakers employ rhetorical strategies involving enmity in ways that are closely related to their overall arguments about the truth or falsehood of their respective versions of events. They shape their discussions of enmity to make arguments about their legal claims.

Because the rhetoric of enmity is a flexible device, speakers’ presentations of their behavior vis-à-vis their enemies cannot be taken, as they often have been, as straightforward appeals to a set of readily identifiable values about feuding. This observation about the specifically rhetorical nature of the orators’ discussions of enmity reveals a problem with the traditional analytical approach. Recent scholarship has tended to cite litigants’ descriptions of their own behavior as paradigms for Athenian morality. Such a method assumes that a litigant’s discussion of his relationship with his opponent functions primarily to align him with dominant Athenian views about enmity. In other words, a speaker would portray himself as aggressive or restrained, honor-driven or reserved, depending on which ideal accorded most directly with the jury’s moral principles. Hence, Cohen and others often take the orators’ feuding narratives as exemplars that appeal directly to Athenian beliefs about how feuds should be carried out.¹⁹ Even Herman, diametrically opposed to Cohen in most respects, is in essential agreement on the validity of this method, although he draws the opposite conclusion from it, arguing that “the more non-feuding characteristics a litigant managed to display, the better his chances of winning became.” The necessary premise behind such analysis is that speakers’ presentations of their own and their opponents’ actions constitute direct appeals to contemporary beliefs about acceptable behavior and therefore can serve as paradigms for Athenian ethical prescriptions.

This premise, however, is flawed. If litigants’ chief concern in constructing their narratives of enmity had been simply to justify themselves by demonstrating their conformity to a particular code of behavior, certain commonalities in rhetorical strategies might be expected. If prosecutors, for instance, deemed it in their interests to present themselves as macho he-men, taking revenge on any who opposed them, then their speeches could be expected to explain that their prosecution was an act of retaliation against a long-standing enemy. On the other side, defendants would normally deny enmity to undercut the prosecution’s claims. Likewise, if litigants thought it necessary to present as many nonfeuding characteristics as possible, prosecutors would have denied enmity as a motivation, while defendants would have accused their opponents of prosecuting out of hatred and malice. The evidence, however, does not fit either formula. A simple recipe that explains the Attic orators’ use of enmity in terms of legitimizing or delegitimizing the court action does not exist. There is rather a wide variety of ways in which enmity can be approached. In view of the diversity of available rhetorical strategies, any attempt to extract Athenian values from these speeches by pointing to the frequency with which litigants portray themselves as either feuding or restrained is destined to fail. It would be imprudent to conclude from litigants’ affirmations or denials of enmity that the average Athenian believed such relationships to be acceptable andlegitimate on the one hand or morally reprehensible on the other. The multiplicity of available rhetorical strategies makes such a reading of these passages impossible.

Athenian litigants portray themselves and their opponents in ways that support their overall claims; they are not necessarily providing prescriptive moral commentary on general rules of conduct (how one should or should not pursue one’s enemies). They are, on the contrary, employing enmity to make rhetorical arguments about their cases. When a prosecutor asserts that he has long been an enemy of his opponent or when a defendant tells a story about his restrained conduct in the face of a hubristic attacker, we cannot assume in the former case that Athenians would have approved of long-standing feuds nor in the latter that they would have disapproved of them. Other factors in their cases may have led these speakers to engage in such narratives.

The persistence in contemporary scholarship of radically different views about the nature of Athenian society is the result of this widespread misunderstanding of the purpose of narratives of enmity. When treated as paradigms for Athenian behavior, the speeches themselves express contradictory values. This problem is aggravated by two important biases inherent in this type of literature that have lent credence to nearly every position on the spectrum between the extremes of Cohen and Herman. On the one hand, the extant speeches concern only cases that could not be resolved in the preliminary arbitration phase and so actually came to trial. The corpus of Attic orators represents only the most virulent disagreements and fiercest hostilities. Cohen can draw upon stories narrated by litigants that follow a pattern of “feuding behavior” precisely because only the worst disputes are extant. On the other hand, all litigants are constrained by the legal setting of their cases. Invocations of an ideal of nonviolent restraint and adherence to a civic code of submitting to the ideology of the democracy are to be expected in such a body of literature.²¹ Herman relies on litigants’ use of this rhetoric of self-control to conclude that Athens “must be classed among the less violent societies of pre-industrial Europe.”²² Awareness that both of these tendencies are present has no doubt led to the many compromise positions between Cohen and Herman.

Another way to gain a firmer foothold in the sources must be found. The method advocated here is to view these passages primarily as descriptive rather than prescriptive. Litigants’ narratives provide information about behavior believed to be typical of enemies, whether or not it was behavior believed to be right and honorable. They describe actions and attitudes that members of the jury would find plausible but not necessarily morally right. Because litigants discussed their relationships with their opponents to create probability arguments, they had to shape their narratives in ways that harmonized with the jury’s view of society. The orators’ rhetoric would be ineffective if their stories about their enemies did not resonate with what the jurors believed credible. An assertion that the speaker’s opponent attempted to sabotage his efforts to provide a warship for the state, for example, would have no force if the jurors found this incredible and were likely to discount the entire scenario as an egregious fabrication. A crafty litigant would attempt to bolster his narrative with scenarios with which the jury was familiar and fit his opponent into a well-known character type. The more often a particular sequence of events recurs in the corpus of Attic oratory, the more likely it is that speechwriters were aware that the average juror would view such a scenario as plausible. Commonplaces are therefore of great importance because they bear witness to arguments that harmonized with Athenians’ presuppositions.

This approach also obviates the difficult question of whether or not a speaker is lying. The orators are notorious for bending the truth in their own favor, but speakers in the courtroom nonetheless attempted to make their narrative believable by creating a facsimile of truth that the jurors would be willing to accept. A reconstruction of the way Athenians conceptualized the practice of enmity is possible without consideration of the truth or falsehood of individual stories.

When exploring the Athenian conceptualization of enmity, this study will draw attention not only to what Athenian litigants were actually saying about their relationships with their opponents but also to what they assumed about such relationships generally. These general patterns are instructive for recreating the Athenian worldview because they depend on underlying beliefs that appealed to a mass audience. The task of the following chapters is to show and explain the rhetorical nature of enmity in law court speeches and to uncover the implicit premises that governed speakers’ presentations. These premises provide information about Athenians’ conceptualization of how enmity worked in their society.

This is not to say that the Attic orators cannot be used as sources for Athenian values, only that they have often been misused. Such affirmations of enmity and denials of enmity do not speak directly to social mores; we should rather look for ethical norms that are universally assumed (and not argued). Chapter 4 identifies several such norms by demonstrating that all discussions of enmity in our sources, whether denials or affirmations, operate under implicit premises that are constantly reaffirmed no matter what rhetorical strategy a speaker adopts. These underlying harmonies, not the sordid details of the stories litigants tell, are the best means we have of understanding Athenian ideology.

Athenian Law

Any historical study that draws on Attic oratory must begin with a basic account of the uniquely Athenian process of law. Athens, the earliest democracy for which we have significant source material, had a legal system that complemented its political arrangement and was therefore distinct from other legal systems in history. The contrast with Roman law, which developed under an aristocratic republic and then a monarchy, is especially striking. The principles of representation and professionalism, bequeathed to civil and common-law institutions by the Romans, are directly contrary to the Athenian insistence on the direct participation of amateur jurors and litigants. A select group of highly trained specialists formed the backbone of the Roman legal system and its descendants. For instance, in modern European states, law is a preserve of those few who can afford to pursue an advanced degree and dedicate their lives to continued study and practice. Many others participate in the legal system, but their participation is mediated through this elite. In Athens ordinary citizens performed the roles normally reserved for professional judges and lawyers in civil and commonlaw systems so that Athenian law was directly connected to the values of the people and expressed popular beliefs and opinions.²³ The democracy’s egalitarianism often took the form of an insistence that as many citizens as possible participate and that as little hindrance as possible be placed in the way of the average Athenian.

The sheer number of citizens required for the Athenian system to operate is astounding, as was the time commitment required of those citizens. Out of a citizen body of approximately 30,000, each year 6,000 Athenians were selected by lot to serve as a pool of available jurors (called the “heliastic body”). Members from this pool were assigned, also by lot, to fill the daily juries, which ranged in size from 201 to 2,501 and judged all cases, both criminal and civil. The courts convened between 150 and 240 days each year, usually with four or more courts in operation each day.²⁵ The frequency with which the Athenians resorted to the court system, obvious even from a mere description of its practice, was recognized in antiquity. The tension of Aristophanes’ play the Wasps centers around Philocleon’s dangerous addiction to jury duty. A character in the Clouds shows a map to Strepsiades and points to Athens. “What?” Strepsiades replies, “I don’t believe you! I don’t see the jurors sitting.”

The huge numbers of citizens required for the legal system to function ensured that no small clique could control it, but the continued ideological dominance of the masses was ensured through other means as well. The swiftness and impersonality of the system is one example. Trials lasted onlyone day, and the jurors were selected only hours before the trial. Once the litigants had delivered their speeches, the jurors simply voted for or against by secret ballot, without guidance from professional judges and without deliberation. Elite litigants would have had a very difficult time bribing or threatening more than two hundred jurors in a single morning, while the secret ballot made recriminations after the fact impossible. Because the trial was over so quickly, there was no time for pressuring or coercion, and so the collective opinion of the jurors was sovereign.

This system of amateur jurors worked because Athens never developed a massive body of legal literature preventing the ordinary citizen from understanding and participating in the process. Although the orators occasionally cite the verdicts of previous cases as examples for the jurors to follow, no well-conceived doctrine of precedent bound them to investigate and submit to the decisions of previous courts. There was no need to engage in intricate legal reasoning based on a body of juristic literature that was viewed as a source for authoritative interpretations of the law. Again, Rome provides a useful contrast. Roman law developed by gradual accretions that eventually yielded a complex and cacophonous mass of writings so overwhelming that later jurists found it nearly impossible even to organize it. The famous law code of Justinian has many inconsistencies and repetitions.

Preference for amateurs applied not only to jurors but to litigants as well. The Athenian system made no allowance for legal representation; there were no “lawyers” in the usual sense of the term. In private procedures, which were called dikai (singular: dikē), only the aggrieved party himself could appear in court, and he had to deliver a speech on his own behalf.²⁸ In public suits (graphai; singular: graphē) anyone who wished (ho boulomenos) was permitted to bring suit against the offender, but the person who lodged the suit had to deliver a speech at the trial; he could not simply hire a professional to speak for him.²⁹ Litigants could ask others to speak on their behalf, a practice called synēgoria, but these “advocates” (synēgoroi) usually offered a supplementary speech, not a substitute. The main prosecutor still had to speak. Furthermore, synēgoroi were expected to be close friends or family or persons who otherwise had a stake in the proceedings; they were not legal experts for hire.³⁰ The closest the Athenians came to legal professionalism was in the trade of the “logographers,” speechwriters who offered their services for a fee. Nevertheless, the man who hired a logographer to compose a speech for him still had to memorize and deliver it himself.³¹ Crime and punishment remained very personal affairs.

This emphasis on amateur participation was also supported by the Athenian method of publishing laws. Laws existed in physical space: they were published on plaques (stelai) scattered all over the city. To find the relevant statute, a prosecutor had only to locate the stele, read it, and copy it down. The medium of publication (stone) prevented these laws from running to extreme length or being constantly revised. One wonders if Alexander Hamilton had Athens in mind as a model when he warned his fellow Americans, “It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood: if they be repealed or revised before they are promulged, or undergo such incessant changes, that no man who knows what the law is to-day, can guess what it will be to-morrow.”³² Hamilton insisted on brevity, transparency, and stability for the law code. The first and third of these were accomplished at Athens by the publication of their laws in stone, and the second by their employment of standard Attic in the text of the laws; Athens knew no legalese.

As might be expected from a system that emphasized the participation of amateurs to such a degree, legal procedure was relatively straightforward and efficient. Most trials began with a summons (proklēsis) that the aggrieved person (or, in the case of public suits, the volunteer prosecutor) would issue to the accused in the presence of witnesses. Summonses speci-
fied a date for a pretrial meeting before the appropriate magistrate.³³ At this conference the magistrate would verify that the charge had been correctly lodged and set a day for a second hearing, the anakrisis, at which further preliminary matters were settled. For public suits (graphai), the anakrisis was the last step before the jury trial, while in dikai the disputants were required to attempt arbitration with a state-appointed mediator.³⁴ Only after failure at arbitration did they go to court.

The trial itself was also straightforward. The clerk read the prosecutor’s charges and the defendant’s response, and then both parties swore oaths to remain on topic. After this, they delivered their speeches, prosecutor first and then defendant. Using a “waterclock” (klepsydra), the clerk timed these speeches and ensured that both parties followed the limits appropriate to the procedure, which seem to have been a single speech of about three hours for graphai and two speeches in alternation of about forty minutes each for dikai.³⁵ In all trials each litigant was free to call as many cospeakers (synēgoroi) as he liked, but their speeches counted against the total allotted time. After both sides had finished making their cases, the jury voted without deliberation by secret ballot. In certain procedures, if a guilty verdict was returned, the trial moved to an assessment phase wherein the penalty was determined in another set of alternating speeches. (A famous example is the trial of Socrates.) Even cases prolonged in this way, however, were over by dusk of the day on which they had begun. The speed and efficiency of the process appear enviable to anyone accustomed to the plodding pace of justice in modern times.

Enforcement, however, was much more problematic. In the absence of a state apparatus for imposing the courts’ decisions on unsuccessful litigants, the winner of the lawsuit had to ensure on his own that the dictates of the court were carried out. His opponent of course did not always comply willingly.³⁶ If his opponent proved belligerent, his only legal recourse was to return to the court under the suit of ejectment procedure (dikē exoulēs), which authorized the successful prosecutor to take the awarded amount by force and entailed an additional fine on the opponent equal to the penalty imposed by the original verdict and paid to the state treasury. Notably, even in a suit of ejectment, a verdict favorable to the plaintiff simply gave legal sanction to seize property to defray the opponent’s debt and did not call upon impartial state officials to settle the dispute.

Inevitably, the Athenian courts offered the potential for unscrupulous individuals to abuse the system by blackmailing innocent people and taking advantage of their speaking skills to sue on frivolous charges. Athenians had a specific word of insult for such a person: “sycophant” (sykophantēs). Debate continues as to the exact definition of “sycophancy,” but it is quite clear that sycophants misused the court system for their own ends, often for monetary gain.³⁸ As will be seen below, these sycophants, together with enemies blinded by rage and without concern for the truth, constituted direct threats to the integrity of the court system. The prospect of being at the mercy of these two sets of ruthless individuals was terrifying: “When one divides up his life between his enemies and sycophants, this is the same as living no life at all.”

Sources For Athenian Law

Like the legal system itself, the sources for Athenian law differ markedly from the sources for other legal systems. In Athens the proceedings of trials were not formally recorded; magistrates did not write notes or commentaries as, for instance, Roman jurists did; and no handbooks on law survive.⁴⁰ Although laws in Athens were published on stone plaques and easily accessible to the public, the actual workings of the legal system were not embodied in a set of elaborate, codified rules but rather were constituted and reconstituted by the everyday practices of jurors and litigants. Customs and norms were passed down informally and orally as jurors and litigants both learned about the system from what was happening in the courts and contributed to the process in their own ways. The historian must therefore look beyond the written laws and investigate the actual proceedings of the trials to understand how the Athenian system functioned. The speechesand actions of the litigants themselves are of paramount importance in this regard.

The forensic speeches in the corpus of the Attic orators, nearly one hundred orations composed between approximately 420 and 322 BC, represent our most important source for Athenian law. These texts occupy a special position not only because of the number of them that survive but also because they were intended for an audience of ordinary Athenian citizens. The elite bias of most other ancient sources did not control how the orators presented their cases, since speakers had to appeal to the ideology of the masses to win.⁴² Thus, we can draw conclusions about the working of Athenian law and the ideology of Athenian citizens from a careful analysis of how litigants staged their arguments and attempted to sway the jury.⁴³ The study of rhetorical methods is therefore of prime importance for understanding Athenian law, politics, and society.

Rhetorical practice undoubtedly developed and changed during the century with which we are concerned. At the same time, it would be an undertaking of the utmost difficulty to track such changes. The extant speeches are not evenly distributed over the period (c. 420–322 BC) but rather occur in clusters. Antiphon, Andocides, Isocrates, and Lysias all composed their speeches before c. 380 BC. The bulk of the remaining speeches by Demosthenes, Aeschines, Apollodorus, Lycurgus, Hyperides, Dinarchus, and Demades were written in the last two decades of the period.

The possibly exceptional nature of the speeches that are preserved presents a further complication. Many of the transmitted orations doubtless owe their survival through the hazards of textual transmission at least in part to their peculiar and interesting features, such as the brutal attacks of aristocratic bullies in Dem. 54, the nearly comic adultery narrative of Lys. 1, and the competing interpretations of important historical events in Dem. 18 and Aeschin. 3. If such extraordinary cases are overrepresented, then many speeches do not necessarily provide an accurate representation of typical cases and disputes.

Complicating the matter still further, many orators seem to have specialized in certain types of cases. What may appear as differences in the presentation of traditionally used motifs over time may be more accurately attributed to differences in procedure. Demosthenes, whose corpus contains speeches of nearly every variety, is the exception; other orators had identifiable patterns in the types of cases they took on. Antiphon’s corpus has only three judicial speeches, all composed for trials concerning homicide. The only other speech composed for the homicide courts was composed by Lysias. Isaeus composed six of his twelve extant speeches for the diadikasia, a procedure often employed for the inheritance cases in which Isaeus apparently specialized, while only three diadikasia speeches exist outside Isaeus’ corpus.⁴⁶ Many procedures are attested in the works of only one or two orators. All dikai emporikai (mercantile cases) occur in Demosthenes’ corpus.⁴⁷ Likewise, Lysias composed all extant speeches intended for delivery at a dokimasia (scrutiny of a candidate for a magistracy) except one, a speech by Aeschines.

In view of these limitations, a synchronic approach is the most logical way to evaluate the sources. It is possible to treat the period from c. 420 to 322 BC as a unit, since the constitution and the population remained essentially constant.⁴⁹ The formulaic nature of courtroom speech also exerted a normalizing force that would have kept rhetorical developments within certain bounds. Speeches from this time frame will be adduced as evidence for the rhetorical use of enmity in the Athenian courtroom without respect to chronological development. Despite the limitations in the nature of the evidence, the number of surviving speeches is more than sufficient to allow a synchronic approach to yield meaningful conclusions.

These speeches generally follow the four-fold structural division discussed in ancient theoretical sources (e.g., Rhetoric to Alexander §§29–37) although there are variations.⁵⁰ According to the conventional understanding, first came the prooemium, a brief statement of purpose and an attempt to gain the audience’s goodwill, then the narrative of events (diēgēsis), then the formal arguments or “proofs” (pisteis), and finally the short closing plea (epilogos). In reality, proofs are often mixed into the narrative, and in any case the narrative invariably carries with it implicit argumentation (as will be demonstrated in chapter 2). The speaker typically tells the story from his own point of view in a way that encourages his listeners to sympathize with his points. Nevertheless, the formula of prooemium–narrative–proofs– epilogos was frequently used, probably because it aided both the speaker, by providing a framework within which the litigant could arrange his material, and the listener, who could formulate reasonable expectations about where the argument was headed.

The speeches make significant use of formulaic content and argumentative strategies as well. Repeated themes and motifs are to be expected in a form of literature that was disseminated orally, so it comes as no surprise that stock phrases and “commonplaces” (topoi) are quite common. Anyone who has read even a handful of the speeches of the Attic orators has probably come across speakers’ complaints about their inexperience in legal matters. Another example is the frequent complaint that the opponent has declined a challenge to extract information from a slave by basanos (a sort of judicial torture).⁵¹ Because persuasiveness was prized over originality in the high-stakes game of the courtroom, the orators drew freely from a large stock of available themes and techniques in constructing their arguments.The commonplaces that are repeated most often therefore represent some of the most persuasive, or at least those perceived to be the most persuasive, of the available methods for presenting a case.

Persuasion of the jurors through carefully articulated proofs was critical because trials tended to come down to a battle of words between the two litigants. Forensic science in the modern sense did not exist, and clear demonstration based on evidence that brought jurors to an obvious truth was difficult in the extreme. After the prosecutor and defendant delivered their speeches, the jury was left with the difficult task of discerning which of the two was representing the facts most accurately and was presenting the best interpretation of the relevant laws. Therefore, a successful speaker had to be able to integrate into his argument what little evidence was available and then produce a version of events that would seem more plausible than that of his opponent.

Aristotle makes a distinction between two types of “proofs”—the atechnoi and entechnoi, those that do not require technē (“art,” “skill”) and those that do. The atechnoi proofs are the raw materials, the givens of the case, such as witness testimonies, depositions, and laws. The entechnoi proofs are produced by the speaker himself and therefore require rhetorical skill. An example is the use of characterization: a speaker may carefully choose his words and plan his delivery so that he will appear to the jury as a reasonable man who should be trusted in these circumstances. A litigant may also make use of argumentative devices such as eikos, “plausibility,” which appeals to the listeners’ natural sense of what is inherently likely. For instance, a prosecutor who is suing for theft may point out that his opponent was in debt and that he had an easy opportunity to pilfer the goods in question. These assertions do not lead necessarily to the conclusion that the defendant in fact stole the goods, but if the audience accepts that it is likely that a man in such circumstances would steal if given the chance, then the prosecutor’s case has been strengthened. Since the evidence was limited and was common to both litigants, the success of a speaker depended on his ability to bring the jurors over to his side by means of supplemental argumentation. The goal of legal rhetoric was persuasion, and a good speaker mobilized all available evidence, witnesses, and argumentative techniques to that end.

Other Sources For Athenian Political And Social Practice

Because of their direct concern with enmity, the political sphere, and mass ideology, the Attic orators are easily our best source for enmity in Athens. However, given the general paucity of source material for the ancient world, it would be unwise to neglect anything that may shed light on Athenian values. In fact, texts from several other genres provide limited but very useful supplementary evidence.

One such source is the corpus of fourth-century curse tablets discovered in Attica. These tablets usually consist of “binding spells” (katadesmoi), formulaic invocations of divine aid against one’s adversaries,⁵² that were etched into thin pieces of lead and deposited in various hiding places. It is of course likely that long-standing relationships of enmity were the context for such acts of spiritual aggression but in only some cases does this become clear from the text itself. For instance, the so-called legal curses refer to lost court cases or, more often, forthcoming ones, providing clear evidence for how personal and heated legal battles could become. If, as seems likely, these curse tablets were not inscribed as private religious petitions but rather represent the final product of an elaborate, formal, and public ceremony, each katademos provides a potential glimpse into a relationship of enmity, the rest of whose history is unrecoverable.

The philosophical works of Plato and Aristotle provide some illuminating information about social practice and norms. The Platonic dialogues abound in examples drawn from everyday life in Attica that are introduced as clear-cut examples illustrating a more complex philosophical point. Many observations of this kind are useful for the historian because in such cases the philosopher had no reason to misrepresent common Athenian values and practice. (In fact, he had every reason not to; if he had, the point would have fallen flat.) These glimpses of everyday life, tangential to the main thrust of the discussion, can provide a window into contemporary reality.⁵⁴ Aristotle, whose works are treatises rather than dialogues with a dramatic setting, presents an entirely different set of difficulties, but much of what he says can be useful as well. This is especially true of the Rhetoric, in which Aristotle lists many types of argumentative techniques that can be employed to persuade an audience. When Aristotle says, “We get angry at those who rejoice or are generally happy at our misfortunes; for this is a mark of an enemy or one who belittles us,”⁵⁵ he is not attempting to arrive at abstract philosophical truths; this is his best attempt to summarize contemporary Athenian views.⁵⁶ Such information can be extremely valuable as a summary of unexpressed norms that we see operating in Attic oratory. There is, in fact, a lot of correspondence between Aristotle’s ideas about enmity as expressed in the Rhetoric and the actual undergirding ideas in evidence in the law court speeches.

Another useful theoretical treatise from the fourth century BC is the Rhetoric to Alexander, falsely attributed to Aristotle. This handbook on oratory is useful for many of the same purposes as Aristotle’s Rhetoric, but the Rhetoric to Alexander is often a more valuable guide to rhetorical practice in Athens in that it describes many rhetorical strategies of which the Attic orators actually make use. Hence, chapters 2 and 3, which treat enmity as a rhetorical device, make heavy use of this treatise.

Finally, we have the dramatic works of Aeschylus, Sophocles, Euripides, and Aristophanes. The setting of Athenian tragedies was almost invariably a distant mythological past with larger-than-life characters, but nonetheless it was political drama and tended to reflect the values and contemporary issues of Athenian society. An obvious example of this is the famous passage from Euripides’ Suppliants, in which Theseus argues with a Theban herald about the merits of oligarchy and democracy.⁵⁷ Theseus’ statements that the ruling king of Athens is the people and that the city is therefore “free” have no place in the typical mythological events associated with the pre-Trojan War heroes. Rather, they are clear appeals to democratic ideology within the mythic framework of the play.

Another example is Sophocles’ Antigone, which dramatizes the conflict between the unwritten and eternal laws of the gods and the positive law established by man. This is explicit commentary on current debates raised by Greek rationalist political thinkers who would become known as the “sophists.” Likewise, mythological characters often conform more closely to contemporary Athenian norms than those of their Homeric predecessors. In Aeschylus’ Suppliants, the king, Danaus, refuses to act without the people’s consent.⁵⁸ Examples of this type could easily be multiplied, but these are sufficient to illustrate the point that Athenian tragedy is not a carnivalesque affair completely removed from contemporary realities. On the contrary, it often reflects Athenian values. The problem is telling whether a particular statement is summarizing the mainstream of Athenian thinking or is an archaizing, mythological convention of behavior. For this reason, it is best to use tragedy to corroborate evidence gleaned from other sources instead of attempting to establish a social practice on dramatic evidence alone.

The comic plays of Aristophanes, although their setting (contemporary Athens) is closer to home, are subject to at least as many problems as tragedy. They are highly satirical, make regular use of exaggeration and parody, and employ utterly fantastic characters and plots. Nevertheless, comedy, like tragedy, can be used in tandem with other sources to corroborate a thesis about Athenian society. These plays are filled with tantalizing references to Athenian social and political practices, but each passage must be handled with care and corroborated from other evidence.

Précis

A first and necessary step for this project is to establish what enmity was and how it worked in Athenian society. The decision to begin the book with this chapter rather than the study of the law court orations that commences with chapter 2 was a pragmatic one. Chapter 1 assumes the methodological premises that follow logically from the detailed rhetorical analysis of the speeches in chapters 2–3, but by the same token an understanding of how enmity works is necessary before the reader engages fully with the orators’ rhetoric. The relationship between the historical question of the nature of enmity in Athenian society and the rhetorical use of enmity in the law court speeches is organic rather than linear. They have been separated for the sake of clarity and organization, but all of the chapters are interdependent.

Chapter 1 (“The Social Dimensions of Enmity”) sets the stage by drawing attention to three important issues associated with enmity in classical Athens: (1) how hostile relationships were conceived in linguistic and social terms, (2) how they arose, and (3) how they propagated themselves. Athenians conceived of enmity as a communally recognized relationship, not simply an emotional state. The word echthra implied reciprocity: mutual acts of harming between enemies. For an enmity to exist, the participants both must be aware of the relationship and must actively attempt to dishonor each other. These relationships, furthermore, seem to have been quite common. Athenian literature presents a fairly cogent picture in which enmities were a part of everyday life. This resulted naturally from the relative ease with which one could make an enemy but also from the tendency of enmity to spread to include kinship and friendship groups. A hostile relationship, once started, caused a chain reaction, drawing in previously uninvolved third parties. Athens was thus an “enmity culture,” a society whose people were frequently concerned with the problem of real, dangerous enemies.

The next two chapters (chapters 2–3) move on to consider enmity in the legal realm, concentrating on our most fertile source for enmity in Athens, the speeches composed for the law courts. These orations, being complex literary texts, require careful handling. Appreciation of their literary qualities should be prior to and preparatory for a study that exploits them as historical witnesses of Athenian culture. Most important for the present purposes is their inherently rhetorical nature. Speakers in court are not concerned to give a dispassionate description of Athenian values but rather to bring the jury around to their way of seeing things. The resulting manipulation of norms concerning enmity must be taken into account at all times. For this reason the study of enmity as a rhetorical device is a necessary step in employing the Attic orators as sources for Athenian thinking about feuding, violence, and other related practices.

The primary subject of inquiry in chapter 2 (“The Rhetoric of Enmity as a Legal Strategy”) is the rhetorical approaches that litigants take when affirming or denying enmity. The speechwriters’ commonest tactic is to include a narrative of a hostile relationship as part of an argumentative strategy supporting the speaker’s legal contentions. Litigants often invoke their preexisting hostile relationships with their opponents to create a context for their version of events that will make their claims seem more plausible. Speakers thus exploit their narratives to make implicit arguments about the case and to speak to the relative credibility of the respective parties. For instance, a prosecutor in a case entailing financial reward may claim that the defendant has long been his enemy to preempt suspicions that he is motivated by desire for pecuniary gain. At the same time, he will attempt to downplay his own role in the feud so as not to fall into the opposite error of appearing to have trumped up a charge in pursuit of an enemy. He may also include information about his opponent’s past that makes him appear to be the type of person that would commit the crime of which he is accused. His presentation of his relationship with his opponent must thus be carefully balanced to increase the credibility of his charges. This is an example from a prosecution speech, but defendants also employ the rhetoric of enmity in much the same manner. The strategies differ significantly from one litigant to another, but the basic principle of using enmity as a vehicle for probability and character arguments remains the same.

Chapter 3 (“The Flexibility of the Rhetoric of Enmity”) works within the framework established by chapter 2 to show that the rhetoric of enmity was malleable and capable of adapting to a variety of rhetorical situations. The methods by which litigants shaped their rhetoric to fit their specific needs are diverse and sophisticated. Several recent attempts⁵⁹ have been made to discover a single determining factor for an orator’s decision about affirming or denying enmity, but the strategies and the rationale behind them cannot be reduced to one or two criteria. Procedure, the type of dispute, the speaker’s history with his opponent, the personae of the speaker and his opponent in the eyes of the public, and many other features of the case can all play a role. A holistic analysis of the use of enmity in these texts reveals that these presentations are not stand-alone pleas, the result of monolithic topoi that can be easily extracted from one speech and inserted in another. The orators mold the rhetoric of enmity to fit their own needs and integrate it fully into their overall argumentative strategies.

Chapter 4 (“Enmity under the Law: The Limits to Vengeance”) shifts the focus from the rhetorical presentation of enmity to the ideology and practice of enmity. The exploration of the literary dimension of enmity in chapters 2–3 will have laid the necessary groundwork for such a study by challenging the methodology that assumes that we can extract Athenian values from litigants’ narratives by treating them as paradigms of Athenian morality. In fact, the Attic orators’ strategies are designed not to justify themselves so that the jury will vote for them based on their character and status and regardless of the facts of the case but rather to support the truth of their own interpretation of events. The rhetoric of enmity is not governed by a litigant’s need to find extralegal justification but rather addresses legal concerns directly.

Using the framework established in chapters 1–3, chapter 4 investigates how Athenians conceived of the role of enmity in regard to the institutions of the polis. A “feuding society,” as classically understood, is characterized by the privatization of vengeance as a legitimate way of pursuing an enemy. The state apparatus turns a blind eye to citizens who prefer to settle their disputes in their own ways, even sometimes by violent means. Athenian thinking was far removed from this sort of ethic. Although the exploitation of the courts to pursue private vendettas was not in itself problematic, Athenian ideology put important limits on feuding behavior. Litigants in court were expected to prosecute for real, identifiable offenses and to prove their cases. The jury did not make allowance for enemies who attempted to convict each other based merely on slander or falsifications. Speakers accordingly had to play to this expectation and attempt to prove that their versions of events were correct. Another important limitation on feuding was a strict prohibition on violence. Athenians viewed the citizen’s body as inviolable and protected it with both institutional guarantees and informal injunctions to the citizenry at large to prevent escalation. Despite the strong presence of personal enmity as a pervasive force in societal relations, feuding behavior was firmly circumscribed by the rules of the game.

The Athenian attitude toward enmity was a product of its time. The agonistic impulse of the Greeks remained strong in Athens despite two centuries of democratic ideological hegemony, but, at the same time, this competitiveness was not permitted to wreak havoc on social order and threaten the basic tenets of the democracy. To protect the weaker citizen from abuse by the stronger, institutional and ideological safeguards had to be set in place to guarantee the security of each citizen’s person. The result was a society with seemingly contradictory features. Athens allowed ample space for honor-driven citizens to pursue their enemies but also established checks that kept them from going too far.

 

Reviews: 

“This book is very accessible, so it can be read by both students and specialist scholars, as well as by those outside the area of Greek social history who may be interested in a very carefully articulated explanation of social relations among Athenians.”
David Mirhady, Professor of the Humanities, Simon Fraser University, and coauthor of A New Working Bibliography of Ancient Greek Law (7th–4th centuries BC)