Women and Law in Classical Greece

Raphael Sealey

• Publisher: The University of North Carolina Press
• Year: 2016
• ISBN:
  9781469610245
• Topic: Literature
• Subtopic: Ancient & Classical Literary Criticism
• Index: Literature

Based on a sophisticated reading of legal evidence, this book offers a balanced assessment of the status of women in classical Greece. Raphael Sealey analyzes the rights of women in marriage, in the control of property, and in questions of inheritance. He advances the theory that the legal disabilities of Greek women occurred because they were prohibited from bearing arms. Sealey demonstrates that, with some local differences, there was a general uniformity in the legal treatment of women in the Greek cities. For Athens, the law of the family has been preserved in some detail in the scrupulous records of speeches delivered in lawsuits. These records show that Athenian women could testify, own property, and be tried for crime, but a male guardian had to administer their property and represent them at law. Gortyn allowed relatively more independence to the female than did Athens, and in Sparta, although women were allowed to have more than one husband, the laws were similar to those of Athens. Sealey's subsequent comparison of the law of these cities with Roman law throws into relief the common concepts and aims of Greek law of the family. Originally published in 1990. A UNC Press Enduring Edition -- UNC Press Enduring Editions use the latest in digital technology to make available again books from our distinguished backlist that were previously out of print. These editions are published unaltered from the original, and are presented in affordable paperback formats, bringing readers both historical and cultural value.

Chapter One: Introduction: Women in Greek Thought

He is a barbarian, and thinks that the customs of his tribe and island are the laws of nature.—Caesar in G. B. Shaw, Caesar and Cleopatra

Xerxes, the Great King, led his army and his fleet against European Greece in 480. After he had turned the pass of Thermopylai by a bold maneuver, most of the cities of central Greece yielded to him. They had little choice, for north of the isthmus of Corinth there was no longer any position where the Persian advance could be checked on land. But the Athenians responded differently to the Persian approach. They asked the Hellenic fleet, which was retiring from Artemision, to put in to Salamis, and Herodotos says:

For the following reason the Athenians asked them to put in to Salamis, in order that they might evacuate their children and their wives from Attica, and also in order that they might deliberate about what they ought to do. (8.40.1)

Herodotos, that is, says that the Athenians wished to save “their children and their wives,” although a rightly respected translator (G. Rawlinson) would make him say “their women and children.” Yet perhaps the reader of Herodotos will doubt whether the phrase “their children and their wives” reveals an order of value. If so, one has but to read on. After explaining what the Athenians had to deliberate about, the historian continues:

The naval contingents of the other Greeks put in to Salamis, but the Athenians put in to their own territory. After their arrival they issued a proclamation, that each of the Athenians should save his children and his slaves as best he could. Then most of the Athenians dispatched them to Troezen but some to Aigina and some to Salamis. (8.41.i)

Here Herodotos makes no explicit reference to the women. They could be understood, since he mentioned the children.

Forty-nine years later the Peloponnesians invaded Attica. The Athenians withdrew within the safety of their fortifications. Thucydides reports this and continues:

After listening [to Perikles] the Athenians were persuaded and brought in from the fields their children and their wives, the furniture which they used at home and even the woodwork of their houses, which they dismantled; they sent their sheep and beasts of burden to Euboia and the neighboring islands. (2.14.1)

Several translators (R. Crawley, J. H. Finley, Jr., R. Warner), among them even a man as sympathetic to Thucydides as Thomas Hobbes of Malmesbury, would make the historian say “their wives and children.” B. Jowett is exceptional, for he writes “their children and wives” in his version.

Herodotos and Thucydides speak of women and children in many other passages. Their preferred order is “children and women (or wives).” Occasionally Thucydides writes “women (or wives) and children,” but reasons can be conjectured for this variation.¹ Writing some four hundred years later, Dionysios of Halikarnassos offered a significant contrast. In the Roman Antiquities he said “women and children” more often than “children and women,” even though he tried to imitate Thucydides. Attitudes current in Rome in the time of Augustus were different from those of fifth-century Greeks.

The tasks of the translator and of the historian are much alike. Each has to select from the material provided by his source. The translator selects those features of the original which in the translator’s opinion deserve the attention of the reader. Translators of Thucydides have set out to furnish the reader with a Thucydidean account of the political and military events of the Peloponnesian War. Often they have assumed that their readers would not be concerned to ascertain the relative esteem in which Greeks held their wives and their children and that therefore the phrase “their children and their wives” would merely jar. If, on the other hand, students of ancient Greece wish to find out how men of the fifth century regarded women, they will attach importance to the preferred order in the phrase about women and children. They will conjecture that this preference reflects outlooks concerning marriage and the treatment of women. They may conclude that Greek men valued their children for their own sake and valued their wives for supplying them with children. If they have a speculative turn of mind, they will wonder whether this feature of Greek thought reflects assumptions held at a deep level in other societies but not often acknowledged.

Several passages of classical prose reveal an estimation of women which jars the modern reader. Perikles, as portrayed by Thucydides, delivered a funeral oration on the men who had fallen in the first year of the Peloponnesian War. After praising them and consoling the survivors, he added:

If I need to mention also the merits of women who will now find themselves bereft, I will address them comprehensively with a brief exhortation. High praise is your due, if your behavior is not inferior to your natural endowment and if that endowment is least spoken of among men for laudation or censure. (2.45.2)

Again, about 340 a pleader in court distinguished between the spheres proper for women of different kinds:

We have prostitutes for the sake of pleasure, concubines for daily care of the body, and wives for the purpose of begetting legitimate children and having a reliable guardian of the contents of the house. ([Dem.] 59.122)

A remark attributed to Sokrates by Xenophon is more telling, since it professes to express a higher estimate of women than it recognizes as customary. Xenophon describes a party where the company were entertained by a female juggler. She contrived to keep twelve hoops in the air at once. Sokrates commented:

In the performance of this girl, as on many other occasions, it is evident that female nature is not in the least inferior to that of the male. It only lacks intellectual and physical strength. (Xen. Symp. 2.9)

Historians, like translators, must present a strange society to people of their own society, whose assumptions they share. They must be on their guard against imposing those assumptions on the distant society. Progress in understanding classical antiquity has often been achieved by challenging modern assumptions which had been imported into the material. Goethe even assumed that Pindar was excited by chariot races.² Not the least reason why the position of women in Greek society merits study is that Greek assumptions on this matter jar the modern reader.

The prose texts of which a sample has been reviewed speak as if Greek women were narrowly restricted to the domestic sphere. Other texts offer a different picture. In particular the Attic tragedies present women who are fully developed personalities; they take decisions and make their will felt. Faced with the dilemma between the women of prose and the women of tragedy, some have thought that the latter reflect the real women of Greece and the portrayal in prose is a conventional fiction. Others have argued that both portrayals are products of male imagination and the women of everyday life need not have resembled either.³ It must be admitted that the real women of everyday Athens are inaccessible to historical research. None of their utterances has survived. The inscriptions on their tombstones were carved by men, and the vases which show their everyday activities were painted by men.⁴

If the women of ancient Greece, their thoughts, and for the most part their deeds remain elusive, one may still hope to discover the attitudes held by men toward women. A sample was given above of statements made by men about women and their proper behavior, and a great deal of Greek imaginative literature, notably the tragedies, portrays women with care. Writings of these two kinds may be consulted for information on male attitudes toward women, but some doubt must remain about the soundness of the conclusions drawn. For writings of both kinds are relatively self-conscious utterances; for example, it is difficult to tell whether the distinctions drawn by Pseudo-Demosthenes between prostitutes, concubines, and wives expressed what all male Athenians thought, or what the speaker wished them to think, or what he professed to think for his immediate purpose in litigation although outside the courtroom he may have held a different view. Unguarded utterances, such as the preferred order of words in the phrase “children and women,” are likely to reveal attitudes held at a deep level, but they are not numerous; most Greek literature was highly self-conscious.

The law in relation to women in Greek cities was relatively stable and is therefore likely to reveal attitudes held at a deep level. Indeed the study of this branch of law promises to be fruitful for two further reasons. First, students of comparative law are somewhat immune to the disease of imposing assumptions drawn from their own society on to the material which they study. They are confronted constantly with institutions which are strange to them, and so they learn not to take the beliefs or concepts of their own society for granted. They learn, for example, at an early stage in their investigations that Athenian women were given in marriage by their male relatives and their own choice had no legal bearing on the contract. Inquirers who are accustomed to a society in which marriage comes about by the consent of the man and of the woman discover that this practice, however commendable, cannot be assumed as a universal law of nature but has been brought into existence by thought and effort, something which will call for note in chapter 7. The second reason why the law concerning Greek women is a promising field for study is that it brings the inquirer close in one respect to the real women of antiquity. Admittedly the law was not designed by women and there is no reason to suppose that it reflects their beliefs or their wishes. But it was imposed on them and an attempt was made to make them conform to its institutions. They had to take note of the law, even if they sometimes succeeded in circumventing it.

Social reality may sometimes have differed from what the law envisaged. Occasionally there is evidence for asserting this. In the Epitrepontes (Arbitration) of Menander Smikrines has given his daughter in marriage recently to Charisios with a dowry of no less than four talents. He learns that Charisios is wasting the property in riotous living, and so he sets about dissolving the marriage. He exclaims indignantly that a husband who has received so large a dowry ought to consider himself the slave of his wife (11. 134–35). Athenian law never required a man to be subservient to his wife. Although the dowry had to be refunded if the marriage was dissolved, as long as the marriage lasted the husband’s discretionary authority to administer the dowry was unlimited. Yet the remark of Smikrines implies that a bride who brought a large dowry might in fact tyrannize over her husband.

Far more is known about the laws of Athens than about those of other Greek cities. Much of Aristotle’s Constitution of the Athenians, whether written by him or by a pupil, has been found on papyrus; though mainly concerned with public matters, it throws some light on private institutions. Moreover, the extant speeches of the Athenian orators, especially those of Isaios and the private speeches in the Demosthenic corpus, are an invaluable source, both because the information they provide is extensive and because they reveal the law as actually observed in transactions and litigation. The main deficiency of this source is that usually only one speech is preserved from each lawsuit; the answer of the other party and often the outcome of the case are not known. The Byzantine manuscripts transmitting the speeches include at many points putative texts of laws. A few of these texts have been shown to be forgeries, but the tenor and even the wording of some are guaranteed by the orator’s argument and many of the texts have stood up to criticism successfully.⁵

If evidence on Athenian institutions is relatively plentiful, this is due to a fact of major importance to the historian of Greece. Athens was far larger in population and wealthier than the average Greek city. It will not be amiss to note here something about the comparative size of the Athenian population and about its composition. In 322, at the end of the Lamian War, Antipater imposed terms on the Athenians and restricted active citizenship by a property qualification; the number of citizens who met the qualification was 9,000, and 12,000 were excluded. Thus there were 21,000 adult male citizens. Demetrios of Phaleron controlled Athens for the Macedonians from 317 until 307 and held a census; it reported 21,000 citizens and 10,000 metics or resident aliens.⁶ The other data on population, though scanty, conform to the hypothesis that in the fourth century Athens usually had about 21,000 adult male citizens. One must allow for a complement of women and children. The figure of 9,000, those embraced by the property qualification of 322, is suggestive. In 411 a plan was launched to restrict some degree of privilege to those wealthy enough for service as hoplites, and when these were enrolled, they are said to have numbered 9,000.⁷ Within the approximately constant body of 21,000 adult male citizens there was perhaps an even more approximate number of 9,000, who were recognizably wealthier than their fellows. It has been argued plausibly that the 9,000 were those whose property, usually a small-holding of land, gave them independence; the other 12,000 were landless men, living from hand to mouth at the border of destitution.⁸ Doubtless the total population of citizens and the proportion who had a viable holding of land for subsistence were larger shortly before the Peloponnesian War, when Athens reached its highest point of power; so much is implied by the figures given by Thucydides (2.13.6–8) for the troops under arms at the beginning of the war.

Greek cities were numerous and most of them were not nearly so large as Athens. Xenophon (Memorabilia 3.5.2) says that the Boiotians were as numerous as the Athenians. That may or may not be true. Boiotia was a federation of many cities; Athens was a unitary state. A recent estimate puts the total number of Greek cities, including the islands and the cities on the coast of Asia Minor but excluding Sicily, South Italy, and Cyrene, at 750 at least. In view of the amount of arable land available in each place it has been calculated that the average area of a Greek city varied between 25 and 100 square kilometers. For the Aegean islands totals of population at intervals since A.D. 1879 are available; these figures embrace the period when the population was the largest that the islands could support, before migration to the towns of the mainland began on a large scale. Hence it has been estimated that in the classical period the normal Greek city had between 230 and 910 adult male citizens. That was consequently the number of families, and there was no room for resident aliens or slaves. The “city,” the polis, was a village whose inhabitants could go out on foot to till their fields. The few ancient data agree.⁹ Most of the cities which appear as actors in narrative histories—Corinth, Sparta, Thebes, Chios, Mytilene, Rhodes, and even Mega...