The evolution of criminal law in Western legal systems is often portrayed as a path leading from objective to subjective notions of criminal responsibility. By examining the historical development of the notions of subjective responsibility, this article suggests that the function of a wrongdoer’s subjective mental state, in both its substantive and procedural aspect, as an element in the process of attributing criminal responsibility, remains much the same today as it was in antiquity. This is indicated by what subjectivity, as (...) an essential condition of culpability, is said to imply: the distinction between intentional and unintentional acts. Although the notions of intent and malice aforethought are attested to in various sources on ancient Athenian law, there are several kinds of cases in which the role played by these aspects—traditionally referred to as mens rea —remain unsolved in contemporary jurisprudence and legal practice. Yet despite the difficulties of establishing facts in particularly complex criminal cases, setting the boundary between “intentional” and “unintentional” remains crucially important in determining criminal responsibility and thus in distinguishing the “licit” from the “illicit,” which is the very foundation of the rule of law. (shrink)

When is it rational to commit suicide? More specifically, when is it rational for a Platonist to commit suicide, and more worryingly, is it ever not rational for a Platonist to commit suicide? If the Phaedo wants us to learn that the soul is immortal, and that philosophy is a preparation for a state better than incarnation, then why does it begin with a discussion defending the prohibition of suicide? In the course of that discussion, Socrates offers (but does not (...) necessarily endorse) two arguments for the prohibition of self-killing, at least in most circumstances, which have exerted a long and powerful influence over subsequent discussion of the topic, particularly in theist contexts. In the context of the Phaedo itself, however, this introductory conversation plays a crucial role in setting the agenda for the remainder of the dialogue and offering an initial discussion of the major concerns of the argument as a whole. In particular, the discussion of the nature of suicide is intimately bound up with Socrates¿ conception of true philosophy as a ¿preparation for death¿, the relationship between soul and body, and the immortality of the soul. My intention is to provide a reading of that passage (61e-69e) which asks whether the Phaedo can offer a philosophically satisfying distinction between suicide and philosophy and how it relates to other ancient philosophical attitudes to self-killing. I argue that Socrates does not think that being dead is always preferable to being alive, and that the religious views expressed in the passage are consistent with his general stance on the benevolence of the gods. (shrink)

In a neglected passage, Aristotle affirms that certain action-types and emotions – for example, murder, and shamelessness – 'have names that imply badness’ and are categorically prohibited ( EN II.6 1107a8–15). Two questions are of interest. First, on Aristotle’s view, why are these act-types and emotions always vicious? Whether giving little money or feeling anger are vicious is context sensitive. Why aren’t murder and its ilk like that? Second, why are the prohibitions absolute? Why shouldn’t, say, the prospect of avoiding (...) disaster justify them, even if vicious? In this paper, I address these questions. I finish by responding to an objection by Peter Geach. (shrink)

Perhaps more than any other dialogue, Plato's Laws demands a reading that is at once historical and philosophical. This text's conception of the ‘rule of law’ is best understood in its contemporary socio-political context; its philosophical discussion of this topic, in fact, can be firmly located in the political ideologies and institutions of fourth-century Greece. In this paper, I want to focus on the written lawcode created in the Laws in the context of the Athenian conception and practice of rule (...) by written law. How are the Athenian laws authorized, disseminated, and implemented, and how does Plato's lawcode reflect and/or depart from this model? What is the status of the ‘text’ of each lawcode? How—and how well—do the citizens know the law? When and by whom can the lawcode be altered? Recent work on literacy and on rule by written law in fourth-century Athens invites a serious reconsideration of Plato's lawcode and the polity it is designed for. Certainly Plato's Laws is grounded in a serious meditation on Athenian legislative practices. But Plato adds a novel ingredient to his legislation—the ‘Egyptian’ practice of ‘doing things by the book’ exemplified by the institution of laws which compel doctors to treat patients in strict accordance with venerable and, indeed, sacred medical texts. As I will argue, the ‘Egyptian’ medical and textual practices offer a model for the rule of law quite different from that found in Athens. (shrink)

Current discussions of hermeneutical injustice, I argue, poorly characterise the cognitive state of victims by failing to account for the communicative success that victims have when they describe their experience to other similarly situated persons. I argue that victims, especially when they suffer moral wrongs that are yet unnamed, are able (1) to grasp certain salient aspects of the wrong they experience and (2) to cultivate the ability to identify instances of the wrong in virtue of moral emotions. By moral (...) emotions I mean emotions like indignation that reflect an agent’s ethical commitments and bear on her ethical assessments. Further, I argue that victims can impart their partial understanding of the wrong they suffer to others who are not similarly situated by eliciting moral emotions such as pity that are tied to broad notions of justice and fairness. (shrink)

Speeches and persuasion dominate Plato’s Crito. This paper, paying particular attention to the final passage in the dialogue, shows that the focus on speeches, persuasion and allusions to many other elements of rhetoric is an integral part of Plato’s severe criticism of democracy, one of the main points of the Crito. Speeches allow members of a democracy – represented in our dialogue by Crito – firstly to break the law for self-interested reasons while considering themselves still to be law-abiding citizens, (...) and secondly to feel that they are in a tolerant society preferring logos/persuasive speech above bia/compulsion. Socrates counters Crito’s speeches with speeches of his own, not only to defeat him at his own game, but also to make him aware how dangerous the game is. Real knowledge is preferable to speeches, but a democracy without speeches and rhetoric is doomed. (shrink)

Many of Menander's comedies are structured according to a rape plot pattern in which a young Athenian citizen usually rapes and impregnates a female citizen prior to the opening of the play. In most cases, the rape leads to a happy ending: the marriage of the rapist and victim. This casual treatment of rape is striking because in all other respects Menander's plays are not only scrupulously faithful to Athenian law, they also use Athenian legal and social norms as their (...) own generic conventions. Although the rape of a female citizen was a serious oense in Athenian law, potentially punishable with death, and a flagrant violation of the norms of Athenian citizenship, Menandrian comedy never morally or legally problematizes rape. This study considers how the comedies neutralize the potential legal signicance of rape and what this tells us about Athenian law and the ideology of democratic citizenship. It argues that by portraying a neutral form of rape, Menander's comedies implicitly articulate those factors which had the potential to bring "rape" within the purview of Athenian legal discourse. Menandrian Comedy's strategic fidelity to the norms of Athenian citizenship also tells us something about the gender ideology of Athenian democratic citizenship, that is, the ways in which relations between the sexes support and sustain civic relations between men in Athenian political culture and democratic ideology. While Menander's romantic plots uphold the laws of citizen marriage, they do not passively enact the legal constructs. In one common variant of the rape plot, the gendered construction of citizenship embedded in Athenian law is specically conjoined to democratic norms. In this type of play, a wealthy young citizen rapes and eventually marries the daughter of a seemingly poor citizen. By using rape to generate matrimonial unions between the rich and the poor, these plays extend democratic norms into the social arena. The formation of marriages across class lines disrupts the eects of intergenerationality in reproducing social and economic inequalities. (shrink)

This article argues that attention to the expressive function of law suggests that the Athenian laws prohibiting former prostitutes from active political participation may have had a much broader practical impact than previously thought. By changing the social meaning of homosexual pederasty, these laws influenced norms regarding purely private conduct and reached beyond the limited number of politically active citizens likely to be prosecuted under the law. Some appear to have become more careful about courting in public while others adopted (...) a conception of chaste pederasty that would not run afoul of the law. The prostitution laws may also have provoked resistance among a particular subset of elites, the apragmones, contributing to this group's deliberate disengagement from public affairs. (shrink)

This article discusses Lysias’ Against Eratosthenes as an ancient Athenian instance of the superior orders plea, a line of defence made notorious during the Nuremberg trials, which in turn became the cornerstone of modern war crime legislation. Whereas the pre-Nuremberg jurisdiction largely embraced the principle of superior responsibility, whereby a subordinate executing criminal orders was not to be held liable for them, the trials of the Nazi war criminals brought about a complete reversal of this doctrine. While remaining faithful to (...) the spirit of the Nuremberg jurisdiction, the subsequent legislative acts sought to further elaborate its underlying principle of absolute liability, in order to precisely determine the question of guilt and innocence. I argue that despite the close relationship between modern legal systems and Roman law, which fully embraced the doctrine of superior responsibility, it is in the juridical thought of ancient Athens that one finds the archetype of contemporary war crime legislation. (shrink)

While it is sometimes thought that free Athenian women were hemmed in by surveillance within the oikos, this article argues that the obstacle that impeded them when they attempted to control property was that they were excluded from the impersonal and formal systems of surveillance of male citizens. Athenian public life, lived in the view of others, dramatically extended the agency of those within it. While women could compensate for their legal incapacities by cultivating the personal trust of men, this (...) required them to treat some of the people closest to them instrumentally, thus transforming their affectionate relationships. (shrink)

Two excerpts from Xenophon, in which he states that Socrates avidly practised religious ceremonies promoted by Athens, are subject to two different interpretations by modern historians. For some, they are the proof that the Athenian city was only concerned with the rituals of its fellow citizens, and in no way with their beliefs. In contrast with this view, Hendrick Versnel feels that, by writing that Socrates performed ceremonies, Xenophon thinks that he proves that his master really did believe in the (...) gods. Both of these interpretations are incorrect, as a careful new consideration of these passages can demonstrate. (shrink)

This article explores the role and modes of operation of metaphorical framing in ancient Greek and modern European and American political discourse. It looks at how concepts such as citizenship, ownership, family, morality, finance, sport, war, domination, human life, and animals are used to reframe political issues in ways promoted by the speaker, and how they may continue to be reshaped in the ongoing political discourse. The analysis of examples of ancient Athenian public rhetoric and of modern European and American (...) political debates reveals the differences and some striking similarities in the ways political and civic values were expressed and reframed in antiquity and how they are used today. This essay also discusses the potential effects of such framing in antiquity and in more recent times. (shrink)

This article discusses the way the ancient Greeks dealt with public and private debts, focusing on one specific aspect: debt cancellation. On the one hand, ancient Greeks were aware of the risks entailed in debt relief as a tool for fuelling civic strife: sources describe it as a demagogic or even criminal action often in association with the political agenda of tyrants. On the other hand, however, Greeks knew well also the benefic effects of debt cancellation in coping with financial (...) and political crisis. In late accounts of archaic history, debt relief is the solution to civic strife and the foundation act of political order. Some public decrees of the Hellenistic period attest debt relief as a communal decision of the polis, dictated by the necessity of preventing or solving ongoing or imminent crises. This second meaning and purpose of debt cancellation should perhaps urge us to reconsider from a different perspective the “politics of debt” in today’s Europe. (shrink)

The title is unashamedly plagiarized from Stephen Todd's excellent book, The Shape of Athenian Law. The plagiarism is slightly misleading, however, since my interest is in law as enactment while Todd's title expresses his interest in law as system . The issue I wish to address is the formulation of written laws in Athens during the late archaic and classical period, specifically the balance between procedural and substantive law. Substantive law deals with rights, obligations, offences, etc. Its role is to (...) define behaviour which is required, allowed, or prohibited. These are what Hart terms ‘primary rules’. Procedural law, on the other hand, deals, as the name suggests, with the administration of justice, that is with jurisdiction, process, etc. Hart's term for these is ‘secondary rules’. The two cannot be separated quite as neatly as I have suggested, of course. A procedural law can scarcely avoid mentioning the offences or rights whose punishment or protection it regulates, while a substantive law may need to address issues such as jurisdiction. This is therefore an issue of orientation, not a simple binary division. However, as a broad basis for classification it is of value. (shrink)

The title is unashamedly plagiarized from Stephen Todd's excellent book,The Shape of Athenian Law. The plagiarism is slightly misleading, however, since my interest is in law as enactment (Gesetz) while Todd's title expresses his interest in law as system (Recht). The issue I wish to address is the formulation of written laws in Athens during the late archaic and classical period, specifically the balance between procedural and substantive law. Substantive law deals with rights, obligations, offences, etc. Its role is to (...) define behaviour which is required, allowed, or prohibited. These are what Hart terms ‘primary rules’. Procedural law, on the other hand, deals, as the name suggests, with the administration of justice, that is with jurisdiction, process, etc. Hart's term for these is ‘secondary rules’. The two cannot be separated quite as neatly as I have suggested, of course. A procedural law can scarcely avoid mentioning the offences or rights whose punishment or protection it regulates, while a substantive law may need to address issues such as jurisdiction. This is therefore an issue of orientation, not a simple binary division. However, as a broad basis for classification it is of value. (shrink)

In this paper I revisit nature as a source of normativity for law in the later Hellenistic period, that is beyond the opposition of law and nature in the early classical period, Plato’s and Aristotle’s naturalism, or the early Stoics’ conception of the common law. I will focus on the first century BCE, when the expression ‘natural law’ gained prominence, reconstructing its origins in the interaction between Hellenistic philosophers and the Roman elite, including jurists. I argue that for the jurists (...) the Stoic doctrine of law in nature offered a theoretical underpinning for their unique practice of dispute resolution, whereas for the Stoics this Roman practice offered an unexpected opportunity to instrumentalise their conception of law. (shrink)

Normal 0 21 false false false PT-BR X-NONE X-NONE MicrosoftInternetExplorer4 Le concept de loi socratique a depuis toujours été l´objet decontroverses, principalement en raison des tentatives pour expliquerson attitude lors de son jugement, son emprisonnementet son exécution. Toute la difficulté de concilier entreeux les différents textes sur la philosophie et la vie de Socrate,naturellement ressort à propos des circonstances de sa condamnationet de sa mort. Si, dans l´état actuel de notre documentation,il paraît impossible d´apporter une solution définitive,néanmoins une possibilité d´en (...) atténuer les contradictions résidedans l´examen du fonctionnement de la méthode socratiqueà partir de ses fondements: le dialogue comme moyend´un accord, non seulement entre les citoyens d´Athènes,mais entre ceux-ci et le propre ordre universel, lequel se dessineda la recherche humaine de la justice et du bien commun. (shrink)