Legal Self–Help on Private Property in Classical Athens
- Legal Self–Help on Private Property in Classical Athens
A remarkable feature of litigation in classical Athens was the high degree of responsibility private citizens bore for initiating, conducting, and executing the judgments of legal actions.1 In the absence of a public prosecutor or an active police force, Athenians engaged in a level of legal self–help that would shock most modern Westerners. While Athenians strongly preferred private to public initiative in legal matters, aspects of legal self–help troubled even them. I focus here on contemporary tensions surrounding the use of legal self–help on private property, whether carried out by the master (kurios) of a household defending his realm or by outsiders crossing onto others' property under the authority of the city's laws. Legal self–help of either sort raised questions for Athenians concerning the boundaries, both spatial and conceptual, between private and public spheres. In particular, to what extent did a household and its property, including land and home—all of which could be subsumed by the word oikos—constitute an inviolable state within the state?2
Discussion in these pages explores the legal regulation of self– help on private property and the social attitudes toward private space that determined how, and even whether, legal rules were enforced by courts. We begin with evidence that the Athenians granted considerable license to a kurios to exercise legal self–help in defense of his oikos. We may then consider how the authority granted by the city to outsiders exercising legal self–help to cross the boundaries of this private realm represented a problematic challenge to the ideal that the oikos should be inviolable under the democracy.
Legal Self–Help in Defense of the Oikos
In classical Athens, as in many societies, a man was permitted to defend his home from intruders, even up to the point of exercising lethal force.3 This license of a kurios to use force in his own realm, which scholars sometimes describe as his "Hausgewalt," was not formally articulated as a right in Athens.4 Its reasonable exercise was, however, consistent with both legal regulation and community norms.
Although Athens' laws did not, as far as we know, specifically address defense of the home from intruders, they allowed the use of lethal self–help in two circumstances, theft and moicheia, that could well involve incursion upon a man's property (cf. Lys. 1.36). In the case of theft, one law stated, "If a man should steal anything whatsoever at night, it is permitted that his victim in pursuit, kill him, wound him, or lead him by apagōgē to the Eleven if he wish" (Dem. 24.113). According to another law, "If one kills immediately in defense of one's property a man carrying or leading it away by force and unjustly, he is killed with impunity" (Dem. 23.60). Although both laws could apply outside, as well as within, the boundaries of a man's property, MacDowell is probably right that the first law would apply especially to housebreakers, "who would not necessarily use force and so would not be covered by the second law."5
An Athenian might also legally kill an intruder caught in illicit sexual relations (moicheia) with one of his female dependents: "If a man should kill another . . . in intercourse with his wife, mother, sister, daughter, or concubine kept for procreation of legitimate children, he shall not go into exile as a manslayer on that account" (Dem. 23.53; cf. [Arist.] Ath. Pol. 57.3; Lys. 1.30).6 Although this law, like the laws permitting the killing of a thief, did not limit the exercise of this license to the bounds of the home, a man was most likely to discover and take [End Page 522] vengeance on a moichos here. If he did not wish to kill a moichos caught in his home, he could restrain and even abuse and humiliate him until receiving recompense or promise of it.7 This license to restrain even a citizen in one's home for an indeterminate length of time constituted a striking exception to the general rule under the democracy that imprisonment of...
