Clifford Ando - Public and Private in Ancient Mediterranean Law and Religion

Normally when one brought a private charge (dike idia) in Athenian law such as theft, damage, or for the recovery of a dowry, one summoned the defendant to appear before a magistrate on a certain day. Unlike other private charges, however, there were certain religious practices that had to be performed as part of a prosecution for homicide. First, when one initiated the charge, one had to swear an oath (Antiphon 5.1112). The oath was very solemn; the accuser swore that the charge was true and called down destruction on himself, his relatives and his household if it were not. Second, after the basileus, the archon who had jurisdiction in cases of homicide, received the charge, he made a proclamation that the defendant had to keep away from lustral water, libations, bowls of wine, holy places, and the marketplace (Dem. 20.158; Antiphon 6.3536; cf. Arist. Ath. Pol. 57.4; Soph. OT 236 42). Third, the case did not go to an arbitrator or a court immediately, but was reviewed at three preliminary hearings called pro-dikasiai, heard over three months (Antiphon 6.42). Fourth, the case was not heard before one of the regular courts manned by panels drawn from the 6,000 judges who served every year, but by special courts. The Areopagus heard cases of deliberate homicide (ek pronoias), the Palladion tried cases of involuntary homicide (akousios) and attempted homicide (bouleusis), and the Del-phinion tried cases of just homicide or homicide according to the laws (Arist. Ath. Pol. 57.3 4. Cf. Dem. 23.22 61). By contrast, there was no statute of limitations in homicide cases (Lys. 13.83). Even though homicide was a private charge, there were therefore eight major differences between procedure in homicide cases and that for other private charges.

Why did the Athenians create these rules for homicide law and not for other kinds of private charges? In three of the features that set the homicide courts apart from the regular courts, it is clear that concerns about The unusual features of the court at Phreatto were obviously designed to keep the defendants pollution from touching Attica (Dem. 23.78 [not touching land]; Pollux 8.120 [placing neither gangway nor anchor onto land]). And the requirement that trials for homicide take place in the open air was imposed, as Antiphon (5.11) says, so that the judges would not enter the same place as someone whose hands were unclean, that is, polluted.

Over the last fifty years there has been a tendency among scholars to play down the importance of pollution in homicide law or to explain it away. In his study of homicide law published over fifty years ago, D. M. MacDowell played down the importance of pollution.

This chapter falls into two parts. The first part examines the evidence for beliefs about pollution for homicide in the Classical period and shows how these beliefs continued to shape legal procedures for homicide into the fourth century BCE (pace Parker). The second part analyzes the role that beliefs about pollution for homicide played and their instrumental and expressive functions. On the one hand, the belief in pollution compelled the relatives of the victim to prosecute the murderer and the community to see that he was punished. On the other, beliefs about homicide expressed important views about the use of deadly violence in community. Far from being a survival from an earlier stage of social evolution, beliefs about pollution articulated the states attempt to monopolize the use of legitimate force.