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Women, Property, and Surveillance in Classical Athens - Steven Johnstone
Women, Property, and Surveillance in Classical Athens - Steven Johnstone
Women, Property, and Surveillance in Classical Athens - Steven Johnstone
Women, Property, and Surveillance in Classical Athens - Steven Johnstone
Women, Property, and Surveillance in Classical Athens - Steven Johnstone
Women, Property, and Surveillance in Classical Athens - Steven Johnstone
Women, Property, and Surveillance in Classical Athens - Steven Johnstone
Women, Property, and Surveillance in Classical Athens - Steven Johnstone
Women, Property, and Surveillance in Classical Athens - Steven Johnstone
Women, Property, and Surveillance in Classical Athens - Steven Johnstone
Women, Property, and Surveillance in Classical Athens - Steven Johnstone
Women, Property, and Surveillance in Classical Athens - Steven Johnstone
Women, Property, and Surveillance in Classical Athens - Steven Johnstone
Women, Property, and Surveillance in Classical Athens - Steven Johnstone
Women, Property, and Surveillance in Classical Athens - Steven Johnstone
Women, Property, and Surveillance in Classical Athens - Steven Johnstone
Women, Property, and Surveillance in Classical Athens - Steven Johnstone
Women, Property, and Surveillance in Classical Athens - Steven Johnstone
Women, Property, and Surveillance in Classical Athens - Steven Johnstone
Women, Property, and Surveillance in Classical Athens - Steven Johnstone
Women, Property, and Surveillance in Classical Athens - Steven Johnstone
Women, Property, and Surveillance in Classical Athens - Steven Johnstone
Women, Property, and Surveillance in Classical Athens - Steven Johnstone
Women, Property, and Surveillance in Classical Athens - Steven Johnstone
Women, Property, and Surveillance in Classical Athens - Steven Johnstone
Women, Property, and Surveillance in Classical Athens - Steven Johnstone
Women, Property, and Surveillance in Classical Athens - Steven Johnstone
Women, Property, and Surveillance in Classical Athens - Steven Johnstone
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Women, Property, and Surveillance in Classical Athens - Steven Johnstone

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Women, Property, and Surveillance in Classical Athens …

Women, Property, and Surveillance in Classical Athens
Autor: Steven Johnstone
Classical Antiquity, Vol 22 / No. 2 / October 2003

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  • 1. STEVEN JOHNSTONE Property, and Surveillance Women, in Classical Athens While it is sometimes thought that freeAthenian women were hemmed inby surveillance within theoikos, this article argues that the obstacle that impeded themwhen they attempted to control property was that theywere 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. an Athenian Despite a transaction est but not gaged worth law that explicitly more than a certain trivial quantity),' in many transactions, women said that women amount bought, sometimes well of barley sold, above could not conduct (a medimnos, a mod lent, and, Scholars en in general, this limit.2 have concluded, therefore, that, because of their importantposition within the oikos, women were often invested with considerable "informal" power over property, in contrast tionships to the formal, allowed them legal rights men to control property, enjoyed. But the control if their social of property rela also af more obligations than Ican rightly remember. Over eight years in the making, this article has incurred Ipresented previous versions at Stanford, Berkeley, and the annualmeetings of theLaw and Society Association and of theAmerican Society of Legal History. I thank all thosewho offered comments. Additionally, Iwould like to thank thosewho took the time to read it:Adam Geary, JasonMcGraw, Cvnthin Pattersonn Mark Fdwards. Alison Fntre1ll and the referee for this, iouirnli 1. The speaker of Isae. 10.10 refers to this law (cf.Aristoph. Ecc. 1024-25). Kuenen-Janssens 1941: 202-206 calculates that thiswould have been enough barley to feed a family of five for 5 or 6 days. Because the law specified the limit as a quantity of grain, itsmoney value could presumably fluctuate. In the classical period, amedimnos of barley usually cost between 3 and 5 drachmas, but in times of shortage could run as high as 16 or 18 (Wyse 1904: 659). 2. Harris 1992; Brock 1994; Hunter 1994: 19-28; D. Cohen 1998; Johnstone 2002. Classical Antiquity. Volume 22, Number 2, pages 247-274. ISSN 0278-6656(p); 1067-8344 (e). Copyright C 2003 by The Regents of theUniversity of California. All rights reserved. Send requests for permission to reprint to:Rights and Permissions. University of California Press, 2000 Center Street, Ste 303, Berkeley, CA 94704-1223.
  • 2. Volume 22/No. 2/October 2003 ANTIQUITY CLASSICAL 248 fected these relationships. Prevented from legally pursuing their interests on behalf, their own women free Athenian to trust their kyrios had (their legal representative or guardian, usually their father, brother, husband, or son) to do this for them. For women, to control then, attempting ultimately property involved treating instrumentally one of the men closest to them. However women experienced the instrumental intensification of this relationship with aman-as promoting subjugation or liberation, intimacy or estrangement-it a structural marked in relationship of agency condition unique to property to women. The trail this article follows will be somewhat circuitous. It begins with a consideration of men's relationships to property, particularly the distinction Athenian litigants made between "visible" and "invisible" property. Although modem men had for holding in terms of the motives treat this distinction scholars property, it can also be understood as two different kinds of social relation ships throughwhich the control of property was guaranteed: publicly through citizens or privately through friends. To hold visible property was to subject to impersonal oneself and formal of relationships surveillance with two au diences, witnesses and jurors. To hold invisible property was to depend on personal relationships of trust. In considering the differences between rela of tionships formal surveillance of and relationships in Athens surveillance rather as a mechanism for dramatically I argue trust, not be seen should in particular that repressive, but as primarily and multiplying extending the power of those under surveillance. Moreover, the possibility of guaranteeing prop erty through impersonal relationships of surveillance allowed men to disag gregate affectionate and instrumental relationships. Relying on personal trust to control ships. but property, controlling Finally, have may property it also allowed back circling a less effective been men to women's and more to cultivate of control friend I argue property, of way costly and intensify that their exclusion from formal relationships of surveillance significantly limited even their agency, though, like men, rely on intimate they could relationships of trust. VISIBLE Scholars the owner this was different publicly not nian courts, of the property acknowledged accounts supports characteristics PROPERTY (yocvEp0) and invisible property (&ycwvp oUoL(C) kinds of property (e.g., land versus cash), but whether a distinction for these modern INVISIBLE that visible agree did not name AND written property to conceal not (even the thing The the laws. property, They also fundamental the speeches that agree evidence from the Athe that the difference did not hinge on objective but on the publicity the idea the property to it. Any into of Athenian as his. of the owner's relationship land) itself could be if the owner invisible but his ownership of it. Conversely, took steps what a
  • 3. JOHNSTONE: Women, Property, and Surveillance man publicly acknowledged as his own was visible 249 (even if others never saw the thing).3 Behind this scholarly consensus, however, the ancient sources present a picture of visible and invisible property that is skewed in three significant and interrelatedways. First, there are many more explicit references to invisible the fact thatmost property property in the speeches than to visible-despite mentioned was visible. Indeed, litigants usually named property as visible only in implicit or explicit contrast to invisible property. Second, litigants usually attributed invisible property to theiropponents and visible property to themselves.4 Freely noting that their own property was visible, litigants rarely explicitly allowed that their opponent's was.5 Third, litigants' discussions of invisible property were almost always judgmental, attributing evil motives to hiding it. Despite the fact that invisible property was not illegal (a few speakers referred to invisible property neutrally),6 litigants usually linked it to one of four vicious motives: escaping the adverse economic consequences of legal judgments (fines to the state or compensation to the prosecutor),7 avoiding taxes,8 squandering wealth on personal indulgences without regard for the social consequences,9 3. Gabrielsen 1986; Christ 1990; E. Cohen 1992. 4. Lys. 32.4 is the only passage where a speaker explicitly acknowledged holding property hidden from the Athenian democracy. Two other speakers openly discussed property they had concealed (Isoc. 17 and Isoc. 21), but they both said theywere hiding it from peremptory confiscation by despotic governments other than theAthenian democracy. In contrast to the reluctance of litigants to acknowledge theirown invisible property, 12 speeches have 25 claims that the opponents held it: Aesch. 1.101, 103, 154;Dem. 27.24, 26, 29, 33, 44, 48, 61, 62; 28.7, 12, 24; 29.37, 49; 42.23; 45.66; Din. 1.70; Isae. 7.35; 11.47; Isoc. 18.48, 60; Lys. 18.20; 32.23. (I have included those instances where a speakermakes it clear thathis opponent directed the claim at him.) 5. Speakers who claimed to hold visible property:Dem. 28.3; 30.6; 48.33, 35; 50.9; lsae. 7.39: Lys. 20.23, 33. 6. Three speakers referred to invisible property nonjudgmentally, but did not explicitly name it:Dem. 38.7; 48.9; Isae. 8.35, 37. 7. Dinarchos accused Demosthenes of keeping his property invisible for fear of confiscation by the people's court as punishment for his allegedly corrupt conduct as a politician (Din. 1.70). Isoc. 17 and 21 show similar anticipatory concealment. Dem. 53, 30, and 31 and Lys. 19 arose from alleged concealment of property after a verdict. Likewise, Aphobos had claimed that Demosthenes' father kept his property invisible so as to avoid liability for a fine to the state still owed by his father-in-law (Dem. 28.1-2; cf. Davies 1971: 121-22). Isocrates twice wrote that itwas fear of the decisions of popular courts thatmade men hide theirwealth (Isoc. 7.34-35; 15.159-60). 1would not want to defend either passage as a particularly accurate description of contemporary Athens. Nevertheless, it is significant that Isocrates, who was highly critical of fourth-century democratic practice, associates hidden wealth with judicial decisions, not with excessive liturgies. 8. Christ 1990 offers a full account. There was a special word: in all seven instances when litigants applied &TcOXpU5'TrELV ("to hide away") to property, they explicitly meant to conceal it specifically so as to avoid liturgies: Dem. 28.3, 24; 42.23; 45.66; Isae. 7.40; Isoc. 18.48, 60. 9. Athenian litigants sometimes accused their opponents of using up their property and destroying an oikos (Dem. 43.68-72); sometimes, too, they claimed to have refused to have done this themselves (Lys. 19.9-10). Aeschines argued thatTimarchos had sold off his patrimony (making it invisible), arguing that unless Timarchos could show otherwise, the jurors should as
  • 4. 250 CLASSICAL ANTIQUITY Volume 22/No. 2/October 2003 and embezzling property from those who had entrusted it to them.'" Litigants invariably attributed such antisocial intentions or behaviors to their opponents. In contrast, few litigants ever offered any motive for having visible property, treating it as natural, although three speakers did link it indirectly to their public spiritedness." These three asymmetries show thatAthenian litigants were not interested in visible property per se, but only invisible, and even that kind largely to the extent that they could traduce theiropponents by attributingwicked motives. Recent histories of Athenian property have complex relationships with this ancient evidence. Their primary point has been to investigate the motives men had for holding invisible property: Gabrielsen and Christ argue thatAthenians hid property to avoid so that they could taxes and E. Cohen invest claims in trade that was that people economically secreted profitable property but socially suspect.'2One the one hand, therefore, thiswork challenges the ancient evidence by substituting an ethically neutral (to us, at least) economic for calculation the prejudicial attribution of immoralmotives. On the other hand, it follows the sources by concentrating equal attention on invisible like to complement it. Iwould holding to visible property property and on the motivations for and build on this literature both by giving and by shifting to the different the focus social conditions thatmade each type possible. Neither revealing nor hiding property a matter was social only of motives: relationships. constitute both depended By contrasting of property ownership on specific actions within the two sets of social for men, the foundations relationships specific that could will be laid for analyzing the social possibilities forwomen. VISIBLE A man who invoking-formal audiences, were audiences visible held crucial: AND PROPERTY property the first, was second, remote they shared three characteristics. membership, were but were constituted jurors. also indiscriminate for the most so by acting himself immediate because and potential, did thus putting SURVEILLANCE before-and called was part only of citizens those eligible. who were, Two the witnesses; these audiences these audiences among indeed, their surveillance. and actual, I have First, under were These formal restricted in audiences by virtue of their sume that he'd dissipated it on disreputable pleasures-on excessive refinement and extravagance in food, drinking, flute girls, prostitutes, gambling, etc. (Aesch. 1.42). 10. In some cases (so the stories went) they stole it by concealing it (Lys. 18.20); more often. guardians were accused of embezzling hidden propertywhich they had been entrusted to administer (Dem. 27-30; Isae. 8.37; Lys. 32.23). (Millett 1991: 167-69 notes that the estates discussed inDem. 27-30 and Lys. 32 were unusual in having very little real property.) l1. Isae. 7.35; Isoc. 18.59-60; Lys. 20.22-23. Isae. 7.39-40 is themost positive picture. public Whitehead 1983 discusses pLXOT1LUlo, spiritedness. 12. Gabrielsen 1986; Christ 1990; E. Cohen 1992 and Kurke 1991 both follow Gernet 1981 associating invisible propertywith bankers and trade.
  • 5. JOHNSTONE: Women, Property, and Surveillance 251 citizenship, interchangeable and functionally equal. Second, the relationships between theman who held the property and the audiences were reciprocal but in ways thatwere asymmetrical. The property owner and the audiences were aware of each other and could attempt to affect the other party, but not in the sameways. Third, specific ethical expectations were thought to apply tomembers of the audiences. These expectations had the effect of partially depersonalizing Iwill these relationships. analyze these three characteristics with regard to each of these audiences in turn. The following analysis of witnesses builds on butmodifies a current scholarly position. At least since Humphreys' importantarticle (1985), many scholars have understood in Athenian witnesses tion for jurors but as supporters Athenian which legal practice courts of not primarily litigants.'3 A as sources reaction against it in terms of modern understood of informa accounts of ideals of what witnesses (should) do, this position has rightly stressed the social relationships of witnesses. Nevertheless, in treatingwitnessing as entirely derivative of a prior social relationship, thisposition neglects to consider what was unique about being a witness, how this created relationships with people other than the litigant, and how this transformedeven that relationship. Indeed, the primacy of prior social relationships is not the conclusion Humphreys draws from the evidence somuch as the assumption that animates her interpretationof it.'4 While recognizing that witnesses were alytically distinct constituted that may often friends, if often practically (even a particular kind of relationship have occasioned The presence the analysis or accompanied of an audience of witnesses that follows linked). treats these roles as an The act of witnessing that could not be reduced itself to the factors it. defined an object as visible property. Athenians commonly summoned witnesses to importantoccasions and transac tions: marriages, coming-of-age ceremonies, and the transfer of property.'5 In 13. Todd 1990; D. Cohen 1995. 14. Note inparticular her claim (1985: 349) that"A greatmany witness testimonies, forwhich no indication of the relation between witnesses and litigant is provided, concern the types of transaction forwhich any prudentAthenian would provide himself with reliable friends as witnesses.... The detailed list that follows this statement is not a catalogue of friends acting as witnesses, but of instances where we know nothing about thewitnesses-but where she assumes theywere friends. In fact,Humphreys' analysis fails to take account of (indeed, it obscures) one of themost striking features of the ways litigants used witnesses: namely, that litigants usually neither named their witnesses nor identified them. (Moreover, in many instances where litigants did identify their witnesses, this identity depended primarily on their knowledge of facts. This is true not only of thewitnesses identified as "those who know" [Isae. 2.37; 9.20; or Lys. 17.2] or "those who were present" [Dem. 30.24; 36.16; 45.60; 52.16, 31; Isae. 5.6; 6.37; Lys. 3.14; 20.28], but also, indisputes over inheritance or citizenship, phratrymembers, deme members, or kinsmen [e.g., Dem. 57 or 59]. Litigants commonly introducedwitnesses' testimony by reference to "the truth" [Johnstone 1999: 88-89], not by reference to a personal relationship.) I argue, on the contrary, that litigants found little rhetorical advantage inwho theirwitnesses were because any citizen was an equally good witness, provided he knew something. 15. Scafuro 1994 and 1997: 42-45. Citizens also summoned witnesses to less deliberate and less voluntary transactions or occasions, as when theywere assaulted or robbed.
  • 6. 252 CLASSICAL ANTIQUITY Volume 22/No. 2/October 2003 court, the fundamental evidence for any claim was theword of witnesses. Al thoughmore litigants referred to written documents as the fourth century pro gressed, and although an expedited procedure for mercantile cases required a written contract after 350 or so,"6ingeneralAthenian litigantsput little evidentiary weight on documents separate from thewitnesses who verified them.'7 The audience of witnesses was restricted. Incourt, only free adultmales could moreover, although freemen who were not citizens could testify, thevast testify;'8 majority in fact were of witnesses Thus, when citizens.'9 a man constituted an audience of witnesses, this created a network of relationships between free adult males (at the very least) and (almost always) between citizens. In the courts, moreover, witnesses were to a large extent interchangeable:while litigantsmay have to have chosen as fully competent of witnesses. ahead of friends First, those exigencies time-instances terchangeability or kin for their witnesses, as another. Two circumstances of assault of adult males when point a man or theft, as witnesses: any citizen was in fact to the interchangeability couldn't for witnesses arrange for example-show a man would the basic simply in cry out for witnesses and any adultmale would do.20Second, although Humphreys (1985) has argued that a witness's thirds of witnesses, name of, their witnesses.2' rhetorical potential to a litigant was primary, with prior relationship litigants did not describe In the courts, to be wrung their relationship therefore, out of who there seems the witnesses to, or even to have been two the little were.2 16. Dem. 32. 1;Todd 1993: 334-36. 17. The speaker of Isae. 9.7-13 offers the arguments. 18. Todd 1990: 25-27. There is no evidence thatwomen, children, or slaves, whatever theymay have known, could testify in court. The proklesis has often been thought to be a procedure by which the testimony of excluded people could be introduced indirectly. I have argued (Johnstone 1999: 70-92), however, that itdid not function thisway. Instead,male litigants simply themselves reported what the excluded may have known. 19. The ratioof witnesses we know were citizens to thosewe know were not is approximately 15 to 1 ( 141citizens versus 9 noncitizens). (This calculation isbased on thosewho can be identifiedwith a high probability from the litigants' speeches: those denominated with a demotic, office holders, deme members, etc. It does not include people identified only in the inserted testimonies, many of which are probably spurious, or thosewho may only be likely: e.g., the "neighbors" of Dem. 55.2 1. More generous criteria of inference would increase the absolute numbers but probably not change the ratio significantly.) Aesch. 2.86 and Dem. 49.33 supplement Harrison's list (1971: 137n.5) of noncitizen witnesses. 20. Isae. 3.19; Scafuro 1997: 102n.106. 21. 490 of 7 10witnesses were unidentified by litigants. (The number of witnesses in the corpus of speeches is uncertain because litigants often did not say how many testified and itwas possible for multiple witnesses to assent to the same deposition, as, e.g., at Dem. 57.14. Counting litigants' references to "witnesses" or "depositions" [plural] as 2, however, gives a roughminimum total of 710.) Only 75 witness (11 percent of the total)were named by the litigants. 22. Of course, litigants sometimes made arguments about witnesses (e.g., Dem. 54.31-32)., but not usually. It is, therefore, an exaggeration to say that "The aim of every litigant was to representhimself as surroundedby a substantial group of respectable and law-abiding kin, friends and associates, and conversely to accuse his opponent of relying on the dubious services of professional rhetores, bribed witnesses and disreputable drinking companions" (Humphreys 1985: 324). Most
  • 7. JOHNSTONE: and Surveillance Women, Propertxy, 253 The relationship between aman andwitnesses was reciprocal but asymmetric. Although awitness necessarily knew or had seen something ("witnessed it"), the rolewas defined fundamentally by the act of testifying ("bearingwitness"). Only in the context of the courts, therefore, was the relationship between a man and his witnesses fully realized. A litigant had broad discretionary power over witnesses, in particular about what they would testify to. After 378/7, witnesses did not testify in their own words, but either assented or "swore off" that they did not know or were considerable power to the litigant who would say.24 While the witness witness was untrue, drafted by a litigant not there.23 As Carey notes, could determine precisely what this gave a witness this radically constricted a witness's leeway, nevertheless retained chose to a deposition the ultimate but merely to assent discretion: to swear off-which did not involve that he did not know or not. Moreover, swearing that it was if a that the deposition did not become true-he legally accountable to the litigant for false testimony.25Thus, balanced against the litigant's determination of what the witness could affirm stood the witness's unconstrained decision to assent or refuse. While the relationship an ethical personal, a man between worked expectation and his witnesses to depersonalize would often the relationship be by introducing an element of disinterest. Witnesses were thought to be subject to the demand to tell the truth.26 Fragment C of Antiphon's On Truth testifies to the normative expectation that witnesses would tell the truth:"To testify truthfully for one another is customarily thought to be just and not less useful in human affairs."27 This ethical expectation of disinterestedness was institutionally buttressed by making witnesses accountable In the first instance, a deposition of his drafting of his opponent's to-and, therefore, a litigant could demand witness (or swear off). Beyond with false having interests that his opponent's testimony. in-both witnesses sides. swear to this, a litigant could charge any Both procedures made a man's witnesses accountable to his opponent.28 The relationship of one citizen to others as witnesses must be analytically dis tinguished from relationswith friends, neighbors, or kin-even though, because a man would frequently choose these as his witnesses,29 they usually overlapped. litigants never made such accusations, nor did they put much emphasis on who their own witnesses were (as opposed towhat they knew). 23. Carey 1995. Should awitness refuse to do either, he was apparently liable for a fine of 1,000 drachmas. 24. Carey 1994: 97-98, and 1995. 25. Carey 1995: 118. 26. Although some scholars claim that Athenian witnesses routinely lied, thenumber of litigants embarrassed by their lack of witnesses to key facts suggests otherwise: Johnstone 1999: 88-89, esp. n. 99. 27. Trans. Gagarin 2002: 74. Pp. 73-78 offer a full discussion of the fragment. 28. Demosthenes explicitly linked the legal accountability of witnesses with their truthful ness (though this was in reference to an unparalleled stunt where, although he was the litigant, Demosthenes himself formally testified [Dem. 19.176]). 29. Ant. 1.29;Humphreys 1985 and 1986.
  • 8. 254 CLASSICAL ANTIQUITY Being a witness was more Volume 22/No. 2/October 2003 generalized than being a friend, neighbor, or kinsman. These latter relationshipswere with specific individualswith particular attributes and histories; any adult male, on the other hand, could potentially be a witness to another adultmale. Moreover, different ethical expectations attached to these relationships. It was commonly thought that a man should help his friends in any way he could. But witnesses, unlike friends, were understood to be obliged to tell the truth-and could be held accountable if they did not. This may have frequently put witnesses into an ambivalent situation, as normative expectations collided.30 Some witnesses may have reconciled these conflicts by supporting a litigating friend by giving testimony, but on peripheral (and presumably true) issues.3' The courts' ethical demand of truth-telling, therefore, confirmed the interchangeability of witnesses. To hold visible propertywas also to constitute a relationship with the second of these audiences, citizens as jurors.This audience shared the same three features. The of jurors was audience to citizen restricted men over 30 years old.32 Within this group, all jurorswere treated indiscriminately andwere functionally interchangeable. Every citizen over 30, even those with some prior connection to the parties of the case, only on randomness, serve as jurors. The could winnowing process citizens was based down selection the body of eligible to a jury of several hundred. A formal, though asymmetric, reciprocity was the basis of the relationship between litigant and jurors. Since the trial began, since and jurors were they voted to courts only just before assigned immediately after the speeches ended. While litigants' litigants communicated to jurors only through their speeches.33 on jurors was purchase heckling or shouting almost themselves, was and their verdicts, afterward. jurors, a ballot, Thus, for which persuasion occasionally to speak: they did they did not orally deliberate and final, were immediate despite opportunity announced The jurors' primary communication justification. in the act of casting in any way rhetorical, litigants or witnesses, not address or question accompanying wholly at speakers,34 had no official they could and voting among without with any the litigants not be held accountable constituted asymmetric but reciprocal links between litigants and jurors. Specific ethical or, in the words and defendant."35 expectations of the oath The applied to jurors, who were they all swore, structural analogue to "listen equally to this ethical supposed to be fair, to both prosecutor expectation was not a 30. Humphreys 1985 and 1986; Dover 1974: 304-305. 31. Humphreys 1985: 323-24 and 350. 32. Trials often included informal audiences as well: spectators who were not jurors (Lanni 1997). 33. Some litigants grasped the hands of jurors as they entered the court in a ritual gesture of supplication (Johnstone 1999: 117). 34. Bers 1985. 35. Johnstone 1999: 33-44.
  • 9. JOHNSTONE: Women, Property, and Surveillance 255 system of individual accountability (aswith witnesses), but the selection of juries by sortition: on a panel of several hundred random jurorswho determined the by a majority verdict the potential vote, presence of a few less than impartial jurorswould usually have been insignificant. The relationship to jurors differed in one respect from that to witnesses. Whereas when a social of jurors was one party transformed this social potential was lived "in the shadow of was what made of witnesses the actual presence surveillance that only potential a dispute real enough property became visible, fully into a legal case. Nevertheless, even if it was never the effect of actualized. the law,"36 so that the act of summoning the actualized Athenians witnesses thosewho might testify in court-should be understood as already presupposing a relationship with this relationship citizen was jurors.37 Up until a citizen but no imagined, entered less real for that. court as a litigant Indeed, many of the relationships between men thatconstituted them as citizens (for example, serving together as jurors, or sitting in the assembly together)were abstract, impersonal, and imagined. Holding visible property, therefore, created dense networks of relationships between citizens.38 INVISIBLE Understood as a negation, PROPERTY to hold invisible AND TRUST property was to refuse to engage in the particular social relationshipswith other citizens that constituted property as visible. In its extreme andmost misanthropic form, keeping wealth invisible meant locking money up at home in a chest or burying it in the ground.39 In fact, 36. The phrase is from the title of Mnookin and Kornhauser's influential article (1979) which analyzes theways that laws confer resourceswhich people use even if they never litigate. 37. Precisely speaking, the transformationof a dispute into a legal case had effects on witnesses too. Only with such a transformationwere witnesses directly subject to the ethical expectation of "truth,"an aspect of the discourse of the courts (Johnstone 1999: 87-91). Before this transformation, although witnesses had witnessed (seen) something, they had not borne witness (i.e., testified), the action implicated by "truth."Nevertheless, it hardly makes sense to analyze the act of witnessing in the first sense without the second sense aswell. No Athenian called upon towitness (see) could be innocent of the potential demands of witnessing (testifying). Nor did individuals summonwitnesses merely to see, but ratherprecisely for theirpotential to testify. 38. Men who were not citizens could use the courts (Todd 1993: 193, 196). Patterson 2000 argues, however, that although metics, foreigners resident inAthens, had access to the courts, in actual practice theywere much less able to use this fully than citizens. Noncitizens could certainly not serve as jurors, could not own land (an important form of property), and rarely appeared as witnesses. Nor, on the other hand, could every citizen serve as a juror, because jurors had to be at least 30 years old. 39. Aphobus charged thatDemosthenes' father had left four talents buried (Dem. 27.53-57; 29.46-49). There is some evidence that burying wealth was considered normal (Xen. Poroi 4.7) and buried treasurewas a popularmotif inmoralizing folk tales (Xen. Agesilaos 10.1; Arist. Rhet. 1362a9; DK 87 fr. 54;Menander Dyskolos 811-12; Aesop 38, 55, 62, 83. 84, 344). Millett 1991: 169-71 discusses hoarding.
  • 10. 256 CLASSICAL ANTIQUITY several litigants others claimed although did,' Volume 22/No. 2/October 2003 that they had large amounts another argued that people of money know very at home or that little about others' wealth and rumorsoften substantially overestimate it.4" In many cases, however, invisible property was not a repudiation of social relationships, but an endorsement of a particular kind: personal trust. Hidden from formal relationships of surveillance, invisible property was in fact en to another, trusted in the form of a deposit or a loan. Al (zapotxo0'xC) though deposits and loans were often witnessed, when these transactions took place without witnesses, the property would be invisible. The absence of in litigant 30 minas friend nature of the relationship. One and comrade to pay a court judgment (yLAXocxCdL E`Tocpoq) was due by sundown. "As which ()65cEp witnesses the money to the personal lent his sx6o[q]) with such a friend he had given this money and so long as they remained friends, he hadn't asked for reasonable" without linked that he had reported Theomnestos was was witnesses dependent back.42 A man might, entrust therefore, invisible to a sin property gle person without telling anyone else, keeping even his closest relatives ig For example, norant. was reported Xenokles man's more.43 Xenokles' ever have Komon, agreed, inquiry this action when Xenokles (the report that he trusted as "entirely correct and just" and Olympiodoros, he died, to divide his visible even (OIvrt relatives and make property they had no him no one would less honest, been whom to the dead premature) that had Eumathes the rest-suggesting about amount the whole so impressed slave with case, Kallistratos suggests In another known. been to be a trierarch, rich enough and former disclosed an action which of praise xcii. 6ixcRLo) op0JX some money, it turns out, had, was a metic Eumathes, and friends, death who Xenokles, abroad, had deposited family of whose mon when dead or what idea where of com this might be.44 Even with relationships trust. People sometimes that not only depended bankers gave money on personal in classical Athens to bankers without trust, but cultivated based on personal witnesses,45 a practice were it. This trust Athenians 40. Dem. 25.61 (a stolen wallet); Dem. 27.10 (80 minae of silver); Dem. 48.14-15 drachmas, and 7 minae); Lys. 12. 10-1 (over five talents); Lys. 19.22 (40 minae in one house, (1,000 seven in another); Isae. 11.43 (900 drachmas). Cf. Theoph. Char 18.4. 41. Lys. 19.45-52. 42. Lys. Against Theomnestos (Todd 2000: fr. 8a). 43. Isae. fr. 18 (Thal. 15): AvG XV E'y cr0el EXppnIV TC OCUT ETl iXXov.... 44. Dem. 48.9. Kallistratos and Olympiodoros were distant relatives of Komon (Kallistratos, who told the story in court, did not specify the relationships), but close enough to carry out the funeral rites (?? 5-7). The case of Nikias conforms to this pattern: he said he told his closest relations thathe had given money to Euthynos, but, as he admitted, he did not tell them how much (Isoc. 21.20). So too the speaker of Isae. 8, who claimed to be the grandson of Kiron: He knew exactly how much visible property his grandfather left, but had no idea how much money he had lent out (Isae. 8.35-37). 45. Isoc. 17.2. E. Cohen 1992: 115-17.
  • 11. JOHNSTONE: Women, Property, and Surveillance 257 placed in bankers, however, was qualitatively different from our trust in banks.46 In general, we do not trust bankers, we trust banks, and not just individually, but collectively, as a system; our trust is invested in an institution, not individuals. Athenians put their trust in bankers as individuals, and this was fostered by creating social relationships of friendship between bankers and depositors.47For example, the son of Sopaios because, as he said, completely secretly "I held deposited his money to be such a close him with friend but on everything not only on financial matters the banker Pasion that I trusted him else as well."48 Not only did people give property to those they trusted, they cultivated relationships of trust by giving over property. Paul Millett argues that "credit operations inAthens were away of defining and regulating relationships.Absence of interest, security, witnesses and written agreement made an unambiguous statement about the bond between lender and borrower."49 the act of Thus, entrustingwas not only theoutcome of trust,but, reciprocally and simultaneously, a way of fostering it by strengthening or even creating a personal relationship. DIS AGGREGATION These lation of the impersonal Athens and of trust point of surveillance relationships of the classical and personal, period, the instrumental for citizen men to a particular constel In and the affectionate. there was an increasing possibility of differentiation between instrumentaland affectionate relationships.5" Although in modernity thepossibility of such "pure"relationships derives from mechanisms like impersonal markets lation and the number and bureaucracies, and quality inAthens of interactions the size of the citizen between popu in their formal citizens roles as citizens allowed for it.5' Relationships between citizens were significantly impersonal, both theoretically did a juror have a personal hundred jurors with whom know more than a small and, quite often, relationship with in fact; in no sense, the majority he sat, nor did a speaker fraction of the audience for example, of the other two or five in the ekklesia of thousands. This personally degree of disaggregation of instrumental relationships, in turn, allowed for the possibility 46. Giddens 1990: 21-36, 79-11 1, distinguishes the trustplaced in expert systems in the modern world from that invested in individuals. 47. Shipton 1997: 401n.45. Of course, today wealthy individuals may cultivate personal relationships with bankers in an attempt to transcend the limitations of the impersonal system (credit reports, formal appraisals, etc.) thatgovern the interactions of most people with banks. 48. Isoc. 17.6. 49. Millett 1991: 219. 50. Silver 1997: 68-69 criticizes the concept of "differentiation" because it suggests that the differentiated elements existed latently in an undifferentiated past; instead, he suggests, we should imagine the emergence of novel constellations of reciprocally defined categories. I do not intend to suggest a historical movement from the undifferentiated, but rathermerely the emergence of a historically specific pattern of distinctions. 5 1. Cf. Millett 1991: 40.
  • 12. 258 CLASSICAL ANTIQUITY of more wholly Volume 22/No. 2/October 2003 ones. When affectionate a man could rely on his relationships with fellow citizens to guarantee his ownership of property, he did not need to use his friends to do this. Disaggregation, however, was a matter of degree, so some care is required in describing this constellation of relationships: while therewas an increasing disaggregation of the instrumentaland the affectionate, there remained significant entanglements. Among recent historians of affection, Konstan goes too farwhen he claims that because there were relationships of affection we should always see these as relationships of pure sentiment. In fact, Athenians often used their friends.52 althoughAthenians could conceive of relationships thatwere purely So affectionate, few if any achieved this perfection. Thus Aristotle recommends as the highest form of philia the relationship between friends that is based only on affection and nothing else-and he recognizes that this very rarely occurred.53 While thedisaggregation of affection from instrumentalitycould be imagined and was achieved to a degree, relationships of affection frequently served other ends as well. In Athens, the instrumental of citizenship relationship was more clearly disaggregated thanwas the affectionate relationship of friendship.54 THE CONSEQUENCES OF SURVEILLANCE The creation of significantly (if not purely) instrumentalrelationships between citizens was made possible by the extensive formal surveillance to which they were subject.Goldhill notes that city of Athens-its the democratic institutions and practices-constituted a particular culture of viewing, inwhich the roles, statuses, positions of actors were constantly the democratic being structured in and through is a the gaze of the citizens. The collective, audience participatory fundamental fundamental element of the democratic polis-a aspect of what constitutes public life.55 Farrar understands Similarly, wearer the power through public tale of Gyges' ring-a the dream of an escape ring which actions, both the extensive as the close monitoring institutions (as well redefinition of honor as conspicuously participation of those who benefiting gave the from a particularly at Athens.56 As Farrar notes, citizens regime of visibility demanding identity Plato's of invisibility-as acquired in democratic held office) the polis. However civic and the disagreeable 52. This, it seems to me, is themain point of those historians Konstan argues against (e.g., Millett 1991). Not somuch a refutation (as he seems to position it),Konstan's work on affection is a valuable complement to investigations of instrumentality.Foxhall 1998 strikes ajudicious balance. 53. Arist. NE 1156b. 54. Millett 1991 (e.g., p. 40) significantly depersonalized. 55. Goldhill 1998: 108. 56. Farrar 1996. argues in a similar way that many relationships in Athens were
  • 13. Women, Property, and Surveillance JOHNSTONE: 259 or disconcerting some Athenians may have found it, this regime of visibility was not essentially repressive; Athenians believed, Farrar argues, "that through men interaction, political can become more (not other, but more) than they can be as defenders of security and pursuers of private potential."57 Scholars long taken note of one aspect of surveillance have at Athens under a different name: honor.Because the desire for honor was necessarily thedesire to to the judgment be subject a system of others, the Athenian "To win honor," of surveillance. system of honor was essentially notes D. Cohen, "a man must live his life in public."58To appreciate honor as surveillance, it is important to recognize that there are different modes of surveillance. Although surveillance is usually thought of as normalizing-as in this way. operate do.59 Those a system It can also work under distinguishing but to be better, to excel. of making a desire Although conform-it as contests need not and competitions aim not to be like everyone surveillance for honor all the time,60 honor had a widespread Athenian people to distinguish, did not motivate currency in Athenian else, every culture.6" ForAthenians, Miller argues, "truehonor derives from situationswhere you have the right to participate-or an equal with speak-as other citizens. Equality in this case equality of speech-provides the common platform fromwhich the individual can potentially distinguish himself throughbeing heard and judged by other citizens."62 concern My the polis, here is with honor not with (with witnesses reputation and with in the restricted in general. The the concern jurors, sense of formal recognition formal relationships here, but also with by of surveillance voters in the Ekklesia) differed from informal surveillance, in particular, gossip. Informally, people living defendant, inAthens charged with his land, evoked to induce knew (or thought the intimacy the passersby from each other what of this society: [to remain everyone they knew) a sacrosanct removing silent], a great deal about others. One stump of a sacred olive "How would or the neighbors, can see, but also manage tree from it have been possible who not only know to hear about matters we try to hide (6tRoxpU7TT60ipEt) everyone's knowledge?"63But, although from gossip was undoubtedly common,64 such relationships of informal knowledge (even when it derived from official proceedings) differed fundamentally from the formal, political relationships established between citizens. With gossip, there 57. Farrar 1996: 132. 58. D. Cohen 1991: 80. 59. Of course, like most competitions which require contestants to adhere to rules or which judge them by set standards, the system of honor also had a normalizing thrust. There had to be a basis of similarity or commensuration against which to judge the differences. 60. Christ 1990 argues that the desire for honor has been overestimated. 61. Whitehead 1983. 62. Miller 2001: 412. 63. Lys. 7.18; cf. Dem. 55. 64. Hunter 1994 ch. 4 considers this;Harding 1991 and Sickinger 1995: 661-62 offer important qualifications. Also Lewis 1996; Davidson 1998: 217-22.
  • 14. 260 CLASSICAL ANTIQUITY was no ethical expectation Volume 22/No. 2/October 2003 of truthfulness or fairness; gossipers did not face the same structured,dichotomized choice jurorsdid; gossipers were not restrictedbut indiscriminate because anyone could gossip about anyone else; the relationships were unilateral (not reciprocal) because theobject of gossip could not engage with gossipers; entrance was not voluntary on the part of the person who was the object of gossip; and, finally, the product, reputation,was not bestowed definitively as were formal honors in the polis. Because formal honor was concerned with men's actions in public, in their capacities as citizens, it should be distinguished from the surveillance of people's private lives advocated by oligarchic critics of democracy.Most famously (though not exclusively), Isocrates, Plato, and even Aristotle argued that careful official oversight of people's private lives was needed to make any city good. As these thinkers conceived it, such surveillance was both repressive and normalizing; it to control they intended as you please." Athenian the lack of order democracy, characterized by-minimal Athens took its shape involved Honor spoke of through the polis being both to "do for-and indeed As noted to use property in private charity) character and object imperative or the liberty notable to the distinctive the subject on property. impinged an ethical from was regulation of private life.65 Indeed, private life in in part in contrast as it was with that grew however, in the courts, above, life, at least, people for the public and not of public of surveillance.66 good to "squander" (whether it on private expenditures.67Using property for civic purposes (most famously in liturgies) thus brought honor.68 More was considered (it was than that, in the rhetoric of litigation, This was not because normative. not), nor because property invisibly there were (there were, invisible no ethically as I hope visible property property was "illegal" justifiable I have shown), reasons for holding but because the relation ships established in the courts were themselves relationships of visibility which took visibility would for granted. to hold choose relationships with other citizens. in transactions using witnesses the discourse Thus, their property There could make though the polis left property largely unregulated central record of land owners), certain property public of notice was land (which a direct supposed could descendant to be posted with be owned or adopted only use their property transactions an archon that men it to establish occasions (there was, by citizens)." son claimed assumed in fact, many were, when men of the courts that they would publicly, beyond visible. for example, were publicized. sixty days before When an inheritance, someone this was Al no A the sale other than registered 65. D. Cohen 1991: 231-36; Wallace 1997; andOber 2000. 66. From this perspective, the conservative programs were less an increasing regulation of private life than the abolition of the differentiation of thepublic and the private as itexisted under the democracy. 67. Cf. Dover 1974: 175-80. 68. Whitehead 1983. 69. Finley 1952: 13-15; Todd 1993: 237-39, 243-48.
  • 15. JOHNSTONE: Women, Property, and Surveillance 261 with an official, announced at theAssembly, and proclaimed by herald.70People also would have known something about the wealth of the rich from the timema, the voluntary self-assessment of wealth required for the periodic (and, in some periods, frequent) tax known as the eisphora,71and from antidosis suits, contests between two wealthy Athenians over who to pay for a liturgy.72 Not merely was the richer and ought, in the civic use of property, therefore, but in its disclosure to others, men created the relationships of knowledge and surveillance which defined citizens. The Athenian system of surveillance-including visible property-was not primarily repressive; instead itsmost significant effect was tomagnify the possi bilities of action for those involved with it. Edward Cohen's account of visible property treats it as repressive: social constraints on the use of property inhibited Athenians from investing wealth in themost profit-making enterprises (assumed to be a natural desire). Whatever else might be said about this provocative idea, it overlooks theways that surveillance can be highly productive.73Formal, public surveillance of citizens increased their capacities in twoways. First, this system of surveillance enlarged the scope of collective action for citizens. Because of thedepersonalized nature of the relationships of surveillance, serving as a witness knowledge or judging as a juror did not require rather, any citizen was of the person; any affinity with or to act in these roles. competent This profoundly increased the scope of collective action. This was especially the case with litigants, citizen based juries, where the structure of the relationships as it was on the general capacity to act as a single body. Democratic citizens for rhetoric, self-government with enabled realized was the two hundreds of through relationships of surveillance. Second, surveillance opened fields of action to individual citizens. This sys temof surveillance operated to depersonalize markedly the relationships between to surveillance those subject and the audiences. As I noted before, membership in these audiences depended essentially on an abstract status, citizenship. Thus, a man when before made avowed audiences his ownership of particular up of individuals) because audiences of the ethical were individuals as before expectations expected of property audiences (though owners he did so not so much every audience of generic of truthfulness to treat property publicly, citizens. was, of course, On the other side, and fairness, members not as particular of these but as generic 70. Harrison 1968: 159. 71. Gabrielsen 1986: 99-100. 72. Gabrielsen 1987. 73. Foucault's Discipline and Punish (1977) argues for thepossibility of productive surveillance. The analysis which I offer differs significantly from his-as indeed it should since Foucault was describing the particular forms of surveillance at a specific historic moment. Arendt's Human Condition (1958) suggests a similar possibility for productive surveillance inAthens. In my analysis of Athens, Ihave not followed these authors somuch as used them as inspiration for a hypothesis that surveillance acted productively.
  • 16. 262 CLASSICAL ANTIQUITY Volume 22/No. 2/October 2003 individuals. This mitigated against personal attachments.And since rhetoricwas thebasis of aman's relationshipwith jurors,74 one's ability to speakwas important. Thus, these relationships of surveillance were significantly depersonalized. Because of this depersonalization, the system of surveillance transformed the actions necessary toguarantee property. Invisible property, dependent as itwas on personal trust,was subject to the exigencies of Athenian friendships. Scholars have noted the fragility and volatility of Athenian friendships (even between kin, as legal speeches show).75 With visible property, a general competence, rhetoric, replaced a multiplicity of personal ties as the basis of ownership. Rhetoric, of course, was subject to its own exigencies. But the reproductionof ownership (with witnesses andjurors) did not depend on continual investments in relationshipswith particular individuals, but on acquiring an abstract, generalized skill. Rhetoric worked instead of friendship. THE CONSEQUENCES OF TRUST The personal relationships of trust which often underwrote invisible property operated differently from relations of impersonal surveillance. Just as holding property visibly subjected aman to the surveillance of other citizens, so holding property invisibly relied upon and built intimatepersonal relationships.Whatever the benefits of holding property invisibly, therewere risks as well. In general, the relationship between the owner and his property depended entirely on the continuation of thegoodwill of theone ithad been entrusted to.These relationships of trusthad threeparticular problems. First, the owner's property became hostage to the personal dynamics of the relationship-that is, the instrumental aspect of the relationshipwas always af fected by the affectionate.76Any difficulties in the personal aspect of this re lationship threatened the instrumental. This may explain many cases in which a close and trusted friend was accused of misappropriating property entrusted to him.77Apollodoros' story of his dispute with his neighbor Nikostratos sheds light on the complexities of intricately aggregated instrumental and affectionate relationships.78 Apollodoros suedNikostratos in a public suit (graphe), alleging that two of Nikostratos' sios, a debtor slaves actually belonged to the state, and that they should toNikostratos' therefore brother, Arethu be confiscated (Dem. 74. Johnstone 1999. 75. Millett 1991: 199-20; Foxhall 1998: 56, 66. 76. Foxhall 1998 traces the ways a particular characteristic of instrumental relationships reciprocity-infected affectionate ones. 77. Thus, note the sense of personal betrayal in the words of the litigant mentioned above who without witnesses lent his friend and companion Theomnestos 30 minae; we know of this case because he was suing Theomnestos to get themoney back. Similarly, Aeschines alleged that Timarchos had hidden property he owned jointly with his blind uncle, resulting in the older man's impoverishment (Aesch. 1.103). 78. Millett 1991: 53-59 discusses Apollodoros' story in detail.
  • 17. JOHNSTONE: Women, Property, and Surveillance 263 53). As Apollodoros narrated theirprevious relationship, he andNikostratos were longtime friends. the same Of age and acquaintances for a long time, when, following his father's death, Apollodoros moved next door toNikostratos, they became quite close ? 4); indeed, Apollodoros (7oivu olXeixs: said that he was a "true friend" (XrlOLvOpLXo~: 7, 8, 12).Apollodoros thereforeusedNikostratos ? to look after his affairs when he was out of town, and Nikostratos, too, came to depend on Apollodoros (?? 4-5). Inparticular,Nikostratos relied on Apollodoros when disaster struck: while abroad in pursuit of runaway slaves, Nikostratos was captured and sold into slavery. Apollodoros lentNikostratos' brother 300 drachmas to go ransom to contribute 1,000 him (a loan he later forgave), to the ransom, drachmas then pawned and finally allowed some his items land to be mortgaged to finance the rest (?? 6-13). "When he got themoney," Apollodoros "not only did he fail to show gratitude told the jurors, immediately began ... so that Imight to plot against me not collect the debt" (Dem. 53.13). the money If Apollodoros' had him falsely opponent, entered tried to entrap him into assaulting into a quarry pit (?? 14-17). suspect the veracity way. of course. a negative was of the picture; Apollodoros as the archetype Nikostratos to the state, vandalized of the betraying Prudent clearly trying friend and may his farm, to throw him seem to indicate Nikostratos' Such actions to an legal arguments Apollodoros' a boy, and attacked him, attempting in the relationship-in investment on to then went story is true, Nikostratos as a debtor he an enemy ... but instead release him from from him than a little spite: he divulged show more I had done, for what and to become to steal my money have emotional readers may to represent exaggerated their closeness.79 Yet Apollodoros' evident ire offers substantial confirmation of the emotional intensity a successful This strumental prosecutor story reveals affront of some "refused and he promised to court, Given itwould sort lay behind to show gratitude" the instrumental aspects to decline he was the bringing the reward usually given that aggregated the in (?? 2-3).8? the complexities and the affectionate. the time the case came he proclaimed of this relationship: case purely out of vengeance, may of relationships rancor of the relationship the intense be reasonable to speculate the break. Apollodoros' allude of the relationship remark to such a specific were in hock by that a personal that Nikostratos cause.81 In this way to the affectionate. But 79. Christ 1998: 167 and 176-77 discusses this rhetorical strategy. 80. There are other indications of Apollodoros' pique with Nikostratos. He began his speech by saying that he had been treatedwith hubris-a loadedword indeed. Later, he reported an exchange in the dispute where his intention was clearly to humiliate Nikostratos publicly (Johnstone 1999: 8 1-82). 81. It is possible that Nikostratos felt that Apollodoros was responsible for the difficult predica ment inwhich he found himself since Apollodoros had "given" him two of the slaves who ran away (? 6). Cf. E. Cohen 1992: 211. Apollodoros was, it should be said, a difficult person. For example, he sued his stepfather claiming thathe had seduced his mother-a charge he dropped at her intervention (Dem. 45.4)-though after she died he sued him on some financialmatters and insinuated that his younger brotherwas illegitimate-or why else would he side with his stepfather? (Dem. 45.83-84).
  • 18. Volume 22/No. 2/October 2003 ANTIQUITY CLASSICAL 264 Apollodoros' account of the break suggests an even more complex intertwin ing: he claimed thatNikostratos plotted against him in order to steal themoney he'd loaned him. According toApollodoros, then, the instrumental aspect of the relationship (the amount of money lent) overwhelmed the personal (the philia between them) which was, in reciprocal fashion, the basis of the instrumental the loan only (i.e., he made because The of philia). temptation of theft caused the betrayal of trustwhich finally enabled (orwas supposed to enable) the theft weaknesses itself. One of the paradoxical the greater trusting, the trust is that the greater of personal of trust. for the betrayal the incentive The second problemwith relationships of trust is thathaving relied on personal of invisible trust, owners invisible property property to use had few legal resources those who against it, as a fragmentary held their to claim speech of Lysias shows. Androkleides, an exile fromThebes, had died. Pherenikos, a fellow exile, claimed thatAndrokleides had left his property to him. Someone else (we don't know who) contested this and sued Pherenikos. An Athenian friend spoke for Pherenikos in court: For if Androkleides had left land or other visible property, it would be to say that Androkleides had actually left for whoever wished possible is lying. About silver, gold, and invisible it to him and that Pherenikos has it is clear that he gave them to whoever obviously property, however, them."2 The reason that someone there would because have evidence been property could contest was that Pherenikos (and, in this case, could have shown its ownership precisely of visible other than the possessor lying) was of the fact of independent possession to establish ownership: witnesses. With invisible property, on the other hand, because there were no external proofs, was possession the strongest indication of ownership. Third, of relationships on the particular depended the trust could not so easily died and someone else stepped the privacy the dead man's were the relationship of personal the relationship was whose moral it across involved, reproduce meant sometimes trust which compromised and psychological people relationships and because itself when these Because generations. their trust one of the parties in to take his place. As the case of Xenokles of the relationship position, in such private acute precariousness of reproducing the problem was personal, shows, the most perhaps trust was that heirs, unaware guaranteed when development the man's may (above) those who would not just of the property it. The ability to reproduce heirs were minors, not yet have assume, but of reached children the stage lV AV poxXtri y p&v X 355 fr. 3b: El p?v yap aypou XOLT#XLTtSV 82. Todd 2000: 0 K8E) CpyupLou Ott 6T0( V1EV(#U8ETOL, 6UT 6E 8E'OTO(L. JTEpL ouCFoTv, SY(V AV EMENVT1XPOUXOPEIV(Ot Todd 2000: xotL xpuGLiOu xtL &pCXvoU5 o:LcOtq 8Xov Otl, O&rL YiVE'TOL, touCtu 8C8xEv. yXXV OUTACv 352-55 provides commentary on this speech.
  • 19. JOHNSTONE: Women, Property, and Surveillance where they could following 265 or participate fully understand story told by a man prosecuting in such a relationship, a ward's as the for mismanagement guardian shows (Lys. 32). Diodotos and his brotherDiogeiton were close enough that they held some of their property in common. After Diodotos in shipping, had made money he marriedDiogeiton's daughter, anAthenian marriage strategy for strengtheningkin solidarity. Diodotos and his wife had two sons and a daughter.When Diodotos was called Diodotos away on military was killed. Years he put Diogeiton service, later, when the eldest in charge son of Diodotos of his family. came of age, he charged his guardian Diogeiton with mismanaging his inheritance. Because he was still young, Diodotos' son had his sister's husband speak for him in court. According silver, Of to this man, of more and accounts than eight this great fortune Diogeiton and thirty staters 28), had left with Diogeiton Diodotos talents of predominantly at first admitted (? 9); he later confessed though he claimed a will, to receiving to having that he had spent eight seven talents five talents of maritime only loans. twenty minae talents forty minae ten minae (? on the upkeep of the children (? 20). This prosecutor's story narrates not merely the sometimes tenuous link be tween the "owners" and their entrusted the trust of one generation culty of reproducing the next. Diodotos so trusted his brother were of cash and credits which competent witnesses.83 only his wife was drawn When present up to indicate talents back. Rather intimate and his wards offered likely no explanation than the guardian's or verified was there any formal contract the deposit or legal documents, he believed was, of these most his children" for the failure of trust between grasping of five Diodotos after all, both uncle that because to be just concerning criminal, by legally in the care of Diogeiton, (or his heirs) kin relationships-he to the orphans85-"since other him than relying on legal witnesses ties no one was more The prosecutor owed in to him huge amounts for in the will left his wealth the diffi level, the two brothers) (here, between (? 5);84 nor, apparently, that Diogeiton but, on a deeper that he turned over not accounted Diodotos trusted a man bound by manifold and grandfather property (? 5). Diogeiton intentions:86 83. Lys. 32.13-14. Despite the fact that the last part of this speech has not been preserved, it is curious that the speakermentioned the will only once and in passing (? 5). Normally wills were used to create an heir when therewouldn't be one otherwise (Todd 1993: 222).When aman already had an heir (as did Diodotus) wills were often used as inventories of property (Thompson 1981: 16). The speaker's silence in this case suggests thatDiodotus' will did not list all the property the speaker attributed to him; indeed, itmay not have been an inventory at all. The will may merely have confirmed the arrangementsDiodotos orally made concerning dowries for his wife and daughter. (This is how Todd 1993: 226 seems to take it, as well asHarrison 1968: 152n.2.) 84. As awoman, shewas not a legally competent witness. 85. InAthenian usage, orphanswere thosewhose father had died, even if theirmother hadn't. 86. In this way as in others, the story told in Lys. 32 parallels that of Demosthenes in his prosecution of his guardians (Dem. 27-29). In the stories speakers inAthenian courts told, therewas often no attempt to portray themotives of lawbreakers as anything other thannefarious intent (just as
  • 20. 266 CLASSICAL ANTIQUITY if he wanted to behave justly Volume 22/ No. 2/ October 2003 toward the children the laws about orphans ... either by himself of a world of worries) or children with the income.... But any intention of making the property oUcGLcxv);rather, he intended to keep he could have that his evil nature should be the heir of the dead man's It is impossible followed leasing out the estate (and so freeing by buying land and supporting the as it is I don't think he ever had visible (ypovEpa'V xwfovoGcocv T~v their property himself in the belief to know what went wrong property.87 in this particular family, but it was consistent with a larger structural difficulty: the problem of the transmission of propertywas also the problem of the reproduction of trust.One solution offered by the polis was retroactive could be held guardians to its violation accountable legally as a potential (or existed deterrent): an estate. Legally for mismanaging enforcing that accountability, however, was not easy. During their tenure as by E: L(yysyci,88 indict them for corrupt conduct anyone might guardians, but it is difficult to imagine how outsiders could have accumulated sufficient knowledge to use this very often. way (The appointment to increase monitoring guardians may have been one of multiple of any one of them.89) A ward could on his own, but this private suit could not be brought before sue his guardians an adult.90 he became The passage of time during the guardianship,9' the relative inexperience of the young man,92 the social on a prosecutor imposed pressures who against failed litigating with to receive and the fine relatives,93 at least one-sixth of the votes94 must have worked to undercut the effectiveness of this procedure. A second prosecutor solution of Diogeiton) to this problem was tomake (the alternative the property solution visible, referred tomoderate to by the the depen with thosewho follow the laws, they presented the laws themselves as themotive for this: Johnstone 1999: 62-66). Frequently, therefore, it is impossible to reconstruct themotivations of defendants from prosecutors' stories. Burke 1998, for example, speculates that the guardians of Demosthenes (also his relatives) looted his estate because it had been acquired by the elder Demosthenes through the socially disreputable means of trade. It is unclear how moral condemnation of the source of wealth could be amotive for its theft; itmay be better to admitwe'll never know themotives and instead to concentrate on recurrent structuralpatterms:as in the case of Diodotos, the attempt of the elder Demosthenes to strengthen his own ties of personal trustwith his children's future guardians (two of whom were relatives [one was directed tomarry his widow, the other his daughterwhen she came of age, each with a largedowry] and one a friend [who received a largebequest]) seems to have been frustrated by the difficulty of reproducing those personal relationships in the next generation. 87. Lys. 32.23. 88. Harrison 1968: 117-19. If the guardians refused to carry out the testator's demand that the estate be leased out, they could be charged by ypiasL (Harrison 1968: 115-17). 89. Isae. II was such a suit, an E3otyyEXia of one guardian by another. 90. Harrison 1968: 119-21. 91. As Davies 1971: 127 notes, after ten years of being a ward, Demosthenes' knowledge of the details of his father's estate must have been largely secondhand. The wardship of the children of Diodotos lasted eight years (Lys. 32.8-9). 92. Dem. 38.6 has the same topos.Against thismight weigh a bias toward theplight of orphans on the part of Athenian juries (Dem. 38.20). 93. Humphreys 1983: 5-6. 94. Harrison 1968: 120.
  • 21. JOHNSTONE: Women, Property, and Surveillance 267 dence of wards on personal trust, to increase the amount of surveillance. Thus, guardians could choose to lease the estate through a public procedure (V4L6o&GLm OLxou):the archon oversaw thebidding on the lease, thebidder provided security, and the court confirmed the arrangement.95 making knowledge of the property By and its extent public and confirming the relationship between this property and the heir in a legal venue, the guardianwas protected from accusations of embezzling property that might occur if the extent of the invisible propertywas not clear, and theward's interestswere protected through public channels and not merely by the continued goodwill of the guardian.Through leasing, the entire estate-land, slaves, credits, and cash96-became visible, subject to formal surveillance. In this case, the problem of the reproduction of trustwas solved, however, not merely bymonitoring possible betrayal, but by replacing personal relationshipswith ab stract, impersonal ones that,precisely because theywere abstract and impersonal, were more likely to endure despite theparticular characteristics of those involved. WOMEN PROPERTY AND The distinction between visible and invisible property, theentailed distinction between surveillance impersonal and personal trust, of the possibilities and disaggregating instrumental and affectionate relationships-all this forms the foundation for understanding women's control of property inAthens. Scholars have differed on how to interpret the evidence of women's legal as incapacities well as the instances of women conducting transactions of significant value. Earlier researchers, seeking the historical origins of more recent oppression of women, scholars, the law and the legal disabilities emphasized attempting to understand as more women of women.97 than just passive Recent victims of men's subjugation, have highlighted women's informal though actual control of property, treating representing Athenian the control of property women as autonomous, agents, and of visible and capable as a kind of freedom.98 The analysis invisible property suggests, however, thatwomen's attempts to control wealth should not be seen legally to pursue exercised informal and instrumental independent their own of, or even interests. However control over property, relationships. Indeed, as balanced against, much Athenian they could not disaggregate a woman's attempt their inability women may have affectionate to control property requiredher to intensify instrumentallyher relationshipwith her kyrios. Just as the owner of invisible with the holder of his property, property had to cultivate so too an Athenian woman a relationship needed of trust to maintain 95. Harrison 1968: 105-107. 96. As Isae. 2.27-34 shows, even cash could have been leased out and returnedat the end of the lease with interest. 97. E.g., Ste. Croix 1970. 98. Schaps 1979; Foxhall 1989; E. Cohen 1992; Harris 1992; Hunter 1989a, 1989b, and 1994. Brock 1994 provides the evidence forwomen working forwages.
  • 22. 268 CLASSICAL ANTIQUITY a good relationship Volume 22/ No. 2/ October 2003 with her kyrios. As Schaps argues, the law limiting a woman's transactions did not prohibit her from engaging in transactions above this limit (i.e., it set no penalty invalidate if she did so); rather, it gave the transaction her kyrios' approval and sustain his if he wanted for each a legal basis to.99A woman, transaction; instead, trust in her. Just as the owner to her kyrios then, did not need she needed of invisible to to seek to trust her kyrios property had limited possibilities for legally establishing his ownership, so too a woman's ability to construct relationships with citizens (which was also to seek legal recourse) was blocked. There were, of course, differences here: the owner of invisible not prohibited property was of the resources that would from making make a legal claim but was his claim persuasive instead deprived On (i.e., witnesses). the other hand, although there is some evidence thatwomen might seek witnesses to transactions,'?? no woman would ever have become a litigant and addressed jurors.'?l A woman could not pursue legal remedies in her own name but would have had to transform her property to take to court himself-a willing into a form her kyrios was dispute form that might have able and little if anything to do with her interests.102 In this analysis, it is not necessary kind of property. Dowries were probably among others different from other kinds (which was dowry of divorce) wouldn't a wife gave want common of property. supposed It has been a leverage in it through litigation. claimed, over her husband much in the sense Thus, as a separate among the wealthy, treat them as fundamentally to the wife's to do this.'04 However dowry (certainly sometimes to be returned did not legally own her dowry her interests at Athens too'03) and scholars a wife to have to treat a woman's because, that may in the case presumably, have been that she could not herself it is not exactly that a for example, natal family true, as Foxhall he the case, pursue argues, 99. Schaps 1979: 54-55. In the common law tradition of the early American republic, a wife (feme covert) had virtually no right to make a transactionwithout her husband's approval. Nevertheless, there is considerable evidence thatwives did this-and that other parties (usually men) were willing tomake these transactionswithout the husband's express consent. Basch 1982; Salmon 1986. 100. Dem. 41.9 with D. Cohen 1998: 55-56; Aristoph. Wasps 1388-1412. 101. As Schaps 1977 notes, male litigants rarely referred towomen by name in court. Schaps links this to the confinement of women's roles inside the household and the concomitant lack of public identities-in other words, a hindrance to establishing impersonal relationshipswith citizens. The law that authorizedwomen tomake transactions of less value than amedimnos of barley could not have allowed them to appear in court since disputes with a value under 10 drachmaswere decided by officials who were essentially justices of the peace (Arist. Ath. Pol. 53.2; Stroud 1974: 158, ll. 23-26). 102. Johnstone 1998 shows how this happened with Neaira. Even then, it's unlikely that she would have been present in the court when the case was argued. Gagarin 1998; Johnstone 1999: 172n.37. 103. Schaps 1979: 79-81. 104. Schaps 1979: 76; Foxhall 1989: 37-38; Hunter 1994: 39; Cox 1998: 69-70, 75-77. Cox notes, however (p. 77), that thismay have had the effect in some cases of imprisoning a wife in hermarriage.
  • 23. 269 JOHNSTONE: Women, Property, and Surveillance that "For a woman's ultimate act of disposal-that to divorce her husband and he resisted get her father or other man With a dowry, it depended as with ultimately returning from her natal property she would her dowry, family the relationship attempt a man with have to on her behalf.106 to litigate then, a woman's generally, upon her using out of her of taking a dowry needed no kyrios."'15 If she wanted husband's power [by divorcing him]-she to control close to her instrumentally.107 Athenian women's informal control of property-a real enough pheno menon-still subsisted within a regime which conferred on men significantly more possibilities of agency.Women's exclusion from impersonal relationships of surveillance, from formally instrumental relationships, meant they could not disaggregate the affectionate and the instrumental.This affected both their instru mental and affectionate possibilities. Excluded from relationships thatwere formally instrumental,women had less power significantly than men. I argued As above, citizens were defined by their participation in systems of collective action with other citizens. Rhetoric allowed citizens (sometimes thousands at a time) to cooperate without personal trust, knowledge, or affection. From this women were excluded, significantly restricting their agency with regard to property. Whereas men had a choice of enforcement relationships (visible or invisible, constituted impersonally and publicly or intimately through an individual), women had only one kind of enforcement relationship in regard to property: relationships of personal trust with their kyrioi. them to balance against The grievous that men the legal wrong to fall back on personal For women there was their control of property this is seen as allowing had-whether risks or as leveraging not available the other-was however choice and diversify to women. a woman relationships no general suffered, in pursuing through which allowed men type of relationship the legal speeches make have of trust, even capacity (as rhetoric As may one to do); she always clear, had legal remedies. they could maintain they were compelled to invest themselves continually inmaintaining relationshipswith male relatives 105. Foxhall 1989: 39. 106. Cohn-Haft 1995: 1 ln.43. Thus one could imagine, in contrast to thehypothesis thata dowry gave awife leverage over her husband, that it also gave a father leverage over his married daughter. (Hunter [1994: 16-17 and 1989a: 2981 discusses a father's "residual authority" over his married daughter.)Given thather father (or kyrios) would have arranged hermarriage with her husband (who might already be a close friend or relative of the father, even his brother), one cannot presume thathe would automatically have sided with her in a domestic dispute. From the father's perspective, after all, the dowry was importantly (if not entirely) about his relationship with anotherman. 107. While from the perspective of thewife therewas no difference between a dowry and other kinds of property, from the husband's perspective therewas. Legally, the dowry was not his property in the sense that he was not allowed to dispose of it at will, but was meant to pass it on to their children. This meant that other men who could claim an interest in the property-both men in his wife's family and his own children-had a potential argument to use against him in court if he did dispose of it.
  • 24. 270 Volume 22/No. 2/October 2003 CLASSICAL ANTIQUITY who might use this capacity on their behalf. Moreover, unlike men who might trust a range of other men, a woman had to rely on only one man, her kyrios. Women's attempts to control property inconjunctionwith theirexclusion from impersonal relationships of trust must, therefore,have affected their relationships with their kyrioi. Though husbands might have wanted to cultivate theirwives' consent on property decisions, therewas an asymmetry: wives, thrown back on personal relationshipswith males as the only means of controlling theirproperty, had to.'08 Any attempts by women to control property, then, compelled them to aggregate the affectionate and the instrumental.The problem of themaintenance and reproductionof trust, a key difficulty with invisible property,was especially acute forwomen. Neaira, who began life as a slave and prostitute but eventually became the long-term lover of a prominent Athenian, at one time cajoled her various lovers into cooperating to raise money to buy her freedom, then later played them off against each other to secure her property. Though the evidence doesn't allow us to see in detail how Neaira's interests in her property affected her psychology or her personal relationships, it is reasonable to conclude that they did. For her these relationships were not simply relationships of pleasure or affection (as theywere for themen): they were also relationships she had to maintain to control her property.'09 Although we cannot know how women experienced this intensificationof their relationshipswith certainmen (as liberating or constraining, asmanipulative or sincere, as authentic or trivializing, or as otherwise altogether), we can analyze the objective conditions that structured their experiences. A slanderous story Aeschines related in his prosecution of Timarchos gives such a glimpse into the particular ways thatwomen's attempts to control property intensified their relationshipswith men. In the course of his allegations thatTimarchos squandered the property he inherited,Aeschines mentioned a particular piece of land amile or so from the city walls which Timarchos intended to sell off. "His mother supplicated else and begged (so I've heard) to at least leave her a place to let it be and not to sell, but if nothing there to be buried"-a request Timarchos refused (Aesch. 1.99).Other litigants told similar stories of women "supplicating"men: a ... widow "begged and supplicated" (#vEPT)XEL xCL LxETEUE) son-in-law to her take action against her father, the alleged of her children defrauder (Lys. 32.1 1); a widow requested "by supplicating andweeping" (iXETEuOUGir XXioCronrs) xWL the grandson of her late husband's first wife funeral and that this be held in her house without kin inAthens, who that she be allowed (Isae. 8.22); had done a good deed or Zobia, to take part in the a metic for the ungrateful apparently Aristogeiton 108. Foxhall 1989: 25-32, noting the legal and cultural norms inhibiting men's disposal of property, as well as the portrait of husband andwife inXenophon's Oikonomikos, suggests that the kyrios "worked on behalf of his household or in consensus with them" (31) and thatwithin the oikos propertywas owned by thehousehold, not an individual. Still, however generously we interpretsuch paternalism, men andwomen were in highly asymmetrical positions. 109. Johnstone 1998.
  • 25. JOHNSTONE: Women, Property, and Surveillance and needed "acting some help like a woman" knew well (Dem. 271 in return but was met with violence and abuse-Zobia, to the people complained (yUVctLX'OU TCP&yll' ETIoLcL), 25.56-57). On the one hand we see here women she exercising informal power. Supplication was a charged and powerful ritual.110 Moreover, the stories of Timarchos' mother and of Zobia, whose requests were turned down, were clearly intended case, the speaker's opponent), who had granted is not merely to reflect poorly on the men who had refused the other two stories, whereas a request, were meant the fact of women's them (in each each told by the man to show them in the best light. But at issue but the character power, informal it took and its effects-not whether thesewomen were successful, butwhat all of themhad to do in the pursuit as means of their interests. Women than the impersonal had to treat the men both a less effective to an end. This was relationships open means and, I suggest, to men, they knew well of pursuing interests one that must have considerably affected these personal relationships. This conclusion must remain tentative, since the evidence does not permit much insight intowomen's affective or psychic lives. Nevertheless, ifHunter is right thatAthenian sons andmothers were particularly close, thatcloseness may have been not only the source of some women's but, authority"' reciprocally, the result of their attempts to secure the grounds of their power. Thus, whether the scene allowed of a mother to be buried grasping cemetery to the psychological power,"'2 it may that was, for one of the parties, point her son's knees in the family and desperately constitutes dynamics fundamentally pleading evidence of an intimate as well. instrumental to be of women's relationship It also shows thatwomen acted in relationship to property under very different conditions than men. However Athenian women experienced the instrumental use of men they were men close to, this use marks could choose a necessary structural condition of their agency that to limit or even avoid. University of Arizona sj ohnsto @ u. arizona. edu BIBLIOGRAPHY Arendt, Hannah. 1958. The Human Condition. Chicago. Basch, Norma. 1982. In the Eyes of the Law: Women, Marriage, and Property in Nineteenth-Century New York. Ithaca. Bers, Victor. 1985. "Dikastic Thorubos." History of Political Thought 6: 1-15. Brock, Roger. 1994. "The Labour of Women in Classical Athens." Classical Quarterly 44: 336-46. 1 10. Gould 1973. 111. Hunter 1989b: 47. 112. E. Cohen 2000: 42 concludes clinically from this passage that "female members of the household might even object openly to the sale of assets felt to be integral to an oikos."
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