Public Crimes and Private Crimes
in Athenian Law

Michael Gagarin (University of Texas, Austin)

In a most interesting chapter on the Athenian concept of crime, David Cohen argues that “the notion of certain kinds of wrongs as harming or threatening not just the immediate victim but the community as a whole . . . was central to Athenian thinking about law and justice” (Cambridge Companion to Ancient Greek Law p. 214). Cohen singles out physical crimes against persons (homicide, assault, hybris) as those that were especially viewed as also harming the interests of the polis as a whole, and cites powerful statements to this effect by Demosthenes (in Against Meidias and elsewhere) and others.

My argument will be that such statements are evidence of a common rhetorical topos but that they belong to the realm of forensic discourse, to be introduced in certain cases to heighten the jury’s anger or indignation at the alleged wrongdoer, but they do not represent “Athenian thinking” in general. This becomes clear when we examine other speeches that do not contain such arguments. These include Antiphon 1, the only existing prosecution speech in a homicide case (dike phonou), which says nothing of public harm stemming from the alleged murder. (Lysias 13 is a prosecution speech for homicide but it was brought by a different, public procedure because a regular homicide case was prohibited by the amnesty of 403.) As for defense speeches in assault or homicide cases, at least two (Lysias 3, Antiphon 5) give no hint that the prosecution introduced any allegations of public harm in the case, and the one that does mention public and private wrongs (Antiphon 6.9-10) has something quite different in mind from what Cohen proposes.

More generally, I would agree with Cohen that the Athenians conceptualized crime differently from the way we do, but to understand the Athenian legal system we need to differentiate between what I would call “public crimes” – offenses like treason or embezzlement of public funds, where the city was the victim – and “private crimes” like homicide, where the victim was an individual though the prosecution could if it wished argue that the offense had a public dimension.