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Dossier : Aitia

Dossier : Aitia, causalité juridique, causalité philosophique

Some Remarks on Homicide and Criminal Responsibility in Ancient Greece

Laura Pepe

Résumé

Dans les poèmes homériques – où commence à émerger le sentiment que la responsabilité matérielle et causale ne peut pas être séparée de la responsabilité morale – prédomine l’idée d’une responsabilité de type objectif. Cela est vrai aussi en ce qui concerne le meurtre : quand un homme est tué, indépendamment du fait que le meurtre soit volontaire ou non, la famille de la victime réagit en se vengeant. Avec sa loi sur le meurtre, vers la fin du VIIe siècle, le législateur athénien Dracon est le premier à envisager l’élément subjectif comme critère pour différencier la peine. Le débat sur la responsabilité pénale et, plus généralement, morale, prend de l’importance au cours des dernières années du Ve siècle, quand prévaut l’idée que l’agent matériel et purement causal ne peut pas être tenu responsable, ni, donc, coupable.

Texte intégral

SOME PRELIMINARY REMARKS

  • 1 Williams [1993] 2007, p. 31 ff.
  • 2 Snell [1948] 1963, p. 24 ff. (for the idea that in Homer, as well as in coeval art, the body is con (...)
  • 3 As far as the unity of the body is concerned, Williams [1993] 2007, p. 33 f., recalls for instance (...)

1In the second chapter of his well-known book Shame and Necessity, Bernard Williams argues against the evolutionary and progressive concept of Greek ethical ideas and of their relationship with ours; in particular, he challenges the notion that the Greeks had primitive ideas of action, responsibility, and justice that gradually developed, not only throughout history till today, but also within their own culture.1 Williams’ criticism is directed first of all at Bruno Snell’s theory that at the beginning of their culture, well represented in the Homeric poems, the Greeks were “childish”, and that they did not have an overall notion of themselves, since they lacked both the perception of the body as a unit and the awareness of being the real doers of their decisions.2 It is beyond any doubt that we should agree with Williams’ argument that the world Homer describes is not “childish” at all. In fact, not only is the Homeric man aware of his body as a unit, but he is also aware of being the author of the decision-making process that leads him to act.3 He knows that the consequences of some of his actions depend upon his self-determination and that the consequences of some others do not. What is worth investigating is whether the consciousness of this distinction has any influence on his responsibility.

  • 4 Lesky 1961, esp. p. 32 ff.; cf. also Lesky 1966.
  • 5 Gaudemet 1962, p. 486 f.; cf. also, e plurimis, Adkins 1960, p. 25: “in Homeric society, then, the (...)
  • 6 Carawan 1998, p. 43.

2It is well known that Albin Lesky replied in the negative; according to him, an involuntary action – which in most cases appears to be the result of divine intervention – did not free the individual from responsibility.4 From this perspective, the Homeric hero is designated as aitios, “guilty”, because he is “responsible” for having caused, even if only mechanically, a given action. So, on the basis of this conclusion and with specific reference to homicide, Jean Gaudemet maintained: “Par cela seul qu’il a accompli l’acte, son auteur est tenu pour aitios, que le meurtre ait été volontaire ou non. Le problème n’est donc pas d’appréciation de la volonté et de l’intention, ni d’une responsabilité imputable à une intelligence libre et éclairée. Il est de pure causalité mécanique. Et celle-ci oblige à la compensation”;5 and, more recently, Edwin Carawan stressed that aitios is a “causal term [that] carries the clear implication that compensation or retribution is owed”.6

  • 7 Cantarella [1980] 2011, p. 49.

3A more careful analysis, however, shows that these definitions are not so decisive. After a more in-depth examination of the topic, in fact, Eva Cantarella, while recognizing on the one hand that in the Homeric poems the idea that liability is strict and objective is certainly prevalent, on the other hand underscored that at the same time different conceptions emerge, and that it is therefore necessary to make some important distinctions. Actually, there are some cases where “la responsabilità personale per così dire materiale […] è […] scissa dalla responsabilità morale. Se, agli effetti pratici, l’azione è valutata in sé, come puro effetto, sotto il profilo morale essa è ricollegabile al suo autore solo quando è volontaria”.7 As a matter of fact, in several Homeric passages the idea begins to appear that one who performs an “unintentional” action – and we will see later how to understand the adjective “unintentional” – is not aitios, i.e. he is not guilty. The most famous passage that confirms this conclusion is without any doubt Iliad XIX, 86 ff.: while offering Achilles “boundless compensation” (ἀπερείσι᾽ ἄποινα, v. 138) for the abduction of Briseis, Agamemnon nonetheless denies being aitios since, when he acted, Zeus, Moira and Erinys cast upon his soul a fierce blindness (ἄγριον ἄτην, v. 88; cf. v. 137, μευ φρένας ἐξέλετο Ζεύς). So, the reason that he cannot be considered aitios is that his behavior, determined by external entities and hence not under his control, was unintentional. But we may also recall Iliad I, 335, where the heralds Talthybius and Eurybates, sent by Agamemnon to take away Briseis, are said by Achilles to be “not at all responsible” (οὔ τί μοι ὔμμες ἐπαίτιοι) for what they are doing, since they are just executing an order. Again, in Iliad III, 164 Priam absolves Helen, calling her, again, “not at all responsible” (οὔ τί μοι αἰτίη ἐσσί); it is true that the Trojan war was causally triggered by her escape, but it is also true that her escape with Paris was decided by the gods; hence, the gods are the real and sole aitioi of what happened (θεοί νύ μοι αἴτιοί εἰσιν).

  • 8 Cantarella 1979, p. 273; Cantarella [1980] 2011, p. 61.

4These few examples are useful to show the difficulty of understanding aitios always as a “causal term”; indeed, a close analysis of its occurrences in ancient sources, and above all in the Homeric poems, illustrates – as Eva Cantarella has again well highlighted – that the term has at least two basic meanings: aitios is both the “cause” in an objective sense (and as such it refers solely to the existence of a causal relation between action and event), and the “person responsible” as “guilty”. In this latter meaning, aitios is used when it is possible to ascribe an action to somebody who intentionally carried it out.8 But we can go still further. It is true that, according to the general rule, even the person acknowledged as not aitios is subject to the consequences of his action; but it is also true that in the poems a new and radically different idea appears, according to which the person who acts without intention, and hence is not guilty (aitios), is considered not deserving of any punishment. Paradigmatic, in this perspective, is the previously mentioned passage (Iliad I, 335) concerning the heralds Talthybius and Eurybates sent by Agamemnon, against whom Achilles does not react, for the very reason that he recognizes that they are not aitioi. Similarly, in Odyssey XXII, 356-357, Telemachus convinces his father not to kill Phemius, who, exactly as the herald Medon, was forced to serve the suitors during Odysseus’absence (cf. Odyssey XXII, 351 […]-353: οὔ τι ἑκών […] οὐδὲ χατίζων […] ἀνάγκῃ); hence, as innocent (anaitioi), they should not be punished.

  • 9 Cantarella [1980] 2011, p. 66 (author’s italics).

5Given this situation, we can conclude that different, apparently contradictory conceptions coexist in the Homeric poems. “In un quadro ancora dominato, in prevalenza, dalla attribuzione di una responsabilità oggettiva, che prescinde da ogni considerazione sull’atteggiamento psichico dell’agente, si innestano elementi che aprono squarci su prospettive diverse”; this is moreover further evidence that, “non esiste un mondo omerico, non esiste un uomo omerico, e non esiste, quindi, una soluzione omerica al problema della responsabilità”.9

6After these preliminary remarks, the purpose of this paper is threefold. First, I will examine whether in the Homeric poems the possible difference in the treatment of intentional and unintentional acts affected also intentional and unintentional homicide. Second, I will consider how the situation evolved in Athens during the seventh century BC, when Drakon enacted the first written law on homicide. Finally, I will investigate the terms of the fifth century debate on criminal responsibility for homicide.

HOMICIDE IN HOMER

  • 10 For the different terms – boulomai, ethelô, hekôn – used in the Homeric poems to indicate different (...)
  • 11 . For the definition of the Greek terms hekôn/hekousios and akôn/akousios, traditionally, but appro (...)
  • 12 Contra cf. Pelloso 2012, p. 199 note 30, for whom Patroclus’ statement about the lack of mens rea i (...)
  • 13 Gioffredi 1974, p. 31 f.
  • 14 Cantarella 1976, p. 43 ff.; Cantarella 1979, p. 267 f.
  • 15 For the sources and their analysis cf. Pepe 2012, p. 134 ff.
  • 16 Contra, for the inclusion of homicides committed in the heat of the moment in the category of volun (...)

7As he is perfectly aware of the difference between intentional and unintentional actions, Homer is also perfectly aware of the distinction between intentional and unintentional homicide.10 It is important to stress – for the moment just with a hint – that the Homeric (and generally Greek) concept of what was intentional and what was not cannot be compared with the idea we have of these notions.11 Let’s consider, for example, a well-known passage, Iliad XXIII, 83-88, which will also provide essential information about the general treatment of homicide in the poems. After his death, Patroclus, appearing to Achilles in a dream and reminding him that he too is going to die soon, exhorts him to let their bones lie together, in the name of their old friendship; a friendship that was born the day Patroclus, still a boy (τυτθὸν ἐόντα, v. 85), was forced to leave his homeland, and came to Achilles’ country, because he had killed Amphidamus’son “though I willed it not, in wrath over the dice” (οὐκ ἐθέλων, ἀμφ᾽ἀστραγάλοισι χολωθείς, v. 88). Why – assuming that these words represent an actual and objective expression of Homeric classifications and not a subjective and advantageous justification12 – does Patroclus say he killed “unintentionally” (ouk ethelôn)? Some scholars believe that the phrase indicates an involuntary manslaughter that resulted from recklessness (Patroclus had the intention to strike but not to kill);13 but I think it more appropriate to link ouk ethelôn to the following participle cholôtheis, so that the wrath could be assumed to be the cause of Patroclus’ unintentional killing.14 Several other, albeit later, sources confirm that the Greeks considered akousion, “unintentional”, an act performed by someone who in that moment is not compos sui (because of an outburst of wrath, anger vel sim.).15 And it is worth noting that this example is itself enough to highlight the radical difference between our notion and the Greek one of what is intentional or unintentional, since it is plain that we consider “intentional” the action performed in a raptus – at most, we would say that it is not “premeditated”.16

8What we have now to consider is whether the unintentional character of Patroclus’ killing has any effect on his punishment, or, more correctly, on the treatment he receives. The answer is negative. It is common knowledge, in fact, that the Homeric world is dominated, mostly, by “competitive” more than “collaborative” values. In the perspective of this “ethic of success”, the hero who wants to continue “being” or “being said to be” such has both the right and the duty to react with vengeance. But it is clear that revenge takes no account of the mental attitude of the doer; it reckons only with facts. There is just one way to avoid revenge, namely to go away, exactly as Patroclus did; but this kind of flight is merely a factual remedy.

  • 17 There is no mention of the intent of the killer in the trial scene on the Shield of Achilles (Iliad(...)

9It is, however, true – and this provides a further confirmation of the lack of homogeneity in Homeric society – that in the poems we also find, linked with the surfacing of “collaborative values”, the divergent idea that revenge could be avoided by a voluntary composition of the offence, the poinê. When, and if, the wronged party (or the victim’s relatives, in case of homicide) decides to accept the poinê, he gives up his right to avenge himself; but, once again, the decision about accepting the poinê is – at least theoretically – independent of any evaluation of the doer’s mental attitude.17

10Ultimately, in the society described by Homer, the awareness of the difference between intentional and unintentional homicide, and hence the awareness that the latter is a less serious offence than the former, already existed, but it did not have any effect as far as the “penalty” – rectius, the consequences for the killer – is concerned; the offence is reciprocated by an equal – or equivalent – reaction. This situation was to change, partly at least, with Drakon’s law on homicide.

DRAKON

  • 18 On the passage, see Rhodes 1981, p. 130 ff.; contra, Humphreys 1991, p. 18 ff. maintains that proba (...)
  • 19 The historical existence of Drakon was first questioned by Beloch 1926, p. 258 ff.; and, more recen (...)
  • 20 For the details of the discovery and the restoration of the inscription cf. Stroud 1968, p. 1 ff. T (...)
  • 21 Maybe earlier if we accept Todd’s suggestion (Todd 1996, p. 103 note 5) that the term of the anagra (...)
  • 22 Cf. Gallia 2004.

11According to some ancient sources, and particularly the Constitution of the Athenians (7.1), Drakon, in 621/0 BC, was the first to give the Athenians written laws (thesmoi),18 which were almost completely replaced by the politeia enacted, less than thirty years later, by Solon.19 The only Drakonian laws kept by Solon were the laws on homicide, phonikoi nomoi, which were still in force in the fifth and fourth centuries BC. They are handed down both by various literary works, especially logographic speeches – many accurate quotations of them can be found in the first section of the Demosthenic discourse Against Aristocrates, §§ 22-85 – and by a direct source of outstanding relevance, namely an inscription on a marble stone unearthed in Athens some 150 years ago, in 1843.20 Thanks to the text of the decree that in the first nine lines precedes the transcription of the law itself, the document is generally ascribed to 409/8 BC;21 that year, after the oligarchic coup d’État of 411 BC, the reborn democracy decided to reinscribe some of the existing laws perceived as more democratic.22 In order better to highlight how the issue of criminal responsibility is handled in the law, it is first of all worth considering its general content, and particularly its incipit, whose interpretation influences the overall evaluation of the nomos. It is important to state in advance that the meaning of every single word of the inscription is so controversial that necessarily I will take into account only the theories that appear to be of particular relevance to the topic here discussed.

  • 23 Among the main supporters of this theory cf. Lipsius 1908, p. 601; De Sanctis 1912, p. 166 ff.; Bus (...)
  • 24 The conviction, quite popular in the past, that already in Drakon’s time phonos ek pronoias was tri (...)
  • 25 Cf., e.g., Antiphon, Tetralogies I, 2.9 and On the Murder of Herodes 10; Lysias, On the Murder of E (...)

12Scholars have debated at length the subject, extent and scope of the law. According to the hypothesis that can be well qualified as the “traditional” one, which basically reads the law also in the light of what the indirect, classical sources say about it, Drakon introduced some radical innovations to the current system.23 First, he abolished private revenge. Second, he established different courts24 for the judgment of phonos ek pronoias and phonos akousios (respectively – but the translation is conventional due to the aforementioned difference between our concept of intentionality and the Greek one – “intentional” and “unintentional killing”). Third, he stated that the penalty should be differentiated according to the evaluation of mens rea; hence, whereas the person who was judged guilty of phonos ek pronoias was punished with death, the one who committed a less serious phonos akousios was condemned to exile;25 he could, however, avoid exile if he received the aidesis, “pardon”, by the victim’s relatives (the terms of the aidesis are indicated in ll. 13-19 of the epigraphic law, where it is specified which relatives, by unanimous agreement, could grant it).

  • 26 Modrzejewski 1991, p. 9.
  • 27 In this sense, besides Modrzejewski 1991, p. 8 ff., cf., e plurimis, Gagarin 1981, p. 111 ff.; Hump (...)

13Yet, especially in recent years, this hypothesis has been widely criticized. Relying both on the argument that the regulation of homicide in classical times cannot be compared with the Drakonian one – hence, what classical authors say about phonikoi nomoi is barely useful to understand the meaning of Drakon’s law – , and on the Aristotelian statement (Politics II, 1274b15-8) that Drakonian laws did not introduce any element of innovation, some scholars deny that the legislator put an end to private revenge or differentiated the penalty according to the evaluation of mens rea. According to them, Drakon simply set up a “système vindicatoire mitigé”,26 and gave some written rules to the existing and sometimes confused procedures of vendetta and private compensation. From this perspective, any weighing of intention and mens rea was, exactly as in the past, mostly marginal, if not totally irrelevant.27

14Now, I think it very difficult to accept that the locution ek pronoias, which appears among the first words of the epigraphic law (IG I3. 104, 11 [ incipit of Drakon’s law on homicide]: καὶ ἐὰμ μὲ ᾽κ προνοίας κτ[ένει τίς τινα, φεύγ]ε[ν), as well as, a little further below, the provision of particular consequences for the person who killed akôn (IG I3. 104, 16-18: κτ]ένει δὲ ἄκον, γνõσι δὲ hοι πεντ [έκοντα καὶ hες hοι ἐφέται ἄκοντ] α κτεναι etc.), does not have anything to do with a specific attention of the lawgiver to the mens rea, and hence with the different sanctions for those who killed intentionally, ek pronoias, and unintentionally, akôn. And, since we have no evidence that this distinction, though well known, had any concrete implication in pre-Drakonian times, it is reasonable to infer that it was Drakon who introduced it as a significant element of originality.

  • 28 But cf., recently, Gagliardi 2012, p. 45 ff.; Eck 2012, p. 218.
  • 29 For the different theories proposed to justify the presence of the initial kai, “and”, and the argu (...)
  • 30 For the arguments against the hypothesis of Cantarella 1975, p. 295 ff. (cf. also Cantarella 1976, (...)

15But let’s now consider the thesmos/nomos itself, and let’s analyze especially the first line of it, which – as already said – is the most important one for understanding the purpose and general content of the whole law. For a long time in the past28 it was stated that the epigraphic text deals only with “unintentional” homicide; accordingly, at the beginning of the law (l. 11), the definition of the offense (καὶ ἐὰμ μὲ ᾽κ προνοίας κτένει τίς τινα, to be translated “and if one man kills another unintentionally [μὲ ᾽κ προνοίας]”) is followed by the indication of the sanction (φεύγεν, “let him be exiled”). But this assumption, for various reasons, seems to me barely convincing. To say the least, it does not give any satisfactory explanation of the presence of the initial kai, understood as a coordinating conjunction;29 also, it does not explain why the unintentional nature of the offense is indicated with a negative locution (mê ek pronoias) and not with the positive adjective (akôn), which appears twice in the inscription some lines below (ll. 16-18: κτένει δὲ ἄκον, ἄκοντα κτεναι).30 Moreover, it seems to contradict the decree that precedes the transcription of the law, where we read (ll. 4-5) that some appointed state officials, the anagrapheis, were ordered to reinscribe τὸν Δράκοντος νόμον τὸμ περὶ τô φόνο, namely “the” law of Drakon on homicide, in its entirety, and not just a part of it.

  • 31 Or, rectius, it has been proposed again after the attempt at a different restoration, and hence int (...)
  • 32 For the opportunity of understanding the phrase mê ek pronoias as “does not kill intentionally” rat (...)
  • 33 Gagarin 1981, p. 96 ff.
  • 34 Cf. supra note 25.
  • 35 Cf. also Phillips 2008, p. 51 note 74.

16In order to find a possible solution to these problems, a new interpretation of the first line of the law – which necessarily affects the reading of the rest of it as well – has been recently proposed.31 If we rely on the aforementioned statement in the decree, and hence assume that, from its very beginning, the law concerns homicide in general, it is appropriate to assign a different meaning to what appear to be the two key terms of the sentence, namely kai and pheugen. Owing to the difficulty of understanding it as a coordinating conjunction, “and”, kai shall be translated “even”; hence, the sense of the first segment of the phrase will be “even if somebody does not kill intentionally (ek pronoias)”32 (implied, “as well as if somebody kills ek pronoias”). Consequently, it is better to give a different meaning to the main verb, pheugen; in fact, if we understood it in the sense of “to go into exile”, hence taking the first sentence as a whole to mean “even if somebody does not kill another ek pronoias, he should go into exile (exactly as the one who kills ek pronoias)”, we would postulate that intentional and unintentional homicide were punished in the same way. But this interpretation of the first line, given some years ago by Michael Gagarin,33 is clearly inconsistent with the recurring assertion in ancient sources that the two kinds of homicide were penalized differently, respectively with death and exile34. If so, it is better to understand pheugen in the technical legal sense, well attested for a later period, “to stand trial”; the possible argument against this hypothesis, namely the difficulty in conceiving that already in Drakon’s times pheugô had acquired this technical procedural meaning, is nullified by the plausible presence in the Drakonian law itself of a compound of diôkô, “to prosecute”, the verb that normally serves as a correlative of pheugô (l. 21: συνδιόκ]εν, referring to those who, together with the closest relatives, take part in the killer’s prosecution).35

  • 36 With the sole exception of phonoi dikaioi, “justifiable homicides” (l. 33 ff.) that were not subjec (...)
  • 37 The fact there is no indication of the penalty in the first line of the law should not be considere (...)

17The opening sentence, understood as “even if somebody does not kill another intentionally, he shall stand trial”, clearly shows Drakon’s first, fundamental innovation: the legislator established the necessity – or rectius the opportunity, given the limits of the dikê phonou, action for homicide, which had to be initiated only by the victim’s relatives – of a trial for all homicides, both intentional and unintentional.36 The first aim of this procedure was the abolition or, at least, the control of the existing system of revenge and private settlements, which, for the sole reason of not being written, were neither careful nor rigorous. Drakon introduced a system that could ensure certainties in procedure, settlement and penalty.37

  • 38 The use of the plural makes it difficult to take the term as indicating the archon basileus (pace D (...)
  • 39 For example, some scholars understand the verb as referring to the pre-trial activity of the basile (...)

18This system entailed a final and authoritative decision about the guilt and the degree of guilt of the defendant, who, as we may infer from the following sentence, had to appear before the basileis and the ephetai (ll. 11-13: δ]ικάζεν δὲ τὸς βασιλέας αἴτιον φόνο Ε [...... 17......] Ε βολεύσαντα· τὸς δὲ ἐφέτας διαγνõναι). There is no need to discuss here the many exegetical and philological problems that this sentence raises. It will be enough, for instance, to remember that it is difficult to identify the basileis38 and to clarify their activity, signified by the verb dikazen.39 Moreover, the lacuna of seventeen letters makes it difficult, although not impossible, to understand precisely the object of dikazen. This latter point, however, merits further discussion: since this sentence contains the phrase aition phono(u), it is at least appropriate to formulate a hypothesis on its meaning.

  • 40 Pepe 2012, p. 31 f.; for other similar restorations see esp. p. 32 note 53.
  • 41 E.g., Demosthenes, Against Meidias 116; Against Leptines 157-8; Isocrates, Panegyricus 111; [Aristo (...)
  • 42 Against the hypothesis that postulates the existence of a bouleusis, “planning”, of involuntary hom (...)

19Both the comparison with some loci similes of the logographic tradition, and the analysis of the particular constructions of dikazô, allow us to restore the lacuna with an infinitive clause, for example [ναι τὸν αὐτόχερ᾽εἴτ] ε βολεύσαντα.40 If this is correct, the sentence states: “the basileis are to dikazen that aition phonou is both the person who killed with his hands (autochera) and the person who planned to kill (boleusanta)”. Hence, aition phonou would be the result of the activity of dikazen performed by basileis; this qualification, aitios phonou, was to be given both to the autocheir and to the bouleusas. Now, I am of the opinion that both words, autocheir and bouleusas, refer first of all to the actual way the offence was effected; but they also refer to the intentional, rectius ek pronoias, nature of the act. We can find confirmation of this assumption in later literary sources, where autocheir consistently indicates a person who uses his hands with full control,41 and bouleuô the activity of somebody who intentionally plots a plan that somebody else will have to execute.42

  • 43 After a survey of all its occurrences from Homer until, at least, Antiphon (cf. Pepe 2012, p. 42 ff (...)

20Thus, we would have a definite confirmation that, just like Homer, Drakon does not use the word aitios as a generic “causal term”, to indicate the agent of any kind of homicide; aitios phonou is instead the “guilty”, inasmuch as he is the perpetrator of an intentional (rectius, ek pronoias) killing.43 Only the one who has been judged aitios phonou deserves the death penalty. The one who is not aitios, because his phonos has been judged akousios, will be punished with a less serious penalty, exile. But at this point, in order better to understand what exactly ek pronoias and akousios meant, and what elements and conditions qualified a homicide now as ek pronoias, now as akousios, it is worth shifting from archaic to classical sources, since only from the latter can we try to obtain a definition of the two kinds of homicide. This analysis will also allow us to deal with the last argument of our survey, and to understand first how the problem of responsibility for homicide was handled in the fifth century, and second if, and when, criminal responsibility was excluded.

HOMICIDE IN THE FIFTH CENTURY

  • 44 For a general overview cf. Pelloso 2012; Pepe forth., § 4.
  • 45 They are quoted supra n. 16.
  • 46 Cf., e.g., Aristotle, Ethica Megala I, 16.1-2: a woman, prosecuted before the Council of the Areopa (...)
  • 47 For a more detailed analysis of the topic see Pepe 2012, p. 87 ff.; Pepe forth., § 4.

21The question of which elements qualified a homicide as ek pronoias is highly controversial;44 in fact, neither classical nor Hellenistic sources provide us an unambiguous legal definition of pronoia. Certainly, the one who committed a phonos ek pronoias killed “intentionally”; actually, however, it is not clear whether the phrase ek pronoias – as some scholars claim45 – is the same (or at least has the same legal effect) as the more generic hekousios, and hence indicates homicides characterized by a simple harmful intent and includes also homicides committed “in the heat of the moment”; or, rather, it refers to a more restricted category, which contains only homicides committed with pronoia, “premeditation”. The first hypothesis seems to be challenged by some hints in various sources – starting from the Iliadic reference to the killing committed by Patroclus (supra, p. 49) – which suggest both that a homicide committed without premeditation was considered “not intentional”, and that, to define a phonos as ek pronoias, the presence of a specific intent to kill, and not just to harm, was necessary.46 Moreover, other clues in classical authors – especially in Antiphon’s Against the Stepmother, the only extant speech from a homicide trial held on the Areopagos – seem to imply that to be ek pronoias a phonos should have specific characteristics that could be compared – even if not at all identified – with our “premeditation”.47 Be that as it may, obviously the person who killed ek pronoias was responsible for his act, and he was subject to the most severe penalty.

  • 48 Wohl 2010, p. 119. On the Tetralogies, analyzed in the perspective here considered, see Gagarin 197 (...)

22Things are more complicated when we deal with phonos akousios. When was a phonos qualified as akousios, and hence when was someone considered responsible for having committed it? The only extant work that allows us to answer this question – or at least to try to – is the Second Tetralogy. The Tetralogies, ascribed to Antiphon, do not represent real cases; nonetheless, “they imitate the form and reflect the concerns of real cases” and “offer a theoretical mimesis of legal praxis”. And even though, due to the sophistic nature of the work itself and to its structure, the topic discussed is given two possible definitions and solutions, neither of which appears to be stronger or more valid than the other, “in their staged scenarios we can watch the play of contemporary legal thought”,48 so that, considering the two opposing speeches in the light of it, some conclusions about criminal responsibility for homicide in fifth century Athens can be drawn.

23It is well known that the defendant in the fictitious trial of the Second Tetralogy is a young man who, throwing his javelin, struck and killed a team-mate, and is charged by the father of the victim with having committed a phonos akousios. The father of the killer, speaker for the defense, while agreeing on the “unintentional”, akousios, nature of the homicide, does not agree on the terms and the ways the adjective akousios should be understood. Ultimately, the debate concerns first the definition of akousios, and second, the problem of attribution of criminal responsibility for the deed – topics on which the prosecution and the defense take two opposite stances.

  • 49 For the principle according to which the person who commits a homicide, regardless of his intention (...)

24The plaintiff, on the one hand, maintains that akousios phonos is that phonos which results from a mere causal mechanism; and, since causality entails culpability, the agent is liable simply because he caused the outcome. In fact, to deny – as the defense does – that the one who struck and killed neither wounded nor killed is a sign of incredible audacity and shamelessness (3.5); moreover, since it is evident that nobody but the defendant threw the javelin, he is the only one responsible for the homicide, and he deserves to be punished as prescribed by the law that orders the punishment of the killer (3.7). The defendant would be innocent only if he were standing still and not throwing his javelin when the boy was killed; the mere fact of having thrown the javelin makes the defendant a killer (3.10). The plaintiff’s position is well condensed in the questions: “Who threw the javelin? To whom is the boy’s death to be in fact attributed?” (ἀλλὰ τίς βαλών; εἰς τίν᾽ὁ φόνος ἀνήκει; 3.7). The ground of his charge is assumed to be a “physic of causality”, consistent with the provision of the law that “orders the punishment of the killer” (3.7). The boy must be punished because, simply by the act of throwing, he caused the death and is consequently the killer. The plaintiff never talks about intentions; indeed, from his perspective – a traditional perspective, which can be compared with the Homeric one – intentions are totally irrelevant.49

  • 50 Art. 43 codice penale: “[il delitto] è colposo, o contro l’intenzione, quando l’evento, anche se pr (...)
  • 51 Negligent manslaughter, which “involves cases where a person causes the death of another by gross c (...)

25On the other hand, the defendant’s father challenges the idea that his son committed a phonos akousios, asserting that liability for homicide could not be determined by a mere relation of cause and effect; to him, the guilty party is not the one who threw the javelin, but rather the one in whose behavior can be recognized the presence of an hamartia (2.6), the notion of which can be deduced from some preceding and following sentences. He maintains, in fact, that his son did not throw with insolence or intemperance (οὐχ ὕβρει οὐδὲ ἀκολασίᾳ, 2.3); he adds that, had he thrown the javelin outside the area designated for its flight (2.4), or against an order, or in a wrong moment, or from a wrong place (2.7), he could be considered guilty. But, since he did everything correctly (πάντα ὀρθῶς, 2.7) and hence committed no hamartia, he killed nobody, although he threw (2.3). He was not the cause, but instead the victim (ἔπαθε) of the accident, since he was prevented from hitting the target (2.7). This being the case, someone else is pointed out as responsible and guilty; namely, the victim, who, running forward just at the moment of the throwing, put himself between the javelin and the target (2.5; cf. 4.5-8). By dying, the guilty victim punished himself for his own hamartia (2.8). The defendant is the first to admit that the arguments he uses are typically sophistic, “close and subtle” (λεπτὰ δὲ καὶ ἀκριβῆ, 4.2). Relying on them, he clearly wants to undermine the traditional idea that the person who merely mechanically caused a death, without any intention of doing so, is to be considered liable and guilty of phonos akousios; and the definition he gives of hamartia allows us to compare his notion of phonos akousios to, for instance, the Italian “omicidio colposo”,50 or to the kind of homicide that in common law is generally qualified as “negligent manslaughter”.51

  • 52 Against the ascription to the fifth century (and consequently to Antiphon) of the Tetralogies see, (...)

26If it is true that the Tetralogies were written towards the end of the V century52, then the question at issue in this work fully joins in the heated intellectual debate of the time on individual (criminal and generally moral) responsibility. From this debate emerges the idea that it is necessary to distinguish between the “material agent” and the person who is “truly responsible” and that it is necessary to consider “responsible” only the person who played an active part in the realization of a deed.

  • 53 Plutarch, Pericles 36.5: Πεντάθλου γάρ τινος ἀκοντίῳ πατάξαντος Ἐπίτιμιον τὸν Φαρσάλιον ἀκουσίως κα (...)
  • 54 Cf. also Pepe 2012, p. 154 ff.

27Many contemporaneous works (or works referring to this period) prove the existence of this debate. In his Life of Pericles, for instance, Plutarch recalls that Pericles and the sophist Protagoras spent an entire day discussing a case very similar to that of the Second Tetralogy. An athlete unintentionally (akousiôs) hit somebody with his javelin and killed him; who, “according to the most correct reasoning” (kata ton orthotaton logon), ought to be held responsible for the disaster? The javelin, the thrower, or the judges of the contest?53 Now, it is clear that, if there were no doubt that the material agent is always responsible, the whole discussion – and especially the indication of a possible responsibility of the judges, who clearly were not materially involved in the accident – would have made no sense.54

  • 55 For similar remarks on Gorgias’Encomium of Helen see esp. Dover 1974, p. 144 ff.; Cantarella 1976, (...)

28Moreover, in Gorgias’ Encomium of Helen, the purpose of the sophist is to deny the heroine’s guilt, not assuming – as, for instance, Stesichorus did, following in his Palinodes the variant version of the myth in which it was Helen’s ghost who went to Troy, while she stayed in Sparta – that she did not commit the act, but instead showing that she cannot be charged with having committed it; actually, rather than “acting”, she “suffered”. Whatever was the reason that induced her to flee to Troy with Paris, she is not responsible. Hence, she does not deserve the blame that has been haunting her for years. Guilty are the gods, or Tyche, or Anagke, if they compelled her to escape (τῇ Τύχῃ καὶ τῷ θεῷ τὴν αἰτίαν ἀναθετέον, 6). If she was forced by violence, bia, it was the one who used bia that “acted”, while she simply “suffered” ( <μὲν> ἁρπάσας ὡς ὑβρίσας ἠδίκησεν, δὲ ἁρπασθεῖσα ὡς ὑβρισθεῖσα ἐδυστύχησεν [...] μὲν γὰρ ἔδρασε δεινά, δὲ ἔπαθε, 7). Again, if she was convinced by logos, whoever convinced her, since he forced her, did wrong ( μὲν οὖν πείσας ὡς ἀναγκάσας ἀδικεῖ, 12), while she did no wrong; she was only unfortunate (οὐκ ἠδίκησεν ἀλλ᾽ ἠτύχησεν, 15). Last but not least, if the cause of her behavior was eros, there are two possibilities: in fact, if eros is a god, it is impossible for a weak human being to resist a divine power (εἰ μὲν θεός, θεῶν θείαν δύναμιν πῶς ἂν ἥσσων εἴη τούτων ἀπώσασθαι καὶ ἀμύνασθαι δυνατός; 19); if, instead, eros is a kind of sickness or disease, once again Helen is not guilty but unfortunate (εἰ δ᾽ἐστὶν ἀνθρώπινον νόσημα καὶ ψυχῆς ἀγνόημα, οὐχ ὡς ἁμάρτημα μεμπτέον ἀλλ᾽ὡς ἀτύχημα νομιστέον, ibid.).55

  • 56 Cf. also Jones 1956, p. 263 f.

29Some tragedies of the last years of the V century similarly echo the debate; for example, the comparison between Sophocles’ Oedipus the King (around 430 BC) and the later Oedipus at Colonus (401 BC) can well demonstrate the change of perspective as far as responsibility is concerned.56 While the first Oedipus punishes himself because he feels responsible for what he materially did, the second Oedipus proclaims himself “pure” (καθαρός, v. 548), not guilty: he did not “do” those actions, rather he “suffered” them (ἔπαθον […] οὐκ ἔρεξα, vv. 538-539). In a different field, but basically with the same answers, the topic is dealt with in Thucydides’ work, the first “scientific” historical treatise; in one of its first chapters the historian underscores that it is necessary to distinguish between “alleged” and “real causes” (τὴν μὲν γὰρ ἀληθεστάτην πρόφασιν, ἀφανεστάτην δὲ λόγῳ [...] αἱ δ᾽ἐς τὸ φανερὸν λεγόμεναι αἴτιαι, I, 23.6), and that the “responsibility” for an event cannot be ascribed to the act that merely caused it.

30This is the background in which we can place the answer to the specific issue of criminal responsibility for homicide. The person who merely caused the deed, and acted without any premeditation, intention, or negligence, is neither responsible nor, consequently, deserves any punishment. At the beginning of this paper we saw that Homer sometimes denied that a mere causal agent was to be considered responsible, hence punishable. The process already started in Homer reaches its coherent conclusion towards the end of the fifth century.

Abbreviations

31IG I3: David Lewis (ed.), Inscriptiones Graecae. Inscriptiones Atticae Euclidis anno anteriores, Berlin-New York, 1981.

32MPC: Model Penal Code, Philadelphia, 1962.

33NNDI: Novissimo Digesto Italiano, Torino, 1957-1975.

34PWRE: August Friedrich von Pauly, Georg Wissowa et al. (ed.), Real-Encyclopädie der classischen Altertumswissenschaft, Stuttgart, 1893-.

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Notes

1 Williams [1993] 2007, p. 31 ff.

2 Snell [1948] 1963, p. 24 ff. (for the idea that in Homer, as well as in coeval art, the body is conceived of only as a complex of limbs [guia, melea ]); p. 28 ff., 36 ff. (Homer ignores the unity of the soul, and uses at least three different words – psuchê, thumos, noos – to indicate respectively the vital breath that flies away through the mouth when the person dies, the organ of emotions and the seat of the intellect); p. 55 ff. (human actions or decisions are not independent, inasmuch as they are promoted by the gods).

3 As far as the unity of the body is concerned, Williams [1993] 2007, p. 33 f., recalls for instance the Iliadic passage (XXIV, 405-423) where Priam, trying to recover from Achilles the corpse of his son, hopes that it is still intact, as it was when Hector was alive; this is for him a clear example that the Homeric perception of the integrity of the body as a unit is possible even when the person lives, and not only – as assumed by Snell – after his death. Regarding the existence of a Homeric concept of decision, the British scholar (36 ff.) similarly provides several examples from which the notion of an independent deliberation clearly emerges; and even if most times in the poems human behavior seems to be influenced by divine intervention, nonetheless the very fact that the gods are able to deliberate shows that the idea of deliberation already existed. For similar observations see also, e plurimis, Dodds [1951] 1990, p. 10 note 2 (who, however, partially accepts Snell’s ideas, cf. p. 26 f.); Cantarella 2002, p. 177 ff.

4 Lesky 1961, esp. p. 32 ff.; cf. also Lesky 1966.

5 Gaudemet 1962, p. 486 f.; cf. also, e plurimis, Adkins 1960, p. 25: “in Homeric society, then, the belief in non-human causation of human action has practically no effects on the ascription of responsibility”; Gioffredi 1974, p. 13 f.: “ad esprimere il concetto della colpevolezza viene usato un termine che indica la semplice causalità, αἴτιος, il quale designa il responsabile, ma in realtà non significa altro che “autore” del fatto: si prescinderebbe insomma da ogni imputazione morale dell’evento”; Mackenzie 1981, p. 81 ff. For a broader definition of aitios related to homicide and more generally to criminal law see moreover Gernet 1917, p. 368 f.; Jones 1956, p. 264 f.

6 Carawan 1998, p. 43.

7 Cantarella [1980] 2011, p. 49.

8 Cantarella 1979, p. 273; Cantarella [1980] 2011, p. 61.

9 Cantarella [1980] 2011, p. 66 (author’s italics).

10 For the different terms – boulomai, ethelô, hekôn – used in the Homeric poems to indicate different types of intention see Maschke [1926] 1968, p. 2 ff.

11 . For the definition of the Greek terms hekôn/hekousios and akôn/akousios, traditionally, but approximately, translated respectively with “intentional”, “willingly”, “voluntarily”, and “unintentional”, “unwillingly”, “involuntarily”, see Rickert 1989, p. 2 f. and passim. For the meaning of the terms, with particular reference to homicide, cf. Pepe forth., esp. § 2.

12 Contra cf. Pelloso 2012, p. 199 note 30, for whom Patroclus’ statement about the lack of mens rea in his behavior cannot be considered meaningful for the Homeric concept of unintentional killing, for the simple fact that it is uttered by the doer himself. Now, it is certainly possible that here Patroclus is trying to mitigate his moral guilt, even though this has no consequences on his “legal” guilt; but I do not agree that his words cannot be significant as far as the Homeric classification of the different kinds of homicide is concerned. In fact, the idea they express can be compared with the content of Agamemnon’s justification – once again valid only on the moral level – for the abduction of Briseis (Iliad XIX, 86-89; 137), with the only difference being that in this case his justification is confirmed also by Achilles, victim of his offence (Iliad XIX, 270-273); on the point cf. Dodds [1951] 1990, p. 3 ff.

13 Gioffredi 1974, p. 31 f.

14 Cantarella 1976, p. 43 ff.; Cantarella 1979, p. 267 f.

15 For the sources and their analysis cf. Pepe 2012, p. 134 ff.

16 Contra, for the inclusion of homicides committed in the heat of the moment in the category of voluntary homicide – which was characterized by the presence of a simple harmful intent – see MacDowell 1963, p. 60; Loomis 1972; Gagarin 1981, p. 31; Phillips 2007, p. 75 ff.; Phillips 2008, p. 59 note 4. For further analysis of the topic, see Pepe 2012, p. 99 ff.; Pepe forth., § 5; Pelloso 2012, p. 188 ff.

17 There is no mention of the intent of the killer in the trial scene on the Shield of Achilles (Iliad XVIII, 497-508), where the thema decidendum is only whether the poinê has been paid by the killer to the family of the victim. Of course – even if there is no hint in our sources that this was the rule – it is possible to admit that the relatives of the victim were more inclined to accept the poinê if they acknowledged that the killing had been unintentional. David Phillips, whom I would like to thank for having discussed this topic with me, will recognize in the text and in this footnote some of his suggestions.

18 On the passage, see Rhodes 1981, p. 130 ff.; contra, Humphreys 1991, p. 18 ff. maintains that probably Drakon wrote exclusively the laws on homicide.

19 The historical existence of Drakon was first questioned by Beloch 1926, p. 258 ff.; and, more recently, both Sealey 1976, p. 104 (cf. also Sealey 1987, p. 115 ff.), and Figueira 1993, p. 288 ff., underscored as barely believable the fact that the tradition ascribes to Athens two legislators, while just one is mentioned for all the others Greek poleis. Against this argument see however Gagarin 1981, p. 1 note 1: “[this] is in fact an argument for Drakon’s historical existence, since the tradition would have been more likely to reduce two early figures to one than vice versa”.

20 For the details of the discovery and the restoration of the inscription cf. Stroud 1968, p. 1 ff. The text of the law can be read in IG I3. 104.

21 Maybe earlier if we accept Todd’s suggestion (Todd 1996, p. 103 note 5) that the term of the anagrapheis (the state officials appointed to reinscribe the law) ran from 411/0, or more likely from 410/9 BC.

22 Cf. Gallia 2004.

23 Among the main supporters of this theory cf. Lipsius 1908, p. 601; De Sanctis 1912, p. 166 ff.; Busolt, Swoboda 1926, p. 811 ff.; Maschke [1926] 1968, p. 53 ff.; Latte 1931, p. 133 ff.; Latte 1933, p. 280 ff.; Jones 1956, p. 259; Paoli 1965, p. 836; Biscardi 1982, p. 286 ff.; Cantarella 1975, p. 293 ff.; Cantarella 1976, p. 84 ff.; Forsdyke 2005, p. 86 ff.; Phillips 2008, p. 49 ff.; Pepe 2008, p. 139 ff.; Pepe 2012, p. 13 ff.; Pelloso 2012, p. 188 ff.

24 The conviction, quite popular in the past, that already in Drakon’s time phonos ek pronoias was tried by the Areopagus has been now almost completely abandoned (contra, Gagliardi 2012, p. 42 ff.); bibliography and status quaestionis in Pepe 2012, p. 49 ff.

25 Cf., e.g., Antiphon, Tetralogies I, 2.9 and On the Murder of Herodes 10; Lysias, On the Murder of Eratosthenes 50 and Against Andocides 14; Demosthenes, Against Meidias 43.

26 Modrzejewski 1991, p. 9.

27 In this sense, besides Modrzejewski 1991, p. 8 ff., cf., e plurimis, Gagarin 1981, p. 111 ff.; Humphreys 1991, p. 35 ff.; Thür 1991, p. 53 ff.; Carawan 1998, p. 45 f. e 79 ff.; Lewis 2007, p. 66.

28 But cf., recently, Gagliardi 2012, p. 45 ff.; Eck 2012, p. 218.

29 For the different theories proposed to justify the presence of the initial kai, “and”, and the arguments against them, cf. Pepe 2012, p. 17 ff.

30 For the arguments against the hypothesis of Cantarella 1975, p. 295 ff. (cf. also Cantarella 1976, p. 105 ff.), according to whom the locution mê ek pronoias qualified a particular kind of involuntary killing that lacked pronoia, “premeditation”, see Pepe 2012, p. 130 ff.; Pepe forth., § 5; Pelloso 2012, p. 206 ff. note 42.

31 Or, rectius, it has been proposed again after the attempt at a different restoration, and hence interpretation, of the first line of the law suggested by Tsantsanoglou 1972, p. 170 ff. (namely, καὶ ἐὰμ μὲ ᾽κ προνοίας κτ[ένει τίς, φόνο φεύγ]ε[ν); see, e.g., Mirhady 2008, p. 16 ff.; Phillips 2008, p. 51 note 74; Pepe 2012, p. 26 ff.; Pelloso 2012, p. 191 ff., esp. 193 note 24.

32 For the opportunity of understanding the phrase mê ek pronoias as “does not kill intentionally” rather than “kills unintentionally” – given the absence of a category of homicide qualified as mê ek pronoias (pace Cantarella: cf. supra, note 30), see esp. Gagarin 1981, p. 36: “its use [scil. of the phrase mê ek pronoias] is to deny that a particular action belongs to the category ἐκ προνοίας; […] in every case it negates a positive category and we should translate it “not intentionally” rather than “unintentionally”.

33 Gagarin 1981, p. 96 ff.

34 Cf. supra note 25.

35 Cf. also Phillips 2008, p. 51 note 74.

36 With the sole exception of phonoi dikaioi, “justifiable homicides” (l. 33 ff.) that were not subject to trial (at least in Drakon’s law) and penalty: cf. Pepe 2012, p. 184 ff.

37 The fact there is no indication of the penalty in the first line of the law should not be considered a problem, pace Gagarin 1981, p. 30 note 1, Cantarella 1994, p. 212 and Gagliardi 2012, p. 46; not only could the sanction be specified elsewhere in the text, but an indication of the penalty here would be quite out of place. In fact, only if we admit that the opening sentence contains procedural instructions, does the law as a whole reveal a proper inner coherence, with logical and chronological sequences: summons (l. 11); indication of the judges (basileis, ephetai, ll. 11-13); rules about aidesis (probably possible only after the judges had decided the case, l. 13-19); on the point cf. Mirhady 2008, p. 17 ff.; Pepe 2012, p. 27 ff.; Pelloso 2012, p. 194 note 24.

38 The use of the plural makes it difficult to take the term as indicating the archon basileus (pace De Sanctis 1912, p. 142; Hignett 1952, p. 312; Stroud 1968, p. 46 f.; Harrison [1971] 1998, II, p. 43); rather, the basileis should be identified with the archon basileus together with the phulobasileis, the pre-Cleisthenic tribe-kings named, for instance, in Aristotle, Constitution of the Athenians 8.3 (cf. e plurimis Busolt, Swoboda 1926, p. 792 ff.; Bonner, Smith [1930] 1970, p. 117; Wolff 1946, p. 72; MacDowell 1963, p. 87; Gagarin 2000, p. 571 ff.; Pepe 2012, p. 32 ff.).

39 For example, some scholars understand the verb as referring to the pre-trial activity of the basileus, who determines the nature of the homicide and introduces the case to the competent court (cf., e.g., Bonner, Smith [1930] 1970, p. 115 ff.; Cantarella 1976, p. 91; see also Gagarin 2000, p. 572, who, however, gives a broader definition of the verb dikazô, which presumably included “at least some of the duties that we know from Ath. Pol. 57 […], such as handling the preliminary proclamation, arranging for the trial, conducting the preliminary hearings, and supervising the conduct of the trial”). For others, it describes the basileus’(or phulobasileis’) task of presiding over the session of the court and judging the case together with the ephetai (cf. Lipsius 1905, p. 17 f.). Wolff 1946, p. 71 ff. – whose hypothesis has been widely accepted: cf., among others, MacDowell 1963, p. 38; Wallace 1989, p. 26 f.; Talamanca 1979, p. 130 ff. – , believes instead that dikazen means “to state the right” (“the ‘kings’, on the ground of the verdict of the ephetai, pronounced the defendant “responsible for the homicide”, so that the consequences laid down in the law automatically might take place”, p. 75). Finally, for Carawan 1998, p. 68 ff. (and cf. also Mirhady 2008, p. 19 ff.), who follows Thür 1970, dikazen is the proposition by the basileis of a preliminary judgment in order to settle the dispute. Status quaestionis and further discussion of the topic in Pepe 2012, p. 30 ff.

40 Pepe 2012, p. 31 f.; for other similar restorations see esp. p. 32 note 53.

41 E.g., Demosthenes, Against Meidias 116; Against Leptines 157-8; Isocrates, Panegyricus 111; [Aristotle], Constitution of the Athenians 39.5.

42 Against the hypothesis that postulates the existence of a bouleusis, “planning”, of involuntary homicide cf. Pepe 2012, p. 163 ff.

43 After a survey of all its occurrences from Homer until, at least, Antiphon (cf. Pepe 2012, p. 42 ff. with the relevant footnotes, esp. 82 – 83), I am persuaded that aitios always designates someone who is “responsible for an intentional action”. The only possibly doubtful occurrence in Homer is Odyssey XXII, 155: Odysseus, who is preparing his final vendetta against the suitors, realizes that his enemies are taking weapons from a storehouse he had previously ordered closed, and hence supposes that some of his treacherous servants are cooperating with the suitors; but Telemachus admits that the fault is only his, and nobody else is aitios, because he was the one who forgot to close the door. Even if, according to the communis opinio, aitios here may indicate a person guilty of an unintentional error, I think it not awkward to understand the phrase in the sense of “nobody is intentionally planning anything against us”.

44 For a general overview cf. Pelloso 2012; Pepe forth., § 4.

45 They are quoted supra n. 16.

46 Cf., e.g., Aristotle, Ethica Megala I, 16.1-2: a woman, prosecuted before the Council of the Areopagus for having given her partner a love potion that caused his death, was acquitted since the judges recognized that she had no intention to kill, dianoia tou apolesthai (διοὐθὲν ἄλλο ἀπέλυσαν διότι οὐκ ἐκ προνοίας. ἔδωκε μὲν γὰρ φιλίᾳ, διήμαρτεν δὲ τούτου · διὸ οὐχ ἑκούσιον ἐδόκει εἶναι, ὅτι τὴν δόσιν τοῦ φίλτρου οὐ μετὰ διανοίας τοῦ ἀπολέσθαι αὐτὸν ἐδίδου).

47 For a more detailed analysis of the topic see Pepe 2012, p. 87 ff.; Pepe forth., § 4.

48 Wohl 2010, p. 119. On the Tetralogies, analyzed in the perspective here considered, see Gagarin 1978; Gagarin 1997, p. 7 ff.; Gagarin 2002, p. 52 ff.; Carawan 1993; Carawan 1998, p. 171 ff.

49 For the principle according to which the person who commits a homicide, regardless of his intention, is subject to punishment cf. also Plato, Laws IX, 865b-c.

50 Art. 43 codice penale: “[il delitto] è colposo, o contro l’intenzione, quando l’evento, anche se preveduto, non è voluto dall’agente e si verifica a causa di negligenza o imprudenza o imperizia, ovvero per inosservanza di leggi, regolamenti, ordini o discipline”.

51 Negligent manslaughter, which “involves cases where a person causes the death of another by gross carelessness” [a], is included in the category of involuntary manslaughter, which covers all types of homicide that are unlawful at common law but where the accused lacks the guilty mind required for murder; involuntary manslaughter encompasses also reckless manslaughter (“a person causes the death of another when aware of the risk that her or his conduct may cause harm to another” [a]; “recklessness is distinguishable from negligence in that the former involves advertent risk-taking while the latter involves inadvertence to a risk” [b]) and unlawful manslaughter (“the death of another is caused by an unlawful and dangerous act” [a]): Yeo 1997, p. 149 ff., esp. 162 ff. (quotes [a] from p. 150, [b] from p. 163). In the category of criminal homicide of the Model Penal Code (MPC § 210.1-2: “a person is guilty of criminal homicide if he purposely, knowingly, recklessly or negligently causes the death of another human being. Criminal homicide is murder, manslaughter or negligent homicide”) a homicide committed negligently constitutes negligent homicide (MPC § 210.4), whereas the qualification of manslaughter is given only to homicides committed recklessly (MPC § 210-3); also in this case, “the essence of the difference between recklessness and negligence […] is that the reckless actor must “consciously disregard” a substantial and unjustifiable homicidal risk created by his conduct, whereas the negligent actor need only disregard a risk of which he “should be aware” (Commentary to MPC, § 210.4).

52 Against the ascription to the fifth century (and consequently to Antiphon) of the Tetralogies see, recently, Carawan 1998, p. 171 ff.

53 Plutarch, Pericles 36.5: Πεντάθλου γάρ τινος ἀκοντίῳ πατάξαντος Ἐπίτιμιον τὸν Φαρσάλιον ἀκουσίως καὶ κτείναντος, ἡμέραν ὅλην ἀναλῶσαι μετὰ Πρωταγόρου διαποροῦντα, πότερον τὸ ἀκόντιον τὸν βαλόντα μᾶλλον τοὺς ἀγωνοθέτας κατὰ τὸν ὀρθότατον λόγον αἰτίους χρὴ τοῦ πάθους ἡγεῖσθαι.

54 Cf. also Pepe 2012, p. 154 ff.

55 For similar remarks on Gorgias’Encomium of Helen see esp. Dover 1974, p. 144 ff.; Cantarella 1976, p. 112 ff.; Cantarella 1979, p. 274 f.

56 Cf. also Jones 1956, p. 263 f.

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Università degli Studi di Milano

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