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ÖSTERREICHISCHE AKADEMIE DER WISSENSCHAFTEN PHILOSOPHISCH-HISTORISCHE KLASSE ANTIKE RECHTSGESCHICHTE AKTEN DER GESELLSCHAFT FÜR GRIECHISCHE UND HELLENISTISCHE RECHTSGESCHICHTE HERAUSGEGEBEN VON EVA CANTARELLA MICHAEL GAGARIN JOSEPH MÉLÈZE MODRZEJEWSKI GERHARD THÜR in Verbindung mit Martin Dreher, Adriaan Lanni, Alberto Maffi, Julie Vélissaropoulos-Karakostas Band 25 ÖSTERREICHISCHE AKADEMIE DER WISSENSCHAFTEN PHILOSOPHISCH-HISTORISCHE KLASSE ANTIKE RECHTSGESCHICHTE AKTEN DER GESELLSCHAFT FÜR GRIECHISCHE UND HELLENISTISCHE RECHTSGESCHICHTE begründet von HANS JULIUS WOLFF HERAUSGEGEBEN VON EVA CANTARELLA MICHAEL GAGARIN JOSEPH MÉLÈZE MODRZEJEWSKI GERHARD THÜR in Verbindung mit Martin Dreher, Adriaan Lanni, Alberto Maffi, Julie Vélissaropoulos-Karakostas Band 25 T-Thür-Symposion-2015.indd 2 19.12.2016 14:41:43 SYMPOSION 2015 coordenação por / herausgegeben von ÖSTERREICHISCHE AKADEMIE DER WISSENSCHAFTEN PHILOSOPHISCH-HISTORISCHE KLASSE ANTIKE RECHTSGESCHICHTE SYMPOSION 2015 Conferências sobre a História do Direito grego e helenístico (Coimbra, 1–4 Setembro 2015) Vorträge zur griechischen und hellenistischen Rechtsgeschichte (Coimbra, 1.–4. September 2015) coordenação por / herausgegeben von Delfim F. Leão, Gerhard Thür Conferências sobre a História do Direito grego e helenístico (Coimbra, 1–4 Setembro 2015) Vorträge zur griechischen und hellenistischen Rechtsgeschichte (Coimbra, 1.–4. September 2015) T-Thür-Symposion-2015.indd 3 19.12.2016 14:41:47 Angenommen durch die Publikationskommission der philosophisch-historischen Klasse der ÖAW: Michael Alram, Bert Fragner, Hermann Hunger, Sigrid Jalkotzy-Deger, Brigitte Mazohl, Franz Rainer, Oliver Jens Schmitt, Peter Wiesinger und Waldemar Zacharasiewicz Gedruckt mit Unterstützung durch Die verwendete Papiersorte ist aus chlorfrei gebleichtem Zellstoff hergestellt, frei von säurebildenden Bestandteilen und alterungsbeständig. Diese Publikation wurde einem anonymen, internationalen Peer-Review-Verfahren unterzogen. This publication has undergone the process of anonymous, international peer review. Alle Rechte vorbehalten. ISBN 978-3-7001-8052-4 Copyright © 2016 by Österreichische Akademie der Wissenschaften, Wien Satz: Theresia Pantzer, Kommission für Antike Rechtsgeschichte, 1010 Wien Druck und Bindung: Grafoprint, SRB http://epub.oeaw.ac.at/8052-4 http://verlag.oeaw.ac.at Printed and bound in the EU ALLE RECHTE VORBEHALTEN ISSN ???????????????????????????? ISBN ???????????????????????????? ISBN Digital ???????????????????????????? DOI ???????????????????????????? © 2016 This work is licensed under Creative Commons CC‑BY (http://creativecommons.org/licenses/by/3.0/pt/legalcode) POCI/2010 ???????????????????????????? Projeto UID/ELT/00196/2013 ‑ Centro de Estudos Clássicos e Humanísticos da Universidade de Coimbra ALLE RECHTE VORBEHALTEN ISSN ???????????????????????????? ISBN ???????????????????????????? ISBN Digital ???????????????????????????? DOI ???????????????????????????? © 2016 This work is licensed under Creative Commons CC‑BY (http://creativecommons.org/licenses/by/3.0/pt/legalcode) POCI/2010 ???????????????????????????? Projeto UID/ELT/00196/2013 ‑ Centro de Estudos Clássicos e Humanísticos da Universidade de Coimbra ALLE RECHTE VORBEHALTEN ISSN ???????????????????????????? ISBN ???????????????????????????? ISBN Digital ???????????????????????????? DOI ???????????????????????????? © 2016 This work is licensed under Creative Commons CC‑BY (http://creativecommons.org/licenses/by/3.0/pt/legalcode) POCI/2010 ???????????????????????????? Projeto UID/ELT/00196/2013 ‑ Centro de Estudos Clássicos e Humanísticos da Universidade de Coimbra ALLE RECHTE VORBEHALTEN ISSN ???????????????????????????? ISBN ???????????????????????????? ISBN Digital ???????????????????????????? DOI ???????????????????????????? © 2016 This work is licensed under Creative Commons CC‑BY (http://creativecommons.org/licenses/by/3.0/pt/legalcode) POCI/2010 ???????????????????????????? Projeto UID/ELT/00196/2013 ‑ Centro de Estudos Clássicos e Humanísticos da Universidade de Coimbra ALLE RECHTE VORBEHALTEN ISSN ???????????????????????????? ISBN ???????????????????????????? ISBN Digital ???????????????????????????? DOI ???????????????????????????? © 2016 This work is licensed under Creative Commons CC‑BY (http://creativecommons.org/licenses/by/3.0/pt/legalcode) POCI/2010 ???????????????????????????? Projeto UID/ELT/00196/2013 ‑ Centro de Estudos Clássicos e Humanísticos da Universidade de Coimbra T-Thür-Symposion-2015.indd 4 19.12.2016 14:41:47 75 “Gerotrophia: a controversial law” — response to Eva Cantarella DELFIM F. LEÃO (UNIVERSITY OF COIMBRA) “GEROTROPHIA: A CONTROVERSIAL LAW” — RESPONSE TO EVA CANTARELLA 1. Gerotrophia and generation conflicts1 Anchisteia conceded the important right of claiming the heritage of a deceased family member; in exchange, it implied as well certain obligations respecting the dead. If death were caused by homicide, it would be up to the anchisteis to assure that justice should be done; family members also had ritualistic obligations, particularly regarding the cult of those who were no longer among the living. However, even before the progenitor’s death, there was another type of responsibilities that were to be provided by the anchisteis, especially by the son who would inherit the patrimony of his father and mother, as future kyrios of the oikos: to maintain his parents in old age, provide them shelter and food and take care of them in sickness. As is righty underlined by E. Cantarella, those obligations would fall under the concept of gerotrophia or geroboskia, and their effects would remain binding even after the parents’ death, because a son should provide them a proper funeral ceremony and continue to honour their memory. At a time when the State was still far from creating a social security system, the possibility of granting protection in old age was, of course, a guarantee that parents would expect to receive from their children. On the other hand, it is reasonable to perceive 1 I wish to thank Manuel Tröster, who read an earlier version of this paper and whose comments helped me to improve it, especially at the linguistic level. This work was developed under the project UID/ELT/00196/2013, funded by the Portuguese FCT – Foundation for Science and Technology. 76 Delfim F. Leão gerotrophia as the natural counterpart of the effort that parents had made themselves by nurturing their young (paidotrophia).2 Both attitudes are therefore directly interwoven by a principle of reciprocity: as a result, in a normal situation, a well-conducted paidotrophia represents a good investment and a security for the future. In fact, after coming to age, properly raised young adults can be expected to become responsible citizens and good parents in their turn, being receptive as well to the natural obligation of repaying what they have received, thereby protecting the older members of the oikos. Reality, however, does not always correspond to this idyllic portrait of life, and this is clearly visible in an author as early as Hesiod, who, in his Myth of the Five Ages, presents the lack of respect as a symptom of human degradation during the Iron Age (Op. 185-8): αἶψα δὲ γηράσκοντας ἀτιμήσουσι τοκῆας· μέμψονται δ’ ἄρα τοὺς χαλεποῖς βάζοντες ἔπεσσι, σχέτλιοι, οὐδὲ θεῶν ὄπιν εἰδότες· οὐδέ κεν οἵ γε γηράντεσσι τοκεῦσιν ἀπὸ θρεπτήρια δοῖεν. Soon as they grow old people will show no respect to their elders; harshly upbraiding them, they use words that are horribly cruel, wretches who don’t acknowledge the face of the gods, and who will not pay back ever the cost of their upbringing to their old parents.3 Although in poetic form, Hesiod’s lines provide some (proto)legal snapshots on the problem under consideration: as soon as the parents get older (γηράσκοντας), their young start dishonouring (ἀτιμήσουσι) them. This means that it is the elders who suffer a kind of atimia because of the way they are exposed to public inconsideration, and not that atimia is the penalty for the offender. On the other hand, Hesiod makes quite clear that the obligation of gerotrophia is a form of reward that should be given as a return for the previous investment in the rearing of children (ἀπὸ θρεπτήρια). Failing to grant this is a complete annihilation of the basic principle of reciprocity behind this natural expectation. E. Cantarella is therefore right to argue that, when Solon enacted the law on gerotrophia, he was moving into the civic level the ‘ideological function’ of these old moral principles (later labelled “‘unwritten laws’, agrapta nomima, because they are primordial and prior to any specific regulation of society”4 ), to which the legislator added as well a socio-economic aim, by connecting this law with the obligation of teaching a trade or a craft (a techne) as part of a well-conducted paidotrophia. 2 On this see Leão (2011). Faraguna (2012), 134-5, rightly underlines that the principles of reciprocity implied by the concept of eranos could be applied as well to the image “del dare-avere che caratterizza il rapporto tra padri e figli”. Cf. Euripides, Supp. 361-4; [Demosthenes], 10.40- 41; Aristotle, Pol. 1332b35-41. 3 The English version is taken from the translation of Daryl Hine, available at “The Chicago Homer” project (http://homer.library.northwestern.edu/). 4 The quotation is taken from Fialho (2010) 108. 77 “Gerotrophia: a controversial law” — response to Eva Cantarella A very interesting aspect in E. Cantarella’s paper is the presentation of an inscription from Delphi, which is the sole surviving epigraphic document dealing with gerotrophia. As she argues, the reference to the fact that the offender ought to be kept in chains at the public prison may suggest that the idea would be to keep him there until the payment of a monetary penalty was made. Even if this cannot be taken as certain (because unfortunately the inscription is illegible afterwards), it remains a pertinent suggestion that could be taken as an alternative to the usual understanding that the punishment for failing to comply with the duties of gerotrophia was a penalty of atimia (as sustained by Diogenes, 1.55: ἐάν τις μὴ τρέφῃ τοὺς γονέας, ἄτιμος ἔστω = Fr. 104b Leão-Rhodes). This may be true for classical times, but seems a penalty too heavy for the time of Solon, when atimia was a harsher punishment, equivalent to outlawry (and not simply to the loss of civic rights), applicable to crimes of extreme importance that could put in danger the entire community.5 This is admittedly not the case of gerotrophia, which would essentially affect the domain of the oikos. It is therefore an interesting possibility to imagine that Solon may have fixed a fine for those who did not fulfil the duties respecting gerotrophia, because he did prescribe this kind of fines in other instances: e.g., one hundred drachmae for the man who seized a free women and raped her (Plutarch, Sol. 23.1 = Fr. 26 Leão-Rhodes), or twenty for the one who procured a free woman (also Plutarch, Sol. 23.1 = Fr. 30a Leão-Rhodes). If this were the case, the penalty of atimia would be a later development and could express a deeper involvement of the polis in the way the question of gerotrophia was dealt with at the private level of the oikos. At any rate, this is an argument ex silentio and cannot be taken as certain, although it favours Cantarella’s pertinent suggestion that the apparent revival of this law during the final decades of the fifth century could be an attempt to contain the growing generational conflict deriving from the gradual democratization of institutions, stimulated by the sophistic education. 2. Is there a time limit to the obligations of paidotrophia and gerotrophia? In a quick survey of literary works that approach the problem of confrontation between generations, E. Cantarella briefly evokes the case of Euripides’ Alcestis (presented in 438, thereby being his earliest dated play6 ), where the tension between Pheres and his son Admetus explores very impressively the limits and contradictions of the reciprocity ties deriving from paidotrophia and gerotrophia. It is Apollo himself, who was compelled by Zeus to serve (v. 6: θητεύειν) in the house of a mortal, despite being a god, who presents the guidelines of the plot in his opening monologue, which corresponds to the prologue of the play7 (vv. 1-28): in order to escape immediate death, Admetus had to find someone willing to die instead of him, but his father and mother refused, and so it was only his wife, Alcestis, who volunteered for the sacrifice. 5 See Leão & Rhodes (2015) 64 and 97. 6 Parker (2007) xix. 7 Besides the case of Alcestis, Euripides begins with a divine monologue in four other plays: Hippolytus, Troades, Ion, and Bacchae. See Parker (2007) 49. 78 Delfim F. Leão Her decision was made when they were about to marry, but the gods allowed them some years of marital happiness and thereby Thanatos is about to claim her life when they have already had children, whom Alcestis wants to protect, before dying, from a would-be stepmother. The fact that they have descendants when the plot starts is an important point, often overlooked by commentators, because it undermines the argumentation of Admetus and Pheres, thereby exposing their selfish behaviour. In fact, if Admetus already has children, this means that the keeping of the oikos is now ensured and so he could in fact die himself instead of Alcestis without affecting the future of his house; on the other hand, even if Pheres highly praises his son’s wife, the fact is that, in practical terms, she has already fulfilled her function of bearing him descendants, and up to a certain point is now expendable. In those circumstances, the arguments based on the need of safeguarding the oikos, or on the obligations deriving from the reciprocal ties of paidotrophia and gerotrophia, are simply outdated and used as an expedient to conceal the cowardice that they both represent. Even so, it is legitimate to ask: is Admetus correct in demanding the sacrifice of his parents as an extension of paidotrophia, and does he have sufficient grounds to repudiate the duties of gerotrophia? On the other hand, is Pheres right in arguing that his obligations were complete at the moment when he succeeded in raising Admetus to be the master of the oikos, thereby not being obliged, in addition, to die for him? As he concisely concludes (vv. 703-4): νόμιζε δ’, εἰ σὺ τὴν σαυτοῦ φιλεῖς / ψυχήν, φιλεῖν ἅπαντας. 8 To put it differently: is there a reasonable limit to the obligations of paidotrophia or gerotrophia? As pointed out by E. Cantarella, some categories of people were exempted from the responsibilities of gerotrophia: sons prostituted by their fathers, children born from a hetaira (and therefore nothoi who because of this were not entitled to the right of inheritance) and also those who had not been taught a techne by their fathers.9 Those restrictions have in common the idea that paidotrophia has not been well conducted by the father and hence that the descendants are not obliged to repay the progenitor’s previous investment in their rearing. On the other hand, when comparing the prerogatives of the Roman paterfamilias with the Greek practices respecting the relations of fathers and sons, Dionysius of Halicarnassus mentions penalties that could be applied against sons by their fathers (Ant. Rom. II. 26. 2-3 = Fr. 142 Leão & Rhodes): οἱ μὲν γὰρ τὰς Ἑλληνικὰς καταστησάμενοι πολιτείας βραχύν τινα κομιδῇ χρόνον ἔταξαν ἄρχεσθαι τοὺς παῖδας ὑπὸ τῶν πατέρων, οἱ μὲν ἕως τρίτον ἐκπληρώσωσιν ἀφ’ ἥβης ἔτος, οἱ δὲ ὅσον ἂν χρόνον ἠίθεοι μένωσιν, οἱ δὲ μέχρι τῆς εἰς τὰ ἀρχεῖα τὰ δημόσια ἐγγραφῆς, ὡς ἐκ τῆς Σόλωνος καὶ Πιττακοῦ καὶ Χαρώνδου νομοθεσίας ἔμαθον, οἷς πολλὴ μαρτυρεῖται σοφία· τιμωρίας τε κατὰ τῶν παίδων ἔταξαν, ἐὰν 8 ‘Accept that, if you love your own life, everybody loves theirs.’ English translation by Parker (2007) 191. 9 For more details, see Leão & Rhodes (2015) 92-7. 79 “Gerotrophia: a controversial law” — response to Eva Cantarella ἀπειθῶσι τοῖς πατράσιν, οὐ βαρείας, ἐξελάσαι τῆς οἰκίας ἐπιτρέψαντες αὐτοὺς καὶ χρήματα μὴ καταλιπεῖν, περαιτέρω δὲ οὐδέν. In fact, those who established the constitutions for the Greeks determined quite a short time for sons to be under the rule of their fathers: some until they reach the third year after puberty, others during the time they remain unmarried, and others until they enroll their names in the public records, as I learned from the legislation of Solon, Pittacus, and Charondas, in whom much wisdom is shown. They determined punishments for the children, in the case they disobey their fathers, but not very heavy: they allow [the fathers] to expel them from their home and to exclude them from their inheritance, but nothing beyond that.10 The text has a vague reference to Greek law and to paradigmatic legislators (Solon, Pittacus, and Charondas), and therefore it is not clear in which poleis those norms were enacted or whether they existed at all, because Dionysius’ goal is to underline that Greek practices were milder than those observed by the Romans, a fact that E. Cantarella points out as well in her opening considerations. Even so, in extreme circumstances a father could proclaim a separation (apokeryxis) from his son, expelling him from the oikos and even cutting off his part in the family property. This is probably what Dionysius has in mind, although sources suggest that apokeryxis was used only very seldom and more as a theoretical prospect than as a concrete reality.11 A similar ambivalence towards the duties of paidotrophia and gerotrophia is implied by a passage from the Nicomachean Ethics (1163b15-27) on the honours owed to gods and parents (καθάπερ ἐν ταῖς πρὸς τοὺς θεοὺς τιμαῖς καὶ τοὺς γονεῖς). As underlined by E. Cantarella in quoting this passage, a father could disown his son but not the opposite, because a son is always a debtor to his father and cannot ever pay him back enough for what he has received. Just after this section, Aristotle makes a supplementary statement that may shed new light on the question under consideration (Eth. Nic. 1163b22-27): ἅμα δ’ ἴσως οὐδείς ποτ’ ἂν ἀποστῆναι δοκεῖ μὴ ὑπερβάλλοντος μοχθηρίᾳ· χωρὶς γὰρ τῆς φυσικῆς φιλίας τὴν ἐπικουρίαν ἀνθρωπικὸν μὴ διωθεῖσθαι. τῷ δὲ φευκτὸν ἢ οὐ σπουδαστὸν τὸ ἐπαρκεῖν, μοχθηρῷ ὄντι· εὖ πάσχειν γὰρ οἱ πολλοὶ βούλονται, τὸ δὲ ποιεῖν φεύγουσιν ὡς ἀλυσιτελές. At the same time, no doubt it is unlikely that a father ever would abandon a son unless the son were excessively vicious; for natural affection apart, it is not in human nature to reject the assistance that a son will be able to render. Whereas a bad son will look on the duty of supporting his father as one to be avoided, or at all events 10 The text and translation of Dionysius’ passage are those of Leão & Rhodes (2015) 191. 11 See Cantarella (2010) 1-14, especially 5-7 on the right of excluding a son from inheritance by apokeryxis. See also Strauss (1993) 62-6; Mélèze (2010); Leão & Rhodes (2015) 191-2. 80 Delfim F. Leão not eagerly undertaken; for most people wish to receive benefits, but avoid bestowing them as unprofitable.12 With these remarks in mind, it is now time to return to the reasoning of Admetus and Pheres. The former argues that the bonds of anchisteia, the necessity to grant the continuity of the oikos and, above all, the duties of paidotrophia should have convinced his father or mother to sacrifice their lives for their own son. However, Pheres claims that he has the right to appreciate life just the same way Admetus does, and especially that he has reared his son well and passed him already the rule of the house — therefore, the duties of paidotrophia no longer applied to him and it was now his turn to receive the benefits for this investment, through gerotrophia. Despite the fact that Euripides presents Pheres as a despicable character, in ethical and legal terms, it is also true that, from Hesiod down to Aristotle, his argumentation has firmer grounds than that of Admetus, whose cowardice becomes increasingly evident and unbearable even for himself after his wife’s death. There is, however, another important factor in the play which in fact ends up bringing the final solution: the importance of philia. Apollo and Heracles both emphasise the quality of the bonds of philia and xenia stimulated by Admetus; besides that, the intense harmony existing between him and Alcestis is also repeatedly underlined. But Apollo, Heracles, and Alcestis are characters alien to the original oikos, and therefore Euripides seems to be stating clearly that philia is, in the end, more important and especially much more effective than anchisteia in providing a solution to this impasse: Alcestis sacrificed herself for Admetus, and Heracles restored her to life, thus rebuilding the oikos of his host, as Admetus clearly recognises (Alc. 1138).13 Finally, a small provocation, to try to answer the opening question of this section: is there a precise time limit to the obligations of paidotrophia and gerotrophia? The answer to this problem is not easy to give,14 neither in ancient Greece nor in modern times. In fact, recent years have shown this in a very bitter way, especially in those European countries severely castigated by the economic crisis: young people without stable jobs, who are unable to exert a techne and live on their own, constitute an open challenge to the general obligation to pay taxes for the gerotrophia of an increasingly older population. 12 English version by H. Rackham, available at the Perseus Digital Library. 13 As Fialho (2010), 117, rightly points out, the solution to Admetus’ problems is brought by two foreigners whose philia is more effective and stronger than the blood ties. Cantarella (2015), 26-27, calls attention to the fact that Plato, in the Symposion (179b-c), gives preference to Alcestis over Orpheus, because, in giving her own life to save Admetus, she did more for her lover, and because of that the gods allowed her to come to life, whilst Orpheus failed to recover Eurydice. In the same passage, Plato also underlines clearly that the philia and eros of Alcestis were much stronger than the family ties of Admetus’ parents. 14 Fialho (2010), 116-17, building on the comments of the Chorus in Sophocles’ Electra (1058- 62), maintains that there is “an overlapping of both obligations, in a sort of timeless interaction”. 81 “Gerotrophia: a controversial law” — response to Eva Cantarella Some parents, on the other side, like Pheres, stand up against the pressure of keeping their grown-up children at home, extending beyond the reasonable the obligations of paidotrophia and preventing themselves from enjoying the benefits of a peaceful retirement. In the end, we can feel tempted to ask ourselves: would Admetus face the risk of being called a “mammone” by Pheres, had they lived in the 21st century? WORKS CITED Cantarella, Eva — 2010: “Fathers and sons in Athenian law and society”, in E. Cantarella, M. Gagarin, J. Mélèze & G. Thür, Symposion 2009. Akten der Gesellschaft für griechische und hellenistische Rechtsgeschichte (Wien, Verlag der Österreichischen Akademie der Wissenschaften), 1-13. Cantarella, Eva — 2015: La dolcezza delle lacrime. Il mito di Orfeo (Milano, Mimesis). Faraguna, Michele — 2012: “Diritto, economia, società: riflessioni su eranos tra età omerica e mondo ellenistico”, in B. Legras, Transferts culturels et droits dans le monde grec et hellénistique (Paris, Publications de la Sorbonne), 129-153. Fialho, Maria do Céu — 2010: “Paidotrophia and gêrotrophia: reciprocity and disruption in Attic tragedy”, in E.M. Harris, D.F. Leão & P.J. Rhodes, Law and Drama in Ancient Greece (London, Duckworth) 108-121. Leão, Delfim F. — 2011: “Paidotrophia et gerotrophia dans les lois de Solon”, RHD 89.4, 457-472. Leão, Delfim F. & Rhodes, P.J. — 2015: The Laws of Solon. A New Edition with Introduction, Translation and Commentary (London, I.B.Tauris). Mélèze, Joseph — 2010: “Pères et fils dans l’Égypte héllenistique. Réponse à Eva Cantarella”, in E. Cantarella, M. Gagarin, J. Mélèze & G. Thür, Symposion 2009. Akten der Gesellschaft für griechische und hellenistische Rechtsgeschichte (Wien, Verlag der Österreichischen Akademie der Wissenschaften), 15-21. 82 Delfim F. Leão Parker, L. P. E. — 2007: Euripides Alcestis. Edited with Introduction & Commentary (Oxford, Clarendon Press). Strauss, Barry S. — 1993: Fathers and Sons in Athens: Ideology and Society in the Era of the Peloponnesian War (London, Routledge).