Becky Kahane
The laws of the Cretan city of Gortyn prescribe penalties for offenses that are all monetary fines; none are non-monetary penalties such as exile or loss of rights. These fines have never been systematically studied. I argue that an economic analysis (following, e.g., Becker, Posner) reveals an underlying logic to the type of fine imposed. The system of fines thus provides another example of the rationality of the Gortyn laws, recently noted by Gagarin and Perlman.
Fines at Gortyn can be categorized as simple, multiplied, or hybrid. Simple fines are for offenses treated as economic in nature. If someone fails to return an animal to its owner, he must pay the simple value of the animal (IC 4.41.3.7-14). If a free person rapes a slave, he incurs a small fine (five drachmas) (IC 4.72.2.7-9). Someone who diverts water onto his neighbor’s land without permission must pay a daily fine (one drachma) until he stops (IC 4.73A.4-6). Individuals contemplating any of these offenses may perform cost-benefit analyses and judge whether the benefit exceeds the amount of the fine.
Gortyn employs multipliers for offenses against the legal process and for status violations. For example, a borrower who lies about having received an animal must pay double its value (IC 4.41.3.14-17). Double-value fines are also imposed for lying about the return of an indentured slave (IC 4.47B.27-31) or interfering with the prescribed process for dividing the property in a divorce (IC 4.72.3.12-16). These process crimes threaten the integrity of the legal system, so fines are multiplied in order to deter potential offenders. Status violations similarly result in multiplied fines. The fine for raping a free person is (ceteris paribus) 40 times higher than for raping a slave, and slave rapists owe fines twice as large as free rapists (IC 4.72.2-10). Cost-benefit analyses for process crimes and status violations will probably reveal that the benefit is less than the fine in almost all cases.
Hybrid fines are also used for process crimes. Both diverting water onto a neighbor’s land and failing to release a disputed person in response to a court order result in per diem fines. But only the latter offense, a process crime, triggers a hybrid fine (up to 50 staters immediately and up to a stater per day thereafter), a clear indication of the seriousness of disobeying a court order (IC 4.72.1.27-38). This type of fine is likely to deter almost all individuals weighing its costs and benefits.
In sum, simple fines provide only a weak form of deterrence, whereas multiplied and hybrid fines deter almost all individuals from behavior that is perceived to cause social harm, not just harm to an individual.