This paper analyses the ancient Greek legal notion of atimia, normally translated as ‘dishonor’, through the lens of New Institutionalism. MacDowell (1978: 75) once defined atimia ‘one of the most difficult topics in the study of Athenian law’. Its complexity lies primarily in its pervasiveness: atimia is found in many different sources and contexts, both literary and epigraphical, across all periods of Greek history. This has been usually explained with rigid evolutionary accounts of its meaning (Swoboda 1893; 1905), described as going from ‘outlawry’ – in the Archaic period – to ‘disfranchisement’ – in the Classical one. Building on the work of Hansen (1976) and Maffi (1983), Joyce (2018) and Youni (2001; 2018; 2019) have rightly disproved the connection between atimia and outlawry, and argued that the archaic notion slowly moved away from the moral sphere to become, during the Classical period, a fully-fledged legal remedy. These approaches have the merit of bringing morality back into the picture, but tend to postulate slightly too sharp a distinction between the moral and the legal spheres. Against this backdrop, then, classical examples of atimia which could not be construed in purely legal terms have sometimes been explained as vestiges of a ‘primitive’ arrangement.
Strict evolutionary theories, however, are not supported by our sources, from the Classical period and beyond, where the notion of atimia as a legal remedy always co-existed with its non-technical and supposedly pre-classical sense (cf. e.g. Dem. 21.72, 92). By taking Joyce’s and Youni’s conclusions further, this paper will show that a New Institutionalist approach can provide a new perspective on the relationship between law and morality: by acknowledging that institutional constraints to behavior are enacted not only through formal rules, but also through practices and narratives (Lowndes-Roberts 2013), we can appreciate how the moral and legal spheres are not in fact mutually exclusive, but rather integrate and complement each other.
The analysis will start from archaic sources, which will demonstrate how, even at the level of informal practices, atimia was employed to police behavior and sustained through a narrative that presented ‘honorable’ behavior as the most appropriate mode of social interaction (cf. Hom. Il. 8.161-66). The paper will then explore how the very effectiveness of atimia as a social sanction triggered the mechanism of path dependence (Fioretos-Falleti-Sheingate 2016), by which the practice was gradually incorporated into the legal system of the classical poleis (cf. IG IX, I2 3.718; Dem. 21.32; Thuc. 5.34.2) and percolated also into legislations of later periods (cf. SEG 43.381; Ricl-Malay-Amendola 2018). This, however, does not mean that the notion ceased to be a moral one too: as a formal rule, atimia maintained its same basic features – e.g. the stress on appropriateness or the reliance on social control – and was buttressed by the same narrative (cf. Aeschin. 1.28-31). Thus, a New Institutionalist perspective can shed light on elements of continuity in the notion of atimia, and can help accommodate both moral and legal sense of the term within the same institutional framework.
New Institutionalism and Greek Communities