The Prosecution of Impiety in Athenian Law

The nature and scope of the statutory provisions for the enforcement of socio-
religious norms is, in most legal systems, one of the most significant criteria by
which to evaluate various aspects of the relationship of the individual and the
family to the state and to the society as a whole 1 ). This is no less the case in
classical Athens where the processes by which norms are enforced in regard to
religious practices and beliefs is of central importance for an understanding of
issues like the relation between law and morality, the place of individual liberty
and freedom of conscience, the link between democracy and toleration, and so on.
Plato's "Republic" and "Laws" bear witness to the recognition of the importance
of religious conformity, as, in its own way, does the trial of Socrates. These broad
and ; mportant questions will only be touched upon here, for the main purpose of
this paper is to address a number of preliminary, more concrete problems. These
concern the meaning and scope of the word asebeia in legal and other contexts,
and may be formulated as four related questions to which the rest of the paper
will be addressed.
(1) W h a t is the relation of the ordinary language usage of the word asebeia to
its legal definition? Does asebeia in the legal sense encompass conduct like failing
to honour one's parents, failing to prosecute certain crimes, failing to fulfill an
oath, perjury, etc.? (2) Was there a clear legal definition of asebeiat If not, why
is such the case? Is it simply because the concept of asebeia is so vague and
undefinable, as L i p s i u s and T h a l h e i m suggested 2 )? (3) What is the range and
application of actions for asebeia as a means by which religious and social norms
are enforced? In other words, what kind conduct was, and properly could be,
prosecuted as asebeiat Did asebeia only apply to actions and ritual violations,
and is the prosecution of Socrates thus to be seen as a deviation from the norm,
as has often been suggested, or, was asebeia, properly understood, a mechanism
for ensuring social and religious conformity in all its aspects? (4) Finally, what is
the relationship of Athenian practice in regard to impiety to Plato's legislation
in the "Laws"? Is Plato's legislation on religious conformity to be seen as "tota-
litarian" when measured against the "tolerance" of democratic Athens?
I t is appropriate to begin with the first question posed above, concerning the
relation of the ordinary language/cultural conception of asebeia to its legal
usages. The first general definition of asebeia which Socrates prods Euthyphro to
produce is probably a reasonable indication of an unreflective ordinary language
conception. As Euthyphro puts it, asebaia is that which is not pleasing to the gods
(7a). Such a definition, as Socrates points out, is not particularly helpful, and
indicates the extent to which the range of actions connoted by asebeia is simply
the product of unarticulated cultural conceptions. As Justice Clark of the United
States Supreme Court intimated about pornography in the Fanny Hill case

1
) See e.g. J o h n R a w l s ' s treatment of the problem of intolerance and of the
permissable coercion of the individual (or groups) in religious matters, in: A
Theory of Justice (Cambridge, Mass. 1971) 205—21.
2
) T h a l h e i m R E 1530—1; L i p s i u s , Das Attische Recht (Leipzig 1905)
359-60.
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(383 U. S. 413, 86 S. Ct. 975, 1966), one may not be able to define it, but one
knows it when one sees it. On the other hand, the more philosophical definition
found in the Aristotelian "Virtues and Vices" is scarcely more revealing: asebeia
consists in wrongdoing against gods and daemons, parents, the dead, and the
fatherland (1251a 30). An examination of all occurrences of the word asebeia in
classical Athenian sources reveals a range of usage as broad as that suggested by
the foregoing definitions, but, as will be seen, it is reasonable to suppose that the
legal scope of the term is narrower. Indeed, the central cases are, as usual, fairly
clear; the question is how to delineate the borderlines.
First of all, there are a number of passages where Athenian orators use asebeia
or its cognates as strong synonyms for "wrongdoing" or "wrongdoer", in con-
texts where it is apparent that there is no question of actual religious trans-
gression3). Likewise, I believe one can also dismiss exaggerated usages like that
in Isocrates (Panath. 203), where a student of Isocrates is referred to as impious
because he has praised the Spartans. This is surely to stretch even the broad
definition of the "Virtues and Vices", and hardly seems likely to form the basis
of an actual legal prosecution. Leaving such cases aside then we can identify a
number of categories of usage where there is almost certainly an overlap between
ordinary language and standard legal usages. Such categories include profaning
the mysteries4) ; ritual or other offences against cults or temples such as improper
sacrifices, violation of ritual prohibitions; entering a temple or participating in a
festival or ritual or holding a sacred office from which one is debarred5) ; violating
a temple by sacking it, murdering someone within its boundaries, or dragging a
suppliant from its altar 6 ); violating or destroying sacred objects like the Herms 7 ).
Likewise clearly within the central conception of asebeia8) are the more in-
tangible offences of not honouring or believing in the gods of the polis, or intro-
ducing new gods, but the scope of these categories of impiety deserves detailed
attention and the evidence for them will be examined below.
Apart from these central cases where one can feel quite confident of a con-
gruence between ordinary language and legal usage, there are a number of
cases which are more difficult. Numerous passages, for example, attest that
the violation of oaths, in various forms, such as perjury, or convicting a man
innocent of homicide, or acquitting one guilty of homicide, is considered to
constitute asebeia9). Other passages suggest that associating with a parricide,

3 ) See e.g. the rhetorical exaggeration at Lysias 12, 24, or Antiphon, Tetralogy

2 a 3, 9, 11.
4 ) See e.g. Andocides 1 passim; Xenophon, Hell. 1. 4. 4.
6 ) E.g. Demosthenes 22, 72, 78; 23, 51, 55, 147, 197, 227; 59, 77, 1 1 6 - 7 ;

Andocides 1, 71, 132; Lycurgus 129; Thucydides 6. 27, 53; Herodotus 6. 81.
«) Aristotle, N.E. 1126a; Isocrates, Paneg. 156; Xenophon, Hell. 4. 4. 3;
Herodotus 1, 159; 2, 139; 8, 129; Thucydides 4. 97—8; Lysias 2, 7, 10; Lycurgus
81, 147; and cf. IG, 2418.
7 ) Thucydides 6. 27; 6. 53.
8 ) Throughout, I am using the contrast between 'central' or 'standard' cases

and 'borderline' cases in the sense elaborated by H. L. A. H a r t in The Concept

of Law (Oxford 1961) 1 6 - 7 .
9 ) Aristotle, Rhetoric 1377a 20—4; 1416a 30; Lycurgus 76; Demosthenes 59,

82; Xenophon, Cyr. 8. 8. 3; Andocides 1, 30—3; Antiphon 5, 88; Demosthenes

21, 1 0 4 - 5 , 120; 23, 79.

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 D. Cohen, Impiety in Athenian Law 697

not prosecuting a homicide, or certain offences against parents are also asebeia10).
A final problem concerns the treatment of theft of sacred property. There is
evidence which suggests t h a t there was an overlap between asebeia and
hierosulia11), but it is far from clear whether every case of hierosulia would
also constitute asebeia, and, if not, where the distinction lay. I t is astonishing
that such questions have been largely ignored in the literature, but how ought
one to go about resolving such difficulties? Aristotle, in his "Rhetoric" (1374a)
argues that borderline cases cannot be decided without a definition of the
offence, and this proviso clearly applies to most of the cases which I have just
enumerated. This passage in the "Rhetoric" clearly assumes that, in terms
of actual practice, deploying such a definition was problematic, so the question
suggests itself where were the Athenians to find a legal definition of offences
like asebeiat And, if they were not interested in such questions of definition
(as a perusal of the orators would lead one to believe), why is that the case?
These questions introduce the second of the four issues which I enumerated
above.
In regard to the legal definition of asebeia two theories have been advanced
by modern scholars. Since L i p s i u s it has generally been accepted that the
variety of cases included within the scope of asebeia is simply due to the vague
and undefinable quality of the concept itself 12 ). As T h a l h e i m puts it, „Die
große Mannigfaltigkeit der Fälle, in denen diese Klage zur Anwendung kam,
erklärt sich aus der Unbestimmtheit und Dehnbarkeit des Begriffes der Asebie
selbst" 13 ). On the other hand, it has been suggested by R u d h a r t that there
was actually a clearly defined notion of asebeia in Athenian law and that prose-
cution was only allowed in precisely defined cases, but this suggestion has
had little influence on the prevailing views14). What I would like to suggest
is that the apparent plasticity of the definition of asebeia has as much to do
with certain general characteristics of the Athenian legal system as it does
with the broadness of the term itself. I would argue t h a t the difficulties which
arise in defining asebeia are inherent in the manner in which in Athens legal norms
were formulated, interpreted, and enforced, and thus apply, to a lesser or greater
extent, to all offences. Clarification of this point requires returning to the passage
from Aristotle's "Rhetoric" discussed above.
Aristotle argues here for the necessity of precise definitions of offences (1374a).
He asks how, without a definition of the offence, one decides if a particular
case falls under the law of moicheia or hierosulia. These problems arise, he says,
for example when a defendant admits that he had intercourse but denies that
it was adultery because he did not know the woman was married; or he admits
that he stole the property but denies that it is hierosulia because the property

10
) Demosthenes 22, 2—3 (and cf. 24. 7) ; Plato, Euthyphro 1 — 7; Lycurgus 94;
Plato, Rep. 615c3; Symp. 188c3; [Aristotle] Virtues and Vices 1251a 30.
11
) See generally D. C o h e n , Theft in Athenian Law (München 1983) Chapter 3,
and Demosthenes 24, 177 and 22, 69.
12
) L i p s i u s loc. cit. See also E. D e r e n n e , Les Procès d'impiété (Paris 1930).
13
) Loc. cit.
14
) J . R u d h a r d t , 'La definition du délit d'impiété', Museum Helveticum
(1960) 8 7 - 1 0 5 .
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was not consecrated. If one recalls in this connection the difficulties experienced
in "Euthyphro" in arriving at anything like a definition of asebeia one can
readily appreciate the force of Aristotle's observations.
Now, the reason why Aristotle must argue for definition arises on the one
hand from a characteristic which Athenian law shares with most pre-modern
legal systems, and, on the other hand, from a peculiarity all its own. I t is common
to almost all pre-modern statutory schemes that, with the frequent exception
of homicide, the statutes do not define the offences for which they provide
procedures and penalties. Thus the typical formulation is: " I f a man steals . . . "
or "If a man is convicted of theft ..." 1 5 ). The statute thus does not define the
conduct which constitutes theft, or rape, or insult, but rather assumes a de-
finition which is implicit in such words. Many legal systems provided other
institutional mechanisms by which borderline or difficult cases could be discussed
or judged, and definitions arrived at so that they might be applied in particular
cases; one need only think of classical Roman or Talmudic law. But in Athens
there were institutional arrangements which hindered such developments:
the absence of professional judges, jurists or learned scribes, the lack of a
mechanism for authoritative interpretations of statutory provisions in particular
cases, and the fact that judges could neither debate the legal points of a case
nor institutionalize their decision through a written decision or learned com-
mentary. In short, definitions of offences were simply those inherent in the
collective consciousness of the community as manifested through the 500 or
more judges who happened to be sitting on a particular day to hear a particular
case. And, once again, "Euthyphro" perhaps best bears witness to the sophisti-
cation of the definitions that are implied by such an arrangement. The fact
is that the Athenian legal system was institutionally incapable of providing
an exact definition by which difficult cases could be decided, e.g. whether or
not a thief who had touched but not yet walked off with the property had
committed theft, or whether or not certain kinds of behaviour towards one
parents or towards a murderer was asebeia.
Another factor worth considering in this connection is suggested by another
passage, which, despite its rhetorical overtones, adds an important dimension
to the problem under consideration. In Lysias 14, "Against Alcibiades", the
speaker reminds the judges that since this is the first such case to be decided
they are acting not only as judges but also as lawmakers, for their decision will
determine the attitude of the city for all time. What is implied here is that the
definition of offences is shaped in part by the decisions made by the courts,
albeit necessarily in a very imperfect way. The Athenians were thus conscious
of the lawmaking aspect of judicial decisions, and when in a novel case a parti-
cular kind of conduct was found to constitute asebeia, such a finding may well
have influenced or expanded the culturally implicit definition of the offence
(if only by encouraging others to prosecute similar cases). What all this implies
for those uncertain categories of asebeia enumerated above is that the number
sof such passages which link such conduct to asebeia is testimony, although
sometimes rhetorically distorted, to the unarticulated social norm which would

15 ) See Cohen, op. cit. Chapter 2.

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 D. Cohen, Impiety in Athenian Law 699

determine the contours of the legal definition. In the absence of prosecutions

known to have actually occurred one can only speculate as to the extent to
which a particular statement accurately reflects the contemporary norms and
values which gave the hollow statutes their content.
I t is now possible to turn to the third question raised above, concerning
the range of the application of the law of asebeia in the process of the enforcement
of religious and social norms. Although F o u s t e l de C o u l a n g e s had already
argued that the ideas of religious freedom and toleration were completely alien
to the ancient city 16 ), modern scholarship has largely chosen a different stand-
point from which to evaluate the social and political aspects of this offence.
On the whole, the general view seems to be that asebeia was properly concerned
with ritual conduct and actions and not with beliefs. Seen from this perspective
the trial of Socrates, the most famous stumbling block for such an interpretation,
is dismissed as an aberration, a 'political case' 17 ). I would argue, however,
that such a notion reflects more about the ideology which determines what
modern scholars have wanted to find in democratic Athens than it does about
the legal and social realities of which asebeia is a part. The underlying question
is what sort of coercive political and social matrices underlay religious life in
Athene, and I think it is far from clear that, "Impiety did not normally lie
for unorthodoxy of belief; Athens was singularly free of the unlovely habit
of persecuting men for their opinions, and, indeed, it would be difficult to say
what religious unorthodoxy at Athens consisted in" 1 8 ).
In fact, a variety of evidence suggests that belief was a central component
of the Athenian notion of piety, and that the expression of contrary, unorthodox
opinions about religious matters could fall well within the scope of asebeia.
Isocrates, for example, says that in regard to the lies of the poets about the
gods, both those who say such things and those who believe them commit asebeia
("Busiris" 40), and a passage in Aristotle's "Rhetoric" is similar in its charac-
terization of impiety in regard to opinion about the gods (1399 b7) 19 ).
Further evidence has been sought in the supposed trials of Protagoras and
Anaxagoras and the decree of Diopeithes, for example by Ma c D o well, in
whose treatment of asebeia they play a central role. But here, as in much of
his account of asebeia, it seems that M a c D o w e l l is rather uncritical of his
evidence. His account is based solely upon evidence from Plutarch and Diogenes
Laertius and not upon any contemporary sources20). Indeed, reading Diogenes'
puzzled description of all the various contradictory accounts of the trial of
Anaxagoras should be enough to cause one to pause before accepting any of
this tradition as true, even apart from what I believe should be a standard

le ) The Ancient City (Gloucester, Mass. 1979) 2 1 9 - 2 3 .

17 ) See e.g. the recent book by R. A l l e n , Socrates and Political Obligation
(Minneapolis 1980), "Athenian religion was not a matter of creed and dogma, but
of ritual observance, of dromena, things done, rather than legomena, things
said . . . Impiety, in short, normally lay for definite kinds of acts" (17—8).
1B) Ibid.
19 ) See also Xenophon, Mem. 1. 1 — 1 . 2 ; Apol. 24; Hyperides Fr. 14; Plato,

Euthyphro 2b—c, 5a, 61, 16a.

20 ) D. M a c D o w e l l , The Law in Classical Athens (London 1978) 2 0 0 - 0 1 .

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methodological principle for the study of Athenian law, namely, that evidence
from late authors like Plutarch is to be ignored unless we are in a position to
examine critically their sources and unless we also have corroborative evidence
from contemporary Ahtenian sources. In other words, it seems to me that in
regard to legal matters we are in a position to say very little about these trials
or the decree upon which they were supposedly based. This leaves us, apart
from the two passages mentioned above, with the Socratic tradition, which
does offer sufficient relevant material.
It is not possible here to offer a comprehensive account of the trial of Socrates.
The point to be made here is simply that the question of asebeia as unorthodox
belief forms the center of the trial in the accounts of Xenophon and Plato,
and that this fact has been obscured somewhat by the desire of modern scholars
to demonstrate the innocence of Socrates. In doing so they have often confused
two distinct questions which must be clearly distinguished. The first is whether
the accusations against Socrates accurately reflect his beliefs; this is a bio-
graphical question which is irrelevant for the present purposes. The second
question, which has all too often been obscured by the first, is whether such
accusations if true would properly form the basis for a conviction for asebeia
in Athenian law. A brief examination of the "Euthyphro" and "Apology"
will reveal that this latter question must be answered affirmatively.
Socrates, at the beginning of the Euthyphro, characterizes the charges against
him as innovating or inventing in regard to the gods and not recognizing/ac-
cepting the gods of the city (3b —c). The word used here for "recognize" or
"accept" or "believe in" is nomizein, and some scholars have tried to show
that here it means "honour" and refers to conduct and not to belief or opinion.
Nomizein can have both meanings, but the context makes it clear that belief
is what is at issue here. Euthyphro answers Socrates by saying that it is his
daimon which forms the basis of the accusation of innovating in regard to
religious matters (3b—c). It is this idea of innovative, non-traditional beliefs
which is continually used in the dialogue to characterize the accusation. This
is supported by Socrates' own admission that he cannot accept the traditional
stories about the gods (5e —6d), and surely this refers to the charge that he
does not accept/believe in the traditional gods. In this long discussion of piety
and impiety and its relation to the prosecution of Socrates, the one argument
which is never made is that the charge is inappropriate. The whole argument
here and in the "Apology" (as in Xenophon)21) is implicitly based upon the
supposition that if the facts were as alleged they would indeed constitute asebeia.
The argument against the charges is solely designed to show that they mis-
represent the beliefs and character of Socrates. This is especially significant
in the "Euthyphro" where the subject matter of the dialogue is the meaning
of piety and impiety. There is never a hint that innovating in regard to the
gods, denying the traditional beliefs and stories, and so on are not constitutive
of asebeia·, indeed ,the whole argument is based upon the premise that they are.
The same point arises from the first part of Plato's Apology22) where Socrates

21 ) See e.g. Mem. 1. 1. 5 - 6 .

22 ) Likewise in Xenophon's Apology.

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 D. Cohen, Impiety in Athenian Law 701

discusses speculation about the universe and the causes of natural phenomena.
Xenophon is insistent in pointing out that Socrates had no interest in such
matters, and that when he did take an interest it was only to criticize them
(Mem. 1. 1. 9—16). Likewise in Plato's version it is implicit in the argument
that denying the existence of the gods and believing that the sun and moon
are made of stone could be asebeia. All Socrates can do is deny that he had
such beliefs. Here again nomizein is used (e.g. 26d), and the passages demonstrate
unequivocally that what is at stake is belief in the gods, not rituals, not actions,
but beliefs, opinions, and expression. Thus, I would suggest, to dismiss all
of this as a deviation, as a political case, and an exception or distortion of the
law, is inappropriate and probably based upon some idyllic Wunschvorstellungen
about the golden age of Athenian democracy. The fact is, as Peter Garnsey
has persuasively argued 23 ), that ancient societies were, on the whole, intolerant
in religious matters and that Athens was no exception. The "Euthyphro"
makes clear that such charges for unorthodox belief were appropriate enough
under the heading of asebeia. Plato, in his defense of Socrates through many
dialogues, never argues otherwise, never suggests that this is an unjustifiable
extension of the law. Not accepting the traditional beliefs about the gods was
asebeia in Athens and could properly be punished as such.
If the foregoing is correct it would seem to cast new light on the provisions
concerning religious conformity in Plato's "Laws". The standard interpretation
of Plato's treatment of impiety in this dialogue is that it is a reactionary and
totalitarian deviation from the way things were in tolerant democratic Athens.
In the "Laws" even the man who in good conscience refuses to accept the com-
munal religious beliefs is put to death if he cannot be re-educated (907—909).
But in terms of the emphasis upon belief and the underlying theory of the
rights of the individual in religious matters how different is this from Athenian
law? Hasn't Plato just systematized the traditional notion of asebeia and fitted
it into his larger political theoretical framework? I t would require a full discussion
of ßocial and religious regulation in the "Laws" to provide a definitive answer
to these questions, but it seems that one should pause and think before con-
trasting Plato's 'totalitarian' conception of asebeia with an 'enlightened' Athenian
one which may never have existed 24 ).

University of California, Berkeley D a v i d Cohen

23
) "Religious Toleration in Classical Antiquity".
,¿i
) I would like to thank Professors J o h n C r o o k , D a v i d D a u b e and
G r e g o r y V l a s t o s for reading this paper in draft and offering helpful comments
and criticisms.

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