Download the concept of “impure birth” in 5th century

T HE C ONCEPT O F “I MPURE B IRTH ” IN
5 T H C ENTURY A THENS AND J UDEA
Lisbeth S. Fried
It is a great honor for me to participate in this tribute of appreciation
to my friend and mentor Tikva Frymer-Kensky. Tikva was
instrumental in directing scholars’ attention to the roles and concerns
of women both in antiquity and in the present, and it is fitting
therefore that I dedicate this study of the notion of “impure birth” in
5th-century Athens and Judah to her memory.
The book of Ezra records that at the time of Ezra’s arrival in
Jerusalem, the people of Israel were mingling the “holy seed” with
that of the “peoples of the lands.”
After these things were finished, the officials approached me and
said, “The people of Israel, the priests, and the Levites have not
separated themselves from the peoples of the lands whose
abominations are like those of the Canaanites, the Hittites, the
Perizzites, the Jebusites, the Ammonites, the Moabites, the
Egyptians, and the Amorites. They have taken some of their
daughters as wives for themselves and for their sons. Thus they
mixed the holy seed with the peoples of the lands, and the hand
of the officials and magistrates was first in this rebelliousness”
(Ezra 9:1–2).
The antidote to the problem was mass divorce:
Then Ezra the priest stood up and said to them, “You have
rebelled and have caused foreign women to dwell with you, and
so increased the guilt of Israel. Now make confession to YHWH
the God of your fathers, and do his will; separate yourselves from
the peoples of the land and from the foreign women.” Then all
the assembly answered with a loud voice, “Yes; it is incumbent
upon us to do according to your word.” (Ezra 10:10–12).
121
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IN THE WAKE OF TIKVA FRYMER-KENSKY
Many commentators have been uncomfortable with these texts.
Williamson admits to finding this section “among the least attractive
parts of Ezra–Nehemiah.”253 He and other commentators see ugly
racial overtones.254 Mowinckel, for example, likens the attitude to
Nazism. Janzen argued recently that foreign women were expelled
because they were viewed as dangerous to the community, and that
what resulted was a “witch-hunt,” a purification ritual.255 Yonina Dor
finds the idea so reprehensible that she is driven to deny that the
whole thing ever happened, it is pure fiction.256
Some commentators rationalize and explain that intermarrying
with the “peoples of the lands” would imply adopting some of their
religious practices.257 They argue that since the restored community
was to be a religious one, it needed to establish strict criteria for
membership in order for the distinctive elements of the Jewish faith
to survive.258 The foreign women are emphasized because the mother
teaches her beliefs to her offspring; those who grow up to follow
Jewish practices are more likely to have had Jewish mothers.259
253 Hugh G. M. Williamson, Ezra, Nehemiah, Word Biblical Commentary,
16 (Waco: Word Books, 1985), 159.
254 Williamson, Ezra, Nehemiah, 130–32; Joseph Blenkinsopp, Ezra–
Nehemiah: A Commentary, The Old Testament Library (Philadelphia:
Westminster Press, 1988), 176; Sigmund Mowinckel, Die Ezrageschichte und das
Gesetz Moses, Studien zu dem Buche Ezra–Nehemiah, III, Skrifter ut gitt av
Det Norske Videnskaps-akademii Oslo II, Hist.-filos. Klasse ny serie, 7
(Oslo: Universitetsforlaget, 1965), 34–35.
255 David Janzen, Witch-Hunts, Purity and Social Boundaries: The Expulsion of
the Foreign Women in Ezra 9–10, Journal for the Study of the Old Testament.
Supplement Series, 350 (London: Sheffield Academic Press, 2002).
256 Yonina Dor, Did They Really Divorce the Foreign Women? The Question of
the Separation in the Days of the Second Temple (Jerusalem: Magnes Press, 2006)
(Hebrew).
257 Jacob M. Myers, Ezra–Nehemiah, Anchor Bible, 14 (Garden City, NY:
Doubleday, 1965), 77.
258 E.g., Peter R. Ackroyd, I & II Chronicles, Ezra, Nehemiah, Torch Bible
Commentaries (London: SCM, 1973), 253; Blenkinsopp, Ezra–Nehemiah: A
Commentary, 176f.; F. Charles Fensham, The Books of Ezra and Nehemiah, New
International Commentary on the Old Testament (Grand Rapids: Eerdmans,
1982), 125; Williamson, Ezra, Nehemiah, 160.
259 Fredrick Carlson Holmgren, Israel Alive Again: A Commentary on the
Books of Ezra and Nehemiah (Grand Rapids: Eerdmans, 1987), 73.
CONCEPT OF “IMPURE BIRTH”
123
Daniel Smith-Christopher takes a different approach to the
intermarriage crisis by referring to modern sociological data. 260
Research shows that the majority of inter-racial marriages in 20thcentury America, for example, consisted of professional and educated
black men “marrying-up” to non-professional women of the white
higher status culture.261 Studies of intercaste marriages in India also
predominantly involved a professional male of a lower caste and a
non-professional woman of a higher caste.262 Data also show that
Jewish-Gentile intermarriages in Europe between 1876 and 1933
consisted predominantly of Jewish males and Gentile females.263
Smith-Christopher suggests that the intermarriages in 5th- and 4thcentury Judah consisted primarily of these lower caste Judean men
attempting to marry up by marrying higher status non-Judean women.
Smith-Christopher ventures that the prohibitions against these types
of intermarriages indicate a concern by the lower status group for its
own identity. This concern arises especially when minority groups
within a larger dominant culture find themselves uprooted and
isolated and faced with a strong pressure to conform to alien
standards of behavior. They then instinctively fall back on the kinship
network to defend against threats of extinction.
A fourth group of exegetes see the opprobrium attached to
“mingling the holy seed” as an exegetical elaboration of the older idea
of Israel as a “holy people,” an idea frequent in both the
Deuteronomic and in the Holiness materials (e.g., Exod 19:6; Lev
20:26; Deut 14:2).264 In Ezra’s reference to the eight forbidden
Canaanite nations (Ezra 9:1), Fishbane sees a clear allusion to Deut 7:
260 Daniel
L. Smith-Christopher, A Biblical Theology of Exile, Overtures to
Biblical Theology (Minneapolis: Fortress Press, 2002), 137–62.
261 Ibid., 153. He bases his findings on the research he cites in 152 n. 34,
153 n. 37.
262 Ibid., 154.
263 Ibid.
264 Michael Fishbane, Biblical Interpretation in Ancient Israel (Oxford:
Clarendon Press, 1985), 114–29; Saul M. Olyan, Rites and Rank: Hierarchy in
Biblical Representations of Cult (Princeton: Princeton University Press, 2000), 83;
idem, “Purity Ideology in Ezra–Nehemiah as a Tool to Reconstitute the
Community,” Journal for the Study of Judaism in the Persian, Hellenistic and Roman
Period 35 (2004): 1–16; Christine Elizabeth Hayes, Gentile Impurities and Jewish
Identities: Intermarriage and Conversion from the Bible to the Talmud (Oxford:
Oxford University Press, 2002), 19–59.
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IN THE WAKE OF TIKVA FRYMER-KENSKY
1–6, where the prohibition against intermarriage is justified “because
you are a holy people (M(a #$wOdqf).265 The addition of the Ammonites,
Moabites, Egyptians and Amorites (probably to be read Edomites
with 1 Esdras 8:66) is simply the addition of the four peoples
prohibited from immediately entering the congregation of YHWH
(Deut 23:3–8; cf. Neh 13:1–3). The antidote of divorce expels those
who had entered the congregation of YHWH illegally. Since two of
these peoples were forbidden even up to the tenth generation and the
other two up to the third generation, it follows that their children are
forbidden as well. It is the fear of defiling the land, and being expelled
from it again, combined with their immersion in a sea of alien
peoples, that leads the returnees not only to zealously follow Torah
law but also to extend it to the new situation through exegesis.266
What this analysis misses, however, is that Ezra 9:1 should
probably not be translated as most do:
The people of Israel, the priests, and the Levites have not
separated themselves from the peoples of the lands with their
abominations, from the Canaanites, the Hittites, the Perizzites,
the Jebusites, the Ammonites, the Moabites, the Egyptians, and
the Amorites.
This translation implies that only those eight nations are forbidden.
Rather, it should most likely be translated:
The people of Israel, the priests, and the Levites have not
separated themselves from the peoples of the lands whose
abominations are like Mheyt'bo(jwOtk; the Canaanites, the Hittites, the
Perizzites, the Jebusites, the Ammonites, the Moabites, the
Egyptians, and the Amorites.
Fishbane, Biblical Interpretation, 115–16.
In contrast, Jonathan Klawans, “Notions of Gentile Impurity in
Ancient Judaism,” Association of Jewish Studies Review 20 (1995): 285–312; idem,
Impurity and Sin in Ancient Judaism (Oxford: Oxford University Press, 2000),
43–46, argues that the restoration community believed that the moral
practices of the neighboring peoples defiles the land and that such
defilement would lead to exile. Separating from the peoples of the land is a
separation from such defiling practices. However, it cannot be fear of the
practices which led to the mass divorce, or there would have been provision
for conversion or for other demonstration of relinquishing foreign ways. As
both Olyan and Hayes point out, an impermeable boundary is created
independent of the behavior of the foreigner.
265
266
CONCEPT OF “IMPURE BIRTH”
125
According to this reading, every foreigner is as the foreigner who is
prohibited by Torah law, because every foreign people exhibits
customs comparable in some way to the customs of the proscribed
nations. The Philistine from Ashdod is as the Ammonite and Moabite
(cf. Neh 13:23–25). Moreover, since the possibility of conversion
does not exist in these texts, foreignness becomes a permanent, transgenerational attribute. In contrast to Torah literature, in EzraNehemiah the foreign wife conveys foreignness to her offspring. The
child of an Israelite and his foreign wife is also foreign. Thus, uniquely
in these texts, access to Israelite identity is conditioned on having two
Israelite parents. These texts illustrate how categories like “alien” and
“native” are social constructs and malleable.
Thus two types of interpretation have been suggested to account
for the strong prohibition against Judean/non-Judean intermarriages
in Ezra–Nehemiah, religious and sociological. Nevertheless, both
approaches stress the reaction of an embattled minority trying to
maintain group identity and cohesion against the threat of the
larger—perhaps higher-status—civilization within which it is
embedded.
The problem in accepting these explanations is that similar
prohibitions against intermarriages are revealed in the law codes of
6th- and 5th-century Athens, yet classicists do not interpret these laws
as a response to a religious or cultural threat from a non-Athenian
civilization. Classicists do not view Athenians as an embattled
minority trying to maintain their cultural identity against the larger
Hellenic civilization within which they find themselves, nor do they
regard Athenian men who marry non-Athenian women as attempting
to “marry up.”
The prohibition against intermarriage and the mass divorce
described in Ezra and Nehemiah seem to mirror the similar
prohibitions and divorces in contemporary Athens.267 It is reasonable
to inquire, therefore, if these similar events were a response to similar
pressures in the two cities. Understanding the events which occurred
in 5th-century Athens may shed light on the very similar events that
occurred in 5th-century Jerusalem.
267 This was suggested to me originally by Tamara Eskenazi, personal
communication. See now Tamara Cohn Eskenazi, “The Missions of Ezra
and Nehemiah,” in Judah and the Judeans in the Persian Period, ed. Oded
Lipschits and Manfred Oeming (Winona Lake: Eisenbrauns, 2006), 509–29.
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A T H E N I A N C I T I Z E NS H I P L A WS 268
Solo n
The notion of Athenian citizenship begins in 594 BCE, when Solon,
the archon, was asked to quell the unrest and civil strife caused by
landholding practices in which according to Aristotle, “the many were
becoming enslaved to the few” (Ath. Pol. 5 a 1).269 To create peace
between creditors and debtors, Solon enacted a series of entitlements
for Athenian citizens: Debts were forgiven; tenants were given
ownership of the land they worked on; those enslaved for debts were
released; and those who fled abroad from their debts were brought
back (Ath. Pol. 12.4). Debt-bondage was ended since loans to
Athenians could no longer be taken on security of persons and no
Athenian (male or female) could be enslaved by another.
Since non-Athenians were not so protected, these laws required
a strict definition of citizenship, and a strict distinction between
citizen and non-citizen. Prior to Solon, the categories of xenos (ce/noj,
i.e., stranger, foreigner, non-resident alien) and metoikos (me/toikoj,
resident alien) did not exist as legal statuses. In his legislation, Solon
268 Unless otherwise noted, the following discussion is based on: Ilias A.
Arnaoutoglou, Ancient Greek Laws: A Sourcebook (London: Routledge, 1998);
Sara Forsdyke, Exile, Ostracism, and Democracy: The Politics of Expulsion in
Ancient Greece (Princeton: Princeton University Press, 2005); Nicholas G. L.
Hammond, A History of Greece to 322 B.C., 3rd edition (Oxford: Clarendon
Press, 1986), 153–66, 179–91, 299–310; Philip Brook Manville, The Origins of
Citizenship in Ancient Athens (Princeton: Princeton University Press, 1990);
Cynthia B. Patterson, Pericles’ Citizenship Law of 451–50 B.C. (New York: Arno
Press, 1981); eadem, “Those Athenian Bastards,” Classical Antiquity 9 (1990):
39–73; eadem, “Marriage and the Married Woman in Athenian Law,” in
Women’s History and Ancient History, ed. Sarah B. Pomeroy (Chapel Hill:
University of North Carolina Press, 1991), 48–72; eadem, “Athenian
Citizenship Law,” in The Cambridge Companion to Ancient Greek Law, ed.
Michael Gagarin and David Cohen (Cambridge: Cambridge University Press,
2005), 267–89; Greg R. Stanton, Athenian Politics c. 800–500 BC: A Sourcebook
(London: Routledge, 1990). See also my “From Xeno- Philia to - Phobia—
Jewish Encounters with the Other,” in A Time of Change: Judah and Its
Neighbours in the Persian and Early Hellenistic Periods, ed. Yigal Levin (London: T
& T Clark, 2007), 179–204.
269 Whether Aristotle himself or Pseudo-Aristotle is beyond the
competence of this writer to determine.
CONCEPT OF “IMPURE BIRTH”
127
admitted metoikoi (i.e., those foreigners who worked in Athens as
artisans and tradesmen and who had no other place of residence) to
the ranks of citizen. They were admitted to artists guilds, and assigned
to phratries, but because they were not members of the ancient clans,
they could not own land. All land was clan land and inalienable.
Itinerant foreigners whose families lived elsewhere remained outside
the system.
In addition to political reforms, Solon enacted a broad package
of family law.270 Bastards, “nothoi” (no/qoi), that is, offspring born to
Athenian fathers, but not to their legally recognized wives (i.e.,
children born to concubines or mistresses) were disenfranchised,
deprived of citizenship. They could no longer participate in the rites
and privileges of the polis. They had now no next-of-kin, and could
not inherit any more than the token 500 drachmas that was the
“bastard’s share.”271 Thus Solon privileged the marriage bond and
legitimacy, and restricted the inheritance of wealth and status to
legitimate children. A childless man could adopt heirs, but he could
not adopt his own bastard (or anyone else’s) as his heir
(Demosthenes, Against Neaira XLIII.51; XLVI.14, etc.).272 Since each
man could have only one legitimate wife, the status of women
increased correspondingly. Solon furthermore allowed legitimate
daughters to inherit if there was no legitimate son, only requiring that
the heiress marry a member of her father’s line.273 Nor was a man
allowed to marry a woman for her wealth and then ignore her. Solon
required him to be a proper husband and to have intercourse with his
wife at least three times a month (Plutarch, Solon 20.2–3).
In addition, Solon passed his well-known Law of Associations.
Prior to Solon, membership in a phratry constituted citizenship, and
the phratry could admit or refuse whomever it liked. This freedom
was now superceded by the decisions of the polis:
270 Patterson, “Those Athenian Bastards;” Susan Lape, “Solon and the
Institution of the ‘Democratic’ Family Form,” The Classical Journal 98 (2002–
2003): 118; Daniel Ogden, Greek Bastardy in the Classical and Hellenistic Periods
(Oxford: Clarendon Press, 1996), 36–43.
271 Ogden, Greek Bastardy, 36–39, 42; Cynthia B. Patterson, The Family in
Greek History (Cambridge, MA: Harvard University Press, 1998), 89–90.
272 Lape, “Solon,” 122.
273 In classical Athens, relatives of the mother of the deceased could also
marry the heiress if there were no eligible partners on the paternal side
(Patterson, The Family in Greek History, 97–98).
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IN THE WAKE OF TIKVA FRYMER-KENSKY
If a demos (dh=moj=) or members of a phratry (fratri/a) or of a
cultic society or of a ship-command or messmates or members of
a burial society or revelers or people going abroad for plunder or
for commerce make an arrangement concerning these matters
(i.e., matters appropriate to their association) among themselves,
it is to be valid unless the written statues of the People (dhmosi/a
gra/mmata) forbid it. (Solon’s Law of Associations, Gaius in
Justinian’s Digest 47.22.4) 274
Thus, the laws of the dŸmos, the people, took precedence over
the laws of the individual phratries. This law created the notion of
citizenship, of being Athenian, of belonging to a polis that had
jurisdiction over its members.
Peisistrat os a nd Kleisthenes
Solon left the city after his archonship in 594, and Athens degenerated
into anarchy, civil wars, and finally in 546, into tyranny under
Peisistratos and his sons. With the aid of Argive mercenaries,
Peisistratos set himself in opposition to the leading aristocratic
families whose sons he held hostage on the acropolis. He claimed the
support of the lower classes, including tradesmen who received the
franchise under Solon, but were not able to buy land (Herodotus,
Hist. I.59–61; Aristotle, Ath. Pol. 13.4–15.3).275 All these flocked to
Peisistratos.
With the aid of Spartan mercenaries, Isagoras and Kleisthenes,
scions of two major aristocratic families of Athens, collaborated in
510 to overthrow the Pisistratid tyranny. No sooner did the tyrants
flee Athens, but civil war broke out between the supporters of
Isagoras and Kleisthenes. Kleisthenes, losing the battle, attempted to
draw the masses to himself by appealing to those poor who had
supported Peisistratos. In response, the oligarchic Spartans allied
themselves with Isagoras, forcing Kleisthenes into exile.
The aristocratic Isagoras, elected archon in 508, subjected the
Athenian population to a civic scrutiny or diapsŸphismos,
diayhfismo/j, in which those of ‘impure birth’ (oi(/ tῷ ge/nei mh\
274 Quoted in and translated by Nicholas F. Jones, The Associations of
Classical Athens: The Response to Democracy (Oxford: Oxford University Press,
1999), 34.
275 Hammond, A History of Greece, 163–66; Forsdyke, Exile, Ostracism, and
Democracy, 101–33.
CONCEPT OF “IMPURE BIRTH”
129
kaqaroi\) were purged from the citizenship rolls. According to
Herodotus, 700 families were purged (Aristotle, Ath. Pol. 13.5; Hist.
V.72, cf. Ath. Pol. 20.1–3), an act carried out by a largely Spartan
military force.
Peisistratus … was thought to be an extreme advocate of the
people. And on his side were also arrayed, from the motive of
poverty, those who had been deprived of the debts due to them
[under Solon’s reforms]; and, from the motive of fear, those who
were of impure birth (oi/ tw~ ge/nei mh\ xaqaroi\). This is proved
by the fact that after the deposition of the tyrants the Athenians
enacted a scrutiny of the roll (diayhfismo/n), because many
people shared the citizenship who had no right to it (Ath. Pol.
13.5).
Of those purged, some were put to death, others were exiled,
some were allowed to live in Attica, but declared atimia, i.e., deprived
of their rights as citizens, with no recourse to the protection of justice
or courts of appeal—(Andocides, On the Mysteries 1.106).276 These 700
families would have included descendants of the foreign artisans and
traders who had been assigned to a phratry and given citizenship by
Solon, but no land.277 The validity of their citizenship and their
admittance to the phratry may now have been questioned. It may
have been at this time that a decree was passed according to which
“anyone, having been born of two alien parents and is a member of a
phratry—anyone who wishes of the Athenian citizens that have the
right of private prosecution may prosecute him and be allotted a
hearing before the nautodikai on the first of the month.”278 This may
have been the decree which caused the fear in sons of men who were
276
Manville, The Origins of Citizenship, 183.
277 Herodotus (Hist. V.71, cf. Aristotle, Ath. Pol.
20.1–3) states that these
seven-hundred families were descendants of the followers of Kleisthenes’
ancestors and who were now accused of being “accursed” because in the
seventh century they had killed Cylon, the would-be despot, and his
followers, while they clung to the altar of Athena on the Acropolis. If they
had really been viewed as “cursed” since the seventh century however, it
does not seem likely that exile would have awaited these events which
occurred a century later. This explanation for the purge seems more likely
due to Herodotus’ need to view evil outcomes as a result of hubris.
278 Craterus, in Felix Jacoby, Die Fragmente der Griechischen Historiker 3B
(Leiden: E. J. Brill, 1950), no. 342 F 4 , quoted in Ogden, Greek Bastardy, 49–
50.
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IN THE WAKE OF TIKVA FRYMER-KENSKY
newly enrolled in the phratries under Solon. These men supported the
Peisistratid tyranny, and were threatening now to support Kleisthenes
who apparently, according to Aristotle, was going to “hand power
over to the masses” (Ath. Pol. 20.1).
After the purge, Isagoras, with Spartan aid, attempted to disband
the Assembly and to create an oligarchy with himself and other
members of the ruling elite in charge. The Assembly refused to
disband, however, and chased Isagoras and his supporters to the
acropolis, where they besieged them for two days, allowing them to
leave only on the third (Hist. V.72, 74.1, Ath. Pol. 20). They then
dispatched envoys to bring back the pro-democratic Kleisthenes and
those of the 700 families who had been exiled.
As part of the democratic reaction against Isagoras’ purge,
Kleisthenes was able to drive through a series of reforms that
solidified the definition of citizenship. He changed the basis of the
deme to a geographical unit rather than one based on lineage. Every
legitimate (non-bastard son) of an Athenian was newly enrolled in one
of thirty demes according to his current place of residence (Ath. Pol.
21).279 These thirty were composed of ten each from the three major
areas of Attica—town, plain, and coast.280 A family’s residence in a
deme in 507 was now the condition of citizenship. Wherever a family
lived thereafter, it was a member of the deme in which it had been
living in 507. Kleisthenes moreover randomly assigned these demes to
one of ten newly created “phylai” “tribes,” each composed of a deme
from the city, the plain, and the coast. According to Ath. Pol. (21),
Kleisthenes’ purpose was to “mix up” the Athenians, so that “more
would have a share in the politeia.” Aristotle asserts in his Politics that
Kleisthenes “enrolled in the tribes many foreigners and slaves”
(1275b34–09). Thus the polity was enlarged. To avoid being labeled
“impurely born” and removed from the citizenship rolls, men had
only to trace their lineage back to their father’s house (oikos), to the
deme, and to the tribe to which his family was assigned in 507. Every
citizen—plus every non-citizen resident alien—now had a systematic
and tangibly defined place in society. Metoikia became a securely
attested legal status, identifying the foreigner who lived in Athens but
who was not a citizen. Metoikoi registered as such in the deme in which
they resided. The name of the deme now became the citizen’s last
279
280
Patterson, The Family in Greek History, 281.
Ibid., 276.
CONCEPT OF “IMPURE BIRTH”
131
name, and created a theoretical equality among the demesmen.
Herodotus refers to this Kleisthenes as “the one who reorganized the
tribes and established democracy in Athens” (Hist. VI.131).
Pericles
During the following decades the democrats remained dominant. In
461, while the pro-aristocratic Kimon happened to be away, Pericles
put through democratic reforms in which judicial responsibilities were
taken from the powerful Areopagos, the aristocratic final court of
appeal, and distributed among the lower courts and the Assembly.281
It may have been during this period that the pro-democratic general
Pericles proposed that Athenians be paid a daily wage for sitting as a
juror in the popular courts and in the Assembly.282 This enabled those
who previously could not have afforded to give up a day’s work now
to participate in government. The lower classes, those needing the
two-obols daily wage, began to predominate in the juries, the
Assembly, and the councils. Pericles may also have been behind the
creation in 453/2 of a popular court (dikastai/ kata dh/m ouj) of 30
jurors which traveled throughout the countryside giving preliminary
judgments or even final judgments in the case of small claims.283 This
court was instrumental in taking justice out of the hands of the
aristocratic families of the phratries and placing it in the hands of
jurors appointed by the polis. There was now one common judicial
system throughout Athens. Pericles also supported the poor through
public building projects and, in spite of the cessation of the war with
Persia, by maintaining 200 triremes with their hundreds of rowers in
active service. He paid for these with funds expropriated from the
tribute of the member-states of the Delian League, whose treasury
had been moved from Delos to Athens soon after the war with
Persia. These funds were to provide for the members’ common
defense, not to beautify Athens.
In 451–450, Pericles persuaded the Athenians to restrict further
their definition of Athenian citizenship, although according to
Plutarch (Pericles 37.2), this was a law “about bastards” (peri\ tw=n
no/qwn), not about citizenship per se.
Hammond, A History of Greece, 288.
Patterson, Pericles’ Citizenship Law, 93–94; Hammond, A History of
Greece, 301.
283 Patterson, Pericles’ Citizenship Law, ibid.
281
282
132
IN THE WAKE OF TIKVA FRYMER-KENSKY
And in the year of [the archonship of] Antidotus, owing to the
large number of the citizens an enactment was passed on the
proposal of Pericles prohibiting a person from having a share in
the city who was not born of two citizens (Ath. Pol. 26.3).
For the first time Athenian citizens had now to prove descent
from an Athenian mother, that is a woman whose father was a citizen.
Those unable to prove this were reckoned as bastards. Though not
often stated, this law recognized for the first time the status of the
Athenian woman, and may have even elevated it.284 The decree of
451/450 was followed by another scrutiny (diayhfismo/j) in 445
when the Egyptian king sent grain to be distributed to Athenian
citizens.
And so [in 445] when the king of Egypt sent a present to the
people [of Athens] of forty thousand measures of grain, and this
had to be divided up among the citizens, there was a great crop
of prosecutions against citizens of illegal birth by the law of
Pericles, who had up to that time escaped notice and been
overlooked, and many of them also suffered at the hands of
informers. As a result, a little less than five thousand were
convicted and sold into slavery, and those who retained their
citizenship and were adjudged to be Athenians were found, as a
result of this selection, to be fourteen thousand and forty in
number. (Plutarch, Pericles 37.3–4)
Indeed, 4760 Athenians were struck from the citizenship rolls
then as being of “impure birth” and not entitled to the grain. 285
Deprived of their rights as citizens, they had no recourse to the
protection of the courts; if murdered, their family had no right of
vengeance. Many fled or were exiled. Confiscation of property and
often loss of life followed even those allowed to remain in Athens.
Those who sued for their citizenship rights and lost their suit were
executed. These laws were allowed to lapse during the Peloponnesian
Wars, but in 403 they were reinforced and strengthened. Another
census and mass exile ensued. Manville characterizes these periodic
284 Robin Osborne, “Law, the Democratic Citizen and the
Representation of Women in Classical Athens,” Past and Present 155 (May
1997): 3–33.
285 Philochoros, in Jacoby, Fragmente der Griechischen Historiker, no. 328 F
119; John K. Davies, “Athenian Citizenship: The Descent Group and the
Alternatives,” The Classical Journal 73 (1977–78): 105–21.
CONCEPT OF “IMPURE BIRTH”
133
“scrutinies” as “reigns of terror”.286 Davies notes the constant status
anxieties which are reflected in contemporary tragedies.287
Laws prohibiting intermarriage between Athenians and
foreigners followed upon Pericles’ citizenship law. Two laws in
particular are noteworthy, both quoted in Demosthenes, Against
Neaira LIX.16, 52.288
If a foreign man lives as husband with an Athenian woman in any
way or manner whatsoever, he may be prosecuted before the
thesmothetai by any Athenian wishing and entitled to do so. If he is
found guilty, both he and his property shall be sold and one-third
of the money shall be given to the prosecutor. The same rule
applies to a foreign woman who lives with an Athenian as his
wife, and the Athenian convicted of living as husband with a
foreign woman shall be fined a thousand drachmas (Against
Neaira LIX.16).
If any Athenian gives a foreign woman in marriage to an
Athenian citizen, as being his relative, he shall lose his civic rights
and his property shall be confiscated and one-third shall belong
to the successful prosecutor. Those entitled may prosecute
before the thesmothetai, as in the case of usurpation of citizenship
(Against Neaira LIX.52).
These laws imply a mandatory divorce for all marriages between
an Athenian and non-Athenian, whether male or female. According to
the law, the foreigner living as spouse with an Athenian shall be sold
into slavery, and his or her property confiscated (with one-third given
to the man who brings the suit). Since women did not give themselves
in marriage, anyone giving a foreign woman to an Athenian in
marriage was also subject to sanctions. This was then the situation in
5th- and 4th-century Athens.
Manville, Origins of Citizenship, 184.
Davies, “Athenian Citizenship.”
288 Although quoted in a mid-4th-century document, it has not been
possible to date the laws themselves (Patterson, Pericles’ Citizenship Law, 95).
286
287
134
IN THE WAKE OF TIKVA FRYMER-KENSKY
M OT I V A T I O N F OR T H E C I T I Z E NS H I P L A WS
A T H E NS A ND J ERUS ALEM
IN
Athe ns
Various reasons have been proposed for Pericles’ Citizenship Law,
one being Aristotle’s explanation that there were too many people. It
is true that the population of Athens grew unusually between 480 and
450, admittedly most likely due to the increased presence of
foreigners in the city, but the population did not decrease as a result
of the law.289 It is unlikely, moreover, that (Pseudo-)Aristotle would
have known the demographics of 5th-century Athens.290 Aristotle
writes in Politics (1278a26–34),291 however, that cities define
citizenship generously when short of men and strictly when numbers
are buoyant. The explanation proffered for Pericles’ Law may only be
an application of that rule. In any case, the law did not prevent
foreigners from living and working in Athens, and was not intended
to. It was only intended to prevent them from marrying Athenians.
Patterson assumes that a large number of foreigners were passing
themselves off as citizens, causing serious problems in regard to jury
duty or other public offices.292 It is difficult to see how the citizenship
law would prevent this, however, since it does not attempt to exclude
foreigners from Athens.
Another explanation is a supposed concern for racial purity.293
This proposal echoes Aristotle’s wording (i.e., that those excluded
Patterson, Pericles’ Citizenship Law, 102.
Osborne, “Law and the Representation of Women,” 5.
291 Book III iii 5.
292 Patterson, Pericles’ Citizenship Law, 103.
293 Charles Hignett, A History of the Athenian Constitution to the End of the
Fifth Century B.C. (Oxford: Clarendon Press, 1952), 346; Alick R. W.
Harrison, The Law of Athens, Vol. I: The Family and Property (Oxford:
Clarendon Press, 1968), 25 n. 2; Malcolm F. McGregor, “Athenian Policy at
Home and Abroad,” in Lectures in Memory of Louise Taft Semple, Second Series
1966–1970, ed. Cedric G. Boulter, et al., University of Cincinnati Classical
Studies, 2 (Norman: University of Oklahoma Press for the University of
Cincinnati, 1973), 53–66; Cecil M. Bowra, Periclean Athens (New York: Dial
Press, 1971), 93 (“since they could not be guaranteed to put Athenian
interests first, they should not enjoy the true Athenian’s privilege of
governing the country … [or] Athenians were congenitally superior to other
Greeks”); A. R. Burn, Pericles and Athens (New York: Macmillan, 1949), 92
289
290
CONCEPT OF “IMPURE BIRTH”
135
from the franchise were of “impure birth,” oi(/ tῷ ge/nei mh\ kaqaroi\;
Ath. Pol. 13.5). Classicists agree that this explanation is anachronistic,
however, as the concept of “race” did not yet exist. This charge has
also been leveled at the Judeans, as noted above, and is equally
anachronistic in that context. The possibility of an “Athens for the
Athenians” mindset has also been proposed, but again, the law was
not intended to keep foreigners out of the city, but only to keep their
daughters from marrying your sons.
One problem with foreign marriages was that of inheritance.
Technically speaking women did not inherit, but wealthy women
received a pre-mortem inheritance through their dowries, and these
could include lands and estates, or sums of money easily turned into
land. Women without brothers also received a post-mortem
inheritance. In this way, a woman served as a conduit, conducting her
father’s estate to her sons. Sons of brotherless women were often
adopted into the household of their maternal grandfather, and if the
women were foreign, non-Athenians could wind up owning land in
Athens.
Eskenazi interprets the shared concern with “mixed” marriages
as a function of both Athens and Judah’s drive toward democracy.294
The greater push toward citizen participation that she sees as evident
in Ezra 10 requires a stricter definition of who was a citizen. This
does not explain why offspring of mixed marriages would present a
problem, however. Moreover, the presence of an assembly described
in Ezra 10 does not indicate a push toward democracy in Yehud. 295
Mesopotamia had assemblies under the Babylonians and Assyrians,
and now under the Persians, and these states were always tyrannies.
Nor was any satrapy or province anywhere in the Persian Empire a
democracy. Assemblies in these areas were routinely used to observe
and ratify decisions of the governing officials, and at the same time to
inform the populace of the decision. They created transparency in
(“the whole ancient character of Athens was in danger of being altered by
the flood of immigrants”).
294 Eskenazi, “The Missions of Ezra and Nehemiah,” 524–26.
295 See my discussion of assemblies in Lisbeth S. Fried, The Priest and the
Great King: Temple-Palace Relations in the Persian Empire, Biblical and Judaic
Studies from the University of California, San Diego, 10 (Winona Lake:
Eisenbrauns, 2004), 190–93, and references cited there.
136
IN THE WAKE OF TIKVA FRYMER-KENSKY
government. Members of the assembly were passive observers,
however, and did not vote.
More relevant in comparing the two cities is the fact that each
was part of an empire. Pericles’ Citizenship law, and the democratic
reforms which he fostered, should more likely be seen against the
background of Athens’ war with Persia (493–480) and against
Pericles’ all-consuming preparations for the war with Sparta which
followed (i.e., the first Peloponnesian War, 431–404).
Pericles’ overriding intention was to maintain the Athenian
Empire. The Delian League, formed in response to Persian
aggression, became the Athenian League after the war when its
treasury was moved to Athens and came under the disposal of men
like Pericles. Those from among the 150 member-states of the Delian,
now Athenian League, who no longer felt the threat from Persia, and
attempted to withdraw from the League, met with a harsh and
punitive Athenian response.
Athens’ primary rival for Hellenic dominance was oligarchic
Sparta, and the aristocratic factions in Athens tended to favor
alliances with her while democratic elements tended to oppose it. In
464, for example, when Spartan helots revolted against that city, the
aristocratic Athenian Kimon led a battalion of 10,000 men strong to
Sparta to put down the revolt. It was while Kimon was gone, that
Pericles instituted the bulk of the democratic reforms, and when he
returned to Athens he was ostracized by Pericles’ new democratic
regime. Part of the Athenian hostility against Kimon may have
stemmed from the fact that he named his son Lakedaimonios, i.e., he
named his son “Spartan,” indicating the close ties of friendship, if not
actually marriage, that he had with Sparta’s ruling families.296
The law’s purpose, therefore, may have been to prevent the
Athenian aristocracy from forming dynastic alliances with wealthy
families from other states—not only those with which Athens had
hostilities, like Sparta, but also with those dependent states paying
tribute to the coffers of the Athenian League.297 Any of these alliances
296 Gabriel Herman, “Patterns of Name Diffusion Within the Greek
World and Beyond,” The Classical Quarterly N.S. 40 (1990): 363.
297 Sarah C. Humphreys, “The Nothoi of Kynosarges,” Journal of Hellenic
Studies 94 (1974): 88–95, esp. 93–94; Loren J. Samons II, “Introduction:
Athenian History and Society in the Age of Pericles,” in idem, The Cambridge
Companion to the Age of Pericles (Cambridge: Cambridge University Press, 2007),
14.
CONCEPT OF “IMPURE BIRTH”
137
could easily have upset the balance of power. Since only the
aristocratic elites of the Greek city-states had the means enabling
them to travel, only they would have been able to meet people from
other city-states. The friendships that resulted from these meetings
led to an exchange of gifts often including large donations of grain,
timber, land, and as we saw with Kimon, even troops. Such alliances
provided a power base outside of the polis, a power base which could
threaten Athens’ autonomy and supremacy.
The law succeeded in sharply reducing foreign marriages. While
common before 480, they are unknown after Pericles’ law of 450. 298
Moreover, charges of “foreign birth” and “treachery” were the most
common allegations scrawled on potsherds used to ostracize
politicians from the city.299 The main effect of the law was on the
large number of men serving as imperial officials in cities throughout
the Athenian empire.300 In prohibiting their fraternization with locals,
the law prevented families in other cities from accessing property in
Athens through the marriage of their daughters to Athenians. If
Athenian men married abroad, their children would not inherit
Athenian land. Claims of kinship could never lead non-Athenians to
power or influence at Athens.
Jerusalem
Does this understanding of Pericles’ citizenship law illuminate events
in 5th- and 4th-century Judah? If the purpose of the Athenian
legislation was to prevent aristocratic families from forming a power
base independent of the Athenian polity, then this may shed light on
the edicts of Ezra and Nehemiah. Like Pericles, these imperial Persian
officials may also have sought to limit the influence of aristocratic
families so that all power would stem from Persia (and from
themselves as her representatives?). Dynastic marriages among the
aristocracy of the various provinces in the satrapy Beyond-the River
enhanced the wealth and influence of patrilineal groups and cemented
alliances among them, alliances which may have been seen as a threat
to the status quo in Persia. Eskenazi states that Judah was a provincial
backwater and not on Persia’s radar screen.301 Nevertheless, provincial
Osborne, “Law and the Representation of Women in Athens,” 6–7.
Ibid.
300 Ibid., 9.
301 Eskenazi, “The Missions of Ezra and Nehemiah,” 526.
298
299
138
IN THE WAKE OF TIKVA FRYMER-KENSKY
governors had garrisons and militias at their disposal, ostensibly to
collect taxes and tribute to send on to Susa. These resources led to a
strong centrifugal force among local governors increasing their desire
for independence and autonomy.302 Marriages pooled these resources,
and threatened resistance against Persia. Nehemiah and Josephus
report marriages between the families of Sanballat, the governor of
Samaria, and Eliashib, the Judean high priest (Neh 13:28; Ant. XI.2);
between the families of Tobiah, the governor of Ammon, and that of
the high priest of Judah (Neh 13:4; Ant. XII iv. 160); and between the
family of Tobiah and the nobility of Judah (Neh 6:18). These marriage
alliances threatened to create a power base and source of wealth
independent of Persia.
In sum, whatever theory or explanation of Pericles’ citizenship
law is finally adopted, viewing the events in Judah against the
backdrop of events in contemporary Athens—and viewing events in
Athens against the backdrop of events in contemporary Judah—
should allow historians of both cultures to see beyond the narrow
confines of religion, race, and theories of witch-hunts and “impure
blood,” and outwards towards the larger concerns of empire—
Athenian and Persian.
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