Bryn Mawr Classical Review 1998.07.23
Adele C. Scafuro, The Forensic Stage: Settling Disputes in Graeco-Roman New Comedy. Cambridge: Cambridge University Press, 1997. Pp. xxi, 512. ISBN 0-521-44383-0. $95.00.
Reviewed by Matthew R. Christ, Indiana University
Word count: 1779 words
This important study of law and New Comedy is the first major work on the subject since Paoli's 1962 monograph. Scafuro (S.) seeks to "elucidate texts of New Comedy in two ways: first, by providing a work of reference for readers of that genre who may not recognize certain legal scenarios; and secondly, by suggesting how the recognition of such scenarios may be a useful tool for broader interpretations of New Comedy texts" (7). Her ultimate aim -- and the one upon which this review focuses -- is to illuminate pre-trial disputing behavior in Athens by using the legal scenarios of New Comedy as a supplement to the evidence of the fourth-century Attic orators.
S. is meticulous in assessing this rich and challenging material (extensive appendices catalog and comment upon the sources) and proceeds with due caution in reconstructing Athenian disputing behavior on the basis of New Comedy texts. Her guiding principle is that, where the Attic orators attest to disputing scenarios, it is reasonable to look to New Comedy to fill in the details of how these might have been played out. S. argues persuasively that the scenarios found in Greek New Comedy bear a close relation to those attested in the orators. While we are uncertain about Athenian legal institutions in the period of Greek New Comedy, there is surely some continuity between fourth- and third-century practices, especially pre-trial ones: "we should not expect any change in the less formal modes of dispute settlement, such as private arbitrations and reconciliations -- if anything, we might expect a greater reliance on them" (16). S. is rightly cautious about using second-century BC Roman adaptations of Greek originals as evidence for Athenian disputing practice. Unlike some of her predecessors, she is not about to build a house of cards on assumptions about either Athenian or Roman practices.
S. divides her study into three parts (19-21). Part I explores "the threatening conduct of potential litigants -- both in fourth-century Athens and on the stage of New Comedy" -- and argues that much of this "is contrived or staged to coerce opponents to accept out-of-court settlements." Part II looks closely at scenarios of arbitration and reconciliation, with special attention to the resolution of sexual offenses. Part III examines "means of resolving disputes that are either illegal or beyond the law's surveillance," namely, scenarios of framing and entrapment.
A plausible and colorful picture of disputing behavior in Athens emerges. S. argues that "staginess" was routine both in and out of court (8): disputants self-consciously play act in the course of their disputes, stage-manage their conflicts -- for example, by assembling witnesses (42-50) -- and shrewdly adopt and adapt forensic rhetoric to achieve their ends out of court. (The staginess of real legal behavior is given a fascinating twist, as S. demonstrates repeatedly, when itself put on stage in New Comedy.) Disputants regularly display a "forensic disposition" -- a consciousness of legal rules and institutions and a canniness about how to exploit these so as to succeed in their disputes. S. emphasizes throughout the importance of intimidation in the dispute process. Evidence from the orators and New Comedy makes it clear that one could coerce an opponent to settle by threatening litigation. A lawsuit was negotiable from the start: summons and arrest could be wielded effectively to settle a dispute. Threats and intimidation were potent because disputants had good reason to avoid full-blown litigation, which could be expensive (contra D. Cohen Law, Violence and Community in Classical Athens, 1995) and risky (41). Indeed, going to trial was usually a last resort, and out-of-court settlement prevalent. "Both modes of arbitration -- private and official -- may have been more successful in ending disputes than is sometimes conceded by modern authorities" (36). S. argues contrary to much scholarly opinion, however, that private arbitration was not legally binding in the fourth century (122-28).
While this reconstruction of disputing behavior may not seem startling, S. has broken new ground in analyzing the disputing process closely and in drawing on the evidence of New Comedy to do so. The individual texts S. discusses, moreover, help bring to life the bare outline of the disputing process above. I was especially taken with S.'s chapter on entrapment and framing in the orators and New Comedy. S. points out that whereas "modern interpreters of New Comedy frequently designate such scenarios generically as 'intrigues,'" in fact they are "embedded in the same modes of socio-legal conduct" attested in the orators (330); S. observes, however, that the New Comedy texts explore entrapment not only in crime but also in moral offenses (330-31). S.'s study raises fundamental questions about both disputing behavior and its representation on stage in Athens. Here I focus on three interesting issues.
First, S. suggests that "Athenians seemed to have liked non-final solutions to their private problems" (20) and this would help explain the appeal to them of tenuous out-of-court settlements (130-31). In adopting this view of dispute, Scafuro builds on the position of some legal historians that litigants coming before the Athenian courts tend "to perpetuate legal conflict, to re-open disputes that had, in theory, been concluded by courtroom verdicts" (140-41). I find this view of litigation problematic (see BMCR 7.5  379-84) and have some doubts about its extension to the pre-trial disputing process. To be sure, some disputants may have been drawn to out-of-court settlements precisely because they were tenuous and could be ignored at little risk. But S. herself provides other more compelling explanations of the appeal of out-of-court settlement, including concerns about the costs of trial (140-41) and, in the case of sexual offenses, a desire on the part of the victim and victim's family to keep the sexual violation out of the public eye (212-13). Furthermore, we should not underestimate the appeal of finality in both out-of-court and court settlements. It is only human to be drawn to the possibility of closure to conflict, even if this is illusive, and Athenians were, notwithstanding their apparent readiness to engage in conflict, also unmistakably drawn to the ideal of quietude (cf. Christ, The Litigious Athenian ). The rhetoric of reconciliation, which S. explicates in a section entitled "The ideology of friendship," points to this: this rhetoric often calls for disputants to be friends "for the future" (134-35) as if settlement might somehow magically transform poor relations. Rather than dismiss this as empty rhetoric, we should acknowledge that this idealization of future relations might have a real impact on disputants. As a practicality, disputants must have fallen short of this ideal frequently, but many may genuinely, even if evanescently, have sought stability and finality through settlement. The social fact of ongoing disputes among persons associating closely together should not make us overlook the real attractions of dispute settlement in individual cases. A. Epstein, an anthropologist cited by S. (8-9), puts it well: "it is not so much that quarrels are never wholly resolved, but rather that cases have their sources in the ceaseless flow of social life, and in turn, contribute to that flow."
Second, while S.'s analysis of staginess in disputing behavior is compelling, the cultural and social implications of this might be explored further. S. suggests that staginess is somehow characteristic of "polis inhabitants" (66, 69). Does this mean that something about the Greek polis elicits such behavior, and if so what exactly is this? I wonder too how unique staginess in disputing behavior is to Athens. Arguably, wherever legal institutions exist, they elicit this type of behavior: is the modern United States, for example, so very different? What might be distinctive in an Athenian context is that the intensity of interpersonal rivalry called forth staginess with greater frequency than elsewhere. One might also ask whether in Athens social values -- the often acknowledged pursuit of honor and the less regularly trumpeted but equally real pursuit of self-interest -- provided special impetus to the exercise of metis in interpersonal relations. Indeed, the type of posturing S. points to in legal contexts is likely to be a manifestation of a broader cultural pattern personified in the wily Odysseus. I would argue that in Athens devious posturing is deployed not only in interpersonal rivalry (S.'s focus) but also in citizens' relations with the state, for example in liturgy- and draft-dodging.
Third, S. might investigate further the social context of Greek New Comedy and offer some explanation as to why its audiences were so drawn to the exposition of forensic strategies and scenarios. I am convinced by S. that the audiences of Greek New Comedy recognized the legal situations staged as reflections of real ones (105), but wonder why Athenian audiences in this period were so taken with the staging of these. While one can understand S.'s reluctance to speculate on these matters given our limited information about Hellenistic Athens, her suggestions would be welcome. A starting point might be S.'s observation, noted above, that in the period of New Comedy Athenians may have relied more on private arbitration and other forms of out-of-court settlement than in the classical period. Indeed, it seems very plausible that court access in Athens was more limited in the Hellenistic period than in the classical period due to the city's changing economic and political circumstances. If this is so, the out-of-court scenarios explored in New Comedy may be taken as a reflection of the social reality of limited access to court and at the same time, to judge by the proliferation of happy endings based on reconciliation (181), as a reassuring confirmation that a lawful and just society is possible even without ready court access. We should of course be attuned not only to the ways the forensic stage of New Comedy might mirror contemporary reality but also to how it might distort it. S. makes this very point in her illuminating reading of rape scenarios (272-78). One would welcome a similar examination of why it might be that the "forensic disposition ... is most fully developed in the senes, slaves, and socially marginal characters of New Comedy" (326). The common attribution of forensic savoir faire to marginal figures presumably reflects Athenian ambivalence toward this: it is safer to explore the devious behavior of citizens through the actions of marginalized individuals. This would be broadly consistent with the socially conservative perspective of New Comedy that S. comments on elsewhere in connection with the representation of marriage (238) and fornication (232-33).
It would be unfair to S., however, given how much she has done in this exceptional and far-ranging work to judge her on the basis of questions left unanswered. Any successful work suggests further lines of inquiry, and that is the case here.