BMCR 1996.06.12

1996.6.12, Cohen, Law, Violence and Community

, Law, violence, and community in classical Athens. Key themes in ancient history. Cambridge: Cambridge University Press, 1995. xii, 214 pages ; 24 cm.. ISBN 9780521381673. $18.95.

David Cohen’s latest book builds on his earlier work, most notably Law, Sexuality, and Society (Cambridge 1991), in arguing that in Classical Athens there is no “autonomous judicial sphere” (181), but rather law is inseparable from its social and political context. In particular Law, Violence and Community argues that litigation in Athens should be viewed largely as an extension of feuding relationships outside of the courts, and that litigants and jurors were conscious of, and comfortable with, this dimension of litigation. After a few general comments on this excellent and engaging work, I will attempt to identify some limitations of this perspective on Athenian litigation.

This volume appears in the Cambridge series, Key Themes in Ancient History (eds. P. Cartledge and P. Garnsey), which seeks to “provide readable, informed and original studies of various basic topics, designed in the first instance for students and teachers of Classics and Ancient History, but also for those engaged in related disciplines” (jacket). In keeping with the series’ goals, Cohen’s volume is compact and sparingly footnoted (a brief bibliographical essay appears at the end) and transliterates all Greek words. In my view, it succeeds in providing an original perspective that bridges work in several different fields and does so within an accessible and readable format (although scholars may miss an index locorum).

Part One consists of three chapters devoted to theory and methodology. Most important for the main argument of the book, Cohen challenges “functionalist, evolutionary and positivist presuppositions” concerning the Athenian legal system (4). He argues that conflict is not “the anomaly which the administration of justice is designed to eliminate” (5), and that it is reductive to regard legal institutions as evolving to suppress feuding behavior (14). In fact, “[c]ourts, rather than finally resolving conflicts, may provide yet another arena where they are pursued” (23-24). This view of the courts is developed at length in Part Two. Cohen explores how the values of an agonistic society, especially the concepts of honor and enmity, find expression in litigation in Athens (Chapter 4), and argues that much litigation in Athens can be viewed in terms of feuding behavior and, moreover, “that it was acknowledged as such by Athenian judges and litigants” (87) (Chapter 5). To support this view, Cohen looks at three sources of litigation: assault (Chapter 6), sexual violence (Chapter 7), and disputes within the family (Chapter 8). A concluding chapter explores how jurors navigated the tension “between the rule of law strictly construed and judgment based upon social rather than statutory criteria” (184).

In assessing this model of Athenian litigation, one may first ask to what extent the dynamic of feud drives Athenian litigation. Cohen maintains that, while not all lawsuits in Athens follow this pattern, a very substantial part of the corpus reflects it (119). He argues persuasively that Demosthenes 21 ( Against Meidias) “can only be understood as one part of a much larger matrix of transactions, transactions shaped by the dynamic of feud” (90) and makes a good case for viewing a number of cases involving assault (including Dem. 54 and Lys. 3) within this rubric.

Cohen is less persuasive in arguing that hubris suits alleging sexual violence were vehicles for the pursuit of feuding behavior. Hubris suits in general are ill-attested, and this makes it impossible to determine how suits alleging the particular type of hubris represented by sexual violence were used. Cohen acknowledges the problem, but believes that hubris suits were not as rare as is often assumed (cf. 152, n.24). Cohen’s own analysis, however, brings out a substantial reason why Athenians may have been reluctant to bring any kind of suit in connection with sexual violence, namely, their shame at exposing the demeaning treatment of themselves or family members to public view (159).

There are problems too with viewing the relatively well-attested suits involving the family in terms of feuding behavior. Cohen maintains that “[w]hile not all family quarrels may have led to long-term bitter enmity, the extant Athenian inheritance cases indicate that private law litigation between kin followed essentially the same dynamic as the cases discussed in Chapters 4-6” (163). While Cohen makes the legitimate point that the inheritance disputes about which we know often appear to find no final resolution in court, one must ask whether this is due to feuding behavior. What are the motivations of the players who keep the game going? While honor and vengeance no doubt play a part, especially in the common practice of pursuing opponents’ witnesses on the grounds that they gave false testimony, the primary motivation for keeping inheritance disputes alive was surely financial, i.e., to win a share of a large estate. If so, the fact that a dispute continues in spite of a court verdict may be a necessary condition for the identification of feuding behavior, but it is not a sufficient condition.

Feuding behavior then is perhaps not quite as prevalent as Cohen’s analysis suggests. In cases where litigants do appear to be engaging in feuding behavior, moreover, one must ask whether jurors were as sympathetic to the display of agonistic values and aggression as Cohen maintains (e.g., “aggression is viewed as a natural and acceptable means for establishing social hierarchies, though social institutions seek to mediate that aggression in ways that limit the kinds of violence that competition spawns …” [97]). While it is true that litigants are generally comfortable in lauding the manly values of honor and vengeance, they do not glorify feuding behavior per se. In fact, they are careful to cast their opponents as initiators and perpetuators of enmity. Litigants typically assert that they were willing to settle out of court, but their opponents were not (on the considerable pressure to settle private disputes out of court, especially where kin were involved, see Virginia Hunter’s recent work). 1 In short, they are reluctant litigants ( apragmones), not aggressors or sykophants. Cohen characterizes this vaunting of peaceful values as a paradox: “Paradoxically, in this extremely litigious society where lawsuits are recognized as a central feature of agonistic social relations, maintaining that one shuns such activity is seen as a viable tactic for establishing character and credibility” (104). I would argue that this is, in fact, evidence that the popular courts did not (or not merely) endorse agonistic social behavior, but rather placed a great premium on cooperation and tolerance.

While litigants may well have viewed the courts as providing merely “another resource for enmity to draw upon, another arena where conflict may be pursued, where violence and revenge may be legally sanctioned” (183), jurors brought a considerably more complex perspective to court. To be sure, jurors enjoyed the spectacle of a good fight, legal or other, and were ready to endorse manly vengeance when it was justifiable, but they also valued civic peace and the preservation of community. The social disparity between the average juror and elite litigants may have played a role: since most jurors probably did not have the resources—legal, financial, or personal—to transform their private fistfights into legal fisticuffs, they might well look askance at a rich man’s aggressive pursuit of a personal feud before a public court. His unwillingness to settle could appear to be a manifestation of the hubris so commonly attributed to the rich.

At issue here is also the larger question of how Athenians conceived of their courts. Cohen, in keeping with his view that jurors are essentially tolerant of feuding behavior, argues that “[t]he courts were seen by Athenians as providing a forum for the demos to occupy the crucial role of dispensing honor by judging the rivalries and conflicts of leading citizens” (188). There is a good deal of truth to this: in some suits honor is specifically at issue and this is reflected in the type of action brought; in other suits, honor and reputation figure prominently, though they are not the stated basis of the complaint; and a verdict in any suit brings shame or honor on the litigant. But can one go so far as to say that “at the core of the Athenian judicial agon is the comparative judgment of the parties as citizens and social beings” (186)? I see two problems with this.

First, this minimizes too much the role of issues of fact. Cohen argues that assumptions “about the nature of the judicial process as aiming at the discovery of ‘truth’ will be seen to be largely out of place at Athens” (87-88). But, however dubious litigants’ representations of the facts may be and however difficult it was for jurors to sort out the facts, issues of fact appear to matter a great deal to judge by the considerable attention that litigants devote to the details of their disputes.

Second, this goes too far in minimizing the importance of issues of law and legality. Elsewhere, in fact, Cohen takes a more balanced stance: “Athenians articulated principles of legality, but at the same time conceived of the courts as operating within a matrix of political and social forces rather than isolated from them” (115). Laws and questions of justice mattered, but were interpreted according to community norms and democratic ideology (Cohen’s treatment of the “rule of law” debate in Chapter 3 is excellent). 2

Because Cohen views litigation not as an alternative to, but rather as an extension of, feuding behavior and jurors largely as arbiters of honor and thus determiners of a social hierarchy, it is not surprising that he doubts the courts did much to encourage civic peace. “While the legal order may have served to impose certain limits upon such conflicts (principally involving the use of deadly force) it seems to have done little more” (101). This strikes me as overly pessimistic, for two reasons.

First, our sample base, the surviving forensic orations, gives a skewed view of the pursuit of conflict, since litigants are disputants who could not or would not agree to settlement at an earlier phase of the dispute process. Arguably, most disputants, even in “litigious” Athens, did come to terms with one another before coming to court, so as to avoid the expense and uncertain outcome of trial—for good reason was kindunos a synonym for “trial.” I am not convinced that “there was little disincentive from repeatedly dragging one’s enemies into court” (168).

Second, even the litigants represented in forensic orations give the impression that the presence of the courts affected how they comported themselves during earlier phases of the dispute. While some of this is no doubt a manipulative reconstruction of the past, it is plausible that knowledgeable actors realized that aggression and violence would be difficult to justify in the courts and therefore acted more moderately than they might have otherwise. To be sure, a litigant could lie about the earlier course of the dispute, but effective self-fashioning at earlier phases of the conflict—including credibly witnessed gestures of reconciliation—could make it easier to convince a jury of one’s peaceful intentions throughout the dispute. Further evidence that disputants were conscious that courts would not condone aggression is evident in the way they sought to provoke one another to public acts of aggressive escalation that could then be the basis of a lawsuit (see esp. Dem. 53.16).

The presence of the courts may well therefore have altered both the nature and intensity of feuding behavior in Athenian society. Cohen takes Demosthenes’ rivalry in and out of court with Meidias as a paradigm of feuding behavior. Perhaps more emphasis should be placed on Demosthenes’ restraint when Meidias slapped him in the face. It is remarkable in a society that is preoccupied with manly honor and reputation that an individual who was insulted publicly in this way should hesitate to retaliate physically. If Demosthenes’ suit against Meidias is in a certain sense a retaliatory counterblow, the fact that Demosthenes did not respond physically is significant. The courts gave Demosthenes and other feuding persons an alternative to violence, and this was surely a good thing for civic peace.

In general, Cohen’s model seems to me to make the Athenian experience of litigation something more alien to modern litigation than it may actually be. Cohen compares Athens to feuding societies in which, when courts are introduced, they “become a new arena where … conflicts are played out” (87). It is not entirely clear, however, what qualifies a society as a feuding one, especially since “feuding litigants and malicious prosecutions pose problems for all legal systems” (115).

Is modern American litigation so very different? Surely American litigants, like their Athenian counterparts, often view the law as an instrument in their interpersonal struggles, while simultaneously assuming that justice is on their side. American litigation too can be viewed as a manifestation of aggression and counter-aggression: in America as in ancient Athens, a common response to a lawsuit is a countersuit. In modern and ancient contexts, honor and reputation are powerful motivations to litigate. 3 American jurors, like their Athenian counterparts, moreover, are inclined to sympathize—within limits and with regional variations—with what they perceive as “manly” action on the part of litigants. One might argue, therefore, that the difference between the modern and ancient contexts is more one of degree than of kind. Athenians were more sensitive to affronts to honor and reputation than most modern Americans, and were therefore more likely to pursue litigation to avenge themselves when insulted. Furthermore, Athenian jurors were more likely to be receptive to litigants’ justification of their suits in court as the pursuit of vengeance. Modern American litigants, by contrast, speak of “vindication” rather than “vengeance.”

Cohen provides a possible means of distinguishing between these two settings in his suggestion that in Athens (as in early modern England) the “participatory nature of the legal system made it an open field for those interested in using the courts as an instrument in inter-personal conflicts” (116). By contrast, one might infer, in a modern American setting, the role of public prosecutors in criminal suits and plaintiffs’ lawyers in civil suits discourages the pursuit of private feud in the courts. This may well be true of the role of public prosecutors (one can still bring a false claim to that prosecutor, however). But it is not clear that plaintiffs’ lawyers keep their clients from engaging in feuding behavior.

While in my view Cohen presses his model too far and overestimates the alterity of Athenian litigation, on the whole I found this to be a provocative work. All scholars interested in Athenian law and values will want to consider it closely.

  • [1] V. Hunter, Policing Athens: Social Control in the Attic Lawsuits, 420-320 B.C. (Princeton 1994) 55-66. [2] For a different perspective on this issue, see now E. M. Harris, “Law and oratory,” in I. Worthington, ed., Persuasion: Greek Rhetoric in Action, 130-50 (London 1994). [3] See, e.g., P.C. Hoffer, “Honor and the Roots of American Litigiousness,”The American Journal of Legal History 33 (1989) 295-319.