The Athenians did politics differently from Americans, from the British, from the French, and from any other citizens of a modern liberal democracy. Not least among the differences is that the Athenians treated their laws not as absolutely final statements about allowable or intolerable behavior in the polis but as highly respected guides to judgment about what should or should not be tolerated and about who should feel the anger of the citizenry. For years the differences between ancient democracy and modern democratic republics led to much handwringing from scholars. B. B. Rogers, an English lawyer, wrote the following in his introduction to his translation of Aristophanes’ Wasps : “A large assembly can rarely if ever form a fit tribunal for ascertaining facts or deciding questions of law” (London 1906, xxvi-xxvii). And Douglas MacDowell ( The Law in Classical Athens. London: Thames and Hudson. 1978, 44) sometimes commended the orator who “discouraged the irrelevant pleadings and personal attacks … to focus … on the true merits of the case.” “Ascertaining facts,” “questions of law,” “the merits of the case” — these are all working phrases in the Anglo-American legal system and anachronistic when used to discuss law and litigation in Athens. But if we should not use our own legal terms to discuss “the law” at Athens — with “the law” being understood both as the specific set of Athenian laws and as the institutional system that made and enforced the laws — what can we use?
Ten years ago J. Ober ( Mass and Elite. Princeton University Press, 1989) proposed that political authority in Athens was constructed, maintained, and utilized in political rhetoric. Steve Johnstone turns precisely to rhetoric for a new vocabulary for analyzing Athenian law and its role in shaping Athenian culture. In his own words, “the only historical sense in which the law existed in Athens was in and through the rhetoric of litigation” (1). This goes a bit too far since the laws of Athens were also inscribed in stone or wood and displayed in the agora and surely some laws dealt with issues that generated no disputes to litigate, but the idea that the discourse of the courts is the proper source for understanding the psychological force of the law in the lives of Athenian citizens is certainly on target. J. correctly describes the courts as the institutional site where — and litigation as the process through which — specific laws and formulations of justice were made authoritative within the city of Athens. “Because of the adversarial setting [of litigation], opposing speakers always attacked each other’s authority. This sharp dichotomizing of conflict … seems to have entailed a belief that one of the parties spoke the truth and the other lied. Far from being a precondition of speaking in the courts, then, authority was in fact the hoped-for outcome of the trial” (2).
Rhetorical techniques thus become strategies for establishing different forms of authority, and J.’s purpose in the six chapters that follow the introduction is, first, to examine the ways in which five characteristic rhetorical strategies generated authority for individual speakers, for the laws they cite, and for their vision of democratic life and, then, in a sixth chapter, to conclude. Orators regularly invoked the “legislator’s opinion” (chapter one), constructed tightly constrained “judicial narratives” (chapter two), issued challenges for their opponents to take oaths or to submit slaves to torture, which J. cleverly groups together under the rubric of “dares” (chapter three), and employed both appeals to charis (chapter four) and pleas for pity (chapter five). All of these techniques are shown to be, beyond showmanship, interventions in the city’s politics. The strongest and most original chapters are those on “dares” and “pity”; and so more about them anon. Chapter 6 nicely concludes the book by summing up the consequences of the Athenian rhetorical strategies used in litigation. There are many conclusions to be drawn since throughout the book the word “litigation” plays numerous roles — it is sometimes a stand-in for “judicial institutions,” or for “legal culture,” or for the “language of litigation,” and only inconsistently refers to the practice of litigation. But J.’s most important conclusion is that the language of litigation “reproduced and strengthened Athenian democracy: the equality within the citizen body and the hierarchy outside it” (3; cf. 132).
Chapters one and two, respectively entitled “Authoritative Readings” and “Law and Narrative” cover similar material (to the point that chapter one has a section entitled “the dikastic oath and the law” and chapter two has one entitled “the dikastic oath and legal narratives”). In chapter one, J. shows litigants invoking sometimes “the lawgiver” and sometimes the dikastic oath to buttress their arguments for an interpretation of a given law. Attributing laws to an ur-lawgiver, often specified as Solon, allowed litigants to construct nonliteral readings of laws, arguments about the overall logic of Athenian law, and interpretations that stressed the democratic elements of the laws at issue. As for the oath, its injunction to vote “according to the laws” was regularly understood to require juries to side with litigants whose interpretations explicitly upheld the idea that the body of Athenian law taken together should be both consistent and democratic.
In chapter two, J. shows that the need to narrate disputes in legal terms obscured salient features of the conflict that had pre-existed the legal proceedings. Most specifically, he argues that the omissions required by the courts transformed disputes involving men, women, metics, and slaves into stories solely about legally competent men. Apollodorus’ Against Neaira, for instance, transforms a dispute in which the courtesan Neaira plays a central role into a legal case between Phrynion and Stephanos. “Legal narratives not only represented social life, they also affected it…. [T]he law was unable to construct a legal narrative with a woman, Neaira, as its subject.” This conclusion, however, does not really capture the transformation involved when, for instance, two men argue about a woman’s deeds as they do not only in Against Neaira but also in Antiphon’s Against the Stepmother, a prosecution of a woman accused of poisoning her husband; the stepmother is surely still the subject of the narrative, though she does not herself deliver it. Ultimately, institutions, more than the stories, relegate women to legal irrelevance. This demurral aside, J.’s analysis usefully shows how the stories of prosecutors and of defendants diverged. Prosecutors clung closely to the law, defining actions legalistically. Defendants, however, produced either antinarratives, assertions that there was no legal story to tell after all, or counternarratives to compete with the prosecutor’s story. Generally defendants preferred the latter approach.
In chapters three to five, J. presents rhetorical strategies by which speakers attempted to ground their arguments in proofs seemingly external to language: the use of dares, references to the defendant’s character, and appeals to the jury’s emotions. J. groups together as dares disputants’ pre-trial challenges to one another to hold an arbitration, to exchange oaths, and to torture slaves. “A dare was a conventional offer, often made with bravado, to settle all or part of a dispute, depending on the outcome of a specified formally contingent procedure” (73). Setting arbitration on the same level as oaths and torture is unusual but surely captures the shape of Athenian dispute settlement. A daring disputant offered his antagonist a chance to resolve a dispute or to escalate it; arbitration, oaths, and torture were all parts of the pre-trial game of settlement and escalation. Moreover, in dares, as J. puts it, “the claims of justice and truth were decoupled from the outcome” (81). A dispute could be solved without disputants having to achieve a verbal agreement on factual truth.
J. shows in chapter four that litigants, primarily defendants, might ground their arguments in their own character by referring to liturgies performed, past services to the city, and general usefulness. This is the standard treatment of charis. But J.’s arguments about pity and supplication in chapter five are, by contrast, extremely useful and original. Again, defendants more than prosecutors appeal to the jurors’ pity, which J. finds strange: “Yet curiously those who suffered from a violation of the law did not often request the jurors’ pity for this.” This should not be perplexing, however, if we recognize that prosecutors, though not asking for pity, typically made an implicitly parallel request of jurors: that they be angry at the defendant on the prosecutor’s behalf. J.’s analysis of pity thus provides important and previously unconsidered material for understanding how the defendant specifically was positioned in the judicial process. Appeals for pity and the use of supplicating family members are closely tied to cases that concern the continuation of the oikos. Here J. has found a nerve center of the organizational principles of Athenian law, and others would do well to attend to this observation.
My greatest difficulty with J.’s account concerns his treatment of law. He stresses, rightly, that the Athenians connected the use of each single, specific law to a general discourse about coherent and consistent democratic practice. But J. ultimately retreats from this and wishes to set law above the Athenian discourse about politics and justice. Thus he writes: “Speakers did not urge the jurors to disregard the law in the interests of justice, did not suggest that justice alone should inform their decision, did not oppose justice to the law, did not even argue that justice was a necessary supplement to areas not covered by the law.” But how, then, can J. explain the many statements from the orators that suggest that the written law did not, in fact, provide an umbrella sufficiently wide to cover the full area of Athenian judicial decisionmaking? Lysias reaches back to Pericles for the idea that the jurors should act on unwritten law: “You should enforce not only written laws but also the unwritten (about which it is not known who established them) because that way not only men, but also gods are given justice” (Lys. .10-12). And Lycurgus is only one of several orators to exhort his jurors to be legislators: “The reason why the penalty for such offenses has not been recorded is that this kind of wrong-doing has not happened before; nor did anyone think it was likely to happen in the future. Because of this, men, it is especially necessary for you not only to be judges ( dikastas) of present wrong-doing but also to be legislators ( nomothetas)” (Lyc.1.9; cf. Lys. 14.4-5; Dem. 19.232). He is asking the jurors to rely on their ideas of justice, as well as on laws that are already available, in making their decision. So too is Demosthenes when he remarks that: “For those cases for which there are no laws, you have sworn to judge with what is most just in your judgment ( gnome)” (Dem. 39.40). Plenty of evidence suggests that considerations of justice and policy might indeed deflect jurors’ attention away from law.
J. does mention that two litigants supported their cases by referring to the clause in the dikastic oath enjoining jurors to “judge with their most just judgment” and that a third also mentioned it, but, here and elsewhere, he does not provide references for the examples he cites, and so we cannot examine the texts for ourselves or check his assessments of their thrust. Yet the orators’ treatment of the relationship between law and judgment was so nuanced as to necessitate, when interpreting invocations of law and judgment, considering the context of those invocations. The subtleties can be seen in this remark from Demosthenes: “And even if [their case] turns out not to be supported by the laws, but they are nonetheless seen to be speaking with justice and philanthropy, we will withdraw from the case” (Dem. 44.8). Or this remark from Lysias: “From these men, even if you wanted to punish them (to take justice) contrary to the law ( paranomos), you would not carry out justice worthy of the wrongs they did the city” (Lys. 12.82). These last are rhetorical moves on the orators’ parts to reinforce how strong their own legal positions are, but the fact that such arguments can be made shows how different the Athenian discourse about law was from that of modern American courts where the 1992 Federal U.S. criminal jury instructions read: “You will … apply the law which I will give you. You must follow that law whether you agree with it or not” (cited in Abramson, J. 1994. We, the jury: the jury system and the ideal of democracy. New York: Basic Books, 12, 17). The Athenians did not, contrary to J.’s suggestion, try to give their laws this degree of supremacy over the judgments on justice of the citizen-jurors, and a fully nuanced account of Athenian legal practices requires a subtler approach to the texts.
J.’s book makes a genuine contribution to a growing, sophisticated body of literature (e.g. S. Todd, The Shape of Athenian Law. Oxford: 1993; M. Christ, The Litigious Athenian. Johns Hopkins: 1998) that is carving out a new vocabulary for understanding law and politics in Athens. The development of a language for describing a legal culture radically different from our own promises to open our eyes to much that we take for granted in our own judicial system. The work these scholars undertake is not easy, however, for the apparent “naturalness” of our legal system and the pervasive influence of legal concepts on our political and judicial thinking makes it difficult to think outside of them and to develop terms suitable for representing a world very different from our own. Disputes and Democracy — though it ultimately lacks the clarity of exposition needed to establish a new and definitive vocabulary for discussing law in Athens — is rich in material and insight and will provoke much thought and also argument.