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Legal Space in Classical Athens

Author(s): Christopher Carey


Source: Greece & Rome, Vol. 41, No. 2 (Oct., 1994), pp. 172-186
Published by: Cambridge University Press on behalf of The Classical Association
Stable URL: http://www.jstor.org/stable/643012
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Greece& Rome, Vol. xli, No. 2, October1994

LEGAL SPACE IN CLASSICAL ATHENS


By

CHRISTOPHER

CAREY

Like many features of democratic Athens, the legal system is both


strikingly familiar and disturbingly alien to the modern reader. The
principle of trial by a jury of laymen is one which, though intermittently
criticized, remains the basis of the decision-making process in modern
Britain. At the same time, the size of the jury panels, their powers, the
reliance on volunteer prosecutors, the use of an exchange of speeches as
the method of presentation, these and other features diverge significantly
from accepted practice in our own courts.My concern in this paper is with
one striking divergence, the way in which the relationship between the
legal system and society at large is conceptualized,and with the problemsit
raises.In modern developed societies the law and the lawcourts are fenced
around with procedural, psychological, and in some cases constitutional
barriers. The law itself is a self-contained system, distinct from other
coercive forces, and perceived as separate from the political life of the
community.Proceduresand participantsin the courts are given a degree of
protection from constraintswhich apply elsewhere, in order to ensure that
all relevant information is disclosed and that a verdict is given on the facts
of the case, taken as far as possible in isolation from the rest of the lives of
the participants and the community. All these barriers are absent in the
context of classical Athens. In practice and in conception the law and its
administrationare in some important respects indistinguishablefrom the
life of the community in general.
One barrier regardedby most moderns as essential is that between the
law and politics. As a doctrine this goes back to the eighteenth-century
French writer Montesquieu, who in his work L'espritdes lois defined three
areas of government, the executive, the legislative, and the judiciary.He
arguedthat the avoidanceof despotismrested on the preventionof any one
individualor body from controlling all three, the principlebeing that each
should act as a check on the others.The doctrineis known as the separation
ofpowers. Montesquieu's principle is built into the American constitution,
where the executive (the President) and the legislature (Congress) have
distinct functions, and the judiciary is theoretically independent of both.
Although there is no such formal separation of functions in Britain, it is

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173

generally held that the courts should be politically independent.In classical


Athens the lawcourts and the assembly were distinct bodies, in that the
courts were not at this period sessions of the assembly;1and the courts were
not responsible to the assembly.There is however no evidence for a belief
in ancient Athens that the courts should be separatedfrom or placed above
politics. Quite the reverse. The jury courts were indispensable to the
political process. The vetting of public officials involved the courts. There
were ten opportunities per year for the assembly to vote officials out of
office, and expulsion would normally lead to a trial.2The procedures for
legislation used legal action as a brake on the law-making process.
Legislation and its proposer were exposed to challenge for illegality by
means of prosecution of the proposer, with penalties upon conviction.3In
the fourth century B.C. the repeal of old laws and framing of new laws
involved panels of jurors.4In addition, politicians used the lawcourts as an
arena in which to continue struggles begun in the popular assembly.This
politicization of the lawcourts arises naturally from the importance of
access to the law in the democratizing process; Aristotle (Ath.Pol. 9.1)
regardstrial by jury as a major step towards popular control of the political
process. But the politicization of the courts is not just a survival in the
classical period;for the courts became morerather than less political with
time. The regular use of panels of jurors for the legislative process is a
product of the developed democracy.The use of the courts in the vetting of
magistrates was increased during the classical period;the Ath.Pol. tells us
that a system which gave the council of 500 complete responsibility for
vetting the newly selected councillors and Archons was subsequently
supplemented by an additional stage, appeal to the jury courts in the case
of the bouleutaiand an automatic second hearingbefore a jury-courtin the
case of the archons.5In the fourth century we even find the jurorsvetting
plans for public buildings and other contracts, where it is felt that officials
might show favouritism.6
We are used to the notion of the courts as a privilegedplace. Proceedings
in contemporaryBritishcourts are subjectto absoluteprivilege.Statements
in court by those involved in the proceedingsare exempt from legal action.
There was no privilege in this sense in the Athenian courts.One courtroom
speech surviving from the classical period is a suit for slander arisingfrom
a statement made by a defendant in court.' The defendant in question.
Theomnestos, who was charged with addressing the assembly despite
having thrown away his shield in battle and so renderedhimself ineligible
to exercise citizen rights, asserted that one of the witnesses for the
prosecutor had killed his own father. Allegations of homicide fell into the

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category of expressions forbidden by law and susceptible to action for


slander; so Theomnestos found himself prosecuted again, this time for
slander. However, the allegation of throwing away one's shield in battle
was also one of the accusations covered under the law of slander, and
accordingly Theomnestos prosecuted one of the witnesses in the original
trial, Dionysios, and possibly the prosecutor Lysitheos also, for slander
(successfully, at least in the case of Dionysios). Parties in court are afforded
no more protection from actions for slander than the man in the street.
There is another, informal, aspect to privilege in modern courts. We are
used to the notion of the court as a place where anything may be discussed;
again we have a clinical conception of the legal system. In cases of rape or
murder, for instance, it is normal for the most intimate or even disturbing
details to be presented to the jury, details which might give offence in the
world outside. The same is true of civil cases. When a South African
journalist brought a recent action for libel, the court was treated to an
intimate and sometimes hilarious account of the sex life of the leader of a
right-wing political party. There were in ancient Athens no formal rules
limiting the kind of thing which might be said in court. In practice this
meant not that anything at all might be said in court but that the rules for
propriety in court were those of polite conversation. In 345 the politician
Aischines attacked another politician Timarchos for having been a
prostitute in his youth, an activity which led automatically to the loss of
citizen rights.In any equivalentmodern trial it would be necessaryto prove
that specific acts had been committed. Aischines however in his speech for
the prosecution8never tells us exactly what Timarchos has done. We are
left in no doubt that his conduct has been disgusting.But Aischines refuses
to dwell on unsavoury details.Likewise, in the prosecution of Neaira a few
years later for illegally living in marriage with an Athenian citizen,9
although much is made of Neaira's earliercareer as a prostitute in order to
blacken her character, the presenter of the case for the prosecution,
Apollodoros, avoids excessive precision. In both cases the prosecutor is
constrainednot by rules but by considerationsof good taste. More striking
still to the modern reader are a number of occasions on which speakersin
court, while referring to shocking or indecent language or behaviour,
explicitly refuse to give details, like the following account (from
Demosthenes) of an invasion of his house by a man named Meidias:'And
then in front of my sister, who was in the house then and still a girl, they
said disgraceful things, the type of things their sort would say (I could not
be induced to repeat to you any of the things said then) and to my mother
and me and all of us they uttered insults both speakable and

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unspeakable'.10It is acceptable to withhold information in court which


would offend decent people. In theory of course this type of constraint
looks like a terriblehandicap.In practice it is an enormous boon. Litigants
are well aware that if the jurors are left to imagine the details for
themselves they will come up with something far more shocking than the
actuality. Speakers are also able to exploit such modest silence in order to
present themselves as men too decent to utter filth, while the opponent
emerges as someone who is prepared to do things which decent people
shudder even to utter.
This tacit conception of the courts as an extension of decent discourse is
so obvious, so much part of the daily reading of the classical scholar, that it
is easily overlooked. Thus, we find in Hermogenes a nugget alleged to be
from the speech against Neaira and reportedly obelized 'by some'; the
passage in question describes Neaira as having 'earned her living from
three holes', a graphic reference to her activities as a prostitute. Blass
inclined to the opinion that the passage belonged in ?108 of the speech.It is
however exceedingly difficult to imagine so graphic a phrase being uttered
in the context of periphrasis and evasion which makes up the allegations
against Neaira.IIWithin the last couple of years two writers have attacked
the prevailingview of the treatment of adulterersin classical Athens.12 We
know that the law of Athens gave a man considerable powers over any
male whom he caught having illicit sex with a woman under his control and
protection. This included the right to kill, or to subject the guilty man to
physical abuse. The textbooks tell us that popular punishments included
thrusting a radish into the anus of the offender or plucking out his pubic
hair using hot ashes; there is some evidence that fish could be substituted
for root vegetables according to taste (a fish with sharp spines appears to
have been favoured). However, the evidence for the classical period all
comes from comic plays, and it is now being suggested that we have been
misled, mainly because prose writers, including orators when mentioning
adulteryin court, never mention radishes,spiky fish, or hot ash.The reason
for this silence however is not that the comic writers have misled us but
that this is exactly the sort of detail which would not normally be
mentioned in an Athenian court. We should expect coyness and evasion;
and that is what we get, in the orators as in other prose sources.
A second way in which the jury courts are not separatedoff procedurally
from the rest of the life of the city and the participants in the trial is the
question of relevance. Modern courts have precise, sometimes highly
artificial,definitions of relevance.A line of questioning may be stopped by
a judge if it has no bearing on the case. Statements which are for one reason

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or another impropermay be struck from the record.In the U.S.A.evidence


which is obtained without due process may be excluded from the trial. In
British courts the past offences of a defendant may not normallybe used as
evidence. In classical Athens however there was no significant attempt to
limit the information availableto the juries.The only exception in Athens
was the Areopagos, the chief homicide court, where procedural rules
forbade the introduction of matters 'outside the issue'. Aristotle makes
clear that this was unusual not just in Athens but in Greece in general.13
The result of the absence of such a restriction may be seen in surviving
oratory.14 Speeches delivered in court are full of emotional appeal
(plaintiffs stir the jurorsto anger, defendants appeal for pity - it was common in fact for defendants to produce their children in court, weeping or
begging for mercy). Speeches are also full of reference to the civic virtue of
the litigant as a claim for generous treatment, and equally full of character
assassination against the opponent. A whole range of allegations can be
made, crimes of theft or violence, sexual misconduct such as adultery,base
or servile extraction,political misconduct or unsoundness.The trial is thus
placed squarely in the context of the lives of the parties concerned. This is
equally clear in the case of witnesses. To us, witnesses gain in credibilityin
direct proportionto their distance from the parties concerned.The chance
witness, the outsider, seems more crediblethan someone closely connected
with plaintiff or defendant.Athenians however made a point of supplying
themselves with friendly witnesses whenever they were engaged in activity
which might have legal consequences."1A recent detailed study of the
identity of witnesses in actual trials confirms that in general the preference
is for close associates, members of family or community, rather than
strangers.16 Its author, Sally Humphreys,concludes that the organs of state
justice are concerned to know how the issues in dispute are evaluated by
the community most closely associated with the parties concerned.
In addition, the jurors are often asked to consider the effect of the
verdict on themselves, their families, and the city before casting their
vote.17The trial is thus placed firmly in the lives of jurors and community
at large. This conception of the courts is particularly clear in trials for
military misdemeanours. We know that people accused of desertion in
battle or draft-dodgingwere tried before a jury consisting of citizens who
had served on the campaign in question;the trial was presided over by the
generals who had led the campaigns."8
The appeals to emotion mentioned earlier highlight another aspect of
the system. The implicit assumption in the modern court is that the jurors
will arrive at a dispassionate decision. The approach is implicitly clinical.

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The Athenian assumption is the reverse. The jurors are asked to become
emotionally involved; they are often explicitly invited to feel anger or
resentment, even hatred, for the speaker's opponent.It is assumed that the
jury respond to what they hear in court exactly as they would respond to
the same events in the outside world.This is not merely a matter of theory.
We know from a number of sources that Athenian juries were highly
demonstrative.19 They were inclined to shout their approval and disapproval of what they were hearing. It is as well here to bear in mind the
size of the juries. Even the smallest jury-panel, a mere 200, could raise
quite a racket. One speaker in the fourth century complains that at a
previous trial his opponent prejudicedthe jurorsso effectively against him
that they would not listen to a word he said.20 He may be lying, but presumably on occasion it was very difficult for a litigant to make himself
heard above the noise. In part this behaviour pattern arises from the conception of the juriesas the Athenian people sitting in judgement.Under the
democracy the people have sovereign power. But it reflects the way the
legal process is felt to relate to the outside world. The jurorsreact in court
as right-thinkingmen should.
I turn now to the question of proof. In criminal cases in England guilt
must be established beyond reasonable doubt. In order to convict, the
jurors must be satisfied by the evidence that the accused is guilty as
charged.This standardis clearly both more rigorous and more precise than
that which is applied in most non-judicialcontexts. The standardof proof
for civil cases is less demanding;balance of probabilitysuffices. In Athens
the criteria for decision-makingwere never spelled out. Here as elsewhere
jurisprudencein Athens is implied rather than explicit. We can however
draw some conclusions both from Aristotle's discussion of proofs in his
treatise On Rhetoric and from observable practice in the orators. In the
Rhetoric Aristotle divides the means of proof into two categories,
'artificial' or 'artful' and 'inartificial' or 'artless'.21By 'inartificial' proofs
he means roughly what we would call direct evidence; that is, depositions
from witnesses, statements from slaves under torture (no evidence from a
slave could be admitted unless it was extracted under torture), contracts,
etc. By 'artificial' proofs he means those which are produced by the
rhetorician's art: argument, appeal to emotion, and moral character (the
image projected by the speaker).What is striking about his list is that he
sees no fundamental differentiation between proof in the lawcourts and
proof in other contexts. The same techniques are at work in the courts and
in the political arena or anywhere where an audience must be convinced;
and by implication the standard of proof is the same in the courts as in

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other contexts. Aristotle places the emphasis in his discussion on the


rhetoricalmeans of persuasion, rather than on the testimony of witnesses
etc. This attitude is observablein contemporarypractice.There is in fact a
striking development during the classical period in this respect. In the fifth
century B.C. the earlier practice places the emphasis on narrative (the
speaker's statement of the facts of the case) and supporting testimony.
However, during the fifth century there was a remarkablegrowth in the
study of rhetoric, which became an integral part of advanced education in
the developed parts of Greece. A particularly important element in this
new science was argument from probability;that is, argument from the
behaviourof man as a type to the behaviourof individualhuman beings.By
the end of the fifth century this type of proof (rhetoricalproof) has begun
to play a majorrole in the presentationof a case in court, as practitionersof
the new science realize that argument from probability can be used to
damage a seemingly watertight case based on evidence. The result of this
tendency is an increased emphasis on what we would call circumstantial
evidence, as arguments are drawn from the general behaviour of one's
opponent to demonstrate his lack of faith in his case, or from one's own
behaviouror circumstancesto prove that claims made by the opponent are
inherently improbable. The politician Timarchos, mentioned earlier as
being prosecuted for having prostituted himself, was convicted largely on
circumstantial evidence. There is then a further step during the classical
period away from a potentially clinical (and to us more acceptable)view of
the legal process towards one based on the type of reasoning used in
everyday life.
Thus the courts are seen in a different light in the Athenian context.
Where we surroundthe courts with barrierswhich set trials apart from the
rest of society, and treat the legal process as a distinct and separateactivity,
the Athenians see the courts as part of a largerpicture.They are part of the
political life of the city; part of the life of the individuallitigants, so that a
litigant's whole life is relevant to the trial;they are subject to the ordinary
rules of decency and the ordinaryrules of law.
What emerges thus far is a seamless joint between the courtroomand the
life of citizen and city. The same picture emerges when one looks at the law
itself. This is especially clear in the area of language. For us the law has its
own terminology, often unintelligible to the layman. This is not true for
Athens. The laws were passed by an assembly of ordinary citizens. As a
result there is a marked absence of specifically legal terminology. The
language of law is in general the language of everyday life. This is
accentuated by the structure of Greek laws. Laws tend nowadays to be

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divided into 'substantive' and 'procedural'. 'Substantive' laws embody


rights and prohibitions:'procedural'laws deal with legal procedures to be
adopted in given circumstances.Most Athenian laws were procedural;that
is, they tended to define legal remedies and responses (what to do when
assaulted, for instance), not to regulate behaviour explicitly. The same is
true of Roman law. But with a significant difference.Roman laws received
further definition from the activities of legal experts who gave opinions on
the applicabilityof the law in specific hypotheticalcases. The Atheniansdid
not approve of professionalism in legal contexts, and there was therefore
no culturalbase for the development of such activity.There was moreover,
no concept of precedent, so that each jury was unfettered by the decisions
of preceding juries.Consequently, in many important cases, the definition
of an offence was imprecise.The law on hybrisis a good case in point. We
are all familiar with the idea of hybris as a state of mind. But in Athens it
was also an offence. The Athenian law on hybris began: 'If someone
commits hybris. ..'22 But it does not define the offence. As a result, there is
still considerabledebate about the definition of hybris.In all probabilitythe
definition was elastic, depending on the presentation of a particular case
and the receptivity of a particularjury. The point is that hybrisin the law
was largely identical with hybrisin ordinaryspeech.
My last point with reference to the law concerns the extent to which the
law itself is privileged.In modern developed societies law is a self-contained
system which has authority over other regulatory systems. We are used to
discrepancies between law and justice, law and morality, and to the
overriding power of law where there is conflict. The Athenians however,
from the point when they acquiredwritten laws, began to talk of another
parallel system, 'unwritten laws', a system of traditional values whose
breach is met not (or not primarily) by legal penalties but by social
sanctions.Aristotle, when advising on lines of argumentto deal with direct
evidence, urges litigants when the law is against them to argue for the
paramount importance of the unwritten laws.23 It would be a mistake to
conclude from this advice that the Athenians saw a fundamental conflict
between written and unwritten law. Although the Athenians were well
aware that the formal systems of the polis and the demands of morality
could come into conflict, an awareness expressed most vividly in Soph.
Ant. 450ff. (part of which is quoted by Aristotle at R. 1375a), written and
unwritten law are seen more often as complementaryand compatiblethan
as competing.24There were however areasin which strict applicationof the
laws and more general moral considerations could diverge, in particular
equity and gratitude.Aristotle at R. 1375a-b associates equity (epieikeia)

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with the unwritten laws as a counterbalance to strict application of the


written laws, and this is a factor in the decision-making process which
figures in surviving forensic speeches. That the jurorsmight temper strict
legality with equity is clear from the pleas for pity from men on trial.
Likewise, Greek morality placed great emphasis on reciprocity, on
requiting favours and wrongs, and we get both direct and indirect appeals
for charis (gratitude) in forensic speeches, based on the public service
record of the litigant. The jurors' oath in Athens bound the jurors to vote
according to the laws, but where the laws gave no guidance (literally
'concerning matters on which there are no laws') to vote according to
conscience (literally 'according to [my] most just opinion'). The laws are
not the only canon for decision making. Procedurally too laws are not
privileged.They are treated as a category of evidence, and like all evidence
they are presented by the litigant (though read out by the clerk of the
court) alongside depositions, contracts, etc.
It would however be a mistake to suppose that there are no conceptual
barriers surrounding the lawcourts. The laws and the lawcourts mesh
seamlessly with the activities and values of society as a whole and the
immediate participants.But the lawcourts themselves are always seen as a
last rather than a first resort. Procedural steps were in place to allow
compromise decisions and to penalize casual recourse to litigation; and
from any number of statements in the orators it is clear that there was a
general disapproval both of habitual litigants and of those who rejected
compromise.The laws themselves are also in one importantrespect placed
at a remove. There is a recurringsuggestion that the laws are for consultation only as needed, rather than out of interest or for future use. This is
clear for instance in passages where litigants accuse their opponents of
'excessive' knowledge of the laws, and when people discussingthe laws feel
compelled to excuse their legal knowledge.25Part of the answer here of
course lies in the structure of the laws. Where the laws deal primarilywith
proceduresratherthan commands and prohibitions,knowledge of the laws
indicates a desire to utilize them in the lawcourts, which in turn suggests a
quarrelsomeand manipulativedisposition.Knowledge of the laws is a sign
either of bad luck (finding oneself in a dispute) or character defect.
A system which is envisaged in this way inevitably presents problems
both for evaluation and for understanding.I shall confine myself to the
easier question of how one understands the role of law and the decisionmaking process.
One general problem arises from the cultural attitudes to proof. In the
context of the modern awareness of the limitations of circumstantial

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evidence, the Athenian fondness for rhetorical means of persuasion may


seem misguided, even perverse.It suggests an audience more interested in
lively oratory than hard fact, the audience describedso vividly by Kleon in
Thucydides' version of the Mytilenaean debate (3.38). It is important
however to bear in mind that rhetoric was more than a way of arguing.It
was a way of thinking, based on a confident belief that human conduct can
be understoodin terms of the applicationof general principles.Seen in this
way, it has much in common with psychology. To the Greeks therefore it
seemed a more reliable tool than it may seem to us. It is perhaps worth
adding that it was probably very difficult to win a case without any
supporting testimony or documentation at all. Rhetoric can only take you
so far.
Another problem arises in the area of the language of law. Where the
laws do not spell out the obvious, the outsider is likely to ask them the
wrong kind of question. A few years ago I tried to establish the status of a
foreign woman living in Athens when her husband was given Athenian
citizenship.26The question arises because the decrees granting citizenship
to male aliens ignore their wives. My initial approachwas to enquire what
the legal position was, by which I meant 'what did the law say?' It is
unlikely that the law mentioned the wives. Even rephrasing the question
does not help much. If one asks:'What were the rights of a male alien who
was enfranchisedand how did this affect the status of his wife?', the answer
is again, in all probability,that the law did not go into detail.His rightswere
those of an Athenian citizen, and these in turn were defined in usage rather
than in law. The result of my enquiry was a (highly subjective) answer
based on conjecturedusage rather than the letter of the law. In arrivingat
more useful questions, the emphasis by a number of recent writers on legal
anthropologyis potentially very valuable, since it offers alternativemodels
for dispute settlement and for the conception of law; it also compels us to
make explicit some of our own assumptions which get in the way.27
However, a word of caution is needed, since most of the societies on which
studies are available are less advanced socially and politically than ancient
Athens.
The greatest difficulty, however, attaches to the task of differentiating
elements which the Athenians chose not to separate. The modern scholar
needs to gain an idea of the relative importance of different factors in the
decision-making process in order to understand the process. This is
particularly true of the relationship between factual issues and matters
such as character. The potential for misunderstanding here is great. A
recent study subsumes the operation of the legal system in Athens under a

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general model of competition.28We know that the political process was


highly competitive. There were no political parties in the modern sense.
Individualpoliticianscompeted for influence in the assembly.Competition
also played a major role in religion, most importantly in Athens in the
dramatic and musical festivals, which consisted of competitions between
playwrights/producers. In the same way, according to this model, the
courts awardeddecisions to successful competitors on the basis of matters
irrelevant to the case at issue. This view is based on the tendency for
litigants to offer their political and other services to the city as part of their
case, as a claim on the good will of the jurors, and to present their
opponents as social misfits and habitual criminals.It is based on a view of
Greek culture, prevalent in recent years, which focuses attention on the
competitive aspect to the exclusion of other equally important features.
There is in fact nothing inherently implausiblein a judicialmodel based on
competition. The Eskimo Nith songs seem to offer a good potential
parallel: under this system disputants contend with abusive songs and
dance, and the winner is determined by public acclamation. Similar
procedures are described with reference to the Tiv of north-eastern
Nigeria.29Certainly, the jurors will have taken account of issues such as
character and career. At the most basic level they will have allowed such
issues (where they could verify from personal experienceor could accept as
plausible the information presented) to influence their view of the
credibility of a litigant. Given the inflexibility of the sentencing process
(either fixed penalties or a choice by the jury between penalties proposed
by the opposing parties), they will have taken the general character of a
litigant into account in reaching a verdict on the question of guilt, as the
only way to introduce an additional degree of flexibility into the legal
process. And no doubt on occasion, in the case of a notorious figure, they
will have allowed their hostility or their enthusiasm for an individual to
dictate their verdict.But it is a mistake to suppose that as a general rule the
main issue becomes an appendix at the trial.A crude reading of the orators
shows that, in general, information about the career and character of the
disputants plays a much smaller role (quantitatively)in Greek trials than
the main issue. It is moreover important to note that we do not find
speakersin court admitting that their case is weak and asking for a verdict
in their favour on the basis of factors outside the case. It was evidently
difficult to win a case on character-assassinationand self-praise.30 The
competitive model also pays too much attention to political cases and not
enough to the private disputes which presumably made up either the
majority or at least a substantial proportion of the cases heard by the

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183

courts. Even in political cases it is a dubious model for the functioning of


the system as a whole. When Demosthenes prosecuted his political enemy
Aischines in 343, Aischines was on the way out as a major figure and
Demosthenes' star was rising. Aischines won, just. A few years later, the
successful politician Lykourgos threw his enormous prestige into the
prosecution of a rather shabby private citizen on a capital charge.
Lykourgos lost, just. It would be naive to suppose that cases such as these
were settled simply on the basis of prestige.
A related issue is the treatment of law as one of a number of coercive
systems rather than the sole system. As with the factual issue, the appeals
by litigants, implicit or explicit, to values which are parallel or complementary to the written laws may suggest that the Athenians had little
respect for the laws, despite the fact that the Greeks regarded respect for
impersonallaw as one of the main features which distinguishedthem from
non-Greeks.This is not the case, however. The failure to differentiate law
completely from other systems does not mean that all coercive forces have
equal value. Again, it is to be noted that such considerations play a
supplementaryrather than a central role in actual speeches. This does not
entitle us to dismiss such considerations;but it does suggest that in general
they played a significantlysmaller role in the decision-makingprocess than
the question of legality in most trials. It is perhaps worth drawing a
distinction here between trials involving public figures and other cases. For
Athenianswithout a public profile the possibilityof advancinga distinctive
record of liturgies and other public service was presumably limited.
Likewise, the inclusion of laws alongside depositions does not mean that all
direct evidence introducedin court is of equal importance.The juror'soath
indicates clearly that although in presentational terms the laws are not
distinguished from other forms of direct evidence, they have a fundamental importance denied to items such as depositions. And although the
oath allowed for decisionsin areas where the laws gave no guidance, almost
all cases which came before the lawcourts were based on accusations of
breaches of specific laws.
My final point relates to witnesses. A couple of studies have recently
emphasized the importance for the legal process of the identity of
supporting witnesses as distinct from what the witness has to say. This
importance emerges clearly from the way in which witnesses are selected,
as intimates of the litigant rather than complete strangers,and the evident
importance of witnesses who enjoyed a degree of prestige and popularity.
There is much of value in this approach.However, it would be a mistake to
conclude that the identity of the witness is more important than the

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LEGAL SPACE IN CLASSICAL ATHENS

testimonyitself.3'Witnessesare alwaysrequiredto attesta fact basedon


personalknowledgeor experience;they are never requiredsimply to
expresstheirsupportandarethereforenot merelya presence.It is truethat
someof the factsattestedarenot directlyrelevantto the issue,as hasbeen
pointedout;butthisis merelyanotheraspectof the differentconceptionof
relevance.Since,as ancientrhetoriciansrealized,the taskof persuasionis a
complexone, involvingthe emotionalresponseto the heareras well as the
cognitivefaculties,self-evidentlythe prestigeor moralstatureof a witness
will affect the readinessof the jurorboth to believehim and (througha
halo-effect)those associatedwith him andto allowconsiderationssuch as
process.But this does not mean
equityto influencethe decision-making
that the factualaspectof a witness'srole is of secondaryimportance.A
proceduraldetailis significanthere;a witnesscan declineto testifyon the
groundsthat he was not present or knows nothing of the matter in
question.32More significantly,there was an action in Athens for false
witness.This was broughtby the litigantagainstwitnessesfor the opposition who gave false evidence.It was howeveravailableagainstthosewho
wereallegedto havelied;it was not enoughto havesupportedthe opposition.In its implicitviewof the roleof witnessesthereforethe systemplaces
the emphasison mattersof fact.
These observationshighlighta familiarproblemfor thosestudyingany
aspectof the past.The Athenianlegalsystemis bothfamiliarand aliento
us. It convergeswith anddivergesfromour own experience.The problem
for the scholar is the familiar one of negotiating distance.Implicit
impositionof ourown standardsleadsto confusedandfruitlessquestions.
Too great an emphasison distancerisks oversimplifyingthe Athenian
systemand turningthe courtsinto an area for competition,a place for
settlingfeuds.The Atheniansdrewtheirboundariesin wayswhichdiffer
from ours. They blurred distinctionswhich to us seem (sometimes)
Theirverdictsmightbe colouredby factorsoutsidethe issue;
fundamental.
for
instance,decideto temperstrictjusticewith mercyif a
they might,
defendant'spast life warrantedit; they mightallowthe prejudicesof the
moment on occasion to overridereason, as of course modern juries
sometimesdo. But ultimatelytheircourtswere intendedto arriveat just
decisions;decisionsbased on the laws;decisionsprimarilyon mattersof
fact; decisions on specific cases which came before them. In some
importantrespectsthey arenot so verydistantafterall.33

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185

NOTES
1. Though from the language used by speakers addressingjurycourtsit appearsthat the Athenians
imagined them as equivalent to sessions of the assembly;speakers addressingthe courts regularlyuse
the second person when referringto policy or legislative decisions of the assembly.
2. Arist.Ath.Pol. 43.4, 61.2.
3. See in general H. J. Wolff, 'Normenkontrolle'und Gesetzbegriffin der attische Demokratie
(Sitzungsberichteder HeidelbergerAkademie, 1970), M. H. Hansen, Thesovereigntyofthe people'scourt
in Athens in the fourth centuryB.C. and the public action against unconstitutionalproposals (Odense,
1974).
4. For discussions see D. M. MacDowell, JHS 95 (1975), 62-74, M. H. Hansen, GRBS 26 (1985),
345-71, P.J. Rhodes, CQ 35 (1985), 55-60.
5. Ath.Pol. 55.2, 45.3.
6. Ath.Pol. 49.3.
7. See Lys. 10.1, 12, 24-5, 30.
8. Aischin. 1.
9. [Dem.] 59.
10. Cf. Dem. 54.9, 17, Aischin. 1.55.
11. See F. Blass, Die attische Beredsamkeit3(repr. Hildesheim, 1962) III.1, 541 n. 1, Demosthenis
orationes(Leipzig, 1891) III, lxii-lxiii; see furtherC. Carey, Apollodoros,Against Neaira. [Demosthenes]
59 (Warminster,1992), pp. 141f.
12. D. Cohen, Zeitschriftder Savigny-StiftungfuiirRechtsgeschichte,romanistischeAbteilung 102
(1985), 385-7, J. Roy, LCM 16 (1991), 73-6. See further C. Carey, 'The returnof the radish', LCM 18
(1993), 53-55.
13. Arist. R. 1.5.1354a.Accordingto Ath.Pol. 67.1 the litigants in the ordinaryjurycourtsalso swore
to keep to the issue. The date of this provision is unknown.If it predatesthe 320s, it seems to have little
effect on practice in the courts.
14. See the references collected in C. Carey/R. A. Reid, Demosthenes:selectedprivate speeches
(Cambridge, 1985), pp. 8ff.
15. Isai. 3.19, Dem. 57.14.
16. S. C. Humphreys in The discourseof law, ed. S. C. Humphreys (London, 1985), pp. 313-69,
especially 350.
17. See Carey/Reid (op. cit., n. 14 above), pp. 10f.
18. Lys. 14.5, 15.1.
19. See in general V Bers.'Dikastic thorubos',in Crux:essaysin Greekhistorypresentedto G. E. M. de
Ste Croix, ed. P. A. Cartledge/F. D. Harvey (Exeter & London, 1985), pp. 1-15.
20. Dem. 45.6.
21. Arist. R. 1.2.1356a.
22. For earlier discussions see Carey/Reid (op. cit., n. 14 above), pp. 75 f. (to which add N. R. E.
Fisher, G&R 23 (1976), 177-93, 26 (1979), 32-47), and see further D. M. MacDowell, Demosthenes
AgainstMeidias(Oration21) (Oxford, 1990), pp. 18 ff., N. R. E. Fisher, 'The law of hubrisin Athens', in
Nomos: essays in Athenian law, politics and society, ed. P. Cartledge/P. Millett/S. Todd (Cambridge,
1990), pp. 123-38, and Hybris (Warminster,1993), pp. 36ff., O. Murray, 'The Solonian law of hubris'
in Nomos, pp. 139-45.
23. Arist. R. 1.15.1375a-b.
24. Thuc. 2.37.3, Lys. 6.10, Plat. Leg. 793a-d, Dem. 18.275, Arist. E.N. 1180a.
25. See e.g. Dem. 57.5, 54.17, Hyp. Athen. 13.
26. See C. Carey, 'Apollodoros'mother:the wives of enfranchised aliens in Athens', CQ 41 (1991),
84-9.
27. See in particularS.Todd/P. Millett, 'Law, society and Athens', in Nomos:essaysin Athenian law,
politics and society, ed. P. Cartledge/P. Millett/S. Todd (Cambridge, 1990), pp. 1-18.
28. R. Garner, Law and societyin classicalAthens (London & Sydney, 1987), pp. 58ff.
29. For Eskimo and Tiv procedures see S. Roberts, Order and dispute: an introductionto legal
anthropology(Oxford, 1979), pp. 59f., P.J. Bohannan,Justice andjudgementamong the Tiv (London,
1957), pp. 142ff.
30. Garner (op. cit., n. 28), p. 63 grossly oversimplifiesin stating:'the education of an Atheniangave

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186

LEGAL SPACE IN CLASSICAL ATHENS

him good reason to expect that even if he had done what he was chargedwith in court, he could ask to
be acquitted or to win the case on the basis of past excellence in achievement and service'.
31. S. C. Todd in Nomos: essays in Athenian law, politics and society, ed. P. Cartledge/P. Millett/S.
Todd (Cambridge, 1990), pp. 30f. Humphreys (op. cit., n. 16 above) pp. 323 f. is more cautious; she
notes: 'The theory - though perhaps not the practice - in modern western courts is that what matters
about a witness is not who he is but what he says. As we shall see, this theory does not apply to Athenian
courts, where the content of witness testimonies is often unimportant or irrelevant'.Her parenthetic
riderhighlights a problemin comparisonsbetween modern western systems and that of ancient Athens.
Since we lack direct evidence for the debates which led to specific procedural developments,
jurisprudencein the Athenian context is for the most part either implicit or embodied in statements by
speakers in court; the latter in turn are based on a combination of common sense and rhetorical need.
When dealing with modern systems we have access to evidence for the rationalebehind proceduresand
to a substantialbody of specialist jurisprudence.Accordingly,we frequently find ourselves comparing
modern theory with ancient practice; the result is often an exaggeration of the divergence and a
patronizing attitude to the Athenian system.
32. See A. R. W. Harrison, Thelaw of Athens, vol. ii (Oxford, 1971), p. 143 f.
33. This is a revised version of an inaugurallecture given at Royal Holloway on 23 February 1993.

NOTES

ON CONTRIBUTORS

HANS VAN WEES:Lecturer in Ancient History, University of


WalesCollegeof Cardiff.
P. J. RHODES:Professor of Ancient History, University of
Durham.
CHRISTOPHERCAREY:Professor of Classics, Royal Holloway,
Universityof London.
R. O. A. M. LYNE:Fellow and Tutor in Classics, Balliol College,
Oxford.
A. S. HOLLIS:Fellow and Tutor in Classics, Keble College,
Oxford.

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