Written law, equal for everyone and enforced by people’s courts, was one of archaic Greece’s most enduring innovations. From the seventh century, many Greek communities appointed lawgivers to remedy the ‘‘crooked justice’’ of ‘‘gift-devouring princes’’ (Hesiod Works and Days 38-9). In 594, Athens’ great lawgiver Solon proclaimed that his new statutes were equal for all Athenians, ‘‘lower and upper classes alike’’ (F 36.18 West). The Athenians carefully preserved the axones, the wooden ‘‘axles’’ on which he inscribed his laws; Plutarch was shown their ‘‘meager remains’’ some 750 years later (Life of Solon 25). In the Classical period, the Athenians wrote their laws on marble pillars and displayed them around the city.
Solon also established a people’s court, which became in Classical times the dikasteria (‘‘places for justice’’), to administer justice and enforce the laws. Between 200 and 1,500 citizen judges (dikastai, dicasts) staffed each dikasterion. The dicasts judged after listening to the opposing speeches ( antilogoi) by courtroom litigants and their supporters (synegoroi). The central role of antilogies in the process of adjudication helped spawn the development of forensic rhetoric in the fifth and fourth centuries.
In an oral culture where texts were performed and often fluid, laws were a unique genre: they were written, permanent, and often called authoritative (kyrioi). The ephebes, Athens’ soldier recruits, each year swore ‘‘to obey the officials and the laws. If anyone seeks to destroy the laws I will oppose him as far as I am able myself, and with the help of all’’ (R&O 88 lines 11-16 = Tod 204). The dicasts’ oath began, ‘‘I shall vote according to the laws and the decrees of the Athenian demos’’ (Demosthenes 24.150). Dicasts were often called ‘‘guardians of the laws’’ (e. g., [Demosthenes] 25. 6-7). Litigants and rhetors had the city clerk read out the texts of laws in court. They interpreted these laws but never read out the legal texts themselves, thus making patent the distinction between law and rhetoric. In the later fifth century, the Athenians instituted the graphe paranomon, a public suit for proposing a decree that conflicted with existing laws. When the Athenians collected and republished their laws in the decade after 410, they carefully preserved the archaic wording of older statutes. Officials were forbidden to use ‘‘unwritten laws’’ (Andokides 1.85-87). It was a capital offense for a courtroom speaker to cite a non-existent law ([Demosthenes] 26.24). Reflecting their belief in law, democratic Athenians loved to litigate, and in contrast to other Mediterranean societies, they frequently proclaimed their commitment to law and legal procedure rather than private vendetta (Herman 1996). In Thucydides’ Funeral Oration Perikles proclaims that the Athenians ‘‘do not transgress the law, but obey the officials and the laws’’ (2.37). His words find parallels in many other public texts (see, e. g., Lysias 2.18-19, Andokides 4.19, Aischines 3.6, Euripides Suppliants 429-34). Because of the importance of the law in Athenian litigation, the presentation and interpretation of laws were a major component of many forensic speeches (Harris 1994).
The modern West shares with Athens the administration of justice by written laws, people’s courts, and opposing speeches. Yet despite any historical connections and many similarities, Athenian justice was distinct from ours in important ways. In particular, many modern scholars and some Athenians contend that in reaching verdicts, Athens’ courts did not always follow the law but sometimes their emotions or other considerations not strictly relevant to the case in hand. Extraneous elements were introduced especially in the rhetoric of courtroom speakers. Lysias says that his enemies ‘‘cannot even do what has become the custom in this city, whereby defendants make no defense against the charges, but sometimes deceive you with irrelevant statements about themselves, showing that they are fine soldiers, or have captured many enemy ships’’ (12.38, trans. Todd). In 30.1, Lysias says that even if a defendant seems guilty he could be acquitted if he mentions valiant deeds by ancestors and proves that he had served the city well. Isokrates, a wealthy man, says that in early Athens judges enforced the laws on money lending instead of making use of epieikeia (‘‘decency’’? ‘‘equity’’?) (7.33-4). In [Demosthenes] 25.76 the speaker states, ‘‘before now I have seen some men on trial being convicted by the actual facts and unable to show that they had not done wrong, take refuge in the moderation and self-control of their lives, others in the achievements and public services of their ancestors, or in similar pleas, through which they induced their judges to pity and goodwill.'' The speaker in Demosthenes 44.8 says that ‘‘generosity and justice’’ sometimes triumph over the laws. Lykourgos complains that it is unjust for prosecutors to raise irrelevant charges but ‘‘you judges have granted this possibility to those who appear before you’’ (1.13). In Xenophon’s Apology (or Defense of Socrates) (4), Hermokrates asks Sokrates, ‘‘Do you not see that the dikasteria of the Athenians have often been carried away by a speech and killed those who have done no wrong, or else have often freed the guilty because their speech aroused pity or because they spoke agreeably?'' Such statements can be multiplied.
In Anglo-American courts also, impassioned speeches and personal circumstances sometimes sway jury verdicts. At the same time, verdicts are formally required to be consistent with the law. The judge instructs the jury that if they find that the defendant has broken the law, they must vote to convict. Most conspicuously today, mandatory sentencing reflects an effort to eliminate juridical inconsistencies based on extra-legal factors. On ‘‘jury nullification,’’ Allen (2000: 5-9): ‘‘The 1992 Federal
U. S. criminal jury instructions read: ‘you wid... apply the law which I will give you. You must follow that law whether you agree with it or not.’ And in forty-eight U. S. states judges and lawyers are not allowed to tell the jury that they have the power and legal right to set aside the law.’’
These differences between Athenian and modern adjudication have led to a longstanding scholarly debate whether Athenian justice represented ‘‘the rule of law,’’ or whether, as many recent scholars have argued, the legal resolution of disputes was not so important as other factors. ‘‘Between the judicial, where a man invested with authority and responsibility decides and his decision is enforced, and the political, where a decision is reached and a settlement made as a result of the relative strengths of the two parties to the dispute as they are shown and tested in social action,’’ Robin Osborne (1985: 53) concludes, ‘‘we would do well to look more closely at the possibility that [the Athenian situation] has strong ‘political’ characteristics, rather than assume that it is a modified judicial system without a judge.’’ According to Herman (1996: 12-13), ‘‘it was not the [Athenian] jurors’ concern to find out the truth. Theirs was the task of weighing the relative merits of the arguments they heard with an eye to the city’s best interests... Any idea of ascertaining the ‘facts’, and then testing them against the letter of the law, was given short shrift.’’ David Cohen (1995) contends that the immediate legal disputes were not necessarily central to court cases: the extraneous elements in litigants’ speeches reveal that these were contests for social honor and the prosecution of longstanding feuds, here carried out through the courts.
The many discussions of law in Athenian courtroom speeches surely indicate that the legal aspects of forensic rhetoric should not be disregarded. What are the implications of the ‘‘extraneous’’ arguments?
In a 2004 article reversing recent trends, Peter Rhodes addresses this issue in detail, arguing that most of the ‘‘extraneous’’ material is in fact relevant to ‘‘the larger story’’ of the case in dispute. Even more recently, Lanni (2005) argues that the extraneous materials helped provide the dicasts with important information about the contexts of disputes, enabling them to ‘‘take into account the particular circumstances of the individual case.’’ In many instances, the interpretations of these scholars certainly seem justified. For example, in ‘‘scrutinies’’ (dokimasiai) for public office, the laws may have mentioned certain specific kinds of forbidden behavior, but a wider discussion of character would obviously not have been out of place. Yet questions remain. Why should an ancestor’s brave deeds in war have any relevance to a financial dispute a century later? Why should the dicasts ignore the law in favor of ‘‘decency,’’ in lending or inheritance cases? Rhodes admits that many speeches have at least some irrelevant passages. As we have seen, again and again the Athenians state that they follow the law. It is equally clear that Athens’ courts were sometimes influenced by factors that were not strictly relevant to the case at hand. Were the Athenians simply being inconsistent, or ‘‘amateurs’’ (Lanni 2005: n. 19)?
I shall argue that conceptual similarities between law and the kinds of extraneous considerations raised in court cases make Athenian practice both consistent and clear. Lysias, Isokrates, Xenophon, and the other writers I have quoted not only contrast the law with factors such as personal character or past history, but point to a more profound distinction between Athenian justice and our own. The evolution of modern law has steadily reinforced ever sharper distinctions regarding relevance in court. When it was to their advantage, Athenian litigants also made such distinctions, as we have seen. However, because of the historical factors that shaped their approach to adjudication, the Athenians were prepared to view laws and certain kinds of not immediately relevant materials from similar perspectives and as directed toward similar goals. Such materials were therefore judged to be appropriate in reaching verdicts. Even litigants who protest against irrelevant arguments include these kinds of materials, often within the same speech.
Athenian perspectives become clearer in the light of several fundamental contrasts between Athens’ judicial system and the United States’. The US legal system is intended to function within the framework of the values of modern liberal society. Central tenets of liberalism include the primacy of the individual over the state and the paramount importance of protecting individual liberties against public interference. This orientation is in part the product of the continuous struggle against religious oppression since the Roman period. It is also the product of the ongoing struggle against so-called ‘‘heavy states,’’ where regimes or faceless bureaucrats dominate an alienated populace by what Max Weber (1972: 822) called a monopoly of legitimate violence, including censorship, taxation, and the police. In the eighteenth century, liberalism itself emerged out of debates over the extent to which any state might restrict citizens’ freedoms. For John Locke, the founding father of liberalism, freedom meant shielding a realm of personal life from interference by the government. Although the US Constitution permits states to set aside individuals’ rights when ‘‘the public safety may require it’’ (Article I, section 9), the legal system of the United States is so far oriented toward protecting individuals that in some instances even known criminals (even if non-citizens) are freed if representatives of the state have inadvertently committed some minor procedural mistake. The American Civil Liberties Union opposes indiscriminate security screening of passengers at airports, and police sobriety checkpoints against drunk drivers (Policy Guide of the ACLU #270 (1986); Washington Post June 30, 1990, p. A29; G. Guerrero, speech before the American Society of Industrial Security, November 8 (1989) 11). Individuals are not required to testify against themselves, or spouses against their mates; individuals can refuse to speak to investigating authorities; individuals have the right to have a lawyer. These rights and laws help to guard individuals against abuse by the state or the majority population. For that reason, as a society and even sometimes in court, we are sometimes prepared to tolerate illegal actions when the law is deemed to represent the oppressive power of the state or of the majority against individuals, acting especially in accordance with personal conscience. In a longstanding tradition of civil disobedience, many Americans feel entitled to violate the law for reasons of conscience. A significant number refuse to pay taxes in support of the military. A significant number refused induction during the Vietnam War. As Mohammed Ali remarked, ‘‘I got no quarrel with them Viet Cong.’’ For years no jury would convict one Dr. Kevorkian for assisting others to commit suicide. In other contexts, strict adherence to the law is considered egalitarian and fair. For example, in conspicuous contrast with Athens, in US courts when guilt or innocence is at issue, it is forbidden to mention any past misdeeds by a defendant, even if they might demonstrate that he is a serial offender.
Athens’ laws, its judicial system, and in a wider frame its democracy developed in reaction to abuses not by the state or the majority population but by powerful individuals, including tyrants, ‘‘gift-devouring princes,’’ and other members of the elite. When reform came, the essential point was that the community, the people together, be empowered. Law emerged within this context as a means to protect the community against powerful or dangerous individuals. The community, coming together in court, enforced the laws which they saw as their common protector. Andokides 4.19 proclaims, ‘‘Obeying the authorities and the laws is safety for all. Whoever ignores these has destroyed the greatest protection of the city.’’ Aischines’ third speech begins by excoriating contemporary rhetors whose actions fly in the face of the law. ‘‘If the laws are faithfully upheld for the polis, the democracy also is saved’’ (3.6). Euripides’ Suppliants calls ‘‘fairly preserving the laws’’ ‘‘the bond of all men’s cities’’ (429-34). Demosthenes (25.20) explains the need to obey the laws in terms of the benefits which they bring to the community:
I shall say nothing novel or extravagant or peculiar, but only what you all know as well as I do. For if any of you wishes to inquire what is the cause and the motive-power that calls together the Council, draws the people into the Assembly, fills the dikasteria, makes the old officials yield readily to the new, and enables the whole life of the polis to be carried on and preserved, he will find that it is the laws and the obedience that all men yield to the laws.
Although the argument cannot be fully developed here, virtually no Attic text questions the prior importance of the community over any individual: this was a central tenet of Athenian political ideology. Thucydides’ Perikles remarks ‘‘When the whole polis is on the right course it is a better thing for each separate individual than when private interests are satisfied but the polis as a whole is going downhill’’ (2.60.2; also 1.141.7). Thucydides’ Nikias claims that a person who cares for his own safety and property is still a ‘‘good citizen,’’ because in his own interests he ‘‘would be most anxious that the city’s affairs prosper too’’ (6.9.2). Thucydides himself remarks that after Perikles’ death the city suffered because politicians acted ‘‘in accordance with their personal ambition for honor and personal gain’’ (2.65.7). In the debate on saving Athens in Aristophanes’ Frogs (1427-9), Euripides says ‘‘I hate the kind of citizen who’ll prove to be | Slow to assist his country, swift to harm her greatly | For his own good astute, but useless for the City’s.’’ According to Xenophon (Hellenika 1.7.21), Euryptolemos called it ‘‘disgraceful’’ to put the interests of his relatives over the interests of the whole polis. The democrat Lysias, the oligarch Andokides, the fourth-century speech in [Andokides] 4 all proclaim the priority of the community over individual concerns. As Andokides states, ‘‘those who do not identify their interests as individuals with yours as a community can only be hostile to the city’’ (2.2-3; cf. Lysias 31.6, 31.17-18, 21.18, 22.14; [Andokides] 4.1, 19). In Aristotle’s more abstract terms, ‘‘no one of the citizens must think that he belongs just to himself, but rather that everyone belongs to the city... and the care of each part naturally looks to the care of the whole’’ (Politics 1337a27-30). ‘‘The polis has priority over the household and over any individual among us. For the whole must be prior to the part’’ (Politics 1253a18-29).
Community sentiment also drove Athens’ system of public values. Philotimia, ‘‘ambition,’’ was good if directed toward the community, bad if it benefited only oneself (Whitehead 1983).
In the forensic speeches cited earlier in this chapter and in many other texts as we shall see, litigants are said to have received favorable albeit ‘‘extra-legal’’ treatment especially because of their service to the community and their upstanding characters. Lysias mentions brave combat, valiant deeds, and serving the city well; [Demosthenes] mentions ‘‘the achievements and public services of their ancestors.’’ Litigating itself was considered responsible communal activity. As Herman (1996: 31) observes: ‘‘the victim of aggression was expected rationally to subordinate his behavior to considerations of communal utility: rather than reacting impulsively and violently, he was expected to forbear, to exercise self-restraint, to reconsider or re-negotiate the case, and to compromise.’’
As we have seen, many Attic sources attest that the purpose of law was to safeguard the community. In light of that purpose, actions either harmful or beneficial to the community, even including brave military service by a litigant’s ancestors, were judged relevant to his case. Of course some litigants tried to weaken the force of such evidence by claiming that the law alone was important. However, the claim that everyone must strictly obey the law arose in the context of contesting aristocratic or other claims to special privilege. In the egalitarian, community world of Classical Athens, many litigants stress the importance and relevance of character and community service. They do not include this material because of ongoing feuds or contests for honor, but because both in law and for the dicasts the welfare of the community was a central concern. The frequency with which issues of community or wider personal character are addressed shows their importance in the administration of justice. For its different historical reasons, our society is sometimes willing to tolerate illegal actions by individuals against the public or its government, for reasons of personal conscience. The Athenians completely rejected any such conception.
World History
