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There is no surviving statement of Athenian democratic legal theory. The the- oretical texts that we have – principally the works of Plato and Aristotle – are hostile to the democracy and offer little insight into the aims of the court system. We are forced to draw inferences from the structure and practices of the courts themselves. Although the Athenians liked to tell themselves that their legal sys- tem and laws were the product of a single intelligence – “the lawgiver” of the distant past – Athenian court procedures developed from a combination of laws passed at different times by the popular assembly and an accumulation of custom and practice. There was, of course, no single, unified vision of the aims of the Athe- nian courts or procedures.10 But whatever their hodge-podge origins, the practices
10 It is not my contention that every, or even most, aspects of Athenian law fit intoa coherent and logical system. As Christ (1994) points out, viewing Athenian law as a system with a “latent logic” may lead one to underestimate the impact of piecemeal legislation and to overlook the eclecticism of Athenian law.
sources and method 5
of the courts constituted an Athenian tradition that reflected a shared under- standing of how justice was and should be done. The Athenian courts can tell us something about the “Athenian mind” that is more than the historian’s convenient fiction: the product of many generations and many hands may bear the imprint of the collective more deeply than that of any individual’s work; that a group’s tradi- tions may be arbitrary in origin does not make them less valuable in assessing the group’s peculiar understanding of the world. I am seeking to uncover the values and concerns that seem to underlie the practices and procedures of the Athe- nian courts – values and concerns that the various individual participants in the legal system may have been more or less consciously aware of at any given time.
The Athenian law courts are remarkably well attested, at least by the standards of ancient history: roughly 100 forensic speeches survive from the period between
430 and 323 b.c.e.These speeches represent not an official record of the trial
proceedings, but the speech written by a speechwriter (logographos) for his client
(or, at times, for himself) and later published, in some cases with revisions.11Only speeches that were attributed to one of the ten Attic orators later formed into a canon were preserved.12 The ten Attic orators are: Aeschines (ca. 395–ca. 322); Andocides (ca. 440–ca. 390); Antiphon (ca. 480–411); Demosthenes (384–322); Dinarchus (ca. 360–ca. 290); Hyperides (390–322); Isaeus (ca. 415–ca. 340); Isocrates (436–338); Lycurgus (ca. 390–ca. 324); and Lysias (ca. 445–ca. 380).13The speeches in the corpus run the gamut, and are from politically charged treason
Indeed, as we will see, the association of the homicide courts with a more formal, legal approach stems as much from historical accident followed by path dependency as from any “latent logic” related to the nature of the crime of homicide. Nevertheless, the differences between procedures can tell us something about the goals of the Athenian courts.
11 Demosthenes and Aeschines, for example, both revised their published speeches in the case over the Crown in response to each other’s courtroom presentations (Yunis 2001:26–7). On revision for publication more generally, see, e.g., Trevett 1996; Worthington 1991.
12 See, e.g., Smith 1995; Worthington 1994b:244.
13 Not all of the “Attic” orators were Athenian citizens; some were resident aliens. For a very brief
summary of the life and work of each of the orators, see Gagarin 1998b:xii–xv. It is suspected that several of the speeches in the corpus were written by other, lesser-known classical logographers and falsely attributed to a member of the canon, perhaps by ancient publishers hoping to sell more books. Most scholars agree, for example, that seven of the speeches in the Demosthenic corpus were in fact written by Apollodorus. For discussion of Apollodorus’ career and speeches, see Trevett 1992. Since the issues I explore in this book are not affected by the authorship of any individual speech, I use the traditional citation system for the Attic orations and do not mark speeches that I believe are spurious with square brackets.
trials and violent crime trials to inheritance cases and property disputes between neighbors.
Despite their copiousness, these sources are not without their problems. The surviving cases are those in which at least one litigant was wealthy enough to hire a famous logographer, and as a result involve primarily members of the elite.14 The Attic orations were preserved not as legal documents but as tools for teaching boys and young men the art of rhetoric in the Hellenistic and Roman periods. As a result, the information a legal historian would most like to know about any particular case is generally lost. We almost never have speeches from both sides of a legal contest;15we rarely know the outcome of the case. Citations of laws and witness testimony are often omitted or regarded as inauthentic later additions. Most important, any statement we meet in the speeches regarding the law or legal procedures may be a misleading characterization designed to help the litigant’s case.16 As is often pointed out, however, a litigant who wished to be successful would presumably limit himself to statements and arguments that were likely to be accepted by a jury; speakers may at times give us a self-serving account of the law, but their arguments generally remain within the realm of plausible interpretations of the legal situation in question.17
In addition to court speeches, the sources for the Athenian legal system include the Constitution of the Athenians,a partial history and description of Athenian political and legal institutions probably written by Aristotle or his students. The comic plays of Aristophanes include several references to the law courts; the central character of the comedy The Wasps is an elderly Athenian juror. Some laws, most notably Draco’s law on homicide, survive in the form of stone inscriptions, but they represent only a tiny percentage of the body of Athenian statutes. The nature of our sources presents not only challenges but also opportunities: from the beginning, the study of Athenian law has been of necessity a study not of law on the books but of law in action.
14 Lysias 24 For the Invalid is a notable exception, though some scholars have argued that this speech is merely a rhetorical exercise for a fictional case. It is unclear whether Athenian litigation was dominated by the wealthy, or whether the widespread participation of ordinary Athenians is simply not reflected in the historical record. For a discussion of who litigated in Athens, see Chapter 2.
15 Only two pairs of speeches survive: Demosthenes 19 and Aeschines 2 (On the Embassy); Aeschines 3 and
Demosthenes 18 (On the Crown). In two other instances we have imperfectly matched speeches on both
sides of a particular issue: Lysias 6 and Andocides 1; Demosthenes 43 and Isaeus 11.
16 On how to deal with apparent outliers in our sources, see Bers 2002.
17 Dover 1974:8–14.
My approach is, for the most part, synchronic. This approach is dictated by the distribution of our surviving speeches. There is little evidence for the early development of the legal system; the classical court system was fully formed by the time of our earliest preserved orations. With a few important exceptions,18 the practices and procedures of the courts remained largely unchanged throughout the classical period. It therefore makes sense to treat the popular court system from
430–323 b.c.e. as a single unit for analytical purposes. A synchronic organization also highlights the dynamic tension between different notions of legal process present throughout the classical period.
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