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Popular court jurors did not reach a verdict by applying precise legal rules. Rather, they drew on commonly shared norms and values to reach a “just” decision in each case. In this section I briefly discuss some of the Athenian norms and values that were particularly important to legal argument and juror decision making. My aim is not to provide a comprehensive survey of Athenian popular moral values,37 but rather to give a sketch of the “ethical baggage” Athenian jurors brought to their task.
Because much of our evidence for Athenian popular values comes from law court speeches, it is impossible to say with certainty whether the moral values expressed in court differed from, reflected, and/or helped shape the moral values that governed the Athenian street. However, the absence of a technical legal language or narrowly defined legal rules, the inclusive approach to relevance, and the participation of amateurs as speakers and jurors suggest that the values expressed in the courts were not substantially different from those held in society at large.38 Nevertheless, the courts constituted a distinct institution, with their own procedures and social practices, and litigants certainly altered their arguments, rhetoric, and style somewhat to accommodate the expectations of the jurors.39
Athenian litigation was, as one scholar points out, a “semiautonomous field,”40
whose distinctive practices reflected, were influenced by and (most likely, also influenced) society at large.
For our purposes, what is important is that the moral values expressed in our sources – legal and otherwise – suggest that Athenian jurors’ sense of justice and fairness reflected democratic cooperative values.41 I first address the values of reciprocity, philia (“friendship”) and fair dealing that animated Athenian society. I then discuss the scholarly debate over the relative importance of honor, revenge, and shame in classical Athenian culture, and argue that these values were moderated
37 Dover’s Greek Popular Morality (Dover 1974) does just that.
38 For a discussion of the continuity between the legal system and Athenian society at large, see Carey
1994a.
39 The most striking example of the different conventions of speech in and out of court is the avoidance
of mentioning the names of respectable women in court to avoid dishonoring them (Schaps 1977). For discussion of stylistic differences between forensic and everyday speech, see Bers 1998. For a general discussion of the relationship between court and society, see Johnstone 1999:126–131.
40 Johnstone 1999:126.
41 Adkins 1975:172ff.
to a significant degree by norms of self-restraint, willingness to compromise, and obedience to individual conscience.
One of the basic values of Athenian social life was the principal of reciprocity. The notion of reciprocity was central to man’s relationship with the gods: one offered prayers and sacrifices to the gods in the hope that they would requite these acts with suitable favors. When translated into the realm of human affairs, this idea of tit for tat could be mobilized in the service of both socially cooperative and socially disruptive ends; the value of reciprocity is sometimes expressed as giving each man his due or treating others as you would like to be treated,42 sometimes as helping one’s friends and harming one’s enemies.43 In the classical period, reciprocity, along with the concept of philia, resulted in social norms that encouraged cooperation in local Athenian communities. Philia does not correspond to modern ideas of friendship. It encompassed a variety of relationships, including (from strongest to weakest) immediate family, kin, friend, neighbor, demesman, and even fellow citizen, and included the reciprocal duties and obligations that accompanied each of these relations and differed according to the strength of the relational tie.44 One was expected to offer assistance in times of emergency or shortage to those with whom one shared a bond of philia. 45 Philia relationships worked on a theory of generalized rather than specific reciprocity: because philoi generally interacted in a variety of spheres and had long-term relationships, it was understood that there was no need for immediate and exact repayment because any imbalance in services would eventually even itself out.46
At least, this was the ideal. In practice, relationships with kin, neighbors, and demesmen could at times deteriorate into enmity.47 Reciprocity norms do not, however, seem to have resulted in the social disorder that one might expect from the slogan “harming one’s enemies.” Vendetta and feuds of the type familiar in other Mediterranean societies were unknown, and violence relatively rare.48 This
42 E.g., Pl. Resp. 331A; Ar. Plut. 1028f; Dem. 18.112; 23.106–107; Lyc. 1.88.
43 E.g., Pl. Resp. 332A; Lys. 9.20.
44 Fora discussion of philia, see Arist. Eth. Nic. 1165a14–35;Millett 1991:110–114;Konstan 1997:53–59.
45 E.g., Dem. 53.4;Din. 2.9; Ar. Nub. 1214, 1322; Xen. Mem. II.2.12.
46 On the operation of “generalized reciprocity” in Athens, see Millett 1991:110–111.
47 Such disputes are the subject of several law court speeches, including, for example, the inheritance
speeches of Isaeus, and Demosthenes 53 and 57.
48 Perhaps most notable is the fact that Athenians did not customarily arm themselves (Thuc. 1.5.3–6.3)
or require private entourages of the sort familiar in Republican Rome (Herman 1994).
was due in part to the channeling of social conflict from the streets to the courts, and in part to cooperative values, discussed in more detail below, that encouraged self-restraint and compromise, even in the face of provocation by one’s enemy.
Honesty and fair dealing were considered important components of dikaiosynˆe (“justice”), one of the primary Athenian virtues.49 The discussion of dikaiosynˆe in the Republic makes clear that this concept is conventionally regarded as encompass- ing repayment of debts, payment according to a contract, promise, or obligation, safekeeping of money or property of another, and honesty in transactions.50 Telling lies in the agora was proscribed by law,51and, in our surviving law court speeches, trickery and attempts to avoid making good on a business promise are represented as serious breaches of community values.52
Toa modern, it may seem entirely natural that the Athenians had a notion that pursuit of one’s personal advantage must be tempered by cooperative norms of fair dealing. But this was not always the case. In the Homeric poems (particularly in the figure of Odysseus), trickery, lying, and relentless pursuit of advantage were not necessarily to be deplored. As Adkins points out, the term aischron (disgraceful) began to be regularly associated with trickery and deception only in the late fifth century.53To cite one example of the new emphasis on fair dealing, in Sophocles’ Philoctetes, Neoptolemus, coached by Odysseus, tricks Philoctetes into relinquishing his bow, the weapon needed to defeat Troy. But later, Neoptolemus insists on returning the bow on the grounds that it had been obtained unjustly. We would be very surprised to meet such a statement in Homer. The increasing emphasis on honesty and fair dealing apparent in fifth-century texts are but two examples of a cooperative ethics favored by the classical democratic polis.54 The traditional explanation for this shift in moral values focuses on the development of
49 The other principal virtues described by Plato in the Republic and the Phaedo are sˆophrosynˆe (restraint),
andreia (manliness), and phronˆesis (practical widsom).
50 Pl. Resp. 331C. For discussion, with further references, see Dover 1974:170–173.
51 Hyp. 3.14.
52 E.g., Hyp. 3; Dem. 35.17–25;37.15; 49.1,2,4,27,54.For discussion of litigants’ appeal to principles of trust
and fair dealing, see Christ 1998b:180–191.
53 Adkins 1975:172ff.
54 To be sure, notions of community values are not entirely absent in Homer. The degree and quality of
the difference cannot be comprehensively summarized in a few sentences, in part because the Homeric poems are no simple reflection of one time or place. The ethics of the Dolˆoneia represents one extreme; the society of the Phaetians, when prompted to adhere to a higher standard, represents the other. For an account that argues for an awareness of community values in Homer, see Raaflaub 1997.
hoplite warfare and the resulting dependence of the polis on men of what we might think of as a landed middle class.55 Men who were not members of the aristocracy but had enough money to outfit themselves in hoplite armor became vital to the defense of the city and demanded enhanced political and social power and recognition. The tactics of hoplite warfare, which consisted of a close formation in which each man depended on his neighbor’s shield for protection, left little opportunity for individual feats of valor. With power now dispersed among more men and the need for cooperation largely supplanting the traditional heroic values of honor, pursuit of individual advantage and loyalty to the local aristocratic clan became far less important than they once were.
Pertinent to an analysis of Greek moral sensibilities is the application of the shame/guilt dichotomy, borrowed from anthropology,56 to Greek culture. Some scholars see classical Athenian culture as driven primarily by the linked consider- ations of honor, revenge, and shame.57 Under this interpretation, Athenian social relations primarily involved competition for honor and status, which were defined purely in terms of how one was perceived by the outside world. Because honor was a zero-sum game, it often involved attempting to take advantage of the weakness of rivals to enhance one’s own status. Any slight or provocation had to be met with swift revenge to avoid dishonor and shame. These normative expectations, so the theory goes, created an agonistic society prone to enmity and feuding, in which elites captured the law courts and used them as instruments to judge their rivalries for honor.
The suggestion that Greek society from Homer down through the classical period can be fruitfully interpreted as an honor/shame culture has been debated by classicists since the publication in 1951 of Dodds’s The Greeks and the Irrational. 58 In this influential study, Dodds advanced the thesis that Greek culture evolved from what was predominantly a shame society to one that was predominantly a guilt society. In my view, although notions of honor and shame remained important in the classical Athenian value system, the notion of doing right according to
55 Andrewes 1963. The evolution of the technique and the armor are controversial: some see the hoplite panoply and perhaps even “an embryonic hoplite phalanx” in the Homeric battle narratives (van Wees
1997:691). Yet, there is no suggestion that hoplite warfare was displacing the aristeia of the aristocratic heroes in the economy of military power in Homer (van Wees 1997:668–693).
56 The most influential treatment: Benedict 1989.
57 E.g., D. Cohen 1995:61–70.
58 Dodds 2004 (originally published 1951).
individual conscience and norms of self-restraint and cooperation in the face of social conflict played an important role in Athenian popular morality. It is therefore unlikely that Athenian litigants and jurors viewed the popular courts as simply stages for elite competitions for honor.
To be sure, courage and attention to honor (timˆe) were rewarded in classical Athens, which is not surprising given the usefulness of these traits to an imperial city in a near-constant state of war.59 Praise and public honor were often considered important incentives for virtuous behavior, and fear of shame strong deterrents.60
The pursuit of honor through competition was ingrained in Athenian culture through ubiquitous athletic, musical, and dramatic competitions. Elite competi- tions for honor often took the form of public displays of beneficence and attempts to gain recognition as a successful general or political leader (rhˆetˆor).
But Athenian moral values were a good deal more complex than the pursuit of public honor and avoidance of shame. By the last quarter of the fifth century, an ordinary Athenian, a man with no direct exposure to the “New Learning” of the Sophists, could be expected to understand at least a primitive notion of conscience and guilt in moral agents. The matricide Orestes depicted in Aeschylus Oresteia (458 b.c.e.) is assailed by actual Furies and in need of ritual purification. By contrast, Euripides’ character of the same name in the Orestes, produced exactly 50 years later, is by no means sure that the Furies he sees are any more than products of his own awareness that he has committed dreadful acts.61 This is virtually a reference to conscience. Similar references to individual guilt and conscience are found in Sophocles, Aristophanes, Euripides, and Attic oratory, particularly in the speeches of Antiphon.62
Perhaps most important for our purposes are the cooperative values of self- restraint and willingness to compromise that preclude an interpretation of Athe- nian culture, and, in particular, the discourse of the law courts, as based entirely, or even predominantly, on an economy of honor. Because the evidence for an ethics of restraint comes from law court speeches, it is unclear how powerful such norms were in society at large and whether, as seems intuitively likely, the emphasis on moderation in the courts reinforced, or perhaps even partially gave rise to, a shift
59 On the importance of military virtues in Athens, see W. V. Harris 2001:157–158.
60 E.g., Dem. 4.10; 1.27;22.76; Lyc. 1.46;Dover 1974:228–229.
61 Eur. Or. 396:, ’ “my understanding, since I am conscious
that I have committed dreadful acts.”
62 Cairns 1993:303–05, 343–351, 351–354.
away from an honor/revenge ethic in Athenian society. One scholar has recently observed that Athenian litigants often present themselves as abiding by a cooper- ative civic code of behavior, whereby one should exercise self-restraint and avoid retaliating when provoked, preferring to compromise or simply to ignore insults to end social conflict.63 In addition, speakers almost never argue that violence of any sort is justified.64 To cite a few examples of the ethics of restraint, the speakers in Demosthenes 21, 54, and Lysias 3 boast that they endured a long series of insults and violent injuries without retaliating in any way. As the speaker in Lysias Against Simon states, “I chose not to exact justice for these crimes rather than have the people think me to be unreasonable.”65 This type of self-presentation is precisely the opposite of what one would expect from litigants striving to gain honor under a traditional heroic code of values.
Moreover, law court speakers routinely claim that they were reluctant to litigate and would have preferred to settle the dispute amicably or through arbitration, and allege that the suit only reached the trial court because of their opponent’s stubbornness and aggressiveness.66 One was expected to settle a suit if at all possible, even if that meant accepting a resolution that was less than completely fair. The speaker in Demosthenes Against Dionysodorus states, “we agreed [to a settlement], not because we were ignorant of what was just in light of the contract, but because we thought that we should compromise a bit and yield so that we not be thought litigious (philodikos).”67Another litigant insists that settling a suit was a sign not of weakness, dishonor, or the lack of justice of one’s case, but rather that a man was metrios (“moderate”) and apragmˆon (“one who minds his own business”).68
To be sure, traditional values do appear in forensic speeches on occasion, generally in the form of a prosecutor justifying his decision to bring suit and ignore the norms of self-restraint by arguing that the offense in question demanded
63 See Herman 1993, 1995, 1996, 1998; cf. Fisher 1998. On classical texts questioning the traditional ethic of revenge, see W. V. Harris 2001:166ff.
64 Gagarin 2002b. Lysias 1 is the sole counterexample. Gagarin points out that there is a noticeable difference between the approach to violence taken in the fourth-century law court speeches and Antiphon’s Third Tetralogy, a fifth-century rhetorical exercise that reflects traditional Homeric values. This difference may suggest that there was a shift in values not only between the archaic and classical periods, but also between the fifth and fourth centuries.
65 Lys. 3.9; Dem. 54.5–6.For discussion, see Herman 1995.
66 E.g., Dem. 41.1;54.24; 56.14; Lyc. 1.16; Lys. 9.7. For discussion, see Dover 1974:187–92.
67 Dem. 56.14.
68 Dem. 54.24.
revenge.69 The law court speeches thus suggest that alongside the traditional pull of honor and revenge were strong norms of cooperation and moderation in the face of social conflict.
Given the complex attitudes toward competitive and cooperative values, it seems unlikely that the law courts served primarily as stages for elite competitions for honor. To win, litigants were encouraged to represent themselves in ways that decreased, rather than enhanced, their honor and status according to the traditional moral code. The focus on fair dealing and reasoned moderation in interacting with one’s adversary and attempting to end the conflict peacefully is more consistent with the view that the jurors were attempting to reach a fair verdict in the case in light of the broad context of the dispute.
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