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The Athenians’ broad view of relevance extended to the discussion of law in popular court speeches. Rather than focus on the elements of the particular charge at issue and apply them to the facts of the case, Athenian litigants at times cite an array of laws that do not govern the charges in the case,108 and at other times do not deem it relevant to discuss – or even mention – the law under which the suit was brought.109 A brief examination of the peculiar treatment of statutes in the popular courts suggests that statutes and legal argument served to assist the jury in obtaining a broad view of the individual case before it rather than focusing the dispute on one or a few points of disagreement concerning the relevant law.
Ariston’s prosecution of Conon in Demosthenes 54 illustrates popular court litigants’ lax approach to the statute under which a suit is brought. While walking through the agora one evening, Ariston was jumped, beaten, and stripped by a group of drunken men. Adding insult to injury, Ariston reports, one of his attackers yelled epithets at him and stood over him crowing and flapping his arms at his sides like a victorious fighting cock.110 Ariston explains that because of his youth and inexperience he settled on bringing a private suit (dikˆe) for assault even though Conon’s actions made him liable to the more serious charges of clothes stealing (a capital offense when brought through the summary arrest procedure) or hubris, a public charge (graphˆe) that was not clearly defined but seems to have involved an affront to one’s honor.111 Perhaps because the formal charge was considered as much a means to get one’s grievance heard as a precise legal basis for
108 For example, speakers sometimes cite laws to bolster their portrayal of the character of the parties (De Brauw 2001–2002), or to give the general impression that their position is supported by the laws (Carey 1996:44–45). Ford (1999) providesa case study of the use of law in Aeschines Against Timarchus. He notes that the discussion of the law at issue, which accounts for only one-sixth of the speech (1.28–32), is surrounded by a number of laws irrelevant to the charge but useful in constructing an image of the education and moral character of a proper orator that can be contrasted with the record and character of the speaker’s opponent (Ford 1999:241).
109 E.g., Lys. 30, Hyp. 3.
110 Dem. 54.9.
111 Dem. 54.1.For various theories on the meaning of hubris, see Millett 1998; D. L. Cairns 1996; Fisher
1992:36–85;MacDowell 1976.
the suit, Ariston does not restrict his legal arguments to the charge under which the case was brought. As has often been pointed out, he argues throughout his speech that Conon is guilty of hubris as well as simple assault: from the first word (#$ %) to the penultimate sentence (#$) he characterizes Conon’s actions as hubris,112 and he notes Conon’s humiliating display over him as “proof” of hubris, and thus of guilt.113Most surprising to a modern reader is Ariston’s decision to have the laws prohibiting clothestealing and hubris read to the jury, but not the law of assault.114 Ariston apparently believed that evidence that Conon was also guilty of the greater crime of hubris was relevant to the jury’s decision.
The speaker in Demosthenes Against Phaenippus demonstrates a similar tendency. This case involved an antidosis (“exchange”), one of the more peculiar procedures in Athenian law. In the absence of universal taxation, wealthy Athenians were appointed to perform expensive public services such as outfitting a warship or paying for a dramatic festival. Under the antidosis procedure, a man could seek to avoid an assigned liturgy by proposing a richer man to perform the service in his stead.115By doing so, he challenged the allegedly wealthier man to choose between carrying out the liturgy or exchanging all of his property with the challenger. If he chose to make the exchange, the parties were required by law to produce an inventory of their property within three days, and each was permitted to inspect the other’s estate and seal the doors of storage rooms and the like to prevent his opponent from concealing or removing any of his property. It seems unlikely that exchanges took place very often, if at all; more commonly, the second man would refuse both options and the case would be brought before a jury to determine which party should perform the liturgy.116 If a challenge to an exchange was accepted, but the challenger believed that the exchange was not being properly or honestly carried out, he had the right to abandon the exchange and demand a trial.117 In such a case, the jury was to decide simply which party was required to
112 D. Cohen 1995:120ff.
113 Dem. 54.9.
114 Dem. 54.24.
115 For discussion of this procedure, see, e.g., MacDowell 1978:161–164;Harrison 1998:236–238.
116 It seemed that exchange was always a possibility, however. For discussion, see Harrison 1998:237 n.2.
117 It is possible that the man challenged could also terminate the exchange agreement and call for a
trial. In Demosthenes 42, the speaker, who originally made the challenge to exchange, tells us that his opponent brought a counter-suit against him for failing to include his mining assets in his inventory. Dem. 42.17–19.
perform the public service; by bringing the suit to trial the parties had terminated the agreement to exchange property, and any violations of the antidosis procedure were not formally before the court.118
The speaker in Against Phaenippus initiates such a suit after his opponent Phaenip- pus initially agreed to an exchange but failed to produce the required inventory on time and allegedly attempted to conceal the true value of his property by removing grain, timber, and wine from his estate and claiming various debts on the farm that did not exist when the speaker first inspected the property for mortgage stones.119
Although the relevant law calls for the jury simply to determine which party is wealthier and therefore liable to perform the liturgy, the speaker focuses on his opponent’s violation of the law requiring the presentation of an inventory within three days: his opening suggests that it is the violation of this law that is the basis for his suit;120 he has the statute read out in the course of his speech;121 and he expects the jurors to consider this violation along with the relative wealth of the parties in reaching their decision:
I beg all of you, gentlemen of the jury, that if I demonstrate that this man here, Phaenippus, has both violated the just regulations in the law [requiring the production of the inventory] and is richer than I am, to help me and put this man instead of me on the list of Three Hundred [liable to liturgies and the proeisphora ].122
The loose approach of the speakers in these two cases to the formal charge is in keeping with the general Athenian reluctance to rely on arguments that might be perceived to be based on procedural or legal technicalities.123 For example, litigants note when their opponent has violated the relevant statute of limitations, but do not argue that the case should be decided on these grounds.124 The speaker in Demosthenes Against Apaturius emphasizes that he is quoting the one-year statute
118 Dem. 28.17; Isoc. 15.5. For discussion, see MacDowell 1978:163–164.
119 Dem. 42.5–10.Mortgage stones (horoi)were large inscribed pillars set up on a piece of property to give
notice of a mortgage. For discussion, see Fine 1951; Finley 1985; Millett 1982; E. Harris 1988.
120 Dem. 42.1–2.
121 Dem. 42.16.
122 Dem. 42.4. The speaker also emphasizes Phaenippus’ failure to produce an inventory at a later date
agreed upon by the parties.
123 This reluctance was due in part to the fact that technical issues were raised at trial rather than in preliminary procedures as they are in modern legal systems.
124 Millett 1993; for discussion of statutes of limitations in Athens, see Charles 1938.
of limitation for sureties merely as circumstantial evidence to support his version of the facts:
I do not rely heavily on the law [i.e., the statute of limitations], arguing that I do not have to pay the penalty if I did act as a surety, but rather I am saying that the law serves as a witness that I did not act as a surety, as does this man himself, for in that case he would have initiated a suit against me as a surety within the time limit set forth in the law.125
Of all our surviving speeches, one would expect those brought through the para- graphˆe procedure to contain the most focused legal argumentation. The paragraphˆe was a plea challenging an allegedly illegal lawsuit. If this counter-suit was suc- cessful, the original case was dropped, but if the jury rejected the paragraphˆe, the original suit proceeded as normal and was heard by a new jury.126 Paragraphai could be brought on a number of theories, including the execution of a discharge or release, or that the plaintiff had chosen the wrong legal procedure. One would expect paragraphai speeches to concentrate exclusively on the legal issues of the counter-suit, yet all except one of our nine surviving cases include detailed dis- cussions of the original dispute.127 The speaker in Against Callimachus states, “I will demonstrate that Callimachus is not only suing in violation of the agreements [i.e., the Amnesty], but also that he is bringing these charges falsely,”128 and the speaker in another case implies that his opponent brought a paragraphˆe merely to have the advantage of being the first speaker when the case was brought before a jury.129 Juries thus appear to have considered the merits of the case as a whole in addition to the specific question raised in the counter-suit when deciding whether to dismiss the suit through the paragraphˆe procedure.
Even discussions of the specific charge at issue left much to the discretion of the jury because Athenian laws were so vague. Generally, as is often pointed out, Athenian laws simply state the name of the offense, the procedure for bringing suit under the law, and in some cases the prescribed penalty; our surviving laws
125 Dem. 33.27. See also Dem. 36.26–27; 38.17.
126 For the paragraphˆe procedure, see Isager & Hansen 1975:123–131;Harrison 1998:106–24; Todd 1993:135–138;
Wolff 1966.
127 For a detailed analysis, see Harrison 1998:109–119.The one exception is Lysias 23, which, as Todd
(1993:138n.19) points out, may be a special case.
128 Isoc. 18.4.
129 Dem. 45.6.
and decrees do not define the crime or describe the essential characteristics of behavior governed by the law. The decree of Cannonus is characteristically vague about the definition of the offense even though it provides detailed instructions for the method of trial and penalty:
If anyone wrongs the people of Athens, then that man, while chained up, is to be tried before the people, and if he is found guilty, he is to be killed by being thrown into a pit and his money confiscated and a tithe given to the goddess.130
Similarly, the law against hubris does not define this elusive offense: “If anyone commits hubris against anyone, whether a child, a woman, or a man, free or slave, or commits any unlawful act against any of these, any Athenian who wishes may bring a public indictment. ... ”131The lack of precise legal definitions was by no means limited to extraordinary procedures or offenses that by their nature involve a high degree of subjectivity. Indeed, Aristotle notes the need for precise definitions of theft (klopˆe) and adultery (moicheia), offenses not obviously problematic, as well as hubris. 132 There is evidence that some viewed the vagueness of the laws as a merit: The Constitution of the Athenians reports that “some men think that he [Solon] deliberately made the laws unclear in order that the demos would have power over the verdict.”133The absence of carefully defined laws specifying the required elements of each charge invited litigants to bring a wide range of arguments to bear on the case. In many cases, the primary purpose of the relevant law may have been to set out a procedure for obtaining redress for a broad class of offenses. Once the case came to court, the jury attempted to arrive at a just verdict looking at the individual case as a whole without focusing exclusively on determining whether the defendant’s behavior satisfied the formal criteria of the specific charge at hand.
130 Xen. Hell. 1.7.20. Prosecution under the Cannonus decree appears to have been short lived. For discussion, see Lavelle 1988.
131 Dem. 21.47.
132 Arist. Rhet. 1374a8. For the vagueness of the laws, see D. Cohen 1983:6–7;D. Cohen 1995:189; see also
E. Harris 1988. Carey (1998) has shown that laws relating to family and religion are unusual in that
they are often more substantive than procedural in character.
133 Arist. Ath.Pol. 9.2. The author of the Rhetorica ad Alexandrum viewed the ambiguity of the laws as a strategic opportunity, instructing speakers to use ambiguous laws (amphiboloi nomoi) to his advantage. Rhet. ad Alex. 1443a30.
This is not to say that Athenian litigants could not or did not use legal reasoning to argue for a particular interpretation of a vague or ambiguous law.134A common litigation strategy was to rely on the legal fiction that the laws were created by a single lawgiver and thus formed a coherent whole, making it possible to use principles from unrelated laws to interpret a particular law.135For example, Isaeus’ speech On the Estate of Ciron includes an argument that attempts to resolve a gap in the law which states that in the absence of a male heir a female child can inherit as an epiklˆeros (“heiress”) ahead of collateral relatives such as the deceased’s brother or nephew,136 but does not specify whether such a woman’s child may also inherit ahead of a collateral.137 The speaker attempts to establish that a daughter’s son takes precedence before a brother’s son by discussing two related laws and arguing from the apparent logic of the inheritance system as a whole. The speaker argues first that because a daughter inherits before a brother, a daughter’s child therefore should inherit before a brother’s child.138 He bolsters his argument by quoting the law under which descendants are obliged to support their indigent and infirm parents and grandparents, whereas collaterals have no such obligation.139 By arguing that if a man is legally bound to support his grandfather he therefore has a corresponding right to inherit his estate, the speaker presupposes a coherent system underlying the inheritance laws that can be used to interpret an ambiguous law.140
As ingenious and potentially persuasive as these types of arguments are, it is striking that legal reasoning was not considered an authoritative guide to a verdict;
134 For recent discussions of legal argumentation in Attic oratory, see, e.g., Johnstone 1999:21–45; E. Harris
2000; Hillgruber 1988:105–120.
135 Johnstone 1999:25–33.
136 A female child of a man who died without a male heir did not directly inherit, but possession of his
estate went with her when she married.
137 The law is quoted in Demosthenes 43.51.
138 Is. 8.31.
139 Is. 8.34.
140 Another example, discussed by both Johnstone (1999:28) and E. Harris (2000:47–54)occurs in Hyper-
ides 3. The speaker bought two slaves and was fooled into signing a sales contract that made him
responsible for the (quite substantial) debts previously incurred by the slaves. The law of contract
stated simply that agreements are binding, and the speaker attempts to read a provision voiding unjust contracts into the law by citing a variety of laws that cast doubt on the validity of contracts in other contexts: he cites a statute permitting a man who unknowingly buys a slave with physical disabilities to return him, a law invalidating wills made under the influence of old age, insanity, or coercion, a statute prohibiting telling lies in the agora, and a law stating that children are legitimate only if the marriage was lawful (Hyp. 3.15–18).
interpretation and application of the law at issue was certainly considered relevant to the jury’s decision, but there is no indication that a litigant was expected to limit himself to or even focus on such questions.141 In fact, discussion of the relevant laws was only one weapon in an Athenian litigant’s arsenal. The speaker in On the Estate of Ciron follows his legal argument that descendants take precedence over collaterals with an extended character attack on his opponent Diocles:142 he details his past plots to defraud, deprive of citizen rights, and even murder various family members, and, in a surprising crescendo, he ends his speech with a deposition showing that Diocles was caught as an adulterer.143
In modern legal systems, one of the primary functions of law is to provide a means to focus a dispute on one or a few aspects of disagreement recognized by the relevant law; as White notes, law “compel[s] those who disagree about one thing to speak a language which expresses their actual or pretended agreement about everything else.”144 In Athens, law served no such purpose; the legal charge provided a means to get a dispute before a jury and an important source for litigants’ arguments, but did not serve to narrow the range of information and argument that was considered relevant to the jury’s decision.
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