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We have seen that both extra-legal and legal argumentation were considered rel- evant in the popular courts. Although modern accounts of the Athenian legal system tend to emphasize one or the other of these types of material, neither is dominant in our surviving sources. There is, however, some variation in the distribution of contextual and legal material between various types of speech.145
141 On the persuasive but non-binding nature of statute law in Athens, see Todd 1993:59–60 and Sealey
1994:54.
142 Although Diocles was not a litigant in this suit, the speaker presents him as his true opponent in the
dispute.
143 Is. 8.36–44.
144 White 1990:179.
145 Rubinstein (2000:194–198) has pointed out that there are some important differences in the argu-
mentation found in graphai and dikai. Although speeches in public cases (particularly those delivered
by prosecutors) include fewer discussions of public services and character evidence, speeches in graphai
are not noticeably more focused on the specific legal charge than those in dikai. Thus, for example,
Most notably, defendants focus more on extra-legal information and argumenta- tion than prosecutors, who tend to rely more heavily on the law in constructing their arguments.146 This is only to be expected. As Nussbaum points out, there is a natural link between particularized justice and leniency.147 Because justice starts from the premise that a wrong must be righted and that the offender must suffer sufficiently to balance out a deliberate wrong, and because “the circumstances of human life throw up many and various obstacles to meeting the tough standards of justice,” a close examination of the particular context of a dispute will more commonly suggest mitigating than aggravating factors.148
Despite these variations between different types of speeches, most popular court orations include a mixture of contextual and legal argumentation. Speeches that contain only information that would be irrelevant by modern standards are rare, those focusing solely on the relevant facts and law even rarer.149 Isaeus On the Estate of Ciron (discussed in a previous section) illustrates the balance of legal and extra-legal argumentation found in many popular court speeches: the speaker devotes roughly the same amount of effort to explaining that the law favors descendants over collaterals as he does to arguing that his opponent Diocles does not deserve to enjoy the fruits of the estate.150
How did an Athenian jury go about evaluating the mass of information and argument, both contextual and legal, presented in a popular court case? Athenian juries offered no reasons for their verdicts, and we rarely know the outcome of the cases for which speeches are preserved. One clue is an enigmatic and controversial
Yunis (1988) has demonstrated that in graphˆe paranomˆon cases political arguments were as relevant and important as the legal argument that the defendant’s proposed decree was in conflict with an existing law. Both ancient and modern writers have also noted that extra-legal argumentation was particularly prevalent in inheritance disputes (Arist. [Pr.] 29.3; see also D. Cohen 1995:163–180).
146 For discussion, see Johnstone 1999:49–60. Of course, Athenian prosecutors did regularly use contextual
information (e.g., Dem. 53; 54; Aesch. 1; Lys. 10; 14; 15; Din. 1; 2; 3).
147 Nussbaum 1993.
148 Nussbaum 1993.
149 The two most egregious examples in the former category are the prosecution speeches delivered by
sunˆegoroi (co-speakers) against the younger Alcibiades preserved in Lysias 14 and 15, and even in these cases the speech of the primary prosecutor, now lost, may have included more legal argumentation. In the latter category may be placed Demosthenes 41 and 44, Isocrates 21, and Lysias 17. Scafuro (1997:56) also notes the mixture of legal and extra-legal information in most lawcourt speeches.
150 Is. 8. The speaker also includesa brief discussion of the effects an adverse verdict would have on him
(Is. 8.43–45).
phrase in the dikastic oath which was sworn each year by the panel of potential jurors. According to the standard reconstruction, the oath stated in part, “I shall vote according to the laws and decrees of the Athenian people and the Council of the Five Hundred, but concerning things about which there are no laws, I shall decide to the best of my judgment, neither with favor nor enmity.”151 Although some scholars have viewed the jurors’ oath as evidence that the jury was limited to strictly applying the laws in all but the unusual case where there was no applicable statute, others have argued convincingly that the jurors’ “best judgment” (dikaiotatˆe gnˆomˆe) necessarily played a much greater role in legal verdicts, noting particu- larly the broad discretion given to juries to interpret and apply often vague and ambiguous laws.152
We cannot know for certain how the average Athenian juror conceived of his task, but our surviving speeches suggest that even the relative importance of legal and contextual evidence in any individual case was open to dispute. Some speakers attempt to focus the jury’s attention on their legal arguments by reminding them of their oath to vote according to the laws,153or by arguing that the jury should not be affected by the social standing of the litigants.154 We have seen that others insist on the relevance of contextual information such as the defendant’s behavior throughout his life and the likely effects of a verdict on the parties. As has often been pointed out, the treatment of legal and extra-legal arguments
151 This reconstruction, quoted from Scafuro (1997:50), does not correspond precisely to any passage in the Attic orators. The clause relating to the jury’s dikaiotatˆe gnˆomˆe appears in most, but not all citations of the oath, and the further limitation that dikaiotatˆe gnˆomˆe was to be used “concerning things about which there are no laws” appears in two of these passages. See Dem. 20.118; 23.96; 24.149–151; 39.40. On the reconstruction of the oath, see Biscardi 1970:222 n.20; Scafuro 1997:50; Johnstone 1999:41 & nn. 101–103.
152 For a recent account of the scholarly controversy over the meaning of the dikastic oath, see Scafuro
1997:50–51. Biscardi (1970:226–228) offers a compromise view between those who argue that dikaiotatˆe gnˆomˆe came into play only to fill gaps in the law, and those who argue that it was also used to resolve conflicts between law and equity. He argues that the dikaiotatˆe gnˆomˆe played a central role in assisting jurors in carrying out their task of interpreting and applying the law; if a law appeared to be contrary to substantive justice, this was a sure sign that the law had been wrongly interpreted and should be reinterpreted with the assistance of the dikaiotatˆe gnˆomˆe. Thus, for Biscardi a statute was never disregarded in favor of equity, but reinterpreted in light of it; the law was preeminent, but the dikaiotatˆe gnˆomˆe served as the “soupape de surete´” for the system (Biscardi 1970:232).
153 Fora discussion of the use of the dikastic oath in Athenian court speeches, see Johnstone 1999:35–42.
Johnstone notes that speakers also sometimes referred to the oath to claim authority for their particular
interpretation of the law.
154 Isoc. 18.34–35; 20.19; Dem. 52.1–2; Hyp. 4.32.
was not, however, entirely symmetrical: law court speakers do not explicitly urge jurors to ignore the law in favor of fairness and other extra-legal considerations. Rather, they typically argue that both law and justice support their claim.155This is hardly surprising. The general notion of the supremacy of law was central to Athenian democratic ideology, which held that adherence to law was one of the distinctions, perhaps the most important, that separated democracy from tyranny.156To suggest explicitly that the law was in some way inadequate would, at worst, raise suspicion of antidemocratic sentiment, and, at best, result rhetorically in a serious self-inflicted wound. Even though litigants do not urge the jurors to disregard the law, the explicit insistence on the relevance and importance of extra- legal argumentation in many of our speeches suggests that it was accepted that extra-legal arguments could take precedence over the dictates of the written law.
Even when the litigants in a particular case did not explicitly argue about the relative importance of legal and contextual evidence, they could make very different choices about what types of evidence to include and emphasize in their speeches. The dispute over Demosthenes’ crown, one of the few cases in which the speeches of both speakers survive, illustrates the lack of consensus on the relative importance of legal and extra-legal argumentation. Aeschines, who failed to win even one-fifth of the jurors’ votes, opens his speech with a long discussion of the relevant laws,157 whereas Demosthenes responds to these legal arguments in a mere nine sections, shunted off to an inconspicuous part of his speech.158
Such a situation, in which the jurors are presented with two contrasting views of “the case,” each of which employs a radically different balance between legal and extra-legal argumentation, suggests that neither form of argumentation was considered ex ante decisive or even superior to the other. It seems that there simply was no authoritative rule of decision in Athenian courts; the jury panel was typically presented with a highly particularized and contextualized account
155 E.g., Carey 1996:41; Christ 1998b:195.
156 Aeschines’ remark is typical:
It is agreed that there are three types of government among all men: tyranny, oligarchy, and democracy. Tyrannies and oligarchies are administered according to the character of their leaders, while democratic cities according to the established laws.
Aesch. 1.4.
157 Aesch. 3.8–48.
158 Dem. 18.111–120.For discussion of which orator had the better legal case, compare Gwatkin 1957:129
with E. Harris 1994a:141.
of the facts and law relating to a dispute and left to its own devices to arrive at a just resolution to the individual case.
***
Froma modern perspective, the Athenians employed a remarkably broad approach to relevance in their popular courts. Types of evidence that moderns generally consider inadmissible and even unfairly prejudicial were deemed relevant and important to the Athenian popular court jury’s verdict. The effect a conviction will have on the defendant’s children, how the parties conducted themselves in the course of litigation, the character and deeds of the parties’ ancestors, the character of the victim, and whether the parties were relatives, friends, or strangers were all considered relevant to the question of guilt. But the most striking feature of Athenian popular court practice is not that the Athenians made different judgments than moderns as to the relevance and admissibility of specific types of evidence. More extraordinary is the process by which relevance and the relative weight of evidence were determined. It was up to the litigants to choose the types of information and arguments, both legal and extra-legal, to present, and to argue for the importance of these arguments to the jury’s verdict. It was up to the jury to determine in each individual case what sorts of arguments to credit in reaching a just resolution to the dispute. The popular courts’ ad hoc, discretionary approach was the dominant, but not the only, mode of legal decision making in the Athenian system. In the remaining chapters, we will explore the alternative Athenian approaches to law, the costs and benefits of popular-court style discretionary justice, and why the Athenians chose to adopt this approach in their largest jurisdiction.
4 The Homicide Courts
discussions of athenian notions of law and the role of the courts in Athenian society have so far focused on speeches delivered in the popular courts. As we have seen, in the popular courts the laws were largely undefined and the litigants observed no rule of relevance. But there were also special homicide courts – highly respected, seldom used,1and largely omitted from modern discussions of the aims of the law courts. These courts – which almost certainly developed earlier than the popular courts – reportedly employed a rule prohibiting irrelevant statements. Additionally, they applied laws that exhibited greater legal definition and substantive content than those used in the popular courts. The unusual composition and procedures of the homicide courts made these courts (at least in theory) far more congenial than the popular courts to legal argument, and so less vulnerable to influences based on the character and social standing of the litigants. This chapter explores these differences, their place in the Athenian concept of justice, and the possible reasons for the different treatment of homicide and related offenses. The homicide procedures reveal that the Athenians could conceive of a system that encouraged the regular application of abstract rules without regard to the broader social context of the dispute, but rejected this model in favor of a more discretionary approach in the popular courts.
The Five Homicide Courts
In the classical period, five special courts shared jurisdiction over most cases
involving homicide. The Areopagus Council was the most celebrated of these courts. The Areopagus is most widely known from Aeschylus’ dramatic account in the Eumenides, where Athena inaugurates the court to judge Orestes for the murder of his mother. In the play, the Furies, the spirits of retribution who pursue Orestes following his matricide and prosecute the case against him, are forced to accept this new court’s judgment in favor of the defendant. The creation of the
1 There are only fifteen confirmed or possible court cases of homicide from 507–322 b.c.e. (Herman 1994:
101). There are only three surviving speeches in homicide cases before the special homicide tribunals
(Lys. 1; Ant. 1; Ant. 6).
Areopagus is represented as paradigmatic of a wider revolution: the abandonment of blood-feud and vendetta in favor of legal justice. As we will see, Aeschylus’ complex presentation of the Areopagus – both as a superior, and thus unusual, law court, and as a symbol for the entire legal system – mirrors the Areopagus’ role in historical Athens.
The Areopagus tried cases involving intentional killing and wounding, arson, and poisoning by the defendant’s own hand resulting in death.2 Conviction on these charges resulted in execution, though those accused of intentional homicide could voluntarily go into permanent exile after the first set of trial speeches3 if they did not like their chances with the jury.4 The court at the Palladion had competence over cases of unintentional homicide and the killing of a slave, metic, or foreigner.5The penalty for unintentional homicide was exile, with the provision that the victim’s family had the option of granting a pardon.6 In its description of the Palladion’s jurisdiction, The Constitution of the Athenians also refers to bouleusis, which means literally “planning,” and appears to connote indirect responsibility for a death, as opposed to carrying out a homicide with one’s own hand.7 Although some scholars contend that bouleusis was a separate offense tried only in the Palladion, it has been argued convincingly that those accused of indirect responsibility for a killing were prosecuted for homicide (dikˆe phonou)
2 Arist. Ath. Pol. 57.3; Dem. 23.22. Thu¨r (1991) offers a different account, arguing that the Areopagus had jurisdiction over cases of homicide committed by one’s own hand (autocheir), and that the issue of premeditation was pertinent to sentencing in both the Areopagus and the Palladion courts, but was not relevant to jurisdiction. For a convincing critique of Thu¨r’s thesis, see Wallace 1991. I discuss the meaning of ek pronoias, generally translated “with premeditation” or “with intent” later in this chapter. Until sometime in the fourth century, the Areopagus also had jurisdiction over the destruction of sacred olive trees (Arist. Ath. Pol. 60.2; Lys. 7), and it may have had supervision over other religious matters at various times. For discussion, see Wallace 1989:106–112.
3 In homicide trials there were two sets of speeches on guilt (Ant. 5.13; 6.14).
4 Ant. 5.13; Dem. 23.69. For discussion, see MacDowell 1963:113–116.Sucha choice between a certain, lesser
penalty and the uncertainty of the jury’s verdict is similar to the modern practice of plea bargaining.
There is, however, an important difference: plea bargaining stems from a desire to reduce the state’s costs by avoiding trial; In Athens, even in cases where the defendant chooses exile, the court has to be assembled and half of the trial conducted.
5 Arist. Ath. Pol. 57.3:
Suits for involuntary homicide, and planning [ bouleusis ], and if someone kills a slave, a metic or a foreigner, are held at the court of the Palladion.
6 The penalty for killing a metic or foreigner appears to have been exile as well. For discussion of the evidence, see MacDowell 1963:126–127.
7 MacDowell (1963:62)has pointed out that our surviving legal texts often contrast bouleusis with cheiri or
autocheir, “with one’s own hand” (Ant. 6.16; And. 1.94;Pl. Leg. 871e–872b).
the homicide courts 77
and received the same legal treatment as the actual killer (i.e., trial before the Areopagus in cases of intentional homicide and the Palladion in the somewhat less common case of bouleusis of unintentional homicide).8 The Delphinion heard cases in which the defendant admitted that he had killed the victim, but pleaded that he had done so lawfully, and was therefore exempt from punishment.9 Examples of lawful homicide included killing a man caught lying with one’s wife, self-defense, and accidentally killing a fellow soldier in war.10 In cases within the Areopagus’ jurisdiction, the entire Council, which was composed of all the former archons11 in the city, sat to hear the case. Cases before the Palladion and Delphinion were tried before a body of 51 men known as the ephetai. As I discuss in more detail below, to the best of our knowledge the ephetai were drawn from members of the Areopagus Council.
The Prytaneion court appears to have been concerned primarily with matters of religion and ritual, hearing cases in which an animal or an inanimate object had caused a death, or where the identity of the killer was unknown.12The court proclaimed the unknown killer an exile, and objects and perhaps also animals found responsible for a death were cast beyond the borders of Attica.13Finally, the court “in Phreatto”14 was charged with judging a somewhat unlikely scenario: if a defendant in exile for a prior offense was charged with homicide or wounding, he was not permitted to enter Attica but was obliged to deliver his defense to the court from a ship anchored off shore.15Aristotle notes that trials in the court in Phreatto were extremely rare, and in fact we know of no case tried there.16
I focus on the Areopagus, the Palladion, and the Delphinion, and do not address the court in Phreatto or the Prytaneion, about which we know very
8 Gagarin 1990b; cf. Sealey 1983: 277; MacDowell 1963:58–69.
9 Dem. 23.74 (ennomˆos);Arist. Ath. Pol. 57.3 (katatous nomous). On the authenticity of the laws cited in
Demosthenes 23, see Carawan 1998:88–98.
10 For discussion of the specific requirements of each of these excuses from liability, see MacDowell
1963:73–79.
11 Archons were magistrates whose duties included presiding over popular court trials. In the classical
period, nine archons were selected by lot each year.
12 Arist. Ath. Pol. 57.4; Dem. 23.76. The composition of the Prytaneion may have differed from the other homicide courts. See Arist. Pol. 1300b24–30; Arist. Ath. Pol. 57.3–4; Plut. Sol. 19.4; for discussion, see MacDowell 1963: 88.
13 For discussion, see MacDowell 1963:85–89.
14 It is unclear whether Phreatto refers to a place or the name of a man after whom the court was named.
For discussion of the evidence, see MacDowell 1963:82–83.
15 Arist. Ath. Pol. 57.3; Dem. 23.77.
16 Arist. Pol. 1300b29–30; Boegehold 1995:49–50; MacDowell 1963: 84.
little. Following the standard convention, I refer to these courts as “the homicide courts,” though their jurisdiction was not limited exclusively to homicide and not all cases of homicide were tried in them. As noted above a few other offenses, such as wounding and arson, were also heard in these courts. And beginning at the end of the fifth century, at least some types of homicide could be tried in the ordinary popular courts through a special procedure known as apagˆogˆe. The homicide courts observed a number of distinctive procedures suggesting a particularly rigorous approach to the charge and the evidence. The most interesting for our purposes is the rule against irrelevant statements, which we will explore in detail in the following section. Other unusual features include a lengthy preliminary process involving three “pre-trials” (prodikasiai) held a month apart before the magistrate,17 and the use of special oaths. Witnesses in the homicide courts were required to swear not just to the truth of their testimony, but to whether the accused had or had not committed the homicide.18 After the verdict the victorious litigant was obliged to swear that the verdict was correct.19
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