A book to which I will refer quite frequently in lectures is The Shape
of Athenian Law by Stephen Todd. The book was out of stock at the publishers,
so I wasn't able to order copies for the course. The book is on reserve
at the library. I recommend you take a look at what he has to say, and
will signal you in lectures, to what pages I'm referring. Much of what
I have to say here, for example, is drawn from Todd, p. 1-17.
The oratorical corpus of Greek literature includes three types of speeches:
epideictic ("display pieces"), deliberative (speeches made to political
decision making bodies like the Assembly), and forensic (speeches made
in law courts). There are about 150 speeches in the entire corpus, about
100 of which are law court speeches, dating from the very end of the fifth
century and spread unevenly throughout the fourth century (i.e., some decades
have a lot, some have very few). The forensic speeches we have all come
from Athenian courts (hence we talk about Athenian law or litigation, not
Greek).
Despite the fact that we have so many (from an ancient historian's point
of view) the forensic speeches have posed difficult problems for analysis.
First, they are clearly unrepresentative of Greek practice. Second, they
have largely been studied for their rhetorical structure and/or the historical
factoids they contain, rather than as products of the Athenian legal system.
This is because of the third reason: moderns don't understand Athenian
law very well.
The speeches are unrepresentative. Athenians had to represent themselves
in court (no lawyers allowed). They could, however, pay someone to write
the speeches they would give (cf. opening/closing arguments in American
trials). For a number of our speeches, we know the identity of both the
speechwriter and the man who gave the speech. However, the proportion of
speeches we have is miniscule compared to the number of speeches given.
Moreover, we have to consider whether the speeches we have are typical
of the speeches that were given. Clearly only wealthy men could afford
speechwriters. If we believe that many of the "lost" speeches were given
by ordinary citizens, then we have to assume that the speeches we have
would not be typical of the speeches Athenians heard. We will have to consider
whether the assumption implicit in this analysis is correct. If, conversely,
the Athenian courts were primarily political arenas in which members of
the elite litigated as a form of political competition, than the speeches
we have may be quite representative of the speeches Athenian juries heard.
[But we will have to figure out what ordinary Athenians who had a beef
did to get it resolved.]
There are other sources that inform us about Athenian litigation: plays,
inscriptions, etc. These can be quite difficult to interpret too (consider
the problems Saturday Night Live sketches about the Florida election controversy
will pose to historians 2,500 years from now). We will read Aeschylus'
Oresteia (a trilogies of plays in many ways about how Athenian courts
were the basis of Athenian democracy) and Aristophanes' Wasps (a
comedy about how retired Athenian men loved to serve juries). One question
we should ask ourselves is how our sources compare with and comment on
each other. Does Aristophanes help us to understand Lysias?
The Athenian forensic speeches were preserved, in large part, because they
were examples of extraordinary rhetoric. Romans read Demosthenes because
they thought it would help them to understand how to give a good speech
in their own law courts (and because it was a way for rich young students
to show off). British schoolboys did the same in the Victorian age for
largely the same reasons. This criteria for preservation is something of
a problem for historians - speeches which might have explained a factual
controversy weren't preserved because they weren't rhetorically good enough;
speeches which have been preserved because they are beautifully written
are on ridiculously arcane topics. Moreover, because they were preserved
as rhetorical exempla, the speeches often lack information that contemporary
audiences would have taken for granted - statements of the law at issue;
statements of witnesses to the underlying conflict; the speech by the opposing
party; records of the jury's vote. Finally, because the focus of study
on the forensic corpus has often been so literary, the scholars doing the
work often didn't raise or pursue the kinds of questions that historians
or legal scholars might have. One famous 19th century editor of Demosthenes,
for example, was devastated to discover that the orator Isaeus (the hero
of his school days) had, well, exaggerated, if not lied, in a speech. This
is an observation that lawyers or historians might not have considered
a discovery.
Athenian law is difficult for us to understand because inevitably we approach
studying law in different cultures from the viewpoint of our own legal
system. For example, while an Athenian could sue and win a judgment in
an Athenian court. He had no means to enforce the judgment. If the defendant
refused to pay what the jury had ordered, he had to sue again. And if he
won again in the second trial, he would still have no way of compelling
the defendant to obey the court's decision. To us, this seems like madness.
What is the point of winning a jury verdict if you can't enforce it?
This is a reasonable question, but we should be aware that in asking it,
we betray a number of assumptions that we have about what law is and does.
We are the products of the western legal tradition that began with the
Romans and has continued to evolve in Europe and English speaking countries
for several thousand years. In this tradition, law presents itself as a
system and a science. The Roman jurists, starting in the second century
BCE, according to Bruce Frier (The Rise of the Roman Jurists) did
what no one in the Mediterranean basin had done before them: they created
an effective science of secular law. As a consequence, European and Anglo
legal scholars think of law as a normative discipline articulated in a
theoretically systematic way; i.e., governed by rules independent of social
context.
What do I mean by "normative discipline articulated in a theoretically
systematic way?" First, the law is a subject that can be studied and argued
about. That people who do study it obtain specialized knowledge and skills,
which the general public doesn't share. These specialists, moreover, in
writing and arguing about law came to believe that law was a field of study
independent of any specific cultural context, and to represent law as such
a "science." For example, a doctor believes that a temperature of 103 degrees
is a symptom of an underlying disease process, regardless of whether the
person who has the temperature lives in Maine or New Zealand. A lawyer
believes that intent and consideration are necessary for the formation
of a contract. How one determines that intent did or did not exist, and
how one measures consideration may vary from place to place and in time,
but all cultures have contracts and all contracts require intent and consideration.
From this perspective, the fact that Athenian law provided no way to enforce
jury verdicts can only be regarded as a flaw, or a failure. And indeed,
throughout most of the last century, scholars who have studied Athenian
law have characterized it as "primitive" and "incomplete." No legal system
worth its salt, these scholars nurtured in the orderly confines of Roman
law believed, could possibly omit enforcement of judgments. If Athenian
law didn't, it's because there was something wrong with Athenian law.
In the last two decades, however, scholars have come to recognize that
much of the way the law presents itself, and legal scholars and lawyers
present both themselves and the law, is at least as much an ideology of
law as it is an accurate description of law. Law can never be divorced
from the social system in which it participates. What a particular society's
laws characterize as natural and normal are often the product of socially
constructed distributions of power (e.g., the characterization of women,
children and slaves as legally incompetent) which serve the purposes of
those who have power within that society (including the lawyers and legal
scholars).
It is important, accordingly, to recognize how much the way we characterize
Athenian law says about the way we experience our own legal system. It
remains important, however, to discover the features which characterize
Athenian law. If we are aware of our own assumptions, it is possible to
fruitfully compare and contrast legal institutions and practices in Athens
and the modern west. Two aspects of Athenian law are strikingly apparent
to historians, for example, through the practice of comparison. First,
unlike Roman law, Athenian law, as Todd says, had no legacy. Roman law
profoundly influenced the law of western Europe and English speaking countries,
both in terms of legal procedures and in terms of legal thinking and scholarship.
Athenian law appears to have had no such influence on subsequent times
or places. Second, unlike Roman, and therefore European law, and the law
of English speaking countries, Athenian law was not systematic. Perhaps
this is an idealizing statement. A good argument could be made that the
history of Roman law was a history of persistent and unsuccessful attempts
to systematize. But the idea that legally thinking should be systematic
is one that modern citizens of western countries accept as "normal" and
"natural." The Athenians, it seems, didn't share that idea.
If Athenian law left no legacy and does not present itself in a systematic
way to us, why should we bother to study it? Todd suggests several reasons.
First, when a culture presents a practice which is fundamentally alien
to a historian, the historian can by pursuing that practice learn much
about what it meant to be a member of that culture, a citizen of Athens.
If the historian is aware of the preconceptions she brings to the study
of the practice, she may find that she learns quite a bit about her own
culture as a kind of bonus. Second, everything we know about the Athenians,
and everything they said about themselves suggested that they loved to
sue. In this sense, they appear not to be so strange to modern Americans.
But given how important litigation was as an activity to Athenian citizens,
we must study how the Athenians understood their own relationship to the
law, how their law actually worked, and how their legal thinking permeated
their society. Finally, the speeches, in addition to be extraordinary examples
of rhetoric (and this is reason enough to learn Greek and read them) and
an excellent source for legal thinking and practice in Athenian life, are
also inevitably repositories of information about life in fourth century
Athens that is of inherent interest to a modern historian. We can ask and
answer questions like: how did one prove he was a citizen; how did one
make and collect a loan; how did one claim an inheritance (in other words,
the stuff of everyday life); simply by reading the forensic corpus.