CMS 231/ History 231

Litigation in Ancient Athens

 Week 1 Class 2 Lecture


III Sources & Problems of Athenian Law

 
  • 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.

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  • 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).

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  • 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.

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  • 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.]

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  • 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?

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  • 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.

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  • 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?

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  • 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.

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  • 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.

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  • 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).

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  • 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.

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  • 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.


Lecture 1.2

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