I. Housekeeping
Read Johnstone for Thursday

II. Topics from Cohen

A. legal institutions are subsumed within a field of social forces in which legal ideologies of truth, objectivity, and the binding resolution of disputes for the suppression of conflict and violence are but one vector among many.

B. Speeches as source for:
1. "normative expectations"
a. democratic legal ideology [Athenian]
b. game of honor
a. compare to ideology of law [modern]
2. feuding behavior
3. define
a. "feud"
b. "feuding context"
4. legal process
a. litigation anchored in the borader context of agonistic social practices

C. a field of social values orgainized around notions of honor, competition, hierarchy and equality.
1. what are the values Allen discussed?

D. All Athenians (regardless of their ideology) belived the rule of law was the solution to the problem of compeition, conflict and violence; but their accounts of the nature of the rule of law and its relation to political institutions differed in central ways.  Rule of law then is not as moderns think, a series of principles independent of the realm of politics, but itself an ideological construct shaped to suit the needs of particualr conceptualizations of law, politics and society.

E. need to know the web of values and normative expectations which litigants and jurors brought to process -> normative repetoire through which litignts frame their arguments and seek to manipulate the judgment of the court.

F. Litigation is feud: agonistic values shape the way in which
Athenians apprehended what a trial was all about; ct doesn’t provide arena for determination of who is right and wrong (in an abstract sense defined by legal rules) but is rather simply another arena where conflict may be pursued

G. Some features of Ath Lit were in tension w/ demo principles of the rule of law: only activities defined through generally aplicable written statutes as affecting the public interest are punishable by the state [i.e. what the 30 got wrong ­ state interference w/ private life]; but litigants are always asking cts to judge based on their characters, worth to community, not application of law to facts.  Tension resolved by an ideology which identified law with the demos  and its interests; -> speakers could appeal to demos above and beyond paradigm of law to facts [no need for a conflict bt voting according to the laws and voting in the interests of the demos.

H. Judges therefore didn’t simply evaluate a particular action but the lives and careers of citizens as a whole.  Judgment inevitably is a comparative expression and jdugment of the relative worth and standing of the litigatnts according to the normative expectations of the community (not statutory norms).

I. The will to litigate implies the will to submit oneself to the judgment of the community re one’s social positioin and identity. ­ philotimia: competitive pursuit of honor; egalitarian ideal of a community of honor: compete to establish self as primus inter pares

J. The tension between the ideologies of equality and hierarchy was negotiated by granting distinctions which set some cits abouve the rest, but keeping the deicsion about honor and hierarchies in the hands of the people via popular institutions.  Cts provided a forum for the demos to occupy the crucial role of dispensing honor by judging the rivalires and conflicts of leading cits.

K. Athens institutionalized the politics of repuation in such a way as to keep the demos in control; = soc/pol/and juridical meaning of the democratic rule of law

L. Athenians focused on the social meaning of the act complained of in a law suit far more than on the legal meaning.
 

III. Against Conon
A. parties: Ariston is plaintiff; Conon is def [his sons are Ctesias
B. charge is aikeia (battery) but Ariston speaks in terms of hubris
1. note discussion of procedural options
a. apagoge [highway robbery]
b. graphe hubreos
i. MacDowell on hybris

Hybris has several characteristic causes: youthfulness, having plenty to eat and drink, and wealth. It also has characteristic results:
further eating and drinking, sexual activity, larking about, hitting and killing, taking other people's property and privileges,
jeering at people, and disobeying authority both human and divine. No one of these characteristic causes and results is present in
every instance of hybris but its essence consists of having energy and misusing it self-indulgently.

ii. Aristotle on hybris: Aristotle Rhetoric 1378b23-35
 

The hybrizon also insults; for hybris is doing and saying things at which the victim incurs shame, not in order that one may achieve anything other than what is done, but simply to get pleasure out of it. For those who who return for something do not hybrizein, they avenge themselves. Cause of the pleasure for hybrizontes is that by harming people they think that they themselves are the more superior. That is why they young and the rich are hybristai; they think they are superior when
hybrizontes. Dishonor is characteristic of hybris, and he who dishonors insults, since what has no worth has no honor, either for
good or bad. That is why Achilles says when angry (Iliad 1.356) "He dishonored me; for he himself has taen my prize and keeps it"
and (Iliad 17.59) "He treated me as if I were a vagabond without honor."

c. dike aikeias

2. what motivated his procedural choice?
a. Cohen -> assessment of social resources vis a vis conflict litigation would create
i. Ariston says that his friends said he didn’t have the horses for the kind of fight a capital case would produce;
1) => dike for assualt (for damages) wouldn’t create the scale of conflict a capital charge would
ii. age appropriateness
1) he doesn’t have the years to justify hubris because only hotshots brought hubris actions [hubris -> assessment of social standing; young man wouldn’t have achieved his yet]
b. Ariston’s choice of suit is part of his rhetoric of self presentation
c. But note, he’s suing Dad, not son; i.e. taking on someone bigger
C. Facts:
1. general strategy
a. provide feuding context
b. emphasize drinking
i. makes them look like jerks
ii. drinking associated with hubris
iii.
2. garrison duty at Panactum -> ephebes
3. sons of conon act like drunken rich kids
a. abuse slaves
b. how, how is this an insult to owners
4. when Ariston’s unit complains to general
a. Conon’s sons burst into his tent and beat him up
b. Escalation, insult
5. general and commanders intervene
a. says it’s before Ariston and his friends could do harm [but clearly they’re getting the worst of it]
i. he has to self-present as victim
ii. doesn’t want to be passive like slave
b. nb: no discussion of subsequent punishment of Conon’s sons
i. nb: Ariston doesn’t seek vengence at this point ­ what does this say in logic of feud
c. what does this suggest about his representation of the events
6. later in Athens, Ariston is spotted by the drunken Ctesias
a. Ctesias, his father, and family friends were a a symposium
b. Ctesias rousted friends from party and beat up Ariston and his friend Phanostratus
1. abusive language
2. rape or mock rape
i. When we got close to them, one of them, I don't know which, fell upon Phanostratos and pinned him, while the defendant Conon
together with his son and the son of Andromenes threw themselves upon me. They first stripped me of my cloak, and then
tripping me up they thrust me into the mud and leapt upon me and beat me with such violence that my lip was split open and my
eyes closed; and they left me in such a state that I could neither get up nor utter a sound. As I lay there, I heard them utter much
outrageous language, a great deal of which was such foul abuse that I should shrink from repeating it in your presence. One thing,
however, which is an indication of this fellow's hybris and a proof that the whole affair has been of his doing, I will tell you. He
began to crow, mimicking fighting cocks that have won a battle and his fellows bade hi flap him elbows against his sides like
wings.
3. who did the fighting cock dance
4. stole cloak [-> apagoge]
i. why: sexual humiliation
c. strangers rescued
1. implies that humiliation is matter of public knowledge [not limited to friends at camp]

d. Ariston seriously ill as a result of injuries (internal bleeding)
1. would support an attempted murder charge
e. what did Conon and Ctesias do?
1. treat Ariston as a slave
2. treat Ariston as the passive object of their masculine potency and agression
D. Response to Anticipated defense
1. Conon will say it’s just aristocratic sport and Ariston is making too much of it
a. real men don’t make a big deal about this
2. Conon will say it’s sexual rivalry between Ariston and Ctesias
a. Ctesias is part of wretched aristo gang of thugs, but not me
i. Q ­ hint that attack on Ariston is initiation ritual for gang
ii. Suggests that even if this is ok for Ctesias, it is no excuse for Ariston
1) strongly democratic argument: what sort of sons are the rich raising for our city
iii. => that jury should judge between 2 standards of manliness in aristocracy ­ drunken thug, modest self-restraint
iv. => Ariston’s standard is better for city
3. The law requires they be punished
a. note: the fact that he has to make an argument justifying suing Conon tells us much about what the jury would have expected about the social behavior of wealthy young Athenians
b. basis of argument is that Conon has taken tolerated logic of feud to far and entered the chaotic world of blood feud; jury needs to pay attention for sake of city
c. cites laws of feud:
i. slander
ii.  battery
iii. wounding
iv. murder
d. cites law for common criminals
i. highway robbery
ii. murder
E. Discussion of arbitration
1. why does conduct at arbitration matter?
2. Why is timing of challenge for torture relavent
3. He gets result of arbitration in
F. How must jury decide
1. will witnesses help
a. are Ariston’s witnesses more/less credible than Conon’s
1) friends
2) who play the Spartan [anti demo aristos]
3) were members of aristo thug clubs as young men just like Ctesias
b. do witnesses lie?
1) Cohen’s position is considered extreme [although shared by Todd]

2. how will they make character assessment
a. self presentation of participants
b. what are Conon’s problems on character assessment
1) witnesses friends
2) activities are one’s which demos tolerates but doesn’t like
3) but q: will they feel pity?
i. if q is capital, yes
ii. if q is damages, no?
3. what’s best for the city
i. keep aristos feuding
v. don’t let things get nutty