CMS 231/ History 231
Litigation in Ancient Athens
Week 12 Class 2 Lecture
I. Housekeeping
1. Ober 1-156
2. Demosthenes, Against Meidias
II. Lecture
A. Athenian litigation was not so much about applying the law as about
struggling over what the law was and how (or even if) it related to the
dispute at hand.
1. -> law could not be separate from rhetoric
2. -> law created within the rhetoric of litigation
B. Litigation limited external forces on decision making
1. juries didn’t deliberate
2. laws and procedures against bribery
3. size of jury and Athens meant for non political trials personal/local
knowledge didn’t affect jury
4. => language alone established rel bt speaker and jury; -> anxiety
over language (no other source of trust in relationship)
5. => speakers tried to claim authority from sources outside language
a. telling stories juries would recognize as true
b. appealing to written laws (publicly sanctioned norms)
c. appealing to oath, public services, offer of slaves for torture
d. appealing to
C. Rhetorical resources of litigation -> most important endowment for
pursuing cisputes in court
1. language of lit explains strategic choices of speaker
2. system of rhet arg reveals dynamics bt speaker and audience and
constructed choices of speaker
3. reproduced gropus by articulating common interests
a. social id: man, woman, elite, demos, cit, slave, Athenian
4. reproduced Athenian democracy
D. Disputes and Ath Lit
1. dispute: conflict between people; litigation is only one form of
dispute
a. key to understanding disputes is understanding how they are transformed
from one type to another
b. indeed efforts to transform are provisional and contestable: negotiation
about what a dispute is about is a critical part of the disputing process
2. Litigation effected dispute in 3 ways
a. required intervention of 3rd party: jury
i. nb. Other types of transformations can appeal to 3rd parties; e.g.
gossip
ii. but jury different than audience for gossip in that
1) not local
2) provided explicit and irreversible judgment
3) transformed primary rel bt parties (originally most important rel
with each other; now each with jury)
b. imposed specialized roles on disputants
i. now they are prosecutor and defendant and each has specific, assymetrical
resources
1) prosecutor more limited in how he could tell story
ii. each has also lost resources (e.g., abiltiy to use kin, neighbors)
c. simplified disputes by dichotomizing conflict and options for settling
it
i. conflicts in social life rarely about 2 people
ii. litigation compelled people in larger conflict to pick people to
lead dispute and organize around theem
iii. litigation focuses on single incident not series that consititute
the social relationshipo [cf Clinton Monica becomes the incident
through which anger against Clinton articulated]
3. transformation via choice of one party
i. i.e., individs not state prosecuted
ii. violation of the law was necessary but not sufficient condition
to trigger case
iii. => when thinking about legal rhetoric it isn’t accurate that prosecutor
"constrained to tell a legal story"
iv. instead, litigation is evidence that one party decided the best
stragetic choice (in terms of his options in the dispute) was to tell a
"legal" story
v. even when prosecutor made that choice, defendant could still dispute
the nature of the dispute [cf. Conon, this isn’t a legal dispute; it’s
boys rough housing]
4. choice to litigate opens many other choices
i. many events in an Athenian dispute could be considered a crime and
a different type of crime
ii. deciding how to characterize it legally -> different rhetorical
resources
E. Litigation and Ath Democracy
1. this book investtigates the ways in which litigation (understood
as a set of social practices) reprocued social structures and subject positions.
a. social structures: (society, gender, class) ontological primacy
on society and other social institutions
1) what is ontological argument
i. the a priori argument that the existence of
the idea of God of necessity involves the objective existence of God.
2) what is ontological primacy:
i. social structures/institutions create subjects; subjects don’t create
social structures
b. subjects: individuals as autonomous subjects whose agency derives
from intentions
c. third way: reciprocity between subjects and structures located in
the quotidian; social practice subjects draw on structures in their
actions and thereby reproduce them
1) social structures shape resources available to individuals in their
conscious actions (sometimes limiting, sometimes enabling):
2) individuals have an array of social resources they can choose from
to pursue their conscious strategies
2. Johnstone’s construction of Ath democracy is broader than most scholars
a. dem: structure of rels bt adult maile citizens (political subjects)
b. Johnstone: constitituion of pow res in all Ath society including
the political; not simply a rel bt ideological equals but also rels bet
that group and the excluded and the inforeior both equality and inferiority
reproduced by litigation
3. role of litigation in producing Athenian identity
a. we can’t assume that a person’s subjective outlook is mechanically
derived from objective circumstances
b. the way people id selves and define their own interests are culturally
disposed; in historically specific ways
c. have to ask how identities were invoked and reinforced -> groups
(male citizen, aristos, metics) were constituted and reinforced through
language and practice of litigation
4. courts may not have been autonomous institutions to the degree that
American courts are, but they were nevertheless distinct from other soc
practices and institutiosn
a. -> study law court speeches separately from speeches in Boule and
Assembly
F. Evidence: Athenian Legal Speeches
1. assumes wrtten record refelcts oral delivery
2. don’t assume they are "truthful" but recognize effect of jury in
limiting degree of distortion (the plausible)
a. what is plausible however may have more to do with narrative convention
than with the kinds of things that typically happen
3. assume that statistical analysis will support close reading
G. Prospectus
1. Chapter 1: the ways litigatins made arguments about what the laws
meant: invocation of law giver and oath provided protocals for making arguments
about what the laws meant, the understanding of which was limited to those
who had access to the courts
a. atttributions to law giver (authority via fiction of single author)
i. law guiver is usually Solon, sometimes Drakon a fiction because
Solon usually had nothing to do w/ laws attributed to him
ii. => Solon is shortand for idea that a single identity authored law
(we know legislative process involves thousands)
1) -> traditional authority to particular law
2) limits range of interpretation, type of reasoning that could be
supplied
a) nonliteral reading
i) i.e. law doesn’t explicitly cover this situation, but lawgiver
would clearly have meant it to
ii) allows attributed of purpose to law via fiction of lawgiver
b) reading in conformity w/ other laws
i) purpose of law giver in law A determined from context of other laws
where purpose is clear
ii) fiction of lawgiver -> all laws creation of one mind; all laws
part of uniform and consistent body
iii) => underlying logic/purpose of body of law uniform; if you can
determine it for law B-X, you can determine it for A or Z
iv) true procedurally as well as substantive; laws interwoven to include
all crimes and all types of victims [nb -> def can make exaclty opposite
claim: law giver -> different procs for different purposes]
c) reading of law as fundamentality democratic exercise
i) lawgiver = archtect of system of laws that were equated with democracy
ii) lawgiver’s overarching purpose in creating body of laws (and any
individual law) was to protect the ordinary Athenening
3) lawgiver = flexible strategby for advocating an interpretation of
the alw
i) -> the meaning of a law interpreted only through rhetoric
ii) because the lawgiver trope refused a historical mode of interpreation
compelled purely legal way of thinking about law [contributed to development
of law as autonomous field]
b. invvocation of dikiastic oath
i. scholars base account of role of law in court on oath -> jurors
based decisions or should have on oath.
ii. Problem is no one knows exact wording of oath
iii. Nb: what the meaning of oath was subject to debated in courts
(just like meaning of law)
1) requirement tto uphold laws (i.e., literaral interpretation)
2) uphold whole system of law to protect democracy
i) nb: especially in public cases; (made def’s crime in public case
look very serious, grave)
ii) => oath meant diff things in public and private case
iii) nb: most surviving graphe paranomon re honorific decrees
a) -> prosecutor in dispute with opponent would go to law because graphe
paranomon offered him chance to shape conflict as something that threatened
democracy and which could mobilize jury on his behalf
3) oath required jurors to do what would achieve justice
i) scholars: juror’s oath filled gaps (i.e., situtations that laws
couldn’t’ be written for)
ii) problem: litigants never invoke oath as source of justice against
injustice or failure of law; they always say: oath and law require you
to do x; i.e. litigants say that oath complements law, not supplements
it
iii) -> oath was a way to appeal to common social values, but appeal
constrained by legal context
c. consider how Ariston invokes law
i. he reads the laws he’s not suing under; the laws he claims he could
have used
ii. he never quotes the law of assault
iii. why: because he’s developing a systematic argumentt of meaning
of assault in anticipation of argument from Konon that their brawl was
not an assualt
iv. note sequence of laws he cites: slander, assault, wounding, murder:
1) => jury should analyze his fight not in terms of its outcome or
Konon’s intetion, but on possiblity that the conduct could have had
v. citation of hubris and apagoge
1) places assault in a legal design
a) first def (slander -> murder) defines assault as escalation of violence
b) second def (other types of charges with far more serious penalties
-> seriousness of conduct [despite the fact that Ariston isn’t pursuing
the gravest remedy]
d. scholarly arguments on role of law in courts
i. jurors only considered law in deciding cases
ii. litigants used law as evidence; not binding, but persuasive
iii. Johnstone: law framed dispute in specifically legal way; q is
how litigants made arguments about law, not what did law mean [laws specifically
designed to support a range of interpretation]
iv. Ath courts don’t appear autonomous no professional lawyers
v. Requirements that participants in litigation know and understand
these protocals of interpretation ->
1) courts were to a degree autonomous
2) courts constructed citizen identity (had to know protocols to play)
3) interpretative protocols required litigants to remind jurors of
their role in constituting Ath democracy; -> formed class consciousness
e. note stragegies of interpretations offered:
i. words don’t mean only and exactly what they say; -> correct interpretation
found outside text
ii. purpose of law -> correct interpreation
iii. lawgiver had purpose of law in mind.
iv. other laws can help interpretation of a disputed law
2. Chapter 2: How litigants used the laws to tell stories about disputes
a. prosecutors had to use a legal narrative: specific indicident that
violated law involving single opponent in dichotomized conflict
i. prosecutor’s legal story had to recount a crime (specific action
that violated law)
1) pl’s often argued that crime ‘caused’ litigation, which masked their
choice to transform dispute
2) calling events in dsipute a crime was the outcome of describing
events with uniquely legal narrative conventions (not at events in disputes
crimes)
3) events in dispute usually arose in context of ongoing hostile relationshiops
[e.g. Ariston and Conon’s son]
ii. dichotomize conflict (one person had to assume role as prosecutor
and id another as defendant)
1) disputes typically involve multiple parties with different relationships
to each other
2) in private suits this could involve complex business and inheritance
relationships; inherently unstable and shifting until fixed by transforming
dispute into lawsuit
3) in public suits, disputes between leading political figures had
to be transformed into disputes between defendant and jury/demos
a) -> prosecutors minimized own role in case
b) -> choice of procedure (graphe) meant choice of language/story
c) -> what made a dispute political was the decision of a party to
characterize it as a public crime and to characterize jurors as its victim
iii. inherent limits on kinds of people who could appear in and tell
stories (litigants had to be legally competent)
1) disputes cd be between anyone; by and large lawsuits only bt adult
male citizens
2) -> disputes had to be recast into stories about disputes between
adult male citizens
a) e.g., adultery can’t be a dispute between husband and wife, because
wife can’t speak in court
b) problem with Cohen’s type of analysis is that it forces us to repeat
the gender hiearchy of Athenian law: we silence the story of Euphiletos’
wife and her dissatisfaction with her husband [cf Neira; law can’t tell
story of dispute between courtesan and protector; has to tell story of
dispute between two male lovers of a courtesan]
b. defendants had wider narrative resources to contest characterization
of dispute as legal
i. antinarrative there is no story
1) attacks coherence of prosecutor’s story
2) appears that this was rarely enough [nb no burden of proof
on jury]
ii. counternarrative
1) accept pl’s characterization of event as crime, but say that pl
was culpable [cf Simon; pl started brawl in which I struck him]
2) dispute should not be understood as crime
a) attacks pl’s def of event as crime
b) offers own narrative of events [-> suspect motives of pl]
i) sycophants
ii) part of ongoing dispute/hostility [e.g. Konon’s defense]
iii) broadens group involved in dispute
iv) offers political, illegitimate motive for prosecution [e.g. Euxitheos
and Eubulides re deme registration]
c. All litigatants refered to law as a way of understanding and evaluating
their own and their opponent’s behavior
i. which helped to reprocude groups in society
ii. via invokation of dikastic oath
1) prosecutors say oath means jurors have to ignore def’s counternarratives,
invokation of charis
2) defendant’s say oath meanns juros have to protect them from prosecutor’s
antidemocratic use of courts to deprive them of their citizenship
iii. law is presented in legal narratives as a model for human action
1) law explains their motivations;
2) law even compels their actions [nb this is inherently retrospectvie];
cf Euuphiletos re Eratosthens: the law compelled me to kill him
3) litigation provided a template that made sense of human behavior;
maybe after the fact and maybe incompletely; but they compelled parties
to make up a story that explained the events in dispute.
3. Chapter 3: how litigatants talked about the dare or challenge
a. procedureal disagreements substitute for substantive ones
b. -> litigatnts could save face outside of courts
c. -> inside of court dare/challenge was extra linguistic authority;
a fact not a mere argument
4. Chapter 4: how defendants invoked their public service and asked
for charis from jury (reciprocal favor)
a. asymetric: prosecutors couldn’t invoke; defendants used to undermine
prosecutor’s legal narrative
b. def -> life more than event; => dispute more than single ‘crime’
prosecutor picks
c. inherently created discourse on and reporduced social hierarchies
and institutions (reinforced juror’s awareness of collective interests)
5. Chapter 5: how defendants begged for pity, verbally and enacting
them in rituals of weeping and supplication
a. wanted performative language that would be stronger, more certain
than mere rhetorical langauge of courts
b. elite litigants humble selves before demos and implicitly undercut
social hierach at odds with political ideal of citizen equality
6. Chapter 6: relationship bt litigation and Ath cultuer
a. Ath litigants quarreled over degree to which litigation should consider
only law or cultueral considerations of well
b. Structured in process of litigation: prosecutors confined to narrow
‘legal’ view; defendants resisting prosecutors efforts to transform dispute
into law
c. -> litigation itself sturctured the debate over the role of litigation
in society; how bounded it should be, how permeated by other social forces
d. required litigants to define groups by identifying interests and
attributing those interests to them.