CMS150 - Winter 2001

Trials of Conscience: Litigation

and the Rhetoric of Identity

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Lecture Topics:

• Aristophanes, The Clouds
• Cohen, Law, Violence, and Community in Classical Athens (p. 1-118)
• source analysis

 Aristophanes' Clouds

 A. Background Information

• Clouds produced in 423
• The hero's name, "Strepsiades" ~ "he who twists his way out of debt"
• took 3rd place which outraged Aristophanes, who believe a) it was his best work and b) he believe that Kratinos was past his prime
  • a. 1st to Kratinos for Pytine (The WineFlask)
  • b. 2nd to Ameipsias for Konnos (an anti-Sophist play which at least in part directly satirized Socrates)
• Several years later, Aristophanes revised the play. He probably didn't intend for the play to be produced in public again, but rather to be distributed/published.

B. Aristophanes' treatment of Socrates

• actually fairly gentle when compared with treatment of politicians or Euripides
  • i. NB &endash; in the Symposium, Plato reps Socrates and Aristophanes on very friendly terms
  • ii. Plutarch says that Socrates didn't mind being tweaked in the theater
• not a satire on Socrates so much as on the Sophists with Socrates made to stand for all the Sophists
  • a. takes fees
  • b. teaches rhetoric (makes weaker argument stronger)
  • c. looks into heavens and below ground
    • i. which is a form of impiety bc he's worshipping new gods and ignoring the gods of the city.
• some argue that Aristophanes is less poking fun at Socrates than at the conservatives who bitch and moan about the "new education" but do nothing to maintain the "old education"

Source Analysis

A. If we want to answer the question, who was Socrates, what did he believe in, what kind of man was he, what kinds of sources do we have?

1. nothing from Socrates

2. Plato

• a. "early" or "socratic" dialogues [some argue Apology was Plato's first publication]
• b. Q &endash; how historically accurate?
  • i. we know Plato "uses" Socrates in his later dialogues; i.e., he has Socrates say things that are inconsistent
  • ii. probably written in the 380s [nb. Plato left Athens after the death of Socrates and travelled widely; established Academy back in Athens in 387]
  • iii. adopts the format of an apologia

3. Xenophon

• a. left Athens in 401 (after restoration of democracy) -> wasn't present for trial -> problem of hearsay
• b. probably written late (after retirement to his estate in Sparta)
• c. His Memorabilia written to preserve anecdotes, memoires of friends of Socrates
• d. adopts the format of an apologia

4. Aristophanes

• a. writing comedy
• b. but writing contemporary to Socrates' activities in Athens

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
  • c. 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.

  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 &endash; 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. &endash; 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.