Carey-legal Space in Classical Athens

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Legal Space in Classical Athens Author(s): Christopher Carey Source: Greece & Rome, Vol. 41, No. 2 (Oct., 1994), pp. 172-186Published by: on behalf of Cambridge University Press The Classical AssociationStable URL: http://www.jstor.org/stable/643012Accessed: 14-06-2015 16:14 UTC

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Greece & Rome, Vol. xli, No. 2, October 1994

LEGAL SPACE IN CLASSICAL ATHENS

By CHRISTOPHER CAREY

Like many features of democratic Athens, the legal system is both strikingly familiar and disturbingly alien to the modern reader. The principle of trial by a jury of laymen is one which, though intermittently criticized, remains the basis of the decision-making process in modern Britain. At the same time, the size of the jury panels, their powers, the reliance on volunteer prosecutors, the use of an exchange of speeches as the method of presentation, these and other features diverge significantly from accepted practice in our own courts. My concern in this paper is with one striking divergence, the way in which the relationship between the legal system and society at large is conceptualized, and with the problems it raises. In modern developed societies the law and the lawcourts are fenced around with procedural, psychological, and in some cases constitutional barriers. The law itself is a self-contained system, distinct from other coercive forces, and perceived as separate from the political life of the community. Procedures and participants in the courts are given a degree of protection from constraints which apply elsewhere, in order to ensure that all relevant information is disclosed and that a verdict is given on the facts of the case, taken as far as possible in isolation from the rest of the lives of the participants and the community. All these barriers are absent in the context of classical Athens. In practice and in conception the law and its administration are in some important respects indistinguishable from the life of the community in general.

One barrier regarded by most moderns as essential is that between the law and politics. As a doctrine this goes back to the eighteenth-century French writer Montesquieu, who in his work L'esprit des lois defined three areas of government, the executive, the legislative, and the judiciary. He argued that the avoidance of despotism rested on the prevention of any one individual or body from controlling all three, the principle being that each should act as a check on the others. The doctrine is known as the separation ofpowers. Montesquieu's principle is built into the American constitution, where the executive (the President) and the legislature (Congress) have distinct functions, and the judiciary is theoretically independent of both. Although there is no such formal separation of functions in Britain, it is


LEGAL SPACE IN CLASSICAL ATHENS 173

generally held that the courts should be politically independent. In classical Athens the lawcourts and the assembly were distinct bodies, in that the courts were not at this period sessions of the assembly;1 and the courts were not responsible to the assembly. There is however no evidence for a belief in ancient Athens that the courts should be separated from or placed above politics. Quite the reverse. The jury courts were indispensable to the political process. The vetting of public officials involved the courts. There were ten opportunities per year for the assembly to vote officials out of office, and expulsion would normally lead to a trial.2 The procedures for legislation used legal action as a brake on the law-making process. Legislation and its proposer were exposed to challenge for illegality by means of prosecution of the proposer, with penalties upon conviction.3 In the fourth century B.C. the repeal of old laws and framing of new laws involved panels of jurors.4 In addition, politicians used the lawcourts as an arena in which to continue struggles begun in the popular assembly. This politicization of the lawcourts arises naturally from the importance of access to the law in the democratizing process; Aristotle (Ath.Pol. 9.1) regards trial by jury as a major step towards popular control of the political process. But the politicization of the courts is not just a survival in the classical period; for the courts became more rather than less political with time. The regular use of panels of jurors for the legislative process is a product of the developed democracy. The use of the courts in the vetting of magistrates was increased during the classical period; the Ath.Pol. tells us that a system which gave the council of 500 complete responsibility for vetting the newly selected councillors and Archons was subsequently supplemented by an additional stage, appeal to the jury courts in the case of the bouleutai and an automatic second hearing before a jury-court in the case of the archons.5 In the fourth century we even find the jurors vetting plans for public buildings and other contracts, where it is felt that officials might show favouritism.6

We are used to the notion of the courts as a privileged place. Proceedings in contemporary British courts are subject to absolute privilege. Statements in court by those involved in the proceedings are exempt from legal action. There was no privilege in this sense in the Athenian courts. One courtroom speech surviving from the classical period is a suit for slander arising from a statement made by a defendant in court.' The defendant in question. Theomnestos, who was charged with addressing the assembly despite having thrown away his shield in battle and so rendered himself ineligible to exercise citizen rights, asserted that one of the witnesses for the prosecutor had killed his own father. Allegations of homicide fell into the


174 LEGAL SPACE IN CLASSICAL ATHENS

category of expressions forbidden by law and susceptible to action for slander; so Theomnestos found himself prosecuted again, this time for slander. However, the allegation of throwing away one's shield in battle was also one of the accusations covered under the law of slander, and accordingly Theomnestos prosecuted one of the witnesses in the original trial, Dionysios, and possibly the prosecutor Lysitheos also, for slander (successfully, at least in the case of Dionysios). Parties in court are afforded no more protection from actions for slander than the man in the street. There is another, informal, aspect to privilege in modern courts. We are used to the notion of the court as a place where anything may be discussed; again we have a clinical conception of the legal system. In cases of rape or murder, for instance, it is normal for the most intimate or even disturbing details to be presented to the jury, details which might give offence in the world outside. The same is true of civil cases. When a South African journalist brought a recent action for libel, the court was treated to an intimate and sometimes hilarious account of the sex life of the leader of a right-wing political party. There were in ancient Athens no formal rules limiting the kind of thing which might be said in court. In practice this meant not that anything at all might be said in court but that the rules for propriety in court were those of polite conversation. In 345 the politician Aischines attacked another politician Timarchos for having been a prostitute in his youth, an activity which led automatically to the loss of citizen rights. In any equivalent modern trial it would be necessary to prove that specific acts had been committed. Aischines however in his speech for the prosecution8 never tells us exactly what Timarchos has done. We are left in no doubt that his conduct has been disgusting. But Aischines refuses to dwell on unsavoury details. Likewise, in the prosecution of Neaira a few years later for illegally living in marriage with an Athenian citizen,9 although much is made of Neaira's earlier career as a prostitute in order to blacken her character, the presenter of the case for the prosecution, Apollodoros, avoids excessive precision. In both cases the prosecutor is constrained not by rules but by considerations of good taste. More striking still to the modern reader are a number of occasions on which speakers in court, while referring to shocking or indecent language or behaviour, explicitly refuse to give details, like the following account (from Demosthenes) of an invasion of his house by a man named Meidias: 'And then in front of my sister, who was in the house then and still a girl, they said disgraceful things, the type of things their sort would say (I could not be induced to repeat to you any of the things said then) and to my mother and me and all of us they uttered insults both speakable and



unspeakable'.10 It is acceptable to withhold information in court which would offend decent people. In theory of course this type of constraint looks like a terrible handicap. In practice it is an enormous boon. Litigants are well aware that if the jurors are left to imagine the details for themselves they will come up with something far more shocking than the actuality. Speakers are also able to exploit such modest silence in order to present themselves as men too decent to utter filth, while the opponent emerges as someone who is prepared to do things which decent people shudder even to utter.

This tacit conception of the courts as an extension of decent discourse is so obvious, so much part of the daily reading of the classical scholar, that it is easily overlooked. Thus, we find in Hermogenes a nugget alleged to be from the speech against Neaira and reportedly obelized 'by some'; the passage in question describes Neaira as having 'earned her living from three holes', a graphic reference to her activities as a prostitute. Blass inclined to the opinion that the passage belonged in ?108 of the speech. It is however exceedingly difficult to imagine so graphic a phrase being uttered in the context of periphrasis and evasion which makes up the allegations against Neaira.II Within the last couple of years two writers have attacked the prevailing view of the treatment of adulterers in classical Athens.12 We know that the law of Athens gave a man considerable powers over any male whom he caught having illicit sex with a woman under his control and protection. This included the right to kill, or to subject the guilty man to physical abuse. The textbooks tell us that popular punishments included thrusting a radish into the anus of the offender or plucking out his pubic hair using hot ashes; there is some evidence that fish could be substituted for root vegetables according to taste (a fish with sharp spines appears to have been favoured). However, the evidence for the classical period all comes from comic plays, and it is now being suggested that we have been misled, mainly because prose writers, including orators when mentioning adultery in court, never mention radishes, spiky fish, or hot ash. The reason for this silence however is not that the comic writers have misled us but that this is exactly the sort of detail which would not normally be mentioned in an Athenian court. We should expect coyness and evasion; and that is what we get, in the orators as in other prose sources.

A second way in which the jury courts are not separated off procedurally from the rest of the life of the city and the participants in the trial is the question of relevance. Modern courts have precise, sometimes highly artificial, definitions of relevance. A line of questioning may be stopped by a judge if it has no bearing on the case. Statements which are for one reason



or another improper may be struck from the record. In the U.S.A. evidence which is obtained without due process may be excluded from the trial. In British courts the past offences of a defendant may not normally be used as evidence. In classical Athens however there was no significant attempt to limit the information available to the juries. The only exception in Athens was the Areopagos, the chief homicide court, where procedural rules forbade the introduction of matters 'outside the issue'. Aristotle makes clear that this was unusual not just in Athens but in Greece in general.13 The result of the absence of such a restriction may be seen in surviving oratory.14 Speeches delivered in court are full of emotional appeal (plaintiffs stir the jurors to anger, defendants appeal for pity - it was common in fact for defendants to produce their children in court, weeping or begging for mercy). Speeches are also full of reference to the civic virtue of the litigant as a claim for generous treatment, and equally full of character assassination against the opponent. A whole range of allegations can be made, crimes of theft or violence, sexual misconduct such as adultery, base or servile extraction, political misconduct or unsoundness. The trial is thus placed squarely in the context of the lives of the parties concerned. This is equally clear in the case of witnesses. To us, witnesses gain in credibility in direct proportion to their distance from the parties concerned. The chance witness, the outsider, seems more credible than someone closely connected with plaintiff or defendant. Athenians however made a point of supplying themselves with friendly witnesses whenever they were engaged in activity which might have legal consequences."1 A recent detailed study of the identity of witnesses in actual trials confirms that in general the preference is for close associates, members of family or community, rather than strangers.16 Its author, Sally Humphreys, concludes that the organs of state justice are concerned to know how the issues in dispute are evaluated by the community most closely associated with the parties concerned.

In addition, the jurors are often asked to consider the effect of the verdict on themselves, their families, and the city before casting their vote.17 The trial is thus placed firmly in the lives of jurors and community at large. This conception of the courts is particularly clear in trials for military misdemeanours. We know that people accused of desertion in battle or draft-dodging were tried before a jury consisting of citizens who had served on the campaign in question; the trial was presided over by the generals who had led the campaigns."8

The appeals to emotion mentioned earlier highlight another aspect of the system. The implicit assumption in the modern court is that the jurors will arrive at a dispassionate decision. The approach is implicitly clinical.



The Athenian assumption is the reverse. The jurors are asked to become emotionally involved; they are often explicitly invited to feel anger or resentment, even hatred, for the speaker's opponent. It is assumed that the jury respond to what they hear in court exactly as they would respond to the same events in the outside world. This is not merely a matter of theory. We know from a number of sources that Athenian juries were highly demonstrative.19 They were inclined to shout their approval and disapproval of what they were hearing. It is as well here to bear in mind the size of the juries. Even the smallest jury-panel, a mere 200, could raise quite a racket. One speaker in the fourth century complains that at a previous trial his opponent prejudiced the jurors so effectively against him that they would not listen to a word he said.20 He may be lying, but presumably on occasion it was very difficult for a litigant to make himself heard above the noise. In part this behaviour pattern arises from the conception of the juries as the Athenian people sitting in judgement. Under the democracy the people have sovereign power. But it reflects the way the legal process is felt to relate to the outside world. The jurors react in court as right-thinking men should.

I turn now to the question of proof. In criminal cases in England guilt must be established beyond reasonable doubt. In order to convict, the jurors must be satisfied by the evidence that the accused is guilty as charged. This standard is clearly both more rigorous and more precise than that which is applied in most non-judicial contexts. The standard of proof for civil cases is less demanding; balance of probability suffices. In Athens the criteria for decision-making were never spelled out. Here as elsewhere jurisprudence in Athens is implied rather than explicit. We can however draw some conclusions both from Aristotle's discussion of proofs in his treatise On Rhetoric and from observable practice in the orators. In the Rhetoric Aristotle divides the means of proof into two categories, 'artificial' or 'artful' and 'inartificial' or 'artless'.21 By 'inartificial' proofs he means roughly what we would call direct evidence; that is, depositions from witnesses, statements from slaves under torture (no evidence from a slave could be admitted unless it was extracted under torture), contracts, etc. By 'artificial' proofs he means those which are produced by the rhetorician's art: argument, appeal to emotion, and moral character (the image projected by the speaker). What is striking about his list is that he sees no fundamental differentiation between proof in the lawcourts and proof in other contexts. The same techniques are at work in the courts and in the political arena or anywhere where an audience must be convinced; and by implication the standard of proof is the same in the courts as in



other contexts. Aristotle places the emphasis in his discussion on the rhetorical means of persuasion, rather than on the testimony of witnesses etc. This attitude is observable in contemporary practice. There is in fact a striking development during the classical period in this respect. In the fifth century B.C. the earlier practice places the emphasis on narrative (the speaker's statement of the facts of the case) and supporting testimony. However, during the fifth century there was a remarkable growth in the study of rhetoric, which became an integral part of advanced education in the developed parts of Greece. A particularly important element in this new science was argument from probability; that is, argument from the behaviour of man as a type to the behaviour of individual human beings. By the end of the fifth century this type of proof (rhetorical proof) has begun to play a major role in the presentation of a case in court, as practitioners of the new science realize that argument from probability can be used to damage a seemingly watertight case based on evidence. The result of this tendency is an increased emphasis on what we would call circumstantial evidence, as arguments are drawn from the general behaviour of one's opponent to demonstrate his lack of faith in his case, or from one's own behaviour or circumstances to prove that claims made by the opponent are inherently improbable. The politician Timarchos, mentioned earlier as being prosecuted for having prostituted himself, was convicted largely on circumstantial evidence. There is then a further step during the classical period away from a potentially clinical (and to us more acceptable) view of the legal process towards one based on the type of reasoning used in everyday life.

Thus the courts are seen in a different light in the Athenian context. Where we surround the courts with barriers which set trials apart from the rest of society, and treat the legal process as a distinct and separate activity, the Athenians see the courts as part of a larger picture. They are part of the political life of the city; part of the life of the individual litigants, so that a litigant's whole life is relevant to the trial; they are subject to the ordinary rules of decency and the ordinary rules of law.

What emerges thus far is a seamless joint between the courtroom and the life of citizen and city. The same picture emerges when one looks at the law itself. This is especially clear in the area of language. For us the law has its own terminology, often unintelligible to the layman. This is not true for Athens. The laws were passed by an assembly of ordinary citizens. As a result there is a marked absence of specifically legal terminology. The language of law is in general the language of everyday life. This is accentuated by the structure of Greek laws. Laws tend nowadays to be



divided into 'substantive' and 'procedural'. 'Substantive' laws embody rights and prohibitions: 'procedural' laws deal with legal procedures to be adopted in given circumstances. Most Athenian laws were procedural; that is, they tended to define legal remedies and responses (what to do when assaulted, for instance), not to regulate behaviour explicitly. The same is true of Roman law. But with a significant difference. Roman laws received further definition from the activities of legal experts who gave opinions on the applicability of the law in specific hypothetical cases. The Athenians did not approve of professionalism in legal contexts, and there was therefore no cultural base for the development of such activity. There was moreover, no concept of precedent, so that each jury was unfettered by the decisions of preceding juries. Consequently, in many important cases, the definition of an offence was imprecise. The law on hybris is a good case in point. We are all familiar with the idea of hybris as a state of mind. But in Athens it was also an offence. The Athenian law on hybris began: 'If someone commits hybris. ..'22 But it does not define the offence. As a result, there is still considerable debate about the definition of hybris. In all probability the definition was elastic, depending on the presentation of a particular case and the receptivity of a particular jury. The point is that hybris in the law was largely identical with hybris in ordinary speech.

My last point with reference to the law concerns the extent to which the law itself is privileged. In modern developed societies law is a self-contained system which has authority over other regulatory systems. We are used to discrepancies between law and justice, law and morality, and to the overriding power of law where there is conflict. The Athenians however, from the point when they acquired written laws, began to talk of another parallel system, 'unwritten laws', a system of traditional values whose breach is met not (or not primarily) by legal penalties but by social sanctions. Aristotle, when advising on lines of argument to deal with direct evidence, urges litigants when the law is against them to argue for the paramount importance of the unwritten laws.23 It would be a mistake to conclude from this advice that the Athenians saw a fundamental conflict between written and unwritten law. Although the Athenians were well aware that the formal systems of the polis and the demands of morality could come into conflict, an awareness expressed most vividly in Soph. Ant. 450ff. (part of which is quoted by Aristotle at R. 1375a), written and unwritten law are seen more often as complementary and compatible than as competing.24 There were however areas in which strict application of the laws and more general moral considerations could diverge, in particular equity and gratitude. Aristotle at R. 1375a-b associates equity (epieikeia)



with the unwritten laws as a counterbalance to strict application of the written laws, and this is a factor in the decision-making process which figures in surviving forensic speeches. That the jurors might temper strict legality with equity is clear from the pleas for pity from men on trial. Likewise, Greek morality placed great emphasis on reciprocity, on requiting favours and wrongs, and we get both direct and indirect appeals for charis (gratitude) in forensic speeches, based on the public service record of the litigant. The jurors' oath in Athens bound the jurors to vote according to the laws, but where the laws gave no guidance (literally 'concerning matters on which there are no laws') to vote according to conscience (literally 'according to [my] most just opinion'). The laws are not the only canon for decision making. Procedurally too laws are not privileged. They are treated as a category of evidence, and like all evidence they are presented by the litigant (though read out by the clerk of the court) alongside depositions, contracts, etc.

It would however be a mistake to suppose that there are no conceptual barriers surrounding the lawcourts. The laws and the lawcourts mesh seamlessly with the activities and values of society as a whole and the immediate participants. But the lawcourts themselves are always seen as a last rather than a first resort. Procedural steps were in place to allow compromise decisions and to penalize casual recourse to litigation; and from any number of statements in the orators it is clear that there was a general disapproval both of habitual litigants and of those who rejected compromise. The laws themselves are also in one important respect placed at a remove. There is a recurring suggestion that the laws are for consulta- tion only as needed, rather than out of interest or for future use. This is clear for instance in passages where litigants accuse their opponents of 'excessive' knowledge of the laws, and when people discussing the laws feel compelled to excuse their legal knowledge.25 Part of the answer here of course lies in the structure of the laws. Where the laws deal primarily with procedures rather than commands and prohibitions, knowledge of the laws indicates a desire to utilize them in the lawcourts, which in turn suggests a quarrelsome and manipulative disposition. Knowledge of the laws is a sign either of bad luck (finding oneself in a dispute) or character defect.

A system which is envisaged in this way inevitably presents problems both for evaluation and for understanding. I shall confine myself to the easier question of how one understands the role of law and the decision- making process.

One general problem arises from the cultural attitudes to proof. In the context of the modern awareness of the limitations of circumstantial



evidence, the Athenian fondness for rhetorical means of persuasion may seem misguided, even perverse. It suggests an audience more interested in lively oratory than hard fact, the audience described so vividly by Kleon in Thucydides' version of the Mytilenaean debate (3.38). It is important however to bear in mind that rhetoric was more than a way of arguing. It was a way of thinking, based on a confident belief that human conduct can be understood in terms of the application of general principles. Seen in this way, it has much in common with psychology. To the Greeks therefore it seemed a more reliable tool than it may seem to us. It is perhaps worth adding that it was probably very difficult to win a case without any supporting testimony or documentation at all. Rhetoric can only take you so far.

Another problem arises in the area of the language of law. Where the laws do not spell out the obvious, the outsider is likely to ask them the wrong kind of question. A few years ago I tried to establish the status of a foreign woman living in Athens when her husband was given Athenian citizenship.26 The question arises because the decrees granting citizenship to male aliens ignore their wives. My initial approach was to enquire what the legal position was, by which I meant 'what did the law say?' It is unlikely that the law mentioned the wives. Even rephrasing the question does not help much. If one asks: 'What were the rights of a male alien who was enfranchised and how did this affect the status of his wife?', the answer is again, in all probability, that the law did not go into detail. His rights were those of an Athenian citizen, and these in turn were defined in usage rather than in law. The result of my enquiry was a (highly subjective) answer based on conjectured usage rather than the letter of the law. In arriving at more useful questions, the emphasis by a number of recent writers on legal anthropology is potentially very valuable, since it offers alternative models for dispute settlement and for the conception of law; it also compels us to make explicit some of our own assumptions which get in the way.27 However, a word of caution is needed, since most of the societies on which studies are available are less advanced socially and politically than ancient Athens.

The greatest difficulty, however, attaches to the task of differentiating elements which the Athenians chose not to separate. The modern scholar needs to gain an idea of the relative importance of different factors in the decision-making process in order to understand the process. This is particularly true of the relationship between factual issues and matters such as character. The potential for misunderstanding here is great. A recent study subsumes the operation of the legal system in Athens under a



general model of competition.28 We know that the political process was highly competitive. There were no political parties in the modern sense. Individual politicians competed for influence in the assembly. Competition also played a major role in religion, most importantly in Athens in the dramatic and musical festivals, which consisted of competitions between playwrights/producers. In the same way, according to this model, the courts awarded decisions to successful competitors on the basis of matters irrelevant to the case at issue. This view is based on the tendency for litigants to offer their political and other services to the city as part of their case, as a claim on the good will of the jurors, and to present their opponents as social misfits and habitual criminals. It is based on a view of Greek culture, prevalent in recent years, which focuses attention on the competitive aspect to the exclusion of other equally important features. There is in fact nothing inherently implausible in a judicial model based on competition. The Eskimo Nith songs seem to offer a good potential parallel: under this system disputants contend with abusive songs and dance, and the winner is determined by public acclamation. Similar procedures are described with reference to the Tiv of north-eastern Nigeria.29 Certainly, the jurors will have taken account of issues such as character and career. At the most basic level they will have allowed such issues (where they could verify from personal experience or could accept as plausible the information presented) to influence their view of the credibility of a litigant. Given the inflexibility of the sentencing process (either fixed penalties or a choice by the jury between penalties proposed by the opposing parties), they will have taken the general character of a litigant into account in reaching a verdict on the question of guilt, as the only way to introduce an additional degree of flexibility into the legal process. And no doubt on occasion, in the case of a notorious figure, they will have allowed their hostility or their enthusiasm for an individual to dictate their verdict. But it is a mistake to suppose that as a general rule the main issue becomes an appendix at the trial. A crude reading of the orators shows that, in general, information about the career and character of the disputants plays a much smaller role (quantitatively) in Greek trials than the main issue. It is moreover important to note that we do not find speakers in court admitting that their case is weak and asking for a verdict in their favour on the basis of factors outside the case. It was evidently difficult to win a case on character-assassination and self-praise.30 The competitive model also pays too much attention to political cases and not enough to the private disputes which presumably made up either the majority or at least a substantial proportion of the cases heard by the



courts. Even in political cases it is a dubious model for the functioning of the system as a whole. When Demosthenes prosecuted his political enemy Aischines in 343, Aischines was on the way out as a major figure and Demosthenes' star was rising. Aischines won, just. A few years later, the successful politician Lykourgos threw his enormous prestige into the prosecution of a rather shabby private citizen on a capital charge. Lykourgos lost, just. It would be naive to suppose that cases such as these were settled simply on the basis of prestige.

A related issue is the treatment of law as one of a number of coercive systems rather than the sole system. As with the factual issue, the appeals by litigants, implicit or explicit, to values which are parallel or complementary to the written laws may suggest that the Athenians had little respect for the laws, despite the fact that the Greeks regarded respect for impersonal law as one of the main features which distinguished them from non-Greeks. This is not the case, however. The failure to differentiate law completely from other systems does not mean that all coercive forces have equal value. Again, it is to be noted that such considerations play a supplementary rather than a central role in actual speeches. This does not entitle us to dismiss such considerations; but it does suggest that in general they played a significantly smaller role in the decision-making process than the question of legality in most trials. It is perhaps worth drawing a distinction here between trials involving public figures and other cases. For Athenians without a public profile the possibility of advancing a distinctive record of liturgies and other public service was presumably limited. Likewise, the inclusion of laws alongside depositions does not mean that all direct evidence introduced in court is of equal importance. The juror's oath indicates clearly that although in presentational terms the laws are not distinguished from other forms of direct evidence, they have a fundamental importance denied to items such as depositions. And although the oath allowed for decisions in areas where the laws gave no guidance, almost all cases which came before the lawcourts were based on accusations of breaches of specific laws.

My final point relates to witnesses. A couple of studies have recently emphasized the importance for the legal process of the identity of supporting witnesses as distinct from what the witness has to say. This importance emerges clearly from the way in which witnesses are selected, as intimates of the litigant rather than complete strangers, and the evident importance of witnesses who enjoyed a degree of prestige and popularity. There is much of value in this approach. However, it would be a mistake to conclude that the identity of the witness is more important than the



testimony itself.3' Witnesses are always required to attest a fact based on personal knowledge or experience; they are never required simply to express their support and are therefore not merely a presence. It is true that some of the facts attested are not directly relevant to the issue, as has been pointed out; but this is merely another aspect of the different conception of relevance. Since, as ancient rhetoricians realized, the task of persuasion is a complex one, involving the emotional response to the hearer as well as the cognitive faculties, self-evidently the prestige or moral stature of a witness will affect the readiness of the juror both to believe him and (through a halo-effect) those associated with him and to allow considerations such as equity to influence the decision-making process. But this does not mean that the factual aspect of a witness's role is of secondary importance. A procedural detail is significant here; a witness can decline to testify on the grounds that he was not present or knows nothing of the matter in question.32 More significantly, there was an action in Athens for false witness. This was brought by the litigant against witnesses for the opposi- tion who gave false evidence. It was however available against those who were alleged to have lied; it was not enough to have supported the opposi- tion. In its implicit view of the role of witnesses therefore the system places the emphasis on matters of fact.

These observations highlight a familiar problem for those studying any aspect of the past. The Athenian legal system is both familiar and alien to us. It converges with and diverges from our own experience. The problem for the scholar is the familiar one of negotiating distance. Implicit imposition of our own standards leads to confused and fruitless questions. Too great an emphasis on distance risks oversimplifying the Athenian system and turning the courts into an area for competition, a place for settling feuds. The Athenians drew their boundaries in ways which differ from ours. They blurred distinctions which to us seem (sometimes) fundamental. Their verdicts might be coloured by factors outside the issue; they might, for instance, decide to temper strict justice with mercy if a defendant's past life warranted it; they might allow the prejudices of the moment on occasion to override reason, as of course modern juries sometimes do. But ultimately their courts were intended to arrive at just decisions; decisions based on the laws; decisions primarily on matters of fact; decisions on specific cases which came before them. In some important respects they are not so very distant after all.33



NOTES

1. Though from the language used by speakers addressing jurycourts it appears that the Athenians imagined them as equivalent to sessions of the assembly; speakers addressing the courts regularly use the second person when referring to policy or legislative decisions of the assembly.

2. Arist. Ath.Pol. 43.4, 61.2. 3. See in general H. J. Wolff, 'Normenkontrolle' und Gesetzbegriff in der attische Demokratie

(Sitzungsberichte der Heidelberger Akademie, 1970), M. H. Hansen, The sovereignty ofthe people's court in Athens in the fourth century B.C. and the public action against unconstitutional proposals (Odense, 1974).

4. For discussions see D. M. MacDowell, JHS 95 (1975), 62-74, M. H. Hansen, GRBS 26 (1985), 345-71, P.J. Rhodes, CQ 35 (1985), 55-60.

5. Ath.Pol. 55.2, 45.3. 6. Ath.Pol. 49.3. 7. See Lys. 10.1, 12, 24-5, 30. 8. Aischin. 1. 9. [Dem.] 59.

10. Cf. Dem. 54.9, 17, Aischin. 1.55. 11. See F. Blass, Die attische Beredsamkeit3 (repr. Hildesheim, 1962) III.1, 541 n. 1, Demosthenis

orationes (Leipzig, 1891) III, lxii-lxiii; see further C. Carey, Apollodoros, Against Neaira. [Demosthenes] 59 (Warminster, 1992), pp. 141f.

12. D. Cohen, Zeitschrift der Savigny-Stiftung fuiir Rechtsgeschichte, romanistische Abteilung 102 (1985), 385-7, J. Roy, LCM 16 (1991), 73-6. See further C. Carey, 'The return of the radish', LCM 18 (1993), 53-55.

13. Arist. R. 1.5.1354a. According to Ath.Pol. 67.1 the litigants in the ordinary jurycourts also swore to keep to the issue. The date of this provision is unknown. If it predates the 320s, it seems to have little effect on practice in the courts.

14. See the references collected in C. Carey/R. A. Reid, Demosthenes: selected private speeches (Cambridge, 1985), pp. 8ff.

15. Isai. 3.19, Dem. 57.14. 16. S. C. Humphreys in The discourse of law, ed. S. C. Humphreys (London, 1985), pp. 313-69,

especially 350. 17. See Carey/Reid (op. cit., n. 14 above), pp. 10f. 18. Lys. 14.5, 15.1. 19. See in general V Bers.'Dikastic thorubos', in Crux: essays in Greek history presented to G. E. M. de

Ste Croix, ed. P. A. Cartledge/F. D. Harvey (Exeter & London, 1985), pp. 1-15. 20. Dem. 45.6. 21. Arist. R. 1.2.1356a. 22. For earlier discussions see Carey/Reid (op. cit., n. 14 above), pp. 75 f. (to which add N. R. E.

Fisher, G&R 23 (1976), 177-93, 26 (1979), 32-47), and see further D. M. MacDowell, Demosthenes Against Meidias (Oration 21) (Oxford, 1990), pp. 18 ff., N. R. E. Fisher, 'The law of hubris in Athens', in Nomos: essays in Athenian law, politics and society, ed. P. Cartledge/P. Millett/S. Todd (Cambridge, 1990), pp. 123-38, and Hybris (Warminster, 1993), pp. 36ff., O. Murray, 'The Solonian law of hubris' in Nomos, pp. 139-45.

23. Arist. R. 1.15.1375a-b. 24. Thuc. 2.37.3, Lys. 6.10, Plat. Leg. 793a-d, Dem. 18.275, Arist. E.N. 1180a. 25. See e.g. Dem. 57.5, 54.17, Hyp. Athen. 13. 26. See C. Carey, 'Apollodoros' mother: the wives of enfranchised aliens in Athens', CQ 41 (1991),

84-9. 27. See in particular S.Todd/P. Millett, 'Law, society and Athens', in Nomos: essays in Athenian law,

politics and society, ed. P. Cartledge/P. Millett/S. Todd (Cambridge, 1990), pp. 1-18. 28. R. Garner, Law and society in classical Athens (London & Sydney, 1987), pp. 58ff. 29. For Eskimo and Tiv procedures see S. Roberts, Order and dispute: an introduction to legal

anthropology (Oxford, 1979), pp. 59f., P.J. Bohannan, Justice and judgement among the Tiv (London, 1957), pp. 142ff.

30. Garner (op. cit., n. 28), p. 63 grossly oversimplifies in stating: 'the education of an Athenian gave



him good reason to expect that even if he had done what he was charged with in court, he could ask to be acquitted or to win the case on the basis of past excellence in achievement and service'.

31. S. C. Todd in Nomos: essays in Athenian law, politics and society, ed. P. Cartledge/P. Millett/S. Todd (Cambridge, 1990), pp. 30f. Humphreys (op. cit., n. 16 above) pp. 323 f. is more cautious; she notes: 'The theory - though perhaps not the practice - in modern western courts is that what matters about a witness is not who he is but what he says. As we shall see, this theory does not apply to Athenian courts, where the content of witness testimonies is often unimportant or irrelevant'. Her parenthetic rider highlights a problem in comparisons between modern western systems and that of ancient Athens. Since we lack direct evidence for the debates which led to specific procedural developments, jurisprudence in the Athenian context is for the most part either implicit or embodied in statements by speakers in court; the latter in turn are based on a combination of common sense and rhetorical need. When dealing with modern systems we have access to evidence for the rationale behind procedures and to a substantial body of specialist jurisprudence. Accordingly, we frequently find ourselves comparing modern theory with ancient practice; the result is often an exaggeration of the divergence and a patronizing attitude to the Athenian system.

32. See A. R. W. Harrison, The law of Athens, vol. ii (Oxford, 1971), p. 143 f. 33. This is a revised version of an inaugural lecture given at Royal Holloway on 23 February 1993.

NOTES ON CONTRIBUTORS

HANS VAN WEES: Lecturer in Ancient History, University of Wales College of Cardiff.

P. J. RHODES: Professor of Ancient History, University of Durham.

CHRISTOPHER CAREY: Professor of Classics, Royal Holloway, University of London.

R. O. A. M. LYNE: Fellow and Tutor in Classics, Balliol College, Oxford.

A. S. HOLLIS: Fellow and Tutor in Classics, Keble College, Oxford.


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Issue Table of ContentsGreece & Rome, Vol. 41, No. 2 (Oct., 1994), pp. 131-272Volume InformationFront MatterThe Homeric Way of War: The 'Iliad' and the Hoplite Phalanx (II) [pp. 131-155]In Defence of the Greek Historians [pp. 156-171]Legal Space in Classical Athens [pp. 172-186]Vergil's 'Aeneid': Subversion by Intertextuality Catullus 66.39-40 and Other Examples [pp. 187-204]Statius' Young Parthian King ('Thebaid' 8.286-93) [pp. 205-212]ReviewReview: untitled [pp. 213-219]

Review: Subject Reviews [pp. 220-255]Books Received [pp. 256-269]Back Matter [pp. 270-272]

Carey-legal Space in Classical Athens

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