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Disputes and Democracy

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Disputes and Democracy

The Consequences of Litigation in Ancient Athens

By Steven Johnstone

This study uses Athenian court speeches to trace the consequences for both disputants and society of individuals’ decisions to turn their quarrels into legal cases.

1999

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6 x 9 | 223 pp. | 5 tables

ISBN: 978-0-292-74053-2

Athenians performed democracy daily in their law courts. Without lawyers or judges, private citizens, acting as accusers and defendants, argued their own cases directly to juries composed typically of 201 to 501 jurors, who voted on a verdict without deliberation. This legal system strengthened and perpetuated democracy as Athenians understood it, for it emphasized the ideological equality of all (male) citizens and the hierarchy that placed them above women, children, and slaves.

This study uses Athenian court speeches to trace the consequences for both disputants and society of individuals' decisions to turn their quarrels into legal cases. Steven Johnstone describes the rhetorical strategies that prosecutors and defendants used to persuade juries and shows how these strategies reveal both the problems and the possibilities of language in the Athenian courts. He argues that Athenian "law" had no objective existence outside the courts and was, therefore, itself inherently rhetorical. This daring new interpretation advances an understanding of Athenian democracy that is not narrowly political, but rather links power to the practices of a particular institution.

  • Acknowledgments
  • List of Abbreviations
  • Introduction
  • 1. Authoritative Readings
  • 2. Law and Narrative
  • 3. Dare, or Truth
  • 4. Conjuring Character
  • 5. Certain Rituals
  • 6. Litigation and Athenian Culture
  • Appendix: The Use of Statistics
  • Notes
  • Bibliography
  • Index
  • Index of Passages Cited

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Athenian law was essentially rhetorical. No lawyers, no judges, no public prosecutors, just two litigants addressing several hundred jurors. This book analyzes the ways litigants tried to persuade them. Descriptive and analytical, not normative, it does not attempt to decide whether their arguments were relevant or proper. Judgments on these points are certainly possible; indeed, litigants offered them all the time. I do not, however, attempt to settle such questions, because disagreements about how the normative should be understood were themselves an integral part of Athenian litigation. Litigants wrangled repeatedly about the meaning of the law. Athenian litigation, therefore, 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. In Athenian litigation, the law was not opposed to, or even separable from, rhetoric. In the absence of authoritative legal specialists, the only historical sense in which the law existed in Athens was in and through the rhetoric of litigation. To treat Athenian law otherwise, as a standpoint outside litigation, misrepresents both law and litigation.

Athenian litigation was rhetorical not only because of the language that litigants used but because of the setting that shaped that language. Litigation introduced a powerful third party—the jury—that thoroughly transformed the conditions and possibilities of pursuing disputes. The relationship between litigant and jurors was fundamental but problematic. In seeking to persuade the audience, speakers attempted to appear authoritative, yet the institutional context of litigation limited the intrusion of external, social sources of authority. Laws against bribery, panels of several hundred jurors, and random assignment to the courts effectively curtailed the direct influence of wealth on trials. These features also limited the effect of social factors such as reputation. Athens was far too large to constitute a "face-to-face" society in which everyone knew everyone else. When a litigant faced a jury, all but the most famous must have been largely unknown to most of the jurors. Minimizing possible sources of external authority and local knowledge made juries more impartial, but it left jurors with little basis on which to trust the words of a speaker other than those words themselves. The institutional context of litigation exacerbated the problem of authority in other ways. Because of the adversarial setting, opposing speakers always attacked each other's authority. This sharp dichotomizing of conflict, moreover, seems to have entailed a belief that one of the parties spoke the truth and the other lied. Far from being a precondition of speaking in the courts, then, authority was in fact the hoped-for outcome of the trial.

Because language alone established the relationship between speaker and audience, the uncertainties of this social relationship were expressed as anxieties about language. The unease Athenians felt about rhetoric in the courts stemmed from the absence of other sources of trust in the relationship between litigant and jurors. Athenians usually established trust over time through enduring interpersonal relationships. In contemporary society we routinely invest trust in what Anthony Giddens calls abstract systems through their representatives—tellers, pilots, mechanics, technicians, clerks, and many others—most of whom are usually unknown to us. This form of trust, however, was largely absent from the lives of most Athenians. Athenians were disquieted when called upon to trust not people they knew but mere language.

In Athenian courts, the dependability of a litigant's speech was not guaranteed by a preexisting trust in the speaker, but was created and authorized largely through this language itself. To counter this problem of self-authorizing language, speakers attempted to ground their speeches in extralinguistic sources of authority, sources of authority outside language and its uncertainties. One strand in the yarn of this book follows litigants as they sought authority for their words. Sometimes this involved telling the type of story that jurors would recognize as true. At other times, it meant appealing to written, publicly sanctioned norms, especially laws, but also the oath all jurors had sworn. It could entail referring to actions outside the court (offers to settle the dispute by torturing a slave or the speaker's public services, for example) that showed the truthfulness and good character of the speaker. It might even mean relying on ritual language and actions, the force of which was felt to be immediate and certain. The variety of strategies, however, all reveal a desire to overcome the indeterminacy of rhetorical language and to stabilize the relationship constituted through that language.

In the Athenian courts, at least, the more success rhetoric achieved, the greater its internal tensions. Scholars have often noted that litigants used artful rhetoric to deny their own rhetorical artfulness. More generally, virtually all these strategies for authorizing language themselves relied on language. Litigants related accounts of their character and their actions outside the court, for example, in precisely the same way they told of their quarrels; neither had greater epistemological certainty. Thus, what this book studies were not really strategies for grounding rhetorical language in some external authority but strategies that rhetorical language used to conceal its status as rhetoric. The extralinguistic authority of litigants' claims was less the cause of their persuasiveness than its effect.

This rhetorical language of litigation produced significant effects, both for individuals and for the larger society. For litigants the rhetorical resources of litigation constituted the most important endowment for pursuing their disputes in court. Thus, the language of litigation holds the key to understanding their strategic choices, whether to initiate litigation and how to pursue it. The complex system of rhetorical arguments, intimately connected to the institutional dynamics of the relationship between speaker and audience, structured the choices of individuals. The effects of the rhetorical language of litigation, however, radiated well beyond individual litigants. Indeed, the language of the courts produced significant, though unintended, systemic, social consequences as well. Significantly, this language enabled the reproduction of groups in Athens, that is, the perpetuation and recreation through time both of the objective circumstances of the group and of its subjective awareness of its common interests. To persuade a majority of several hundred jurors, litigants linked their appeals to interests they attributed to jurors. Thus, one of the most important consequences of litigation was the reproduction of various social identities: as men or women, elite or common, citizen or slave, as "Athenians." Most importantly, litigation reproduced and strengthened Athenian democracy: the equality within the citizen body and the hierarchy outside it.

These two kinds of consequences are analytically distinct, although they are also theoretically and practically interrelated. The next two sections of the Introduction separately trace each of these consequences of litigation as well as the theoretical perspectives informing my account.

Disputes and Athenian Litigation

The language and institutional setting of Athenian litigation imposed unique shapes on conflict. In distinguishing between legal and nonlegal forms of conflict, I have used a concept articulated in legal anthropology, the dispute, which is, broadly, a conflict between people. Disputes can take many forms, only one of which is legal. In fact, most disputants voice, pursue, and even settle their quarrels without litigation or even reference to the law. Dispute theory does not just classify different forms of conflict; it also understands that the key to the course of a dispute lies in the transformations from one form to another (say from a feud to litigation). Such transformations, effected or asserted by interested parties, are both provisional and contestable. Indeed, "negotiations over what a dispute is about are a critical dimension of the disputing process."

Analyzing the transformation of disputes into legal cases underscores the unique characteristics that distinguished litigation from other ways of pursuing disputes in Athens. At least three features stand out: Litigation required the intervention of a powerful new third party, the jury. Litigation imposed specialized roles on previously undifferentiated disputants. Finally, litigation simplified disputes by dichotomizing both conflict and the options for settling it.

As the discussion of the problems of language in the courts has made clear, nothing so affected the contours of a litigated dispute as the presence of the jury. Legal scholars recognize the importance of the introduction of third parties to disputes; at Athens, the jury's intervention made litigation radically different from other forms of disputing. It is true, of course, that in nonlegal quarrels, disputants may have appealed to "public opinion" as a way of gaining leverage. Gossip, for example, could play an important role in nonlegal quarrels. Yet appealing to a public through gossip was quite different from making a speech to secure a jury's verdict. The relationship between "speaker" and "audience" in gossip was much less formal and direct. Gossip, too, except in the most celebrated cases, probably remained localized within the community that knew the disputants, whereas litigation involved an audience that knew almost nothing about them. Juries also held a special power: to make a definitive, explicit, irreversible judgment. The presence of this powerful third party meant that the litigants' primary relationship, which in the nonlegal stage had been with each other, was now with the jury itself. The jury now mediated and thereby transformed their relationship to each other. The extent and complexities of rhetorical language are a gauge of the fundamental nature of this transformation.

The decision to litigate transformed the dispute because the parties took on interrelated but differentiated and asymmetric roles. In a nonlegal form of dispute, although various factors may have distinguished the parties, as disputants their roles were roughly equivalent. The law, however, sharply distinguished prosecutor from defendant. These novel roles altered the resources available to each party for pursuing the conflict. The transformation to the legal arena opened up new resources and foreclosed old ones. For example, although in a nonlegal dispute the ability to mobilize mutual kin, friends, or neighbors to one's side by doing them favors could prove decisive in successfully pursuing the dispute, such people could not apply the same informal pressure to a jury. On the other hand, the ability to speak fluently and think quickly, essential to arguing a case before a large jury, would be of less importance in trying to win concessions from an adversary through the intervention of friends. Litigation thus bestowed particular and unique resources on litigants, but it did so asymmetrically. A prosecutor, for example, told at least a story with a specifically legal form: the story of two people, one of whom had violated the law. A defendant, however, in contesting this definition of the dispute, had more latitude to draw upon his character and previous life; so, as I argue in Chapter 4, for the most part defendants, not prosecutors, cited their services to the city as a reason to vote in their favor. One of the most important consequences of litigation, then, was that it bestowed on two disputants the roles of prosecutor and defendant, roles that were structurally asymmetrical.

The law made decisions possible by simplifying, sometimes radically, the complexity of social life. In part it did this by allowing only two primary parties, prosecutor and defendant, dispersing all others to various ancillary "third party" roles. As I argue in Chapter 2, however, conflict is not invariably dyadic; frequently, more than two people are involved. Litigation also focused conflict on a single incident (a "crime") rather than on an ongoing relationship of hostility. Such simplifications operated to make a definitive judgment possible: jurors were not (ideally, at least) confronted with several competing claimants or with the problem of inventing an outcome acceptable to all parties. Rather, they simply voted one way or the other. The kinds of legal stories that litigants, prosecutors especially, told reflected these simplifying tendencies of the law.

The transformation of a dispute into a legal case was the outcome of a strategic decision of one of the parties, since at Athens only private individuals, not the state, prosecuted cases. A violation of the law may be a necessary condition of a legal case, but it is never sufficient. Though the law creates the possibility of litigating, this is always contingent, and the law itself cannot dictate this choice. The transformation depends, instead, on the choice of one disputant to pursue his quarrel in a different way, using the resources of the law. A potential Athenian prosecutor, therefore, considered the institutionally unique features of litigation in calculating whether to initiate a case: Would his goals in the dispute, whatever those might be, be better served by appealing to a formal body of jurors, by defining his dispute as a specific crime, by naming one individual as the defendant, by highlighting the defendant's character, by using the people on his side as witnesses and advocates, and by making the decision an either/or, winner-take-all choice? He needed to consider how litigation would affect the endowment of resources available to himself and to his opponent or opponents. It is not quite correct, therefore, to say that a prosecutor was constrained to tell a legal story (as though this were externally imposed); rather, the decision to litigate was already the decision to tell such a story.

Litigation was not the natural outcome of a violation of the law but a strategic decision of a party to a dispute to transform it in a particular way, or, perhaps better, to assert a particular transformation. Definitions of disputes, no matter how authoritative, were always interested and contestable, including the assertion that a particular dispute should be viewed as a legal case. As noted above, at stake in every dispute was how to understand the dispute, including what it was about and who the relevant parties were. The attempt of one party to impose a legal form did not end the conflict over how to understand the dispute: Many defendants denied that the law was relevant to the conflict. Although a prosecutor might assert that his case concerned a single act that violated the law, say, an assault, a defendant might claim, even if a fistfight took place, that the conflict was really about two gangs of young men who had drunk a bit and were just roughhousing and that it certainly did not belong in the courts. From a "strictly legal" perspective, of course, such claims might be called irrelevant precisely because they deny the appropriateness of the legal perspective. But from the perspective of a dispute, the question is how each party attempts to impose a perspective in the first place. This study, therefore, treats with equal respect both the prosecutor's assertion that the dispute constituted a legal case and the defendant's challenging of the relevance of legal categories. The point is not which of these was correct but how each side made its arguments.

The concept of the dispute helps make sense not only of an individual's decision to litigate but of the simultaneous decision of what kind of case to bring. Robin Osborne has argued that Athenian law offered a procedural versatility to prosecutors: For any particular "crime" there was often more than one procedure that could be used against it. Athenian law distinguished procedurally between public cases and private ones: Basically, in a private case only the wronged party could prosecute , whereas in a public case, any citizen could act as accuser. There were other important differences between these kinds of cases: It was easier to compromise a private case before trial, public trials were allotted more time and larger juries, many private cases went through mandatory official arbitration, and penalties were often greater in public cases. Osborne argues that potential prosecutors chose what kind of case to bring based on strategic considerations. But there is a problem. While it is true that for some events, say, an assault, there were many ways to prosecute, for others, say, not following the correct procedure for drafting a decree, there were not. From this perspective, Osborne seems to have overstated the versatility of Athenian procedures.

Nevertheless, prosecutors did face procedural choices, though not quite for the reasons Osborne suggests. Osborne predicates his argument on a legal perspective: There was a violation of the law. But from the perspective of a dispute, there is often more than one event that could serve as the basis for a legal claim. Again, it is not that "crime" leads to litigation; rather, in most enduring disputes more than one legal shape could plausibly be imposed on the conflict. In many Athenian disputes, either side could have found grounds for initiating a case and giving legal shape to the conflict. This was not (or not mostly) because different meanings could be attributed to the same event (as in assigning blame in a fistfight) but because in an ongoing dispute there were usually many "events" that could be plausibly constituted as violations of the law. The procedure chosen was not an outcome of an objective "crime"; instead, because different types of procedures bestowed different rhetorical resources on prosecutors, the choice of procedure was also a choice of what type of criminal meaning to attribute to a dispute. When considering whether to transform the dispute into a public or a private case, therefore, potential prosecutors had to consider that although defendants in both kinds of cases had relatively similar resources, those available to prosecutors were quite different in public and private cases.

In analyzing the ways in which people pursued disputes, I have made no judgment that they did or should have concluded in settlement. Traditional understandings of the role of law in society usually see it as a way of limiting or suppressing conflict. This derives from a functionalist perspective, which sees conflict as harmful to society. But because dispute theory shifts the perspective from society to individuals and the choices they make, there is no supposition that disputes should end in settlement. If some disputants wanted an amicable settlement, others desired a crushing victory, and some may not have had a single, specific goal. Thus I do not claim that the function of the Athenian courts was the regulation of conflict or the settlement of disputes, though this surely happened. Rather, in the courts, disputants sought to use the law to pursue their disputes, whether this ended in settlement or not.

Though initially developed by legal anthropologists, the concept of the dispute seems extremely useful for classical Athens. Several scholars working on Athenian law and society have recently used it. Indeed, anthropologists in the 1960s (most importantly, Laura Nadar and her students) formulated the idea of the dispute as a way of discussing processes of social conflict across cultures without having to rely on the Western category of law. Later, following the work of Comaroff and Roberts, scholars began to look more at the social context of disputes, at the behavior of disputants rather than institutions, at the transformation of disputes, and at the ways in which the meaning or shape of the conflict was part of what was in dispute. Reflecting the recent consensus among legal anthropologists that law and legal institutions should not be studied in isolation but within a larger cultural context, scholars have attempted to link the study of disputes to broader questions of power, ideology, and the politics of meaning.

Litigation and Athenian Democracy

This book investigates the ways in which litigation, understood as a set of social practices, reproduced social structures and subject positions. Courts were, of course, only one of many venues in which the structures of Athenian society were reproduced; nevertheless, the effects of litigation radiated broadly. I am not so much concerned with the vision of how society should operate written into the law, the effects of which have often been overestimated , as with the systemic social consequences (intended and, more often than not, unintended) of the practices associated with litigation.

The relationship between individuals and social structures (e.g., "society," "gender," or "class") has been a central problem of recent social theory. Whereas subjectivist approaches assume the existence of autonomous subjects whose agency derives from their intentions, objectivist theories bestow ontological primacy on society and other social institutions. Though diverse in character, much of the best recent work in social theory has sought a solution to this opposition. There has been no consensus on this, but several relevant tendencies are evident. First, social theorists have attempted to retain the important insights of each approach by describing some sort of reciprocity between structures and subjects. Anthony Giddens, for example, has developed a theory of "the duality of structure," in which the constitution of structures and agents are simultaneously implicated: "The structural properties of social systems are both medium and outcome of the practices they recursively organize." From this perspective, subjects and structures are interrelated, and neither has primacy over the other.

The second tendency of social theory has been to locate the link between subjects and structures in the quotidian: in language, in bodies, in routine, in what people ordinarily do ("practice"). Giddens suggests we study "neither the experience of the individual actor, nor the existence of any form of societal totality, but social practices ordered across space and time." It is just here, in the most mundane of actions, that agents draw upon social structures in acting, simultaneously reproducing those structures. The emphasis on the quotidian has been pervasive in social theory, from Bourdieu's theory of the habitus to Foucault's ideas on dispersed power.

Third, following from the idea that structures and subjects are reciprocally constituted, social theorists have tended to theorize agency, the ability of subjects to act, as part of understandings of power as both constraining and enabling. Thus, structures not only limit subjects; they also provide resources or strategies for action. Foucault's work has inspired some of the most subtle of these theories of agency, perhaps because it has at times seemed so problematic in denying both agency and subjectivity to individuals.

Parallel to these trends in social theory, many historians have moved toward studying culture. The recent rise of cultural history is, of course, complex, but part of its aim has been to integrate the study of structures and of subjects. The work of E. P. Thompson, for example, mediates these through "experience," which is essentially cultural. Although the idea of experience is not unproblematic, Thompson's histories carefully delineate the ways structures imposed limits, but also bestowed resources, on people, and how they, in turn, appropriated and used them. He argues, for example, that in the eighteenth century, English peasants redeployed the ideology of paternalism to resist the spread of the capitalist market. In studying these peasants' actions in "food riots," Thompson carefully pays attention to the ideological system that had exploited the peasants and to their ability to adapt and transform it into an instrument of resistance. Like many cultural historians, Thompson pays attention to the ways people attribute meanings and to their struggles over these. In this view, the cultural does not reflect or play out the real forces of history (e.g., class relations); rather, it is only in the quotidian lives of people that historical forces are realized and contested.

In investigating the ways in which litigation effected the reproduction of Athenian democracy, I understand democracy rather more broadly than the Athenians seem to have and than modern scholars as well. Democracy is usually construed to refer to the structure of relationships between adult male citizens (i.e., political subjects). Ober has considered these relations in detail . Following the insights of feminist theorists and historians, however, who argue that no account of men can be complete if it abridges women, I have considered democracy as the word that describes the peculiar constitution of power relationships in all Athenian society, including those usually considered outside the political realm. Athenian democracy entailed not only a group of ideological equals but other groups that were excluded from this inner group and regarded as inferior. Litigation reproduced this sense of democracy as the equality of some and the inequality of others.

One of the important consequences of litigation in Athens was the reproduction of various Athenian identities, including that of "the Athenians." To avoid both reductionism and essentialism, analyses that merely assume that people's subjective outlooks derive mechanically from their objective circumstances (so that, for example, all men think alike merely because they are biological men), many social theorists consider identities as contingent, as culturally constructed. This does not mean that a person can claim an identity willy-nilly (a purely subjectivist stance) but that the ways people define themselves and recognize their interests are culturally disposed in historically specific ways; we must, therefore, study the means by which such identities are produced and reproduced. Although conditions in contemporary society may offer unique opportunities for the self-fashioning of identity, fourth-century Athens was not a society in which identity simply derived from a person's position in a fixed, traditional order.

Thus it is important to ask how identities (as men, as commoners, as Athenians) were invoked and reinforced, how people were induced and seduced into identifying their interests in certain ways, how these groups were, so to speak, conjured. Though some work on Athens has sought to do this, most has assumed these identities as given. For example, despite its sophistication, Ober's analysis derives its classes, masses and elites, from the existence of a clear division in wealth, an instance of economic determinism. But this distinction, though it depended on a difference in wealth, was only realized insofar as it became culturally relevant, and this was the result of considerable labor. Ober argues that it was through cultural forms, that is, through language, especially rhetorical language, that these groups related to each other. This study goes further and argues that through this language, the groups were themselves constituted and reproduced. Crucially, the discourses and practices of the Athenian courts reproduced these various Athenian identities.

This book studies the dynamics of Athenian culture within a specific institution, the courts. In the last few years, a number of scholars have studied the ways in which social practices and values impinged on the operation of the Athenian courts. This book follows the lead of this important body of work in seeing Athenian legal practices as part of a larger social system. But because this recent work reacts against previous scholarship that often portrayed Athenian law as an autonomous institution that regulated social life, it has had less to say about the effects of the legal system on society. Indeed, this recent scholarship often loses a sense of the institutional uniqueness of the law, sometimes denying that there was anything unique or autonomous about it.

Autonomy, however, is always a matter of degrees and forms, and no institution is either completely autonomous or completely dependent. Certainly the Athenian courts were not as autonomous as modern American courts, but they were, whatever their interdependence with the rest of society, distinct from other social practices and institutions: Prosecutor, defendant, witness, and juror were uniquely legal roles. As a result, I have based this study on speeches given before the courts at Athens and have not grouped them with those given before the Boule (the Council) and the Assembly (as, for example, Ober 1989 does). Indeed, as I note several times, the evidence points to marked differences between the practices of these institutions. Even at Athens, where institutions had a lower degree of differentiation than in modern societies, a study of power and politics must take account of institutional specificity. The complementary influences of law and society delineate the extent and limits of the autonomy of the legal system.

Evidence: Athenian Legal Speeches

As evidence for this project I have relied on the hundred or so preserved speeches delivered in the Athenian courts, assuming they record with reasonable accuracy what litigants said and did in court. This assumption is not without its uncertainties, as the processes by which these texts were written and transmitted were complex and are not entirely understood. Although we cannot be sure that they were not revised after delivery to make them better literary products, in most cases, if they were, revisions were probably not significant. (However much they were revised, they still attempted to sound like actual court speeches, and so nothing too foreign would have been introduced.) Actual speeches also probably contained nonscripted, extemporaneous elements that do not appear in the texts. (One can often appreciate what these elements were by noting the kinds of arguments or behaviors by their opponents that litigants expected or mentioned but that do not appear in the speeches themselves.) Neither of these, however, impairs my project, which concerns patterns manifested in differences between types of speeches; there is no reason that one type of speech (say, defense speeches) was consistently altered from its delivered form in ways that others were not.

These speeches cannot simply be assumed to tell truthful tales. Rightly approaching litigants' claims with a fair degree of skepticism, scholars have realized, nonetheless, that the presence of an audience put a check on how far a speaker could distort his reports. The most sophisticated modern readings often attempt to discover the truth in the incidental (reports that the speaker would have had no reason to distort) and the typical or plausible (claims of a kind that would not have seemed unreasonable to the audience). Although I focus mostly on how people made arguments and told stories (and not whether these were true), I too rely on these methods. Nevertheless, as I argue in Chapter 2, these methods also have their limits. What is plausible may have less to do with the kinds of things that actually typically happen than with the kinds of stories that are normally told in a particular context.

Finally, I have tried to make generalizations based on patterns that appear in the whole body of speeches. Generalizations based on one or two or even a handful of the most prominent speeches may, quite unintentionally, not accurately reflect the common practice of Athenian litigants. The advantage of the abundance of speeches, however, is that it permits the use of a straightforward method of generalization, one whose premises and methods can be clearly stated. I have, therefore, made a number of generalizations based on statistics, generalizations that do not supplant but ground and facilitate close readings of the texts. By providing a panorama of general patterns among all speeches, statistics provide some assurance that a particular passage is representative, not atypical. An appendix explains how I compiled the statistics and offers some help in understanding them.

Prospectus

Each of the following chapters examines a kind of argument litigants made. In each case I analyze the ways the context of litigation gave a unique shape to these arguments and trace the consequences of these arguments for both individuals and Athenian society.

Athenian litigants based their speeches on the laws. Chapter 1 investigates the ways litigants made arguments about what the laws meant. In discussing laws, litigants often attributed them to an author, "the lawgiver." Though this did not constitute what we would consider a properly historical argument, it provided the basis for justifying interpretations of specific laws by linking them to other laws through the fiction of a single author. The dikastic oath, sworn by all jurors (dikasts), enjoined them to judge in accord with the laws. This was not, however, a rule that determined the use of laws in the courts; rather, since it was itself subject to interpretation, litigants deployed it to support different interpretations of the laws. Both the figure of the lawgiver and the dikastic oath provided protocols for making arguments about what the laws meant. Knowledge of these protocols, which were not recorded but remembered in the ongoing practices of the courts, differentiated male citizens from those who were excluded from participating in litigation.

The second chapter examines the ways that litigants used the laws to tell stories about disputes. Because they chose to initiate a legal case, prosecutors represented their dispute through a legal narrative; such judicial stories centered on a specific incident that supposedly violated the law, concerned a single opponent, and frequently dichotomized conflict. Defendants responded by denying the coherence of the prosecutor's story or contradicting it with a story of their own, frequently alleging that the prosecutor had initiated the case for corrupt reasons. Defendants' stories, which may seem irrelevant or diversionary, contested the prosecutor's attempt to transform the dispute into a legal case. The distribution of these narrative resources reflected the asymmetric positions of prosecutor and defendant. Litigants of all kinds, however, also drew on the law as a way of understanding and evaluating their own and their opponent's behavior. Although such stories did not necessarily accurately portray disputes, their selective portrayal of events nevertheless played an important part in the reproduction of groups within Athenian society, both those with access to litigation and those excluded.

The third chapter analyzes how litigants talked about a specific procedure, the dare or challenge. A dare was an offer to settle a dispute through another procedure, such as the torture of a slave, the taking of an oath, or arbitration. Outside the courts, dares were a way of carrying on the dispute, sometimes leading to settlement when they were accepted, sometimes exacerbating it by their effrontery. In the exchange of dares, procedural disagreements substituted for substantive ones, so that disputants could bargain truth, justice, and honor while saving face. Within the courts, however, litigants sought to find extralinguistic grounds for authority in the offer of the dare and in the dared procedure. They represented these as actions or facts (erga), as opposed to their opponents' mere stories (logoi). The anxiety over the relationship between speaker and audience in the courts gave rise to the claim of truth, the claim that words accurately represented reality. This discourse of truth, which pervaded litigants' speeches in more than their discussions of dares, thus reflects the institutional peculiarities of litigation at Athens. Under the sway of the discourse of truth, paradoxically, litigants frequently misrepresented the practice of dares in social life.

Defendants frequently reminded jurors of their public services (liturgies) and asked for reciprocal favor (charis), the subject of Chapter 4. Reflecting the asymmetric positions of prosecutors and defendants, these claims comported with the emphasis in legal stories on the person of the defendant. Defendants, however, frequently relied on their liturgies to undermine the prosecutor's legal narrative. In claiming that the tenor of his whole life was more certain evidence than the prosecutor's story of a single event (a "crime"), a defendant implicitly challenged the legal framework of the prosecutor's story. Defendants also relied on their public services to claim the favor of a verdict from the jury. Such claims did not merely mobilize Athenians' interests; they also instilled and reproduced them. Paradoxically, although private benefaction and charis often strengthened social hierarchies, in the courts, where litigants needed to mobilize a group to win their case, frequent appeals for charis strengthened Athenian democracy by reinforcing jurors' awareness of their collective interests.

Defendants often begged for the jurors' pity. The fifth chapter recounts how defendants not only addressed these appeals to the jurors verbally but enacted them in rituals of weeping and supplication. Searching for more certainty than representational language, defendants used performative language and gestures to relate to the jurors. However emotional these pleas for pity may have been, they had a more important cognitive function. In them, litigants, who were as often as not elites, humbled themselves before the people collectively, undercutting the social hierarchy at odds with the ideals of citizen equality. Such pleas did not merely rely on a democratic consciousness but were one of the ways it was reproduced. In them, the Athenians dramatized democracy daily.

The final chapter analyzes the relationship between litigation and Athenian culture. Athenian litigants disagreed about the degree to which litigation should take account only of the law or of other cultural considerations as well. This disagreement, however, was a structural feature of litigation, since prosecutors advocated a narrowly legal view and defendants, resisting the prosecutors' transformation of their dispute into a legal case, constantly asked jurors to consider more than just the law. Thus, the relative autonomy of litigation consisted not in a final answer to this question but in the way litigation structured and incorporated the debate over its own boundedness. Litigation, therefore, affected Athenian society because the kinds of arguments speakers made on these points depended on mobilizing groups which, in turn, required defining them and attributing interests to them. Thus, one of the crucial consequences of litigation was the reproduction of Athenian society.

The rest of this introduction briefly describes Athenian society and politics in the period under consideration and gives an account of how Athenian courts operated.

The Ancient City of Athens

During the period under consideration (422-322 B.C.), Athens was intermittently but constantly at war. The pan-Hellenic Peloponnesian War (431-404), which pitted Athens against Sparta, each at the head of an alliance, had the greatest internal repercussions for Athens. Twice because of this war the democratic government at Athens was suspended. In 411 a group of oligarchs, the Four Hundred, ruled Athens for a short time before the democracy was reestablished. More significantly, with Athens' defeat at the end of the war, Sparta imposed a very restricted oligarchy, the Thirty, who ruled for several months (404-403). The Thirty's program was more extreme and was implemented further than the Four Hundred's and included, significantly, curtailing the powers of the popular courts. When they began to kill Athenians and metics, the free noncitizens, by the hundreds, however, they were finally overthrown. The restored democracy passed a general amnesty that prevented the prosecution of previous crimes and the enforcement of legal decisions rendered under the oligarchy. The deeds of the Thirty were long remembered, and they essentially discredited any public advocacy of explicit oligarchy in Athens for the next several decades. A number of other important Greek wars punctuated the fourth century, but none had such serious internal consequences for Athens. Conflict with Macedonia persisted for many years at the end of this period, and in 322 the conquering Macedonians imposed a less democratic government on the city. Democratic institutions thus seem to have been quite strong during this period, suppressed only twice, and each time by a foreign army.

Though the population fluctuated through this period, the social structure remained relatively stable. There were probably between 20,000 and 40,000 adult male citizens, the same number of adult women of citizen status, and about twice as many children of citizen status. The number of slaves may have equaled those of citizen status. Athens was also home to several thousand metics. Citizens enjoyed several privileges because of their status. Only citizens could own land and participate in government. In the courts, only citizens served as jurors. Women, children, and slaves could not appear themselves as litigants but required a citizen advocate. Metics could represent themselves in many kinds of cases (especially commercial cases, where they are prominent among the extant speeches), though in some kinds of prosecutions they apparently required the assistance of a citizen patron.

Among the citizens, there were several potential cleavages, especially based on differences in wealth. Even in the fourth century, certain offices were officially restricted based on property qualifications, though these were often ignored in practice. Though Athenian citizens were free from taxes, the polis required the wealthiest to undertake certain duties, including producing a chorus in a dramatic festival, sponsoring a banquet, or, most importantly, outfitting a warship (a trireme) for a year. The number of men routinely liable for these liturgies was probably between 1,000 and 1,200, less than 5 percent of the citizen body. There were some 2,000 who might be called upon to pay a special war tax. Elites were distinguished not only by their wealth but often as well by the styles of living their wealth enabled. They also tended to occupy positions of formal and informal leadership in the democracy. Some scholars have claimed in addition that there was a substantial group of citizens of middle wealth, neither wealthy nor penurious, often identified with those who served in the infantry as hoplites. For the fourth century, at any rate, significant evidence for such a self-conscious middle class is lacking, unless it denotes merely the mass of ordinary Athenians who had to work for a living, usually by farming. There were also many citizens who were not very well off, indeed, who owned no land, but their poverty did not constitute the basis for self-identification as a coherent class. There is little evidence for how such people lived, but it was probably through seasonal labor and farming rented land. There was no "urban mob," not even a substantial group of workers involved in handicrafts.

Despite these economic stratifications of the citizens, however, the democracy was undergirded by an ideology of citizen equality, which was realized to a remarkable degree. Though generals and treasurers were elected by voting, most offices were appointed by lot. Levels of participation in the Athenian government—in the Assembly, which met at least four times a month, in the Council of Five Hundred (the Boule), which prepared its agenda, and in the hundreds of other offices—seem to have been quite high. Service in the courts, attendance at the Assembly, and filling of some other governmental posts were compensated with a stipend that made it more possible for even the poor to participate. Because of appointment by sortition, limited tenure (one year), collegiality (boards of officials undertook most responsibilities), and strict reviews of all officeholders (through the dokimasia, a review of formal qualifications before entering office, and the euthyna, an audit of official conduct after completion of the term), individuals could not amass political power through formal governmental institutions. Nor were there auxiliary organizations like political parties through which politicians could accumulate power. Instead, the primary avenue to prominence was the ability to persuade mass audiences, in both the Assembly and the courts. It is true that there was an informal "political elite," but, lacking formal institutionalization, their power always depended upon their ability to win the assent of mass audiences composed of ordinary Athenians.

The great achievement of Athenian democracy, then, was the participation and exercise of political power by the majority of citizens with only limited restrictions based on wealth. Unlike most other Greek cities, there was no minimum property qualification for full participation as a citizen. From a modern perspective, however, Athenian democracy looks questionable at best: The majority of adults (women, slaves, metics) were excluded entirely from the privileges of citizenship. Citizens constituted the elite of this society, whose freedom was made possible and defined by institutions of slavery and patriarchy. Even as generated in the courts, Athenians' understandings of themselves as citizens depended on the exclusion of others. I think it is important to consider how much these forms of oppression were essential to Athenian democracy, but it is not my intention to attack or defend it. Nevertheless, it is essential to note that within the body of citizens, the Athenians achieved a degree of political equality that minimized the claims of wealth to a degree unparalleled in most societies, certainly in our own.

The Athenian Courts: Structure and History

The Athenian judicial system differed radically from our own. Without legal experts, the jurors were the heart of the system. All citizens over the age of 30 could serve as jurors. The courts met between 150 and 200 days a year, on days when the Assembly did not meet or there was not a religious festival. From those who showed up each morning, enough were randomly selected to fill however many juries were needed that day. Each jury (dikasterion) consisted of hundreds of jurors (usually 201 or 501, sometimes bigger, very rarely up to 6,000), the majority of whom determined the verdict. They voted immediately after the litigants' presentations without deliberation. There was no judge; although a magistrate presided at the trial, he did not affect its outcome. Those who served earned a day's minimum wage of a half drachma.

Litigants who faced Athenian juries did so with minimal professional help. There were no legal experts, no lawyers, in Athens. Litigants found and cited whatever laws they thought relevant, and the jury interpreted them itself. Litigants usually addressed the jury themselves, sometimes supported by friends or relatives who appeared as witnesses, added a plea for them, or showed solidarity by sitting with the litigant. Now and then, a close friend or relative might speak for a party who thought himself disadvantaged in speaking (old age or youth were the most common reasons). Women, children, and slaves had to be represented by a male. In some cases, free noncitizen males could uphold their own interests. There were no police and no public prosecutors. The aggrieved party brought suit himself, although there were many public actions in which anyone who wanted could prosecute. The accused, too, had to persuade the jurors himself. Litigants might, however, commission a speechwriter to compose their oration. It is from these, about a hundred of which survive from 422-322 B. C., that I have drawn my evidence. We rarely know either what the opponent said or the verdict. In some cases, the successful prosecutor received part of the fine. Each side had only a limited amount of time in which to speak, and trials never lasted more than a day.

Jurors and litigants were in all likelihood socially distinct. Juries probably approximately reflected the composition of the Athenian citizen body. Ancient writers sometimes complained that the poor controlled the juries, though by poor they probably meant those who actually had to work for a living, which is to say the mass of ordinary Athenians, mostly farmers. Modern attempts to argue that some subgroup of Athenians disproportionately dominated the juries are unconvincing, unless, of course, that means that the great majority of Athenians who were not particularly rich and had to work for a living (usually on the land) were also in the majority on the juries. Nevertheless, while it is reasonable to suspect that juries reflected the whole population, litigants were undoubtedly much richer than normal. It was this social difference between litigants and jurors rather than the exact social composition of juries that was important. Several considerations operated to exclude conflicts that involved the humble from the realm of public litigation. Most immediately, small disputes (of less than ten drachmas) were settled by local judges from whom there was no appeal to the courts. There were also expenses incurred by litigants, even if they were not necessarily overwhelming. Litigants in private suits had to pay the official arbitrator a drachma each, and certain types of suits required fees or deposits of one or both parties. Perhaps the greatest expense would have been to hire a professional speechwriter; we cannot be sure how much this cost, but the rarity of speeches for manifestly poor people in the preserved corpus suggests a professionally written speech, if not litigation itself, was beyond the means of most. It is a reasonable guess that at least half of the preserved speeches were written for Athenians in the wealthiest class, those who performed liturgies.

Because of the scarcity of contemporary sources, the development of the Athenian legal system is known only in the broadest outline down to the fifth century.83 The usual narrative closely links the development and growing power of the courts to a more general democratization, a trend, that is, through the sixth and fifth centuries for an increasing proportion of the citizens to be involved in most aspects of ruling. At least two key periods stand out in the development of Athenian legal institutions. In 594/3 Solon first constituted juries made up of the whole of the citizens and increased their oversight by specifying that all cases could be referred to this court from the magistrates who had previously given final judgments. He also established the public case, those in which any citizen (not just the victim) could bring the charge. Later, during the fifth century, as trials before citizen juries became increasingly frequent, the single body of citizen jurors (the Heliaia) was broken into smaller panels (dikasteria). Sometime soon afterwards (in the late 450s), Perikles sponsored the introduction of pay for service on juries. In contrast to these institutional changes, virtually nothing is known until the 420s about the specific topics of this book, the kinds of things litigants said and did in court. Still, the general (though not unswerving) trend in the institutional development of the courts during these two centuries was for more citizens to have more powers to oversee more cases.

The end of the fifth century and beginning of the fourth also saw a number of important innovations in the procedures for legislating. These depended on a distinction between laws, enduring rules of general application, and decrees, specific, one-time enactments. So sometime between 427 and 415 the Athenians instituted the graphe paranomon, the charge against proposing a decree that contradicted the laws, which essentially gave to the courts the duty of making sure that decrees were drafted in conformity with laws. Between 410 and 399 there was a fitful but somewhat successful attempt to compile an authoritative and consistent catalogue of all the laws. Finally, in the early fourth century, new procedures were introduced for the passage, review, and repeal of laws that gave final authority for this to boards of lawgivers (nomothetai) drawn from the pool of jurors. All this represented not a retreat from the democracy of the fifth century but an increasingly complex articulation of democratic political institutions.

Steven Johnstone is Assistant Professor of History at the University of Arizona.

"This is an important study that will have a definite impact on the study of Athenian law and oratory. Johnstone's conclusions will not be accepted by everyone, but they are strongly argued and will have to be reckoned with by anyone who writes in this increasingly popular area."

—Michael Gagarin, James R. Dougherty, Jr., Centennial Professor of Classics, University of Texas at Austin