Using examples from all of the Athenian orators, this innovative book considers forensic speeches as one of the premier performance genres of Classical Athens, in which vision and visuality played a central role in convincing a jury.
In ancient Athenian courts of law, litigants presented their cases before juries of several hundred citizens. Their speeches effectively constituted performances that used the speakers’ appearances, gestures, tones of voice, and emotional appeals as much as their words to persuade the jury. Today, all that remains of Attic forensic speeches from the fifth and fourth centuries BCE are written texts, but, as Peter A. O’Connell convincingly demonstrates in this innovative book, a careful study of the speeches’ rhetoric of seeing can bring their performative aspect to life.
Offering new interpretations of a wide range of Athenian forensic speeches, including detailed discussions of Demosthenes’ On the False Embassy, Aeschines’ Against Ktesiphon, and Lysias’ Against Andocides, O’Connell shows how litigants turned the jurors’ scrutiny to their advantage by manipulating their sense of sight. He analyzes how the litigants’ words work together with their movements and physical appearance, how they exploit the Athenian preference for visual evidence through the language of seeing and showing, and how they plant images in their jurors’ minds. These findings, which draw on ancient rhetorical theories about performance, seeing, and knowledge as well as modern legal discourse analysis, deepen our understanding of Athenian notions of visuality. They also uncover parallels among forensic, medical, sophistic, and historiographic discourses that reflect a shared concern with how listeners come to know what they have not seen.
- Abbreviations of Ancient Authors
- Abbreviations of Modern Editions
- Note on Translations and the Spelling of Greek Names
- Introduction. Vision and Performance in the Courts of Classical Athens
- Part One: Physical Sight
- Chapter 1. Visual Rhetoric and Visual Evidence
- Chapter 2. The Meanings of Movement
- Part Two: The Language of Demonstration and Visibility
- Chapter 3. Showing and Seeing: The Procedural Terminology of Witnessing
- Chapter 4. Saying as Showing, Hearing as Seeing
- Part Three: Imaginary Sight
- Chapter 5. Visualizing Civic Suffering
- Chapter 6. Shared Spectatorship: Bridging the Gap Between Past and Present and Here and There
- Appendix of Speeches
- Index of Ancient Texts
- General Index
Vision and Performance in the Courts of Classical Athens
The trial was drawing to a close. Hundreds of jurors were about to decide the fate of Phryne, one of the most beautiful courtesans in fourth-century Athens, and her advocate Hyperides realized that his arguments were falling on deaf ears. He stopped speaking and took Phryne’s hand. Leading her to the front of the court where all the jurors could see her, he tore open her dress and revealed her breasts. Then he stood over Phryne and returned to his speech. Hyperides begged the jurors to have compassion on her naked beauty, turning their thoughts to the gods and ﬁlling them with reverence for Phryne, Aphrodite’s oracle and servant. Giving in to pity, the jurors acquitted Phryne of impiety and voted not to execute her.
Athenaeus recounts this story in The Scholars at Dinner as a testament to Phryne’s extraordinary beauty. It also shows the power of appearance to persuade. Hyperides’ words alone were useless. Athenaeus writes, “He was accomplishing nothing by speaking.” But that changed when Hyperides paired his words with a visual demonstration. Taking advantage of bared breasts’ connections with ritual supplication and eroticism, he manipulated the jurors into acquitting Phryne for reasons that had nothing to do with the kinds of logical argument taught in Aristotle’s Rhetoric. Athenaeus is careful to show that Hyperides crafted a uniﬁed persuasive strategy from what the jurors heard and what the jurors saw. “Based on her appearance,” Athenaeus writes, “he made pleas for compassion appropriate for the end of a speech.” Hearing words that complemented what they could see, the jurors were led to accept Phyrne’s innocence.
Few contemporary accounts of Phryne’s trial survive. Since none of them mention her bare breasts, some modern scholars doubt that Hyper-ides really ripped her dress open and appealed to the jurors’ eyes as well as their ears. Reliable records of Athenian trials mention visual eﬀects nearly as sensational as Phryne’s naked bosom, however. In one trial, the defendant proved his innocence by showing the jurors the woman he was accused of murdering, alive and well. In another, the defendant was said to have bitten oﬀ someone’s nose in prison, and the prosecutor showed the jurors a man with no nose. So, even if the Phryne story is apocryphal, there is no question that Athenian litigants could take advantage of what the jurors could see and use it to strengthen their cases.
Ancient rhetorical theorists were aware that oratorical persuasion required more than just words. In the Orator, Cicero writes that there are two components of giving a speech: speaking and doing. A speaker persuades not only through words but also through the tone of his voice, the movements of his body, and his visual appearance. The Romans refer to these features as actio, and the Greeks call them hupokrisis. In English, both terms can mean “delivery,” “performance,” or even “acting.” Cicero insists that a speaker ignores these features at his peril: a good delivery can rescue a bad speech, and even a good speech can be undermined by a poor delivery. The Romans developed an elaborate science of what features are appropriate for oratorical performance, and they were conscious that earlier rhetorical theorists had neglected it. The anonymous author of the ﬁrst-century BCE rhetorical treatise known as the Rhetoric for Herennius even tells us that no one had written carefully about it prior to him because it is diﬃcult to express things like voice, appearance, and gesture in writing. He echoes Aristotle, who three hundred years earlier said that no handbooks address delivery, even though it is a powerful rhetorical tool.
Although Theophrastus, Aristotle’s successor at the Lyceum in Athens, wrote a treatise Peri hupokriseōs, or On Delivery, which probably addressed oratorical and not theatrical performance, it seems to be true that widespread systematic interest in the subject did not arise until the ﬁrst century BCE. Philodemus, a slightly older contemporary of the author of the Rhetoric for Herennius, writes that formal instruction in oratorical delivery is a recent, and regrettable, development. He insists, however, that “many of the heroes and those who came after them were delivering their speeches in an admirable manner,” even without handbooks to guide them. By “heroes,” Philodemus seems to be thinking primarily of the Homeric heroes, since he cites “poets” in support of his claim. “Those who came after them” is a more expansive category, since Philodemus cites historians and speakers’ own writings. Philodemusalso maintains that the people he calls “statesmen” (hoi politikoi) already practice a method of delivery that enables them to seem respectable and noble, to exaggerate, and, most importantly, to mislead their audiences. Their method has always been a well-kept secret, but Philodemus saysthat his contemporaries are making it common knowledge with their handbooks.
Even among modern scholars, however, the performance techniques of the Athenian orators remain far from common knowledge. Despite the emphasis on performance as a conceptual model for understanding the art, literature, and culture of Classical Athens during the last three decades, few scholars have attempted to study the speeches of Antiphon, Andocides, Lysias, Isocrates, Isaeus, Hyperides, Demosthenes, Aeschines, Dinarchus, and Lycurgus as, primarily, records of performances inthe Athenian courts and assembly. With some notable exceptions, especially Edith Hall’s work on “Lawcourt Dramas,” modern scholars tendto study Attic oratory out of an interest in Athenian law, politics, orsocial history rather than in performance. The Rhetoric of Seeing in Attic Forensic Oratory recognizes that the oratory of the courts is one ofthe premier performance genres of Classical Athens. Following scholarly convention, I call this type of oratory “forensic,” using the Latin termfor activity connected with courts of law. My study is principally concerned with the interplay between visual and verbal features of forensic performances.
Before ending this introduction with an overview of the book’s sections, I will investigate the place of forensic oratory within Athenian performance culture, explore the complex associations of vision and visuality in Classical Athens, brieﬂy describe the settings of Athenian trials, and address the insights of modern studies of legal performance thathave most inﬂuenced my study.
The modern discipline of performance studies reﬂects the many overlapping meanings of the verb “perform.” It encompasses theories such asthose of J. L. Austin, John Searle, and Judith Butler, which focus on how words or actions “do” things; anthropological studies of ritual and society; and the study of every kind of dramatic production. The semantic range of “perform” is unmatched by any single word in Classical Greek. Depending on the context, it can be an appropriate translation for many Greek verbs, including poieō (“do, make”), draō (“do, accomplish”), hupokrinomai (“play, act, deliver”), and khoreuō (“dance, sing and dance”). The concept of “performance,” therefore, links many features of Greek society that the Greeks themselves may not have associated with each other. When we refer to Classical Athens as a “performance culture,” we recognize that Athenian religion, politics, and entertainment all share features associated with carrying things out or making presentations before audiences. Processions and sacriﬁces, dramatic and musical festivals, debates in the assembly, symposia, and competitive athletics are all performances in the modern sense of the term.
In what sense are defense and prosecution speeches performances? They are not performances in the sense of Searle’s speech acts or Austin’s performative utterances, where, in Austin’s words, by “saying somethingwe are doing something.” For instance, by saying “I now pronounce you man and wife,” the presider at a wedding is not simply making a statement but performing the act of marrying the couple. In an Athenian trial, the principal speech act of this sort is the announcement ofthe jurors’ verdict, which either convicts or acquits the defendant by being spoken. The speeches of the litigants are attempts to inﬂuence a speech act rather than speech acts in themselves.
Forensic speeches are performances in the sense that they are presentations before audiences. Litigants spoke before hundreds of jurors, and, often, like actors, they memorized speeches written for them by someone else, called a logographos, or “speechwriter.” The comparison to the theater is instructive, but it can be misleading. Forensic speeches are performances not because they resemble dramas but because they are presentations before audiences. At the most basic level, then, the kind of performance this book addresses can be deﬁned as “a communicative event before an audience.” The slightly awkward “communicative event” indicates that a performance includes everything relevant to the performer’s message to the audience, including but not limited to words and gestures. A performance can of course take place before an imaginary audience, or the performer can be his or her own audience, but such situations are irrelevant to this discussion.
The surviving texts of forensic speeches, therefore, are one aspect of a complex communicative event that would have included voice pitch and volume, pauses, gestures, movement, dress, and eye contact. Sometimes multiple speakers would take turns speaking. Sometimes the speaker would call witnesses or question his opponent. Sometimes the audience would heckle the speaker or the speaker would ask questions of the audience. We can think of each surviving forensic speech as a script for one part of a performance intended to convince a speciﬁc jury in a speciﬁc place on a speciﬁc occasion. From the outset, we must keep in mind that we are examining the works of professional speechwriters and not speeches delivered extemporaneously. Some litigants spoke without a speechwriter’s aid and perhaps without even formally preparing a speech. Systematic study of these performances is impossible. My study, therefore, shows how skilled authors deliberately composed speeches that exploited the performance conditions of the Athenian courts and the cultural biases of Athenian jurors to help their clients win their cases.
A forensic performance was a one-time event. Epic poetry and choral songs could be performed and re-performed at festivals and ritual occasions. Dramas could be revived in deme theaters, the Theater of Dionysus, or outside Attica. Most oratory, however, had no timeless quality. Regardless of whether forensic speeches succeeded in convincing the jury, they were useless immediately after the trial except as advertisements of the speechwriter’s skill, sources of information for politicians and partisans, examples of prose composition and rhetoric, and entertainment for connoisseurs. There would never have been an occasion to perform them again in a context that mattered, although it is possible that they may have been used as rhetorical exercises or epideictic showpieces. Plutarch reports a ﬁctitious anecdote about Lysias that illustrates the one-time-only quality of forensic oratory:
Lysias wrote a speech and gave it to a litigant. After he had read itmany times, he came to Lysias because he was disappointed. He said that the speech had seemed wonderful to him the ﬁrst time he had gone through it, but that it seemed completely dull and useless when he had read it a second and a third time. Lysias laughed and said, “You’re not going to speak it more than once before the jurors, are you?”
The ancient study of forensic oratory from at least the time of Aristotle took the form of theoretical analyses of organization and argumentation. Throughout antiquity, rhetorical theorists discussed the parts of speeches—prologue, narrative, proofs, and peroration—and the tasks of the orator—invention, arrangement, style, memory, and delivery. This drive to categorize is fundamentally misleading. Although Athenian forensic speeches followed a certain basic structure, the line between parts was ﬂuid. A skillful speechwriter would use his entire speech to convince the jurors. Diﬀerent parts of the speech might appeal to different jurors, but no Athenian speechwriter worried about maintaining a ﬁrm division between the narrative and the proofs.
In this book, I resist the urge to classify and categorize the parts offorensic speeches. Instead, I consider them as uniﬁed performances intended to persuade immediately, not after being analyzed by scholars. Forensic speeches are communicative events that happened in realtime. The jurors could neither press rewind to hear the prologue again nor check a transcript for an argument they failed to understand. Talented speechwriters prepared uniﬁed compositions whose language and structure were designed solely to convince a single audience to vote infavor of the speaker a single time. The connections between performance and persuasion, between speaker and audience, are more significant than the divisions that later theorists make based on careful, and perhaps overly subtle, reading of the texts.
Most aspects of forensic performances are lost forever. We can recover only the barest hints of how the speakers sounded, dressed, and moved. The language of the speeches, however, testiﬁes to their origin as scripts for performances before live audiences. Literary critics inantiquity noticed stylistic diﬀerences between performative and nonperformative prose. Aristotle contrasts written and oral styles: “Leaving out conjunctions and saying the same thing again and again are rejected, appropriately, in writing [en tēi graphikēi] but not in a forensic context [en agōnistikēi]. Orators employ them because they are suited to performance [hupokritikē].” Alcidamas, in his polemic against written speeches, maintains that precision (akribeia) and rhythm (rhuthmos)characterize written prose, while the oral improviser speaks “smoothly and with an appeal to human feelings” (hugrōs kai philanthrōpōs). Furthermore, he claims that the best speechwriters imitate the extemporaneous style when they write forensic speeches. Modern scholarsalso consider certain features of prose style characteristic of oral performance: Michael Gagarin identiﬁes “signposts, ring-composition, parallelism, parataxis, relatively simpliﬁed sentence structure, and, of course, the notorious ‘Gorgianic’ verbal eﬀects,” and Rosalind Thomas, “excessive claims to have proved points, use of the ﬁrst person, rhyming, rhetorical questions, and a lively awareness of the audience.”
This book studies for the ﬁrst time another characteristic of performance in the Athenian courts: manipulation of the audience’s seeing and hearing. Through examples from all forensic orators, but especially Demosthenes and Lysias, it demonstrates how litigants’ words work together with their movements and physical appearance, how they exploit the Athenian preference for visual evidence through the language of demonstration and visibility, and how they plant images in their jurors’ minds. Each chapter places persuasion in the courts within the network of concepts and images that contribute to Athenian notions of visuality. By focusing on references to seeing and hearing, the book also uncovers parallels among forensic, medical, and sophistic discourse that reﬂect a shared concern with how listeners come to know what they have not seen. Recognizing these parallels enables us to situate Attic forensic oratory more securely within the intellectual life of the Greek-speaking world in the late ﬁfth and fourth centuries. The diﬀerences are just asimportant as the similarities, however. The rhetoric of seeing is a ﬂexible category. Litigants and speechwriters shared some techniques with authors writing in other genres, but they adapted them to the circumstances of the Athenian courts and the expectations of their jurors. By recognizing the similarities and the diﬀerences, therefore, we can morefully appreciate what made the rhetoric of seeing in Attic forensic oratory unique and persuasive.
From the outset, it is important to note the methodological complication at the heart of this project. It depends on texts, the hundred or so surviving forensic speeches, to analyze fundamentally nontextual concepts: seeing, hearing, and performance. Almost all scholars of ancient Greek literature face this dilemma. The Greeks themselves experienced dramas, choral poetry, epic poetry, and oratory as performances, but we can access these performances primarily through texts. Vase paintings are a signiﬁcant secondary source for drama, but very few images can be convincingly associated with the courts. Furthermore, the texts of forensic speeches are an imperfect record of the original performances, since authors may have modiﬁed their arguments after the trial.
The texts we have probably do substantially represent the performed versions of the speeches. While expansion or adjustment of arguments is possible, and perhaps even likely, there would have been little sense in publishing a speech that had no connection to the original performance.Even if the performative elements in published speeches were embellished in antiquity to add verisimilitude to a signiﬁcantly altered work, they are still evidence for the kinds of things that Athenians would have considered appropriate for performances. As a result, even though it ultimately cannot be proven, I take it as axiomatic that surviving forensic speeches are records of and evidence for actual court performances.
While forensic speeches themselves, as delivered, were one-time events, they have had, and continue to have, an enduring legacy as texts.
There was a market for them soon after they were ﬁrst performed: Aristotle, according to Dionysius of Halicarnassus, said that very many bundles of Isocrates’ forensic speeches were available from the booksellers. Some of the features I study in this book, such as choice of words and appeals to the imagination, could have aﬀected readers in similar ways to how they aﬀected the original listening and looking audience of jurors. I argue, however, that these individual features can best be understood in their original context as part of a uniﬁ ed persuasive strategy that recognized the jurors as always both looking and listening. This is what I mean by “the performance of persuasion.” Persuasion was not simply the result of argument or particular rhetorical and stylistic techniques. Rather, it was the result of multiple factors working together and reinforcing each other from the beginning of a speech until the end. Moreover, while texts give us an insight primarily into what jurors would have heard, their language attests to the central importance of vision and visuality to the performance of persuasion. Through carefully chosen verbal cues, Athenian litigants would simultaneously take advantage of what the jurors could actually see, of the images they pictured for themselves, and of the concepts and emotions they would have associated with their status as viewers.
Visuality is a complex and personal topic. Even within the same culture, individuals can respond to visual stimuli in diﬀerent ways at diﬀerent times, place varying and inconsistent emphases on the importance of seeing and the importance of hearing, and prefer sometimes to look and other times to be looked at. Throughout my discussion, I seek to avoid oversimpliﬁcation and recognize the nuances and complexities inherent to what is always a personal experience. Even when hundreds of jurors were looking at the same litigants during a trial, each juror experienced his role as a viewer in a unique way. Since this is a study of forensic persuasion, the diﬀerences among individual jurors’ experiences are ultimately less important than their similarities. Litigants succeeded in Athenian trials by convincing a majority of the jurors, and they designed their performances to take advantage of the visual biases, expectations, and susceptibilities that they anticipated most jurors would share. This book is a study of those techniques of persuasion. It discusses how litigants tried to manipulate their jurors’ seeing and hearing and why they believed these attempts would help them win their trials. Since we rarely know the outcome of Athenian trials, it only occasionally addresses the success or failure of individual speeches.
Among the many ways that Athenians could have experienced visuality, two are especially important for litigants and jurors in the courts: the connections between seeing and power, on the one hand, and seeing and knowledge, on the other. Starting from Simon Goldhill’s conceptual model of a “civic gaze” that operates when large groups of Athenians look at and judge individual competitors, the next section of this introduction explores how a concern with power and knowledge would have inﬂuenced the behavior of jurors and litigants.
The Jurors’ Gaze
Goldhill argues that the “civic gaze” is at the heart of Athenian citizenship. The law courts, the assembly, and the theater provided an opportunity for issues and ideas to be debated before a mass audience of citizens. “To be in an audience was not just a thread in the city’s social fabric, it was a fundamental political act. To sit as an evaluating, judging spectator was to participate as a political subject.” For Goldhill, seeing and evaluating and being seen and being evaluated are a central aspect of what it meant to be an Athenian citizen. Competitive display before spectators undoubtedly had a central role in Classical Athens and in Greek culture generally, dating back to the Homeric epics and perhaps even to the boxing boys on a Theran fresco. As Goldhill shows, the term agōn applies to competitive public displays ranging from athletic competitions to jury trials to assembly debates to choral disputes indrama. All of these events featured some kind of competition before anaudience who both listens and looks.
The “civic gaze” would have posed a challenge to some, and perhaps most, Athenian litigants. The need to prove one’s case before the eyes of hundreds of fellow citizens exposed a litigant to possible disgrace andshame. As Aristotle writes, “Things done before people’s eyes and inthe open cause shame more than other things do; indeed, this gives riseto the proverb, ‘Shame is in the eyes.’ Therefore people feel greater shame before those who are going to be with them and those who are paying attention to them, because both situations are before their eyes.” The connection between shame and being seen, which is also explicit intragedy and implied in Homer, is the cornerstone of Jean-Paul Sartre’s under standing of shame. Shame, he argues, “is the recognition of the fact that I am indeed the object which the Other is looking at and judging.”
An individual’s sense of shame before a gazing spectator curtails his ability to act freely and forces him to tailor his behavior to the will of the one who looks. In Sartre’s formulation, then, an Athenian litigantfalling prey to shame would be rendered nearly powerless by the gaze ofthe jurors. The jurors’ consciousness of their own role as gazers may also have complemented the real voting power they held over the litigants. In another context, erotic vase paintings, men are sometimes shown gazing on sexually submissive, or even sexually abused, women, underscoring a parallel between looking and dominating that, mutatis mutandis, may have operated in the courts as well.
Although these real or imagined, conscious or unconscious feelings of power and powerlessness may have inﬂuenced the behavior of jurors and litigants in Athenian trials, seeing and being seen can stir a range of emotions. The ancient Greeks did not experience a uniform emotional response as either subjects or objects of the gaze. On the contrary, seeing and being seen could incite love. They could bring glory. They could demonstrate moderation. They could even facilitate contact with the divine. Indeed, the Athenians do not seem to have associated the gaze primarily with inducing shame and curtailing freedom. Sometimes the gazer has power over the object of the gaze, and sometimes the object ofthe gaze has power over the gazer. In Plato’s Phaedrus and Cratylus, the one who is seen emits particles that aﬀect the gazer, while in Timaeus the gazing eye emits ﬁre from within the body. Aristotle recognizes this double nature of sight, stating succinctly, “In the same way that the sense of sight is acted upon by what it sees, it also does something to itin return.” Finally, although Herodotus’ Gyges states that the queen of Lydia is the property of her husband Kandaules and that the gaze is a privilege of his power, the queen who is seen ultimately decides the fate of her husband and her voyeur.
Context and relationship, therefore, determine the eﬀects of seeing and being seen. Individuals may also experience two contradictory responses at the same time. Just as in Plato’s Republic the same man can simultaneously want to drink and want to abstain from drinking, so the same person can simultaneously feel a sense of power and a sense of powerlessness. These tensions governed the experience of the “civic gaze” in the courts of Classical Athens. At the same time that litigants could experience the shame and powerlessness that arise from being under the jurors’ gaze and subject to the power of their vote, they could also manipulate the jurors into accepting their cases by directing the jurors’ impression of visual power and control. Similarly, impressionable jurors could have felt a sense of power as gazers while at the same time compromising their real power as voters by following the directives of a litigant who inﬂuences how they respond to what they see.
One of the main ways that litigants tried to inﬂuence the jurors’ votes through visual display was by leading their friends, family members, and especially their children to the front of the court at the end of their speeches. In the Apology, Plato’s Socrates criticizes this as a shameless, but very common, plea for pity. When speakers mention this tactic, they often describe the supporters weeping, begging, and supplicating. What the supporters, and especially the children, looked like could be just as important as these verbal pleas. In On the Dishonest Embassy (Aeschines 2), Aeschines notes that his children are not even old enough to understand what is going on, but they will be objects of pity if Aeschines is convicted. Wanting the jurors to respond to what they see as much asto what they hear, he draws their visual attention to the children by calling them “the ones right here [touti], the little children.”⁴⁶ Edith Hall points out that Aeschylus’ Suppliants seems to recognize the importance of children’s appearance during supplication spectacles. Danaos instructs his daughters to supplicate Pelasgos with their voices and their appearances, saying, “First of all, no boldness should accompany your voice, and no wantonness should proceed from your faces, after you’ve gotten them under control, and from your quiet eyes.” The Danaids are teenagers, not small children, and the scene is Argos, not an Athenian court. Nonetheless, Danaos’ emphasis on his daughters’ faces, eyes, and voices indicates that an Athenian audience would expect pleas for pity to combine visual and verbal features.
By parading their children, family members, and other friends before the jurors as they were ﬁnishing their presentations, defendants made sure that this choreographed tableau was the last thing the jurors would have seen before they voted. Through a plea for pity that was partly visual and partly verbal, therefore, they tried to take advantage of the jurors’ status as gazers. If the jurors followed the speaker’s prompting, they would temper their anger in response to the spectacle they were seeing and wield their power in his favor, voting for mercy rather than for vengeance.
So far, I have been discussing the relationship between vision and power, or, even more generally, between vision and emotional response. But this narrow focus does not adequately address the range of Greek conceptions of visuality and their implications for the Attic courts. The connection between seeing and knowing is also fundamental. The verb “know” (oida/eidenai) is the perfect tense of the verb that in the aorist means “see” (eidon/idein). On a semantic level, knowledge is the state that results when someone has completed looking: to say that you know something is the same as to say that you have seen it. Aristotle exploits this verbal overlap at the beginning of the Metaphysics, when he explains that people love sight more than the other senses because it is through sight that we satisfy our hunger for knowledge. Another verb of seeing, theōreō, is used to describe the process of gaining knowledge through speculative reasoning. Its nominal form, theōria, gives us the English word “theory.” Since one of the main tasks of jurors is to determine which of two accounts of the same events is more likely to have happened, their status as viewers is closely connected to their special status as the designated “knowers” charged with resolving uncertainty intocertainty.
Within a single trial, therefore, jurors and litigants could experience the “civic gaze” in a variety of overlapping ways centering on feelings of power and knowledge. Since seeing and being seen are never simple, we should not be surprised that litigants take advantage of themin complex ways. The series of verbs that concludes Lysias’ prosecution speech Against Eratosthenes (Lysias 12) illustrates how litigants could use references to the jurors’ sight to appeal simultaneously to their sense of knowledge and sense of power. Lysias says, “I will end my accusation. You have heard. You have seen. You have suﬀered. You have him. Judge.” “You have seen” follows a reference to second-hand knowledge, “You have heard,” and it precedes a reference to ﬁrst-hand experience, “You have suﬀered.” As a third way that the jurors might know about Eratosthenes, seeing occupies a middle ground between these two poles. But, at the same time, “you have seen” is also linked with another verb, “you have him.” The verb “you have” (ekhete) has no direct object in Greek, but the context makes clear that Eratosthenes is the person the jurors have. He is present in the court, under the jurors’ control. Throughout Lysias’ speech, they have seen him sitting before them, a constant reminder that a self-proclaimed tyrant is now subordinate toa democratic jury. Now that Eratosthenes is about to begin his defense, Lysias wants the jurors to continue seeing him as their subject—the person they have—and not as an authoritative ﬁgure about to convince them of the justice of his case.
The Spaces and Audiences of the Athenian Courts
Assessing the precise force of phrases like “you have seen” in Athenianforensic speeches is a challenge, since we know little of what the Athenian courts actually looked like. Despite our ignorance of the visual details of speciﬁc trials, we can paint a reasonably accurate picture of their general performance conditions. References to the courts are commonin both literature and inscriptions. Even though they are often contradictory and always diﬃcult to link with the meager archaeological evidence, enough information survives for us to reconstruct something of what Athenian litigants and jurors must have experienced in the courts. This discussion of performance conditions focuses ﬁrst on the types ofpeople who probably composed Athenian juries, then on the courts’ locations and physical features, and ﬁnally on the special features of the homicide courts.
The audience for forensic performances would have included jurors, called dikastai (singular, dikastēs), and interested observers, “the people standing around” who were welcome to attend trials except in rare circumstances. A more accurate translation of dikastai would be “judges.” Athenian courts had no oﬃcial analogous to a modern judge, and the function of the dikastai combined the functions of a modern judge and jury. Following scholarly convention, I call the dikastai “jurors,” but I ask the reader to bear in mind that this convenient translation only approximates their actual role in Athenian courts. In the 330s and 320s, trials required a minimum of 201 jurors, and important public cases could have multiples of 500 jurors, with an extra man to prevent ties. At earlier periods, the numbers of jurors may have been slightly diﬀerent, but these numbers are a reasonable approximation of jury sizes throughout the ﬁfth and fourth centuries. Jurors for individual trials were drawn from a group of 6,000 eligible men who swore a special oath every year. They had to be at least thirty years old, and neither in debt to the state nor deprived of civic rights.
Athenian courts tried cases between 175 and 225 days a year, and by the early fourth century, multiple courts could be in session simultaneously. All 6,000 eligible jurors would not have reported for service every day, but more jurors had to be available than were necessary to staﬀ all the trials. To ensure that litigants could not know who their jurors would be before the trial began, the Athenians allotted only some of the available jurors to trials. Only jurors assigned to trials received payment for their service, originally two obols but raised to three by Kleon in the 420s. This system, to be eﬀective, probably relied on a core group of jurors who had suﬃcient leisure to present themselves for jury service on a regular basis and would not have been greatly inconvenienced if they were not selected for a panel. This core group of unemployed menwould have lived close enough to the center of Athens to come to the courts easily, and a disproportionate number of them may have been elderly. If this is correct, the elderly urban jurors of Aristophanes’ Wasps would represent a stereotype that reﬂects an underlying reality. Apart from this core group, the demographic composition of individual juries would probably have varied widely. The Athenians would have needed diﬀerent numbers of jurors on diﬀerent days, and there is no reason tosuppose that the same people, or even the same types of people, came every day. In addition, sensational trials involving public ﬁgures or scandalous disputes may have attracted curious jurors who avoided more mundane cases.
By the mid-fourth century, the Athenians had designed a complex of buildings used exclusively for trials. In earlier periods, they held trials in a variety of locations that served other functions as well, such as the Stoa Poikile and the Odeion. We also hear of court buildings called Parabyston and Trigonion, but we know almost nothing about them. In the ad hoc courts, and perhaps in the purpose-built ones as well, the jurors sat on wooden benches that could have been arranged in rows oras “inward-facing circles.” In front of the jurors’ benches, there would have been at least one wooden platform called a bēma for the speakers. The court would also have contained the water-clock, or klepsudra, and the voting urns, as well as seating for the presiding magistrate, the secretary, the litigants, their supporters, and their witnesses. Since trials could have happened indoors, in partly enclosed stoas, and perhaps even outdoors, a variety of conditions could have aﬀected how well the audience could see and hear the litigants. Unlike on the Pnyx, however,there is no reason to suppose that hearing or seeing was impossible, except perhaps for very large trials.
From this survey, a general picture of Athenian trials emerges. A litigant performing his speech would have looked out on hundreds of men,who would probably have represented a broad swath of Athenian society, aside from the group of regular jurors that I hypothesize formed the core of the court system. The jurors would have looked back, focusing on the speaker but also aware of the other participants in the trial and the apparatus of the court. While the details of this arrangement would have varied among the many places the Athenians held trials, the close visual relationship between the jurors and the performing litigant was probably a feature of every trial, and its importance should not be underestimated.
I have been describing the conditions and personnel of the trials judged by dikastai. The Athenians had other judicial procedures that resembled trials, including examinations of public oﬃcials (dokimasiai) that could be judged by the council (boulē) and impeachments of public oﬃcials (eisangeliai) that could be judged by the assembly. The personnel and locations of these procedures and others like them are beyond the scope of this overview. We are particularly well informed of the unique circumstances of Athenian homicide trials, however, and because their performance conditions diﬀered signiﬁcantly from the regular courts I discuss them here.
In cases of homicide, the Athenians employed special procedures inspecial locations to address the seriousness of the charge and the ritual pollution resulting from even justiﬁable murder. All homicide trials had to be conducted under the open sky and, seemingly, within a sanctuary. Cases of intentional homicide, intentional wounding, poisoning, or arson were tried on the hill called the Areopagos, where there was a cave sacred to the Semnai Theai. Cases of unintentional homicide and planning a death, as well as the murders of slaves, metics, and foreigners, were tried at the Palladion, a sanctuary of Pallas Athena. Cases of justiﬁable homicide were tried at the Delphinion, a sanctuary of Apollo Delphinios. The location of the Palladion is unknown, but the Delphinion complex has been tentatively identiﬁed as a temple and another Archaic building south of the Olympeion. Scholars generally agree that a casewould be assigned to either the Areopagos or the Palladion based on whether the plaintiﬀ charged intentional or unintentional homicide, and that it would go to the Delphinion only if the defendant pled justiﬁable homicide. At the Areopagos and almost certainly in the other courts too, litigants and their witnesses swore special oaths while standing upon cut pieces of a boar, a ram, and a bull. Each litigant was also allowed to make a second speech responding to his opponent’s arguments, although the defendant could go into voluntary exile before giving his second speech. In all three courts, the plaintiﬀs would have been close relatives of the victims.
We also hear of two other homicide courts: the court called en Phreattoi, where cases were tried of intentional homicide committed by someone already in exile because of an earlier unintentional homicide, with the defendant making his speeches from a boat anchored oﬀ shore, and the Prytaneion, which judged cases of homicide committed by an inanimate object, an animal, or an unknown person. Since it is not clear that the hearings held by the Prytaneion were really trials or that the court en Phreattoi was convened except on very rare occasions, I do not address them here.
The jurors at the Areopagos were the Areopagites, who, after the reforms of Ephialtes in the mid-ﬁfth century, were all living former archons. Estimates of their numbers and average age vary, but there were probably at least 145 total Areopagites at any given time, and most of these would have been in their late forties or older. Attendance does not appear to have been mandatory or monetarily compensated, so the number of Areopagites at any given trial may have been well below the total membership of the body. Their being former archons may have given them greater legal expertise and made them more competent than a regular jury. According to Drakon’s legislation, a group of 51 men known as ephetai judged homicide trials at the Palladion and the Delphinion. We do not know whether this special group continued to exist in the ﬁfth and fourth centuries or if the Athenians appointed jurors to these courts in the regular manner for nonhomicide trials.
The small number of Areopagites would have made the Areopagos a more intimate performance setting than a regular Athenian trial, even if murder cases could have attracted a greater number of curious spectators. Trials at the Palladion and Delphinion would have been even more intimate if they really were judged by 51 ephetai. Even aside from the number of jurors, homicide trials must have posed unique performance challenges to both litigants, thanks to the family tie between the plaintiﬀ and the victim, the solemn oaths, the second speeches, and the ritual atmosphere.
Although we have a wealth of speciﬁc details about the jurors, procedures, and locations of the Athenian courts, we have no decisive evidence about how they would have aﬀected the litigants. This reﬂects acentral challenge of any discussion of performance in antiquity. Anyone analyzing performance conditions today, either in theaters or in courts, would attend a performance and observe the way that space and audience aﬀect it. They would consider the role of acoustics, lighting, and sight lines, as well as the voices, outﬁts, and movements of the performers themselves. To study a play from only the book or a trial from only a transcript might yield interesting results, but no one would confuse it with the study of the performance itself. For ancient forensic performances, however, this is the only option. Except for homicide trials, itis impossible even to match individual speeches with speciﬁc locations. So, I ask the reader to keep this general picture of the performance conditions of Athenian trials in his or her mind throughout the rest of this book. Although speciﬁc details would have varied among locations and dates, most litigants would have performed their speeches in a context like the ones I have described here.
Litigants and speechwriters would probably have prepared and rehearsed their speeches without knowing which location the trial would be assigned to or exactly what jurors would judge it, except in cases ofhomicide. As a result, there would have been no way for them to make reference to speciﬁc visual details they could not safely predict ahead of time. This would explain why forensic speeches very rarely mention any visible features of the courts beyond general references to the speaker’s platform and the water-clock. Since we are studying speeches designed, in all likelihood, to succeed across a range of possible locations and audiences, we should not despair excessively about our ignorance of where individual trials happened and who their jurors were.
While some signiﬁcant details of the original performances are beyond recovery, the texts that survive represent the best attempts of litigants and speechwriters to prepare performances that would persuade a typical audience of Athenian jurors in a typical Athenian court. When we analyze these texts as performances with only a general knowledge of their performance contexts, therefore, we are in a position similar to their authors when they composed them. Even if we have no access to the actual moment of performance, we can examine how litigants and speechwriters planned their performances and what features they expected would persuade the jurors. Furthermore, even if some speeches underwent signiﬁcant post trial revision before being circulated as written texts, the core of even these speeches must reﬂect the versions that were prepared and rehearsed before the trial itself.
Performance in Modern Courtrooms
Law and legal procedure are a persistent theme in modern American plays, movies, and television shows. Dramas such as Inherit the Wind, To Kill a Mockingbird, Perry Mason, and Law and Order exploit the tension, suspense, and ultimate resolution of ﬁctional trials, exploring the nature of justice and, just as importantly, entertaining their audiences. The line between law and popular entertainment is not always clear. Millions of Americans followed the trials of O. J. Simpson and Casey Anthony as though they were soap operas, and arbitration hearings on The People’s Court and Judge Judy compete directly with afternoon talk shows every day of the week. Classical Athenian theatergoers shared our interest in trials. In the Eumenides, Aeschylus presented a meditation on justice and civilization through Orestes’ trial on the Areopagos, and, at the other extreme, the parodic trial of the dog Labes in Aristophanes’ Wasps poked fun at Athenian juries and legal procedure. Furthermore, some of “the people standing around” and watching Athenian trials may have been attracted by a similar kind of voyeuristic pleasure to what viewers of televised trials experience today.
The parallel between trials and dramas has led modern scholars todevelop theories of “law as performance.” Many of these theories use performance as a metaphor for understanding the nature of law itself. For instance, Jack M. Balkin and Sanford Levinson argue that law is properly understood as an ongoing process of enforcement and interpretation—a performance—rather than as a series of unchanging statutes. Judges who interpret written laws in broad or narrow ways are like musicians who add to or excise from original written scores. Similarly, Sara Ramshaw contends that judges in common law traditions resemble actors or jazz musicians who “jam,” or collectively improvise in accordance with a basic structure they all agree to follow. Like jamming, which requires a single performer to cooperate with the other participants and to respond to the reactions of the audience, judicial decisions can be thought of as spontaneous improvisations that apply the predetermined structure of legal precedents to unique cases in light of the needs and expectations of a particular community.
Arguments such as these, which posit that law exists in action rather than in texts, can help illuminate the nature of law and justice in the Athenian courts, where litigants regularly employed a range of arguments based on their particular characters and circumstances as well ason written laws. This study, however, is not concerned with the nature of law but with the nature of persuasion during legal proceedings. Hence, it is more closely related to approaches to “law as performance” that consider strategies used by modern lawyers during courtroom arguments. Three foundational insights of these approaches inform the entire project.
First, forensic performances create representations of reality. Juries need to make decisions based on events they did not witness. Lacking ﬁrst-hand knowledge, they depend on witnesses and advocates to present a coherent set of relevant facts that will enable them to render a just judgment. Even with procedural safeguards governing the types of evidence that are admissible, and even with complete good faith on the partof both parties to the lawsuit, there will always be a gap between the reality of what happened and how it is represented to the court. Litigants, or their advocates, can take advantage of this gap by presentingcases that are like reality in ways that are favorable to themselves. This verisimilitude need not correspond to actual reality, as Tzvetan Todorovhas shown. In a modern courtroom, verisimilitude in Todorov’s sense refers to what the judge and jurors believe is like reality, to what the standards of legal discourse accept as like reality, or to what the litigant convinces the judge and jurors is actual reality and not mere adherence tothe standards of legal discourse.
A modern example nicely illustrates the concept of verisimilitude. Judges sometimes allow lawyers to present computer animations to jurors that purport to show how a contested event happened.⁸⁵ Such animations are by deﬁnition not reality, but, if they correspond to the jurors’ conception of how the event could have happened, they are like reality.If they are allowed into court in the ﬁrst place, they are recognized asadhering to the standards that legal discourse admits to be like reality.Finally, if the lawyer draws the jurors’ attention to their very artiﬁ ciality but insists that they still convey the truth, they are like reality. Computer animations, then, are persuasive only to the extent that the jurors accept them as an adequate representation of what really happened.Within the limits of their own time and place, Athenian litigants and speechwriters also represented reality with techniques that correspondedto what the jurors could accept as like reality. As with modern juries andcomputer animations, we should not ask ourselves whether the jurorswere confused between representation and reality but to what extent litigants could exploit the recognized diﬀerences between representationand reality in their own favor.
Second, forensic performances are part of a culturally determined system of legal discourse. Communication in any formal legal setting depends upon three fundamental elements: acceptance of a set of procedural and legal norms; knowledge of the technical terminology necessary to discuss those norms; and familiarity with the nontechnical but customary language, actions, and ways of thinking that tend to accompany thetechnical terminology. In this context, “procedural and legal norms” is an umbrella term referring not only to codiﬁed laws and procedures but also to shared concepts that provide a framework for talking about law and justice. For the Athenians, these include religious belief, democraticideology, and family duty, as well as a commitment to the power of the people to adjudicate disputes through jury trials. On a more mundane level, they also include the distinctions among Athenian procedures, many of which we can no longer appreciate. Technical terminology ﬁ tsinto this cultural framework, and, as a result, most Athenian legal terms have no exact equivalent in English. The most famous example is the charge of hubris, which modern scholars still struggle to deﬁ ne. Even seemingly pedestrian terms associated with inheritance like diathēkē and klēros can only be approximated in English by “will” and “estate.” Th esepartial overlaps in meaning can make Athenian legal discourse seem simultaneously familiar and exotic to modern readers.
My study is most concerned with the third element of communication in legal settings, nontechnical but customary features of legal discourse. Among the most important of these nontechnical but customary features is the nontechnical or semitechnical vocabulary that authors or speakers use to talk about the law or to make an argument more persuasive. As Bernard J. Hibbitts has shown in a study of American legal discourse, language can reﬂect cultural values shared, perhaps unconsciously, by authors or speakers and their audiences. In a 1994 article, he argues that an increase in legal metaphors based on hearing and speaking and a corresponding decrease in metaphors based on seeing reﬂ ectthe increased participation in the American legal system of groups who tend to favor oral communication over visual communication, such as women and certain minorities.⁸⁶ The details of Hibbitts’ sociologicalmodel that certain groups favor certain types of communication may beopen to debate. However, his insight into the cultural resonance of metaphors in legal discourse illustrates a productive way of thinking about performance and persuasion in legal contexts. Words that reﬂect an audience’s preconceptions or cultural biases can inﬂuence the way that theyrespond to arguments.
Anthony G. Amsterdam and Randy Hertz provide an example ofhow this can work in practice. In an analysis of the closing arguments of a 1991 homicide trial in New York City, they show that the defense attorney uses metaphors of speaking and looking to present “the jury’sthinking processes as physical and active.” First, by referring to the jurors’ thoughts as though they are speech (“I can hear you all saying . . .”), the defense attorney encourages them to consider the trial as a dialogue between them and the lawyers and not to accept the prosecution’s case as authoritative. Second, by telling them to “look” when he wants themto listen attentively to his words, the defense attorney encourages the jurors to focus on their responsibility to judge the person they are actually looking at in the court: he also directs them to “look” at him during his speech. The prosecutor avoids visual language of this sort, instead emphasizing the jurors as disinterested judges rather than activeparticipants.⁸⁷
The modern lawyer who chooses to integrate metaphors like these into his or her rhetorical strategy must be intimately familiar with thecultural preconceptions the jurors are likely to share. Athenian litigantsand speechwriters would have faced a similar challenge when decidingthe kind of language to use in their arguments. Vocabulary choice isalways at the heart of the relationship between the performer and the audience. When we study the language of Athenian forensic speeches, we must consider both the underlying patterns of thought that repeatedwords or phrases represent and the speciﬁc reasons that speakers deploy them in their arguments. Just as “look” has a special resonance in the defense speech studied by Amsterdam and Hertz, words that refer toseeing and sight can play a central role in the rhetorical strategy of Athenian forensic speeches, even if their visual connotation is not always inthe forefront of jurors’ minds.
Third, forensic performances rely primarily upon words, and every word is important. The “law and literature” movement of the past thirtyyears has accustomed scholars to analyzing modern legal texts with techniques of literary criticism. One of the most productive approaches relieson a meticulous analysis of individual words and their function withinsentences. For instance, Anthony G. Amsterdam and Jerome R. Bruner’s study of nouns and verbs in decisions of the U.S. Supreme Court shows that lexical choice often plays a central role in argument. In Justice Story’s decision in Prigg v. Pennsylvania (1842), which held that individual states could not pass laws interfering with slave owners’ constitutional right to recover runaway slaves, nouns referring to governmententities are the subjects of verbs more often than nouns referring to people. Nouns referring to people of African descent especially tend to bethe objects of verbs or to appear in subordinate constructions. Story’s vocabulary and grammar, then, present a world in which government is the prime actor, and people of African descent are particularly powerless. Th is reﬂects his reasoning, which presented the issue primarily asa conﬂict between states to be decided by the federal government rather than as a matter aﬀecting individuals. There is a similar emphasis on government entities as actors in Justice Kennedy’s decision in Freeman v. Pitts (1992), which held that federal supervision of segregated school districts is unnecessary if the segregation does not result from state policybut from demographic patterns. In Justice Warren’s decision in Brown v. Board of Education (1954), in contrast, nouns referring to government entities are still the most frequent actors, but both whites and blacks are the subjects of verbs more frequently than in either Prigg or Pitts.⁸⁸
This type of analysis reveals that word choice and grammatical construction can be integral to the construction of legal arguments. To paraphrase Amsterdam and Bruner, language creates a world.⁸⁹ Although Athenian forensic speeches diﬀer from U.S. Supreme Court decisions inmany ways, they can also use language to create a world that reinforcestheir core arguments. In approaching them, we should never dismiss attention to small details as pedantry. As Amsterdam and Bruner show, even the seemingly minor distinction between active and passive voice can contribute to the eﬀectiveness of an argument. In a language as nuanced as Greek, we can anticipate that particles, verbal aspect, and wordorder can play similarly signiﬁcant roles in persuading an audience.
an overview of the book
These three insights have shaped my thinking about forensic persuasionin Classical Athens, and they provide a foundation for many of the interpretations I present in this book. My argument explores the ways thatlitigants and speechwriters in a wide variety of cases try to harness the power of the jurors’ sight and use it against their opponents. It proceedsthrough three parts. Th e ﬁrst part, “Physical Sight,” considers how litigants’ performances combine what the jurors can see with what they can hear. The second part, “The Language of Demonstration and Visibility,”examines how litigants use words associated with sight to create a conceptual world where the jurors are encouraged to compare themselves to witnesses who have authoritative knowledge of the cases they have tojudge. The third part, “Imaginary Sight,” shows how litigants encourage jurors to imagine they are present at events they could never have seen. Jurors who respond to litigants’ directives develop mental pictures that encourage them to accept the litigants’ claims.
At the end of this book, an appendix includes short descriptions of every speech I discuss. Readers may wish to refer to this appendix to supplement the details provided in the chapters.
“… this book should be welcomed as an articulate, thought-provoking exploration of a fascinating and rich topic not hitherto treated in the synoptic compass that O’Connell offers us here. It will be of interest to a wide readership.”
Bryn Mawr Classical Review
“O'Connell's monograph offers refreshing new insights that will help enhance our appreciation of the art of persuasion in Classical Athens. It deserves to be read by a wide audience of specialists and non-specialists.”
“An excellent contribution to the study of Athenian rhetoric that should be welcomed by specialists in both Classics and the study of rhetoric. The aspect of Athenian rhetoric under scrutiny has not yet been adequately studied nor even properly described.”
Harvey Yunis, Rice University, editor of Written Texts and the Rise of Literate Culture in Ancient Greece and author of Taming Democracy: Models of Political Rhetoric in Classical Athens