LAW and LAW COURTS in ANCIENT GREECE Rosalind Thomas The

LAW AND LAW COURTS IN ANCIENT GREECE

Rosalind Thomas

The Institute of Classical Studies and the wider University of London have been an important catalyst for work on Greek law and the Athenian law courts, and the Bulletin of the Institute of Classical Studies has been able to reflect this. We bring together here a rich collection of twelve articles by scholars who from various angles have examined the actual, practical operation of the law and the law courts through the techniques of Athenian oratory. The wealth of evidence for the operation of the law courts and the assembly from Athens means that most of these articles focus upon Athenian rhetoric and law in the heyday of its democracy. Theories about argument in oratory have a wider application across the Greek world, and two articles included here range beyond Athens in thinking about the nature and application of law. A series of seminars held at the Institute of Classical Studies, and the colloquia on the ‘New Hypereides’ discovered in the Archimedes Palimpsest and on ‘Profession and Performance’, created excellent opportunities to explore the interlocking questions and debates about the role of law, the rule of law, and the relation of legal procedures and rhetoric in democratic Athens.

We cannot examine law by itself without the apparatus within which it was applied and the structures – either cultural or political – in which it was created, and then argued over, supported, evaded, and put into action. There is a continuing debate about how far the Athenian law courts really kept to the law; did they not get distracted by irrelevant arguments or emotive narrative, fine and clever speakers, fraught periods of high tension, and of course by the highly skilled techniques which the semi-professional orators increasingly exercised? As the techniques of Athenian oratory and persuasion developed in the late fifth century, so did the techniques of ‘proof’. There is reason to believe that in the late fifth century and especially after the restoration of the Athenian democracy in 403 BC, Athenians tried to buttress the role of written law still more clearly, declaring that only written laws could be used, not ‘unwritten law’ (with all the ambiguity that such a term could involve). A firm separation between nomos, meaning ‘law’ or written statute law, and psēphisma, meaning ‘decree’, was attempted. Athenians should not be able to repeat the constitutional and military disaster of the trial of the generals after Arginusae in 405 BC, where ‘the will of the dēmos’ was expressed in the tense and angry atmosphere of the assembly of the day, and this was allowed to supersede the clear legal procedures which necessitated a separate trial for each general (Xen. Hell. I 7.1–35).

The place of law and ‘artless proofs’ amid the other arguments and proofs is examined by Christopher Carey in a classic article reproduced here, entitled ‘Artless proofs in Aristotle and the orators’ (BICS 39 (1994) 95–106).1 Aristotle meant by ‘artless proofs’, atechnoi pisteis, the range of ‘witnesses, tortures, contracts, and the like’, as opposed to arguments devised by orators. Carey examines the possibility that the orator could deploy and manipulate these pre-existing ‘proofs’, and the relation to rhetorical argument (‘artificial proof’). He shows that careful deployment of depositions and witnesses could in fact influence the use of other kinds of proof, the rhetorical deployment of moral and ethical arguments. The related question of how strictly the Athenian courts really applied the law is examined with reference to epieikeia, the concept of ‘equity’ or ‘fairness’, by Edward Harris (BICS 56.1 (2013) 27–48: ‘How strictly did the Athenian courts apply the law? The role of epieikeia’). Also starting with Aristotle’s striking remarks about ‘fairness’, this piece argues that ‘fairness’ did in fact enable jurors to consider extenuating circumstances and cases not precisely covered by the laws, but covered implicitly by Athenian ideas of justice.

The relationship between written law and either ‘oral law’ or non-written habits of dispute settlement is examined by Rosalind Thomas, ‘Written in stone? Liberty, equality, orality, and the codification of law’ (BICS 40 (1995) 59–74). This looks at evolving ideas about written law and non-written law, especially in archaic and fifth-century Greece, arguing that when written laws came into use they did not necessarily stand alone or arrive onto a blank slate, but often had as background non-written and older (‘non-legal’) customs; archaic laws were often written up on stone precisely because they were new or controversial. Another chapter also looks beyond Athens: Peter Liddel explores the extent to which Athens interfered with the legislative and epigraphic habits of the allies of the Delian League (BICS 53.1 (2010) 99–128: ‘Epigraphy, legislation, and power within the Athenian Empire’). This includes investigating the extent and nature of inscribed legislation by the allies.

The growth of the teaching of oratory, the art of persuasion, brought to the fore useful techniques, certain tricks, and types of argument which were seen to be effective, and which

1 Cf. also his ‘Nomos in Attic rhetoric and oratory’, JHS 116 (1996) 33–46. can amusingly be seen applied to precisely opposite sides of a case in Antiphon’s Tetralogies. Thus Stephen Usher examines dunaton, ‘possibility’ (BICS 50 (2007) 1–18: ‘Possibility: a neglected topos’). Starting from Aristotle’s Rhetoric (Rhet. 2.18.3–19.15), he examines this as a topos especially of deliberative oratory; including much on the speeches in Herodotus, Thucydides, Xenophon, and Demosthenes, he argues that it is particularly interesting to the historian since it must inevitably bring into play questions of resources and strategy.

Michael Gagarin looks at the nature and extent of rational argument in our earliest Athenian oratory, that of Antiphon, in ‘Rational argument in early Athenian oratory’, which appeared in Logos: rational argument in classical rhetoric, BICS Supplement 96 (2007), ed. J. Powell. He examines the range and sophistication of rational arguments, as opposed to the so-called ‘irrational’ or ‘automatic’ proofs championed by some earlier scholarship. Christos Kremmydas in the same colloquium leads on from Gagarin’s paper, and examines rational argument in action in Demosthenes’ Against Leptines (‘Logical argumentation in Demosthenes, Against Leptines’).

The new discovery of a text of part of Hypereides’ speech Against Timandros gave rise to a colloquium again in London’s Institute of Classical Studies in 2009, on The New Hypereides (The New Hypereides Conference Proceedings, ed. Mike Edwards, published in BICS 52 (2009) 133–252). This offered an opportunity to examine Hypereides’ techniques and relation to the laws in this new text. Lene Rubinstein looks at his legal argumentation in ‘Legal argumentation in Hypereides’ Against Timandros’, focusing on the Athenian law about orphan siblings, and whether the speaker was misrepresenting it. David Whitehead examines the text with particular attention to the nature of the suit and accusation, penalties and strategies, and the socio-legal expectations about orphans and their well-being (‘Hypereides’ Timandros: observations and suggestions’).

Finally we include Edith Hall, who examines ‘Lawcourt dramas: the power of performance in in Greek forensic oratory’, emphasising areas of rhetorical practice where there are revealing similarities in technique, subject matter, and presentation between law court practice and Athenian drama (BICS 40 (1995) 39–58).2 More recently two articles concerned with delivery and performance of speeches derive from another colloquium in

2 There is an expanded version (‘Lawcourt dramas: acting and performance in legal oratory’) in E. Hall, The theatrical cast of Athens: interactions between ancient Greek drama and society (Oxford and New York 2006) 353–92. London, organised by Royal Holloway, and are taken from the edited papers of that colloquium, Profession and Performance, BICS Supplement 123 (2013), ed. C. Kremmydas, J. Powell, and L. Rubinstein. Mike Edwards examines delivery in ‘Hypokritēs in action: delivery in Greek rhetoric’; in part following on from Edith Hall’s 1995 article (above), he wishes to draw important distinctions between possible behaviour in the theatre, and what was needed in the law courts, and stressing a tension between theory and practice in the art of speaking by examining closely certain very precise techniques of performance in extant speeches. The second piece is by Victor Bers, ‘Performing the speech in Athenian courts and assembly. Adjusting the act to fit the bēma?’. Examining various aspects of delivery, practical and ideological, he argues that techniques of delivery were in fact adjusted for the law courts: here, orators tended to look composed and in control, while for the citizens in the assembly an orator could indulge in a more excited performance, and there had to be more interaction with, or control of, the thorubos (‘noise’ or ‘uproar’) of the crowd.

The relation of law and democracy, where democracy prides itself on the rule of law, is a matter which is still of central importance in modern democracy, as recent events again make clear.

November, 2016.

Balliol College, Oxford.