THE REVIEW OF COMMUNICATION
2.2 (April 2002): 129-134
© 2002 National Communication Association

Constituting Democratic Order in Ancient Athenian Lawsuits

Per Fjelstad

Steven Johnstone. Disputes and Democracy: The Consequences of Litigation in Ancient Athens. Austin: University of Texas Press, 1999. xiv + 207 pages. Notes, bibliography, and two indexes. $37.50 (cloth); $17.95 (paper)

An ideology of democracy appears in the rhetoric of Athenian litigation. Choosing not to view law as written code, authoritative decree, or procedural protocol, Steven Johnstone presents Athenian law as a culture of elaboration in which legal responsibilities were decided in a form of discourse inflected by ideals of democratic governance.

Johnstone reconstructs the culture of Athenian law by reading manuscripts prepared for litigants by professional writers. The evidence has limitations, as Johnstone acknowledges. Litigants who could afford a speech writer were a subset of those appearing in court, distinct by virtue of wealth and social position. Litigants undoubtedly also departed from their manuscripts in what they actually said. Despite these irregularities, the court speeches reveal common challenges and resources of the speaking situation. The speeches show how a dispute changed when presented in a court of law, how practices of posing dares represented a form of resolution that looked beyond the court, and how conventions in pleading invoked interdependencies at the heart of democratic rule. Johnstone uses these speeches to reconstruct a culture of litigation that was classist, patriarchal, and often actively democratic.

The main chapters of the book assess how litigants addressed the jury on particular issues. The first chapter describes how litigants disputed the meaning of Athenian law. Litigants often urged interpretations on grounds that “the lawgiver” would have intended that scope or purpose, that the validity of an interpretation was born out by other similar laws, and that a purpose of Athenian law was to sustain democratic government. Johnstone avoids discussing or evaluating what specific written statutes were or actually meant, in part because many written laws failed to survive, but also because the meaning of the law was decided in and through litigation, rather than being independently determinable. In one illustration he shows that litigants disputed the legality of a decree by invoking the jurors’ solemn oath that they would decide the case “according to the law” (37-40). While there was a written law forbidding decrees from violating existing law, the prosecutor’s invocation of the juror’s oath, according to Johnstone, was not an appeal that jurors should strike down the decree according to that written law, but instead that they invalidate it based on their understanding of Athenian law as a whole. In other words, invocation of the jurors’ oath called upon faithfulness not only to the technical meaning of a written statute but also to the negotiable fabric of Athenian law as a whole, typically interpreted by reference to a mythic lawgiver, correspondences among similar laws, and the purportedly democratic function of Athenian law generally.

The second chapter describes constraints that litigation imposed on accounts presented for consideration. The prosecutor and defendant assumed asymmetrical roles in telling stories that either depicted a particular action as a crime or rejected the necessity of portraying the dispute so starkly. The structure of the trial thus influenced the stories that could be litigated. Furthermore, prosecutors needed to oblige certain standards in the stories they told: the narrative had to identify a particular act as the crime, dichotomize the dispute between two opposing parties, and structure the dispute as between parties who were citizens (or who for other reasons were considered competent to appear in court). These factors caused narratives to privilege some features of the original dispute and suppress others.

Johnstone recounts, for example, a case in which a citizen Euphiletos charged another, Erastothenes, of adultery (53-54). Having been informed by a spurned lover of the accused that the man was seducing the accuser’s own wife, Euphiletos plotted to discover them, did, and brought Erostothenes to court. The narrative dichotomized the dispute, not between husband and wife, but between the two men. Only they were competent to appear or be charged in court. Thus the ostensible issue in the case was the challenge to the prosecutor’s honor by the actions of the defendant, even though from other plausible perspectives the dispute motivating the entanglement was at least also between Erastothenes and his spurned lover, if not also between Erastothenes and his own disaffected wife. The point Johnstone makes is that complex problems, often arising among multiple parties and over lengths of time, inevitably were simplified and dichotomized, in order for the story to be heard and told in court.

The third chapter explores the apparent rhetorical function in these ancient trials of the so-called dare. In a dare a litigant challenged his opponent to a potentially truth-revealing scenario that could settle the dispute. Often, for instance, a prosecutor might demand the defendant offer a slave for questioning and then accept the slave’s account as the truth. This could settle the dispute. The dare typically spelled out the conditions under which the questioning would take place: when it would happen, who would ask which questions, what oaths would be taken by whom, what type of torture might be applied, and how a slave’s owner would be compensated for possible harm to the slave.

Dares often were used in a trial to insinuate that an opponent was not forthcoming about the truth. The inference was that if truth actually was as that person said it was, then he would agree to the procedure and it would uncontroversially exonerate him. The reverse implication was that if the defendant refused the dare, then he was twisting the truth, that is, was guilty. In this way a dare seemed manipulatively to create a double-bind for a targeted litigant. Yet Johnstone sees the dare function more complexly, for the functional significance of the rhetorical offer lay in the details. If the terms of a dare seemed unacceptable, as they often were, the person challenged could counterdare, shifting the inferred burden of proof. In this way dares functioned like settlement offers do today. They provided a way to resolve the dispute that did not rely only on the institution of litigation.

The fifth chapter examines the implications of appeals for pity. Johnstone contends the Athenian legal context highlighted discussion of personal character in a more explicit mode than did the political discourse of the Boule or Assembly. Prosecutors would ply the jury to disregard the likely emotional appeals of the defendant, urging jurors instead to uphold the law and to keep their oaths. Defendants bid the jury to acknowledge charitable acts they had done for the city, the likely consequences not just for their own families but for the whole city if their households were ruined, their suppliant humbleness in asking for mercy, and the general virtue of showing sympathy to victims. In these ways both prosecutors and defendants sought to induce the jury to identify itself not only with the litigants themselves but also with the city of Athens and its democratic culture. Beyond positing the city’s democracy as a practice of enforcing written laws, litigants, especially defendants, bespoke a citizenry of moderation, who respected charitably spent wealth, had compassion for citizens who demonstrated humility in front of the demos, especially citizens wealthier than the jurors. Thus the defendants’ appeals for mercy thematized and reinforced a particular understanding of relationship among citizens that befit a democratic social order.

Finally, Johnstone notes that defendants asked for pity not only in words. Defendants enacted their appeals performatively. Here Johnstone goes beyond the extant court speeches, since they could not convey performative qualities. Instead, Johnstone turns to theatrical depictions of court performances and to verbal anticipations by prosecutors of such performances. Defendants (and never prosecutors) displayed weeping, offered dramatic supplications to the jury, and presented members of their families who too would be affected by the proposed penalty. Johnstone adduces from these records that litigants perceived a common obstacle in their efforts to shape and constitute their relationships with the jury, specifically the seeming slipperiness and elusiveness of sheer language as a ground for representing their identity, character, and connection with an audience: an apparent anxiety about the intangibility of rhetorical language and representation. Thus “many speakers sought to intensify the effect and warrant their words with actions.” The spectacles of these appeals “offered a way around the slipperiness of language,” and one effect of these performances was to dramatize features of the relationship between jury and defendant, namely, the jury’s ultimate power over the defendant, its consciousness of that power, and the defendant’s acknowledgment of subservience (125). Even the wealthy, especially the wealthy, ritually submitted themselves—and their representations of their own character—to the judgment not of a king or judge but of ordinary citizens charged to represent the city.

In sum, Johnstone’s analysis shows that in Athens discourse in the court of law was fragile. People experienced anxiety related to the sheer verbalness of human relations in that context. Everything was subject to spin. What the law itself meant was debatable and debated. Litigants had few extra-judicial relationships with jurors. The credibility of litigants was constructed verbally. There was no judge to keep the prosecution or jury in line. Even the pathway to seemingly incontrovertible evidence, as produced by torture or oath, was inflected by the dynamics of courtroom strategy. A recurring and significant decision thus was for litigants to heighten the contrast between that part of the discourse which was mere words and that which in other ways represented truth.

Suspicion arose over the ability of language alone, in court, to establish a sufficient relationship between litigants and jury for the jury to make the judgment it was called to make. The dynamics of logos seemed too vacuous, too insubstantial, too unreliable to carry the water of truth. In its stead litigants performed communicative acts that sought truth elsewhere. Yet even there, Johnstone admits, this was rhetoric working to dispel its own rhetoricity. The practice of making dares in the courtroom stretched beyond the context of litigation and offered a way to resolve disputes more reliably than a legal verdict. Similarly, litigants performed rituals of supplication that grounded identity claims and relationships in acts of humility and subservience. Here, at the heart of the rhetorical practice of law, one finds rhetorical strategies developed to settle the disquieting relativity of rhetorical language.

The format and layout of the book too is a scholar’s treasure. There is an index to subjects and cited authorities, as well as a separate index to passages cited from historical texts. The list of references is separate from the endnotes, allowing for tidy notes and ease in locating sources. The text is uncluttered prose, carefully edited, nuanced in its conclusions, and accessible to anyone interested in the subject. The book as a whole is a model of scholarly care and compositional economy.

One fascinating and lurking contention of the book is that critiques of rhetorical discourse, famous to us from Plato onward, may have had as a precursor, even a model, the performances of litigants themselves, particularly defendants, as they argued against a prosecutor’s use of litigation to reframe—and often distort—a dispute. Johnstone suggests in a footnote that, plausibly, “the ancient philosophic critique of the Athenian courts, including its idea of truth, was parasitic on the courts’ own discourse” (165, n.107). After all, what was Socrates’s satiric hyperbole in the Apology than a masterful deflation of courtroom claims to justice? This was a genre of response well established by defendants before him. Socrates’s innovation may have been the degree of wager, that is, his life, to stand against the rhetorical discourse of law. Even so, philosophy itself could be a stylized derivative that worked comfortably within the culture of Athenian litigation.