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as judges of the current offense but also as lawmakers (nomothetai).”49 Using similar language, the speaker in Lysias 14 argues that because this is the first such case since the peace of 404, the jurors must be “not only jurors but lawmakers” and warns the jury, “however you decide these cases now, so will the city treat these issues for all time.”50 In both cases, the speaker calls attention to the fact that the case at hand is unusual, so unusual, indeed, that it requires the jurors to take on a role beyond their normal constitutional function. It seems, then, that the Athenians did not have a strong sense that individual verdicts serve as persuasive precedents for future juries.

We have seen that the haphazard recording of verdicts, taken with the way in which litigants discuss previous cases, makes it difficult to believe lawcourt speakers when they claim that Athenians would carefully note court verdicts and alter their behavior accordingly, confident that one verdict was an accurate indication of future decisions. Nevertheless, the assumption met in the speeches that the effects of court decisions extend beyond the particular case, along with the frequency of citations of past cases, indicate that the general norm that verdicts should be consistent and predictable had some force in Athens. It seems likely that speakers exploited this norm for rhetorical purposes on occasion, using the consequentialist topos to encourage jurors to dole out severe punishments in the name of deterrence,51 to induce the jurors, who were not accountable in any way for their verdicts, to decide responsibly by emphasizing the wide-ranging effects of their verdict, and perhaps to give an aura of consistency to a system that was all too unpredictable.

SHARED NORMS AND CULTURAL KNOWLEDGE

The final possible source of consistency and predictability in the Athenian legal system is shared cultural norms and values. We must consider the possibility that most Athenians would react similarly to any particular case and arrive at roughly

49Lyc. 1.9.

50Lys. 14.4.

51Indeed, Rubinstein (1993) points out that this topos occurs twice as often in prosecution speeches as in defense speeches. She also notes that this topos is more common in public cases, and suggests that while in private suits the function of the court is primarily to settle an individual dispute, in public cases the jury took on the additional function of upholding general principles embodied in previous decisions. I suspect, however, that even in public cases notions of precedent were very weak. The uneven distribution of our topos may indicate that whereas consequentialist arguments could be effective, if somewhat dubious, in public cases, in private suits they became absurd.

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the same conclusion as to the fair result. Under this view, the legal system would exhibit consistency across cases, and judicial outcomes could be predicted from Athenians’ shared norms.

At first glance, this interpretation appears to have much to recommend it. Modern societies often have two separate sets of rules: legal rules known primarily by legal experts, and informal social norms that govern everyday interactions.52 In Athens, by contrast, popular norms of fairness and cooperation were precisely those at play in the courts, allowing potential litigants to draw on their cultural knowledge to predict the likely outcome of a lawsuit. Moreover, there is reason to believe that most Athenians would have a similar moral and emotional response to various types of offenses. In contrast to the diversity in economic class, ethnicity, and religion characteristic of most contemporary Western nations, Athenian society – and in particular the subset of adult male citizens who judged, and for the most part, were judged, in court – was fairly homogenous,53 with a considerable stock of shared common values and beliefs.54 Individual conscience was to be subordinated to homonoia (“same-mindedness” or “unanimity”),55 and the core values of democratic civic ideology were regularly reinforced through shared community service and public speech, most notably in funeral orations for the war dead.56

Nevertheless, shared norms and values are insufficient to create true consistency and predictability in a legal system that considers a vast array of factors relevant to any legal decision. Whereas there may have been consensus on whether each type of legal or extra-legal argument favored the prosecutor or the defendant and which pieces of evidence were particularly damning for either side, it often must have been difficult to predict the interaction of all the evidence in a particular case. To take an example, most Athenians may have endorsed general values such as the importance of public service, family obligations, and honest fair dealing.

52For a case study of the relationship between legal rules and informal norms in a close-knit cattleranching community, see Ellickson 1991:40–120.

53In theory, at least, all Athenians shared a common ancestry, though in practice citizenship may have been more porous. On the role of the myth of autochthony in Athenian identity, see Loraux 1993:35–70; on the likelihood that citizenship was much more fluid than the strict laws seem to allow, see Scafuro

1994:156–198; E. Cohen 2000:79–103.

54For a basic introduction to Athenian values, see Chapter 2.

55Ober 1990:296–298.

56Loraux 1986; Ober 1990:336–339.

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Most Athenians also recognized many specific norms promoted by the sanction of law:57 the duty to care for and properly bury elderly relatives, the importance of respecting a man’s wishes to will his money to whomever he wishes, the immorality of forcefully seizing a disputed inheritance rather than pursuing legal avenues, and the wrongfulness of attempting to bribe witnesses to lie at the suit’s arbitration. Potential litigants in an inheritance case in which each side was supported by some of the values and norms listed above would find it difficult to predict a given jury’s decision.

It is important to distinguish here between predictability of outcomes as opposed to arguments. The types of arguments likely to be raised on either side of a particular case could easily be anticipated.58 Cultural knowledge can help predict the issues and arguments a jury will find relevant and how it is likely to react to each of those arguments, but cannot predict how the jury will weigh competing norms in any particular case. There was no consensus on a hierarchy of norms in Athenian society. This is most evident in Attic tragedy. Tragic dramas often dramatize a conflict of norms – to name the most famous example, duty to family versus duty to the state in Antigone – with no clear moral resolution. In the law courts, too, the jury was often presented with conflicting norms and left to decide on a case-by-case basis which arguments to credit.59

THE EXCEPTION: PROTECTING PUBLIC ORDER

There is one class of case that may well have achieved some level of predictability despite these difficulties. The community’s outrage at what we would consider serious criminal matters, such as crimes of violence resulting in grave injury, may have been so great that one could anticipate that the seriousness of the offense could not easily be outweighed by other relevant factors in the case. For example, although the precise charge and penalty for jumping someone in the street might be unclear, basic, widely shared notions of acceptable behavior made it fairly certain

57For the distinction between values and norms, see Luhmann 1982:107.

58Hence the frequency of topoi in the surviving speeches. Litigants would in any case have a good idea of their opponent’s arguments prior to trial from the anakrisis. We do not know how often parties decided to settle their case after getting a look at their opponent’s hand at the anakrisis, but the frequency of court trials in Athens suggests that uncertainty as to the likely jury verdict often remained after these preliminary proceedings.

59See Chapter 3. For an argument that modern trials also often involve a competition between competing values drawn from the legal, political, moral, and economic sphere, see Burns 1999:201.