42 RELEVANCE IN THE POPULAR COURTS

This chapter examines the Athenians’ collectively held assumptions of what types of information and arguments should be presented in the popular courts, the broadest jurisdiction in the Athenian legal system. I suggest that both extralegal and legal information were considered relevant and important to the jury’s decision because Athenian juries aimed at reaching a just verdict taking into account the particular circumstances of the individual case rather than applying abstract rules and principles provided by statutes to the case at hand. It was up to the jury to decide on a case-by-case basis which of the variety of legal and extra-legal arguments presented at trial should be determinative, and, indeed, the relative importance of legal and contextual evidence was often explicitly disputed by the parties. The Athenian popular courts thus did not exhibit “autonomous” legal argument, that is, the logical application of a self-contained body of rules to a specific case independent of its social, political, or economic context.9 The unusual aspects of Athenian popular court presentation stem from their different sense of what constituted justice – one that emphasized discretionary and equitable assessments rather than the regular and predictable application of abstract, standardized rules. We will see in later chapters that the Athenians recognized that their discretionary approach to judicial process was not without its tradeoffs. Nevertheless, it was this unique approach that the Athenians chose to use in the vast majority of cases.

EXTRA-LEGAL ARGUMENTATION

Philocleon, the inveterate juror of Aristophanes’ comedy The Wasps, provides what must be a recognizable though exaggerated account of the ploys litigants use to win over the jury:

I listen to them saying everything to promote their acquittal. Come, let me see, what wheedling isn’t there for a juryman to hear there? Some bewail their poverty and exaggerate their actual troubles until they make their troubles equal to my own. Some tell us stories, others some funny piece of Aesop. Others make jokes to get me to laugh and lay aside my anger. And if we are not won over by these devices, right away he drags in his kids by the hand, boys and girls, and I hear them as they bow their heads and bleat in a chorus . . .10

9For a discussion of notions of legal autonomy at Rome, see Frier 1985:184–191.

10Ar. Vesp. 562–570.

EXTRA-LEGAL ARGUMENTATION 43

There appears to have been no rule establishing the range and types of information and argument appropriate for popular court speeches. The Constitution of the Athenians, a partial history and description of Athenian institutions probably written by Aristotle or his students, states that litigants in private cases took an oath to speak to the point, but this oath is never mentioned in our surviving popular court speeches and appears to have had no effect on litigants’ arguments.11 Speakers were limited only by the time limit and their own sense of what arguments were likely to persuade the jury. Although anything was fair game in the popular courts – Lycurgus’ extended quotations from the poets Euripides, Homer, and Tyrtaeus on the honor and glory of battle in his prosecution of a citizen who left Athens when the city was threatened with attack12 are perhaps the most creative use of speaking time in our surviving speeches – there are discernible categories of extra-legal evidence that appear again and again in the corpus.13 Experienced speechwriters undoubtedly could predict the types of arguments and information likely to appeal to the jury and constructed their speeches accordingly. Indeed, there is evidence that juries at times expressed their displeasure at a litigant’s choice of arguments: one speaker tries to head off such criticism, pleading, “And let none of you challenge me while I am in the middle of my speech with shouts of ‘why are you telling us this?’”14

It is, therefore, possible to discuss Athenian notions of the types of information and arguments that were particularly relevant to popular court decisions in the absence of a stricture on the presentation of evidence in these courts. Because we rarely know the outcome of an ancient case and generally do not have the opposing litigant’s speech that would allow a comparison, it is impossible to know which strategies were most persuasive to an Athenian jury. In fact, as we will see, the categories of relevant evidence were fluid and contestable. Nevertheless, the surviving speeches clearly show the popular court juries’ receptivity to three

11Arist. Ath. Pol. 67.1. For further discussion of this passage and a comparison to the relevancy rule of the homicide courts, see Chapter 4.

12Lyc. 1.100, 103, 107. For discussion, see Dorjahn 1927; Perlman 1964; Hall 1995.

13Rhodes (2004) argues that court speeches focus mostly on the issue in dispute. My own view is that most popular court speeches contain a mixture of legal and extra-legal information, and it was left to the jury to determine which sort of evidence was most important in any individual suit. In any case, the repeated use of a particular type of extra-legal information in our surviving speeches suggests that this sort of evidence was considered relevant to a popular court jury’s verdict, even if, as Rhodes argues, it accounts for only a small portion of litigants’ arguments.

14Hyp. 1col.43. In his defense of Euxenippus, Hyperides (4.10) suggests that speakers sometimes encourage jurors to heckle their opponents if they try to make particular arguments.

44 RELEVANCE IN THE POPULAR COURTS

sorts of argument: (1) the expansion of the litigant’s plea beyond the strict limits of the event in question to encompass the broader background of the dispute; (2) defense appeals for the jury’s pity based on the potential harmful effects of an adverse verdict; and (3) arguments based on the character of the parties. These three categories of evidence overlap – character evidence, for example, can be used to show that the defendant does or does not deserve pity – but for the sake of clarity I will discuss them separately.

In this section, I take up the three types of extra-legal argumentation in turn, showing that the Athenians viewed them as relevant to reaching a just resolution to the dispute rather than as evidence in a public competition for prestige unrelated to the triggering event and legal charge. Of course, some litigants were undoubtedly motivated by a desire to gain honor on a public stage. Moreover, I do not doubt that the courts at times functioned in a manner far from the ideal, or that popular court trials may have also served a variety of social or ideological functions in Athenian society. However, I am concerned with the primary aim of the popular lawcourts, as it was understood by the majority of the participants. My contention is that litigants and jurors by and large viewed extra-legal argumentation as intended to assist the jury in its legal task of reaching a just resolution to the specific dispute that gave rise to the suit. The final two sections of this chapter discuss the role of statutes in Athenian popular court litigation, and how jurors evaluated the mass of legal and extra-legal argumentation presented to them.

Before I examine in detail each of the three types of extra-legal information considered relevant in the Athenian popular courts, a few general comments may help to clarify my approach. I discuss types of information and argument that are common enough in our surviving speeches to indicate that speechwriters and jurors thought them relevant to popular court decision making. In any individual case, however, litigants might dispute the relevance and relative importance of different types of argument. The corpus of forensic speeches contains, for example, impassioned arguments both for and against the relevance of character evidence.15 Indeed, speakers sometimes contend that the jury should ignore extra-legal evidence and focus solely on the legal arguments made in the case.16 Such arguments were themselves part of the remarkably individualized and case-specific approach

15Compare, for example, Dem. 36.55 and Dem. 52.1. Character evidence is both the most common form of extra-legal argumentation in our surviving speeches, and the most controversial.

16E.g., Isoc. 18.34–35; Dem. 52.1–2; Hyp. 4.32. These statements may draw on ambivalence about the decision making process of the popular courts and the appeal of alternative approaches to relevance, such as that employed in the homicide courts. For discussion, see Chapter 4.

EXTRA-LEGAL ARGUMENTATION 45

to justice employed in the popular courts: we will see that most speeches included a mixture of extra-legal and legal argument, and it was left to the jurors to decide which sorts of evidence were most important given the particular circumstances of the case.

In what follows, there is an implicit, and, in a few instances, explicit, comparison between the Athenians’ broad notion of relevance and the stricter approach of the modern American system. In practice, of course, modern trial lawyers are often able to communicate to a jury a good deal of information that is not strictly related to proving the elements of the charge or claim.17 Nevertheless, there is a crucial distinction between ancient and modern legal practice. In modern courts the law is set apart as the valid, authoritative rule of decision, and extra-legal norms can only trump legal ones surreptitiously.18 In Athenian courts, by contrast, we will see that there was no authoritative rule of decision.

I focus in this section on the content of the extra-legal material in our surviving speeches because I argue that this material provided information vital to the jury’s verdict. This is not to deny the importance of the format of extra-legal argumentation. We will see that litigants often provide extensive background information about the dispute and the parties by presenting their case in the form of a story. In the hands of a talented logographer these accounts could be literary and entertaining pieces of prose. Artful narratives allowed speakers to hold the jurors’ attention, assisted the jurors in processing and remembering complex material that was presented orally, and gave the speaker an opportunity to display an appealing and sympathetic persona.

Appeals for pity and some forms of character arguments, such as the recitation of a litigant’s public services, were common topoi that served to orient the audience by placing a litigant’s presentation squarely in the familiar genre of forensic oratory. Although the format, placement, and type of extra-legal argumentation used by a litigant were influenced to some degree by the requirements of the genre and jurors’ expectations,19 extra-legal argumentation did not consist of presenting

17Burns (1999:29–30, 36, 201), for example, argues that the American rules of evidence are flexible enough to permit an attorney to argue for a verdict based on extra-legal norms, and that, in practice, the trial jury’s task is to decide between a variety of competing norms – legal, economic, moral, political, and professional. For further discussion of modern notions of relevance, see Chapter 1.

18Burns 1999:36.

19Rhetorical handbooks called for forensic speeches to be divided into four main parts: prooimion (introduction); diˆegˆesis (narrative); pistis (proof); and epilogos (conclusion). Topoi tend to be associated with a particular part; appeals to emotion, for example, were thought to be appropriate in epilogoi and prooimia. For further discussion, see Usher 1999:22–26; Kennedy 1991:8–9.