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generalized “stock” arguments. Rather, we will see that speakers presented highly individualized arguments based on the specific character and interactions of the parties, and, in the case of appeals to pity, the effects an adverse verdict would have on the litigant and his family given his particular circumstances.

BACKGROUND INFORMATION AND FAIRNESS IN LIGHT OF THE PARTICULAR CIRCUMSTANCES OF THE CASE

Modern lawyers translate a client’s story into legal form largely by winnowing down the client’s experience to a limited set of facts that correspond to claims and arguments recognized by the applicable law.20 Athenian litigants, by contrast, provide a “wide-angle”21 view of the case, one that includes not only a complete account of the event in question, but also information regarding the social context of the dispute, including discussion of the long-term relationship and interactions of the parties. As Humphreys points out, litigants sought to recreate the “social milieu” and portray the background of the case “in such a way that the jury will feel that, in the circumstances, he has the right on his side.”22 We will see that this often involved demonstrating one’s respect for the reciprocal obligations owed to relatives, friends, and neighbors, and one’s adherence to cooperative norms of fair dealing and a moderate approach to conflict.

Demosthenes Against Nicostratus illustrates the tendency of litigants to provide a highly contextualized account of a dispute. The suit is an apographˆe, a procedure through which any Athenian could proclaim articles of property belonging to a state debtor subject to seizure and public sale.23 The legal issue in this case seems quite simple: Apollodorus is challenging the defendants’ claim of ownership

20For a discussion of the process of translating lived experience into a legal discourse, see White 1990:179– 201, 257–269; see also Alfieri 1991:2107; Sarat 1996:354; Cunningham 1992; Gilkerson 1992:922; Sherwin 1994:39. This is far from a straightforward process. For further discussion, see Chapter 1.

21Scheppele 1989: 2096.

22Humphreys 1983:248; 1985b:350–356. For a discussion of the creation of the litigant’s social milieu that focuses on ˆethopoiia, or dramatic characterization, see Scafuro 1997:50–66. The Barotse of Africa provide an example of a society that had a similarly broad notion of relevance in their courts, but used contextual information in a very different way than did the Athenians. According to Gluckman (1973:21), Barotse judges consider the relations of the parties and the background of the dispute in order to seek out a compromise that will not break up the relationships of those involved. Athenian jurors, by contrast, used context to help them evaluate the justice of the parties’ actions and to arrive at a “fair” result, one that generally involved choosing between the litigants’ accounts rather than reaching a compromise solution.

23On the apographˆe procedure, see Osborne 1985a:40–58; Harrison 1998:211–217; Lipsius 1905–1915: 302ff.

EXTRA-LEGAL ARGUMENTATION 47

over two slaves, arguing that they actually belong to the defendants’ brother Arethusius, a state debtor, and should therefore be confiscated. Apollodorus offers witness testimony of Arethusius’ debt and ownership of the slaves, arguing that the defendants, Nicostratus and Deinon, are asserting that they own the slaves to protect their brother’s property from confiscation.24

From the perspective of modern notions of legal relevance, one might expect the speech to begin and end with this apparently quite damning evidence. Apollodorus does not, however, discuss the slaves until the last quarter of his speech, but instead devotes the bulk of his time to a detailed narrative of how his past friendship with the defendant Nicostratus soured and eventually led to his filing suit against Nicostratus’ brother Arethusius, thereby securing the public fine that rendered Arethusius a debtor to the state. He begins by recounting the close bond of friendship (philia) and trust he and Nicostratus had shared as neighbors: Nicostratus managed Apollodorus’ affairs whenever he was away, and, when Nicostratus was taken captive and sold as a slave, Apollodorus gave his brother money to rescue him and later mortgaged his property to help Nicostratus pay the ransom debt.25 Far from expressing gratitude for this generosity, Nicostratus conspired against him, perhaps, as Apollodorus suggests, in order to avoid having to pay off the mortgage on Apollodorus’ property.26 Nicostratus caused Apollodorus to be fined for non-appearance in response to a citation, enlisting his brother Arethusius to testify falsely that he had been properly served when he in fact had no knowledge of the suit. He also secured a default judgment against him in this case and forcibly seized all the furniture in his house. When Apollodorus learned of this, he filed an action for false citation against Arethusius. Nicostratus and his brothers did not back down, but tried to dissuade him from pursuing the case by vandalizing his farm and physically assaulting him.27 Undeterred, Apollodorus pressed on with his suit and secured a one-talent fine against Arethusius. Only after providing this background information does Apollodorus turn to arguing that the slaves at issue belong to Arethusius and are therefore subject to forfeiture. Apollodorus thus gives the jury a full picture of the social context of the dispute, one that emphasizes his mistreatment by the defendants and suggests that

24Dem. 53.18–25.

25Dem. 53. 4–14.

26Dem. 53.14.

27Dem. 14–17.

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Arethusius, due to his dishonest dealings and breach of the obligations of friendship, fully deserves his status as a state debtor and the confiscation of property that Apollodorus seeks.28

Contextual information such as that found in Against Nicostratus is a common feature of Athenian court speeches. In cases that are part of a series of suits between the parties, speakers do not confine their argument to the immediate issue in question but rather recount the past litigation in some detail.29 One speaker announces in his opening his intention to provide extensive contextual information:

Because there have previously been lawsuits, gentlemen of the jury, between us and these same men concerning the estate of Hagnias, and they will not stop acting lawlessly and violently, using any means available to acquire things that do not belong to them, it is perhaps necessary to explain what has happened from the beginning. For in this way, gentlemen of the jury, you will more easily follow all the arguments in my speech, and these men will be revealed for the sort of men they are, in particular that they started on their mischief a long time ago now and are continuing in it, thinking that they should do whatever occurs to them.30

This practice is particularly prominent in speeches for suits charging false testimony, which generally include an attempt to re-argue the previous case as well as evidence that a statement made by one of the opponent’s witnesses was false. For instance, in one false testimony suit the plaintiff states, “I now present to you a just request, that you both determine whether the testimony is false or true, and, at the same time, examine the entire matter from the beginning.”31

Litigants also commonly discuss the manner in which each of the parties has conducted himself in the course of litigation, appealing to cooperative values and norms of moderation. They emphasize their own reasonableness and willingness to settle or arbitrate the claim, and portray their opponents as litigious, dishonest,

28As Christ (1998b:177) points out, Apollodorus’ account of a trusting friendship betrayed may well be more fiction than fact: Nicostratus worked for Apollodorus and they may have shared economic relations rather than bonds of intimate philia. What matters for our purposes is that Apollodorus chose to present the case in its broader context, however misleading his account may be.

29E.g., Dem. 21.78ff; 29.6, 27; 43.1–2; 47.46; Andoc. 1.117ff; Is. 2.27–37; 5.5ff.

30Dem. 43.1–2.

31Dem. 47.46; see also Dem. 29.9,27; 45.1–2; Is. 2.27–37. For discussion, see Bonner 1905:18.

EXTRA-LEGAL ARGUMENTATION 49

and even violent.32 The speaker in Demosthenes Against Evergus, for example, contrasts his own restraint in pursuing his claim with his opponent’s33 violent and inappropriate use of self-help.34 The dispute in this case arose out of the litigants’ service as trierarchs, wealthy citizens who were called on to finance the operation of an Athenian warship during their one-year terms. One of the speaker’s duties as trierarch was to collect state-owned naval equipment which Theophemus, a former trierarch, had failed to return. The speaker explains that he repeatedly tried to persuade Theophemus to return or replace the equipment before securing a court order and, when even that had no effect, he obtained a decree from the Council authorizing him to recover the debt through self-help. The speaker emphasizes that he carried out the Boule’s instructions in a reasonable manner: he waited for Theophemus to return before seizing any property, he was careful to ascertain that there were no women in the house before entering, and he gave Theophemus the option of appealing to the Boule before he began the confiscation.35 The parties’ roles were later reversed when the speaker was delinquent in paying out a judgment won by Theophemus. The speaker tells us that although Theophemus granted him an extension on the payment, he nevertheless appeared when the speaker was absent and proceeded to seize property worth more than the outstanding debt. In the process, he caused the death of the speaker’s old nurse by beating her mercilessly while prying a cup from her hands. Even after the speaker had paid the debt, Theophemus refused to return the property and carried out another forcible seizure. The prevalence of these types of arguments in our surviving popular court speeches suggests that the Athenians considered evidence of the conduct of the parties in the course of litigation relevant to the jury’s decision.

32 E.g. Dem 44.31:

I think it is necessary to speak also of the things they have done in the time since the case regarding the estate was brought, and the way they have dealt with us, for I think that no one else has been as unlawfully treated in connection with an inheritance lawsuit as we have been.

See also Dem. 21.78ff; 27.1; 29.58; 30.2; 41.1–2; 42.11–12; 47.81; 48.2, 40; Is. 5.28–30. For discussion of the importance of appearing eager to settle, see Hunter 1994:57.

33In this suit for false testimony his opponents are technically Evergus and Mnesibulus, though he directs much of his argument against Theophemus, his opponent in the original action.

34For discussion of the contrast in methods of self-help in this and other cases, see Christ 1998a:534–541; Hunter 1994:122–124.

35Dem. 47.34–38.

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When relatives or friends face each other in court, speakers describe the longterm relationship and interaction of the parties and seek to represent themselves as honoring the obligations traditionally associated with bonds of philia (“friendship”),36 and to portray their opponents as having violated these norms.37 Lawcourt speakers do not discuss why information about the relationship between the parties was considered relevant to the jury’s decision, but it is common sense that such relationships are relevant to a moral assessment of the situation. The Athenians recognized this. In the Nichomachean Ethics38 Aristotle explains that just as the duties and obligations one owes to family, friends, fellow citizens, and other types of relations differ, “Wrongs are also of a different quality in the case of each of these [relationships], and are more serious the more intimate the friendship.” He continues, “For example, it is worse to deprive a friend of money than a citizen, and to fail to help a brother than a stranger, and to hit a father than anyone else.”39 Information about the relationship between the parties helped the jury evaluate the severity of the allegations and the extent of moral blame borne by each side.40

In addition to presenting evidence about relationships and interactions prior to the event at issue, litigants at times provide a highly contextualized account of the dispute itself. They often include arguments that are not explicitly recognized by law but that contribute to the jury’s overall sense of the fair result of the dispute. For example, speakers at times discuss the extenuating (and, less commonly, aggravating) circumstances surrounding the incident – such as the absence of intent, the offender’s youth, or his intoxication41 – even though the laws enforced

36Philia encompassed relatives as well as friends, and, at least in Aristotle’s formulation, extended even to fellow citizens. Arist. Eth. Nic.1165a14–35. The duties associated with philia depended on the degree of closeness between the parties. For discussion, see Chapter 1. For more extensive discussions of philia, see Millett 1991:110–114, Konstan 1997:56ff.

37Christ 1998b:167–180. Christ discusses the emphasis on the breach of philia in cases involving relatives, friends, neighbors, and demesmen. Christ (1998b:167) points out that litigants at times even exaggerate the intimacy of their past relationship in order to present their cases in terms of a breach of philia.

38Aristotle’s theoretical works must be used with great care as a source for the ideals or practice of the Athenian lawcourts. For example, although Aristotle suggests in the Rhetoric (1375a) that litigants should use arguments from fairness (epieikeia) when the written laws are unfavorable to their case, Athenian litigants generally do not explicitly appeal to epieikeia (Carey 1996:42). However, as Millett (1991:112) points out, the Ethics does seem to be a reliable source of Athenian popular values; Aristotle sets out to examine beliefs that are “especially prevalent or appear to have some rationale” (! " : Arist. Eth. Nic. 1095a28).

39Arist. Eth. Nic. 1160a3ff.

40This evaluation might also be of use in deciding whether the defendant deserves the prescribed penalty.

41Although intoxication is most often referred to as a mitigating factor in our surviving speeches, it is occasionally also cited for the purposes of aggravation. For discussion, see Saunders 1991b:111. That a

EXTRA-LEGAL ARGUMENTATION 51

by the popular courts did not formally recognize such defenses,42 and did not provide for degrees of offenses based on their severity.43 This practice did not go entirely unchallenged, however: The speaker in Demosthenes 54 argues that his opponent’s attempt to characterize the assault in question as a harmless scuffle typical among boisterous young men could support mitigation at the penalty phase of the case,44 but was not relevant to the jury’s verdict on guilt.45

Discussion of the circumstances and context of the contested event is most prominent in suits involving a challenge to a will.46 Litigants often appeal to a variety of arguments rooted in notions of fairness and justice unrelated to the issue of the formal validity of the will. Speakers compare their relationship to the deceased with that of their opponents in an effort to argue that they have the better claim to the estate: they present evidence that they were closer in affection to the deceased, performed his burial rites, or nursed him when he was ill, and suggest that their opponents were detested by the dead man and took no interest in his affairs until it was time to claim his estate.47 One litigant goes so far as to suggest that equitable arguments trump a will or any other sort of legal claim, asserting that “when it comes to all those engaged in inheritance disputes, whenever they can demonstrate that they themselves (just as we are) are closer to the deceased both in blood and friendship, it seems to me that other arguments are superfluous.”48

circumstance such as intoxication could be argued both as a mitigating and an aggravating factor is indicative of the ad hoc nature of popular court decision making. Litigants drew on commonly held beliefs and social norms in making their arguments, but there were no unwritten legal rules regarding how a jury should interpret such evidence.

42The homicide laws, which were enforced not in the popular courts but in special homicide tribunals, did make distinctions based on the offenders’ intent. For discussion, see Chapter 4.

43These topoi have been catalogued and discussed in detail in Saunders 1991b:109–118, Dorjahn 1930:162– 172, and Scafuro 1997:248–256.

44The process of determining penalties in agˆones timˆetoi is discussed later in this chapter.

45Dem. 54.21–22; see also Aesch. 3.198. Scafuro (1997:248) points out that as a practical matter, arguments for mitigation and exculpation are used interchangeably at the guilt phase of Athenian trials. The relationship between the argumentation at the guilt and penalty phases is discussed later in this chapter.

46For further discussion of the use of arguments from fairness in the popular courts as compared to the more restrictive view of relevance in the special maritime procedures, see Chapter 6. Other recent discussions of the use of arguments from “fairness” or “equity” include Scafuro 1997:50–66; Christ 1998b:194ff; Biscardi 1970:219–232. For a contrary view, see E. Harris 2000.

47E.g., Is. 1.4,17, 19, 20, 30, 33, 37, 42; 4.19; 6.51; 7.8, 11, 12, 33–37; 9.4, 27–32. For discussion, see Hardcastle 1980:11–22; Avramovic´ 1997:54–8. For an argument that equity argumentation in Isaeus is a response to obscurities and gaps in the inheritance laws rather than an attempt to appeal to fairness, see Lawless

1991:110–134.

48Is. 1.17.

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Another suggests that an airtight “legal” case is insufficient if justice (to dikaion) is on the opponent’s side:

Concerning the issue itself I think that I have sufficiently proved my case. But, so that no one may think either that I possess the estate for no good reason, or that this woman [my opponent], is being deprived of the money after having treated Thrasylochus [the deceased] in a kindhearted way, I would like to talk also about these matters. For I would be ashamed for the deceased unless all of you were persuaded that what he did [bequeath his fortune to me in his will] comported not only with the law, but also with justice.49

The speaker concludes with a summary of his arguments that places equitable considerations on an equal footing with the will and the law: “First, my friendship with the men who have bequeathed the estate . . . then the many good deeds I did for them when they were down on their luck . . . in addition the will, . . . further, the law . . .”50

The frequency and centrality of discussion of the background and interaction of the parties in our surviving speeches indicate that this type of information was considered relevant to the jury’s decision. It has been suggested that the prevalence of such extra-legal arguments suggests that Athenian litigants and jurors regarded the court process as serving primarily a social role – the assertion of competitive advantage in a narrow stratum of society. One scholar, for example, explains the tendency to discuss the broader conflict between the parties as evidence that litigants were engaged in a competition for prestige unrelated to the “ostensible subject of the suit”: “rather than thinking in terms of a ‘just resolution’ of the dispute one should think instead of how the game of honor is being played.”51

There may be a simpler explanation, however, one rooted in the pervasive amateurism of the Athenian courts. Human beings naturally tend to think about social interaction in story form.52 The restrictive evidence regimes of contemporary

49Isoc. 19.16. Although this speech was delivered in a court in Aegina rather than Athens, it was written by the Athenian logographer and rhetorician, Isocrates, and appears to follow the conventions of Athenian legal discourse. Speakers in Athenian courts similarly assume the relevance of arguments from fairness.

50Isoc. 19.50.

51D. Cohen 1995:90.

52E.g., Bennett & Feldman 1981:7. Empirical data shows that, despite the fragmented form of the modern trial, juries deliberate in a narrative mode (Hastie, et al. 1983:22–23). For this reason, modern trial