Dēmos · Classical Athenian Democracy · a Stoa Publication
→ Manipulation & Exploitation.
Matthew R. Christ, edition of March 26, 2003
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While it is common for Athenian prosecutors to speak of their private enmity with a defendant, there was a potential problem here: a defendant could assert that the prosecutor was so bent on personal vengeance that he had brought a false or malicious prosecution. Demosthenes, for example, takes this approach in attacking Aeschines for prosecuting Ctesiphon, who had proposed that the people honor Demosthenes with a crown and vote of thanks. Demosthenes attributes the prosecution to mere “private enmity, envy, and pettiness” (18.279), and casts this as utterly disgraceful: “an honorable citizen should never expect a jury empanelled in the public service to bolster up his own anger or enmity or other passions, and he will not go to court to gratify these” (18.278). Clearly, personal enmity could be cast as a positive or negative dimension of a public prosecution, and it was incumbent upon litigants to exploit whichever view best served their purposes.
Given their widespread concerns about the abuse of litigation in Athens, it comes as no surprise that Athenians were on the lookout in both private and public actions for the manipulation of the city’s laws and the exploitation of legal expertise. As the comic writer Menander quips: “The laws are a splendid thing; but a man who looks too closely to the laws is clearly a sycophant” (fr. 545 K-T).
Plot on a Map
Athenians held their laws in high regard: after all, these represented the principles by which Athenians collectively agreed to regulate their lives within the city. They represented the will of the people under the democracy and could be said to hold authority over the citizens of Athens. In practice, however, the use of laws by litigants could be problematic. To make full use of the city’s laws, which were written and, by the
Litigants who presented themselves as average private persons had a special stake in casting themselves as amateurs, unfamiliar with legal process and far from expert in the city’s laws. At the same time, they had good reason to invoke laws that supported their cases. Wealthy litigants, to balance these competing needs, often purchased their lawcourt speeches from skilled speechwriters (logographers), who could help them make the most of the city’s laws while still maintaining an air of amateurism. One of Hyperides’ clients, for example, introduces his discussion of several laws by blaming his opponent for driving him to delve into legal questions: “You have made me so very fearful that I may be ruined by you and your cleverness, that I have been searching the laws night and day and studying them to the neglect of everything else” (3.13). One could also package legal knowledge as derived from oral advice from family and friends, as one of Demosthenes’ clients does (54.1). Another clever approach to the problem was to present knowledge of the law as knowledge of one’s opponent’s crimes. Thus, one young prosecutor, after citing a fourth law against his opponent, states: “I admit that I have searched into most of the things that the defendant has done” (Dem. 58.19).
While Athenians assumed that experienced public speakers, including politicians, would be more knowledgeable than average citizens concerning the city’s laws, even these litigants do not seek to dazzle their audiences with their legal virtuosity. One could, in fact, deflate an opponent’s legal claims by asserting that they are overly subtle. Thus, Demosthenes in his speech defending Ctesiphon dismisses Aeschines’ legal claims: “As for Aeschines’ confusing jumble of arguments about the laws transcribed for comparison, by the gods, I do not believe that you understand the greater part of them, and I myself was unable to comprehend many of them; I can only offer a plain, straightforward argument, based on what is right” (18.111). Demosthenes’ appeal to what is simple and right over what is subtle and confusing clearly plays to a popular jury’s suspicions of legalities and technicalities. His striking victory over Aeschines in this trial suggests that he knew his audience well in adopting this approach.
While Athenian concerns about litigation tend to center upon litigants and their abuse of law and legal process, critics of the Athenian democracy blamed the Athenian popular courts not only for providing a venue for legal shenanigans but for actively encouraging them. These critics argued that large panels of jurors collude with sycophantic prosecutors to convict innocent men—especially those rich enough to pay large fines that would go into the public treasury and provide (among other things) a source of funding for jurors’ daily wages. While this verges on a caricature of the Athenian legal system, we should be aware that litigation and its abuse are intimately connected with the popular courts.
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