Demosthenes 54, Against Conon
Blackwell, Development of Athenian democracy.
No Discussion Forum this week. Discussions will start next week.
Lecture 3.Transforming a Dispute into a Case
Steven Johnstone (U. Arizona)
Lecture 4. Law and Economy
Edward Harris (Brooklyn College)
Discussion Forum Topics
Lecture 3 — Forum 3 Topics:
Question 1. Professor Johnstone has successfully applied a primarily ‘anthropological’ (his word) model to Dem 55. The speech, however, strikes many observors as perhaps the Attic speech most familiar to our own law-ways. Can concepts like tort and liability help us think through this ‘dispute?’ Or is to understand the speech in a ‘lawyerly’ frame a mind to totally miss the point?
Question 2. Professor Johnstone has sharpened our awareness on the ways in which litigants tried to ‘shape the case.’ That is to say, part of the litigants’ strategies was to determine how the case was to be resolved. But is there any way in which we can think of litigants ‘shaping the case’ once it has already come to trial? Litigants — both contemporary and ancient — are constantly referring to rules and principles which they feel ought form the basis for the jury’s legal reasoning about the case (specific statutes, oaths, etc). This seems to me the more significant and robust sense in which litigants ‘shaped cases.’ Are our understandings of ‘case-shaping’ compatible?
Lecture 4 — Forum 4 Topics:
Question 1(a). What appear to be the actual circumstances in this case? That is, what happened according to Darius and Dionysodorus? Compare Darius’ claims to the actual evidence he produces. Discuss any differences in the litigants’ accounts. See especially passages 3-11, 23-32 (although many more are relevant).
Question 1(b). This case is about breach of contract: what appear to be the contract’s terms, and how do both parties interpret them? See especially, 5-7, 27, 32, 37-38, and Darius’ summary at 45.
Question 2. What is the picture that Dem. 56 gives of the Athenian economy and Mediterranean trade? See especially 7-10, 17, 24-25, 30, 47-50.
Question 3. How did the laws of Athens help protect overseas trade and ensure the grain supply?
Lecture 5. Athenian Homicide Law: Case Studies
Michael Gagarin (U. Texas at Austin)
Lecture 6. Sycophancy and Attitudes toward Litigation
Matthew Christ (U. Indiana)
Discussion Forum Topics
Lecture 5 — Forum 5 Topics:
Question 1(a). As Professor Gagarin points out, the speaker of Antiphon 1 relies heavily on vivid and effective storytelling. Which elements of the story do you find particularly effective? Which elements do you think would be most persuasive to the Athenian jury?
Question 1(b).The defendant in Antiphon 1 (the stepmother) is represented in court by one of her sons, the half-brothers of the prosecutor (§§1, 5). What defense arguments does the prosecutor anticipate? What other arguments might the defense have made?
Question 2. At Antiphon 1.6-13 the speaker discusses his challenge to question slaves under torture, which was rejected by the defense. What might have been the rationale behind the rule that evidence could only be extracted from slaves under torture? How would this affect the quality of the evidence? Why would it have been so rare for a challenge to be accepted?
Question 3(a). How does Euphiletus use the law in Lysias 1? Evaluate the argument at §§24-27, where Euphiletus informs Eratosthenes, “It is not I who am going to kill you, but our city’s law, which you have transgressed and regarded as of less account than your pleasures, choosing rather to commit this foul offence against my wife and my children than to obey the laws like a decent person.” What options did Euphiletus have besides killing Eratosthenes? In addition to the present speech, see (e.g.) Apollodorus = [Demosthenes] 59.41, 64-70; [Aristotle], Ath. Pol. 59.3-4.
Question 3(b). What prosecution arguments can be divined from Euphiletus’ defense speech (see especially §§4, 27, 37)? What additional arguments would you make if you were prosecuting Euphiletus?
Lecture 6 — Forum 6 Topics:
Question 1. Sycophany and litigiousness are often identified as sites of “class warfare.” It is generalized that the Athenian elites regarded the courts with suspicion, while non-elites looked on them more favorably. How is this generalization reconciled with the fact attacks on sycophants and litigiousness are widespread in genres aimed at non-elite audiences (i.e. oratory and comedy)?
Question 2. It has recently been debated whether sycophancy was a “real” phenomenon or an ideological construct. I.e., Was there an actual class of Athenians who lived off litigation, or was “sycophant” merely a pejorative label for someone suing you? Aristophanes’ representations of sycophants (esp. Birds 1430-35) and (Wealth 850-958) have been cited by both sides of this debate. What view are these passages more likely to support?
Question 3(a). The sycophant of Aristophanes’ Wealth says in his defense that he is acting as ho boulomenos, the volunteer prosecutor, and therefore fulfilling an important role for the polis. (Compare statements on volunteer prosecution at Ath Pol 9.1 and Plutarch, Life of Solon, 18.5. How did Athenians — practically and ideologically — distinguish between ho boulomenos and ho sukophantes?
Question 3(b). According to Christ, Aristophanes’ portrayal of jurors in the Wasps suggests that actual jurors may have also sometimes had collusive relationships with zealous prosecutors. But are there other ways to imagine how Aristophanes’ jokes would have played before an audience full of potential jurors? Is collusion between jurors and prosecutors reconcilable with the attacks on sycophants in oratory?
Lecture 7. Women and Family in Athenian Law
Konstantinos Kapparis (U. Florida)
Lecture 8. Punishment in Ancient Athens
Danielle Allen (U. Chicago)
Discussion Forum Topics:
Lecture 7— Forum 7 Topics:
Question 1. Both Dem. 57 and Dem. 59 deal with the issues of citizen status and legitimacy, yet they differ in that Dem. 57 is about a male defending his citizen status, whereas in Dem. 59, the status of females (Neaira and Phano) come under attack. How do these factors affect the strategies of the orators in each case? Specifically, what evidence does Euxitheus draw on to prove his status? What evidence does Apollodorus use? What does this say about Apollodorus’ decision to focus on Stephanus’ daughter by Neaira instead of his sons?
Question 2. Regarding Aristotle’s assessment of the polis as a constellation of oikoi, Kapparis claims, “his remark certainly underlines the importance of the family-unit in Greek public as well as private life.” What evidence do we have in Dem. 57 and Dem. 59 of how closely related an individual’s status in the family was to public and even political matters? In what ways do the orators exploit this connection between public and private?
Question 3. To what extent were women citizens? To what extent not? Considering the detailed discussion of women’s lives in Dem. 59, how could a woman’s legal status be communicated socially?
Lecture 8— Forum 8 Topics
Question 1. In light of the recent debate on the death penalty, how does the modern death penalty differ, or how is it similar to, the ancient death penalty? Is there a specific rationale (i.e. ethical, pragmatic, etc.) behind ancient capital punishment? What were ancient opinions on capital punishment? Was it ever subject to “public debate”? (For instance, the trial of Socrates and the Draconian law code).
Question 2. Considering the various allowances for defendants to skip trial, flee to exile, etc., do you think the Athenian law court system was geared towards heavier punishment, or towards its mitigation? Is the process of timesis indicative of a desire to allow for lighter punishment, or for a chance at the highest possible punishment?
Question 3a). In Part 5 of the lecture, Prof. Allen notes, “The Athenian preference for exile over execution is the best evidence of their desire to use punishment to cure all parties of the wrongdoing. In departing the community, the wrongdoer freed the victim and the prosecutor of the anger, and put an end to the social disruption plaguing the city but he also himself gained the chance to start a new life in a context where he would not be the focus of anger and social conflict. Peace in the community was restored and the wrongdoer was also restored to life.”
In other words, whether they were directly aware of it or not, the Athenians sought through the penalty of exile (an alternative to the death penalty) a means of “curing” BOTH the community and the individual transgressor.
Do you agree with this assessment? If not, do you think that in imposing exile the Athenians were considering the welfare (“health”) of the individual more than that of the community; or, conversely, that they were considering the welfare of the community more than that of the individual?
Question 3b). Again in Part 5 of the lecture: “The single greatest difference between ancient and modern penalties is…the prominence of exile in the former and of imprisonment in the latter.”
Do you think that in our society we essentially understand imprisonment (often our rough equivalent to exile) in the way it relates to the individual transgressor, or to the community, or to both? Considering your answer, do you think this (our modern understanding of imprisonment) reflects the way Athenians viewed exile, or not?
Lecture 9. Gadfly on Trial: Socrates as Citizen and Social Critic
Josiah Ober (Princeton)
Discussion Forum Topics:
Lecture 9 — Forum 9 Topics:
Question 1(a). Historical Question: What sort of role did Socrates play leading up to and during the reign of the Thirty Tyrants? Was he complicit? — if so, to what extent (cf. Diod. Sic. 14.5.1) and Xen. Hell. 2.3.1 [for an account of the Thirty Tyrants] — To what extent can we say Socrates did not do enough to oppose the Thirty (Pl. Apol. 32c-d)? And what effect, if any, did this have on his defense and the outcome of his trial? From what “party” did his accusers emerge? Can they be said to have performed good deeds on behalf of the Athenian polis (see e.g. Xen. Hell. 2.3.44, where we are told that Anytus was in exile with the patriot, Thrasybulus? And how did recent historical events in general play into the trial of Socrates? — (e.g., Amnesty of 403—does it pertain? [Xen. Hell. 2.4.1 ]).
Question 1(b). Historical Question: (to be discussed later in the week if there is not enough to keep us busy). To what extent may Socrates’ earlier accusers have been unsuccessful when — whether maliciously or innocently — they sought to make him the object of public ridicule (e.g., Aristophanes’ production of Clouds in 423 was not a successful one [the poet says so at Wasps 1009ff]). Was Socrates’ popularity likely to have been high or low at that point in Athenian history (423 BC), and why? Recall the battle of Delium (Plato. Ap. 28d-e and Symp. 221a-b) occurred in 424 BC, and Amphipolis (Plato. Ap. 28d) was in 422 BC. (Note: if you are interested, see Thuc. 4.93.2ff , and 5.6.1ff respectively for accounts of the battles).
Question 2. Legal/Rhetorical/Philosophical Question: In what ways might we say Socrates follows the accepted standards of decorum for an Athenian defendant? In what ways does he deviate from what an Athenian jury would expect? Compare e.g., 17a ff. (Note: this passage continues for several links) and 34b ff. (Note: this passage continues for several links). In what ways does Plato give an accurate account of an Athenian trial? What might we expect was the rationale of Socrates’ accusers for bringing charges of impiety? Was this a solid legal case? What about the charge of corrupting Athenian youth? — a solid legal case? The significance of the term hoi polloi can lead to various topics of discussion — considering the word at various sections in the speech, what might these be? Who were the jurors, and what strata of Athenian society do they represent? Why does Socrates equate himself to Achilles? (note esp. the context in which he does? (Note: this passage continues for several links). What are we to make of Socrates’ absurd alternate penalty (38b and 37a)? — and for that matter his willingness to allow his friends to pay a larger sum than he himself could afford (38b)? If we can believe Plato, what was Socrates’ agenda? — to what extent did Socrates accomplish his goal? Are we able to draw any conclusions to some of these questions by examining his character in the Crito (passim).
Note: Great, short read if you have time, especially the section on the laws ([49e ff.] (Note: this passage continues for several links) e.g., why didn’t Socrates go into exile?)?
Historical Background (in brief):
At the end of the fifth century BC, Athens had suffered several reverses in its war against Sparta and her allies. This led to an attempt to establish an oligarchic regime in 411 BC. That regime was rather short lived, and the Athenian people opted to restore the democracy. However, when Athens finally lost the war (404 BC), a number of oligarchs (some of whom had participated in the previous attempt to limit democratic powers in 411) set up a brutally oppressive oligarchy with the help of Sparta. The oligarchy was known as The Thirty Tyrants, and it was led by Critias, one of many who had been associated with Socrates. More moderate oligarchs, such as Theramenes, were eliminated. This oligarchy was also brief, as it was ended by a civil war between democratic exiles (led by the democrat Thrsybulus) and the extreme oligarchic faction of the Thirty. After several battles in which some were killed on both sides, a peace was negotiated. One of the key provisions for the settlement was that a general amnesty was to be granted to those who had participated in the regime. This was in 403 BC, just four years before Socrates’ trial; and in a nutshell, this was the political situation at Athens at the close of the fifth century BC.
The following is from Diodorus of Sicily’s account of the trial of the moderate oligarch, Theramenes When the attendants [i.e., “state thugs”] came forward and were dragging him off, Theramenes bore his bad fortune with a noble spirit, since indeed he had had no little acquaintance with philosophy in company with Socrates; the multitude, however, in general mourned the ill-fortune of Theramenes, but had not the courage to come to his aid since a strong armed guard stood around him. Now Socrates the philosopher and two of his intimates ran forward and endeavored to hinder the attendants. But Theramenes entreated them to do nothing of the kind; he appreciated, he said, their friendship and bravery, but as for himself, it would be the greatest grief if he should be the cause of the death of those who were so intimately associated with him. Socrates and his helpers, since they had no aid from anyone else and saw the intransigence of those in authority increasing, made no move. Then those who had received their orders dragged Theramenes from the altar and hustled him through the center of the market-place to his execution… (Diodorus 14.5.1-3).
The following excerpt is from the defense by the moderate oligarch, Theramenes (cf. Diodorus 14.5.1-3 above), speaking to the assembly after being charged by Critias and the Thirty.
And if it is not evident in any other way that what I say is true, look at the matter in this way: do you suppose that Thrasybulus and Anytus and the other exiles would prefer to have us follow here the policy which I am urging by word, or the policy which these men are carrying out in deed (Xen. Hell. 2.3.44)?
Amnesty of 403: After the fall of the Thirty Tyrants the Athenians agreed to not prosecute those involved in the nefarious actions of the short-lived oligarchy.
Oaths were sworn that there should be amnesty for all that had happened in the past, and to this day both parties live together as felloe citizens and the people abide by the oaths which they have sworn (Xen. Hell. 2.4.43).
This is the test which should have been applied to Socrates too. If there was anything base in his own life, he might fairly have been thought vicious. But, if his own conduct was always prudent, how can he be fairly held to blame for the evil that was not in him? Nevertheless, although he was himself free from vice, if he saw and approved of base conduct in them, he would be open to censure. Well, when he found that Critias loved Euthydemus and wanted to lead him astray, he tried to restrain him by saying that it was mean and unbecoming in a gentleman to sue like a beggar to the object of his affection, whose good opinion he coveted, stooping to ask a favor that it was wrong to grant. As Critias paid no heed whatever to this protest, Socrates, it is said, exclaimed in the presence of Euthydemus and many others, “Critias seems to have the feelings of a pig: he can no more keep away from Euthydemus than pigs can help rubbing themselves against stones” (Xen. Mem. 1.2.28-31).
Passages for Historical Question B
The following is from Plato’s Symposium: Alcibiades describes Socrates’ courage at the Battle of Delium 424 BC.
…what a notable figure he made when the army was retiring in flight from Delium: I happened to be there on horseback, while he marched under arms. The troops were in utter disorder, and he was retreating along with Laches, when I chanced to come up with them and, as soon as I saw them, passed them the word to have no fear, saying I would not abandon them. Here, indeed, I had an even finer view of Socrates than at Potidaea — for personally I had less reason for alarm, as I was mounted; and I noticed, first, how far he outdid Laches in collectedness, and next I felt — to use a phrase of yours, Aristophanes — how there he stepped along, as his wont is in our streets, “strutting like a proud marsh-goose, with ever a side-long glance,” turning a calm sidelong look on friend and foe alike, and convincing anyone even from afar that whoever cares to touch this person will find he can put up a stout enough defense. The result was that both he and his comrade got away unscathed (Plato Symp. 221a-b).
Wrap-Up Discussion — Forum 10 Topic
Question 1. What were, in your view, the merits and shortcomings of the Athenian legal system (you might consider such aspects as access to justice, procedural fairness, accuracy of factfinding, litigant satisfaction, regulation of private life, and the nature and severity of penalties)? Are there aspects of the Athenian system that suggest shortcomings in our own system? Does it make sense to compare the quality of justice in systems that arise in such different cultural contexts?
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