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CHRISTOPHER
CAREY
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The Athenian assumption is the reverse. The jurors are asked to become
emotionally involved; they are often explicitly invited to feel anger or
resentment, even hatred, for the speaker's opponent.It is assumed that the
jury respond to what they hear in court exactly as they would respond to
the same events in the outside world.This is not merely a matter of theory.
We know from a number of sources that Athenian juries were highly
demonstrative.19 They were inclined to shout their approval and disapproval of what they were hearing. It is as well here to bear in mind the
size of the juries. Even the smallest jury-panel, a mere 200, could raise
quite a racket. One speaker in the fourth century complains that at a
previous trial his opponent prejudicedthe jurorsso effectively against him
that they would not listen to a word he said.20 He may be lying, but presumably on occasion it was very difficult for a litigant to make himself
heard above the noise. In part this behaviour pattern arises from the conception of the juriesas the Athenian people sitting in judgement.Under the
democracy the people have sovereign power. But it reflects the way the
legal process is felt to relate to the outside world. The jurorsreact in court
as right-thinkingmen should.
I turn now to the question of proof. In criminal cases in England guilt
must be established beyond reasonable doubt. In order to convict, the
jurors must be satisfied by the evidence that the accused is guilty as
charged.This standardis clearly both more rigorous and more precise than
that which is applied in most non-judicialcontexts. The standardof proof
for civil cases is less demanding;balance of probabilitysuffices. In Athens
the criteria for decision-makingwere never spelled out. Here as elsewhere
jurisprudencein Athens is implied rather than explicit. We can however
draw some conclusions both from Aristotle's discussion of proofs in his
treatise On Rhetoric and from observable practice in the orators. In the
Rhetoric Aristotle divides the means of proof into two categories,
'artificial' or 'artful' and 'inartificial' or 'artless'.21By 'inartificial' proofs
he means roughly what we would call direct evidence; that is, depositions
from witnesses, statements from slaves under torture (no evidence from a
slave could be admitted unless it was extracted under torture), contracts,
etc. By 'artificial' proofs he means those which are produced by the
rhetorician's art: argument, appeal to emotion, and moral character (the
image projected by the speaker).What is striking about his list is that he
sees no fundamental differentiation between proof in the lawcourts and
proof in other contexts. The same techniques are at work in the courts and
in the political arena or anywhere where an audience must be convinced;
and by implication the standard of proof is the same in the courts as in
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NOTES
1. Though from the language used by speakers addressingjurycourtsit appearsthat the Athenians
imagined them as equivalent to sessions of the assembly;speakers addressingthe courts regularlyuse
the second person when referringto policy or legislative decisions of the assembly.
2. Arist.Ath.Pol. 43.4, 61.2.
3. See in general H. J. Wolff, 'Normenkontrolle'und Gesetzbegriffin der attische Demokratie
(Sitzungsberichteder HeidelbergerAkademie, 1970), M. H. Hansen, Thesovereigntyofthe people'scourt
in Athens in the fourth centuryB.C. and the public action against unconstitutionalproposals (Odense,
1974).
4. For discussions see D. M. MacDowell, JHS 95 (1975), 62-74, M. H. Hansen, GRBS 26 (1985),
345-71, P.J. Rhodes, CQ 35 (1985), 55-60.
5. Ath.Pol. 55.2, 45.3.
6. Ath.Pol. 49.3.
7. See Lys. 10.1, 12, 24-5, 30.
8. Aischin. 1.
9. [Dem.] 59.
10. Cf. Dem. 54.9, 17, Aischin. 1.55.
11. See F. Blass, Die attische Beredsamkeit3(repr. Hildesheim, 1962) III.1, 541 n. 1, Demosthenis
orationes(Leipzig, 1891) III, lxii-lxiii; see furtherC. Carey, Apollodoros,Against Neaira. [Demosthenes]
59 (Warminster,1992), pp. 141f.
12. D. Cohen, Zeitschriftder Savigny-StiftungfuiirRechtsgeschichte,romanistischeAbteilung 102
(1985), 385-7, J. Roy, LCM 16 (1991), 73-6. See further C. Carey, 'The returnof the radish', LCM 18
(1993), 53-55.
13. Arist. R. 1.5.1354a.Accordingto Ath.Pol. 67.1 the litigants in the ordinaryjurycourtsalso swore
to keep to the issue. The date of this provision is unknown.If it predatesthe 320s, it seems to have little
effect on practice in the courts.
14. See the references collected in C. Carey/R. A. Reid, Demosthenes:selectedprivate speeches
(Cambridge, 1985), pp. 8ff.
15. Isai. 3.19, Dem. 57.14.
16. S. C. Humphreys in The discourseof law, ed. S. C. Humphreys (London, 1985), pp. 313-69,
especially 350.
17. See Carey/Reid (op. cit., n. 14 above), pp. 10f.
18. Lys. 14.5, 15.1.
19. See in general V Bers.'Dikastic thorubos',in Crux:essaysin Greekhistorypresentedto G. E. M. de
Ste Croix, ed. P. A. Cartledge/F. D. Harvey (Exeter & London, 1985), pp. 1-15.
20. Dem. 45.6.
21. Arist. R. 1.2.1356a.
22. For earlier discussions see Carey/Reid (op. cit., n. 14 above), pp. 75 f. (to which add N. R. E.
Fisher, G&R 23 (1976), 177-93, 26 (1979), 32-47), and see further D. M. MacDowell, Demosthenes
AgainstMeidias(Oration21) (Oxford, 1990), pp. 18 ff., N. R. E. Fisher, 'The law of hubrisin Athens', in
Nomos: essays in Athenian law, politics and society, ed. P. Cartledge/P. Millett/S. Todd (Cambridge,
1990), pp. 123-38, and Hybris (Warminster,1993), pp. 36ff., O. Murray, 'The Solonian law of hubris'
in Nomos, pp. 139-45.
23. Arist. R. 1.15.1375a-b.
24. Thuc. 2.37.3, Lys. 6.10, Plat. Leg. 793a-d, Dem. 18.275, Arist. E.N. 1180a.
25. See e.g. Dem. 57.5, 54.17, Hyp. Athen. 13.
26. See C. Carey, 'Apollodoros'mother:the wives of enfranchised aliens in Athens', CQ 41 (1991),
84-9.
27. See in particularS.Todd/P. Millett, 'Law, society and Athens', in Nomos:essaysin Athenian law,
politics and society, ed. P. Cartledge/P. Millett/S. Todd (Cambridge, 1990), pp. 1-18.
28. R. Garner, Law and societyin classicalAthens (London & Sydney, 1987), pp. 58ff.
29. For Eskimo and Tiv procedures see S. Roberts, Order and dispute: an introductionto legal
anthropology(Oxford, 1979), pp. 59f., P.J. Bohannan,Justice andjudgementamong the Tiv (London,
1957), pp. 142ff.
30. Garner (op. cit., n. 28), p. 63 grossly oversimplifiesin stating:'the education of an Atheniangave
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him good reason to expect that even if he had done what he was chargedwith in court, he could ask to
be acquitted or to win the case on the basis of past excellence in achievement and service'.
31. S. C. Todd in Nomos: essays in Athenian law, politics and society, ed. P. Cartledge/P. Millett/S.
Todd (Cambridge, 1990), pp. 30f. Humphreys (op. cit., n. 16 above) pp. 323 f. is more cautious; she
notes: 'The theory - though perhaps not the practice - in modern western courts is that what matters
about a witness is not who he is but what he says. As we shall see, this theory does not apply to Athenian
courts, where the content of witness testimonies is often unimportant or irrelevant'.Her parenthetic
riderhighlights a problemin comparisonsbetween modern western systems and that of ancient Athens.
Since we lack direct evidence for the debates which led to specific procedural developments,
jurisprudencein the Athenian context is for the most part either implicit or embodied in statements by
speakers in court; the latter in turn are based on a combination of common sense and rhetorical need.
When dealing with modern systems we have access to evidence for the rationalebehind proceduresand
to a substantialbody of specialist jurisprudence.Accordingly,we frequently find ourselves comparing
modern theory with ancient practice; the result is often an exaggeration of the divergence and a
patronizing attitude to the Athenian system.
32. See A. R. W. Harrison, Thelaw of Athens, vol. ii (Oxford, 1971), p. 143 f.
33. This is a revised version of an inaugurallecture given at Royal Holloway on 23 February 1993.
NOTES
ON CONTRIBUTORS
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