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Plot on a Map
Athens.

But that’s not the lecture I want to give. The approach I’ve just outlined is fundamentally flawed for three reasons. First, rather than attempting to analyze litigation in Athens, it aims to judge it. Judging it per se is not the problem, but in this case judgment has superseded understanding. Second, it bases this judgment on standards which are essentially our own. It assumes that the Athenian legal system should have operated like ours (ideally) does, and then condemns it for failing to. Third, by framing the object of study as the speech rather than the system of litigation it encourages us to substitute ourselves for Athenian jurors. It’s not that with most Athenian legal speeches it’s impossible to determine with certainty who’s right; rather, the question who’s right? is itself a distraction from the more important question, how did this system operate?

I would like, then, to sketch an alternative framework for approaching the study of Athenian litigation, one which does not put historians in the positions of jurors (attempting to determine guilt or innocence) but rather analyzes the relationships between legal speeches and the jurors’ verdict, one which does not judge the system but understands it with relatively neutral categories, one which makes Athenian litigation seem both more foreign and more reasonable. To do this I will use a framework developed by legal anthropologists, dispute theory.

Dispute theory focuses not on legal cases but on disputes. A dispute is an intentionally broad concept and could be defined as a conflict between people. Disputes, however, can take many different forms: feuds, vendettas, passive-aggressive behavior, vandalism, insults, etc.—and, of course, legal cases. Dispute theory approaches all possible forms equally, not assuming that any of them are the proper form a dispute should take. More than this, dispute theory analyzes not merely the way that a dispute can take on a particular form, but the ways that a dispute can, in time, take on different forms, the ways it can be transformed.

Read about the evidence
Demosthenes (Dem. 54).
 
Plot on a Map
Athens.

Indeed, the idea of the transformation of disputes is key and I want to consider four important features of this idea. First, transformations don’t just happen; they are the result of choices made by parties. Thus, we should understand litigation not as the result of the violation of a law, but as the result of a party deciding to turn a dispute into a legal case. (After all, even if all legal cases come out of a violation of the law, many violations of the law never end up as legal cases.) Second, transforming a dispute from one form to another changes the roles of the parties involved and may introduce new ones. Consider this situation: two people involved in a fight have relatively undifferentiated roles, but in a legal case one might be a defendant and the other a witness or (in Athens) the prosecutor. (Since in Athens all cases were initiated privately and litigants spoke for themselves, I’ll refer to the litigant who brought the case as the prosecutor. Though derived from Latin, the word prosecutor is parallel in etymological meaning to the Greek term for the man who initiated the case, ho diokon, “the one who pursues.”) Litigation also involves the introduction of new parties: for example, jurors (or, in our system, public prosecutors who are meant to be disinterested). Third, linked to the transformation of roles, different forms of disputes endow disputants with different resources. Thus, while in a brawl a much bigger person may have an advantage over a smaller one, in an Athenian lawsuit the ability to speak well was more important than stature. Fourth, the initiation of litigation dichotomized a dispute. Whereas in a melee several people may have been involved (think of the street fight in Demosthenes 54, “Against Konon”), a lawsuit pitted a prosecutor against a defendant and made everyone else, at most, witnesses. Disputes, however, often have many more than two sides.

Plot on a Map
Athens.

Understanding that disputes can be transformed entails at least two significant consequences. The first is that since (for Athens, at least) the evidence for disputes comes entirely from the courts (in the form of legal speeches), this evidence may not fully represent the dispute in earlier stages. The second is that, since the transformation of a dispute also involved the transformation of the resources available to the parties, some disputants may have resisted certain transformations. Just because one party decided to initiate litigation doesn’t mean another party wouldn’t resist or contest this. Indeed, I would say that often what was at stake in a dispute was what form the dispute might take. It is precisely because part of a dispute can be a struggle over the form the dispute takes that we should not make judgments (explicit or not) about which of these is the proper form. Specifically, just because one disputant has tried to make a dispute into a legal case doesn’t mean that other parties should or will acquiesce.

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