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Law and Economy in Classical Athens: [Demosthenes], “Against Dionysodorus” 

Edward M. Harris, edition of March 22, 2003

page 12 of 15

· Part 2.5 ·

Read about the evidence
Demosthenes (Dem. 56).
Homer (Hom. Il.).

Dareius’ next move was to issue a challenge (proklesis) (18). This was another attempt to bring social pressure to bear on his opponents and to force them to settle the dispute out of court. A challenge could take many forms. One of the best known is the challenge made to opponent asking him to hand over his slaves for examination under torture about some key issue. The person who received the challenge might accept it (especially if he felt confident about the outcome), decline it, or propose a settlement as an alternative to further conflict. If the person who received the challenge declined it, he laid himself open to the suspicion that he lacked confidence in his own case, and his opponent might later use his refusal to accept as an argument against him. This form of dispute resolution had a long history and is found already in the account of the funeral games for Patroclus in the Iliad (23.261-611). In the chariot race held by Achilles to honor his dead comrade, Antilochus uses cunning to force Menelaus to fall behind him and to gain an advantage that enables him to come in second after the winner Diomedes. Angry at this ruse, Menelaus challenges him to swear an oath to Poseidon that he did not prevail by guile (581-85). This maneuver puts Antilochus in an awkward position: he can swear the oath and commit perjury in front of his companions or decline the challenge and tacitly admit that Menelaus is right. If he chooses the former option, he gains a reputation for swearing false oaths, and in the future his companions will never trust him. As a way out of his dilemma, Antilochus offers Menelaus the mare he won (23.586-595), and this solution satisfies his opponent and ends the conflict (596-611).

Read about the evidence
Demosthenes (Dem. 56).

Dareius presented Dionysodorus with another kind of challenge by inviting him to submit their case to a private arbitrator (18). Private arbitration was a popular form of dispute resolution, which avoided many of the pitfalls of going to court. By using an arbitrator, both parties could avoid the delays of waiting for officials to schedule a trial and paying court fees. The procedure before an arbitrator was also simpler and informal. Instead of making a formal speeches before hundreds of judges, the litigants presented the case to an arbitrator who could ask questions and clarify the issues. The arbitrator also had more flexibility than the judges in an Athenian court, who could either vote to accept or reject the plaintiff’s request: an arbitrator could attempt to reconcile the parties, suggest a compromise solution, or render a judgment. If one of the parties then did not abide by the arbitrator’s decision, the other party could bring an action in court for breach of the agreement. Dareius does not say why Dionysodorus rejected his challenge. His opponent may not have found the terms of the challenge acceptable, or the two parties may not have been able to find an arbitrator whom both could trust. Despite the failure of the challenge to settle the dispute, the tactic employed by Dareius was not a complete waste of effort: once in court Dareius drew attention to Dionysodorus’ refusal to accept the challenge as a way of attacking his credibility and portraying him as difficult and unreasonable.

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page 12 of 15