> "Another approach to the speech would be to take its rhetorical and performative features as evidence for the view that Athenian trials are essentially rhetorical struggles between opposing litigants for a status-based supremacy, and are generally unconcerned with the strict applicability of the law to the relevant facts."
There are two things worth highlighting that the author doesn't really go into.
First, as Richard Posner put it in The Problems of Jurisprudence," "Natural Law had more bite in Greek thought than it has in ours." In other words, the law was primarily a manner of sublimating the instincts for revenge and for fair play. It would be quite correct to say that Greek law was Natural Law, and that they would not allow codes or precedents to twist the administration of the law into something unjust. This is a point in their favor.
Second -- and this is seen throughout the Greek world, including very famously in the Iliad and in the trial of Socrates -- passing judgment was an extension of the sovereign's right to govern, and virtually all sovereigns believed that the judgments they pass should be popular with the people. Even if a matter of Natural Law is clear, they might not prosecute it if it is unpopular -- or, conversely, they might use the sovereign right to administer the law to pursue unjust but popular ends. (Though this was uncommon and the practice of ostracism may have grown to soften this urge.) This is a point against the Greeks.
So: A legal system not beholden to black-letter law, but very sensitive to popular sentiment. Of course stories had an awful lot of power. Much more than they have today.
In the film Pirates of the Caribbean (2003) there is a "pirate code" -- but at certain points the pirates just break the code. The excuse Captain Hector Barbossa (Barbarossa) gives to his snooty and respectable prisoners is that "The code is more what you'd call 'guidelines' than actual rules." That is the essence of Greek Law.
IMO thee is some nuance here. Unlike the Judaic tradition, where intent shapes moral judgment, 5th-century BCE Greeks prioritised consequences over motivations. What mattered was the result, not the actor's internal disposition during or before the act.
The Greek mythology, is philosophically relevant to the way they thought. In Hesiod's Theogony we find Dike. Dike, goddess of justice, renders decisions but relies on Zeus and his agents Kratos (strength) and Bia (force) to enforce them. Yet, even Zeus is bound by Themis, representing primordial institutions and order. This underscores that power must respect established customs and societal norms to endure. Disregarding these leads to downfall and replacement by a leader who upholds them. Should this bear any weight? Assuming humans are social animals - I don't see how it's something we should straight-up dismiss. Maybe there's a balance between making trials popularity contests and completely dismissing the public opinion.
Socrates' trial reflects this principle. His judges, fearing unrest from his supporters, offered exile not out of personal sympathy, but to prevent revolt.
The Greeks understood that governance depends on securing the support of key factions. No ruler, however autocratic, can disregard the foundational structures and collective will without risking collapse. IMO they were not wrong, this is true today as it was true back then.
In the quote from the essay the author is actually paraphrasing some en vogue, literary type analyses that were happening then, around 2010 I think. He’s not expressing support for this style of forensic literature in any way.
Instead, the author argues pretty persuasively that ancient Athenian law is more similar to modern analogues than is frequently understood, precisely because people who argue otherwise fail to recognize the role of storytelling in our modern legal system. Later, in the essay’s conclusion, he says that the use of story telling by ancient Athenians was more free wheeling, but he goes on to say that it’s was often all they had to go off of in many situations. The death of Eratosthenes, in his example, lacked any kind of forensics so both sides basically had to tell a story that conformed to the same set of facts.
Anyways, the natural law stuff and popular opinion also play a role of course. Antigone for example risks death to recover her dead brother’s body even though it’s been made illegal by the tyrant of Thebes. Clearly Sophocles is a pretty standup guy and Antigone is sympathetic, so it makes sense. Also there were all sorts of demagogues who hijacked their democracy, like Kleon who convinced the Athenians to reject the soartan peace proposal, which was probably something they regretted tremendously.
> In thinking about our own law, most people would acknowledge the existence of literary and rhetorical features but these are generally considered irrelevant to the true work of law, and in many cases are judged to conflict with that work.
I found this unsupported assertion surprising.
I haven't watched many legal dramas, but my secondhand impression of both TV and film is that they tend to make the US legal system seem a lot more dramatic, and a lot less procedural, than it really is.
Professors and visiting lawyers explicitly acknowledge narrative building as a skill throughout my time in law school.
Some interesting stuff on slaves having debt (is the debt transferred with the sale of a slave, or kept with the slave's master?) and owning things (like one of the largest banks in Athens, since finance was not an 'honourable' way to make money, so 'relegated' to less reputable people).
See eg, David Ball - Theater Tips and Strategies for Jury Trials
Theme and narrative are at the core of trying a case. HOWEVER, having tried jury trials, my experience is that jurors focus on the star witness for Plaintiff, the star witness for Defendant, and then decide which one they believe. Narrative definitely helps shape the approach, but all the psychodrama in the world won’t make an unbelievable witness believable.
> "Another approach to the speech would be to take its rhetorical and performative features as evidence for the view that Athenian trials are essentially rhetorical struggles between opposing litigants for a status-based supremacy, and are generally unconcerned with the strict applicability of the law to the relevant facts."
There are two things worth highlighting that the author doesn't really go into.
First, as Richard Posner put it in The Problems of Jurisprudence," "Natural Law had more bite in Greek thought than it has in ours." In other words, the law was primarily a manner of sublimating the instincts for revenge and for fair play. It would be quite correct to say that Greek law was Natural Law, and that they would not allow codes or precedents to twist the administration of the law into something unjust. This is a point in their favor.
Second -- and this is seen throughout the Greek world, including very famously in the Iliad and in the trial of Socrates -- passing judgment was an extension of the sovereign's right to govern, and virtually all sovereigns believed that the judgments they pass should be popular with the people. Even if a matter of Natural Law is clear, they might not prosecute it if it is unpopular -- or, conversely, they might use the sovereign right to administer the law to pursue unjust but popular ends. (Though this was uncommon and the practice of ostracism may have grown to soften this urge.) This is a point against the Greeks.
So: A legal system not beholden to black-letter law, but very sensitive to popular sentiment. Of course stories had an awful lot of power. Much more than they have today.
In the film Pirates of the Caribbean (2003) there is a "pirate code" -- but at certain points the pirates just break the code. The excuse Captain Hector Barbossa (Barbarossa) gives to his snooty and respectable prisoners is that "The code is more what you'd call 'guidelines' than actual rules." That is the essence of Greek Law.
> [...] should be popular with the people [...]
IMO thee is some nuance here. Unlike the Judaic tradition, where intent shapes moral judgment, 5th-century BCE Greeks prioritised consequences over motivations. What mattered was the result, not the actor's internal disposition during or before the act.
The Greek mythology, is philosophically relevant to the way they thought. In Hesiod's Theogony we find Dike. Dike, goddess of justice, renders decisions but relies on Zeus and his agents Kratos (strength) and Bia (force) to enforce them. Yet, even Zeus is bound by Themis, representing primordial institutions and order. This underscores that power must respect established customs and societal norms to endure. Disregarding these leads to downfall and replacement by a leader who upholds them. Should this bear any weight? Assuming humans are social animals - I don't see how it's something we should straight-up dismiss. Maybe there's a balance between making trials popularity contests and completely dismissing the public opinion.
Socrates' trial reflects this principle. His judges, fearing unrest from his supporters, offered exile not out of personal sympathy, but to prevent revolt.
The Greeks understood that governance depends on securing the support of key factions. No ruler, however autocratic, can disregard the foundational structures and collective will without risking collapse. IMO they were not wrong, this is true today as it was true back then.
In the quote from the essay the author is actually paraphrasing some en vogue, literary type analyses that were happening then, around 2010 I think. He’s not expressing support for this style of forensic literature in any way.
Instead, the author argues pretty persuasively that ancient Athenian law is more similar to modern analogues than is frequently understood, precisely because people who argue otherwise fail to recognize the role of storytelling in our modern legal system. Later, in the essay’s conclusion, he says that the use of story telling by ancient Athenians was more free wheeling, but he goes on to say that it’s was often all they had to go off of in many situations. The death of Eratosthenes, in his example, lacked any kind of forensics so both sides basically had to tell a story that conformed to the same set of facts.
Anyways, the natural law stuff and popular opinion also play a role of course. Antigone for example risks death to recover her dead brother’s body even though it’s been made illegal by the tyrant of Thebes. Clearly Sophocles is a pretty standup guy and Antigone is sympathetic, so it makes sense. Also there were all sorts of demagogues who hijacked their democracy, like Kleon who convinced the Athenians to reject the soartan peace proposal, which was probably something they regretted tremendously.
> In thinking about our own law, most people would acknowledge the existence of literary and rhetorical features but these are generally considered irrelevant to the true work of law, and in many cases are judged to conflict with that work.
I found this unsupported assertion surprising.
I haven't watched many legal dramas, but my secondhand impression of both TV and film is that they tend to make the US legal system seem a lot more dramatic, and a lot less procedural, than it really is.
Professors and visiting lawyers explicitly acknowledge narrative building as a skill throughout my time in law school.
I found the book Ancient Greek law in the 21st century, edited by Paula Jean Perlman to be an interesting read as a layman:
* https://www.goodreads.com/book/show/36708211-ancient-greek-l...
Some interesting stuff on slaves having debt (is the debt transferred with the sale of a slave, or kept with the slave's master?) and owning things (like one of the largest banks in Athens, since finance was not an 'honourable' way to make money, so 'relegated' to less reputable people).
See eg, David Ball - Theater Tips and Strategies for Jury Trials
Theme and narrative are at the core of trying a case. HOWEVER, having tried jury trials, my experience is that jurors focus on the star witness for Plaintiff, the star witness for Defendant, and then decide which one they believe. Narrative definitely helps shape the approach, but all the psychodrama in the world won’t make an unbelievable witness believable.