MÉTODO DE DENAVIT-HARTENBERG (DH) ESTÁNDAR

The nature of the discussion on democracy, let alone on the democratic judicial system, in the off-stage sources is at best fragmentary, as has been commented on a b o v e . G i v e n that the majority of these contemporary discussions occur within a literary context, the resultant analysis of democracy is of a broad nature.^^ At no point are the authors engaging in an ordered and systematic analysis of democracy along the lines of the Athenaion Politeia. Consequently observations about the democratic justice are of a somewhat scattered and piecemeal nature. This being the case, there are still marked similarities between the analysis o f democracy in late fifth-century literary sources and the arguments that are advanced for and against the democratic judicial system in the Wasps. I will begin by focusing on the arguments that were advanced in favour of democracy in general and its judicial system in particular, before moving onto the responses that democracy provoked from its critics.

In his analysis of the fifth-century debate on democracy, Raaflaub suggests that two questions were of central importance: ‘that of the quality of the leaders and that of the competence of the m a s s e s .w ith regard to this second question, the central tenet

of democratic thought was the intrinsic right of the demos to be sovereign, bringing freedom to each c i t i z e n . ^ ^ w ith regard to leadership, its proponents argued that the

democracy selected men with the appropriate skills to fill positions requiring specialist

S ee U ssh e r (1979) 8 fo r a list o f agons in A ristophanes. In the KnightsA ristophanes tackles the po w er a n d in flu e n c e o f p o h tic ia n s, in th e Cloudsthe im pact o f rhetorical education, in the Lysistrata divisions w ith in th e city , in the Frogsthe ro le o f tragedy in society, in the Ecclesiazusae,the lack o f clea r p o h c y a n d d irec tio n in the p ost-P eloponnesian W ar era.

^ L itig an ts supphcating: Ax.Vesp.552-^c.f. [Xen.]A//i.P(?/.1.18, D em .1 9 .1 , 21.4; d e fe n d a n t’s children; A r.V gjp.569-74, 976-8 cf. L ys.20.34, A ndoc. 1.148, P lA p .3 4 c , D e m .2 1 .9 9 ,186-8.

91 S ee p. 124.

92 S ee p a rtic u la rly R a afla u b s d iscu ssio n o f the co n stitu tio n al d eb a te s in H ero d o tu s a n d E u rip id e s’

Supplices(R aaflaub (1990) 41-46).

93 R aaflau b (1990) 69-70.

94 F o r th e dem o cratic theory o f the sovereignty o f the demos,see Exa.Suppl352,406, 4 43; T h u c .6 .3 9 .1 ; H dt.3 .8 0 .6 ; [X en.]A //i.P o/.1.2,8.

knowledge, while entrusting overall decision making to the judgement of the demos, which cumulatively made competent decisions.^^ In the constitutional debate between Theseus and the Theban Herald in Euripides’ Supplices, the intrinsic right o f the demos to rule is celebrated. Theseus remembers how he ‘set the d e m o s in sole rule {monorchia), setting free the city with equal f r a n c h i s e . T h e sovereignty of the demos which Theseus proclaims finds echoes in Philocleon’s exaltation of his power as a juror ‘I am ruling over all.’^ The ‘Old Oligarch’ makes a stronger connection between

the sovereignty o f the dem os and the democratic jury courts in his account o f the judicial relationship between Athens and her allies.^^

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The demos o f the Athenians seems also to have decided badly in this, that they compel their allies to sail to Athens for trials. Yet they argue in response that this is a good thing for the demos of the Athenians: firstly, that from the judicial deposits they receive pay through the year. By judging at home without sailing out in ships, they control the allied cities and save those of the dem os, while

S ee X en \A th .P o ll\\3, F l.F ro /.3 1 9 b -d , 3 22d-23a, T h u c .6 .3 9 .1, H d t.3 .8 0 .6 w ith R a afla u b (1 990) 65 a n d Y unis (1996) 4 2 -3 ,4 8 -5 0 . T h e popular m yth abo u t dusboulia in A thens recounts that w h en A thens w as fo u n d ed , P oseidon cursed the city to m ake b ad decisions, but A th en a added th a t the A thenians w ould alw a y s b e su c ce ssfu l in sp ite o f this {Ar.Nub.SSl, EcclA73-5 a n d th e sc h o lia o n the Clouds w ith S o m m erstein (1982) 192).

‘k qI Y a p K Q i e a T T i a ' a i j T o v eg p i o v a p x i a i / eXeuOepwaag T r i v 8 ' i a o n j r | ( j ) O i / (Eui.Suppl.352)

w ith C oU ard (1975) 1.29, 2.198-9 on contem porary political thought in the arch aic w orld o f tragedy and also p p .18-9 above. S ee also Eur.5w pp/.406: ‘the demos is lord (5fiuog 8' a i /a c a e i) ’; E u r.5 « p p /.4 4 3 : ‘in d e ed , w h ere the is m aster o f the land...(k q\ u n v onoxj ye 8nuog aùôei/Tnç x^oi/og...).’

^ ‘ a p x o ) T c o i / a n a v T C O v ’ (Ar.Vgjp.518). See p. 126.

6: The Wasps and the Debate on the Democratic Judicial System 140

destroying those opposed to them in the courts. If each of the allies had trials at home, on the grounds o f their annoyance with the Athenians, they would destroy these of them who were above all friends of the Athenian demos.

(A section then follows on the economic advantages that Athenian citizens receive when allies come to Athens for trial e.g. the renting o f rooms and animals.)

In addition to these things, if the allies were not going for trials, they would only honour those Athenians who sail out - the generals, the trierarchs and ambassadors. But as it is now, each one of the allies is compelled to flatter the

demos of the Athenians, knowing that the person coming to Athens must submit

to a trial and receive punishment from no others but from the demos, which is the law at Athens. And he is compelled to supplicate in the jury courts and seize the hand o f one of the jurors who is entering the court. So through this, the allies have become increasingly slaves to the demos of the Athenians.^^

In support of the dem os’ decision to compel the allies to sail to Athens for trials, the ‘Old Oligarch’ argues that this policy enabled the Athenian demos to control its allies. This could only be the case because, as the allies come to realise, they ‘must submit to a trial and receive punishment from no others but from the demos, which is the law at Athens.’ Furthermore, the ‘Old Oligarch’ argues that the Athenian masses used imperial judicial policy to exert their power over the allied elites as well as protecting their allied friends. In the preceding section, which is discussed below, he makes this point with a greater clarity and with a more pronounced anti-democratic ideological spin.^^ There is a striking similarity between the above analysis by the ‘Old Oligarch’ and the argument advanced by Philocleon in the agon of the Wasps. In both accounts, the jury courts are presented as vehicles through which the Athenian dem os exercises sovereignty. Furthermore both Philocleon and the ‘Old Oligarch’ focus on the power o f mass, Athenian juries over members of the elite. Interestingly both use the same image of the suppliant defendant pleading with the jurors and taking them by the hand to demonstrate the power of the demos exercised in the jury court. Finally, the ‘Old Oligarch’ notes that it is the large size of the democratic juries which makes bribery less easy and facilitates j u s t i c e . T h i s connection between the sovereignty of the demos and the jury courts is commented on in a more oblique manner in the constitutional debates. The democratic equality of access to law (isonomia) is contrasted to tyranny, which is characterised by the tyrant’s arbitrary execution of justice according to his own whim and insecurities.

99 \X m .]A th .P o l.l.l6,18. too p. 144.

101 \Xen.]Ath.Pol3.1.

102 Hdt.3.80, Eur.5«/7/7/.430-55. On democratic isonomia, see Vlastos (1953) particularly 347-66, who defines isonomia as ‘political equality maintained through the law and promoted by the law.’ See also pp. 18-9 on the constitutional debates in the construction of Athenian civic ideology.

Philocleon’s observation regarding the unaccountability o f the jury courts is a constitutional reality which litigants acknowledge in their pleading before the Jurors.^^^ For example a litigant states: ‘all will know that...it is necessary to fear your (the jurors’) vote, for this is the greatest authority over all things in the city.’^^ The fourth century tradition on Solon’s reforms emphasises the importance of the provision for ho

boulomenos to prosecute in the démocratisation of the judicial system, but we do not

know how far back this tradition goes.^®^ However, the speaker for whom Lysias Against the Corn Dealers adopts the identical phrase to that of the sycophant in the

Plutus. The speaker uses this phrase to justify his bringing a prosecution which

potentially could be considered s y c o p h a n t i c . I n a meeting of the boule, the speaker had been accused of supporting the highly unpopular com dealers because he recommended that their case be passed to the jury court, rather than be transferred to the Eleven for summary execution. In order to quash these allegations, he himself accused the corn dealers when their case subsequently came before the boule and concludes: ‘I made it clear to all that I had not spoken on behalf these men (i.e. to assist the com dealers), but that I had come to the help of the established laws’. B o t h Lysias’ client and the sycophant in the Plutus are aware of the role of ho boulomenos in ‘coming to the help of the established law s’, i.e. to prosecute. In conclusion, Philocleon’s central thesis, that jury service makes an old man lord of all, is echoed in the broad ideological statements of the dem os’ sovereignty in the Supplices and is closely mirrored in the more focused analysis of the democratic judicial system in the ‘Old Oligarch’. Similarly, arguments from the Wasps about the unaccountability o f the jury courts and the role of ho boulomenos are paralleled by comments made by litigants

in the early fourth-century.

103 On the unaccountability of the jury courts expressed in the inappellability of their verdict, see Dover (1974) 292, Hansen (1991) 183, Todd (1993) 89-90, 145-6.

1 A /1 & / \ ) / </ A \ A \ \ ( / A O / / ) /

n a v i e ç y a p e i a o i / i a i o T i . . . o e i t t ] v o e i p r i c p o v t t\v u p i e i e p a i / 0 € 0 i e v a i * o u t t i y a p e a i i n a i / i c o v T c o v eu v o X e i K u p i c o T a i T i’ (Lys.1.36). For other examples from Lysias, see 6.13; ( a ù i o K p a T o p e ç o v T € ç ) , 14.4 (the jurors’ verdict on this case is so significant that they will be acting as nomothetai - in

fact a rhetorical exaggeration). In the speeches that Antiphon wrote for homicide trials, speakers understandably show an even greater awareness of the lack of appeal, although these cases were written for delivery before the Areopagus and not the jury courts (Ant.2.2.13,5.91,94).

105 SeeA(A.foZ.9.1, Plut. W . 18.6-7 with Rhodes (1981) 159-60, Osborne (1990) 99-100.

106 jjjg speech can be dated to 386 (Gemet and Bizos (1974-89) 2.83-4). For the suggestion that the prosecution is considered sycophantic, see Lys.22.1, with Seager (1966) 180 (metics as easy targets to prosecute), Edwards and Usher (1985) 258-9. The legal complexities of this speech are analysed by Todd (1993) 316-20, where he summarises previous studies.

KQi naai cpai/epoi/ €noiTiaa o n o u x u n € p to u tco i/ cKeyoi/, a W a t o l ç i/opioiç lo iç Keiu€i/oiç epof|Oo\ji/’ (Lys.22.3). A slightly different twist is put on this phrase by the prosecutor in the Against

Theomnestus. In his concluding words, he appeals to the jurors to: ‘come to the help of both me and my

father and the established laws which you have sworn (kqI euol koI top rraipl PorisficjaTe kqI toTç

voiioiç toT ç Keipei/oiç ko) toTç opKoiç oiç opcoiiCKaie’ (Lys.10.32)). Tht Against Theomnestus can be dated to 384/3 (Gemet and Bizos (1974-89) 1.142), on the speech, see Edwards and Usher (1985) 229- 30, Todd (1993) 258-62.

6: The Wasps and the Debate on the Democratic Judicial System 142

If the novel phenomenon of the democracy won praise from some quarters, it also attracted criticism from others, particularly from those with an oligarchic perspective. Again working with Raaflaub’s observation that the debate on democracy focused on ‘the quality of the leaders...and the competence of the masses’, oligarchic thinkers were horrified that the demos was entrusted with power, given that they looked on the dem os as nothing more than an uneducated mob.^®* They were particularly contemptuous of entrusting power to the masses because they considered their weak and uneducated minds were easily manipulated by clever and rhetorically skilful speakers. It is immediately possible to see connections between these sentiments and