Programación de HMI

The purpose of this chapter has been to analyse the off-stage images of judicial activity in the Attic Orators, thus giving us a control to the on-stage images from the Aristophanic world. The prevalence of judicial activity in Athens is highlighted both within and beyond the theatre, and in the later case is connected with the central role that the jury courts held in the administration of the democracy and empire. It is possible that the focus on judicial activity within the theatre may be a reaction and response to the relative novelty of the increased profile of the jury courts in the off­ stage world (Chapter 4.1). Indeed 1 would like to suggest that this relative novelty was one of the four factors specific to the late fifth century which exacerbated the Athenian concern with judicial activity. On the basis of the above analysis of three jury court speeches, it is possible to draw some conclusions on the presentation of judicial activity in the Attic Orators, which can then be compared and contrasted with the images from the Aristophanic world.

Firstly, a litigant is careful to present himself before the jurors within a set of clearly defined and widely used parameters: he is reticent to engage in judicial activity and unfamiliar with the intricacies of the jury court; while his opponent is experienced

153 jjj g eight judicial hearings can be hsted as follows:

§ 6 4 1 2 /1 1 : Epidikasiao f 1st W ill. §§7-11 400/399: Diadikasiao f 2nd WiU.

§§12-13 po st 400/399: M enexenus (111) v Lycon: dike pseudomarturion.M enexenus w ins.

§§13-16 po st 400/399: C ousins v D icaeogenes (111): claim by ankhisteiafo r entire estate. B lo ck ed

by diamarturia.

§16 p o st 400/399: D icaeogenes (111) v Cousins: diamarturia,L eochares testifies.

§ § 1 7 -1 9 p o st 4 0 0-399: C ousins v L eochares: dike pseudomarturion. C o u sin s w in b u t w aiv e penalty o f atimia.

§ § 22-24 p ost 400/399: M icion v Cousins: dike exoules.M icion wins. §§1-2 389: C ousins v Leochares: dike eggues.O utcom e unknow n.

injudicial activity to the point of sycophancy. These parameters can be observed in the three speeches analysed above (Chapter 4,4). Furthermore, I think it is difficult to dismiss the images of judicial reticence and experience as rhetorical glosses, figures of speech that are devoid of power and p e r s u a s i o n .I n each of the three speeches analysed above, the speakers utilise the presentation of judicial activity to circumvent legal challenges that they have been presented with in bringing the case to court. This strategy can only have been worth developing and pursing if the garb of judicial reticence and inexperience found favour in the eyes of the jurors, while that of sycophantic rapaciousness besmirched the standing of one’s opponent before the jurors. The espousal of judicial reticence in the Attic Orators closely parallels the comic hero’s flight from Athenian litigiousness, while the allegations of sycophancy levelled at the opposition closely parallel the comic hero’s conscious banishment of sycophants from the fantastical paradise.

Secondly, the perceived legitimacy of engaging injudicial activity is determined by the relationship between the two litigants, the closer the relationship, the greater the degree of moral censure that is attached to the pursuit of judicial activity. Figure 6 is an attempt to represent this principle in diagrammatic form. The distance between the litigant at the centre and his opponent in one of the surrounding circles determines the legitimacy of engaging in judicial activity. It is shocking to be involved in litigation with o n e ’s fam ily and friends, understandable with o n e ’s enem ies and incomprehensible with a stranger, because there is no relationship. Negotiation and arbitration, in apposition to litigation, are the appropriate methods of settling a dispute with members of one’s oikos. Strong moral censure and condemnation can be deployed against those who engage in judicial activity which transgresses this relational framework. If a speaker is able to present the opposition as engaging in such inappropriate judicial activity, then his opponent can be morally tarnished with terms like vile, base, lying, unjust. The speaker, in comparison, is ready to apply to himself such morally favourable epithets as just, truthful and one who is loyal and generous to the p o lls. Again there is a close parallel with images from the Aristophanic world, within which the sycophant is pilloried and morally censured because his interfering and meddlesome prosecutions transgress a wider framework o f interpersonal

C o h e n (1995) 103-5 com m ents on litig an ts’ m anip u latio n o f this topos, b u t does n o t co n sid er the im p lic a tio n s o f litig a n ts’ w illingness to present th em selves as ju d ic ia lly re tic e n t in re la tio n to w id er a ttitu d e s to ju d ic ia l a c tiv ity in A th en ian society. It is in te re stin g to n o te th a t th e re is n o e n try fo r A risto p h an es or C om edy in the index. Thom as (1994) 124, com m enting o n h tig a n ts’ fre q u e n t reco u rse to the fig u re o f th e archaic law giver, notes that; ‘the prestige o f the ancient la w g iv er is e x p lo ite d for all it is w o rth a n d in a w ay w hich w as presum ably thought acceptable, in d e ed h ig h ly ap p e alin g , to the ju ro rs . ’ T h is co n n e ctio n b etw e en a litig an t’s presentation o f his case and th e m entality o f th e c itiz e n -ju ro r has b ee n a fu ndam ental principle in this chapter (see C hapter 4.3).

4: Judicial Activity in the Attic Orators 88

relationships. In Chapter 8 , 1 will advance an explanation for this connection between a relational framework and the perceived legitimacy of engaging injudicial activity.

Thirdly, there may be a gap between the images o f judicial reticence and the reality of judicial practice. Although a litigant clothes himself in the garb of judicial reticence before the jurors, in reality he may have been involved in a long running, complicated judicial dispute with his opponents. Just as judicial activity turns out to be inescapable within the comic hero’s fantastical paradise, so judicial activity may in reality be inherent within the lives of those who espouse judicial reticence. And yet, given that speakers utilise these claims of judicial innocence to circumvent legal challenges they faced, the image of the judicially reticent man must have carried some weight with the jurors.

With regard to the different interpretations advanced by scholars (see Chapter 4.2), one could argue that elements can be adopted from each position adequately to explain why litigants present themselves as judicially reticent. With regard to the ‘realistic’ approach, although 1 would not argue that Athenians in practice were reluctant to engage in litigation, 1 will suggest in Chapter 8 that the ideology of judicial reticence generated a social pressure to explore alternative means of dispute-settlement either in addition to or instead of litigation. With regard to the ‘moral’ and ‘ideological’ approaches, 1 broadly agree with these positions, particularly the moral censure associated with interfering behaviour and the fictitious nature of claims to judicial and rhetorical inexperience. Although Ober’s account of mass-elite relations is fundamental to an understanding of the workings and stability of the Athenian democracy, 1 would question its use in helping us to reconstruct the reasons behind this ideology of judicial reticence, particularly in enabling us to articulate these reasons within a frame of reference that would have been recognisable to a member of Aristophanes’ audience. In Chapter 8,1 will advance reasons behind the ideology of judicial reticence which adopt an alternative perspective to that of Ober’s.

Therefore it is possible to conclude that there is a strong correlation between the on-stage, Aristophanic images of judicial activity and the off-stage images from the Attic Orators. Within both media, popular attitudes to judicial activity in the age of Aristophanes could be described as distinctly ambivalent. On the one hand, judicial activity is to be fled from in the comic world and renounced in the court room. On the other hand, judicial activity turns out to be inescapable within the fantastical paradise and an inherent feature in the lives of some litigants. This ambivalence is characteristic of popular attitudes throughout the age of Aristophanes: it is exhibited in the plays and speeches which have been examined from across the period. 1 think it is relatively

Straightforward to understand why judicial activity should be conceived o f as an inescapable part of the Athenian experience. As described in Chapter 1, the democratic judicial system demanded widespread citizen participation to function. A citizen’s participation in judicial activity became an important part in the construction of Athenian civic ideology. On the other hand, it is harder to comprehend the ideology of judicial reticence, a problem which will be discussed in Chapter 8. If the above analysis is accepted, then Aristophanes’ repeated focusing upon judicial activity in plays performed before the demos may well be borne out o f a society wrestling with the tension between its ideology of judicial reticence and the reality of its judicial practice. This tension and concern with regard to judicial activity were fuelled by four factors specific to the late fifth century. The first, the relatively recent appearance of the jury court’s high profile on the Athenian horizon, has already been commented on (Chapter 4.1). The second factor originates from beyond the western horizon, with the teachers of rhetoric in Sicily. In the next chapter, I will examine the impact that their rhetorical techniques were perceived to have upon the administration of justice.

The CloudSf Rhetoric and Judicial Practice

It. f|i/ o\jv liaO-Qç liOL Tou qSlkoi/ toxjtoi/ Koyov,

a v\}v o(ip€iX.co 8ià (re, toOtoov tcov xp^wv ouK av aiToSoiTiv ov6' ai/ opoA.61/ oiJÔevi.

S trepsiades: S o if you le a rn fo r m e this u n just argum ent, then o f th ese debts that I ow e now o n account o f you,

I w o u ld n ’t h av e to p a y b ac k even an obol to anyone. {Ax.Nub.116-18).

The dramatic momentum of the Clouds is driven by the hero Strepsiades’ quest to evade payment of his debts in the jury court through the acquisition of rhetorical skills, as he states in the opening quotation. Todd has noted: ‘even the Clouds, which on one level is concerned with Sokrates as representative of the new-style intellectuals conventionally described as ‘sophists’, has nevertheless a strong legal flavour: Strepsiades’ whole aim in becoming a pupil of Sokrates is to win his lawsuits and get out of paying his d e b ts.T h is observation about the dramatic momentum of the Clouds suggests the posing of further questions, the most central being: what is the significance o f a clear connection being drawn between judicial practice and rhetoric within the context o f the dramatic festival in the late-fifth century Athens?^ There has been much recent scholarly interest in rhetoric,^ but little work on attitudes to the impact of the late fifth-century developments in rhetoric upon judicial practice,"^ the very issue which

1 T o d d (1993) 149. T h e connection betw een the ju ry courts an d rheto ric is ex am in e d in d etail in C hapter