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The Courtroom as Theater and the Theater as Courtroom in Ancient Athens

Published online by Cambridge University Press:  04 July 2014

Adi Parush
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To prevent any misunderstanding, I first would like to clarify that I am not a historian dealing with classical studies; my main disciplines are philosophy and law. However, following a seminar I gave dealing with several philosophical-legal aspects of Greek tragedy, and an article I wrote about the relationship between the concept of guilt in Oedipus Tyrannus and the principle of strict liability in modern criminal law, I have found myself in recent years becoming increasingly interested in the unique culture which emerged in Athens during the classical period, particularly in the 5th century BCE. In the course of that century, Athens was involved in many wars – against the Persians in the early decades, against Sparta (the Peloponnesian War) in the latter decades, and other “minor” wars. And yet despite these wars, during the 5th century BCE Athens was in a state of cultural-social-political ferment that left its mark on the whole history of western culture. In the course of that century, there was in Athens a burgeoning of independent-critical thought in the philosophical domain, nature and medicine were systematically studied, tragedies by the Athenians Aeschylus, Sophocles and Euripides were written and performed, and the democratic regime took shape.

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Articles
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Israel Law Review , Volume 35 , Issue 1 , Spring 2001 , pp. 118 - 137
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Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2001

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References

1 Parush, A., “Law and Literature: Guilt, Intentions and Results in the Tragedy Oedipus Tyrannus”, 24 (2000) Tel-Aviv University Law Review 15–80 (in Hebrew)Google Scholar.

2 Camus, A., The Stranger, Trans, by Gilbert, S. (New-York, 1954)Google Scholar.

3 On the development of this theory and its applications to various areas of social activity, see: Hare, P. and Blumberg, H., Dramaturgical Analysis of Social Interaction (New-York, 1988)Google Scholar; Schechner, R. and Apple, W. (eds.), By Means of Performance (Cambridge, 1993)Google Scholar.

4 On the number of judges in the various courts in Athens see: MacDowell, D., The Law in Classical Athens, (London, 1978) 34, 116–7Google Scholar and see also: Hansen, M., The Athenian Democracy in the Age of Demosthenes, (Oxford, 1992) 186–188Google Scholar.

5 On this topic see: Todd, S., The Shape of Athenian Law (Oxford, 1995) 81–83Google Scholar.

6 For a detailed description of these lots see the following book attributed to Aristotle: Constitution of Athens, chapters 63-65 and see also D. MacDowell; supra n. 4, at 35-40 and Hansen, supra n. 4, at 181-183, 197-199.

7 The judges' ruling was made in the form of a vote on two jugs, which were placed inside the courtroom – one jug was meant for the judges who thought that the plaintiffs position should be accepted, and another jug was for those who thought it should be rejected. Unlike today's judges the Athenian judges were not required to give reasons for their rulings, and unlike the jury of today, they did not have a private discussion before voting. On the voting method of the Athenian courts see Aristotle, Constitution of Athens, supra n. 6, chapters 66-69.

8 Plato, , Laws, 876dGoogle Scholar. The numbers appearing after the ancient Greek books in the footnotes refer to the line or paragraph numbers in most of the various editions of these books.

9 Thucydides, The Peloponnesian War, Book II, chapters 35-37.

10 Thucydides, The Peloponnesian War, Book I, chapter 77.

11 Aristophanes, , Clouds, 206–208Google Scholar.

12 Aristophanes, , Birds, 32–41Google Scholar.

13 Aristophanes, , Wasps, 83-135, 386Google Scholar.

14 Aristophanes, ibid., at 548-575.

15 We know about this compensation from, inter alia, Aristotle. See his Politics, 1274a 8-9.

16 Thucydides, The Peloponnesian War, Book I, chapter 77.

17 Burckhardt, J., The Greeks and Greek Civilization, Tran. Stern, S. (Harper, 1998)Google Scholar. See also Dover, K., Greek Popular Morality in the Time of Plato and Aristotle (Berkeley, 1974) 229–234Google Scholar.

18 See the work of the young Nietzsche, F. Nietzsche, Homer's Contest, in Levy, O. (ed.), The Complete Works of Friedrich Nietzsche, Vol II (New-York, 1964) 49–62Google Scholar. Many scholars have pointed to various aspects of the agonal element in ancient Greek culture. P. Cartledge even ascribes an “agonal mentality” to the ancient Greeks. See Cartledge, P., “Deep Plays: Theater as Process in Greek Civic Life” in Easterling, P., (ed.), Greek Theater (Cambridge, 1997) 11–16Google Scholar. See also K. Dover, supra n. 17.

19 On the nature of the competitive element of the great Dionysian festival and of other festivals see Osborne, R., “Competitive Festivals and the Polis”, in Sommerstein, A. (ed.), Tragedy, Comedy and the Polis, (Papers from the Greek Drama Conference, Nottingham, 1990) 21–37Google Scholar.

20 The agonal element in the speeches of parties with conflicting opinions finds expression even in the way Thucydides wrote his history. His book The Peloponnesian War (supra n. 9) is packed with descriptions of various historical figures competing and confronting each other by means of speeches reflecting conflicting opinions. See, for example, Book I, chapters 31-43, 67-87, Book III, chapters 36-48 (ibid.).

21 The image of the court as an arena for a wrestling match over several rounds appears, inter alia, in the description of the trial of Orestes in Aeschylus's play Eumenides at lines 589-590. In the dialogue Euthydemus Plato writes about sophists who excelled not only in sport contests in “armoured war” but also in “legal war” before the courts. They served as paid teachers of armoured war, but also taught others how to “give and compose speeches for the law courts”. See: Plato, , Euthydemus, 271c–272bGoogle Scholar.

22 On the use of these expressions by the orators Demosthenes, Lisias and others see Allen, D., The World of Prometheus (Princeton, 2000) 60, 353Google Scholar. The agonal nature of judicial proceedings in the Athenian courts already finds expression in Homer's Iliad in the picture of an ancient legal proceeding depicted on the shield of Achilles, the hero of the Trojan war. This proceeding is described as follows: “Meanwhile the people were gathered in assembly, for there was a quarrel, and two men were wrangling about the blood-money for a man who had been killed, the one saying before the people that he had paid damages in full, and the other that he had not been paid. Each was trying to make his own case good, and the people took sides, each man backing the side that he had taken; but the heralds kept them back, and the elders sat on their seats of stone in a solemn circle, holding the staves which the heralds had put into their hands. Then they rose and each in his turn gave judgment, and there were two talents laid down, to be given to him whose judgment should be deemed the fairest”. (Iliad, Book 18 lines 497-508). The exact nature of the dispute, which was the subject of this legal proceeding, is a controversial topic amongst scholars of ancient Greek law. (On this topic see MacDowell, supra n. 4, at 18-21 and also Carawan, E., Rhetoric and the Law of Draco (Oxford, 1998) 51–55Google Scholar, but for the purposes of our discussion it is sufficient to highlight the competitive, almost carnival-like nature of the legal proceeding depicted on Achilles' shield. It is interesting to note that the confrontation on which this proceeding was focused was not only between the parties to the dispute but also between the judges themselves, who competed with each other for the prize. The judicial proceeding which was depicted on Achilles' shield is different in many respects from the judicial proceedings that took place in classical Athens several hundred years after Homer, but the agonal element is also a prominent feature there.

23 On this subject and on the dispute among scholars about the attitude to the rule of law in classical Athens, see Lanni, A., Precedent and Reasoning in Classical Athenian Courts — A Noble Lie? (1999) The American Journal of Legal Studies 27–51Google Scholar.

24 “He (Solon) wrote the Laws using very vague, ambiguous language, thus increasing the powers of the courts, because the laws were not sufficient to resolve disputes, and so disputing parties had to have constant recourse to judges. Any dispute was brought before them and they were really the masters of the law”. (Plutarch, Lives, chapter XVIII).

25 Aristotle, , Rhetoric 1354a7Google Scholar. See also Aristotle, , Politics 1270b30Google Scholar. On the weight a judge should attach to considerations of justice beyond the law, see Aristotle, , Rhetoric, 1374a11–13Google Scholar.

26 On this point see S. Todd, supra n. 5, at 91-94.

27 On the limited functions of the police in classical Athens, see Hunter, V., Policing Athens, Social Control in the Attic Lawsuits (Princeton, 1994)Google Scholar.

28 On speechwriters for the court see Todd, supra n. 5, at 95-96 and also Scafuro, A., The Forensic Stage (Cambridge, 1997) 59–57CrossRefGoogle Scholar.

29 Aristotle, , On Rhetoric, 3.1. 4–5Google Scholar.

30 On this point see Hall, E., “Lawcourts Drama: The Power of Performance in Greek Forensic Oratory” (1995) Bulletin of the Institute of Classical Studies 46–50Google Scholar.

31 Plato, , Apology, 34d–35dGoogle Scholar.

32 On the activities of Antiphon and Aeschines in these two areas see the article by P. Cartledge, supra n. 18, at 15.

33 On this issue, see Nussbaum, M., Love's Knowledge, Essays on Philosophy and Literature (Oxford, 1990) 15–16Google Scholar.

34 On the special character of performances in the Athenian theater, see Arnott, P., Public and Performance in the Greek Theater (London, 1997)Google Scholar.

35 In my opinion, one of the weak points in Aristotle's statements about the nature of the tragedies lies in the fact that whereas he dwells at great length on topics such as the structure of the tragedies, the characters of their heroes and their emotional effect, he did not sufficiently expound on the views of the world, society and man which are suggested by the various tragedies.

36 On Brecht's attack on the traditional theater (“the dramatic theater”, as he called it), which, in his opinion, relies on the attempt to turn to the emotions of the audience in a way that neutralizes their power of critical thought and judgment, and on the importance he attached to the “alienation effect” (“Verfremdungseffekt”) in the revolutionary “epic” theater, which he supported, see Brecht, B., “Little Organon for the Theater”, in Brecht on Theater, Willet, J. (ed.), (New York, 1964)Google Scholar.

37 On the audience of the Athenian theater see S. Goldhill, “The Audience of Athenian Tragedy”, in Greek Tragedy, P. Easterling (ed.), supra n. 18, at 54-68.

38 On this point see Garner, R., Law and Society in Classical Athens (London, 1987) 96–130Google Scholar. On the role of material from the legal world in the tragedy Oedipus Tyrannus by Aeschylus see my article, supra n. 1.

39 The agonal principle, which characterizes litigation in a law court is especially reflected in the tragedies of Euripides, but is also prominent in the tragedies of Aeschylus and Sophocles. On this point see Lloyd, M., The Agon in Euripides (Oxford, 1992)Google Scholar; S. Goldhill, “The Language of Tragedy: Rhetoric and Communication”, in P. Easterling (ed.), Greek Tragedy, supra n. 18, at 132-150.

40 Some are of the opinion that the role of the choir in the Greek tragedy was not essentially different from that played by the judges-jury in the court, and indeed in many cases the choir expresses its opinion about the behaviour of the heroes in the tragedy and judges them for better or for worse. At the same time, it is important to remember that the choir sometimes interrupts the continuity of the plot with questions or expressions of views, and sometimes even changes its opinion as the plot develops, whereas the judges-jury did not have the authority to intervene in the course of a trial, and they were only entitled to adopt a position and make a ruling at the end of the trial.

41 On several attempts to deduce general jurisprudential lessons from the Greek tragedies about the function and limitations of the court see Gewirtz, P., “Aeschylus Law”, (1988) 101 Harvard Law Review 1043–1055CrossRefGoogle Scholar; Luban, D., “Some Greek Trials: Order and Justice in Homer, Hesiod, Aeschylus and Plato”, (1987) 54 Tennessee Law Review 279–325Google Scholar. I discuss these articles and express reservations about several of the contentions contained therein in my article “Revenge, Justice and the Role of the Court in Aeschylus' Eumenides” 18(1) Mechkarei Mishpat 147–212 (2002)Google Scholar.

42 Rosenzweig, F., The Star of Redemption, Trans, by Hallo, W. W. (London, 1971) 77Google Scholar; Benjamin, W., The Origin of German Tragic Drama (London, 1977) 106-113, 115–116Google Scholar.

43 Sartre on Theatre, Contat, M. and Rybalka, M. (eds.), (London, 1976) 126–7Google Scholar.

44 On Hegel's outlook on the tragedy see Hegel on Tragedy, Paolucci, A. (ed.), (New York, 1962)Google Scholar.

45 On the imperfect personality of the hero in the tragedies see Aristotle, , Poetics, 1452b27–1453a30Google Scholar.