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Notes
*This paper arose out of contributions to multi-disciplinary conferences in Manchester (on The Trial in History), and in Berlin (on The Body and Law). A German version has appeared in the Berlin conference proceedings (in L. Schwarte & C. Wulf, eds, Körper und Recht: Anthropologische Dimensionen der Rechtsphilosophie, Munich, Wilhelm Fink, 2003, pp. 69–91), but I am grateful to the editorial board of this journal for encouragement to publish a slightly updated English version as well. My thanks are also due to the organisers of both conferences, to my fellow participants on both occasions for lively and stimulating discussion, to Paul Millett and Robin Osborne for specialist advice, and to my current and former Manchester colleagues Alison Sharrock, David Langslow and Janet Sullivan for additional bibliographical assistance. Throughout this paper, Greek names and technical terms have been transliterated rather than Latinised (i.e. Sokrates rather than Socrates).
[1] Recent discussions of the justice or injustice of the trial and execution of Sokrates include CitationStone, Trial of Sokrates; Brickhouse & Smith, Sokrates on Trial; and CitationHansen, Trial of Sokrates. The last of these focuses explicitly on the question, ‘Was the trial of Sokrates a disgrace to Athenian democracy, or was it an understandable and perhaps even justifiable treatment of a person who constituted a threat to the Athenian constitution?’ (Hansen, Trial of Sokrates, 3).
[3] Thus e.g. CitationLipsius, Attische Recht, vol. 3, pp. 942–52 at p. 946, and CitationHarrison, Law of Athens, vol. 2, pp. 168–79 at p. 177, both of whom do consider imprisonment, but briefly, in the context of much more extensive discussion of other penalties. A similar view is taken by CitationMacDowell, Law in Classical Athens, pp. 254–58, who at p. 256 describes imprisonment as ‘less often used as a penalty than in modern times’. The definitive treatment of atimia (loss of civic rights) is CitationHansen, Apagoge. On penalties for slaves, see CitationHunter, Policing Athens, pp. 155–84.
[4] CitationAllen, ‘Imprisonment’, esp. p. 135. Her broader views on punishment are set out in CitationAllen, World of Prometheus. The most notable of earlier challenges is CitationBarkan, ‘Imprisonment.’
[5] CitationHunter, ‘Prison of Athens’, p. 307. The obvious example of imprisonment while awaiting execution is the case of Sokrates himself. Athenian citizens do not normally seem to have been imprisoned while awaiting trial, but it could be used in certain cases (e.g. that of the non-citizen Euxitheos in Ant. 5.17, on which see Hansen, Apagoge, pp. 22–24). For the imprisonment of undischarged state debtors, see Dem. 24.39 with 24.41, Dein. 2.13–14, and (if genuine) the law cited in Dem. 21.47.
[6] CitationTodd, ‘How to Execute People’, esp. pp. 31–33, in a paper which seeks to explore the rationale behind the existence of alternative execution methods and the significance of their patterns of use. On the effects of hemlock, see the discussion of Gill, ‘Death of Sokrates’, at n. 10 below.
[7] For the idea of permissive suicide (‘suicide par tolérance’), see originally CitationGernet, ‘Exécution Capitale’, p. 182. Returning the body to the relatives seems to have been normal at Athens at least where hemlock was involved (cf. Lys. 12.18), though the position with apotumpanismos is less clear. There are certainly some cases in which execution was accompanied by ataphia (denial of the right of burial in Attica, used e.g. in cases of treason, as at [Plut.] Life of Antiphon, 843b1–2, though the method of execution here is unknown): it is not clear whether the relatives did recover the corpse in such circumstances – on this question see most recently CitationHarris, ‘Antigone the Lawgiver’, pp. 37–39 – or whether it remained in some sense the property of the polis, but at the very least the term ataphia implies clear restrictions on what they could do with it.
[8] Plato, Phaedo, 61e5–62c8, esp. 62b3–6 (though see Burnet's commentary on the ambiguity of phroura here).
[9] The tendency of Athenian writers to use euphemisms (‘the ultimate penalty’, etc.) when referring to executions is discussed in Todd, ‘How to Execute People’, pp. 36–37, with refs. See also Todd, Plato, Phaedo, pp. 44–45, on the link between the absence of euphemism at Lys. 13.67–68 and the allegedly servile status of the victim in this case. The claim that it is characteristic of slaves that they are ‘answerable in the body for all offences’ is stated at Dem. 22.55, and repeated at Dem. 24.167.
[10] Thus CitationGill, ‘Death of Sokrates’, p. 27. His view of the symptoms of hemlock has however been challenged on literary grounds by Hansen, Trial of Sokrates, pp. 32–33; and for medical reasons by CitationSullivan, ‘Death of Sokrates.’ It should perhaps be noted, however, that even on Gill's reading, apotumpanismos will have been considerably less pleasant (CitationTodd, ‘How to Execute People’, p. 33).
[11] At least if we exclude a small section where Plato has him cross-questioning his opponent Meletos, the main prosecutor. Although witnesses could not be cross-examined, Athenian law permitted litigants to cross-question each other: for a discussion of this phenomenon, known as erôtêsis, see CitationTodd, ‘Advocacy’.
[12] The size of the jury, and the voting figures at Sokrates' trial (conviction by c. 280–220) are inferred from a combination of Plato, Apology, 36a5–8 (which claims that he would have been acquitted if 30 votes had gone the other way), and Diogenes Laertius, Life of Sokrates, 2.41 (assuming that the latter's reference to a majority of 281 is a simple confusion for a vote of 281, which seems to be the view of Burnet, Plato's Euthyphro, pp. 150–51). The value of Diogenes' figure is however doubted by Hansen, Trial of Sokrates, p. 18 n. 82, and by CitationBrickhouse & Smith, Sokrates on Trial, p. 26 n. 88: see further n. 26 below.
[13] The evidence for jury selection comes from other sources: for a survey of what is known about the system at this period, see CitationBoegehold, Lawcourts at Athens, pp. 31–34.
[14] My views on this question are less firm than those of CitationHarris & Rubinstein (Law and the Courts, p. 18), who speak of the term dikastês as being ‘often mistranslated “juror” by modern scholars'.
[15] One of the implications of the absence of jury discussion is explored at n. 44 below.
[16] Modern scholars tend to cite the term dikê or graphê usually with an accompanying Greek genitive to denote the charge: thus e.g. dikê blabês (private prosecution for damage), or graphê asebeias (public prosecution for impiety). Athenian usage may not have been quite so formal (they often use the verb e.g. graphomai where we use the noun graphê: CitationTodd, ‘Language of Law’, p. 33), but they do seem to have insisted that you could only initiate a procedure if you could persuade the presiding official that there was a statute permitting its use in such circumstances (this could lead to creative definition, as at Lys. 13.85–87).
[17] Including e.g. eisangelia (impeachment) and apagôgê (summary arrest), which shared some though not all of the procedural characteristics of graphai (crucially, the fact that any citizen could initiate them).
[18] Uniquely but logically: a successful homicide is something for which the immediate victim cannot by definition personally initiate litigation, but it is striking that the Athenians seem to have regarded homicide primarily as a personal or family matter, rather than as an offence against the community and therefore normally subject to a graphê.
[19] The case against the use of the term ‘state’ is well summarised by CitationCartledge, ‘Archaic and Classical Greece’, pp. 17–20, who notes the absence in antiquity of concepts such as separation of powers, the loyal opposition, and indeed of ‘the government’ (conceived of as a group of people holding official posts with continuity of policy, as opposed to ‘government’ as an activity). It is the absence of the state which has caused most subsequent scholars to retreat from Calhoun's description of graphai as ‘criminal’ prosecutions (CitationCalhoun, Growth of Criminal Law).
[20] Usually though not always ‘any citizen’ (ho boulomenos tôn Athênaiôn).
[21] The physical layout of Athenian courts is discussed in Boegehold, Lawcourts at Athens, pp. 9–16 (‘structures that can be interpreted as lawcourts’), pp. 91–113 (‘court sites’), and pp. 192–208 (‘testimonia: architectural requirements’). For the importance of spectators, see CitationLanni, ‘Spectator Sport’.
[22] This explanation for holding homicide trials (unlike apagôgai) in the open air is stated by Ant. 5.11, but is doubted by the most recent commentator (CitationGagarin, Antiphon, p. 182).
[23] Personal enmity in trials: CitationRhodes, ‘Enmity’, and CitationKurihara, ‘Personal Enmity’.
[24] On teams of prosecutors, see CitationRubinstein, Litigation and Cooperation, discussed further at n. 42 below.
[25] It is indeed logistically difficult to see how a jury of this size voting without formal discussion could easily have done so: a point noted already in antiquity by Aristotle, Politics, 1268b4–11.
[26] Diogenes Laertius, Life of Sokrates, 2.42, speaks of there being eighty more votes for the death sentence at the timêsis (the voting over the penalty) than for the original verdict, which would imply a voting figure of c. 360–140 if it means additional votes for the prosecution, or possibly c. 320–180 if it means a larger majority (I do not understand why CitationBurnet, Plato's Euthyphro, p. 161 speaks of it as evidence for 300–200). It should however be noted that Diogenes is the only evidence for this increase in the vote against Sokrates, and his reliability is doubted by Brickhouse & Smith, Sokrates on Trial, pp. 230–32.
[27] Brickhouse & Smith, Sokrates on Trial, pp. 234–35, point out that there is no conclusive evidence against the possibility of such a third speech, but this is not a very strong positive argument.
[28] ‘Literary’ in the sense of being a fiction. It is perhaps worth noting that whereas Plato claims to have been present at the trial (Apology, 38b6) though not at the execution (Phaedo, 59b10), Xenophon seems not even to have been in Athens at the time (he left to join Cyrus' expedition in 401 and did not return before the 360s). Sokrates' trial appears to have attracted the authors of literary pamphlets in the period after 399, but all the others are lost: in addition to Xenophon and Plato, we hear of another defence speech by Lysias and a prosecution speech by an otherwise unknown Polykrates.
[29] There is overall much less sense of the dramatic background to the trial in Xenophon's text than in Plato's, not least because Xenophon's Sokrates only speaks as if in court at §§11–21 and §§24–26. Interspersed with these passages are Xenophon's own discussions of the defence strategy, including his opening report of a previous conversation between Sokrates and Hermogenes (§§1–10), in which Xenophon admits to being puzzled by Sokrates' lack of a credible defence strategy, but seeks to explain it by showing that he regarded death as preferable to old age.
[30] It is worth noting the argument of CitationOldfather, ‘Sokrates in Court’, who infers from a throw-away remark in Plato, Gorgias, 486b that Sokrates may have delivered no coherent defence at all.
[31] The rhetorical aspects of Plato's Apology are played down by Brickhouse & Smith, Sokrates on Trial, for whom the text represents an honest, sincere and non-ironic attempt to answer the charges: see however the final paragraph of Rowe's review in Journal of Hellenic Studies, 114 (1994), pp. 191–92.
[32] It is perhaps worth noting that Isokrates (fourth century orator) and Sokrates (fifth century philosopher) are not related. By the time of Aristotle, rhetorical theorists divided speeches into three classes: forensic (delivered to a law court), demegoric or symbouleutic (delivered to a legislative assembly), and epideictic (written for display). The analytical utility particularly of the third of these categories is debatable – it can cover the range from short and light-hearted encomia (like Isok. 11 Busiris) to serious and extended propaganda pamphlets written as rhetorical exercises in the form of a forensic speech (like Isok. 15 Antidosis) – and it is not clear how far it would have been recognised by earlier practitioners.
[33] On teams of prosecutors, see Rubinstein, Litigation and Cooperation, cited at n. 24 above and discussed further at n. 42 below. For the prevalence of advocacy in Roman law, see generally CitationCrook, Legal Advocacy: part of the rhetorical strategy of a Roman advocate like Cicero, where appropriate, is precisely to emphasise his own political relationship as the patron of his client, in a way that is not paralleled at Athens (see e.g. Cicero, Pro Caelio, §§6–14).
[34] For the term ‘focalisor’, see e.g. CitationBal, Narratology, pp. 102–06. For further discussion of Lys. 1 and the role of narrative, see pp. 68–70 of this paper.
[35] This has in the past been doubted, e.g. by CitationDarkow, Spurious Speeches, who regarded all the speeches of Lysias as formally fictitious (starting apparently from the premise that this is what successful characterisation involves).
[36] Dem. 25.60–62. (There are other reasons for doubt over this speech: see most recently the detailed defence of its authenticity by Hansen, Apagoge, pp. 144–52.) Other speeches where the authenticity of occasion has been repeatedly contested include Lys. 6 and Dem. 29. Authenticity of authorship (the question of whether the speech is written by the orator to whom it is attributed) is much more uncertain, but for historical purposes less significant (cf. n. 40 below).
[37] See the analysis by CitationDover, Corpus Lysiacum, pp. 168–69, who notes that Aiskh. 2.10, 2.86, 2.124, and 2.156 each make a claim about something that Demosthenes had allegedly said but which is not found in our texts of Dem. 19; similarly the relationship between Dem. 18.95, 18.238, and our texts of Aiskh. 3.
[38] CitationHarris, Aeschines, p. 10, n. 6, with a detailed discussion of Aiskh. 2.124 and 2.156, though this explanation does not work so well for Dover's other examples. Like Harris (Aeschines, p. 9, n. 5), though for different reasons, I am sceptical about the views of CitationWorthington, ‘Revision of Speeches’, who deduces extensive post-trial revision from the ring composition that he detects in the speeches: ring composition is in my view something that scholars tend to read into the texts whether or not it is there to be found.
[39] For the broader context of this phenomenon, see Dover, Corpus Lysiacum, pp. 169–70.
[40] In addition to what follows, it may also have encouraged misattribution of authorship (logographic speeches tend to attract famous authors), but for most historical purposes this is less important than authenticity of occasion, and so is not discussed in this paper.
[41] There are some exceptions, most notably the two perfect pairs where we have the main speech on each side (Dem. 19 plus Aiskh. 2, Aiskh. 3 plus Dem. 18, cf. n. 37 above). There are also several imperfect pairs, where we have either the main speech on one side plus a subsidiary speech from the other (Andok. 1 plus probably Lys. 6), or alternatively speeches from both sides of a single dispute but in successive stages of litigation (Isai. 11 plus Dem. 43 a generation later, and Dem. 36 plus Dem. 45–46).
[42] Rubinstein's recent emphasis on team litigation (for which see n. 24 and n. 33 above) may cast doubt on one of the traditional grounds for such inference, namely the argument from a speaker's failure to confront points which (on Rubinstein's model) may instead have been covered by one of his sunêgoroi or supporting speakers.
[43] In the 28 cases represented by the forensic speeches of Lysias, for instance, we know the outcome only of three: Lys. 6 (if genuine, cf. n. 36 above: opponent's acquittal inferred from external evidence about his subsequent career); Lys. 26 (opponent's success inferred from the external evidence of the arkhon list), and Lys. 28 (opponent's conviction inferred from the fact that Lys. 29 belongs to a follow-up case).
[44] The absence of formal discussion (cf. p. 65 of this paper) means that this probably would not have been knowable even to contemporaries.
[45] The role played by private as well as official arbitration at Athens has been emphasised particularly by CitationScafuro, Forensic Stage, pp. 117–41. I am less convinced by the arguments of CitationCarawan, Rhetoric, who infers from surviving homicide speeches that there had been extensive and sophisticated jurisprudential argument during the various pre-trial procedures specific to homicide law.
[46] There are some exceptions, particularly in the Demosthenic corpus, where certain speeches do contain what purport to be the texts of documents cited at the trial. Scholars generally now agree that some of these texts are genuine, but others not: for a good discussion of the problems in determining the genuineness of the documents in one particular speech (Dem. 21), see CitationMacDowell, Demosthenes Against Meidias, pp. 43–47.
[47] The former view is restated by CitationCarey, ‘Legal Space’, pp. 183–84, arguing against both CitationHumphreys, ‘Social relations’, and CitationTodd, ‘Purpose of Evidence’.
[48] The role of statute as a source of law at Athens is discussed in p. 70 of this paper.
[49] For the terms ‘forensic’, ‘demegoric/symbouleutic’, and ‘epideictic’, see n. 32 above.
[50] The anecdote about Aesop at Samos defending a demagogue on trial for his life (Arist., Rhet., 2.20.6=1393b22–94a1) almost certainly falls within the category of rhetorical topos; so too I suspect the one about ‘the Spartan at his euthunai for his ephorate’ (Rhet., 3.18.6=1419 a31–35).
[51] For Leodamas and Thrasyboulos, see Arist., Rhet., 2.23.25=1400a32–36, with CitationTodd, Speeches of Lysias, p. 273. The story about Mantias the orator (at Arist., Rhet. 2.23.11=1398b2–3) may similarly relate to the previous litigation which is alluded to in Dem. 39–40.
[52] Arist., Rhet., 1.15.13–14=1375b26–76a7. Later rhetorical theorists can be similarly casual about legal technicalities: Syrianus, Commentary on Hermogenes' Staseis, §157, for instance, reads Aiskh. 1 as being a paragraphê. (Since paragraphê is a procedure allowing the defendant in certain forms of private case to charge his opponent with bringing an illegal prosecution, this is juridically false, because Timarkhos' case against Aiskhines was a public one, but it is rhetorically apt in that Aiskhines' prosecution of Timarkhos fulfilled the same argumentative function of pre-emptive counter-attack.)
[53] The Iliad is cited on twenty-four occasions in Aristotle's Rhetorika, and the Odyssey on a further ten.
[54] There is – perhaps surprisingly – nothing from Aeschylus, but Sophocles is cited on five occasions (from 4 plays, 2 of them fragmentary), and Euripides on seventeen (from seven extant and a further six lost plays). Even such a minor tragedian as Karkinos, all of whose work is now lost, merits two citations.
[55] For the chronological relationship between Demosthenes and Aristotle, see the discussion by CitationCope Aristotle's Rhetoric, pp. 45–47. The Rhetorika is generally placed during Aristotle's periods in Athens, either before 347 bc or after 335, but as Cope notes, even proponents of a pre-347 ur-version of the Rhetorika would accept that changes were made until at least 336. The point can indeed be pressed further: one of the speeches that Aristotle does cite repeatedly is Isok. 5 Philip, written as late as 346, by which time Demosthenes had already made a name for himself with the Olynthiacs and First Philippic.
[56] Lys. 34.11 at Rhet., 2.23.19=1399b16–18 (with minor changes in phrasing), and probably also Lys. 2.60 at Rhet., 3.10.7=1411a30–33 (with a more substantial change). There is an apparent reminiscence (possibly an inaccurate quotation) from the forensic speech Lys. 12.100 at Rhet. 3.19.6=1420a6–8. None of the three is attributed to Lysias by name, whereas the name of Isokrates (see following note) appears thirteen times.
[57] On the frequency and favourable tone of the citations from Isokrates in Aristotle's Rhetorika, see Cope, Aristotle's Rhetoric, pp. 41–42. It is notable that Aristotle refers repeatedly to particular speeches (especially Isok. 4 Panegyric, Isok. 5 Philip, and Isok. 8 On the Peace); and that unlike the citations from Homer and the tragic poets, his references to Isokrates all occur in the third book of the Rhetorika.
[59] A significant exception to what is said here about the ancient rhetorical theorists' lack of interest in oratorical practice is Dionysios of Halikarnassos. It should, however, be noted that although Dionysios is very interested in the orators as models of style, his essays nevertheless fall outside the tradition of rhetorical tekhnai (for which cf. the beginning of this section of the paper).
[60] For this view of rhetoric, see e.g. Ober, Mass and Élite, pp. 43–49; and CitationGoldhill, Reading Greek Tragedy, pp. 201–02.
[61] Keleuô (‘to command, order’) is used of legal statutes at Lys. 1.27, 1.32, 1.34, 1.35, 1.49; and cf. the use of peithomai (‘to obey [sc. the laws]’) as final word of speech at Lys. 1.50.
[62] The key figure here is CitationMeyer-Laurin, Gesetz und Billigkeit.
[63] Laws as evidence: Arist., Rhet., 1.15.1=1375a23–25. For a legal realist perspective (i.e. that the law is what the court decides it is), see CitationTodd, Shape of Athenian Law, pp. 54–55 and 58–60, which discusses several earlier treatments of the topic. CitationHarris, ‘Open Texture’, offers a detailed and nuanced critique of this position, with further refs.
[65] Thus e.g. Dionysios of Halikarnassos, On Lysias, §§18–19.
[66] For these terms, see CitationGenette, Narrative Discourse. CitationGoldhill, Invention of Prose, pp. 62–65, offers a recent and stimulating reading of the strategies with which Euphiletos is represented in this speech.
[67] CitationWilamowitz, ‘Lesefrüchte 171’, p. 60. It is perhaps worth noting that the linguistic parallels between §§39–40 and §23 are never verbatim repetition, which suggests that the reminiscences are conscious rather than clumsy.
[68] See p. 67 of this paper at n. 34 above.
[69] See most notably CitationOber & Strauss, ‘Drama’, and CitationHall, ‘Lawcourt Dramas’. Forensic oratory is the subject of no fewer than three of the essays (those by Easterling, Hesk and Ford) in CitationGoldhill & Osborne's recent collection of essays entitled Performance Culture and Athenian Democracy.
[70] CitationBers, ‘Just Rituals’, p. 557, emphasising in particular the extent to which the procession was managed by the jurors themselves rather than by officers of the court.
[71] For example Lys. frag. Eryximakhos, lines 65–74. For a more circumspect appeal (but by a liturgist who has massively overspent), see Lys. 21.1–14.
[72] On the presence of women, see CitationGoldhill, ‘Representing Democracy’, though the question is contested.
[73] See e.g. CitationOber, Mass and Élite, p. 145.
[74] Plutarch, De Garrulitate, §5= Moralia, 504c5–10. For the implications of this story for the relationship between logographer and client, see CitationUsher, ‘Lysias and His Clients’, p. 34.