Professions of Penia
by Athenian Litigants

Robert Nichols (Indiana University)

In the dynamics of the Athenian legal system, Josiah Ober highlights the existence of an unconventional strategy. In order to sway the jury’s vote, obviously rich litigants will often claim abject poverty in order to break down economic and social barriers between a predominantly lower-class jury and themselves. The litigant thus creates a ‘symbolic-bond’ of shared experience and suffering. In Ober’s view, such symbolic bonds outweigh considerations of truth and honesty: He argues that, in these cases, 1. The litigant is obviously wealthy and represents himself as poor, and 2. The jury would always know he is lying. According to Ober, the jury recognizes this type of approach and does not resent it. The audience must be willing to overlook the litigant’s blatant misrepresentation of wealth because of the symbolic ideology of Athenian democracy. This set of common beliefs, based on the relationship between status acceptance and political privilege, enabled Athens to maintain a crucial social stability.

This paper reconsiders such a tactic and examines the limits of symbolic ideology in the courts. I argue that although some exaggeration was accepted, an Athenian jury would never allow for clear falsehood. A careful and perceptive audience would find such deception repulsive: A ‘fear of eloquence’ was firmly established in the minds of regular Athenians attending the jury courts, and whether as plaintiff or defendant, any speaker would immediately be under suspicion for acquiring the services of a logographer. Recent studies, especially those of P.J Rhodes and Lene Rubinstein, distance themselves from the symbolic and agonistic view of litigation and self-representation, advocating a legal system that did value the veracity of evidence. Rhodes contends that the seemingly irrelevant ‘digressions’ in speeches were more nuanced than originally thought, while Rubinstein argues that different legal procedures in both public and private law necessitated flexible tactics of persuasion instead of a defined set. Furthermore, Michael Gagarin has shown that the eikos arguments which dominated the courts during the 5^th century diminished in frequency during the 4^th century as a result of this ambivalence towards rhetorical flourishes and tricky talking. If the audience resented eloquence and flinched at deception, the question becomes whether or not the elite orator’s claim is accurate.

The corpus of orators includes several speeches where poverty is a genuine threat based on the circumstances which initially triggered the court case. In Demosthenes’ three speeches Against Aphobus, his childhood guardian who squandered his father’s inheritance, he begs the jury to pity him on account of his poverty which will prevent him from providing his sister with a sufficient dowry (28.19-21). Demosthenes is not commenting on his current financial state but rather anxiously anticipating the penalty (epōbelia) for bringing an unsuccessful dikē epitropēs (27.67, 69): Litigating in the Athenian court could be financially burdensome, ruining the fortunes of some men. There also exist cases where claims of poverty are hindered by an orator’s litigious reputation. Apollodorus’ own claims for himself and his children ([Dem.] 45.85) are stifled by his vitriolic attacks on his stepfather Phormio: The jury thought Apollodorus dishonest enough in his first attempt to force him to reopen the case later. The overall thought here is that Athenian citizens navigated a careful course to litigation.

This paper is to be set within this intellectual context in order to better articulate the language of litigation, the interests of the juries, and the functional framework of Athenian courtroom practice.

References:

Gagarin, Michael. “Probability and persuasion: Plato and early Greek rhetoric,” in Ian Worthington, ed. Persuasion: Greek Rhetoric in Action. London: Routledge, 1994. Pp. 46-68.

Ober, Josiah. Mass and Elite in Democratic Athens. Princeton, 1989.

Rhodes, P.J. “Keeping to the Point,” in Edward M. Harris and Lene Rubinstein, eds. The Law and the Courts in Ancient Greece. London: Duckworth, 2004. Pp.137-58.

Rubinstein, Lene. “Differentiated Rhetorical Strategies in the Athenian Courts,” in Michael Gagarin and David Cohen, eds. The Cambridge Companion to Ancient Greek Law. Cambridge, 2005. Pp.129-45.