Photo: Close Up of Themis Statue with Justice Scales on Bright Background by Zhane Luk
In the Courts: The Rhetoric of Athens and Today
Rhetoric’s Precedence over Evidence in Classical Athenian Courts
By Lauren Davis
To many modern audiences, the charm of Ancient Greece lies in its image as an overflowing fountain of artistry and expression, the pantheon they worshipped a lingering memory of their magnificence. Their culture is, in some aspects, timeless—American architecture, literature, and language all a reflection of this ancient world. Yet even this highly romanticized view of our predecessors barely begins to skim the surface of how deeply embedded the arts were in daily life, particularly in the Classical Athens of the 5th and 4th centuries B.C.E. The Athenians are especially associated with rhetoric, which they employed as a means of exhibiting the dramatic and tragic works like those of Aeschylus and Sophocles, a strategy we still use in literature today. But in Classical Athens, rhetoric was not only useful in artistic endeavors such as playwriting; importantly, rhetoric held particular sway in Athenian courts, often at the expense of a fair trial. Furthermore, rhetoric’s unsavory legacy still persists in the courts of today.
II. The Performance of Rhetoric in Athenian Theaters and Courts
Court debates were of both practical and entertainment value; like a play, scenes were acted out to an audience of many, both prosecutor and defendant making their cases with invigorating energy. Demosthenes, in a commentary on the theatrical nature of the Athenian courts, “compare[d] the assessment of an orator’s skill with the judgements passed on playwrights, choruses, and athletics” (Hall 1995, 39), revealing the artistry hidden within the aspects of life that would—to a modern audience—seem anything but artistic. Both court debates and theater shows, for example, relied on a stage, an audience, characters, costumes, elocution, emotion, and often the trademark elements of either tragedy or comedy (Hall 1995). All of these pieces fit together to create a performance, which, in Athens, always aimed to move the audience in some way.
Rhetoric was indeed a techne, an art, but it also had meaningful purpose in decision-making, primarily in the courts. Rhetoric was the motivation behind an action, and the ethics behind the motivation (Porter 2020, 16). Ancient Athenian courts relied on rhetoric so heavily because of their construction. Within its new democracy, the Athenian demos (citizens, which were limited to free Athenian-born men) were the driving force behind legal decisions, for it was they who were elected to the Ekklesia (Assembly) and selected by lot to the Boule (Council), the two primary delegations that oversaw important decisions in citizen affairs. Citizens—varying from numbers of 500 to 1,500 (McInerney 2018, 203)—were also chosen by lot to participate in court hearings as juries, thus maintaining the democratic ideal of anonymous citizen participation in many aspects of daily life. This mass participation of randomly-allotted jury seats led court debates to be impassioned performances in which rhetoric often took greater precedence than evidence in swaying the audience. Consequently, because of this enormous impact of performance and spoken words, developing strong skills in rhetoric became essential to finding success in court (Yunis 2005, 192). But these debates were more than just a performance, for their successes or failures could result in verdicts as harsh as exile or even death.
One such instance of these intense-yet-expressive debates is Demosthenes’ 330 B.C. speech On the Crown, in which Demosthenes (384-322 B.C)—one of the greatest known orators of Ancient Greece—defends his reputation and loyalty to the state against the word of Aeschines, a politician and actor who had been conducting peace negotiations with Philip II of Macedon against the wishes of a large portion of the Athenian people, including Demosthenes (Britannica 2019). In On the Crown (one of a series of speeches against Aeschines), Demosthenes makes use of his rhetorical skill to slander his opponent, shaming him with discussion of “. . . [his] father, Tromes, who was a slave in the house of Elpias. . . . [and his] mother, . . . [who] ran a love chapel by the hour in a lean-to near the shrine of the Hero Kalamites . . .” and concluding with a direct insult to Aeschines himself: “. . . the finest hack actor ever” (Dem. 18.133, trans. McInerney 2018, 203). To bring up one’s relation to a slave (along with having a scandalous mother and being accused of poor oration and acting) would effectively deliver a severe blow to one’s reputation. Therefore, Demosthenes, clearly experienced in judiciary oration, shares this with the jury, drawing their attention toward the shortcomings of his opponent and effectively diverting their judgments from his own flaws. Taking this further, both Demosthenes and Aeschines, in their many debates against each other, used the rhetorical tactic of “swift-boating,” which, as explained by Brad L. Cook, Associate Professor of Classical Studies at the University of Mississippi, is the “blanket condemnation of a person’s entire character on the basis of one alleged utterance or deed that is of great moral and/or socio-political bearing” (2012, 222). Because Athenian trials did not base the decisions of the jury on evidence, it was incredibly impactful for a man to announce a particularly prominent claim of his opponent’s failure of nobility and lack of honor. Nancy Worman, Professor of Classics at Columbia University, elaborates on this tactic, noting that their claims “. . . were not only openly slanderous but often hilariously exaggerated, drawing on gossip and hearsay and deploy[ed . . .] strategically until [they] mounted incrementally to the most serious accusation: that the man in question had behaved in a manner unbefitting of an Athenian citizen” (2004, 1). Demosthenes surely made use of this in his exaggeration of Aeschines’ faults and those of his parents in their prior state of poverty. But Aeschines, likewise, employed his own skill with words to combat the slandering of his virtue at the hands—or mouth, rather—of his rival in his speech Against Timarchus. According to Worman’s Insult and Oral Excess in the Disputes between Aeschines and Demosthenes, the primary focus of Aeschines’ attacks against Demosthenes was Demosthenes’ lack of masculinity. This ranged from his “unpleasantly high-pitched voice” to his clothes (“silken, luxurious clothes, which […] could not be distinguished from a woman’s in their softness”) to even the suggestion of his being a prostitute (Aeschin. 1.13-1.14, trans. Adams 1938, 14-15). In watching these debates, the jury would become excited and intrigued, highly invested in who would emerge victorious from the battle of words and wits presented before them. For them, it seemed to be less about “right” and “wrong,” and more about being entertained while deciding a punishment or reward (based on the case at hand) from the level of excellence in the performances they witnessed on the court floor.
Even in less theatrical debates, where laws were more of a central participant in discussion, for skilled orators like Demosthenes, a well-timed and flawlessly-executed show of rhetoric and intelligence could still catch the jury’s attention, guiding their focus to his tactical slander and willfully shifting the tide of the case in his favor. This can be seen when the orator Ctesiphon proposed the council crown Demosthenes for his public service in the Battle at Chaeronea in 338 BC, a tide-turning battle between the Athenians and Thebians on one side and the Macedonians on the other. Notably, Aeschines steadfastly opposed this motion in his speech Against Ctesiphon. Being the accuser, Aeschines began his argument by first imploring his “fellow citizens” to place their faith in “law and justice” rather than any “scheming preparation” of rhetoric and emotional appeal the defense may present (Aeschin. 3.1, trans. Adams 1938, 308-315). He continued by approaching every point with legal backing and relying on the aforementioned duty of the people to do right by the law. His first example — followed by an abundance of others — he explained with “a most excellent law […] which expressly forbids crowning men before they have passed their final accounting.” However, he continued, Demosthenes had not yet been subject to audit, therefore making Ctesiphon’s motion illegal (Aeschin. 3.11-3.12, trans. Adams 1994, 316-319). Demosthenes, on the other hand, in his argument of defense resorted to a much briefer and more rhetorical rebuttal, structuring his argument so as to incite a passion in his audience rather than lay out a series of inexpressive laws and terms. His introductory tactic, though similar to Aeschines (in that they both call upon the citizens of Athens), was void of legal mention; he flooded his speech instead with words of encouragement and faith — “Let me begin, men of Athens, by beseeching all the Powers of Heaven that […] I may find in Athenian hearts such benevolence . . .” and “My next prayer is for you, and for your conscience and honor. . . .” (Dem. 18.1, trans. Vince 1926) — that managed to rouse and move his audience more than the static factual basis of Aeschines’. Demosthenes’ victory in this was but one case of “the triumph of rhetoric over law” (Harris 1994, 141).
III. The Legacy of Rhetoric in Modern Courts
With this Athenian preference of expression over fact comes a thinking point for modern societies to reflect upon. Though many look to Classical Athens as an ideal, the current discussion presents the legal scene of Athens as a cautionary tale to modern civilizations. Emphasizing the extremity of the lack of judicial structure and formality in the Athenian courts, even some Athenians of the time felt that the courts were insufficient in justly carrying out the law. Isocrates (436-338 BC) and Xenophon (431-354 BC) were two rhetoricians of 5th-to-4th-century-B.C.E. Athens, who, as detailed by Edward M. Harris, Professor of Ancient History at Durham University, believed that “the courts in his [Isocrates’] day were far below the standard of ancient times” and “it was rhetoric that counted, not the law,” respectively (1994, 130). They shared these views because they, taking somewhat of a modern stance on court behavior and procedure, could see that justice was not the true goal of the Athenian courts. The courts may have projected the notion of equal opportunity and justice under the law, but what it truly was was a spectacle—a show of entertainment for the jury and a match of words and wits for those directly involved in the trial. “Knowledge of the just and the unjust provided by the laws,” Harris writes, referring to a dialogue of the philosopher Gorgias, “is not a prerequisite for winning a favourable verdict” (1994, 130). Of course, this view is easily shared more widely by contemporary historians and writers, as one would think modern democracies are more likely to place greater stock in delivering true justice.
While the emphasis on rhetoric that was practiced and embraced in Athenian courts on the surface may seem distant and irrelevant to modern courts, it is not entirely a tradition of the past. Yes, the judicial system of Ancient Athens focused almost entirely on rhetoric and did not conduct evidence-based trials, whereas modern ones do; but the skill and ability of an orator still plays an important role in the case of both defendant and prosecutor—for better and for worse. The issue is this: even though many modern legal systems, including that of the U.S., like Athens, project the importance of presenting evidence in court, both a lack of evidence and a presence of it are frequently overlooked in favor of our legal predecessor rhetoric. In the United States alone, up until December of 2019, there have been 2,556 recorded exonerations since 1989. Of the 143 exonerations in 2019 alone, nearly 70% of cases were a result of perjury or false accusation, and 65% (due to overlap in exoneration reasons) included misconduct by government officials (Newkirk Center 2020), all ways that the lives of others were condemned largely by the false word of someone else. On the other hand, just as much as it incarcerates the innocent, the criminal justice system leaves much room for the guilty to leave unpunished or with less punishment than they deserve; it often allows the biases of the individuals conducting trials to lead the decision-making process, regardless of the truth. Just last year—September of 2020—in the case of Breonna Taylor, a medical worker who was shot and killed by police officers in her home in Louisville, Kentucky on March 13, the preference of opinion over fact made its presence known in the judgement of the attorney general overseeing the case, Daniel Cameron. Cameron, in conducting the case, selectively favored the voices of some involved persons over others’ and disregarded pertinent information. This lack of true, equal justice and exclusion of voices, largely reminiscent of Classical Athens, is wholly for the worse.
Additionally, ancient or modern orators with a reputation for great rhetorical skill are more likely to be favored by the jury and thus more likely to win their cases. A prominent example of this can be found in returning to Aeschines’ speech Against Ctesiphon. In his speech Aeschines attempted to discredit Demosthenes’ achievements by providing a surplus of factual evidence and legal legitimacy. Yet Demosthenes, a widely-known orator, general, and favorite of Athens, was quickly able to win over the court by invoking his rhetorical expertise, despite his lack of attestation. Similarly, for modern Americans, popularity has its perks even on the so-called level playing field of the courts. In 2019, for instance, a college admissions scandal flooded the news: more than 50 people were charged in the scandal (Shamsian and McLaughlin 2020), having paid bribes in exchange for the admission of their children into universities, typically either by altering standardized test scores or bribing coaches so their children could be recruited for sports they’d oftentimes never even played. Well-known actress Felicity Huffman was one of the famous parents who took part in the scheme; she paid a bribe of $15,000 and walked away with only 14 days (though she was released after 11) in prison, a $30,000 fine, 250 community service hours, and one year on supervised release (McLaughlin 2020). And yet, Kelley Williams-Bolar, a poor working mother who, in 2011, was incarcerated after falsifying her address in order to get her children into a better school, was sentenced nearly the same: 10 days in jail, a $70,000 fine, 80 hours of community service, and three years of probation. To summarize, in the words of Williams-Bolar herself: “I do think they’ll be treated differently because of their status. [Their attorneys will argue] they’re first time offenders. Well, I was a first-time offender, too” (Palma 2019). Although the scale of Huffman’s crime was much larger, she was given a much less severe sentence, no doubt due to bias in favor of fame. This happens frequently in modern society, and it has become a highly dangerous mechanism—a power of law abused by the courts—that again echoes the inconsistent and biased happenings of the Athenian courts that reigned more than two thousand years ago.
Examining these cases, it is evident that, in many ways, modern courts are not entirely different from those of the ancient Athenians, particularly in the steady existence of rhetoric and bias. Both are subject to interpretation on behalf of the judges (in the Athenians’ case, this would be the entire jury) and have a tendency to lack deeper insight into the accounts presented—both of which are factors with the deadly potential to convert a government that preaches the restoration of justice and equality into one that instead takes them away. Athens may have flourished culturally and artistically, but its professional scene, in regards to carrying out the law and respecting the truth, was, more often than not, rather unprofessional. However, for its time, Athens’ democratic proceedings in the court and in daily life proved to be extraordinarily advanced, being the first democracy to ever be established, creating an enduring system that has since sprung up across the globe. Athens made great advances in all aspects of life, and though its courts may not have been entirely focused on the goal it claimed to uphold, its great success paved the way for future democracies, each generation and each variation perhaps growing that much closer to the ideal.
Lauren Davis (College ’24) is a student at the University of Pennsylvania majoring in Classical Studies (Languages and Literature) and minoring in Creative Writing and Fine Arts.
Demosthenes spoke on behalf of Timarchus, an ally of Demosthenes in the disputes over peace with Philip II of Macedon, after Timarchus was prosecuted by Aeschines on a charge of self-prostitution. Aeschines wanted to counter attack for Timarchus previously bringing a formal charge of treason against him. Accusing Timarchus of this would essentially make him ineligible to remain on the Assembly, ending his career. Aeschines easily won the case (Adams 1938, 2-3).
Athens and Thebes, though long-time enemies, joined forces to hold back the Macedonians approaching from the north. Greek forces seemed to be winning throughout 339 and 338 BC, but Philip led a resurgence of Macedonian power and offered peace to Athens and Thebes after capturing Naupaetus. Demosthenes, fervently against the idea (Aeschines was inclined to agree to Philip’s proposal), refused to make peace, and the massively-larger Macedonian forces overwhelmed the lesser-trained and much smaller Greek allies. After the battle, the Greeks never returned to the great military and political force they had been before (Wasson 2009).
“. . . Cameron’s team presented testimony from a witness who said he heard the officers knock on Taylor’s door that night, but did not present testimony from the dozen other witnesses who said police had not knocked, according to attorneys for Taylor’s family” (Cineas 2020).
“Mr. Glover [Taylor’s ex-boyfriend, the target of the drug investigation] was in custody by the time the police raided Ms. Taylor’s apartment” (Wright et. al 2020). “Louisville Postal Inspector Tony Gooden says that his office was not a part of an inspection of possible drug trafficking activity in packages delivered to Breonna Taylor’s address” (Carrega and Ghebremedhin 2020).
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