Tongjia Zhang
Normative Legal Interpretation in Lysias
Drawing evidence from Lysias, this paper argues that Athenian litigants in weak cases often appeal to normative interpretations of the law. When statutory provisions are absent or inapplicable, speakers frequently construct the meaning of law in accordance with what the content of law ought to contain rather than rely on the literal, plain meaning of the statute. These interpretations are supported by three kinds of legal arguments: systematic, where the speaker extracts applicable legal principles from different statutes within the legal system, moral, where the speaker endorses the addition of certain moral restrictions on conduct to the law, and policy, where the speaker grounds his interpretation of the law in considerations of political expedience. Responding to recent scholarship concerning the operation of the Athenian legal system (i.e., Lanni 2006’s thesis that the courts aimed at ad hoc, individualized justice tailored to each case, and Harris 2013’s argument for a more systematic rule of law) and drawing inspiration from contemporary jurisprudence (e.g., Hart 1961, Dworkin 1987, and Shapiro 2011), this paper proposes that Athenian legal practice is informed not only by the meaning of statutes but also by one’s understanding of what the law ought to be in ideal circumstances.
Such normative legal interpretation will be illustrated using two examples in the Lysianic corpus. In Against Alcibiades, the prosecution accuses the defendant of cowardice, for having served as a mounted archer in the cavalry, which in general faces less danger in battle than the hoplite infantry, despite not having passed the legally required procedure of dokimasia beforehand. But the statutory provision under which Alcibiades can be convicted is highly restricted: the prosecution’s case rests on an interpretation of the desertion statute’s term πεζή στρατιά as hoplite infantry instead of its regular meaning of land (as opposed to naval) forces. The speaker acknowledges the peculiarity of this reading by exhorting the jurors to go beyond their adjudicatory role and to serve as legislators (νομοθέται), interpreting the law in a way beneficial to the state in the future (ταύτῃ τοὺς νόμους διαλαμβάνειν, ὅπῃ εἰς τὸν λοιπὸν χρόνον μέλλει συνοίσειν τῇ πόλει, Lys.14.4). Furthermore, the prosecution justifies this interpretation by appealing to the moral purpose of law (to cultivate virtue among the citizens) and policy considerations (to instill discipline among the soldiers).
In Against Theomnestus, the prosecution argues for a general principle of legal interpretation whereby all explicit terms in a statute ought to include their unstated synonyms. Applying this principle to a trial on slander, the speaker champions a normative reading of the defamation statute, so that the prohibition of particular words (ἀπόρρητα) in the law would imply an additional prohibition of the synonyms of those expressly forbidden words. The justification for this interpretation lies in a systematic argument: since outdated statutory terms tended to be understood as their contemporary equivalents in Athenian legal practice, synonyms of statutory terms should be treated in the same way.
In this way, both speakers advocate interpretations of statutes in accordance with what the content of the law ought to contain in ideal circumstances. Their legal arguments demonstrate the presence of a normative, anti-positivist concept of law, according to which the validity of legal norms can sometimes be judged on the basis of their merits.