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26.2.Crotty

Although Athenian law has not much influenced law in subsequent societies (Todd 1993: 3-10) it remains strikingly relevant in many ways to modern jurisprudence. An anxiety haunts American law—whether law is in fact a separate domain for neutral adjudication of legal issues, or whether it is inevitably a political tool (e.g., Soper 1984: 14). The ancient Athenians were not troubled by this quandary: their legal system made no pretension to be separate from the political currents running around and through it (Cohen 1995). For this reason, Athenian law is a powerful tool for showing law students and undergraduates alike not only how law and its procedures are embedded in a particular society, but—at a more abstract, jurisprudential level--how law can be thoroughly political without ceasing to be law.

In my paper, I explore the ambivalent attitudes toward aggressive behavior, as revealed in several assault cases from 4th century Athens—Demosthenes 54, Lysias 3 and 4, and Isocrates 20. Athenian law provided many remedies against different kinds or levels of aggression; the number and variety of the available causes of action suggest the seriousness with which Athenian law regarded violence between citizens. Nonetheless, plaintiffs in assault cases frequently caution the jurors against dismissing the case as though it were merely funny, and not an actionable threat to public order. These cases show, first of all, the open texture of Athenian law: we do not know how any of these cases were finally decided, and our ignorance is in itself significant. It says something about Athenian law that the result is not clear even in what might seem to be a straightforward case of assault. Next, these cases show a deep ambiguity toward law and order on the part of jurors. Defendants in assault cases apparently thought they might well persuade a jury to regard a violent act as virile fun, and to treat the plaintiff as a humorless prude. As the argument suggests, aggression seems to exert a continuing appeal even in a civil society. Third, the cases show how laughter could be used as a means for interpreting Athenian law. The sanction for violent aggression was exile: if a jury could be made to laugh at the underlying facts in a case, it would be less likely to vote that they amounted to a serious offense. Finally, the cases throw light on the class structure at Athens. A plaintiff might caution the jurors that the defendant’s “harmless fun” reflected an arrogant attitude toward public order characteristic of those who oppose democracy. Taken together, the cases throw an interesting light on comedies—both Old Comedies like Aristophanes’ Wasps, or New Comedies like Menander’s Adelphoi—in which violent assault is indeed treated like a joke. Pedagogically, then, these cases are absorbing in their own right, and in addition throw light on comedy, and philosophical accounts of justice.

Bibliography:

Cohen, David. 1995. Law, Violence and Community in Classical Athens. Cambridge: Cambridge University Press.

Soper, Philip. 1984. A Theory of Law. Cambridge, Mass.: Harvard University Press.

 Todd, S.C. 1993. The Shape of Athenian Law. Oxford: Clarendon Press.

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