Twisting the law in ancient Athens (original) (raw)

2018, Carey, Chr., Giannadaki, If. & Br. Griffith-Williams (eds) Use and abuse of law in the Athenian courts, 181-97, Leiden.

The aim of this paper is to provide an overview and to explore the different ways in which the text of a statute, among other pisteis, was employed in fourth-century Athenian forensic speeches in order, i) to support the claims of the speaker, and ii) to counter the arguments of his opponent, sometimes based on the same statute. Initially, it is necessary to distinguish between on the one hand, modern concepts of abuse of law and abusive exercise of individual rights and on the other hand, how similar notion may have operated in the idiosyncratic legal framework of classical Athens. For this purpose it is helpful to define “use of law” as the invocation of legal provision(s) in order to circumscribe litigants’ actions and to construct their arguments (i.e. justify, support their claims or further their interests) and “abuse of law” as any treatment of legal rule(s) by a litigant so as to confer an (unfair?) advantage to his case. Most often statutes submitted in the anakrisis stage, were read by the clerk in the law court and were used in order • to support the central claim and advance the arguments of the speaker • to illustrate the violation of law by the opponent • to discount the opponent’s arguments • to legitimize the use of a particular legal procedure • to underline any dealings of the opponent(s) with the law, accusations, convictions, or even pending trials in order to taint his reputation and to depict the speaker as law-abiding, moderate citizen. The most usual technique of introducing a law into a law court speech was to paraphrase it; the speaker could then proceed to explain – interpret key words or legal terms using arguments, a contrario, ex minore ad maiore (or vice verso), by analogy, by extending or contracting the meaning of a provision, or referring to the presumed will of the legislator. Sometimes, the treatment of a legal rule turns out to be a bit more drastic, such as manipulating key elements of a legal rule (e.g. the speaker may be economical with the truth), adulterating a legal rule with elements from similar institutions or social expectations, or finally manoeuvring into the plethora of available judicial procedures. In conclusion, the question of use and abuse of law in classical Athens pertains essentially to the interpretation of a legal rule; instead of treating them as two diametrically opposed notions, it might have been more fruitful to consider them as parts of a spectrum, of an interpretative continuum, defined by the absolute respect for the text of the law and the desire to win the case.