Rhetoric and the Law of Draco

Trials for murder and manslaughter in ancient Athens are preserved in a singularly full and revealing record. The earliest surviving speeches were written for such proceedings, and the laws governing such trials - laws that tradition ascribes to Draco himself - also survive in large part.These documents bear witness to the birth of the jury trial and of democratic rhetoric. This book, the first study of its kind, offers a systematic interpretation of Draco's law and the legal reasoning that grew out of it. The author outlines the historical development (7th to 4th centuries BCE),and then analyses the surviving speeches to unravel the underlying issues and practical consequences.

Abbreviations

xix

1. Reading the Laws `Written in Blood'

1

(32)

Introduction

1

(5)

1. Dividing the Issues: The Evolution of the Separate Courts

6

(14)

1.1 Mythic Foundations of the Courts

10

(3)

1.2 Solon's Amnesty Law and the Ancient Regime

13

(4)

1.3 Blood Price and Bloodguilt

17

(3)

2. Proof and Probability

20

(13)

2.1 Early Rhetoric and the Irrational

21

(4)

2.2 Legalism and Rationalism

25

(3)

2.3 Prospective

28

(5)

PART I. Historical Reconstruction of the Homicide Law

33

(138)

2. Draco's Law and the Killer's Intent

33

(51)

1. The Terminology of Intentions

33

(16)

1.1 Volitional Terms in the Text of Draco's Law

36

(9)

1.2 Intentionality in Homer

45

(4)

2. The Archaic Method of Judgement (Dikazein)

49

(19)

2.1 Homeric Judgement and Achilles' Shield

51

(7)

2.2 Judgement in the Law of Gortyn

58

(3)

2.3 Witness, Oath, and Istor

61

(3)

2.4 The Issue before the Elders

64

(4)

3. Intentionality and Procedure in Draco's Law

68

(11)

3.1 The Judgement of the Tribal Kings

69

(2)

3.2 The Issue before the Ephetai

71

(8)

4. Conclusions

79

(5)

3. The Five Courts of Homicide

84

(52)

1. The Basis for a Reconstruction

84

(15)

1.1 Straight Judgement: Euthydikia

84

(4)

1.2 Authenticity of the Laws in Demosthenes 23

88

(11)

2. The Origins and Development of the Five Courts

99

(26)

2.1 The Prytaneum and Phreatto Court

99

(9)

2.2 The Areopagus and the Palladium

108

(10)

2.3 The Delphinium Court

118

(7)

3. Justifiable Homicide and the Amnesty of 403/2

125

(8)

3.1 Restriction of Dikai Phonou

126

(2)

3.2 Mnesikakein, Self-help, and Summary Arrest

128

(5)

4. Summary

133

(3)

4. Preliminaries, Out-of-court Remedies, and Trial

136

(35)

1. Prodikasiai

137

(10)

1.1 Diomosia

138

(5)

1.2 Perjury in Homicide Proceedings

143

(4)

2. Execution and Settlement

147

(7)

2.1 Execution by the Polis

147

(3)

2.2 Aidesis and Compensation

150

(4)

3. The Judges at Trial: Areopagites and Ephetai

154

(13)

3.1 Dicasts and Ephetai

155

(5)

3.2 Special Competence of the Homicide Justices

160

(2)

3.3 Decline of the Ephetai

162

(5)

4. Conclusions

167

(4)

PART II. Commentary on the Homicide Speeches

171

(219)

5. The Tetralogies and the Court Speeches

171

(45)

1. Invention in the Tetralogies

177

(15)

1.1 Questions at Issue

177

(3)

1.2 Known Parallels

180

(4)

1.3 Use of Probabilities

184

(8)

2. Miasma Doctrine in Legal Argument

192

(16)

3. The Law Prohibiting Justifiable Killing

198

(1)

3.1 The Issue in Tetralogy 3

199

(4)

3.2 Justifiable Response against `Error'

203

(3)

3.3 Plato's Laws 859-76

206

(2)

4. Conclusions

208

(8)

6. Antiphon 1 and the Concept of Malice

216

(35)

1. The Charge and the Question at Issue

219

(10)

1.1 The Facts Admitted

221

(2)

1.2 Malice Aforethought: Pronoia

223

(3)

1.3 Acquittal for Innocence of Malice

226

(1)

1.4 Judgement for the Plaintiff

227

(2)

2. The Opposing Arguments

229

(13)

2.1 The Case for the Defence

230

(2)

2.2 The Case for the Plaintiff

232

(6)

2.3 Anticipation and Rebuttal

238

(4)

3. Conclusions and Parallels

242

(9)

3.1 Proof and Probability (Tetralogy 1 and Lysias Against Mikines)

242

(5)

3.2 Malice and Popular Morality: The Stepmother and Deianira

247

(4)

7. Antiphon 6: Causation and the Law

251

(31)

1. Bouleusis: `Planning' and Decision

255

(15)

1.1 Historical Usage

257

(3)

1.2 The Causal Argument in Antiphon 6

260

(10)

2. The Question of Law and the Contest of Oaths

270

(10)

3. The `Contest of Oaths' as an Organizational Principle

280

(2)

8. Justifiable Killing and the Problem of Lysias 1

282

(31)

1. Lysias 1 (On the Slaying of Eratosthenes)

284

(15)

1.1 The Question of Law in Lysias 1

287

(6)

1.2 The Question of Entrapment

293

(6)

2. Tetralogy 3 and the Notion of Provocation

299

(11)

2.1 Tetralogy 3

301

(7)

2.2 The Case against Euaion (Dem. 21. 70-6)

308

(2)

3. Conclusions: Euthyphro's Case against his Father

310

(3)

9. Warrant and Arrest for Homicide: Antiphon 5 and Lysias 13

313

(60)

1. Antiphon 5 (Herodes)

314

(40)

1.1 The Method of Proof

316

(15)

1.2 The Question of Law

331

(20)

1.3 Immediate Incrimination and Arrest ep' autophoroi

351

(3)

2. Lysias 13, Against Agoratus

354

(16)

2.1 The Question of Intent

356

(6)

2.2 The Question of Legality

362

(8)

3. Conclusions and Parallels

370

(3)

10. Legalism and Lysias 12

373

(17)

1. Old and New Reasoning in Lysias 12

376

(6)

2. Reinventing the Ancestral Law

382

(8)

2.1 Draco's Law and the Discovery of the Mind

383

(3)

2.2 Ancient Rationalism and Modern Law

386

(4)

Appendix: A Synopsis of the Athenian Homicide Speeches

390

(3)

Bibliography

393

(10)

Index of Passages Cited

403

(4)

General Index

407

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Rhetoric and the Law of Draco

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