THE LEGAL SUBJECT

Among the law's many fictions, none is more vital than the legal subject, the implied subject of legal action. The law tries deeds, but it can only try them in the person of their doer. Every act requires an agent to explain it, motivate it, bear witness to it, or simply represent it in court. But those agents are always to a greater or lesser extent fictions, from the shibboleth of the corporation as individual to the good-faith fabrications of a victim who imaginatively reconstructs the emotions of a traumatic event many months or years later. How forensic speeches construct their subjects, when they conjure them into being, why, and how, is the topic of this chapter and the next.

Act and agent are mutually determining in Athenian juridical discourse. The criminal's presumed state of mind defines the crime, as well as its presentation in court. Whether the crime is voluntary or involuntary will dictate where the case is judged, how it is argued, what punishments are meted out – in short, the whole shape of the case. The difference we saw in Demosthenes 54, for example, between a private suit for aikeia (resulting in a fine) and a public suit for hubris (which could warrant the death penalty) was what modern law calls mens rea, culpable mentality.