Four categories of terminology need to be explained: idiosyncratic usages of the author, periodization, Greek and Latin terms, and conventions of analytic scholarship.

I use “New Comedy” as a blanket term for both Greek New Comedy and Roman Comedy. When I mean to specify the one or the other, I use the ethnic adjective. ‘Analytic scholarship’ refers to the work and methods of those classical philologists who have engaged in the close examination of Latin plays in order to reconstruct the Greek originals, to conjecture Plautine or Terentian originality in their treatment of Greek models, and to diagnose earlier and later accretions to the Latin plays. Other idiosyncratic usages are no doubt present in this book; context or explicit exegesis, I hope, will clarify.

Chronological periodization is, by and large, conventional. In the Greek spectrum, the period of the Attic orators belongs to “classical Athens”; the period of Greek New Comedy belongs to the Hellenistic age, commencing with the death of Alexander the Great (323 BC) and ending with the battle of Actium (31 BC). In the Roman spectrum, the period during which Plautus and Terence wrote is the “mid-Republic”; the “Gracchan revolution” can be used as the commencement of the “late Republic.” Temporal references such as these are always somewhat arbitrary and inaccurate (e.g., at least two poets of Greek New Comedy were writing before the death of Alexander); my purpose in using the ready-made framework is, in the main, to identify a chunk of time, although there is a purposeful, if slight, disputatious point in not lumping together the last two centuries of the Republic into a monolithic slab (see “Introduction”).

Many characters of New Comedy exhibit what may be called a “forensic disposition.” Manifesting itself in the ease with which they call upon the law – for debate, for intimidating others, for assistance in their difficulties – it aligns them with many of the litigants who surface vividly in the speeches of fourth-century Attic orators: disparagers of philopragmones (busybodies), but philodikoi (lawsuit lovers) nonetheless. This disposition – in short, a flair for calling upon the law at the drop of a hat – appears in more and less overt ways throughout New Comedy.

More overtly, it reveals itself as characters easily discuss and debate the intricacies of such laws as those pertaining to epikleroi (heiresses without fathers or brothers), as they seek the advice of legal experts for drawing up documents or for promoting their understanding of the law, as they act as arbitrators of their neighbors' disputes, call on witnesses to testify to contractual agreements or wrongful acts, offer to torture slaves for evidence and sometimes march the tortured victims across the stage. They threaten suits against their adversaries, frame their friends and enemies to gain their ends, complain of the litigious conduct of others, and sometimes fear their own conduct will be seen in that same unflattering light. The texts of fourth-century Attic orators could easily have supplied material for any number of these situations and characters: e.g., the backroom manipulations over the estate of an epikleros in Isaios 10 ArisL; the ever victimized Mantitheos of [Dem.] 40 Boiot.

Arbitration and reconciliation are the most common procedural scenarios of dispute settlement in the comic genre. Sometimes they have a decidedly formal legal cast; more often, they appear as informal reconciliations between friends or adversaries. But formal or informal as they may be, the characters who take part in them have roles that would be recognizable to an Athenian audience. Except perhaps for the rather grand arbitration of Epitrepontes (literally “men who refer their dispute to arbitration”) and the preparations for one in Rudens (“Rope,” based on a Diphilan original, the title of which is unknown), scenarios of arbitration and reconciliation have not usually been noticed by interpreters of New Comedy. Moreover, legal historians have devoted little attention to these procedures in the last fifty years. The aims of this chapter are to create an Attic typology for them and to trace out what can be known about private arbitration in Rome of the middle Republic. In the next chapter, I examine arbitration in New Comedy. I have reserved the reconciliations of rape and adultery as the subject of chapters 5 and 6, and a consideration of the arguments used during reconciliations as the subject of chapter 7.

PRIVATE ARBITRATION IN ATHENS

(a) Differences between arbitration and reconciliation in the orators: a traditional and untraditional view

Private arbitration and reconciliation were probably means of settling disputes in Athens long before we have any written record of their existence.

THE GENERAL ARGUMENT

Legal historians and philologists use New Comedy as a source to illustrate (and sometimes to prove) the existence and functioning of particular laws in Athenian and Roman society. Their investigations appear to have an ancient pedigree: the Peripatetic Eumelos in the third book of his treatise Concerning Ancient Comedy (Περὶ της ἀρχαίας κωμωιδίας) reported that “no one after the arkhonship of Eukleides is to have a share in the polis, unless he prove that both his parents are astoi; but those before Eukleides are to be left unexamined.” While we do not know in what precise context Eumelos cited this important law, it is tempting to imagine the Peripatetic writing in his study, adding notes on Athenian law in order to explain some more or less obscure point – possibly of chronology – in one of the texts of Old Comedy. Modern legal historians have had two traditional and overlapping spheres of interest in New Comedy – indeed, the first is (but has not always been) a prerequisite for the second: (i) they have examined the corpus of New Comedy in order to categorize its information about law and to develop methodologies for its proper use; and (2) they have focused on particular subjects of law (e.g., sale, theft, marriage, adultery, divorce, and the epiklerate system) which surface in the multifarious plots of New Comedy and have tried to establish their Greek or Roman provenance.

Official arbitrators received their cases from the Forty, and AP 53.1 reports that the Forty are the officials “from whom plaintiffs obtained a hearing in the other private suits.” It is now generally thought that “the other private suits” refer to a specific set of dikai under the jurisdiction of the Forty (and hence of the official arbitrators) distinct from the graphai and dikai heard by other magistrates. Jurisdiction over dikai underwent changes during the fourth century; certain dikai which are “confirmed” for official arbitration in the middle of that century appear as emmēnoi and under the jurisdiction of the eisagogeis in AP 52. 2 (thus dikai proikos and aikeias, and possibly aphormes and trapezetikai; see Rhodes 1981 ad loc). The date of the change of jurisdiction cannot be determined, but most scholars have accepted Gernet's (1939) arguments that dikai emmēnoi did not exist during the first half of the fourth century. Dikai emporikai (a subset of dikai emmēnoi) came into existence sometime between 355 and 342 (see MacDowell 1990 apud Dem. 21. 176); dates for other dikai emmēnoi cannot be specified beyond saying that they were introduced at some point between the early 340s and the composition of the AP (set E. Cohen 1973: 186–91; Harrison 2. 21).

While our limited sources attest to only nine or ten dikai (and the identification of some of these is disputable) under the jurisdiction of the Forty, modern authorities usually assume that they were responsible for most private suits (cf. Isokr. 15. 237).

The purpose of this appendix is to provide a brief survey of the use of the terms arbiter and iudex in Plautus and Terence, and to assess the frequency with which those terms are used in a technical sense. By a technical arbiter or iudex, I mean either a judge who belongs to the judicial system (iudex unus or an arbiter, e.g. in an actio finium regundorum or in a bonae fidei iudicium) or a private arbitrator who resolves a legal dispute outside the court system. By a non-technical arbiter or iudex, I mean an individual who is depicted as having a judging capacity, but not in areas usually associated with judicial or arbitral practice, e.g. a judge of a good piece of cake – or of the effect of dampness on a husband's feet. Usage of the terms often is metaphorical or verges on the metaphorical (“You be the judge of my complaint!”).

In Rudens and Persa, the slave-owners are summoned to court in highly dramatized fashion: in the former, the pimp Lab rax has been held at bay by lorarii (floggers) for the greater part of Act in before Plesidippus appears on-stage and hales him, plaintively calling for assistance, to court; in Persa, the court summons in iv 9 is the climax of the “legal plot” scripted and rehearsed by Toxilus and his friends. In each play, the alleged criminal reappears on-stage in the last act of the play. What happened in the interim – between the march to the courtroom and the reappearance of the accused on-stage? Are we to imagine, via the brachiology of dramatic time, that the praetor heard the claims and assigned the case (in iure) and that a hearing took place at which a verdict was given (apud iudicem)? That imagined sequence, however, is fraught with problems: do the procedures and penalties match the offense in each play? and are we to imagine the same sequence in the Greek originals – or is it possible, or even necessary, that different resolutions appeared in them?

Unlike arbitration, which has received relatively little scholarly attention in the last decades, sexual offenses in Athens and Rome have been subjected to prodigious scrutiny. In an area where ancient men and women were ashamed to speak, contemporary scholars have filled the gap. Modern treatments of the subject have tended to focus upon lawful sanctions against sexual offenders. Playwrights of New Comedy, however, in their frequent employment of plots touching upon sexual violations, dramatize extra-judicial settlements. They present us with the interstices of the law rather than with episodes of courtroom drama. Their focus of attention is not surprising: the Athenian forensic record turns up only one reliable attestation of an offender who is brought to court for the sexual violation of a woman. Athenians preferred to settle out of court. The scenarios dramatized by New Comedy playwrights might therefore contribute to our understanding of the ways in which sexual offenses were, in practice, redressed in Athens. Interpretation of these scenarios, however, requires familiarity with legal terrain.

While New Comedy's terminology of sexual violation and evidence for penalties are combined cautiously with evidence from the orators in this chapter, the more fully blown comic scenarios are reserved, in general, for treatment in chapter 6. A methodological issue that underlies the agenda of that chapter, however, must be brought to the surface here: is it really possible to use New Comedy as a source for establishing the ways in which Athenians treated rape and seduction in their own society? How can we distinguish social realities from genre motifs? As in treating other substantive offenses and remedies, parallels must be sought from the orators.

Characters in New Comedy often engage in conduct that appears to be a prelude to a courtroom trial or that is a substitute for its formal apparatus: they warn friends of potentially indictable behavior and recommend legal action when their interests are infringed; they threaten their enemies with lawsuits and self-help remedies; they issue summonses and make arrests. Yet for all this pre-trial activity, only one character appears on stage who has clearly undergone a prosecution during the course of the play, and only one character actually suffers a self-help punishment endorsed by law. What, then, are we to make of all the summonses, arrests, and threats of legal action that do not end up in court? Or of the threats of self-help remedies that are not carried out?

It is the specific argument of this chapter that such activities are often strategies – pervasive in fourth-century Athens and so reflected in New Comedy – designed to coerce opponents to accept out-of court settlements. In the last chapter, we noted how frequently the orators give reports of plaintiffs who try to induce their opponents to enter into private arbitration after a suit has been lodged. The pattern harmonized well with the Athenian system of justice: a plaintiff who dropped a dike would not be penalized. Threatening court action while intending to settle in private also provides, as we shall see, ready-made scripts: it ensures that certain roles will be played – plaintiff and defendant, accuser and accused – and it delineates, even as it attempts to control, the avenues of settlement.