The previous chapter argued that Thucydides, Aristotle, and Plato regarded conflict and civil strife as occurring naturally in Greek cities. The rivalries through which political and social hierarchies are established and contested unleash the centrifugal forces of resentment, enmity, retaliation, and violence. These forces are fueled by the corrosive power of envy and the primal drive for revenge. How can these centrifugal tendencies be checked? In classical Athens political thinkers of various ideological hues all agreed that the rule of law could provide a bulwark against civil strife. As Thucydides showed how the survival of a political community required the preservation of legal institutions independent from competing factions, so too Plato and Aristotle argued that the stability of the polis depended upon the rule of law. Skeptical of radical democracy, they contrasted the rule of law of the good society with the lawlessness and license of contemporary Athens. Athenian democratic politicians, on the other hand, tirelessly reaffirmed that the rule of law was the bulwark of radical democracy, and that in non-democratic cities those who held power pursued their interests without respect for the laws and constitution. In other words, while everyone might agree that the rule of law alone could preserve a city from stasis, their respective conceptions of the rule of law were closely connected to commitments to particular ideologies of political community.

Chapter 4 discussed the role which enmity, revenge, envy, and honor played in the appeals which Athenian litigants made to the values of the mass courts of untrained citizen-judges. It suggested that while the chain reaction of homicidal violence which characterizes blood feud does not appear to be an organizing principle of conflict in classical Athens, the social values associated with enmity and honor bear significant similarities to those of feuding societies. Most of the scholarly literature on feud has focussed on blood feud, but anthropologists have acknowledged that the social dynamic of feud may operate through other forms of insulting or injurious behavior. Further, historical studies of feuding societies have shown that as centralized judicial and political institutions become powerful enough to limit homicidal retaliation for wrongs significantly, rather than suppressing the impetus to feud these institutions themselves become a new arena where such conflicts are played out.

In examining the social context of Athenian litigation, this chapter suggests that much litigation should be viewed as a form of feuding behavior, and that it was acknowledged as such by Athenian judges and litigants.

Chapter 5 set out a framework for comprehending Athenian litigation as feud and for viewing the process of judicial judgment as operating within an agonistic social field. Of course, not all lawsuits and prosecutions at Athens fit this pattern. It is not possible, in any event, to generalize about “typical” litigants or “typical” trials because we lack the quantitative evidence which alone could permit us to say how representative are the cases preserved in the corpus. One can assert, however, that the characterization of Athenian litigation developed in Chapter 5 reflects a very substantial part of that corpus. In support of this assertion, the next three chapters will apply the notion of litigation as feud to three particular areas of legal relations. The present chapter will examine cases involving the laws regulating assault and wounding, while Chapters 7 and 8 will take up disputes over inheritance and sexual wrongdoing.

The first case involves an action for damages based on an allegation of assault and injuries arising from a severe beating. The case is known because Demosthenes wrote the oration for the well-to-do young man, Ariston, who claims to be the victim of this violence. This remarkable speech displays the full range of topoi elaborated in Chapter 5 and illustrates the way in which orators drew upon this repertoire in appealing to the normative expectations of their audience.

This book aims to provide an account, for a broad audience, of litigation and the legal regulation of violence in Athenian society, and of their relation to democratic ideology and conceptualizations of the rule of law. While most studies of the Athenian legal process rely primarily upon analysis of statutes and institutional structures and of how they developed, I attempt to reconstruct the framework of social, ideological, and discursive practices of which the law was an integral part. In this sense the project attempts to blend the methods and insights of social history, anthropology, and historical legal sociology in portraying the role of litigation in an agonistic democratic society. This study thus departs from the conventional framework of much research in Athenian law and institutions, but I see little point in rehearsing yet again, with slight variations, well known facts with all too familiar methods.

Along the way I have profited greatly from the criticisms and advice of many friends and colleagues. Central ideas for the book were tried out at two faculty Work-in-Progress seminars at the University of Chicago School of Law, where I received helpful comments from numerous colleagues. I owe special thanks to the continuing support of Professors Dieter Simon and Dieter Nörr in providing me with access to the incomparable facilities of the Max Planck Institut für Rechtsgeschichte in Frankfurt and the Leopold Wenger Institut für antike Rechtsgeschichte in Munich, as well as for giving me the benefit of their criticisms of the project as it evolved.

Violent assaults and humiliating insults were not the only kinds of conflicts leading to feuding relations which expressed themselves through litigation. While not all family quarrels may have led to long-term bitter enmity, the extant Athenian inheritance cases indicate that private law litigation between kin followed essentially the same dynamic as the cases discussed in Chapters 4–6. That is, in the family sphere litigation provided an agonistic arena for the ongoing pursuit of conflict rather than furnishing a binding mechanism for the final resolution of disputes. Further, following the argument developed in Chapters 5 and 6, this chapter suggests that litigants in family disputes were well aware of the structural features of Athenian litigation that made it difficult for courts to discover the “truth” of allegations about kinship and testamentary relations. In many of the extant cases litigants exploited this difficulty in creating, in practice, a system that worked much more effectively to prolong familial conflict than to reach “just” and conclusive results. In this context as well litigation was shaped by the participatory nature of the Athenian legal system, that is, by the agonistic values of citizen litigants and judges rather than by the principled imperatives of an autonomous legal order.

Standard accounts of the history of legal institutions in Athens typically follow an evolutionary model: from an inherently unstable situation characterized by powerful aristocratic kinship groups, self-help, and weak central institutions emerges a civic legal order capable of regulating the cycles of feud and violence to which the previous instability had inevitably given rise. In literature, the moment in Athens' institutional history in which this new legal order established itself is captured in Aeschylus' Oresteia, with its depiction of the foundation of the first Athenian homicide court, the Areopagus. This dramatic foundational event represents the historical process by which the emerging polis wrested for itself the authority to enforce a final and binding resolution of disputes among its citizens. With this, the dynamic of retaliation and feud depicted in Agamemnon and Choephoroi yields to a public order maintained by a system of laws and courts. Henceforth, citizens may not pursue private vengeance for wrongs done them, but must bring their case before the representatives of the polis and submit to its judgment. The principle of blood vengeance, embodied by the Erinyes, is transformed and incorporated within the new framework of civic institutions where it will help to preserve Athens from enemies within and without.

Before turning to a consideration of Athenian litigation it is appropriate to consider the background of social values which participants brought to the judicial process. This background is particularly important in Athens because neither judges nor litigants had any formal legal training and the system as a whole relied almost entirely upon the initiative of private citizens. As subsequent chapters will show, Athenian litigation by its very nature seldom depended upon arguments about statutory interpretation or legal doctrine. It employed instead assessments of character, reputation, and probability, cast in terms which appealed to the knowledge and values which the judges, as ordinary citizens, possessed. It is beyond the scope of this study to provide a complete account of the social context of Athenian legal practice. Instead, the focus will be upon those values and beliefs of particular relevance for a study of the legal regulation of conflict. Accordingly, this chapter will begin by examining Aristotle's presentation of what the successful orator needs to know about rivalry, enmity, honor, envy, and revenge. Building upon this examination, it will then consider a number of orations where such topics play a central role in the litigants' presentation of the case.