One distinct feature of classical Athenian law was the use of torture as an interrogation method for gathering evidence. Specifically, that judicial torture was seen as a legitimate way to attain evidence in a criminal investigation. While today, this practice has been largely abandoned and rendered inefficient by many, what is peculiar about its use in Athens was that the testimony of slaves was only admissible in Court, if a litigant had challenged his opponent and the opponent agreed to the torture of his servants. Due to this, it seems that there are many inherent flaws in using torture as evidence. For instance, does the slave hold allegiance to anyone? However, the prominence and gravity that such testimony held was immense. Conversely, the refusal of a challenge, as in Antiphon, Against the Choristes, would cast suspicion onto their opponents character and motives. Additionally, many texts refer to it as a ubiquitous action and praise the practice as democratic. However, in analyzing other surviving speeches, the orators seem to be using the threat of judicial torture as a rhetorical device that mirrors other rhetoric-like questioning a man’s lineage and citizenship-that orators employed all the time.
Due to the fact that there is very little written record surrounding the Courts of Athens, it is proper to make logical deductions when interpreting the speeches of orators. Because of this, we must properly ascribe certain generalizations to the Athenian Court. Firstly, it must be stated that, in a sense, the Athenian Court was more like 21st century American Presidential debate, than a trial that is seeking to uncover facts to achieve justice. Because of this, insults, and threats should be interpreted through the lense of viewing a staged competition. As such, it is not right to take the threat of judicial torture at-face-value.
In Against the Chorister, the Chorister claims that he implored Philocrates to torture not one but all of his slaves. Additionally, the Chorister said he could convince the owners of other servants to torture their slaves if Philocrates thought they knew the answer. However, since the Chorister is a wealthy guy, as evidenced by his liturgy, could it be feasible to torture all of his slaves? Probably not. Additionally, is it really possible that the Chorister could convince his cohorts to give up their slaves? Clearly he made these challenges knowing that their opponents would reject them, or at least not take them seriously. However, the Choristes also uses the initial rejection in order to further his narrative that Philocrates had only brought the suit forward because he was involved in a conspiracy with the Choristes’ enemies. In doing so, the Choristes creates a syllogism between the the premise that Philocrates never believed the Choristes had intentionally murdered his brother and the premise that ulterior motives must have changed his mind. Thus, logically, Philocrates must be in cahoots with the enemies of the Choristes.
We find further evidence of the orators use judicial torture as a rhetorical device in Demosthenes 29, Against Aphobos, when the speaker acknowledges his rejection to a challenge by his opponent. However, the speaker then explains his rejection by arguing that his opponent’s challenge was inferior to one he himself issued and then was rejected by his opponent . In fact, he states that if the accused had taken his challenge, the servant that would have been tortured would acquitted them of the charges. Thus, the speaker only mentions his own rejection of a challenge as part of an argument that there was a better challenge available. As such, this argument also supports the notion that these challenges were only used as rhetorical devices or to obfuscate the truth.
However, none of the cases read this semester did any of the challenges of judicial torture were ever accepted. So could it have been that judicial torture never even existed? Probably not. Instead, it becomes clear that an Orators threat of judicial torture reflect similarly to other rhetorical strategies that seek to sway the jurors verdict by recounting a salacious and distorted narrative. Similarly, it appears that in both Against Aphobos and Against the Choristes, there is a structure in how the litigants used their challenges. Firstly, the litigants worded the challenge in such a way that the opponent would refuse to accept a challenge. Then the litigant presented the opponent’s refusal as proof that the slave would have corroborated the contents of the challenge or further confirms other aspects of their legal narrative. But here again the rejected challenge provided litigants an opportunity to call into question the motives of their opponents and to suggest to the jury that their opponents refused the challenge because they were hiding something.
Two distinct cases in Classical Athens, are Aeschines I, Against Timarchus and Demosthenes 25, Against Aristogeiton because they indicate an acute public attention toward the moral conduct of their politicians, at their time. However, what is curious about these cases is the accused or the accuser were politicians who held important roles during the Athenian war with Macedon. Additionally, the actions of the politicians seemed to have corrupted the city via virtues that are typically ascribed to foreigners in Athens (deterministic beliefs). Because of this, it becomes necessary to analyze the conditions in which Athenians feel a righteous indignation against their politicians and if that indignation is right.
Timarchus committed the crime of Hubris and Aristogeiton was accused of speaking out in public when he was already disenfranchised. In conjunction with this, Aristogeiton was accused of being sycophant who deserved to be banished from the city. By definition, hubris means extreme haughtiness or arrogance. However, the legal term hubris is not a legally defined term and was considered one of the greatest crimes in classical Athens. In classical Athens, a “sycophant” is a person who abuses the legal institutions of Athens to gain monetary profit at the expense of another. Acts like blackmail, or bringing forth false-charges are typical of a sycophant and these individuals are casts in a malicious light because the behavior is seen to subvert the democratic legal process.
Historically, Athenians have a great fear of outsiders. They casted the Persian Empire as barbarous and their political leaders as feminine in order to distinguish themselves as the superior culture. Additionally, if they saw themselves as falling to these effeminate forces, then they, themselves had became barbarian-like. And through this circular reasoning, Athenians developed a historical tradition of xenophobia. For instance, the Athenian politicians, Demosthenes and Aeschines, were contemporaries and are known as famous historical orators and statesmen. Both of the discussed speeches are in the context of an expanding Macedonian-Empire. As politicians, it was the duty of these men to protect the Greek homeland and preserve political autonomy for Athens. However, Philip II had a great army and threatened to conquer Athens during their time.
Demosthenes brought forth a suit against Aristogeiton because Aristogeiton had spoken out in public debate, when he was already disenfranchised for having public debts. Immediately, Demosthenes calls into question Aristogeiton status in Athens by calling Aristogeiton a ‘sycophant’. While it is impossible to verify claims of sycophancy, it is telling that Demosthenes also projects Aristogeiton as an ‘outsider’. He does this by recalling a story in which Aristogeiton had bitten off the nose of another inmate when he was serving time in debtors prison. Demosthenes then poses a rhetorical question to his audience: “Is Aristogeiton not impious, savage, and unclean? Is he not a sycophant?” (25.63). In doing so, Demosthenes characterizes Aristogeiton as a barbarian. This is because if Athens’ inmate population would have nothing to do with this sycophant, surely Athenians at large should do the same. Near the end of his speech, Demosthenes drives this point home with more striking imagery: “Just as physicians, when they detect a cancer or an ulcer or some other incurable evil, cauterize it or cut it away, so you must all unite in sending this monster beyond the frontier, in casting him out of the city, in destroying him” (25.95). As such, Aristogeiton leaving the city represents a moral cleanse to the city which leaves them better positioned to face the actual barbarians.
Aeschines 1, stems from Aeschines’ involvement in the controversial agreement, The Peace of Philocrates, by Macedon and Athens. When Aeschines was accused by Timarchus and Demosthenes of having improper relations with Phillip, he brought a suit against Timarchus in which he, Timarchus, could not respond. The accusation was hubris based on the evidence that Timarchus was a prostitute, the most serious offense in Athens. And by law, an Athenian was prohibited from being a public speaker if he had prostituted himself (1.32). However, Timarchus was a well-known politician in Athens and a friend to Demosthenes. But the conviction of hubris does not indicate that Timarchus was a prostitute and deserved to be disenfranchised. Instead, the conviction, in conjunction with the context of the peace agreement, indicates a loss of faith in the established politicians. As such, the case can be attributed to the historical tradition of xenophobia in Athens. Chiefly, the presumption that if their politicians are making decisions that are placing the city at risk to foreign threats, their own politicians must be as inferior as the foreign leaders.
Certain trials throughout Athenian history have gained considerable attention because they are seen as representations for major social, political and cultural issues. The cases of Timarchus and Aristogeiton represent social issues and racial issues that were established throughout Athenian history. Specifically, that the ensuing verdict will launch a public reckoning that will rid itself of the pollution brought on by people like Timarchus and Aristogeiton. Chiefly, the advancing Macedon forces. Also, the diminishment of public institutions leaves the city at-risk. Conversely, there seems to be an overlying belief that if a public reckoning does not occur, the pollution will fester and Athens will suffer the consequences. The roots of this theory is that pollution can come via the virtues of its citizens. And if they are failing politically, then their politicians must be lacking virtue. However, the cases uncover xenophobia and the fear that the institutions of Athens are failing that draw Athenians to fiercely critique their their politicians’ virtues. Because, if they lose to these outside forces, it could not have been their fault because their culture is superior. Instead, the blame is solely on the politicians.
Originally published 15.10.2019
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