Bryn Mawr Classical Review 2002.04.01
Lene Rubinstein, Litigation and Cooperation: Supporting Speakers in the Courts of Classical Athens (Historia Einzelschriften 147). Stuttgart: Franz Steiner Verlag, 2000. Pp. 296. ISBN 3-515-07757-X.
Reviewed by Matthew R. Christ, Indiana University (firstname.lastname@example.org)
Word count: 3879 words
Intense interest in Athenian law and litigation has generated many books in the last decade.1 Lene Rubinstein's (R.'s) new study is an important contribution to this growing body of literature as it carefully reconstructs the role of supporting speakers (synegoroi) in the Athenian courts and explores in stimulating ways the implications of the practice of synegoria for our understanding of litigation in democratic Athens. While I am persuaded by R.'s main thesis that synegoria was an important and complex Athenian institution, I disagree with aspects of her analysis of the sociological and political implications.
I will first comment briefly on R.'s arguments chapter by chapter so as to highlight her major points and to alert readers to sections that they may wish to consult; because R.'s discussion tends to assume a knowledge of Athenian legal procedure and familiarity with the extant forensic orations, non-specialists may want to read this book selectively. After this overview, I will focus on the broader ramifications of this study for our understanding of litigation within the Athenian democracy. In particular, I will take issue with R.'s views of: I. how much access average Athenians had to litigation; II. the role of prestige competition within litigation; and III. the Athenian discussion of legal excess and abuse.
Chapter 1: Introduction. R. posits that a proper understanding of the importance of synegoroi is essential to appreciate the complexity of Athenian litigation and court strategies. She observes that, while earlier scholars acknowledged that team-based public prosecutions were widespread, more recent scholarship has tended to overlook the evidence for this phenomenon. R. also believes that the role of synegoroi is not properly understood. Scholars have too often regarded the synegoros as "either a 'super-witness' whose role in the legal proceedings amounted to a display of his solidarity with the main litigant," or, "at the other extreme... as the Vicarious Voice of the main litigant" in exceptional circumstances when the main litigant could not be expected to plead his case adequately (17). These assessments fail to take into account, R. argues, that several individuals could genuinely share the rhetorical performance in court. In particular, R. sets out to demonstrate that in graphai concerning crimes where the community as a whole was perceived as a victim, team prosecution was common, and in such cases synegoroi "seem to have preferred to represent themselves as real kategoroi in their own right rather than as partisans of the initiator (ho grapsamenos)..." (21-22). R. largely succeeds in fulfilling these specific objectives in the chapters that follow.
Chapter 2: Synegoroi in the dikasteria: the evidence. R. substantiates her position that participation by synegoroi was common by surveying the fourth-century evidence. First, she catalogs the extant forensic speeches that she believes were presented by synegoroi, providing extensive justification of her assessment in each case. R. finds that a third of the surviving speeches can be labeled synegorial, that is, 31 of the 93 extant speeches (the figure 31 includes six speeches written for supporting prosecutors elected by the Assembly) (58-59). While there will no doubt continue to be controversy about the categorization of individual speeches, R.'s catalog will be the starting point for future debate. Second, R. tabulates the evidence for synegorial participation in the 83 different trials in which the 93 extant speeches were delivered: she finds that "synegoroi seem to have appeared in at least 28 out of the 36 public trials (78%), and in at least 21 out of the 47 private suits (47%)" (61-62).2 While we cannot be sure that the surviving evidence gives an accurate impression of the scope of synegorial activity, R. makes a plausible case for taking these figures seriously. She argues that the participation of synegoroi may have been even more common than the record indicates: synegorial speeches may have been less likely to survive than those of main litigants, which may have been of greater interest to those preserving the corpus (59-60); and in surviving speeches main litigants may intentionally suppress the fact that synegoroi are supporting them (63).
Of particular interest in R.'s figures is the fact that synegoroi appear to be much more common in public suits than in private ones. R. argues persuasively that this makes good sense, since litigants in private suits had relatively little time to present their cases and "[w]hile the waterclock would be stopped as laws and testimonies were read out in private law-suits, a synegoria would count against the party's ration of water"; it would be logical therefore for these litigants to rely more on witnesses than on synegoroi (66). R. argues that the special circumstances of private suits concerning guardianship and false witnessing help explain why synegoroi are more common here than in other types of private suits (68-70).
Chapter 3: Sharing risks. Building on her observation that the use of synegoroi was widespread, R. explores how synegorial collaboration could make legal contests group rather than individual competitions and considers the implications of this effect. In particular, R. argues that synegoria may well have opened up litigation to ordinary Athenians: they might be more ready to bring a private suit to court knowing that the rhetorical burden of making their case would be shared by their synegoroi (90-91); they might participate in public prosecutions as synegoroi, since supporting speakers were not liable to the thousand-drachma fine and partial atimia that fell on the prosecutor who received less than one-fifth of the votes in a public action (110-11). While there may be some truth to R.'s claims here, I doubt that synegoria had a very great impact on access to the courts (see below).
Chapter 4: The roles of Athenian synegoroi. Modern scholars have often assumed that it was seen as desirable for synegoroi to represent themselves as relatives or personal friends of main litigants. R. argues that, while this is largely true of private actions (131), this is not the case with public actions. While defense synegoroi in public actions were often relatives or friends of the defendant, they were sometimes outsiders (163-68). Prosecutorial synegoroi regularly sought to maintain rhetorical distance and independence from the main prosecutor and each other (176); this makes them resemble elected kategoroi, who adopt an even more impersonal rhetoric (142). R. also challenges the view that synegoroi acted merely as character witnesses. In both private and public actions, she argues, they first and foremost provided arguments germane to the legal issues of the case (131, 147). In public prosecutions, in fact, the contribution of a synegoros sometimes went beyond that of the person who had assumed legal responsibility for the action (147). R.'s views of the conspicuous role of synegoroi in litigation and the nature of their contributions lead her to challenge the "simple agon model" (172-84), which emphasizes one-on-one competition in litigation and the role of prestige within this competition. In my view, however, R.'s findings are not so devastating for this model (see below).
Chapter 5: Synegoria in a democratic context. In this far-ranging chapter, R. takes up a number of topics, including the question of access to the courts (see below); devious practices associated with synegoria; and synegorial appeals to charis at trial.
In her discussion of devious practices, R. focuses on three ways in which synegoria might be manipulated: 1) A wealthy individual could pay a "straw man" to enter his name on the writ as the initiator of a public suit and then himself appear at trial as the straw man's synegoros; in this way the real instigator could participate in the trial but avoid the partial atimia that the initiator would incur if the prosecution received less than one-fifth of the votes (201-4). 2) A defendant could bribe a synegoros to become a "deserter," i.e. to pull out of a joint public prosecution and thus undercut the efforts of the prosecution team; a synegoros -- unlike an initiator of a prosecution -- was not liable to a penalty for withdrawing (204-8). 3) A synegoros could accept a bribe to act as "saboteur," i.e. to plead a case badly (208-11), though this is less well attested than the first two devious practices. R. believes that these three practices help explain the frequent characterization of "the sykophant" as a profit seeker (201). This may be true, but there were also other ways to profit unscrupulously from litigation. For example, we should not underestimate the ability of a veteran prosecutor to make money by threatening to bring a suit on real or fabricated grounds; his success in bringing suits in the past could well intimidate his target into paying a bribe. While an unscrupulous individual might succeed in this without actually filing a suit formally, he could give teeth to his threat by filing suit with the appropriate magistrate; if the ploy failed and the target did not pay up, the prosecutor could drop his suit without penalty as long as he did so before or at the preliminary hearing (anakrisis).3
R. explores how defendants and their supporters in public actions seek charis from jurors for their past services to the community (212-31) (cf. Johnstone 1999:93-108). R. is especially interested in the transferability of charis in this context, i.e. how a defense synegoros could draw on his services to help ransom a defendant. R. does well to point out how this made synegoria a double-edged sword for the democracy: while synegorial support could even the playing field for less well-off defendants facing wealthy prosecutors, it could also lead to unfair advantages for wealthy defendants, who could entice prominent individuals to support them (229-30). R. concludes that synegoria "created at least as many problems as it solved" for Athenians both on the practical and ideological level (232).
I. Access to litigation
One of R.'s main contentions is that synegoria gave average Athenians greater access to the courts than is commonly acknowledged. R. calls (77) for a reassessment of "the current modern reconstructions and interpretations of Athenian litigation in public actions as a de facto privilege of the top 5 to 10% of the adult male citizen population (e.g. Christ [1998:33])." My position in the place cited is actually more moderate: "it is probable that elite Athenians, that is, the top 5 to 10 percent of citizens by wealth, constituted a 'litigating class' that was disproportionately active in the courts. While many Athenians may have become involved in litigation at some point in their lives, the wealthy were far more likely than average Athenians to appear frequently in court... " I do not rule out the participation of average citizens in litigation even in more visible public actions, but rather argue that the wealthy were disproportionately active. Nothing in R.'s discussion of synegoria casts doubt on this moderate position or necessarily even on the more extreme position she attributes to me.
R. would like synegoria to have had a significant impact on ordinary Athenians' access to the courts. She argues that in private actions of the sort that were high-risk because e.g. the loser had to pay the epobelia, synegorial support "must ... have lowered the threshold of deterrence considerably" since the main party "did not have to carry the entire pleading on his own" (91). Similarly, R. argues in the case of public actions that, if average Athenians could participate on a prosecution team risk-free as synegoroi, this would have "a significant effect on the current reconstructions of the social stratification of Athenian litigation" (93). At one point R. goes so far as to assert that multiple prosecution "maximized the scope for active participation by ordinary citizens in politically important public actions" (189).
While I am ready to believe that synegoria had some impact on the average Athenian's access to court, I doubt this was as significant as R. posits. First, the surviving corpus of forensic oratory provides little evidence of such access. Although R. reasonably warns against our assuming that synegoroi whose names are mentioned in our sources but about whom we know little else were necessarily members of the elite (190-92), one would like more grounds than this for believing that synegoria opened up litigation to average Athenians.
Second, how likely was it in practice for average men to appear as synegoroi on prosecution teams in public actions? R. believes that, because synegoroi were not liable to the thousand-drachma fine and partial atimia imposed on the initiator of a prosecution if he won less than one-fifth of the votes, the way was paved for average men to participate at trial "risk-free." There were, however, other risks of litigation, including retaliation after a trial on the part of a wealthy defendant; if prosecution teams were evanescent as R. suggests (171), this would give little future protection to the average citizen who had stuck his neck out by joining a team. A more fundamental question arises as well: were ordinary Athenians in a good position in the first place to join in high-profile public prosecutions as supporting speakers? Several factors made it especially likely that wealthy individuals would play this role: they had the leisure and money to seek out rhetorical training and become confident speakers; they were more likely than average Athenians to have past experience in the courts since their financial interests made them more likely than ordinary citizens to become involved in private suits; and they were more likely to have personal connections with the wealthy individuals who initiated these suits (i.e., who assumed the risk of ho grapsamenos) and who sought supporters. Even when average citizens did participate on prosecution teams, as they presumably did sometimes, we must ask whether they were on an equal footing with the other members of their teams. R. makes the interesting point that "the relationship between main and supporting kategoroi within a given team is represented in the speeches as essentially egalitarian, despite the unequal rhetorical burdens of the participants" (193). While this rhetorical representation of roles as egalitarian constitutes good evidence that democratic values shape how synegoroi present themselves in court, it could well veil the social inequality that determined how synegoria worked out of view of the jury. For example, a rich man who was initiating a public prosecution could recruit an ordinary Athenian to join his prosecution team as synegoros and provide him with a speech purchased from a logographer; the power relations involved could be far from egalitarian.
R. addresses the problem of social inequality in connection with defense synegoroi in public actions. She argues that, while the rich might be perceived to have an unfair advantage here since their wealth could buy them synegorial supporters, less well-off men could appeal to their tribes for defense synegoroi; the fact that this help came from the tribe collectively discouraged one-on-one legal patronage that would have clashed with democratic values (229-31). While R. is able to cite several passages as evidence for synegorial support from tribes, the frequency of this type of support and the sociological realities behind it are unclear. It seems doubtful that tribes supported all of their members who sought assistance, i.e. that they functioned as legal aid societies. Those most likely to receive support may well have been individuals with power and influence, e.g. liturgists who had put the tribe in their debt by performing choregiai on its behalf. In this case, tribal provision of synegoroi would reinforce rather than correct existing social inequalities.
II. The prestige model
A second major contention of Litigation and Cooperation is that the model of Athenian litigation as a one-on-one prestige contest, in which opposing players compete in a zero-sum game of honor (cf. D. Cohen 1995), is flawed. R. objects to this model because in her view it both fails to take into account the complexity of team litigation and exaggerates the role of prestige in forensic oratory. While I agree with R. that the prestige model should not be pressed too far, her criticisms call for modifying this model, not rejecting it.
R. believes that the multiplicity of players in team litigation would have made it difficult for jurors to view such trials as prestige competitions between the opposing main litigants. While R. concedes that jurors judging private actions would normally be able to distinguish clearly who the main litigants were even when synegoroi were involved (173-74), she argues that in public actions -- where team prosecution was routine -- this would have been much more difficult; while the identity of a defendant in such cases could remain distinct enough (183-84), the collegial nature of the prosecution would discourage jurors from viewing these cases as contests between the prosecutor named on the writ and the defendant (175). In my view, R.'s analysis is not entirely persuasive.
It is quite possible that jurors looked for one-on-one competitions even when prosecution teams were involved. It would be natural for jurors -- who judged both private and public suits -- to view the latter in terms of the one-on-one dynamics that were more conspicuous in the former. If they were not already inclined to seek out a one-on-one contest behind a team prosecution, the writ read out at the beginning of the trial named the main opposing litigants.4 While R. views the reading of the writ as a formality that would have had little impact on jurors in comparison to the rhetorical contributions of synegoroi (e.g. 177), the writ could provide critical information to jurors for understanding the trial. It indicated who was assuming the risk of the thousand-drachma fine and partial atimia if the prosecution failed to get one-fifth of the votes; the same person might be assumed (rightly or wrongly) to have organized the team and perhaps even to have purchased speeches for his synegoroi. It would not be an absurd initial inference on the part of a juror that the real contest was between this individual and the defendant. The fact that main litigants were reluctant to speak much about their own synegoroi -- as R. points out in a different context (63) -- may have encouraged jurors to view such contests as one-on-one.
If, as a trial progressed, it turned out that a prosecutorial synegoros contributed more rhetorically to the trial than the initiator listed on the writ (177), a juror might still believe that the initiator was the real protagonist but that he found it expedient to rely heavily on his synegoros. Alternatively, under these circumstances a juror might change his original assessment of the main players in this trial and view the synegoros in question as the real prosecutor in a one-on-one competition with the defendant. Even when a juror found the contributions of synegoroi to be more or less equal to one another and to that of the suit's initiator, it was still possible for him to apply a one-on-one model of litigation since he could regard the team prosecution as an aggregation of one-on-one contests that centered on the defendant. The fact that synegoroi, as R. observes, typically represent themselves as independent of the main prosecutor and often assert their own personal grounds for providing a contribution (cf. 179-80) could foster this impression. In such situations the large number of players would complicate the "division" of prestige at the end of a trial between winners and losers (176) and, as R. observes, we no longer have a simple zero-sum game over prestige between two opponents. Arguably, however, this scenario calls only for a less restrictive prestige model that allows for numerous players all vying for reputation and honor.
R.'s skepticism towards the prestige model, however, arises not only from the large number of participants in some trials but also from her analysis of the rhetoric of forensic speeches. R. argues that Athenian trials are first and foremost about legal issues and that prestige is only part of the picture. In my view, R. is mistaken in insisting on a hierarchy that subordinates prestige concerns to the issues of a trial. While it is true that litigants address the issues of a case and that prestige can crop up more or less conspicuously in their rhetoric, honor and reputation may well be woven into the fabric of Athenian litigation from start to finish as motivations for initiating a suit or supporting the initiator; as concerns at trial that can be conveyed by value-laden language or explicit appeals based on character and citizenship; and in the social consequences of litigation for winners and losers.
R. protests of the prestige model: "The trouble is that the Athenians did not represent their legal system as primarily concerned with maintaining or redressing the social balance between its elite members. This is a model imposed on the material by modern historians and sociologists... " (223). While forensic oratory in Athens does not contain much explicit sociological analysis of litigation, this is hardly a reason for modern scholars not to formulate models that might help explain the dynamics of litigation in an Athenian context. R.'s critique of "modern historians and sociologists" looks rather like a backlash against the trend of the last two decades to use social theory to assess Athenian litigation within its broader cultural context; this trend itself was in part a backlash against the study of Athenian law as a system of rules and practices largely devoid of social meanings. While R. does well to point out some of the limitations of recent social analyses of litigation, her reader is left wondering what she believes the place of litigation was in Athenian society and how jurors might react to the rhetorical maneuvering and team strategies on which she focuses.
III. Legal excess and abuse
R. frames her discussion of devious practices associated with synegoria with general remarks about sykophantic behavior and the role of "the sykophant" in Athenian discourse. R. argues that sykophantic behavior could constitute "a real problem in relation to the running of the Athenian court system from a genuinely democratic point of view" (200), and she presents this as a challenge to my position that in public discourse "the sykophant" served as a vehicle for mediating class differences over litigation. I found this challenge puzzling. I agree with R. that the Athenian public took devious legal behavior seriously: this would explain the various legal measures available against it (Christ 1998:28-32) and why elite Athenians made a point of emphasizing before popular juries the threat that "the sykophant" posed to democratic institutions (Christ 1998:98). In my view, however, elite Athenians also had their own reasons for objecting to "the sykophant" and "sykophancy," given their vulnerability -- real or perceived -- to the threat of litigation and concerns over the receptiveness of popular courts to sykophantic accusations; consistent with this hypothesis is the prominence of "sykophancy" in authors openly critical of the Athenian democracy and its courts (Christ 1998:78-90). Viewed in this light, the vilification of "the sykophant" as a common enemy in the courts, where elite litigants frequently addressed juries made up predominantly of average Athenians, may well have helped mediate differing perceptions of litigation and cultural tensions these provoked.5
Although I disagree with a number of R.'s positions, her discussion of synegoria and its intricacies is illuminating. R.'s analysis should be consulted by all those studying forensic oratory and Athenian litigation. Several indices (General index, Index of names, Index of sources) facilitate its use.
1. Among recent books are: S. C. Todd, The Shape of Athenian Law (Oxford 1993); D. Cohen, Law, Violence and Community in Classical Athens (Cambridge 1995); A. C. Scafuro, The Forensic Stage: Settling Disputes in Graeco-Roman New Comedy (Cambridge 1997); M. R. Christ, The Litigious Athenian (Baltimore 1998); E. Carawan, Rhetoric and the Law of Draco (Oxford 1998); S. Johnstone, Disputes and Democracy: The Consequences of Litigation in Ancient Athens (Austin 1999); D. S. Allen, The World of Prometheus: The Politics of Punishing in Democratic Athens (Princeton 2000). In addition, many commentaries on forensic orations have appeared and a new series of translations of Attic oratory is underway at the University of Texas Press (M. Gagarin, ed.).
2. R.'s table on p.62 erroneously lists the total number of private trials as 48 rather than 47 -- the correct figure cited in her text.
3. Cf. E. M. Harris, "The Penalty for Frivolous Prosecutions in Athenian Law," Dike 2 (1999) 136. Harris, however, greatly overestimates the efficacy of Athenian measures against this and other forms of legal abuse: see M. R. Christ in Symposion 2001: Vorträge zur griechischen und hellenistischen Rechtsgeschichte, edd. M. Gagarin and R. Wallace (forthcoming).
4. See e.g. Ar. Vesp. 894 and Aisch. 1.2, with D. MacDowell, The Law in Classical Athens (London 1978) 248.
5. R.'s challenge may arise from her belief that my position is that the sykophant "was fundamentally a stereotype created by the Athenian elite as a way of venting their dissatisfaction with the democratic courts" and "essentially an ideological construct created and promoted by the Athenian elite" (200). My actual position, however, is that elite critics of the democracy "may even have originally 'invented' the idea of sykophancy as a vehicle for railing at democratic excesses. If they did, however, Athenians took the idea of sykophancy and appropriated it as a part of their civic ideology" (Christ 1998:68). In my view, "the sykophant" whom we encounter in public discourse is fully compatible with democratic ideology.