Law and Equity in the Attic Trial*
Harald Meyer-Laurin
I.
The following work will investigate whether there was regard for equity in Athenian positive law. The question has already been repeatedly posed in the literature. Particular thanks are due to Vinogradoff for fundamental investigations on the topic (1922: ii.63 ff.; 1928: ii.15 ff.). He came to the conclusion that equity was a fixed element of legal discourse. Epieikeia, which he translated as ‘fairness’ and ‘justice in the highest sense’, was for him ‘the central term of legal discourse’ (1922: ii.71) and ‘the most characteristic contribution of Greece to the treatment of legal problems’ (1928: ii.15). Among more recent authors, Gernet (1955: 67), Jones (1956: 64 ff.), and in particular Stoffels, in his dissertation (1954), have argued that judgment among the Greeks was not strictly according to the laws but according to equity. Paoli also saw in the laws only a guideline, from which it was possible to diverge on grounds of higher justice.[1]
These authors concern themselves largely with the considerations of the Greek legal thinkers, especially Plato and Aristotle, and believe in a strong influence of theoretical speculation on practical law. Above all Vinogradoff (1928: ii. 19) starts from the observation that Aristotle, in teaching concerning epieikeia developed in NE 5 and Rhetoric 1.13, created for the Athenian judges ‘a mechanism for the free interpretation of law’.
[2] Other researchers, however, starting from the perspective of positive law, have always argued that there is a big difference between Greek law and Greek legal philosophy. In his review of Maschke’s Willenslehre, Kunkel gave a warning that must be noted:[2] ‘Philosophical speculation is far ahead of actual legal practice, the techniques of legislation and trials . . . The ethical ideal that speaks from the abstract thought processes of Aristotle and the concrete descriptions of Plato may be impressive, but life deals with ordinary measures, not with the high ideals the philosopher poses for himself and others. There is here a great divide between positive law and philosophy that necessarily precludes equating them.’
In his Willenslehre, Maschke showed the difference between theory and practice with the example of the moment of decision and guilt. Wolff (1961: 254 n.15) expressed the concern that even Aristotle’s attempt to portray a doctrine of epieikeia as a corrective to ius strictum appears to have had no impact on the positive law of Athens.
For this reason in what follows the question of whether litigants appeal to equity arguments and the courts react to equity considerations will be considered exclusively on the basis of the surviving forensic speeches. In this we are concerned only with the principles of jurisprudence. Rhetorical appeals to equity and the common argumentation ad personam, even when they are carried on in detail, have nothing to do with the basic principles of jurisprudence according to which the dikasts were to judge. It certainly cannot be ruled out that in the legal reality of Athens all sorts of points, including such [equity] arguments, were occasionally considered emotionally and that the heliasts thus unknowingly broke their judicial oath. However, given the nature of the subject, such circumstances are imponderable and do not lend themselves to systematic study. . . .
[3]
II. Fraud as a Defense Claim
Kübler (1934: 87) argued that in Athenian law there was for a long time a formal objection (Einrede) similar to the exceptio doli (‘exception for fraud’). His idea, that the existence of such an argument could be shown from Hyperides’ Against Athenogenes, has already been rejected on compelling grounds in the literature. However, it remains to be investigated whether, in general, such a formal objection is even conceivable in Attic law. [Two procedural parallels are considered, the diamartyria and the paragraphē.]
1. The diamartyria was certainly not a suitable legal mechanism for this purpose. As a form of decisive formal evidence, it entailed that there was no longer a trial over the matter before judges. The inadmissibility of the opponent’s case, or the admissibility of one’s own case, was demonstrated simply through the statement of a witness.[3] If the opposing party wanted to pursue his demands further, he had to prosecute the witness for his statement through a dikē pseudomartyriōn. If he won this case, he could take up the latent main issue anew.
[4]
2.
But could the paragraphē perhaps be proposed as an exceptio doli? In the form common in the forensic speeches of the fourth century it had existed only since the law of Archinus in 403 (cf. Isoc. 18.2; Lys. 23.5, 10). In contrast to the diamartyria, with the paragraphē the assertion that the opponent’s suit was inadmissible was offered by the defendant before the hēgemon (‘presiding magistrate’) of the appropriate heliastic court. However, the suit was not set aside entirely on this basis; it was instead passed on to the heliasts, who simply had to decide first the question of the admissibility of the complaint that was posed through the paragraphē.[4]
This procedure certainly recalls the exceptio of the Roman formulary hearing in a way. For this reason the paragraphē became known as an ‘exception’ and was placed in parallel with the Roman exceptio.[5] In fact, however, it involves circumstances specified in Athenian legislation in which ‘there were to be no suits’ (mē einai dikas), whereby it was left up to the accused party to dispute as ‘inadmissible’ (mē eisagōgimos) the ‘suit’ (dikē) that had been brought.[6]
Our main source for these legal cases is Pollux 8.57, although his listing is in no way exhaustive:
Paragraphē – whenever someone claims that the suit is inadmissible, either as having been already decided, or on the grounds that there had been an arbitration, or that he had been released, or that the time had run out in which it had to have been tried (or that this suit was not to be tried . . . )
Several of the circumstances named by Pollux, like those in certain legal citations in the orators, correspond to exceptiones in [5] Roman law, e.g. the unsuitability of the court that had been appealed to, legal validity, statute of limitations.[7] However, none corresponds to the exceptio doli. This circumstance alone of course in no way proves the absence of such grounds for a paragraphē, for the survival of Athenian legal provisions is very incomplete.
The pseudo-Demosthenic speech Against Zenothemis (Dem. 32), which involves a paragraphē, indicates that a case for paragraphē comparable to the exceptio doli really seems as yet unknown. According to the defendant’s narrative, here was a typical case in which, by our terminology, an appeal to exceptio doli would have been made.[8]
The importer Protos took out a loan from Athenian lenders, one of whom was the defendant, Demon, using as collateral the grain that was to be bought with the money. He used the ship of the Massilian Hegestratos, who had for his part also received money on the collateral of the ship and cargo for shipping grain to Athens. The prosecutor Zenothemis, a compatriot of Hegestratos, traveled along with them.
In Syracuse the ship was loaded only with the grain purchased by Protos.[9] Hegestratos and Zenothemis exploited this fact for their deceitful plan. They took out a maritime loan from Massilian lenders for which they used the ship’s [6] cargo as security as if it were their own property.[10] In order to escape the obligation to pay it back, they intended to sink the ship during the voyage to Athens. This trickery went amiss. Hegestratos was caught in the act and threw himself into the sea in fear of the angered crew.
The already damaged ship had to make for the harbor at Kephallenia, where it was repaired. During this time Zenothemis made efforts to get a ruling from the harbor authorities in Kephallenia according to which the ship would have to continue traveling not to Athens, but to Massilia. Since the plan cooked up with Hegestratos had gone amiss, he intended to disappear in his home city in order at least to escape the grasp of the Athenian lenders (8). However, Protos successfully objected and by order of the harbor authorities the ship had to travel to Athens. Once reaching Athens, Protos at first appeared to have possession of the landed grain shipment; Zenothemis protested this and put in a demand for the grain, claiming that it was not Protos but Hegestratos who had bought it and pledged it to him – Zenothemis – as security for a loan (14, ‘he “made a dispute”, ēmphesbētei, over the grain, claiming he had made a loan to Hegestratos’). That was a lie, but led to an embateusis (‘assumption of control’) of the cargo without there being need for proof of his claims.[11] Zenothemis [7] took control by asserting his claim to the cargo as security; this was an especially strong position legally, similar to ownership, to which he held fast from then on (17).
For this reason Protos conducted a ‘removal’, an exagōgē, against him (17). Zenothemis responded, however, that he would not submit himself to such treatment unless it were carried out by Demon (‘this man … said specifically that he would not be removed by anyone but me’, 17). He apparently meant by this that no one, other than Demon at best, had any right to the cargo that was better than his own. Mitteis pointed out Zenothemis’ goal in this:[12] he could never hope to win a suit against Protos, who had all the evidence on his side, so he had to try to get Protos onto his side and have Demon as his opponent, who had no direct evidence without Protos. He initiated this plan by portraying Demon as the actual importer and Protos simply as his agent.
The trick worked. When the price of grain suddenly fell in Athens, Protos had to fear that if he continued to represent himself, as he had, as an independent importer (25), he would become personally responsible not for a profit but for the shortfall (ekdeia) between the amount of the loan and the proceeds from the security (30). He therefore adopted Zenothemis’ thesis and claimed from then on that he had merely acquired the grain as an agent of Demon and on his (Demon's) account (25). Therefore, a dispute over the cargo did not concern him and it would be no concern of his if Demon relinquished the grain (19).
In order not to lose everything, both the loan and the security, without a fight, there remained no alternative for Demon other than to take over the [8] exagōgē himself against Zenothemis (18, ‘I had to choose either to put Zenothemis out, or to lose my property which had been brought safe to port and was there before my eyes’; 20, ‘the only course left . . . was to remove this man’). Thereupon Zenothemis brought suit on the basis of a syngraphē (‘written agreement’) which Demon did not dispute (16), in which Hegestratos had pledged to him the grain cargo as security for a loan.[13]
Demon clearly regarded the conduct of Zenothemis as malicious: ‘the man, whom no one would have thought audacious enough to come here, after having plotted and done such deeds — this man, Athenians, has so surpassed all in shamelessness and boldness, that he has not only come, but has actually laid claim to my grain and brought suit against me’ (9).
Since most of the speech consists of a portrayal of Zenothemis’ behavior as deceitful, one would expect that he would also make this the grounds for his paragraphē. In fact, he does begin his remarks with the claim that he will show that the suit is inadmissible with reference to the lies and intrigues of the accuser (2, ‘the same speech will suffice to prove to you that his action is not maintainable and to make you see the whole of his plot and his rascality’; 3, ‘you will hear of a man's audacity and uncommon villainy’).
It is all the more striking that the paragraphē is clearly grounded on a different basis. Demon makes use of the purely formal distinction that Zenothemis brought the charge as a dikē emporikē (‘maritime suit’). He is of the opinion that a dikē emporikē is inadmissible because no contract exists between him and the plaintiff. He appeals to the following law: ‘actions for shippers and merchants shall be upon obligations for shipments to or from Athens and concerning which there shall be written agreements’ (1); cf. Dem. 33.1 and 34.42). The grounding of the paragraphē scarcely goes beyond [9] this plain reading of the law (1, 23).[14] It is not only exceedingly short and meager in comparison with the portrayal of the fraudulent machinations of the accuser, but also doubtful in legal terms.
It is crucial what meaning is given to the wording of the law. If one interprets it to the effect that, of contractual obligations (symbolaia) that have been undertaken for the purpose of sea trade and that involve Athens, only those for which a written agreement (syngraphē) exists can be the basis for a dikē emporikē,[15] then, to this extent, Demon’s paragraphē is well grounded; for between him and Zenothemis no written agreement existed. But if one separates the two half-sentences from each other, so that ‘concerning which’ does not refer restrictively to ‘the obligations’, then the law means, ‘with all obligations’ that are undertaken for the purpose of maritime commerce and concern the city of Athens and, in addition, in all commerce for which a syngraphē exists, a dikē emporikē is admissible’.[16] As Gernet (1954: 122) has shown, this second meaning not only corresponds better than the first to the spirit of the legislation, which is supposed to facilitate maritime trade, but also to the letter of the text, in which, significantly, not the term synthēkē (‘contract’) but rather the more inclusive symbolaion (‘obligation’) is used. If one follows this view, one arrives at the conclusion that in this dispute a dikē emporikē is admissible since it concerns a transaction of maritime trade between merchants. Demon would then have tried to foist the narrow meaning of synthēkē upon the word symbolaion.
Even if he is successful in the paragraphē (the result of the trial is not known), since it was based on the claim that the commercial court did not have jurisdiction, Demon must have expected the same charge to be brought against him again before the proper court. In any case he had to expect this [10] if Zenothemis was an Athenian metic.[17] If the prosecutor belonged to the class of epidēmountes (‘visitors’), who stayed in Athens exclusively to transact business until their cargoes were landed or otherwise for a short visit, then he was, as a xenos (‘foreigner’) largely without rights and legally incompetent. The ‘foreigners’ were apparently allowed access to ‘commercial suits’ but otherwise only to those disputes that came about through contracts (symbola) regulated by treaty between Athens and the home city of the ‘foreigner’.
On the other hand, a successful claim of fraud would have entirely ruled out the possibility for a further charge. According to the defendant’s narrative, that would not only have been expected, but it would have been the surest means of meeting the charge. Since Demon, despite describing Zenothemis’ behavior as fraudulent, used a formal objection against the admissibility of the suit, it seems clear that a criterion for paragraphē comparable to the exceptio doli was unavailable to him.
It remains unclear why he describes the substantive legal position so fully, if it was not required to ground the paragraphē. This observation can be made, more or less, with regard to all the paragraphē speeches. In addition, the speakers almost excuse themselves for having proceeded with a paragraphē, insisting that they could have refuted the claims of their accusers even without this means of defense (Dem. 36.2). Accordingly, from the point of view of the prosecutor, a defense by means of a paragraphē (or diamartyria) is regularly cast in suspicion (Dem. 35.1-2; 44.57; Is. 3.3-4; Is. 6.3, 43).
[11] One might conclude that this legal mechanism often served as a last resort, in order to prolong the dispute, and for this reason provoked an unfavorable prejudice among the dikasts (Dem. 36.2). However, it must be pointed out that in fact only a small, scarcely discernible, prejudice could have existed against ‘special pleas’, for in the trial of Apollodorus against his stepfather Phormio over four fifths of the judges voted for Phormio, who had defended himself with a paragraphē.[18] That does not explain, of course, why the substantive issue [as opposed to the legal question] is always set forth in the paragraphē speeches.
Scholars have tried to solve this problem by pointing out that the heliasts, because of their ‘limited formal legal understanding, wanted to decide on the ‘real’ question’(Lämmli 1938: 16; Paoli 1933, 40-1). This supposition seems to ignore the formalistic traits of Attic law. It is incompatible with the apparent attempt in the Zenothemis speech, and in the other paragraphē speeches, to justify the paragraphē by giving conclusive evidence, that a legal condition hinders the bringing of what is, in itself, a possibly admissible ‘suit’.
The Pantainetos speech (Dem. 37.32-6) seems to show how seriously litigants adhered to the paragraphē criteria. Pantainetos charged Nikobolos for ‘damages’ (blabē) by means of a dikē metallikē (22). The ‘charge’ (enklēma) must also have entailed other allegations, such as ‘assault’ (aikeia), ‘hybris’, ‘violence’ (biaia), and ‘injustices towards heiresses’ (33, pros epiklērous adikēmata). The accused defended himself by means of a paragraphē. Against the claim of ‘damages’ he appealed to a ‘release and discharge’ (aphesis kai apallagē: 1, 17, 19). Against the other allegations he objected that they could not properly be made part of the current ‘suit’, since there were special suits and separate jurisdictions for them. This part of the paragraphē had been erased by the Thesmothetai (34). That could only have taken place because it was inadmissible, for [12] the heliasts would have had to decide the question of their own authority.[19] It seems clear that the Thesmothetai erased the questionable passage for this reason, because the special plea — that it was inadmissible to make multiple claims together before one court that was not responsible for them all — was based not on an explicit legal requirement but on an inference from the laws.
Paoli has given one plausible explanation why not only the special pleas contained in the paragraphai are brought forward in the paragraphē speeches but also the entire legal and substantive arguments against the suit itself.[20] He tried to show that in the same session, before the same judges, there was a vote first on the admissibility of the paragraphē and then, if necessary, on the suit. For this reason arguments on the issue itself were brought forward right from the beginning.
3.
Are equity arguments apparent in other cases? Vinogradoff claims that in the dispute against Dionysodoros (Dem. 56) the accused clearly pleads vis maior [that he was forced] and that, it follows, he could expect the clemency of the jurors.[21]
Dionysodoros and Parmeniskos had taken out a maritime loan in the amount of 3000 drachmas on the security [13] of their ship. In the syngraphē it stated that the money was only allotted for a trip from Athens to Egypt and directly back; otherwise there would be a double penalty. As always in a maritime loan the contract contained the clause that the capital was only to be paid back if the ship returned safely to the Piraeus. Parmeniskos had gone to Egypt and bought grain and other goods. On the return trip the ship became disabled and was only able to reach the harbor at Rhodes badly damaged.
Dionysodoros now asked the lenders, in view of the non-culpable shipping accident,[22] whether he might pay back the loaned capital as well as interest for the stretch of the journey actually completed by the ship, from Athens to Egypt and from there back to Rhodes (12, 13, 33, 34, 38, 41). Other lenders agreed to this (22). Dareios and Pamphilos, however, stood by their demand for payment of the entire interest agreed upon, since the contract did not foresee any different rule for capital and interest (35). They were only ready to accept the money offered as partial payment, but reserved the right to pursue the remaining interest through litigation (14-15). [14] On this basis Dionysodoros paid them nothing at all, and he was unwilling to submit the dispute to a private arbitrator (18).
Since they were unable to obtain payment, the creditors sued Dionysodoros as sole debtor, for double the amount, on the grounds that the ship, although not sunk, had traveled not to the Piraeus but to Rhodes (20, 27, 38, 41, 44).[23] But the accused, like the accusers, cited the wording of the contract, according to which the money only became due if the ship reached the agreed port safely. He did not appeal to vis maior (as the speaker’s charges show). He was instead concerned with the question whether, because the ship became disabled, even if it did not sink, already the negative condition of the contract—if the ship did not return safely—had been fulfilled (31-2, and esp. 41 ‘you have the insolence to declare that the vessel did not arrive safe at the Piraeus’). Therefore both sides dispute in formal terms over interpretation of this clause of the contract.
One case, in which the accused could have pleaded the unreasonableness [of the charge], pertains to the pseudo-Demosthenic speech against Polykles (Dem. 50). In the literature it has not yet, it seems, been discussed from this aspect.
Apollodoros had as trierarch spent lavishly on the equipping of a trireme. He had not, as was the usual practice, taken the ship’s equipment supplied by the state authorities, but instead provided his own equipment which was especially ostentatious. He also chose to forego employing the Athenians who had been drafted for military service and assigned to him and hired a mercenary crew at his own cost.
After his appointment had run out, his successor Polykles was supposed to take over the trireme. Polykles appeared with the fleet at Thasos and put himself under the command of the general Timomachos. However, he refused to take the ship over from Apollodoros on the grounds that it [15] was unreasonable for him to have to carry on the high expense, since he would have to take over the private ship equipment and the expensive crew (10, 34-6).
As a result Apollodoros had to remain in service for over five months longer and was only able to return home when the whole fleet was ordered back to Athens. There he sued Polykles for ‘damages’ to recoup the expenses he had had during the time in which Polykles was supposed to have been in command of the trireme. He cited the decree according to which Polykles had had to report to the ship (29) and take it over.
In the speech there is no mention of the grounds for defence (Blass AB 3.1: 527). Apparently Polykles did not plead that the charge was unreasonable. For if that had been a legally valid objection, the speaker would not have admitted plainly that the accused had refused for this reason to take over the ship (10). His only recourse was to appeal to the wording of the decree and claim that by traveling to the fleet and being present with the general he had fulfilled the decree. The dispute was thus solely over interpretation of the decree.
III. Equity Arguments on the Prosecution Side
1.
The most important source for our subject is Hyperides' speech Against Athenogenes, in which the speaker tries to get free of a contract that came about through fraud. As Partsch put it, the case concerns ‘a challenge similar to an actio de dolo’ (1909: 172 n. 6; cf. Pringsheim 1950: 24 n. 2).
[16] The speaker Epikrates fell in love with a slave who was employed, together with his father and brother, in a perfume business belonging to the metic Athenogenes. Athenogenes learned of the relationship and saw in it the possibility to get rid of the perfumery, which was heavily indebted. He forbade Epikrates further access to the youth, but suggested to him at the same time to purchase all three slaves for forty minas. In the ensuing negotiations he hypocritically advised him not just to purchase the slaves’ freedom but to acquire them for himself, together with the shop in which they were employed and all its assets and liabilities.[24] He gave assurance, contrary to the truth, that only small debts encumbered the shop, which would be more than offset by its stock. As soon as he had won Epikrates over to this suggestion, he took out a prepared draft of the contract and insisted that the document be immediately sealed and deposited.
Then the parties went to the perfume business, where the transfer of the shop took place upon payment of the purchase price.[25] That had scarcely taken place when the shop’s first creditors were demanding their money from Epikrates. After three months the demands ran to five talents altogether.
When Epikrates read through his copy of the contract in greater detail he realized that he had not only taken over the small business debts specified, but that he had also agreed, through a seemingly innocuous clause, to assume liability for all obligations that the manager Midas had incurred in running the business (10). He felt himself deceived and complained to Athenogenes, who, however, appealed to the wording of the contract. He denied having known the extent of the debts that had not been indicated in detail.
[17] Epikrates brought a suit for damages. The damages consisted of the forty minas that he had paid.[26] Through the contract Athenogenes had caused him ‘injurious disposition of goods’.[27] On this basis the speaker tried to demonstrate the invalidity of the contract.
The speech shows that there was no general rule according to which a contract could be cancelled because of malicious deception. The speaker would otherwise have mentioned the relevant law instead of deriving the contract’s invalidity by analogy from various statutes specific to other matters.[28]
Some authors assume that he was appealing to equity.[29] They refer to §13, where the absolute validity of contracts is rejected: ‘only just (agreements), my good man; (contracts) that are not (just) it renounces as invalid’. This sentence is supposed to show the legal possibility of voiding a contract that has come about through malicious deception.
That the accuser was actually unable to refer back simply to the evident deceit of the accused shows again that he had to use statutory provisions of more limited application [18] to prove the contract invalid. Even the first rule cited by him makes clear that dealings negotiated through tricks were not generally invalid. It involves regulations for officials keeping order in the market, which prohibited malicious deceit specifically in small transactions (kapeleia) in the agora (14). In order to apply this specific regulation to his case, the speaker speaks as if he had been deceived in the middle of the marketplace and passes silently over the fact that it had nothing to do with a market sale (‘Yet you lied in the middle of the market when you made the agreement to defraud me’, 14).
The second rule was also apparently only a market regulation, through which a further special case of deceit was supposed to be prevented. It prohibited the selling of slaves while concealing their injuries and diseases (15). The laws cited subsequently do not involve any cases of fraud at all. There are rules about the requirements for a legally valid marriage (16) and the clause of the inheritance law concerning volition (17). Finally, there is a law, which is not otherwise preserved, according to which that person is liable to whom a slave belonged when he caused any ‘damages and losses’ (22). This law probably regulated a kind of liability for a case where the seller did not pay and the slave is seized by an injured third party, but it certainly does not entail any rules that might best apply here, about reparation for non-performance or poor compliance.
[19]
In sum, the argumentation of the speaker consists of an arbitrary listing of laws in which certain acts are declared invalid, but none fits his case. However, he applies these proscriptions in order to prove the nullity of his contract with Athenogenes. His approach can only be explained, not as an explicit appeal to equity, but as an attempt to bring his suit into conformity with legal provisions.
2.
Dareste (1875: iv. 70-1) and Vinogradoff (1922: ii. 61; 1928: ii. 21-2) also see a suit for fraud based on equity in the dispute of Demosthenes Against Onetor (Dem. 30-31). As a result of a suit of Demosthenes, Aphobos had been sentenced to a payment of ten talents because of his poorly conducted guardianship (Dem. 29.60). In fulfillment of this, Demosthenes wanted to seize, among other things, a property worth one talent. Aphobos had, however, purportedly given it to his brother-in-law Onetor as security for the return of his wife's dowry. Onetor had placed horoi (‘markers’) on the property even before the end of the guardianship trial and taken it into his possession as kyrios for the wife when, after Aphobos’ conviction, the marriage was dissolved. When Demosthenes also laid claim to it, Onetor executed a ‘removal’ (exagōgē) against him. Against this Demosthenes brought suit by means of a ‘suit for ejectment’ (dikē exoulēs).
Dareste and Vinogradoff suppose Demosthenes to be trying to assert with this suit that protection of a ward from deceitful guardians demands priority over security for a dowry. Such a supposition is in no way justified by Demosthenes’ argumentation. His principal argument against the legal admissibility of the ‘removal’ is precisely that there is no security for a dowry at all, since the dowry to be secured had never been paid to Aphobos (30.4, 7-24). His ancillary argument is just as formal: that the marriage between Aphobos and Onetor’s sister had never been dissolved, so there had been no legitimate claim for the dowry that would have required security (Dem. 30.25 ff., 33 ff.). Demosthenes would best have made an appeal [to equity]
[20] if he had conceded the formal legality of the security arrangement, but nevertheless laid claim to the property based on the deception.
3.
Isaeus’ speech On the Estate of Kleonymos (Is. 1) has often been presented as an example of a challenge against a will based on equity. The speaker tried, as it is argued, to construe his clients’ precedence with respect to the estate from their closer blood relationship.[30] Long before his death, purportedly out of enmity against the guardian of his nearest relatives (who were then still under age), Kleonymos had decided that after his death not these but more distant relatives should receive his estate. He left the document about these matters with an astynomos (‘city supervisor’) for official safekeeping. In the literature it is mostly accepted as Kleonymos’ will, which he apparently had left with the authorities out of special concern that his bequest should reach his appointed heirs.[31]
Immediately before his death he wanted to make another modification and authorized one of his appointed heirs to get the document. He died, however, before the change could be made. At this point the intestate heirs put in a claim for the estate. They cited their nearer relationship, as well as the good understanding they shared with the testator (4, 17, 37, 38, 41-4), and claimed that he had only had the will fetched in order to abrogate it in their favor (3, 14). In formal, juristic terms this argument was very weak in comparison with the claim of the appointed heirs, who could point to the document.[32] If the speaker had really appealed only to this, there would be a true equity claim. It must not escape notice, however, that he challenged the will at the same time as ‘invalid’. He claims the testator [21] had composed it when ‘disturbed’ (paraphronōn 11, 20, 21, 43, 50).[33] Despite the claimed nearer relationship Isaeus still thought it necessary to make use of the clause in the inheritance law dealing with volition [requiring that the testator be of sound mind, without constraint or improper influence]. That indicates not an appeal to equity, but rather, ‘this legal provision was the last recourse of desperate advocates in legal challenges, who otherwise had little chance of success’.[34] It even seems that the speaker only discussed the closer relationship and the good understanding with the testator in order to demonstrate his ‘insanity’. In that case, the argument would have nothing to do with equity.
This becomes clearer if the document was not a will but rather, as Bruck (1909: 125-33) has made probable, a ‘gift in case of death’. [22] In this case it would be an intentional misdirection by the speaker to claim that there was a will. Such a deception of the judges was possible because of the informality of wills and the similarity of gifts and bequests. The purpose of this tactic is clear. For one thing, the argument of the opposing party, that the testator did not want to abrogate his allocation but to confirm it (24), was reduced to absurdity, since one will could hardly be confirmed by a second. Above all, however, the clause concerning volition was only applicable to wills, not to gifts, for which the kinds of dealings that existed among living persons applied. To apply testamentary rules seemed so important to the speaker that he tried to pass off the deed of gift falsely as a will.
4.
One further indication that equity considerations did not emerge is the speech of Isocrates Against Callimachus (18), which involves a paragraphē. During the civil war, when the oligarchic party was ruling Athens, Callimachus was apprehended and denounced on the street by the speaker and two others for possessing money that belonged to an exiled member of the Piraeus party. The Ten had subsequently ordered the confiscation of the money. After the end of the civil war, Callimachus sued the speaker for ‘damage’[35], demanding one hundred minas as a penalty —perhaps including ‘assault’ The claim that he had been bodily mistreated during the arrest (9) and the size of the demanded penalty would support the idea of ‘assault’. It is unclear from the speech how much money had been confiscated.
The speaker brings a paragraphē in defense against the suit. He appeals to the law of Archinus. This law was created for the purpose of clamping down on the sort of private legal disputes that were stirred up by the disturbances of the civil war. According to this law, and also for other reasons, the suit was clearly inadmissible: the speaker had already declared himself ready to pay [23] two hundred drachmas, if Callimachus would give up the suit. The contents of the agreement were announced as an ‘arbitration on fixed terms’ (10, diaita epi rhētois). The accuser had already instituted the same suit previously, and when the speaker blocked the suit with a witness's sworn statement (diamartyria) [that the matter was settled in arbitration], he [Callimachus] failed to prosecute for ‘false testimony’ (11-12).[36] That the presiding magistrate had not rejected the new suit suggests that the official was not authorized to do this, even if the inadmissibility of the suit was evident.[37] This is explained by the fact that, in the meantime – through the law of Archinus – the paragraphē had been introduced, under which it was always for the dikastērion to decide admissibility.
Significantly, the speaker seems not to be so sure of his position. He apparently feared a decision according to extra-legal considerations (34): ‘Consequently, it is not fitting that your votes should be based upon favor (kharis), or upon mere equity (epieikeia), nor upon anything other than upon the oaths you took when you made the covenant of Amnesty’. The words ‘favor’ (charis) and ‘fairness’ (epieikeia) suggest that Callimachus had appealed to equity (cf. Stoffels 1954: 24). If his prosecution speech were preserved and an appeal to epieikeia found in it, the case would be unambiguous. However, the prosecutor’s arguments are portrayed by the defendant as an appeal to equity in such a way as to weaken them and thus to render them unworthy of consideration. In clear opposition to this, the speaker’s own argument for dismissal of the suit is based on the entirely formal grounds that [24] judgment may only be passed according to the oaths of amnesty. Moreover, the speaker’s discussion indicates that he had far less fear of equity judgment than concerns of another kind. Mention of political trials in which the defendants had been convicted but released because of the amnesty agreements, or where a suit had simply not been brought because of the agreements (22-24), as well as ongoing references to the peace treaty between the parties of the civil war (19, 21, 25-7, 34, 42 47), show that as a supporter of the discredited oligarchic party he had to fear the political prejudice of the judges. In order not to reveal his suspicions too clearly, he seems to refer to the dikasts’ possible bias as epieikeia. So true equity considerations played no role.
IV.
Equity Arguments as Entechnoi Pisteis
The selection of speeches discussed so far has been dictated by whether they have been cited in the literature as examples of speakers having recourse to equity argumentation. Added to these were two speeches (Isoc. 18 and Dem. 50), in which possible equity arguments might have been seen from the opposing party.
Analysis of the speeches has shown that equity considerations have not played a role. Instead, the disputes followed precisely formal lines, indeed, over interpretation of a contract provision (Dem. 56), a decree (Dem. 50), a document (Is. 1), or over the existence or nonexistence of security for a dowry (Dem. 30 & 31). In the speech Against Callimachus (Isoc. 18) there was no thought of an equity judgment, but rather fear of the political bias of the judges.
Only in the case of the pseudo-Demosthenic speech Against Zenothemis (Dem. 32) and Hyperides’ speech Against Athenogenes could the substance of the case have had something to do with equity. However, here it appeared that in order to strengthen his position with regard to the particular statute, the speaker [25] had recourse to provisions that were legally doubtful and even irrelevant before addressing the obvious deception of his opponent. That allows the conclusion that equity considerations had no legal significance.
However, the question arises why so often in the speeches we find what looks like equity argumentation. It is striking in this regard that such discussions are not limited to speeches in which no other arguments are available to the speakers on substantive or legal grounds. They are found as a typical element in almost all forensic speeches. This strengthens the impression that they achieved no special significance. But it is also true that their enduring place in the composition of forensic speeches assures that they were not just idle talk. Pringsheim expressed the suspicion that ‘perhaps what Vinogradoff calls equitable arguments would be best brought under the headline logoi (entechnoi pisteis)’.[38]
At the time of the orators two kinds of proofs were distinguished, the atechnoi and entechnoi pisteis. To the former, according to Aristotle, belonged laws, witness testimony, contracts, slaves’ admissions from torture, and oaths (Rhet. 1375a23; cf. 1355b35 ff.). These ‘artless’ proofs belonged to archaic legal procedure, when the decision of a legal dispute was bound by strict evidentiary rules, under the assumption that these ‘proofs’ were by themselves decisive when carried out in the prescribed forms.[39] During the classical period this stage of evidentiary theory was eclipsed in Athens’ courts. Free evaluation of evidence ruled; that is, the dikasts could freely decide each legal dispute in view of the evidence.[40] As a result, the significance of the entechnoi pisteis, the logoi, increased. This "logical" reasoning served to upset the opponent’s presentation of proof, which was no longer undisputable, [26] and to firm up or fill out one’s own, especially when the atechnoi pisteis offered no unequivocal evidence. This was the hour of birth for forensic rhetoric.[41] It was essentially, in Gernet’s formulation, the art of finding and examining probabilities (vraisemblances), which by definition were something other than evidence in the original sense. They were technical means of persuasion (moyens de persuasion) that were employed against the evidence or in its absence.
It is known that the orators had recourse to all psychological means and methods that were suitable for improving one’s own position or harming the opponent’s. Like an appeal to sympathy for oneself and the personal abuse of the opponent, raising the particular justice of one’s own demands seems simply to have been one of these entechnoi pisteis.
In Dem. 44.8 the speaker says that the judges should vote for the opponent even if he does not have the law on his side but his demands seem ‘just and humane’ (dikaia kai philanthrōpa). Jones (1956: 35) inferred from this a common tendency to push for a decision according to dikaiōtatē gnōmē (‘most just understanding’) not only when there was a gap in the statutory law but also when there was a conflict between law and right. He misunderstood the sense of this clever argumentation, which does not involve any possible recognition of the opponent’s claim but is directed at weakening it. The expression in Dem. 44.8 is a deliberate contradictio in adiecto [oxymoron]: He is saying that the opponent’s claim cannot be right if it does not conform to the statute, since only he who abides by the statute himself can at the same time have justice on his side.[42]
[27] If one examines once more the rhetoric of the speeches that seem to indicate equity arguments, aside from questions of interpretation, one notices that unambiguous evidence is missing. The speaker of the pseudo-Demosthenic speech against Zenothemis (Dem. 32) was deprived of any possibility of proving his right to the grain from the moment that Protos went over to Zenothemis’ side (29-30). He could not make a formal appeal against the deception as such, but by pointing out the fraudulent dealing he could explain his own lack of evidence and weaken the credibility of the prosecutor, though the latter could point to a written agreement.
The Demosthenic speeches Against Onetor (Dem. 30-31) are similar. Demosthenes tried to oppose the legal admissibility of the ‘removal’ (exagōgē) with the claim that the dowry security could never have been granted since the dowry to be secured had never been paid to Aphobos. As evidence he offered the testimony of the first husband Timokrates, in which he revealed that, according to a contract, he owed a sum that was once a dowry now as a loan at an interest rate of ten per cent, which he was to pay to Aphobos (30.9). Here it is significant that the interest was not payable to Onetor [the woman’s kyrios] but to Aphobos [her second husband], and that the rate of ten per cent was not the ordinary eighteen per cent that a divorced husband usually had to pay for an unreturned dowry. So it appears that the money was not owed to Onetor as a dowry but to Aphobos as a loan.[43] In that case Aphobos would have held the dowry simply in the form of a loan to Timokrates, just as Onetor claimed (Dem. 30.18-20) and wished to prove through the witness [28] statements of Aphobos and Timokrates (‘providing Aphobos and Timokrates as witnesses, the one that he has paid the dowry, and the other that he has received it’, 38). If, as Demosthenes claimed (Dem. 30.3, 5, 18, 39), everything had been arranged by Onetor and Aphobos for fraudulent purposes in order to disadvantage him, the mention of this was necessary simply in order to weaken the credibility of the opposing argument, even if the orator had not grounded his suit on the deception per se.
Finally, the speaker in the speech Against Athenogenes was missing a relevant law as an atechnos pistis. Even if he could not appeal against the defendant’s fraud, mention of the deception was at least a psychological means of influencing the judges.
Protagoras portrayed the goal of forensic rhetoric as ‘making the weaker argument the stronger’ (Arist. Rhet. 2.24 1402a23-5; cf. Plat., Theaet 166D). By this he understood a fully value-neutral ability ‘to make the side prevail that was difficult to defend and supplied with little evidence, whether in a legal dispute or a political debate’ (E. Wolf 1950-68: ii. 45-6; 1956: 160). In other words, the orator had no real problem with epieikeia, but with pisteis. Arguments that have the appearance of general appeals to equity actually involve provability and are connected with the principle of the free evaluation of evidence.
* [David Mirhady translates the main text for the first four chapters of Meyer-Laurin’s Gesetz und Billigkeit im attischen Prozess (1965). The notes are somewhat condensed (largely at the hand of the editor). In this part of the study Meyer-Laurin makes his case against what were then conventional views on argument from fairness or ‘equity’ in the Attic Orators.
[1] Paoli 1933, 33 ff., 39 ff. To the contrary, esp. Arangio-Ruiz 1946, 242 n.1; Wolff 1962, 17-18.
[2] Kunkel 1928, 710; cf. Wolff 1961, 250 ff.
[3] There is some dispute whether, by law, the diamartyria was exclusively applicable in inheritance cases and the paragraphē unavailable in this area (Beauchet 1897: iii.596 n. 2; Leisi 1908: 29) or whether it was simply more appropriate in inheritance disputes than the paragraphē (Calhoun 1918: 173-8; Bonner and Smith 1938: 76, 79). It is also disputed whether diamartyria was also available outside inheritance cases. These questions can be left aside here.
[4] Cf. Calhoun 1918, 169; 1919, 344 ff.; Paoli 1933, 97 ff. Steinwenter 1934, 87 n. 5, 384; Hellebrand RE 18.3 (s.v. Paragraphē) 1176-7.
[5] Dareste 1875, vol. 1 (introduction) xx; Lipsius AR 845 ff.; Gernet 1955, 86 n. 4.
[6] Against the comparison with exceptio doli, see esp. Paoli 1933, 119-20; Hellebrand RE 18.3, 1173; Wolff 1961, 102.
[7] Wolff 1963, 108, showed that the perspective of equity played no role in the application of prothesmia (‘statute of limitations’). [Cf. Dem. 36.25 prothesmias nomos.]
[8] Research into the actual situation does not concern us here; of interest are simply the one-sided presentation that the speaker gives and the legal conclusions that he draws from it. [M-L lists various treatments and then analyzes them in the succeeding notes (partly abridged in this translation): Blass AB iii. 492 ff.; Leist 1896, 54 ff.; Mitteis 1902, 288 ff.; Rabel 1915, 367 ff.; Pringsheim 1916, 10 ff.; Vinogradoff 1928, ii. 24 ff.; [[Photiades 1923, 109 ff.**;]] Gernet 1954, 110 ff.]
[9] Gernet 1955 (among others), 113-16, treats Protos as the crook, as he had not used the money he received to buy the grain. But Gernet cannot then explain Hegestratos’ attempt to scuttle the boat as anything other than an obscure incident.
[10] Mitteis 1902, 289, and Vinogradoff 1928, ii. 25, wrongly suppose that (both) ship and cargo are pledged (as collateral); for a clear explanation see Pringsheim 1916, 12; cf. Gernet 1954, 114.
[11] Rabel 1915, 369, Pringsheim 1916, 13, and Vinogradoff 1928, ii. 31, point to the expression ēmphesbētei as indicating a diadiakasia.
[12] Mitteis 1902: 290 f. [Meyer-Laurin cites further discussion in ZRG 36-9: Rabel 1915, 369-70.; 1917, 311-12; Lipsius 1916, 11-12; 1918, 49-50.]
[13] In the literature it is generally assumed that the suit was a dikē exoulēs (‘suit for ejectment’): cf. Rabel 1915, 367; Lipsius 1916, 12; Gernet 1954, 116. Some have misgivings, as the dikē exoulēs is the remedy of an executor against a possessor who will not relinquish the property and the latter is precisely the role of Zenothemis. Lipsius had supposed a dikē blabēs (‘suit for damage’): AR 656 f. with n. 77. Mitteis 1902, 291, considered the whole matter of a syngraphē ‘obviously invented’; Pringsheim 1916, 13, to the contrary; cf. Vinogradoff 1928, ii. 28.
[14] Blass AB iii. 495, and Gernet 1954, 116 n. 2, emphasized the inadequacy of the grounds.
[15] Blass AB iii. 495; Lipsius AR 632 n. 18; Weiss 1923, 437 with n. 31; ZRG 52 (1932), 443.**
[16] Hitzig 1907, 227 ff.; Partsch 1909, 153 [among others].
[17] On litigation rights of metics, cf. Meier-Schömann 1883-7, ii. 753; Lipsius AR 369 ff.; Hitzig 1907, 218-24; Weiss 1923, 178; Busolt 1920, 292-8; Hommel in RE 15.2 [1932], 1443 ff.; on rights of aliens, Hitzig 1907, 227-31.; Busolt-Swoboda 1926, 1243; Vinogradoff 1928, ii. 29 [et al.].
[18] With Dem. 36 and 45.6, cf. Lipsius AR 856; Bonner and Smith 1938, 85-8.
[19] See Hellebrand in RE 18.3, 1177; cf. Calhoun 1919, 344 ff.; Paoli 1933, 97 ff.; Steinwenter 1934, 384; [on the competence of the archons] Lipsius AR 874-5; Busolt-Swoboda 1926, 1100.
[20] Paoli 1933, 75-173 speaks of ‘the indivisibility’ of the issues at trial in Attic law. [With works cited in the previous notes,] cf. Wolff 1963, 102 n. 38; [Wolff 1966, arguing against Paoli’s model (EC)].
[21] Vinogradoff 1922, ii. 28; 1928, ii. 19-20. Dareste 1875, 337, also supposed that the defendant has appealed to equity.
[22] Beauchet 1897, iv. 284, 306, took it as self-evident that the cargo was also pledged (though not expressly set forth in the contract). This is unconvincing; in Dem. 32. 14 a maritime loan is mentioned in which clearly it is only the ship that is pledged as security. In favor of Beauchet’s assumption is the fact that the borrowers were barred from offloading and selling the cargo en route (Dem. 56. 10); but the only security expressly mentioned is the ship. Cf. Pringsheim 1916, 14-15. Beauchet believed that the creditor must relinquish part of the interest in view of the debtor’s plea of force majeur. But the plaintiff’s rigid posture on this point at least suggests that no such obligation was clear. In Dem. 34. 32, another contract is mentioned where capital and accumulated interest can be paid after the voyage out, but it envisions no part-payment of the interest if the return voyage is cut short.
[23] Beauchet 1897, iv. 396, Lipsius AR 633, 657, and Gernet 1955, 217, treat the suit as a dikē blabēs; Blass AB iii. 521, and Pringsheim 1950, 53, as dikē daneiou. Gernet doubts that a dikē daneiou was available. Probably the plaintiffs base their charge simply on the syngraphē, since for them, as for the defendant, so much depends on the interpretation of the contract. This insight I owe to Prof. Wolff.
[24] Taking over the business [together with the slaves] must have been included in the contract, although it is not specified [in the surviving speech]. If the textual supplement is right at §18, the 40-mina sale price expressly included the shop. See Hitzig 1897, 168-9; Partsch 1909, 69-70, 322; Pringsheim 1950, 192 n. 1.
[25] Only at this stage was the sale complete; cf. Pringsheim 1916, 52; 1950, 173, 192.
[26] Blass AB iii. 83, and Maschke 1926, 104, 166-7, see the damage (blabē) in the loss that Epikrates incurred by assuming the business’s debts when he was deceived as to their magnitude. …
[27] The concept of blabē as ‘injurious disposition of goods’ (schädigende Vermögensverfügung) is developed by Wolff 1957, 63.
[28] Beauchet 1897, iv. 35 ff.; Hitzig 1897, 184; Lipsius AR 685; Partsch 1909, 172 with n. 6; Maschke 1926, 170; Pringsheim 1950, 498 with n. 1. To the contrary, Sieveking 1893, 30 n. 3, supposes that there was certainly a law that the speaker invokes.
[29] Vinogradoff 1922, ii. 68; 1928, ii. 20-1; Gernet 1955, 80 n. 3; Stoffels 1954, 33. Kübler’s view (1934: 87-8) of an objection corresponding to Roman exceptio doli, is incorrect for the very reason that here we have no ‘objection’ but rather a charge to be debated.
[30] Blass AB ii. 529; Vinogradoff 1922, ii. 67, 79 f.; E. Wolf 1956, 204.
[31] Wyse 1904, 177; Meier-Schömann 1883-87, i. 52, 108; Beauchet 1897, iii. 644; Hitzig 1897, 179.
[32] Wyse 1904, 177; Bruck, 1909, 133; Vinogradoff 1922, ii. 67.
[33] Blass AB ii. 529, seems to see grounds to invalidate a will in insanity, yet the clause on volition does not allow that inference. Cf. Hyp. Against Athenogenes 17 [partly restored]: ‘for [the law] makes it possible for a man to dispose of his property as he wishes except on account of senility or disease or insanity or if subject to a woman's influence, physical restraint, or coercion”’. Cf. Dem. 48. 56; Is. 4. 19; 6. 9; Dem 46. 14 has, after ‘senility’, also ‘or drugs’. See Bruck 1909, 55 with n. 2; Weiss 1923, 235-6. Wyse 1904, 223, § 41 nn. 7-8, supposes that the speaker asserted grounds to invalidate the will on the basis of equity, on the consideration that the testator had not seriously intended to disinherit his nephews. Such a criterion is unlikely considering that the testator kept the supposedly frivolous will in force for years.
[34] Hitzig 1897, 180-1. Surprisingly Wyse (1904: 177-8), who himself assumes a criterion of fairness, takes the contrary position: ‘It shound be noted as a curiosity of criticism, that K. Seeliger (1876: 637 ff.), with a simplicity worthy of Tom Pinch, finds … that Isaeus was “a champion of equity against strict law”’. E. Wolf 1956, 204, posed as an advocate of Seeliger’s view, but then expressly qualified his support, 218 n. 8.
[35] Steinwenter 1925, 128; Maschke 1926, 102. [The alternative explanation, that the claim of 100 minas included a charge of assault, is now generally discounted. For English translation of this speech with explanatory notes, see Mirhady and Too 2000. (EC)]
[36] On the arbitration, see Steinwenter 1925, 133. It is often asserted that the paragraphē must have been based on the fact that the diamartyria had not been challenged for false testimony: cf. Lipsius AR 857 n. 41; Calhoun 1918, 179 with n. 2; Bonner and Smith 1938, 77; Lämmli 1938, 149. To the contrary, one might object that the speaker bases his paragraphē not on these [formal] grounds but on the Amnesty. [See, however, Carawan 2001, 23-28; 2002, 10-12.]
[37] Whether and in which cases the authorities could reject a suit at their own discretion is much disputed. Cf. Lipsius AR 818-19, 845, 854; Calhoun 1919, 344 ff.; Paoli 1933, 97 ff.; Steinwenter 1934, 384, 386 n.1; Hellebrand in RE 18.3, 1176-7.
[38] Pringsheim 1950, 24 n.5. [That is, arguments from equity belong rather to rhetorical invention than properly to legal reasoning. (EC)]
[39] Cf. Lipsius AR 866 ff.; Latte 1920, 3, 21 ff.; Leisi, 1908, 107; Solmsen 1931, 5 ff., 56; Gernet 1955, 63
[40] Cf. Latte 1920, 26-7, 38; Leisi 1908, 108-9; Bonner 1927, 187; Weiss 1923, 232-3; Pringsheim 1950, 23.
[41] Cf. E. Wolf 1950-68, 2: 47-8; Gernet 1955, 66. On psychological tactics, cf. Lipsius AR 919-20; Leisi 1908, 108-9; Bonner 1927, 78-9; Bonner and Smith 1938, 123; Solmsen 1931, 69-71.
[42] [The passage is an implied contrary-to-fact in the form of a general condition: ‘if there is no argument from the laws (as surely there is), but their claims appear “just and humane” (though they are not), then we concede’. (EC)]. Cf. Paoli 1933, 40-1.
[43] That rationale would explain the odd rate of 10%. Wolff (in RE 13.1 [1957]: 154-5) apparently did not consider this possibility. For it would support his view that the high interest of 18% [was the ordinary rate on repaying the dowry to the woman’s family] (as opposed to Beauchet 1897, i. 325, and Lipsius AR 482 n. 39, 498 [suggesting the higher rate was punitive]), since in this case the 10% rate applies not to a dowry but rather to a loan [a debt owed by the first husband to the second; cf. Harrison 1968, 55-9 (EC).]