G. writes a defence of the workings of the Athenian legal system, specifically disputing the criticisms of that system that were advanced by some ancient authors and reiterated around the turn of the twentieth century by people such as G. Gilbert (Handbuch der griechischen Staatsalterthümer [1893]) and J.B. Bury (History of Greece [1900]). These claims articulate one standard scholarly view of the Athenian judiciary, that the jurors in Athens were inherently capricious and easily manipulated by emotional and rhetorical appeals. Instead, G. sets a nuanced ancient context for a more sympathetic interpretation about the role of justice in the Athenian courtroom, while at the same time constructing an ongoing comparison with the American judicial establishment.
G. locates his own work within the modern dispute about the degree of justice inherent in the Athenian legal system. On one side of the divide are those for whom ‘it is easy to imagine that ignorance, emotion, and prejudice decided many cases’ (p. 4). Examples are H. Yunis (in Gagarin and D. Cohen [edd.], The Cambridge Companion to Ancient Greek Law [2005]), R. Osborne (JHS 105 [1985]) and D. Cohen (in M. Gagarin [ed.], Symposion 1990. Vorträge zur griechischen und hellenistischen Rechtsgeschichte [1991]). The opposing school of thought, those who ‘have insisted that Athenian courts sought to judge cases according to the rule of law’ (p. 5), is expressed especially in the numerous articles by E. Harris. G. expands upon this second approach: ‘My own view, in brief, is that Athenian courts did try to enforce the laws as written but that they deliberately allowed litigants to present a broad range of arguments, which modern scholars generally see as conflicting with the strict enforcement of the law but which the Athenians saw as not only compatible with the rule of the law but as essential to it’ (p. 5).
G.'s primary methodology is to immerse the readers in the democratic world of the classical Athenian citizen, in which rhetoric played a prominent role, so that they may better appreciate the expectations held by the ancients themselves. He devotes three chapters to the context of the classical Athenian court system: the participatory nature of the democracy (Chapter 1), and the importance of performance and of rhetoric in the city that did, after all, pioneer dramatic productions (Chapters 2 and 4). Closely tied to these is the third chapter, where G. describes insincere offers to negotiate as an argumentative strategy. The next four chapters (‘Rules and Relevance’, ‘Justice’, ‘Public Interest’ and ‘The Rule of Law’) contain the meat of G.'s argument that the Athenian court decisions were, as a whole, made in accordance with justice and the rule of law, and he is correct to emphasise the Athenians’ own focus on these publics goods as recurring themes of the forensic orators.
The crux of G.'s overall thesis lies in Chapter 5, where he discusses the thoroughly-disputed issue of relevance. He begins by offering a history of the written law, reiterating its importance for the success of the later democracy, and then reviews the procedural rules of the Athenian courts, many of which were unwritten. Finally, he engages the rule of relevance (pp. 101–14), noting that a plaintiff operated within a system of often vaguely worded laws in order to set the precise details of the charge, using the illustration of Plato's Apology in particular. G. argues for a broader definition of relevance and contextualisation, especially since, he says, the Greeks saw a person's character as unchanging (based on A. Lanni, Law and Justice [2006]), a view that warrants a larger discussion with evidence, if it is to stand as a mooring for the thesis. Also, he places undue confidence in the probity resulting from the fact of the jurors’ oath (to decide each case in accordance with the law) in arguing for an intrinsic enforcement of the rule of relevance (pp. 105–7). More troubling is his dismissal of the ancients’ own criticisms of the use of irrelevant evidence: ‘Scholars sometimes cite such passages as if they were good evidence for this practice, rather than the rhetorical tropes that they clearly are’ (p. 104). Likewise, he downplays complaints about the temperamental behaviour of jurors, not only in Aristophanes’ Wasps, but also in Plato's Gorgias, Phaedrus and especially Laws. G. responds: ‘Some jurors undoubtedly were biased in one way or another, but we have no serious evidence for the sort of regular bias parodied in Aristophanes’ Wasps’ (p. 111). Following the same principle, could one not equally dismiss the oratorical appeals to justice and the public good as tropes? There is always a need for interpretation when the evidence is comparatively sparse. This book offers a refreshing approach by espousing the less popular theory of the inherent justice and rule of law embedded within the Athenian judiciary system. It is not that it is completely persuasive, but rather that it balances out the opposing school of thought. I see a demand for future, interdisciplinary studies that integrate into this discussion the ideas currently under development in behavioural psychology about human rationality, group behaviour and decision making (for example, D. Kahneman et al., Noise. A Flaw in Human Judgment [2021], and earlier work).
In a secondary methodology G. establishes a sustained comparison to modern, especially US, courts of law. This design is, to some extent, contradictory to his immersion method and brings with it the fundamental problem that, for it to be effective, one must compare unknown to known. Americans are truly ignorant of their own legal system – both legislative and judiciary – except in so far as they have watched dramas such as The West Wing and Law and Order, which hardly offer an accurate portrayal. They simply do not experience the ongoing involvement in a participatory democracy, as the Athenians did, both in attending the assembly and in volunteering for a jury pool that could decide dozens of cases a year. Thus, the comparison is most effective for the legally experienced reader. For most of us it is useful only on a superficial level: we all understand that there are strict procedural and evidentiary rules at work in a US court room, but many of us may never even have witnessed a trial in person, much less participated in one.
Overall, this work is a discerning overview of the workings of the Athenian judicial system with a crucial emphasis on the context of ancient democracy and culture. The writing is lucid, thorough, meticulously footnoted, well illustrated with copious ancient examples and informative for scholars of all levels. I look forward to introducing it in an advanced oratory class as a provocation to broader thinking among my students. To be sure, it is an easy thing to read the orations superficially and then hop aboard the Gilbert–Bury school of criticism, assuming that the Athenians acted like a mob of ignorant and impressionable stooges. Doing so runs the risk of falling into the trap of thinking that, because they lived long ago, they were somehow stupid. We must always remember that the ancients were regular people with a culture, world view and practice of self-government far different from our own. In constructing this rich and dynamic social setting G. shines. If in places he oversteps in defending the inherent integrity of Athenian juries, perhaps he is justified. As a rule, the truth usually lies somewhere in the middle.
