If this volume has a unifiable purpose, it is to rationalise the distinction between proper and improper appeals to legal authority in the Athenian courts, which are described respectively as ‘uses’ and ‘abuses’ of law. This distinction is difficult to define. It is already by p. 6 of the introduction that Carey admits that perhaps ‘use’ and ‘abuse’ pose a false dichotomy. The first chapter, by M. Gagarin, is devoted to refuting the idea that there is any good way to define abuse, and similar scepticism is expressed by other contributors. Yet this fundamental controversy is not so much a weakness of the book as proof of its contribution to scholarship. Its contents further our understanding of an important concept that has, until now, been inadequately addressed in Greek law. That concept is, broadly speaking, the limits of the law of ancient Athens.
The volume is divided into four parts of approximately equal length, spanning eighteen chapters by individual contributors: (1) ‘Conceptualising the System’, (2) ‘Procedural Manoeuvres’, (3) ‘The Rhetoric of Law’, (4) ‘Specific Areas of Law’. The organisation of the book allows the reader to compare the interpretations of scholars who treat related topics in different ways.
Part 1 deals with structural problems in conceiving the boundary between use and abuse. It is here that several contributors take issue with the dichotomy supposed by the book's title. Scholars will find particularly useful the list of ‘cases mentioned in the orators’ collated by E. Harris on pp. 58–71.
Part 2 is focused on the exploitation of court procedure. This includes a clear analysis by C. Kremmydas of the anakrisis, or pre-trial hearing, and how it could determine the limits of what litigants could argue at the trial proper. Three further chapters contain interesting discussions of the requirements of procedure and how they were manipulated by litigants to achieve outcomes favourable to their cause.
The contributions in Part 3 turn to tactical rhetorical methods. This is perhaps the most interesting section of the book, with the exception of the first part. The majority of this section concerns the way in which litigants distorted the language of the law to support their cause.
The last part collects four chapters on abuse in specific areas of law and lawmaking, even beyond the courts. This includes an excellent chapter by M. Canevaro on legislation and the Athenian view of the limits of the legislative power.
Since the theme maintains a positive thesis, that there were some uses of the law that were abusive (cf. p. 17), each author seems to take up the task of either supporting, refuting or refining it. In this way, the contributions are more closely related than those in other collections. For this reason, this review concentrates on the main points of consensus and contention that characterise the volume.
The closest that this book comes to offering a general definition of abuse is in Chapter 10, by I. Arnaoutoglou. He proposes that we see ‘use’ as the justification of a litigant's claims by reference to legal rules and ‘abuse’ as that which uses the law ‘to confer an (unfair?) advantage to his case’ (p. 186). But why the parenthetic doubt around ‘unfair[ness]’? Surely an abuse must contain some element of unfairness, else it would not be objectionable.
The problem of squarely defining ‘abuse’ ultimately stems from the fact that there is necessarily a moral dimension to it. This seems to be the point made by Gagarin when he claims that ‘to describe any particular use of the law as abuse is merely to state a subjective disapproval; there is no way to support such an opinion with objective criteria’ (p. 17). However, this is hardly a basis for the rejection of the concept of abuse altogether. All legal systems are founded on certain conceptions of right. And all agents of the law (including litigants and jurors) have some understanding of what lies within and beyond the fair bounds of the system. A search for ‘objective’ criteria is merely a search for formal proscriptions. If such proscriptions ever existed at Athens, which they did not, they would not be definitions of abuses but of offences themselves. That kind of formality is incompatible with the central quality of abuse, namely that an abusive tactic or manipulation of the system is often a perfectly effective and formally valid use of the law. What really matters, therefore, is not the search for ‘objective criteria’, but for what was generally considered to be abusive by the agents of the legal system. That is, what kind of behaviour was considered contrary to the basic principles of the system, despite it not being formally proscribed. This is the focus of an important chapter by Harris (Chapter 3), who delineates five kinds of abuse in the eyes of the Athenians (pp. 51–2): (1) reliance on false testimony; (2) violation of the fair trial (e.g. the denial of the right to defence); (3) improper influence; (4) sycophancy; and (5) the collaboration of several litigants against a common opponent.
Elsewhere in the volume, there is also a great deal of discussion of the tactic of misquotation or distorting the law so as to apply it favourably to one's cause (cf. pp. 23–8, 46–7, Chapters 9–10). Yet Harris suggests that this was not really considered abusive, on the basis that there is no evidence that a litigant ever actually lost his case due to his opponent's deception, despite complaints being made about the tactic in court (p. 52). Does it then follow that this tactic was rarely successful and that Athenians were wary of it? An observation by L. Rubinstein supports a convincing argument to the contrary: that distortion (especially by the misleading, partial citation of a law) is so often charged by a litigant against his opponent, yet so rarely opposed for being improper in itself (pp. 170–1). Rubinstein argues that if a litigant drew the court's attention to the impropriety of his opponent's misquotation or distortion, he might surrender the tactic from his own toolbox (p. 171). In this way, to evoke the concept of abuse becomes itself a tactic, or, to adapt the title of Gagarin's chapter (Chapter 1), the ‘abuse is in the eye of the beholder’.
The problem that manipulation was so hard to define, and thus to identify, stems from the fact that there was no science in the interpretation of Athenian laws nor in the drafting of legislation. The triers were jurors, never professional judges. Even the selected ephetai who sat on homicide cases could seldom be described as experts in law. In a thorough overview of this problem, R. Osborne argues that the absence of a technical language of law meant that ‘Athenian law was always a matter of contestation’ (p. 37). It appears as a point of consensus in this volume that whether a contested meaning was interpreted one way or another was ultimately a question of the skill and authority of one litigant over another (e.g. pp. 37, 52–3, 175, 194). It was not a question of language constrained in the same way as the common schools of interpretation in modern law (e.g. by reference to the intention of the lawmaker, by scrutiny of like provisions, by following previous judicial interpretations). What a word meant was what the jurors were prepared to allow it to mean (cf. p. 194).
How this worked out between litigant speakers and their audience, however, is another question. It is fair to suppose that the tactic of misquotation and distortion was only effective because it exploited the inequality between the parties and the inability for an opponent, or the jurors, to identify it. The relevance of power and authority (in a rhetorical sense) to this tactic is addressed by Rubinstein, when she suggests two strategic reasons why a litigant may not like to call out his opponent's deception (pp. 171–2). First, she suggests that it may demonstrate to the lay jurors too close a knowledge of the city's laws, and so seem to be pointing to a vexatious frequenter of the courts. Second, it may draw the jurors’ attention to the ambiguity of the statute, and so neutralise the authority of an alternative interpretation that he may wish to propose. These are convincing arguments about the reception of distortions in the courtroom, inspired by the evidence of sharp and cunning litigants. But what about the behaviour of the would-be misquoter or distorter of the law: what were the constraints on him? Since there were no formal constraints, it must be that the choice to misquote or distort the law fell to a moral question about whether he thought it was fair to exploit the inequality between him and the other party and jurors. Elsewhere it has been argued that this choice was guided by an ‘economy of honour’ (A. Lanni, Law and Justice in the Courts of Classical Athens [2006], p. 29). This point is not taken up in the present volume, but the evidence that is presented suggests, unsurprisingly, that litigants were not generous to their opponents. Perhaps the only constraint on distortion was whether or not the litigant thought he could get away with it (cf. pp. 37, 175, 194). This is a suitable area for further study, building on the work in this volume.
The essays collected in this volume signify an important step towards critical study in the field of Greek law. The concept of abuse allows us to understand not only the limits of Athenian law, but how those limits were perceived by the Athenians themselves. It stands out as an example of the kind of scholarship that marks a profound increase in our understanding of structures and themes in history that have often been the subject of description, but more rarely of criticism. The book outlines several questions that remain for future scholarship to address. It will be a valuable addition to the shelves of all scholars with an interest in Athenian law and Greek society.
