Street fights seem to have been as common in classical Athens as they are in modern cities. One incident, which probably took place a few years after 394 bc, involved two rivals for the attentions of a young Plataian, Theodotos, apparently a slave and a rent boy. There was a history of violent disagreement between the opponents, one of whom was a wealthy, middle-aged Athenian citizen whose name we do not know. The other, a (probably) younger man named Simon, claimed to have had a contract with Theodotos for sexual services, which was breached when the older man enticed him away. For the sake of a quiet life, the older man left Athens for a time, taking Theodotos with him, and did not come back until he thought Simon would have forgotten about the boy. But not long after their return there was another fight, accounts of which conflicted sharply. According to Simon, the older man went to his house threatening to kill him, and attacked him with some broken pottery, causing a serious head wound. The older man's story was that Simon and his friends got drunk over lunch, then lay in wait near the house where he and Theodotos were inside, and jumped on them as they came out. After a chase through the streets, the incident developed into a general mêlée in which everyone ended up with a broken head. The older man claimed that he had considered prosecuting Simon for assault, but had been too embarrassed and fearful of damaging his reputation. Four years later, though, Simon prosecuted him for trauma ek pronoias, which we may tentatively translate as ‘intentional wounding’.Footnote 1
The older man's defence speech, known to us as Lysias 3, is one of only four extant forensic speeches from which we derive our knowledge of how the Athenian legal system dealt with personal violence.Footnote 2 After briefly outlining some more general features of the system, and the relevant law and procedure, I shall examine the rhetorical strategy adopted by Lysias on behalf of his client. My aim is not to produce a new reading of the speech, which has been extensively discussed by modern scholars, but rather to show that, despite some fundamental differences between the two systems, Lysias' strategy was very similar to the approach that might be taken by defence counsel in a modern prosecution for assault under English law.
When we think about the institutions of the Athenian democracy in the fifth and fourth centuries bc, it is important to avoid preconceptions based on our knowledge of comparable institutions in the modern world. In England and Wales we have two separate systems of justice, civil and criminal. In the civil courts, the victim of a wrong may sue the wrongdoer directly for financial compensation (for example, for personal injury or breach of contract) or for the performance of a specified act (such as repairs to a tenanted house). It is up to the claimant to decide whether to start or continue civil proceedings, and a claim can be settled out of court at any time. But the essence of a modern criminal justice system is that responsibility for investigating and prosecuting offences rests with the state. After a street fight such as the one described in Lys. 3, we expect the police to restore order at the scene, collect evidence, including witness statements, and, if appropriate, charge one or more of the participants with an offence. The case is then passed to the Crown Prosecution Service (CPS), which, if it decides to proceed with the prosecution, is responsible for presenting the case in court. The victim is likely to be an important prosecution witness, but is not formally a party to the proceedings and has no role in the decision-making process. The penalty imposed on a defendant who is found guilty reflects society's disapproval of his or her behaviour, and sometimes the need for public protection, but is not intended to compensate the victim directly for the harm he or she has suffered.
In these terms, classical Athens did not have a criminal justice system at all. There was only a rudimentary police force, composed of Scythian slaves acting on the instructions of the city officials, with no role in crime prevention and no power to investigate or prosecute.Footnote 3 There was no public prosecuting authority, and with very few exceptions the prosecutor was a private citizen.Footnote 4 Nor do the Athenian categories of ‘public’ and ‘private’ actions correspond to the modern distinction between criminal and civil law. A private action, (dikē, plur. dikai) could be brought only by the victim of an offence (or, in a homicide case, the victim's next of kin). A public action (graphē, plur. graphai) could be brought either by the victim in person or by a third party or ‘volunteer prosecutor’ (ho boulomenos, literally ‘he who is willing’).Footnote 5 Only the more serious offences could be prosecuted by way of a graphē, and if there was a financial penalty it would be payable to the state rather than to the victim as in a dikē. To that extent, the existence of the graphē reflected the interest of the polis in discouraging certain forms of behaviour, but the pursuit of justice in public as well as private actions depended on the initiative of individual citizens. So, even when dealing with cases that we would regard as criminal offences, the Athenian legal system was more like our civil justice system, where the state provides a mechanism for the adjudication of disputes that the individual citizen may or may not choose to pursue.
Law and procedure
Under English law, offences of non-fatal personal violence range from common assault to attempted murder, varying in seriousness in accordance both with the degree of harm inflicted on the victim and with the culpability of the offender.Footnote 6 An Athenian assault victim who decided to take the offender to court also had a range of options:Footnote 7 a private action for aikeia, a public action for hubris, or a public action for trauma ek pronoias.Footnote 8 The least serious offence was aikeia, roughly equivalent to common assault. This could involve any kind of physical assault, whether or not it was intended or premeditated; the prosecutor needed only to prove that the defendant had struck the first blow.
Exactly what made hubris a more serious offence than aikeia is not clear, but there was certainly a subjective element, which may have been more significant than the degree of physical injury inflicted on the victim. According to Aristotle, physical assault did not necessarily amount to hubris: ‘for if a man has hit someone, he has not always committed hubris, but only if he struck the blow for a purpose, such as to dishonour [atimasai] the victim or for his own pleasure’ (Arist. Rh. 1374a). Modern scholars have debated whether the aggravating feature of hubris was an attitude of arrogant contempt on the part of the offender or humiliation and loss of timē (honour) for the victim, but perhaps the distinction is unnecessary.Footnote 9
Precisely what constituted trauma ek pronoias is also uncertain. The word trauma, meaning ‘wound’, implies a more serious assault than simply a kick or a blow with a fist, and the use of a weapon was probably intrinsic to the offence, distinguishing it from aikeia and hubris. Some of the argumentation in the two extant speeches from cases of trauma ek pronoias, Lys. 3 and 4, implies an accusation of attempted murder. It need not follow that every case of trauma was an attempt to kill, but the association with murder is supported by the fact that trials were heard by the Areopagus, which in the fourth century functioned mainly as a homicide court. There is further uncertainty about the meaning of pronoia, which may imply no more than the intention to commit the act of wounding, but which some commentators interpret as ‘premeditation’ or ‘intention to kill’.Footnote 10
The CPS, in deciding whether to prosecute, is legally required to apply two criteria: whether there is a reasonable prospect of conviction and whether the prosecution would be in the public interest. We may assume that an Athenian prosecutor would also make some calculation about his prospects of success, and he might argue, too, that he was performing a service for the polis by prosecuting a wrongdoer. But in a system where there was no independent assessment of the strength of the case, or of the public interest,Footnote 11 we should not be surprised to find more personal and less disinterested motives. So it is certainly plausible to find the speaker of Lys. 3 claiming that Simon decided to prosecute him in order to take advantage of his vulnerability at a time when he had been unsuccessful in other litigation.
A CPS prosecutor will not necessarily charge a defendant with the most serious possible offence if there appears to be a better chance of conviction of a lesser one. Athenian prosecutors, too, sometimes opted for a lesser offence than they claimed was warranted by the circumstances, possibly for similar reasons. As with the decision to prosecute, however, Athenian litigants' choices were sometimes influenced by more personal factors. Ariston, for example, claims that he could have prosecuted Conon for hubris, but opted for the less serious allegation of aikeia because he was advised by his friends that to bring a public action would be over-ambitious for someone of his youth (Dem. 54.1). Such modesty is likely to have impressed the jurors, and perhaps it was unfeigned, but his real reason may have been different.Footnote 12
Trial conventions and forensic strategies
In an adversarial legal system, such as those of both classical Athens and modern England and Wales, the court has no independent investigative function: a trial is a competition between the defence and the prosecution, not an objective search for the truth. Most Crown Court trials are dominated by lawyers.Footnote 13 In Athens, where there was no legal profession, litigants were normally expected to present their own case, but those with sufficient money could engage a professional speechwriter. A criticism sometimes levelled at both systems is that the outcome of a case may depend more on the rhetorical skills of each side than on the legal and factual merits.
A Crown Court trial begins with the opening speeches for each side. It is recognized that the prosecution has an advantage in speaking first, because counsel can put a coherent story to the jury that the defence may find difficult to undermine.Footnote 14 Athenian prosecutors also spoke first, and defendants sometimes complained that their opponents used this advantage to make false or irrelevant allegations.Footnote 15 We do not have the text of Simon's prosecution speech, but the general terms of his accusation are sufficiently clear, and he almost certainly had witnesses to testify to the truth of his account. If Lysias' client had done what Simon apparently said he did, he was guilty as charged, so Lysias' task was to persuade at least half the jurors that Simon and his witnesses were lying. That did not require any sophisticated legal argumentation, and the same is true of many cases in the criminal courts today, where the issues in dispute are commonly factual rather than legal. English barristers are not just experts in the law; they also learn, in the course of their advocacy training, how to tell a convincing story on behalf of a client. They are taught to make the story acceptable to the listener, so that it ‘fits’ with the audience's social attitudes and values.Footnote 16
Lysias was well aware that the stories he constructed for his clients needed to appeal to contemporary Athenian values. In this case, however, he had a problem: in a society where it was perfectly acceptable for a man in his twenties to have younger male lovers, such behaviour in an older man was more likely to attract ridicule or contempt than sympathy or respect. How, then, could Lysias engage the sympathy of the Areopagites for his middle-aged client? He does so largely by his characterization both of his own client and of Simon. For his client, Lysias creates the persona of a respectable citizen with a modest and retiring nature, who is rather ashamed of his behaviour and embarrassed by the need for public exposure. At the outset, the speaker confesses his embarrassment to the Areopagites, and, in a customized version of the standard plea for sungnōmē (‘sympathy’ or ‘mercy’), he shrewdly appeals to their understanding of human nature:
I do not expect to receive any mercy, members of the council, if I have done anything wrong. On the other hand, if I can show you that in this episode I am not guilty of any of the accusations which Simon has stated on oath, and if more generally I am seen to have behaved towards the young man in a manner that was rather foolish for my age, I shall ask you to think no worse of me. You know that desire is something that affects all mankind, and that the most honourable and self-controlled man is the one who can bear misfortunes most discreetly. (s.4)Footnote 17
The importance of characterization is also recognized by modern lawyers and criminologists:
Counsel seek to construct and represent to the court a moral identity for the participants in violent incidents that imputes particular attributes to them and acccentuates aspects of their identity that speak to these attributes. These imputations are necessary to success within an adversarial framework revolving around the contested nature of truth…Footnote 18
In the confusion of a street fight it is often difficult to determine who was the real instigator, or to pin the blame for a particular assault on an identifiable individual, so an obvious strategy for Lysias was to blame Simon, portraying him as the real aggressor. He goes on the offensive in the opening sentence:
I already knew many disreputable things about Simon…but I did not expect him to reach such a level of audacity that he would bring a prosecution, pretending to be the victim in an episode for which he himself ought to be punished… (s.1)
then he repeats the accusation that Simon was the wrongdoer, with support from witness testimony, at the end of the first section of narrative: ‘It has been testified by those who were present…that this man was the one who was to blame and who plotted against me, rather than my doing so against him’ (s.5).
Simon is ‘the cause of all the trouble’ (s.20), and Lysias persistently depicts his behaviour, especially towards Theodotos, as lawless and deviant, using vocabulary that might seem more appropriate to a prosecution than a defence. There are repeated references to Simon's ‘madness’ (mania), ‘lawlessness’ (paranomia), and, most tellingly, his hubris that are not confined to the immediate circumstances of the street fight. The speaker himself, as he tells us, tried to woo Theodotos with kindness, but Simon ‘behaved in an arrogant and lawless fashion [hubrizōn], and expected to force him to do what he himself wanted’ (s.5). The speaker describes an earlier incident when Simon came to his house in a drunken state and caused great offence by intruding on his sisters and nieces, reaching ‘such a level of hubris that he refused to leave, until those who were present, together with those who had accompanied him, threw him out by force’ (s.7). In the course of the street fight the speaker was disturbed to see Theodotos ‘suffering hubris so unlawfully and violently’ (s.17). In sum, Simon ‘committed hubris, beat both of us up, took part in a kōmos [drunken revel], battered down the doors, and entered by night into the presence of free-born women’ (s.23). All this behaviour, the speaker asserts, should be taken as evidence that Simon is lying. The whole story of his contract with Theodotos
has been devised and constructed by [Simon] himself. He says that he gave the money, so that he would not be seen to be acting badly if without having had an agreement he dared to treat the young man with such hubris. (s.26)
The speaker argues that he himself is most unlikely to have attacked Simon, asking rhetorically whether he would have been stupid enough to go alone to a place where he could expect to be beaten up by Simon and his friends, ‘with the aim of suffering as much hubris as possible at the hands of my enemies’ (s.34). Finally he explains that, despite having suffered hubris at Simon's hands, he did not have the audacity to bring a prosecution (s.40).
Perhaps the speaker could, as he implies, have prosecuted Simon for hubris, but what he says is not intended to present a convincing legal case against him on a specific charge, but rather to characterize him as a generally arrogant and violent person. Simon, in short, is a notorious troublemaker – someone who is far more likely than the respectable, self-effacing speaker to have started a street fight. This is a rhetorical strategy, not a legal one; Lysias uses the allegations of hubris as part of an argument from probability, diverting attention from the real issue of his client's own guilt or innocence. In fact, the speaker never admits having wounded Simon, but neither does he explicitly deny the accusation. We may think he is being evasive, but we should not necessarily infer that he is guilty. The Athenian trial format, with each party presenting his case in a single speech, encouraged defendants to put forward an alternative story, or counter-narrative, rather than confront the prosecutor's version of events with a direct denial.Footnote 19
In a Crown Court trial, each side's ‘story’ emerges not only through the opening and closing speeches for the prosecution and defence but also through the questioning and cross-questioning of witnesses. Indeed, it is largely through this interrogation process, with each witness questioned by the advocates for both sides, that lawyers hope to demonstrate the strength of their own case and expose any omissions or inconsistencies in their opponent's. A witness at an Athenian trial was not questioned by the parties, and (after about 380 bc) did not give oral evidence but simply came forward to attest to the truth of a written statement prepared by the party for whom he appeared.Footnote 20 Despite these different trial conventions, shifting the blame onto the victim is a common defence strategy in modern trials for personal violence. It is particularly convenient when the defendant is forced to admit responsibility for his or her accuser's injuries, because in English law someone who causes injury in self-defence is not guilty of any crime, provided they use no more force than is necessary in the circumstances as they believe them to be.Footnote 21 The defendant, moreover, is not required to prove that he or she was acting in self-defence; the onus is on the prosecution to prove that he or she was not.
One defendant who used the ‘blame-shifting’ strategy, albeit unsuccessfully, was charged with unlawful wounding after a fight in a working men's club, during which he had allegedly attacked his victim with a beer glass. The victim, who needed hospital treatment to have the glass removed from his face, nevertheless admitted that he had been drinking excessively before the assault. Defence counsel, in his cross-examination, exploited this admission to imply that it was really the victim himself who was the aggressor: ‘The truth is that you're an aggressive drunk, aren't you?…You started this fight, didn't you?’ The victim, not surprisingly, denied it, but counsel had made his point, repeating it at the end of the exchange: ‘The truth is you're an aggressive drunk.’ In this case, however, the strategy was negated by the testimony of a police witness in the victim's favour, and the defendant was convicted.Footnote 22
I recently observed the final stages of another trial for grievous bodily harm with intent,Footnote 23 where the circumstances were very different from those of Lys. 3 but the issues in dispute were similar, and – allowing for the differences of substantive and procedural law – so was the strategy adopted by the defence. The defendant, Vincenzo Romano, had got into a fight with one of his neighbours in the lodging-house where they lived, and both were injured seriously enough to need hospital treatment. In fact, both were arrested on suspicion of grievous bodily harm, but when the evidence became clearer the police decided to treat Romano as the suspect. The evidence produced in court included photographs of the injuries sustained by both parties, and the actual weapons they had used. Romano admitted having beaten his opponent around the head with a bicycle lock, but claimed that he was defending himself after the victim had attacked him with a pair of scissors. So the accuser had to explain how he came to be carrying the scissors when, as he claimed, he was not the aggressor but the innocent victim of an assault. His story was that he had been in his upstairs room, cutting his hair, when he heard shouting downstairs, and had ‘intuitively’ put the scissors he was using into his pocket before going down to intervene. Defence counsel tried to discredit his story by suggesting that it was a ‘remarkable coincidence’ that the man ‘just happened’ to be cutting his hair at the crucial time. Why had he put the scissors into his pocket, when it would have been more natural just to leave them behind? Anyway the scissors, as the jury could see, did not look big enough for the task: ‘You may think these are not for cutting hair at all, but little scissors for cutting paper…if, indeed, it's true that he does cut his hair with scissors.’ Just like an Athenian speechwriter, defence counsel was arguing from probability. His message to the jury was summed up in a single sentence from his closing speech: ‘I say to you, on Mr Romano's behalf, that the wrong person is in the dock’ – precisely the message that Lysias wanted to convey to the Athenian court.
Conclusion
How effectively did the Athenian judicial system deal with offences of personal violence? We cannot hope to obtain a full picture from the limited sources available, let alone from a single speech, but Lys. 3 provides some useful insights. What appears, from a modern perspective, to be a major weakness of the system is exposed by the speaker's claim that he would have been justified in prosecuting Simon, but refrained out of embarrassment. Even if this is simply a rhetorical ploy, there must indeed have been cases where the perpetrator of an assault avoided punishment because of the victim's reluctance to prosecute, and it is equally likely that some legally weak prosecutions were motivated by personal malice rather than a desire for justice. Moreover, financial considerations probably deterred some poorer citizens from litigating at all.
None of this means, however, that the Athenian legal system was merely a channel for the pursuit of private vengeance, where the outcome of a trial was determined by personal factors.Footnote 24 Once a case reached court it was heard, as in the modern criminal courts, by impartial adjudicators, who applied the law, using their judgment to determine which of the opposing parties had put forward the more persuasive version of events. Modern prosecutors and defendants may adduce scientific, documentary, or other types of evidence that were not available in the Athenian courts, but such evidence is rarely conclusive in itself. In contested cases where the opposing parties give conflicting versions of the facts, jurors still rely largely on their assessment of the parties' and witnesses' credibility.
It is true that some aspects of the Athenian legal system seem relatively unsophisticated, when judged by modern expectations, but the Athenians made the best use they could of the resources available to them. Reliance on individual initiative would not have been seen as a weakness in democratic Athens but as a positive expression of the ethos of direct participation.
