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Revenge, Punishment, and Justice in Athenian Homicide Law

D. L. Cairns This chapter forms part of a larger study of emotions of esteem and self-esteem in classical (fifth- and fourth-century) Athenian society.1 An element of that project focuses on the role of timê (conventionally ‘honour’, but encompassing notions of worth, dignity, prestige, and deference) in Athenian law. This, in turn, requires a consideration of recent controversies regarding the relative importance of personal vengeance versus the punishment of offenders in Athenian litigation. The current chapter is an attempt at a test-case of manageable scope, using a limited range of primary sources. The aim is to focus on a limited body of evidence, namely the small corpus of extant Athenian forensic speeches that deal with homicide, to see what, if anything, is distinctive about homicide trials in terms of the role that they assign to notions of honour, vengeance, and state-regulated punishment. An important part of this will concern the relation between the affective and the normative in such contexts. It is useful to focus on the limited corpus of homicide speeches because it is important to respect whatever differences there may be between (a) different categories of offence, (b) prosecution speeches on the one hand and defence speeches on the other, and (c) the various procedures by which homicide could be prosecuted in Athenian law. Even before that, however, it is important to notice how limited the evidence is. We have six speeches written for delivery in trials dealing with homicide. Three of these are for delivery in the courts that dealt specifically with such cases. These are: Antiphon 1 (a prosecution speech in a case in which intentional homicide is alleged,2 and thus probably delivered before the Areopagus);3 Antiphon 6 (a defence speech in a case involving involuntary homicide, phonos akousios, hence heard by the Palladion);4 and Lysias 1 (a case in which the defendant alleges that he committed lawful homicide, and thus delivered before the Delphinion). Besides these, there are two speeches in cases in which accused has been subjected to arrest, imprisonment, and trial (apagôgê). These are Antiphon 5 (for the defence) and Lysias 13 (for the 1 I am grateful to participants in the workshops in Oslo and in Uppsala for their comments on this paper, and am especially indebted to my colleague, Mirko Canevaro, for his detailed and salutary observations, and to Edward Harris for casting a critical eye over a penultimate draft. I had the honour of presenting an earlier version of the argument as the second D. M. MacDowell Memorial Lecture, University of Glasgow, 2011. 2 MacDowell (1963: 62-3) argues that this is a case of bouleusis (planning, plotting) of intentional homicide (phonos hekousios/ek pronoias), while Gagarin (1990: 94-5) regards it as a straightforward case of intentional homicide. The issue appears to be settled in the latter’s favour by the careful discussion of Harris (2006) 391-404, esp. 398-9 on this speech. 3 The Areopagus, a court consisting of former archons, heard all cases of phonos hekousios. [Aristotle] Ath. Pol. 57. 3 indicates that another court heard cases of involuntary homicide (phonos akousios), adding ‘and also cases of bouleusis’. MacDowell (1963: 64-9) takes this to mean that bouleusis might be of both intentional and involunary homicide and that all cases of bouleusis were heard at the Palladion; the traditional view (e.g. of Lipsius and Wilamowitz, cited by MacDowell loc. cit.) had been that Ath. Pol. is referring only to bouleusis phonou akousiou (planning of involuntary homicide, i.e. the planning of acts that led unintentionally to the victim’s death); but more recently it has been argued that, though bouleusis could refer to the planning of actions that did result in death (which would be dealt with by the appropriate court, depending on whether the killing was alleged to be intentional or otherwise), its primary reference in practice was to actions that did not (thus covering attempted homicide); such cases would be dealt with by the Palladion. See Harris (2006) 400-2. 4 Again, MacDowell stipulates bouleusis phonou akousiou (1963: 63-4); but see Gagarin (1990) 95; Harris (2006) 399-40.

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prosecution). This has generally been considered to be a legitimate use of apagôgê for homicide,5 while the former (as the speaker alleges himself) may be a misuse of the procedure for apagôgê or endeixis for kakourgoi (‘malefactors’). Apart from these five speeches, we also have Lysias 12, in which Lysias seeks the condemnation of Eratosthenes for the killing of his brother, Polemarchus. This is most likely not a regular homicide prosecution, but a case brought against Eratosthenes in the context of the euthynai (scrutiny) that he underwent as a former member of the Thirty (the oligarchic regime that took power in Athens following her defeat in the Peloponnesian War), in order to be covered by the amnesty of 403 which permitted members of the regime to remain in Athens only if they underwent such scrutiny of their conduct (Ath. Pol. 39. 6).6 There are two further cases of wounding with intent (trauma ek pronoias), namely Lysias 3 and 4, both for the defence). The defendant in Lysias 3. 41-2 alleges that the law demands intent not only to wound, but to kill, and cases of this kind were in fact heard by the Areopagus (Ath. Pol. 57. 3; Dinarchus 1. 6); for some, this supports an interpretation of this offence as the Athenian equivalent of attempted murder, but it is more likely that the speaker of Lysias 3 interprets the law in a way that makes the case against him more difficult to prove, and thus the ‘intent’ encompassed by the offence is merely the intent to wound (with a weapon).7 Other cases of homicide are of course referred to, in the orators and elsewhere. G. Herman counts 16 attested cases (excluding ‘political’ murders) for the years 507-322. For Herman, this shows that homicide was rare,8 and supports his overall contention that democratic Athens was, by comparison with other pre-modern societies, unusually non-violent. But we need to put these figures in context: there are many offences in Athenian law (attested in ancient sources and much-discussed in modern scholarship) for which there is no securely attested case at all;9 and the figure of three speeches for the special homicide courts and six overall for alleged instances of unlawful killing needs to be set beside the total number of surviving court speeches from the same period. Scholars differ slightly on that total (for various reasons), but all inventories list around 100 cases. A figure of 5% or 6% as a ratio of homicide cases to all attested cases is not particularly low. The figures for homicide as a percentage of all recorded offences in Scotland in 2009/10 are as low as 0.02%. My point is not that we have here the Athenian homicide rate, but that we cannot make these comparisons. The numbers yielded by the surviving evidence for classical Athens, both for all crime and for homicide, are too small to be statistically significant; and yet, for whatever reason, homicide speeches are a significant proportion of our (very limited) surviving corpus of forensic oratory. A case in one of the special homicide courts would normally (and most likely could 5 Apagôgê was a procedure that might be used against killers who trespassed upon the agora or the sacred places from which homicides were banned (Demosthenes 23. 80), or against exiled killers who returned (Demosthenes 23. 28-35, 51-2). For the view that these are the only legitimate uses of apagôgê in homicide cases, see e.g. MacDowell (1963) 134; Carey (2004) 125; Canevaro (2013a), esp. 26, 42-3, 46 (rehearsed at Canevaro (2013b) 158-73). For a different view, based mainly on Antiphon 5 and Lysias 13, see Volonaki (2000). 6 So MacDowell (1963) 19-20; for the view that the speech was composed for a process that never took place, see Carawan (2013) 150-70. 7 See Phillips (2007), esp. 86-8, 99; cf. Canevaro (2013b) 43, and for the contrary view, Todd (1993) 269. 8 Herman (2006) 207. Cf. Lanni (2006) 75, 112. 9 See the list of all attested offences and cases in Todd (1993) 102-9.

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only) be initiated by a member of the victim’s family.10 A case resulting from apagôgê could be brought by anyone. But no case could be initiated at all if the victim forgave the killer at the point of death.11 For MacDowell ‘this rule about absolution … proves beyond question that vengeance required by the killed person was one of the principles on which [Athenian homicide] law was founded’.12 In a way, I think this is right, though I will want to qualify it in some respects below. But for the moment, let us not beg the question, and substitute ‘redress’ for ‘vengeance’. The pursuit of the redress that the deceased demanded was a duty of that person’s male relatives;13 and in fact it seems that all our extant cases, even those which could in theory have been initiated by any citizen who wished to proceed, have been initiated by kin. Whereas for us homicide is perhaps paradigmatically a crime, in which the onus is on the state to find and punish an offender, at Athens it is, at least in one fundamental perspective, an offence against the victim and his or her family. This primary orientation is apparent in several other respects. In two ways, the demands of the victim’s family for emotional satisfaction are encompassed in the extent and circumstances of the penalty. First, the prosecutor had the right to be present to witness the execution.14 An execution, however, would actually take place only in the event that the defendant did not exercise his prerogative to flee after delivering his first speech. There is no certainly attested instance; and the event was probably relatively rare. The family’s interest in the extent of the penalty is also recognized by the institution of aidesis, the process by which the relatives of a victim of phonos akousios could, if they were so persuaded, allow an exiled killer to return to Attica.15 Aidesis implies that the victim’s family might retain residual or even considerable resentment, not necessarily dispelled by conviction or even by a period of exile, even when a court has established the absence of intention to kill. The provision no doubt derives from a period at which homicide was exclusively a matter for the families concerned to resolve; the term’s derivation (from aideomai, I respect) indicates the importance accorded the emotional attitudes of the victim’s family. Aidesis seems to require some sort of approach by the exiled homicide, an act of persuasion or supplication designed to elicit a change in attitude. This may have been purely formal, and it may (even if only surreptitiously) have involved the payment of compensation, but still the provision demonstrates the orientation of Athenian homicide law towards the victim, the victim’s family, and their sense of grievance.16

10 See Tulin (1996); in response to Tulin’s arguments, MacDowell (1997) withdrew the reservations he had expressed at (1963) 11-18, 94-7. 11 For this (i.e. the possibility of aphesis), see Demosthenes 37. 59: ‘if the victim himself before his death releases the murderer from bloodguiltiness, it is not lawful for any of the remaining kinsmen to prosecute’. Cf. Euripides, Hipp. 1442-3, 1448-51 (with MacDowell (1968)). 12 MacDowell (1963) 148. For an extensive exposition of the alleged role of vengeance and enmity in Athenian homicide law and litigation, see Phillips (2008). 13 MacDowell (1963) 8-11. 14 See Demosthenes 23. 69 (cf. Aeschines 2. 181-2). Execution (by apotympanismos, being fastened to a board) was possibly public: see Todd (2000) 47-8. That executions for homicide were probably rare is the view of Carawan (1998) 149. 15 See Dracon’s homicide law, IG 1.3 104. 13-19; cf. Demosthenes 21. 43; 23. 72, 77; 37. 58-9; 38. 21-2; Ath. Pol. 57. 3. See further Heitsch (1984); cf. MacDowell (1963) 123-5; Gagarin (1981) 48-52, 139-40. For Gagarin, the restriction to cases of phonos akousios did not apply in Dracon’s original law; cf. Carawan (1998) 33-83 (esp. 34-6, 81), 151; but contrast Heitsch (1984) 12-18. 16 Cf. MacDowell (1963) 123.

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If a relative decided to proceed with a case in one of the special homicide courts (a dikê phonou), he would, after making an application to the relevant magistrate (the basileus), have to attend three preliminary hearings (prodikasiai), a month apart, before the case came to court in the fourth month. We do not know anything about what took place at these hearings, but some speculate that one purpose was to allow a settlement if one could be reached.17 The speaker of Demosthenes 58. 28-9 presents it as disreputable to accept a financial settlement rather than proceed with a suit for phonos hekousios,18 but it may not have been illegal to do so.19 Settlement before trial is a regular option in a wide range of Athenian legal proceedings. Accordingly, a relative who did proceed to trial after three prodikasiai is rejecting any suggestion of a private settlement and insisting on the redress that the victim is felt to demand.20 That redress, however, can be obtained only by means of the institutions of the polis. The state left much in the hands of individuals and families, and took considerable account of their interests and motives, but the relevant procedures are subject to state regulation from start to finish in ways that extensively limit or exclude forms of redress that probably obtained prior to the development of legislation and to which families might otherwise be tempted.21 The state’s interest in limiting self-help and controlling violence, especially cycles of violent retaliation, is clear already in Dracon’s homicide law and explicitly commended in Demosthenes’ extensive paean to Athenian homicide law in his speech (number 23 in the corpus) against Aristocrates: as we have seen, the prosecutor can witness the execution of a relative’s killer, but the action is performed by the city in the name of its laws (D. 23. 69). Someone accused of homicide must keep away from certain parts of the city, but may 17 See e.g. Carawan (1998) 142. 18 Demosthenes 58. 28: ‘Not long after he was removed from office, when his brother died by a violent death, Theocrines showed himself so utterly heartless toward him that, when he had made inquiry concerning those who had done the deed, and had learned who they were, he accepted money, and let the matter drop.’ 19 MacDowell (1963) 8-10 regards the episode described in Demosthenes 59. 28-9 as involving the payment of a bribe; but the reference to a technical term, hypophonia, for the payment of money to the relatives of a homicide victim with a view to dissuading them from prosecution in Harpocration’s lexicon (MacDowell (1963) 9) does not immediately suggest bribery. MacDowell adduces Demosthenes 22. 2, where a relative is prosecuted for impiety for failing to prosecute a killer (1963: 9-10), but this does not entail that settlement before trial should also be regarded as impiety orthat failure to prosecute for homicide was an offence in its own right. The idea, however, that homicide creates an objective problem (namely ‘pollution’, miasma) with major consequences for the entire community may be regarded as creating powerful disincentives against purely interpersonal settlement and as expressing the community’s interests that homicide cases, though left to the deceased’s relatives to initiate, are resolved by due process; see Harris, forthcoming. 20 Cf. Carawan (1998) 112, 272. 21 For the various aspects of state control, see already Dracon’s homicide law, esp. the protection it afforded a killer who chose exile, 26-9. Cf. Demosthenes 23. 37-43, 51-2 (the exiled killer is not to be pursued or killed, though he may be killed with impunity or arrested if he breaks exile, 28-35); 44-6, 49 (protection for those exiled for involuntary homicide); 69 (the prosecutor can witness the execution of a relative’s killer, but punishment, kolasis, is carried out by the city in the name of its laws); 71-3 (only the law has authority over someone convicted for involuntary homicide; the exile is to leave by a specified route and must be allowed safe passage; he may appeal for aidesis and return); 80 (regulations specifying limits on the prosecutor’s actions and a degree of protection for those prosecuted by apagôgê). See Canevaro (2013b) 55-64. According to Demosthenes, the general principle of Athenian homicide law is ‘to prevent an endless succession of timôriai’ (ἵνα μὴ … ἀπέραντοι τῶν ἀτυχημάτων αἱ τιμωρίαι γίγνωνται, 23. 39). Cf. (e.g.) Cohen (2005) 227-8. On the many ways in which a dikê phonou differed from other kinds of private suit (dikê), including the belief in pollution (n. 19 above), see Harris, forthcoming.

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otherwise go about his business. A defendant on a charge of phonos hekousios (and so liable to the death penalty if convicted) may withdraw into exile at any point up to the end of the first defence speech, and may not be hindered or pursued. Anyone exiled for phonos akousios must be allowed safe passage out of the country. An exiled killer may be put to death or arrested if he returns to Attica, but he may not be pursued or killed beyond the borders, and if arrested, he may not be subject to torture or extortion. The bottom line may be the victim’s desire for redress, enjoined as a duty on his relatives, but the city has a major say in how that redress is pursued. If the importance accorded the grievances of the victim and the family suggests the pursuit of something like vengeance, the role of the state in regulating the whole process shows that this is not just a matter of personal revenge; at the least it is regulated and sanctioned by the state; but there is also a sense in which it reflects the state’s legitimate interest in the rule of law and the punishment of offenders. With Demosthenes’ claim that the intention behind Dracon’s law was ‘to prevent an endless succession of timôriai’, we might compare the pride in Athenian institutions’ ability to do just that that is evident in Aeschylus’ Eumenides. We shall come back in a moment to what it is that individuals, their families, and the polis might be said to want from the legal process: it may be too simple to oppose the family, with its presumed desire for revenge, to the state with its interest in punishment. But first I want to look at two areas in which issues of revenge or retaliation bear on homicide procedures in slightly different ways. First, one of the issues in the now rather tired dispute between Herman and his opponents (such as D. Cohen) on the prevalence of feuding,22 enmity, and revenge in Athenian society concerns the pursuit of enmity in cycles of litigation. For Cohen, these represent the pursuit of vendetta by other means – the norms here are norms of masculinity, honour, and emotions such as anger, not of justice or the rule of law.23 For Herman, such cases are isolated abuses that do not detract either from legal system’s general aim of resolving and preventing disputes or from the general picture of Athenian society as peaceful, tolerant, and non-confrontational. The latter position requires, at the least, some qualification. Litigants do admit that a state of personal hostility exists between themselves and their opponents – fairly often in private suits (dikai), but also sometimes in graphai, ‘public’ cases that could be brought by any citizen, where it might be important to have a personal motive in order to forestall charges of vexatious litigation, or ‘sycophancy’.24 There are, moreover, a number of speeches that demonstrate that the litigants in the particular case are engaged in a

22 I use the word ‘feud’ in the everyday sense of a protracted cycle of retaliation or persistent mutual hostility (OED s.v. 2). Harris (2013) 76-8 draws on anthropological studies to restrict the term to hostilities between two groups (OED s.v. 3), but he himself uses it in its ordinary sense elsewhere in the relevant chapter of his book, and I see no need for prescriptive redefinition of the word. 23 See Cohen (1995), passim. 24 See Dover (1974) 182; Cohen (1995) 61-86; Rhodes (1998). The importance of the distinction between private and public cases is emphasized by Kurihara (2003). For instances in public cases, see e.g. Aeschines 1. 2 (‘very often private enmities correct public abuses’); [Demosthenes] 53. 2 (‘I thought it the most outrageous thing ever seen among men, that I should myself suffer the wrong, but that another should lend his name on behalf of me, the one wronged; and that this would then serve as presumptive proof to my adversaries that I am lying whenever I speak to you of our enmity’). In such cases, however, it is in fact more common to find statements that public cases should not be subject to private enmities: see e.g. Lysias 31. 2, Demosthenes, 18. 12-16 (cf. 143), 21. 7-8, 23. 1, 5, 190; Lycurgus 1. 6; with Kurihara (2003) 468-9, 471-3, 476; Harris (2013) 61-2, 68.

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protracted, personally or politically motivated cycle of suit and counter-suit. A good example is Lysias 10 (Against Theomnestus 1), where there have been at least four previous suits involving speaker, his adversary, and their allies;25 as S. Todd puts it ‘a lot of what occurs in the orators is not so much dispute settlement as dispute perpetuation’.26 It is significant (of course) that this retaliation is pursued by legal and peaceful means, but the instances in which a particular suit is clearly just one stage in an ongoing dispute are too many to be regarded as isolated abuses of the system and must reflect a wider tendency in Athenian society. On occasion, however, it might be in the interests of defendants to suggest that their opponents are engaged in the pursuit of a wider, personally or politically motivated agenda. This is not just an argument that the pursuit of enmity through the courts is an abuse of the system; it is also – and more importantly – a tactic to undermine the prosecution’s case in the trial in question, especially in a homicide case, given the Athenians’ sense that homicide trials required (or regularly entailed) an even higher level of seriousness and focus on the facts of the case than did other kinds of suit.27 This is the aim of the chorêgos, the defendant in Antiphon 6, who claims that the relatives of the chorister whose death he is accused of causing were suborned to prosecute him by his political enemies, whom he had previously charged with misconduct in public office.28 We see something similar in Isocrates 18 and Demosthenes (in fact Apollodorus) 59,29 neither of which is a homicide case, but both of which refer to trials in which the speaker’s opponent has brought false charges of homicide as a tactic in an ongoing dispute: in Isocrates 18 the falsity of the charge is irrefutably demonstrated by the accused’s ability to produce the alleged victim before the court. It could not have been unthinkable for individuals opportunistically to subvert the processes of the homicide courts in this way, though given the respect in which these courts were held, it is clearly part of the speaker’s purpose to present his opponents’ motives as negatively as he can. Homicide trials are clearly enmeshed in the general rough and tumble of Athenian life, and part of that was the use of the lawcourts as a vehicle for personal and political feuds. But the fact that a homicide trial, like any other sort of case, may be used in pursuit of purely personal vengeance does not in any way prove that the intrinsic purpose of a homicide trial was nothing more than personal vengeance. The second issue is the extent to which Athenian law legitimized killing in retaliation. 25 On Lysias 10, see Todd (1993) 258-9; cf. e.g. the ongoing feud between Demosthenes and Meidias, MacDowell (1990) 1-13; Cohen (1995) 87-118. It is, however, important to set this phenomenon in context – it occurs, but is by no means all-pervasive: see Rubinstein (2000) 179–80; Harris (2013) 65-6, 68-76, 79-98. 26 Todd (1993) 153. 27 The Areopagus in particular had a reputation for expertise and judgement, and procedures in homicide cases were felt to demand high standards of seriousness and relevance (MacDowell (1963) 42-4, 100). This less a matter of formal differences in the rules governing the Areopagus and other courts (MacDowell (1963) 43; Lanni (2006) 75-114), since the importance of relevance was recognized (e.g. in the dikasts’ oath, but also by litigants themselves) in other courts too, than of the Areopagus’ reputation for competence in enforcing these rules. See Rhodes (2004); Harris (2013) 102-3, 114, 127-37. 28 See Antiphon 6. 34-6, 39-40. 29 See Isocrates 18. 52-4 (in context of a property dispute, Callimachus charges Cratinus with killing a slave woman; Cratinus produces the ‘deceased’, alive and kicking, at his trial); [Demosthenes] (i.e. Apollodorus) 59. 9-10 (Stephanus has allegedly been bribed by Apollodorus’ enemies to accuse him of involuntary homicide of a slave woman).

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There were some forms of killing that were specified as lawful: these would either not lead to a trial at all, if the relatives of the victim agreed that there was no case to answer; or, if the relatives rejected the killer’s justification, the defendant might be acquitted without penalty if he successfully argued (at the Delphinion) that one of these scenarios applied in his case.30 One of these circumstances is the one that obtains in Lysias 1, killing of a seducer caught in flagrante.31 The same law that specifies the legality of this action also specifies one form of killing in self-defence, killing of a highway robber (Demosthenes 23. 53). Later in the same speech Demosthenes quotes Dracon’s law for the right to kill someone attempting to seize one’s property illegally and by force.32 This provision is attested also in the inscribed text of the law itself; and the immediately preceding lines of the inscription have been supplemented in such a way as to provide two tantalizing references to ‘beginning unjust hands’, part of the definition of the Athenian offence of aikeia (assault) and a phrase used in the context of a plea of justified retaliation at Antiphon 4. 2. 1 (cf. 4. 3. 2-4). There is disagreement about whether all forms of killing in retaliation could be argued to fall under the same category. Gagarin (1978) argues for a distinction between lawful killing and killing in what he calls ‘simple self-defence’. This seems to be borne out by (a) Antiphon’s third Tetralogy and (b) a passage in Demosthenes 21 (Against Meidias), where the issue appears to be not affirmation versus denial of self-defence, but whether self-defence, even if established, should acquit. Leaving aside the complications raised by Antiphon’s Tetralogies (artificial rhetorical exercises, heavily reliant on arguments from probability), let us look at the case mentioned in Demosthenes 21. In sections 70-6 of the speech, Demosthenes contrasts his own forbearance when punched in the face in public with the violent reactions of two other men, one of whom is Euaeon, who killed a man called Boeotus in retaliation for a single blow. For Herman the point of this passage is simple: Demosthenes wants to elicit the dikasts’ admiration for his refusal to retaliate violently and their support for his principled stance in seeking legal redress; the case of Euaeon and Boeotus is there to provide a negative example.33 But Demosthenes’ argument is designed to pre-empt the conclusion that the offence for which he is seeking redress must be an insignificant one – otherwise, he’d have hit back (70). Euaeon’s lethal retaliation against Boeotus is then introduced in order to illustrate how unbearable an insult can be (71-2). Demosthenes then (73) urges his audience to reflect that, if Euaeon’s anger was understandable, his against Meidias is more so. He was fortunate and sensible enough to be able to restrain himself in the face of this extreme provocation, and though he represents his own response as the correct one, he also understands Euaeon’s – and so did many of the dikasts at Euaeon’s trial, given that he was condemned by only one vote (74-5). Demosthenes wants to present Meidias’ offence as worse than that of Boeotus and his own prudence and self-control as better and more admirable than Euaeon’s violent retaliation. But he and Euaeon share the same desire for satisfaction, for restitution of timê – for timôria (75-6). Demosthenes wants to persuade the dikasts that his anger is as great as or greater than

30 See Demosthenes 23. 53, with Canevaro (2013b) 64-70. 31 See Lysias 1. 30-1, with the law quoted at Demosthenes 23. 53 (‘in intercourse with his wife, or mother, or sister, or daughter, or concubine kept for procreation of legitimate children’); also Ath. Pol. 57. 3; Aeschines 1. 91; Plutarch, Sol. 23. 1. 32 Demosthenes 23. 60; cf. the law itself, IG 1.3 104. 37-8. For this interpretation, see Canevaro (2013b) 70-1; cf. ibid. 60-1. 33 See Herman (2006) 168-73, 403.

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Euaeon’s, to arouse their anger at Meidias, and to persuade them that his failure to retaliate at the time is not a sign of any lack of gravity either in the offence or in his reaction to it. Demosthenes has it both ways: he wants to advertise his own forbearance, but also to appropriate the sense of outrage that drove Euaeon to kill. He possesses the manly desire to retaliate that was endorsed by the minority of dikasts who voted to acquit; but has also demonstrated his strength in overcoming a powerful opponent – not Meidias, but his own anger. The distribution of the votes for the condemnation or acquittal of Euaeon and Demosthenes’ argument in general indicate not that Athenian attitudes to revenge are simple, but that they are complex. The fact that Euaeon was actually condemned, and his plea of provocation and retaliation did not persuade even some who accepted it to vote for acquittal, suggests not only Gagarin’s distinction between simple self-defence and lawful homicide, but also a distinction between proportionate and disproportionate retaliation.34 Someone who ‘began unjust hands’ would be liable for prosecution in Athenian law, for the offence of aikeia (assault; thus such a person would be a lawbreaker); but the law seems not to authorize lethal retaliation in this case. It does, however, authorize lethal retaliation when a man catches another ‘in intercourse with his wife, or mother, or sister, or daughter, or concubine kept for the procreation of legitimate children’ (Demosthenes 23. 53). This is the law that Euphiletus appeals to in his defence against the charge that he unlawfully killed the seducer, Eratosthenes, in Lysias 1 (see esp. 1. 30-1). The facts of the case may not be as the speaker represents them; and even if they are, there is clear exaggeration in his insistence that the law commands, rather than permits him to kill a seducer (26, 27, 29, 34, 50). But he clearly has a prima facie case, and so, although his accusers charge him with phonos hekousios (27, 37-42, 47, 50), he is entitled to be tried not at the Areopagus (30), but at the Delphinion. The option chosen by Euphiletus was not for everyone: the speaker of Isaeus 8. 44 describes his opponent as a serial seducer, undeterred by his experience when he ‘underwent what it is right for those who do such things to undergo’ – whatever ὅ τι προσήκει is here, it is not death. Other passages refer to various indignities short of death.35 There is also a rule that someone who lost a suit for false imprisonment as a seducer (moichos) would be handed over for his opponent to do as he wished with him, short of using a knife.36 It is possible, perhaps even likely, that the killing of the seducer was unusual at the time of Lysias’ speech, perhaps even something that a defendant would have to work hard to present as justified. But however that may be, the provision to kill or humiliate a moichos betrays the same general intention as does, for example, the law against hybris (deliberate humiliation) – that the honour of citizens (and others) should be protected and that citizens (and others) who believe that their timê has been illegitimately violated have the support of the state in seeking redress. These provisions show not just that timê was something that a citizen could be seen as having a right to, but that the community set great store by the protection of such rights. It is not unconnected to this that timê is the ordinary Greek for the rights and privileges that citizens enjoyed, its opposite, atimia, the legal term for the forfeiture of (all or some of) such rights and privileges. The timê of the victim is also 34 See Demosthenes 21. 75. This would license a blow in return for a blow, but killing only where one believed that one’s life was in danger; cf. Harris (2008) 113, (2010) 136, (2013) 186. 35 See Lysias 1. 49; Aristophanes, Nub. 1083; Plut. 168; Xenophon, Mem. 2. 1. 5. 36 See [Demosthenes] 59. 66.

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a central focus of homicide law: we see this in the law’s general orientation towards the victim, the victim’s family, and their demand for timôria, restitution of timê, and in the particular provision that there is no right to pursue timôria if the victim him- or herself remits the killer. We see it, incidentally, also in the provision that the phonos hekousios of a metic or slave be tried in the same court and accorded the same level of redress as the phonos akousios of a citizen:37 this is clearly a matter of the relative value of the different categories of victim; their difference in legal and social status – i.e. timê – is reflected in a difference in sanction – i.e. timôria. This brings us to the central question: how should we describe the timôria that the state, under the terms of its laws concerning homicide, permits the victim’s relatives to pursue – is it vengeance, is it punishment, is it both, or is it neither? There are various modern distinctions between vengeance and punishment that have been used to map Athenian terms and practices onto either of the two poles of the antithesis.38 But both the modern definitions and their application to Athenian terms and practices can be problematic.39 The discussion of why this is so risks being lengthy and rather arid; but a particular problem, it seems to me, is that many attempts to define timôria in Athenian law in terms of some modern distinction between vengeance and punishment assume from the outset that timôria must be one or other of these.40 For the purposes of this chapter I want to start from a more basic idea, 37 Ath. Pol. 57. 3. 38 For typical modern formulations, see Mackenzie (1981) 5-17; Saunders (1991) 21-2 (with 21-32 in general on the application of such criteria in Adkins (1960) and Mackenzie (1980)); Allen (2000) 18-19 (with 15-38 in general). For Mackenzie (1981: 10-12) ‘revenge is characterized as a transaction taking place between individuals’ (p. 11 n. 27), whereas punishment must be institutionalized, carried out in the name of an (impersonal and impartial) authority, and imposed on the offender as a penalty (rather than as the ‘price’ payable for the advantage of offending); victims have no authority to punish. 39 See Allen (2000) 21: ‘Our intuitive distinction between “revenge” and “punishment” [that ‘punishment is legitimate, but revenge is not’, p. 18] breaks down in the face of the [Athenian] record.’ Cf. ibid. n. 23: ‘The definitions of “revenge” and “punishment” do not even capture contemporary penal practices’ (or, one might add, contemporary English usage either, in which many forms of simple interpersonal retaliation can be described as ‘punishment’, and (for example) a busy schedule at work can, in the absence on an offence, an offender, and a punitive authority, be described as ‘punishing’). I do not discuss here the many cogent criticisms of the penology of contemporary societies or of current theories of punishment, but it is indeed relevant to note that many contemporary legal and political thinkers do not share the view of ‘punishment’ as an uncontroversially civilized and ‘advanced’ notion that is held by both camps in our debate, those who characterize Athenian practice as ‘revenge’ and those who describe it as ‘punishment’. 40 Thus Allen (see previous note) recognizes the inadequacy of the distinction between revenge and punishment, but then proceeds to use ‘punishment’ as the default category. The danger of equivocation that this entails is apparent when, in her discussion of Pindar’s fifth Nemean (2000: 100-1), she applies the term ‘punishment’ both to the retaliation of Acastus’ wife when Peleus spurns her sexual advances and to Acastus’ attempt to kill Peleus as a result of his wife’s false accusation of rape. Allen has insisted that Greek timôria resembles ‘punishment’ when it is used to enforce widely accepted social norms; but though it is a perfectly legitimate colloquial use of the English terminology to say that the wife of Acastus ‘wishes to punish’ Peleus (Allen (2000) 100), it is not a widely accepted social norm that a wife whose attempt to persuade a virtuous young man to have sex with her has failed is entitled to retaliate by plotting his death. There is an important distinction to be made here, and a role for the category of ‘revenge’ that is not being given its due. Cf. her p. 135: ‘Modern worries about vendetta are based on … anxiety about the valorization of anger. For that matter, we moderns generally expect that vendettas will arise when anger is made the basis for responses to wrongdoing. Where anger is a legitimate ground for punishing, one act of punishment will constantly lead to another since those who are punished will become angry at the loss of honor entailed in their own punishment and with then try to punish in turn.’ But if one act of punishment constantly leads to another it is moot whether we are

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which I think is less controversial. I refer to the notion that, both conceptually and legally, punishment, however conceived, is primarily an experience of the offender, imposed on that person because they are believed to have committed – or, in a legal context, because they have been convicted of – an offence. If we accept that, we can begin to look more closely at timôria in Athenian homicide law. Greek has perfectly ordinary words, zêmia, kolasis, and their cognates, that denote the imposition of harm or loss upon an offender, and these occur with some frequency in forensic oratory, including homicide speeches. Over our six homicide speeches as a whole, however, zêmia/kolasis-words are much less frequent than timôria-words: the ratio is 20:56, i.e. timôria-words are almost three times as common. Table 1 gives the occurrences of relevant terms by speech, by purpose (defence or prosecution), and by procedure (dikê versus ‘public’ procedures).41

defence prosecution Ant. 5 Ant. 6 Lys. 1 total Ant. 1 Lys.

12 Lys. 13

total

Timôria 6 6 6 18 7 6 25 38 Kolasis 2 0 0 2 0 2 0 2 Zêmia 1 2 7 10 0 2 4 6 Totals 14 8 15 37 7 17 29 53

‘private’ (dikê) ‘public’ (apagôgê, euthynai) Ant. 1 Ant. 6 Lys. 1 total Ant. 5 Lys.

12 Lys. 13

total

Timôria 7 6 6 19 6 6 25 37 Kolasis 0 0 0 0 2 2 0 4 Zemia 0 2 7 9 1 2 4 7 Totals 7 8 15 30 14 17 29 60

Table 1 The ratio of zemia/kolasis-words to timôria-words is slightly skewed by two speeches of Lysias, 1 and 13. Lysias 1 is a defence speech, but the argument is that that the defendant was in fact implementing a form of penalty demanded by the law, and the speaker’s tactic is to represent his victim, not himself as the offender. This is probably talking about punishment at all – if one believes that one has been punished, then there is nothing for one ‘to punish in turn’. At the very least, Allen’s use of the relevant terms here is non-standard. For different reasons (i.e. because the timôria that Athenian litigants seek is pursued ‘in conformity with the laws of their state and through the medium of ... the proper agents of that state’s power and authority’), Herman too (2006: 190-1) insists that such timôria ‘has very little to do with “primitive” vengeance and a great deal to do with what we would call punishment’. A substantial section of Herman’s book is devoted to the alleged failure of scholars who engage in conceptual analysis of Greek social and ethical terminology to avoid the pitfall of ‘the fusion of moral norms’ (p. 158), i.e. imposing modern categories on ancient realities. Herman makes no attempt to analyse the concept of timôria by investigating its usage; yet there is a clear ‘fusion of moral norms’ in his insistence that in legal contexts timôria is not revenge, but punishment (and repeated inconsistency with the several passages in which he himself uses ‘revenge’ words to translate timôria words, e.g. pp. 191, 397). 41 See also the Appendix in Rubinstein (2004) 196-200, which gives the distribution of these terms (together with words for ‘hatred’ and ‘anger’) in all forensic speeches, public/private and prosecution/defence.

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why this is the only homicide speech in which there are more instances of zêmia than of timôria (though timôria is also important). By contrast, Lysias 13 is a prosecution by the ‘public’ procedure of apagôgê, in which it is an important part of the prosecutor’s strategy to arouse the dikasts’ indignation over the crimes of the Thirty Tyrants in general. This is one basic reason why the speaker returns repeatedly to the notion of timôria. But otherwise, given the comparatively small corpus and the limited occurrence of the relevant terms, there does not seem to be much that is statistically significant about the distribution, either in terms of defence versus prosecution speeches or in terms of dikê versus other procedures. One thing that does not appear in the Table, however, should be noted: the representation of the polis (as well as the victim) as a victim of the offence or of offender’s injustice (adikia) occurs only twice in dikai (in Antiphon 1. 3 and 24), but is much more common in the ‘public’ case, Lysias 13. We shall say more on these subjects below. Like zêmia, kolasis, and ‘punishment’, timôria can be presented as an experience of the offender, one that he undergoes because of his offence.42 But much more regularly and characteristically, timôria is something that is performed for the victim (expressed using the dative of interest) or on behalf of the victim (using the preposition hyper + genitive).43 Indeed, the timôria that is achieved by a successful prosecution is said to be the victim’s timôria.44 It is something done to the offender, but also something extracted from the offender and given to the victim. Given the term’s etymology, this is exactly what one would expect: the reference to a victim’s loss of timê and the corresponding need to redress the balance by extracting timê from the offender are intrinsic.45 This reference to the interests of the victim is, for Aristotle, precisely what distinguishes timôria from kolasis.46 The orators are perfectly capable of making the same distinction, as when Demosthenes draws an implicit distinction between kolasis as the legal imposition of suffering on a convicted defender and the satisfaction of the prosecutor, allowed (as we saw above) merely to witness state-imposed punishment.47 Since timôria is defined fundamentally by its reference to the interests of the victim, it is unlike our word ‘punishment’. But this does not mean that it is automatically to be regarded as vengeance: the same reference to the interests of the victim is apparent in English terms such as ‘redress’ and ‘justice’.48 We see this especially, and on a daily basis, in campaigns to secure ‘justice for so-and-so’; a Google search for the phrase ‘justice for Trayvon Martin’ yielded 32,400,000 hits on Sunday 26 January 2014. It is important to emphasize that this is not just a matter of slotting in an English term – vengeance, punishment, redress, or justice – and seeing whether it fits the context as a translation of timôria (though this procedure is a

42 Antiphon 1. 27 (offender receives timôria); 5. 93 (timôria for offences, genitive); Lysias 12. 70 (timôria extracted from the offender). 43 For the victim (dative of interest): Antiphon 1. 3, 24; 5. 79, 88; on behalf of the victim, hyper + genitive: Antiphon 5. 95; 6. 6; Lysias 1. 47; 12. 94, 100; 13. 1, 41, 42, 74-5. 44 Antiphon 1. 5 (using the possessive genitive); cf. 1. 21 (timôria given to the victim). 45 This is not to imply the simplistic, ‘zero-sum’ notion of timê that one still occasionally encounters; for further discussion, see Cairns (2011). 46 See Rhetoric 1369b12-14: ‘there is a difference between timôria and kolasis; the latter is inflicted in the interest of the sufferer, the former in the interest of him who inflicts it, that he may obtain satisfaction (ἵνα πληρωθῇ)’. 47 Demosthenes 23. 69: though the victim may witness the imposition of the penalty, ‘only the laws and the appointed officers have power over the man for punishment (kolasai)’. 48 Todd (2007: 90) chooses ‘redress’ as a translation precisely because of the inadequacy of both ‘punishment’ and ‘revenge’, but does not go into detail.

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frequent tactic in the revenge versus punishment controversy). It is rather that the reflexivity of timôria as a concept marks it out as significantly different from ‘punishment’ but, at least in some respects, analogous to ‘justice’, in the sense of the just redress that victims or their partisans seek for the wrong that they have suffered. The fact that (for example) the family of a murder victim in the contemporary United States can demand ‘justice for Trayvon’ indicates the interest that victims, their families, and their supporters are felt to have in the legitimate punishment of the offender. Such demands tend to be voiced in the context of campaigns driven fundamentally by family and other supporters; the hitherto impartial may join such campaigns, but when they do, they are no longer impartial, but emotionally involved to a considerable extent. The ‘justice’ that is the focus of such campaigns is not abstract and impartial, but something that is sought as a way of satisfying both the rights and interests of the deceased and the emotional needs of that person’s family and supporters. Yet campaigners who want ‘justice for so-and-so’ are not asking the state to deviate from impartial justice; rather, they are demanding a justice that is especially important for them, highlighting legitimate claims that the law should address. If these claims are justified, then their denial is an injustice, an injustice that the campaigns themselves are instrumental in highlighting. But the demands that are operative in these extreme cases are legitimate even when the impartial justice of the state operates as it should; what the relatives of a homicide victim pursue, in their own persons, through the courts in classical Athens remains a legitimate demand in modern jurisdictions in which prosecution is normally a function of the apparatus of the state.49 My point is not that ‘justice’ and timôria are interchangeable lexical tokens, but that the victim’s demand for justice in contemporary English answers to something that may also play a role in the pursuit of timôria for the victim in classical Athens. The reflexive nature of the term does not in itself impose an interpretation in terms of what we call revenge. It is true, however, that timôria in legal contexts, including homicide, is not qualitatively different from timôria in purely interpersonal contexts. Both the victim of an insulting joke and the victim of homicide can be said to want timôria. (Again, we have terms with a similar range: in the former case, offence is taken; in the latter, the offence that is committed is a breach of the law.) The basic scenario would be the same whether the timôria sought or extracted was pursued through the courts or through revenge killing: timôria is something that the deceased is felt fervently to want and that is laid upon his/her relatives as a duty: the scenarios envisaged in our sources, where the victims, before they die, lay this duty upon their families,50 would

49 When, in modern jurisdictions, the law fails to address the needs of victims and their families, families will continue to seek ‘justice for so-and-so’. What an Athenian had to pursue by initiating a prosecution in his own person sometimes has to be pursued by private prosecution even in modern states, when the institutions of the state are felt to have failed victims and their families – witness the prosecutions initiated by the parents of Stephen Lawrence (murdered in 1993; private prosecution initiated 1994; failed 1996) and (successfully) by the families of the 29 victims of the 1998 Omagh bombing from 2000-2009. What the Lawrence family and the Omagh families feel when justice fails is presumably what all relatives feel until justice is done. This will be comparable, in my view, to what relatives of Athenian homicide victims will have felt in seeking the timôria that they believed was their due and their duty. 50 See e.g. Antiphon 1. 29 (‘if they are able and have time before they die, they summon their friends and relatives, call them to witness, tell them who the murderers are, and charge them to obtain timôria for them for the wrong that they have suffered’, ἐπισκήπτουσι τιμωρῆσαι σφίσιν αὐτοῖς ἠδικημένοις); Lysias 13. 41-2 (‘Dionysodorus … referred to this man Agoratus as responsible for his

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sit just as well in contexts of extra-legal redress as they do in contexts of legal redress. But the very fact that timôria spans the entire range of such contexts, legal and extra-legal, is one of several signs that it will not do reductively to identify it either with punishment or with revenge. A good illustration of the continuity between legal and extra-legal uses of timôria is given by a passage in Demosthenes 47. A man called Theophemus, together with his relatives Euergus and Mnesibulus, who are the speaker’s opponents in the present case, allegedly burst into the speaker’s house and, in the attempt to seize his property, caused the death of an elderly woman, the speaker’s former nurse, an ex-slave freed by the speaker’s father. The speaker tells how he sought the advice of the exêgetai (a body of religious experts) on what to do; they advise him not to prosecute Theophemus for homicide, since the dead woman was neither his relative nor his slave, but simply to purify his household and ‘obtain timôria in some other way, if you wish’.51 The speaker’s household has been violated; and he is clearly engaged in an ongoing dispute with Theophemus and his family; but the specific question was about prosecution for homicide; such a prosecution would have been a form of timôria for an unlawful killing, but timôria for the old nurse’s death can also be achieved in other ways, a phrase that is perhaps vague enough to encompass forms of timôria that do not depend on any form of legal process at all. Though timôria for homicide is normally pursued only via homicide trials, such trials satisfy a need that remains to be satisfied when a homicide trial is impossible, a need that could in theory be satisfied by other means. At the same time, the usage of timôria-words themselves also shows us that there is more to timôria in homicide cases than the simple pursuit of personal vengeance through the courts. This is because this usage also indicates very clearly the ways in which the process of satisfying the victim’s claim to redress is also one that directly affects the community and its laws. First, there are various ways in which speakers implicate the community, as represented by the dikasts, in the timôria sought by victims and prosecutors. In Lysias 1. 47, for example, Euphiletus (the defendant who argues that his killing of Eratosthenes was lawful) argues that his timôria serves not only his own private interest, but also the interests of the whole city, on the grounds that other citizens are less likely to become victims of moicheia (the seduction of one’s wife) if the present panel of dikasts endorses the measures that Euphiletus has taken.52 Several passages in Lysias 13 present the victims of homicide as philoi and benefactors of the polis who are thus reciprocally entitled to the dikasts’ support in obtaining the redress they deserve.53 Other passages simply observe that the victim’s

death, and charged me and Dionysius, his brother here, and all his friends to timôrein Agoratus on his behalf; and he charged his wife, believing her to be with child by him, that if she should bear a son she should tell the child that Agoratus had taken his father's life, and should bid him timôrein Agoratus on his behalf as his killer’). Note that what the victim in Antiphon 1. 29 is explicitly said to want is timôria for the injustice he has suffered. 51 Demosthenes 47. 70: ἄλλῃ δὲ εἴ πῃ βούλει, τιμωροῦ. 52 Cf. his opening gambit in presenting his killing of Eratosthenes as the imposition of a lawful penalty (zêmia) in 1. 1: ‘I should set great store, gentlemen, on your judging this matter in the same way as you would if it had happened to you. For I know that, if you had the same opinion about others as about yourselves, every one of you would be angry [aganaktein] at what has been done; indeed, you would all consider the penalties for those do such things to be too lenient.’ 53 Lysias 13. 1-2, 92-4, 97.

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right to redress is guaranteed by law.54 More fundamentally, however, the community or its laws can themselves be presented as ‘victims’ with an interest in securing timôria from a perpetrator for an offence against the city itself. As we noted above, this is more common in the prosecution speeches delivered in the context of the ‘public’ procedures of euthynai and apagôgê (Lysias 12 and 13), but it also occurs in Antiphon 1, for the prosecution in a dikê phonou.55 There is in fact no real gulf between the pursuit of timôria for the victim and pursuit of timôria for the city or its laws. Both prosecutors and defendants frequently spell out that timôria rectifies injustice.56 This is a regular feature of the usage of the term in Greek.57 Adikia and adikein, of course, can be used of purely interpersonal wrongs in Greek,58 which reminds us that notions of right and wrong, justice and injustice, justified or unjustified retribution are implicated in everyday social interaction as well as in law and litigation. Even purely personal, extra-legal timôria can rest on the idea that people have a right to respect and a right to redress when that right is violated. Yet, be that as it may, the timôria that is pursued via the courts is not a matter of purely interpersonal relations. To seek timôria through the courts implies that the accused has broken at least one of the city’s laws. Such timôria must be presented as something that is sought from the offender, rather than from third parties who may be associated with the offender. In this way, the legal context gives timôria a particular legal shape. Passages in which timôria is sought for the city and its laws because the offender has wronged the state bring out what is implicit in any case where a citizen seeks redress, through the courts, for the unjust and illegal violation of his right to honour; the city, via its laws, guarantees the rights, that is, the timê, of individuals; to violate those rights is to dishonour both the individual and the state which guarantees the individual’s claim to honour. The pursuit of timôria, at all these levels, implies some degree of emotional investment. For Aristotle, timôria is what anger (orgê), in its desiderative aspect, aims at (Rhetoric 2. 2, 1378a30), and even when speakers do not explicitly refer to anger as their motive in seeking timôria such an association is very likely to have been taken

54 See Antiphon 1. 21 (legal process enables the timôria to which the victim is entitled, axios, on account of the adikia he has suffered; dikasts as well as prosecutors are agents of timôria); Lysias 1. 2, 5, 31 (victim’s rights guaranteed by law). 55 See Antiphon 1. 3 (timôria for both the laws and the victim: τιμωρῆσαι πρῶτον μὲν τοῖς νόμοις τοῖς ὑμετέροις … δεύτερον δ᾽ ἐκείνῳ τῷ τεθνηκότι), 24 (‘I am prosecuting to ensure that she pays for her crime and to obtain timôria for our father and your laws (τιμωρήσω τῷ τε πατρὶ τῷ ἡμετέρῳ καὶ τοῖς νόμοις τοῖς ὑμετέροις); in this you should support me one and all, if what I say is true’); Lysias 12. 94 (the dikasts as dêmos in its judicial capacity are urged to seek timôria on their own behalf); 13. 48 (remember what the Thirty did to you as individuals and to the city in general, and extract timôria), 51 (the rejected notion that the Thirty, in putting their victims to death, were pursuing timôria on behalf of the polis), 76 (timôria against Agoratus for his offences against the city), 78 (timôria for those who wronged the dêmos), 95 (remember what the Thirty did to you as individuals and to the polis and impose timôria). 56 For timôria for adikia against the polis, see Lysias 13. 2 -3, 78, 82-4; for adikia against the victim: Antiphon 1. 21, 27, 29; 5. 79-80, 88; 6. 6-7; Lysias 1. 2, 39. 57 See e.g. Herodotus 2. 120. 5: The Trojan war shows ‘how great acts of injustice attract great timôriai from the gods’ (ὡς τῶν μεγάλων ἀδικημάτων μεγάλαι εἰσὶ καὶ αἱ τιμωρίαι παρὰ τῶν θεῶν). 58 See e.g. Hipponax 115. 15 W; Sappho 1. 19-20 L-P; Theognis 1283. Cf. Pearson (1962) 17 and passim.

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as read by their contemporaries.59 Where they appeal to the support of the city, its institutions, and its representatives in the form of the dikasts in obtaining timôria the conclusion that the dikasts are thereby invited to share their anger is there to be drawn. Aristotle’s account of anger in Rhetoric 2. 2 locates the causes of that emotion very firmly in the sphere of interpersonal affronts; for him, the timôria, the restoration of timê, that anger seeks is motivated by the lack of respect, the deprivation of timê, manifested in the original slight. Aristotle’s extensive discussion of the conditions, occasions, and targets of anger does perhaps encompass scenarios which could give rise to legal action (hybris, for example, looms large, and hybris was an offence in Athenian law), but, though he notes that the slight on which anger focuses should regarded as ‘unfitting’ (μὴ προσήκοντος, 1378a32), he has little explicitly to say about the focus on injustice (adikia) that is frequent in our speeches.60 In recommending that the student of rhetoric should understand how to represent the paradigm scenarios of anger, however, Aristotle clearly recognizes that anger may be elicited not only by explicit appeals to the emotion, but also indirectly via narrative accounts of agents’ behaviour, the attitudes it betrays, and its consequences. Clearly, the representation and elicitation of emotion in forensic oratory can take similarly indirect forms, depending very much on the delineation of the eliciting conditions of emotion through narrative and characterization.61 We can thus expect that anger, as the emotion that drives the pursuit of timôria, will be much more widely present as a factor in the proceedings from which our extant homicide speeches derive than might be suggested by a simple review of the occurrences of anger-words in those speeches. Such a review, however, is not without interest for our project; its results, moreover, corroborate the conclusions of the more extensive survey of the distribution of anger-terms across the entire extant corpus of forensic speeches conducted by Rubinstein (2004). Explicit appeals or references to anger (orgê) are, as Rubinstein observes, ‘context-sensitive’:62 in particular, direct references to anger, especially anger on the part of the dikasts, are much more common in public than in private cases;63 appeals to orgê and appeals for timôria are especially correlated in cases which can be represented as involving the public interest;64 appeals to anger are more frequent in prosecution than in defence speeches;65 and where direct reference to the dikasts’ anger is made in defence speeches, the point tends to be that anger is a potential threat to their ability to judge rationally on the basis of the facts.66 Thus we find that relevant instances of anger-words (mainly orgê and its cognate verb; one relevant case of the verb aganaktein, to be indignant) are found in only three of our surviving six speeches (Antiphon 5; Lysias 1 and 12). Antiphon 5 is a defence speech in a public case, and thus the speaker’s main concern is to forestall the possibility that the dikasts’ anger at the offence will lead them to condemn him in haste rather than accepting the cogency of his rational arguments (5. 69-72, 91). Lysias 12, for the prosecution, also involves a public procedure, and so the speaker (Lysias himself) immediately broadens the issue 59 On the role of anger in Athenian litigation, see Rubinstein (2004) and (2013) – more nuanced and discriminating than Allen (2000). See also Sanders (2012) 364-9. 60 That anger is a regular response to adikia in Greek is too obvious to require documentation; it emerges uncontroversially in the passing remark about the ferocity of those who are angry at unjust treatment at Lysias 12. 20 (n. 67 below). 61 See Rubinstein (2013); cf. Sanders (2012) 361-2 and passim. 62 Rubinstein (2004) 192. 63 Rubinstein (2004) 188, 190. 64 Rubinstein (2004) 192. 65 Rubinstein (2004) 191. 66 Rubinstein (2004) 190; cf. (2013) 135, 141-3.

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from his own private enmity towards Eratosthenes, as a member of the Thirty and the killer of his brother, Polemarchus, to the anger that he shares with the dikasts, on both personal and communal grounds (12. 2). Thereafter, Lysias repeatedly reminds the dikasts (variously presented as representing the polis, the dêmos, or the democrats who had been exiled under the oligarchic regime of the Thirty) as fellow-victims with shared reasons for anger (12. 30, 58, 80, 90, 96).67 We saw already that the highest incidence of references to timôria in homicide speeches is to be found in Lysias 13, a prosecution by the ‘public’ procedure of apagôgê. There, the general tactic of representing the dikasts and the dêmos as victims of the Thirty’s crimes is also prominent, and coexists (as we also noted) with the argument that the dikasts are under an obligation to pursue timôria on behalf of the deceased, their fellow-citizens, friends, and benefactors. But there is no explicit exhortation to the dikasts to feel anger. In this speech, the anger of the dikasts – as victims in their own right, as friends of those who were killed, and as defenders of the city and its laws, is the unspoken link between the very frequent appeals to the dikasts to exact timôria (on all these grounds) and the extensive narrative of the crimes of the Thirty. There can be no doubt, however, that the emphasis on the Thirty’s crimes and the presentation of the dikasts as victims of those crimes is designed to arouse their anger. This speech is thus good evidence not only for the relevance of dikastic anger even when there is no explicit appeal to that emotion, but also for the possibility that such anger may be aroused by appealing to solidarity with the victims and commitment to the common good, as well as by presenting the dikasts themselves as the direct victims of the defendant’s injustice. Lysias 12 and 13 resemble each other in making the timôria sought by the prosecutor a matter of public interest and implicating the dikasts as fellow-victims on the side of the speaker against the defendant, something that Rubinstein has shown is a typical tactic of prosecutors in public cases; but these speeches also differ in that the latter completely eschews the explicit appeals to anger that recur in the former, yet makes even more of the collective timôria in which the dikasts are urged to participate. These findings appear to demonstrate something of the range of variation that might be expected in the deployment of a single general strategy in specific individual cases. Lysias 1, on the other hand, is a defence speech in a dikê phonou, at least nominally a ‘private’ suit. This speech has one reference to orgê that conforms to the pattern found in defence speeches – in §28, having narrated at length in §§6-26 his discovery of Eratosthenes’ seduction of his wife and the consequent killing of the seducer, the speaker, Euphiletus, anticipates the arguments of his accusers (the relatives of the deceased) and seeks to forestall any attempt to arouse anger against him; he is the one who acted justly, in killing the seducer in flagrante, the seducer was in the wrong, and any attempt to suggest otherwise would be a lie designed to arouse the anger of the audience. Here, Euphiletus argues like a defendant. He began his speech, however, by assuming the stance of a prosecutor, inviting the dikasts to put themselves in his shoes and imagine the anger that they would feel if what happened to Euphiletus had

67 The dikasts’ anger is also implicated in the statement at §20 that the Thirty despoiled the wealth of Lysias’ family with the kind of ruthlessness one finds in those who are angry at some great injustice. That the services of Lysias’ family to the city did not in any way warrant such treatment (ibid.) reinforces the message that the adikêmata are those of the Thirty themselves, and anger the appropriate response.

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happened to them (1. 1).68 Throughout the remainder of the speech, Euphiletus makes his own righteous anger clear,69 and refers repeatedly to the timôria that he sought and obtained by killing Eratosthenes;70 but his own anger remains to be inferred from his presentation of the case, and he is careful to avoid giving the impression that his motives were purely personal. Accordingly, he asserts that, because all Greek poleis, both democratic and oligarchic, share the indignation at the offence of moicheia that he has just sought to excite in the dikasts (1. 1), each city grants its members, whatever their status, an equal right to timôria (1. 2), and emphasizes that the timôria he sought was in accordance with (or, as he also suggests, a requirement of) the law (1. 31). He ends the speech as he began, by implicating the dikasts and the polis in his timôria (1. 47-50):71

Therefore I, gentlemen, do not consider this timôria to be a personal one on my own behalf, but on behalf of the entire polis. For when those who do such things see what sort of prizes are awarded for such transgressions, they will commit fewer transgressions against others, if they see that you too have the same opinion. Otherwise, it would be much better to delete the established laws and make new ones that will impose penalties (zêmiai) on those who keep watch on their own wives and grant total immunity to those who wish to transgress against them. This would be much fairer (more just, dikaios) than letting the citizens be ambushed by the laws that order a man who catches a seducer to treat him as he wishes, but the trials are riskier for the victims of injustice (adikia) than for those who break the law and disgrace other men’s wives. For my life, property, and everything else are now at stake, because I obeyed the laws of the polis.

This is a defence speech; but the speaker turns the tables and presents himself as the victim; it is a dikê, but the speaker identifies his cause with that of the city as a whole.72 Whatever we think about the speaker’s tactics in this case, his appropriation of what we might call the ‘public interest’ appeal to timôria is not unique. If he is 68 Quoted in n. 52 above. 69 His opening invitation to the dikasts to put themselves in his place and share his anger (1. 1 once more; cf. n. 52 above) implies that his own anger, like that of any victim of such an offence, is self-evident. Cf. his claim that his enmity towards Eratosthenes stems from no pre-existing grievance, but only from the latter’s seduction of his wife (1. 4). Note, too, his general presentation of Eratosthenes’ actions as hybris (1. 2, 4, 16, 25), and cf. Sanders (2012), Rubinstein (2013). There are also two incidental uses of orgê words (§12 of the speaker’s anger at his wife when she was reluctant to feed their child, §15 of the anger of another women, seduced by Eratosthenes in the past, but now abandoned and aggrieved, feeling herself wronged, ἀδικεῖσθαι). 70 Lysias 1. 2, 5, 31 (bis), 41, 42, 47. 71 ἐγὼ μὲν οὖν, ὦ ἄνδρες, οὐκ ἰδίαν ὑπὲρ ἐμαυτοῦ νομίζω ταύτην γενέσθαι τὴν τιμωρίαν, ἀλλ’ ὑπὲρ τῆς πόλεως ἁπάσης· οἱ γὰρ τοιαῦτα πράττοντες, ὁρῶντες οἷα τὰ ἆθλα πρόκειται τῶν τοιούτων ἁμαρτημάτων, ἧττον εἰς τοὺς ἄλλους ἐξαμαρτήσονται, ἐὰν καὶ ὑμᾶς ὁρῶσι τὴν αὐτὴν γνώμην ἔχοντας. εἰ δὲ μή, πολὺ κάλλιον τοὺς μὲν κειμένους νόμους ἐξαλεῖψαι, ἑτέρους δὲ θεῖναι, οἵτινες τοὺς μὲν φυλάττοντας τὰς ἑαυτῶν γυναῖκας ταῖς ζημίαις ζημιώσουσι, τοῖς δὲ βουλομένοις εἰς αὐτὰς ἁμαρτάνειν πολλὴν ἄδειαν ποιήσουσι. πολὺ γὰρ οὕτω δικαιότερον ἢ ὑπὸ τῶν νόμων τοὺς πολίτας ἐνεδρεύεσθαι, οἳ κελεύουσι μέν, ἐάν τις μοιχὸν λάβῃ, ὅ τι ἂν οὖν βούληται χρῆσθαι, οἱ δ’ ἀγῶνες δεινότεροι τοῖς ἀδικουμένοις καθεστήκασιν ἢ τοῖς παρὰ τοὺς νόμους τὰς ἀλλοτρίας καταισχύνουσι γυναῖκας. ἐγὼ γὰρ νῦν καὶ περὶ τοῦ σώματος καὶ περὶ τῶν χρημάτων καὶ περὶ τῶν ἄλλων ἁπάντων κινδυνεύω, ὅτι τοῖς τῆς πόλεως νόμοις ἐπειθόμην. 72 As Rubinstein shows (2004: 194) appeals to orgê in prosecution speeches in private suits tend to focus on widely accepted forms of antisocial behaviour; thus explicit appeals to orgê in both public and private cases tend to focus on offences against the common good.

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angry, he also invites others to share that anger, purely by reason of their ability to put themselves in the position of a fellow-citizen who has suffered a wrong. This is an anger that he presents as legitimized and sanctioned by the laws of his own state and others, anger that the state permits its citizens to express on its own behalf as well as on theirs. This is not just a matter of representing the dikasts, fellow-citizens, and the state itself as victims in the same way as an individual might be; it gives timôria and the anger that timôria implies a particular role in the rule of law and the defence of justice. The relevant reactive attitudes remain emotional at all levels from personal affront to violation of the laws that bind all equally and without partiality.73 Athenian legal discourse is built up out of ordinary social, ethical, and emotional language; that language is not transformed by its use in legal contexts, but still its use in such contexts gives it a distinctively legal shape.74 The honour that is enjoyed by all Athenian citizens alike, by virtue of their membership of the community of citizens – the same honour that the state protects by giving individuals the right to seek timôria through the courts – is not something entirely different from the varieties and degrees of honour that are at stake in purely personal interactions; but it is not merely that either. It is also something in which the state as such has a legitimate interest, both as guarantor of the honour of its members and as a bearer of honour in its own right. The use of timôria in homicide speeches reflects the importance of timê in the Athenian concept of rights, rights that the state guarantees by granting the right of redress (fundamentally to citizens, but also, albeit differentially, to non-citizens) through the system of justice under the rule of law.75 Timôria resembles our concept of punishment in some ways, but diverges from it in many interesting ways. But the fact that it is not quite co-extensive with our notion of punishment does not mean that it is merely a concept of revenge; tertium indeed datur. We need to understand Athenian concepts, in their own terms, in their original Athenian contexts. The usage of timôria in homicide speeches points to a specifically Athenian way of seeing things, in which an individual’s ‘value’ encompasses not only interpersonal forms of dignity and respect, but also his legal status as a member of the community, someone whose claim to timê is guaranteed by law and by the sanctions that may be imposed if his timê is violated. To claim that if timôria is not punishment, it must be revenge, is simply the fallacy of false alternatives. The antithesis between vengeance and punishment is another of the many modern dualisms that proves unhelpful in trying to understand Athenian values on their own terms. Works cited Adkins, A. W. H. (1960), Merit and Responsibility: A Study in Greek Values (Oxford). Allen, D. (2000), The World of Prometheus: The Politics of Punishing in Democratic

Athens (Princeton).

73 On the relation and interaction between those ‘reactive attitudes’ which express our ethical attitudes towards others (e.g. indignation, sympathy) and those which express and assert our concern for ourselves (e.g. anger, grief), see Strawson (1962). There is, of course, a wider and vigorous contemporary debate, into which we cannot enter here, on the relation between emotion (on the one hand) and legal and moral norms (on the other): for a brief and stimulating discussion, with relevant bibliography, see De Sousa (2008). See also the monographs of Prinz (2007) and Deigh (2008), and the essays in Bagnoli (2011). 74 Cf. Johnstone (1999), esp. 126-7. 75 For the differential treatment of citizens and resident aliens in homicide law, see above, p. 000.

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