R. Sealey (essay date 1984)
SOURCE: Sealey, R. “The Tetralogies Ascribed to Antiphon.” Transactions of the American Philological Association 114 (1984): 71-85.
[In the following essay, Sealey argues that Antiphon's Tetralogies do not provide conclusive evidence about the nature of Athenian legal practice.]
The text of the speeches of Antiphon depends mainly on two manuscripts, neither of them particularly old or particularly good. One of them, now in London, was written in the thirteenth century. The other, written in the thirteenth or fourteenth century, is in Oxford. The other extant manuscripts are derived from the one in London. The two main manuscripts are themselves derived closely from their archetype.1 They provide the three Tetralogies, conventionally numbered 2, 3, and 4, as well as the three speeches (1, 5, 6), whose authenticity is not now doubted. Thus the Tetralogies were attributed to Antiphon at the time when the archetype was written rather before the thirteenth century.
The external evidence on the transmission is scant. Dionysios of Halikarnassos expressed his respect for Antiphon in general terms without quoting his works. Although Dionysios wrote about some other Attic orators and inquired into questions of authenticity, no treatise of his on Antiphon is preserved; there is no reason to think that he wrote one. The brief note in the Suda and the even briefer note of Harpokration on Antiphon of Rhamnous do not name any writings. Pollux the lexicographer is a little more helpful. He has several references to speeches 5 and 6 and to Antiphontic speeches now lost, though none to speech 1, and he twice cites words from the Tetralogies (2.119 citing Ant. 2.3.1, and 8.21 citing 4.1.4). It follows that the Tetralogies existed by the second century a. d., a fact which could not otherwise be taken for granted. Pollux' attribution of the Tetralogies to Antiphon carries little weight. The Life of Antiphon (15) included in the Pseudo-Plutarchean Lives of the Ten Orators says that sixty speeches were current under the name of Antiphon and adds that Kaikilios of Kale Akte considered twenty-five of them spurious.
Many discussions of the Tetralogies in the past hundred years have concentrated on the question of authenticity: were they composed by Antiphon of Rhamnous or by someone else, and if by someone else, who was the author? The present paper will address a different question, namely, do the Tetralogies reflect Athenian law and Athenian court-practice? Arguments bearing on this question may bear on the question of authenticity, but inferences about authenticity, however easy to draw, will not be drawn here.
Debts must none the less be acknowledged to two predecessors. Dittenberger's thorough inquiry should be the starting-point for all subsequent study of the Tetralogies. He claimed to find divergences both in diction and in law from Athenian practice. Dover, on the other hand, declared: “the law presupposed in them [is] Attic.”2 Dover also made two other important claims. First, he reexamined the Ionicisms of diction, which Dittenberger had noted, and he observed that they occur in common words and expressions. He inferred that they are deliberate; they cannot be explained as oversights by an Ionian who tried to speak Attic. He concluded that, if the Tetralogies are authentic, there must have been an otherwise unattested Ionian genre of forensic oratory which they tried to imitate. The present paper would be content to note that Ionicisms do not occur in Athenian court-speeches.
The other claim made by Dover concerned the date of composition of the Tetralogies, if authentic. By stylistic tests he ascertained the relative order of the three undisputed speeches, and he had an absolute date available for the earliest of them (6 in 419/8). He was able to place the fragments of lost speeches in the sequence, but he found that in stylistic features the Tetralogies bear no relation to the undisputed speeches. He concluded that the Tetralogies, if authentic, were composed at an appreciably earlier stage of Antiphon's career than his writing for real litigants. This argument appears to be the reason why many recent writers, accepting the Tetralogies as authentic, have favored an early date.3
This claim can be escaped but only at a cost. One can suppose that Antiphon composed speeches for litigants in one manner of argument and language but composed the Tetralogies, which were not intended for any actual law-suits, in another manner at the same period of his life. On this hypothesis the Antiphon of the Tetralogies need bear no recognizable resemblance to Antiphon of Rhamnous, who composed the undoubted speeches. This hypothesis enables the reader to assign the name, “Antiphon of Rhamnous,” to the author of the Tetralogies and attach any date to them, but it achieves this by emptying the name of content. Jekyll-Antiphon has nothing discernible to do with Hyde-Antiphon. The hypothesis, though tenable, is barren.
If, on the other hand, one follows Dover's argument from style to an early date for the Tetralogies (if authentic), one can draw conclusions which may be tentative or disputable but are at least significant. In particular something can be said about the types of argument which Antiphon favored. Greek rhetorical theory distinguished between “proofs” (pisteis) of two kinds: “artless” (atechnoi) and “artistic” (entechnoi). “Artless proofs” included laws, witnesses, contracts, evidence taken from slaves under torture, and oaths. “Artistic proofs” were arguments from probability in a wide sense.4 The custom of Athenian litigants underwent a change from sole reliance on “artless proofs” to increasing dependence on “artistic proofs.” The change has been traced in the forensic speeches of Antiphon.5 The earliest of these (6) is content to narrate the circumstances and call the witnesses (6.15-16). The later speeches (1, 5) weigh probabilities and discuss the arguments of the other party. The Tetralogies consist entirely of “artistic proofs” (as observed by Maidment [above, note 2] 34). Accordingly, if Dover's argument for the date of the Tetralogies is right, Antiphon's practice of the art of persuasion went through three stages, from total reliance on “artistic proofs” to total reliance on “artless proofs” and then to a growing preference for “artistic proofs.” In relation to the question posed in the present inquiry one need merely note that in preference for type of “proof” the Tetralogies are closer to Antiphon's practice late in life and to subsequent Athenian oratory than to his method in his earliest extant court-speech.
Section II will discuss the insistence of the Tetralogies on considerations about pollution and spirits of vengeance. Sections III and IV will examine two assertions which they make about the law of homicide. Section V will take note of their allusion to the property-tax (eisphora). These topics have been discussed before, but perhaps a little more can be said about them, and the present writer is so bold as to think that he can offer a new topic for discussion in Section VI.
The author of the Tetralogies was preoccupied with pollution as a consequence of homicide and with spirits of vengeance. A list of passages mentioning these considerations will suffice: 2.1.3; 2.1.9-11; 2.2.11; 2.3.9-11; 3.1.2; 3.3.11-12; 4.1.3; 4.1.4; 4.1.5; 4.2.8; 4.3.7; 4.4.10-11.
In genuine Athenian speeches delivered on charges of homicide (Antiphon 1, 5, 6; Lysias 1, 12, 13) references to pollution are not totally absent but they are rare. The speaker of Antiphon 5 says that trials for homicide are held in the open air, so that the innocent shall not share a roof with the polluted, and that people have often suffered from admitting a polluted person to the same boat, but those sailing with the speaker have enjoyed good voyages (5.11 and 82). Prosecuting Eratosthenes, Lysias says in a merely incidental manner that the Thirty Tyrants polluted temples by entering them (12.99). Those three passages are the sole references to pollution that the present writer has noticed.
References to spirits of vengeance are not merely absent from the genuine speeches on homicide but absent where one might well expect to find them. The speaker of Antiphon 1, prosecuting his step-mother for poisoning his father, says that the latter on his death-bed charged the speaker to prosecute (1.1 and 29-30). The speaker of Lysias 13, prosecuting Agoratos for bringing about the death of Dionysodoros, says that the latter, while awaiting execution, sent for his wife, the speaker's sister, to come to the prison. Through her Dionysodoros charged the speaker and his own brother to exact vengeance from Agoratos, and believing his wife pregnant, Dionysodoros bade her impose the same charge on their future son (13.39-42 and 92-94). Both these pleaders make a considerable point of the dying man's charge; neither says that he will be persecuted by spirits of vengeance, if he fails to fulfill his task. Again in prosecuting Eratosthenes Lysias (12.100) conjectures that the dead listen to him plead and watch the dikasts vote; he fails to say anything about spirits of vengeance.
In their preoccupation with pollution and with spirits of vengeance the Tetralogies diverge from Athenian court-practice as attested in the extant speeches of the orators.6 But do they conform to court-practice as it was early in the career of Antiphon? No decisive answer can be given to this question, but some considerations can be brought to bear on it. Pollution and spirits of vengeance were evidently matters of concern to the audiences who first appreciated the Oidipous the King of Sophokles and the Libation Bearers of Aischylos. Yet it is conceivable that Athenians disregarded in court considerations which moved them in the theater, and in this connection a feature of the Eumenides is suggestive. At line 235 the scene changes from Delphi to Athens. In the earlier part of the play Orestes has been purified of pollution;7 the question of guilt remains and is argued before the Areopagos. Thus in 458 Aischylos could expect his audience to grasp the distinction between the religious and the secular aspects of matricide. So it is not impossible that Athenian courts restricted themselves to the secular aspects of homicide as early as the time when Antiphon may have composed the Tetralogies.
Dittenberger denied on several counts that the law stated or assumed in the Tetralogies was Attic. In response to criticisms from J. H. Lipsius he withdrew some of his claims but continued to assert two of them. One of these concerned the repeated allegation of the Tetralogies, that the law forbids both unjust and just killing (3.2.9; 3.3.7; 4.2.3; 4.4.8). An Athenian law, on the other hand, said: “If in the course of prompt resistance someone kills someone who is unjustly carrying off his property or driving it away, let the death bring no penalty.”8 Since the prohibition of just and unjust killing is stated repeatedly in two of the Tetralogies, and since in the second it is acknowledged by both parties, it does not appear to be a mere comment on a more complex law. Prima facie the author presents the prohibition as a statement of the law. Yet it would be amazing if any system of law distinguished between just and unjust homicide but imposed the same prohibition on both.
Recently M. Gagarin9 has recognized the enormity of the difficulty and offered an ingenious solution. The alleged prohibition lacks the form of statutory legislation, since it fails to give a sanction. Athenian law on crime commonly opened with a conditional clause, “If anyone commits such and such a deed,” but a provision of that kind would make the alleged prohibition of unjust and just killing superfluous. If “just” and “unjust” mean “allowed by law” and “prohibited by law” respectively, then one half of the combined prohibition is self-contradictory and the other is tautological. It is surprising that the alleged prohibition is introduced into discussion by the defendant; it would appear to be in the interests of the plaintiff to cite the prohibition and of the defendant to suppress it. In the Second Tetralogy the dichotomy “just/unjust” is equivalent to the dichotomy “involuntary/voluntary,” but in the Third Tetralogy it is not.
From these observations Gagarin draws the inescapable conclusion, that the repeated assertion, “the law forbids both unjust and just killing,” does not state or summarize any Athenian law. Instead he draws attention to “the increasing moral sophistication of the mid-fifth century” (page 303). Some kinds of homicide, though still punishable at law, came to be recognized as just by a “more developed moral perspective.” This insight, it is suggested, was summarized in the moral comment, “the law prohibits both just and unjust homicide.” That comment was not a common observation, for it is not echoed in other speeches or in the plays of Euripides. But it was sufficiently current for the author of the Tetralogies to cite it allusively.
Gagarin's interpretation allows but does not compel the belief that the Tetralogies are the work of Antiphon. Certainly that prohibition is presented in the Tetralogies as if it were a statement of the law, not a comment on the law. In relation to the question posed in the present paper Gagarin's findings justify an even more categorical conclusion than was previously possible. The repeated assertion, that the law forbids unjust and just homicide, might serve to make a moral comment on Athenian law but it does not reflect Athenian law.
The second legal point on which Dittenberger insisted concerns the treatment of someone found to have killed involuntarily. The Second Tetralogy deals with a young man who threw a javelin at a target in a gymnasium, but a boy ran across the path of the javelin and was killed. The young man's father, pleading in his defense, envisioned “destruction” as the consequence of conviction (3.2.10; 3.4.9). Athenian law imposed exile on the person convicted of involuntary homicide. Dittenberger argued (mainly from Plato, Laws 11.865e) that the exile was limited to one year. Lipsius argued (from schol. Iliad 2.665) that the exile lasted five years.
In fact there is more to be said both about Athenian law and about the Second Tetralogy. The exile imposed as a consequence of involuntary homicide had no temporal limit in Athenian law but continued until the relatives of the victim, or select members of his phratry if no relatives survived, admitted the killer to “pardon” (aidesis).10 In the Second Tetralogy the two parties speak in different terms about the prospective penalty. The defense says, without specification, that the consequence of conviction will be “destruction” (diaphthora 3.2.10, cf. 3.4.9). This vagueness may perhaps be explained by the readiness of accused persons to magnify the loss threatening them. The terms chosen by the prosecutor reveal more. He urges the judges “to exclude the killer from the places from which the law excludes him” (εiργόντας ων ὁ νόμος εἴργει τὸν ἀποκτείναντα, 3.1.2), and he hopes that the killers will be “excluded from appropriate things” (ειργόμενοι τω̑ν προsηκόντων, 3.3.11). He does not say what places he means, but his phrases can best be understood as alluding, with variation, to a standard procedure of classical Athenian law. The person accused of homicide, but not yet convicted, was “excluded from the things specified in the laws” (εἴργεsθαι τω̑ν νομίμων).11 If this interpretation of the prosecutor's words in the Second Tetralogy is right,...
(The entire section is 6721 words.)