Mirhady, D. C. 1996 - Torture and Rhetoric in Athens
Torture and Rhetoric in Athens
Introduction
J.W. Headlam's century-old thesis suggested that challenges to torture slaves in Athenian law served as an alternative to trial by dikasterion, akin to an ordeal.
This thesis was largely rejected, but its significance merits reconsideration due to its implications for understanding the role of slaves and Athenian rules of evidence.
This paper aims to revive Headlam's thesis in a modified form and address criticisms against it.
The argument is that Headlam was essentially correct about the judicial function of the challenge, but misidentified it as a trial by ordeal.
The influence of rhetoricians in Athens contributed to some of the disagreement surrounding this topic.
Challenges to Torture (Prokleseis)
Athenian orators frequently mention challenges (prokleseis) to torture (basanos) in their speeches.
These challenges typically occurred before disputes reached the dikasterion.
A litigant would propose to his opponent to have a slave interrogated by torture, with the slave owner maintaining control over the process.
The speaker would argue that the slave knew the truth and torture would reveal it.
However, almost all reported challenges were refused, and no basanos was completed as a result.
Headlam posited that if a challenge was accepted and torture performed, it would resolve the dispute, precluding recourse to a dikasterion and thus any record in speeches.
Pollux, a lexicographer from the second century AD, also stated that the function of the challenge was the resolution of the suit.
The legal process protected the slave, albeit unintentionally.
For a litigant to use a slave with credibility, they needed an agreement with their opponent and willingness to let the outcome determine the case.
Many scholars, including Headlam, erred by focusing on the torture and not the challenge.
Athenians accepted challenges to end disputes via private arbitration or oaths.
The irrationality of torture of a third party, along with ambiguities in the orators' accounts, hindered wider acceptance of Headlam's view.
Basanos-challenges were confined to private disputes; state security cases (e.g., treason) precluded private settlements.
In private disputes involving exile or the death penalty, private resolution via basanos was plausible with the accused party potentially going into exile without judicial contest or the prosecutor dropping the case.
Such dispute-ending procedures would be guaranteed by witnesses from both sides.
Passages Supporting Headlam's Thesis
Several passages portray basanos as an alternative to dispute resolution.
Isocrates' Trapezeticus contrasts basanos with 'being put on trial'.
it|i{\varsigma}i\varsigma Kaict Kaix; (FiyEv Kat ic; &XXa; adtat tX;lv, 6xaTe giTegav P6tavov \inepi TOf) nTp67iaTo; TOicTOV ycvavo\0ai.
Lycurgus contrasts basanos with the dicasts and the court.
'What people was it impossible to lead astray through cleverness and the devices of the speech? According to nature, as you know, those tortured, the male and female slaves, were going to tell the entire truth concerning all the injustices'.
[Dem.] xlvii contrasts acceptance of basanos with the 'risk' from the dicasts.
'for while it was possible for them to be released of the matter and not to run the risk of coming before you by certifying in deed that the testimony was true, they have not been willing to surrender the person’
The Tetralogies describes an informal challenge before the court to let the case stand on an alibi supported by basanoi.
'for I surrender all of my male and female slaves for torture; and if I appear [as a result of the torture] on that night not to have been at home asleep or to have gone out somewhere, then I agree that I am a murderer’
Dem. xxxvii 40-2 mentions an accepted challenge that broke down, but section 40 clarifies the dispute-ending purpose of the basanos.
'he read to me a great challenge demanding to have a slave tortured who, he claimed, knew these things and if they were true, I should pay the statutory debt, and if they were false, the torturer would assess the value of the slave’
[Dem.] lix 121 includes a condition that Apollodorus discontinue litigation if the basanos goes against him.
'and if it should appear from the torture that this man Stephanus had married a citizen that these children are his by another wife and not by Neaera, then I was willing to from the contest and not to pursue this charge’ (The challenge is made so explicit formally, as a graphe, the charge should not have been settled privately)
Thür raises concerns that challenges deal with several questions, not just the one that decides the dispute (Lys. iv 10-11, Is. viii 9 & 17, Dem. xxx 26-7 & 35).
In all passages, every set of questions could have decided the case through an admission.
Eliciting admissions (homologiai) on circumstantial issues was part of preliminary strategy.
Even with irrelevant points,, parties could embarrass each other with refused challenges, leading to the question of if a litigant knew his opponent would refuse, would they offer to let the case depend on it?
Headlam compares the basanos-challenge to the oath-challenge.
Criticisms of Headlam's Thesis
Headlam's view we do not have sufficient evidence to say the basanos procedure was rarely, if ever, used during the age of the orators.
Arguments concerning basanos suggest it was not moribund, the great number of speeches that mention the possibility suggests continued employment in many disputes.
Headlam likens the basanos to an 'ordeal'.
Critics want to distinguish between challenges meant to resolve a dispute and those with an evidentiary purpose.
The argument is that they are all meant to lead to resolution.
Criticism centers on three points:
Texts that indicate the results of basanoi could be employed before the dikasterion.
Texts where the basanos is compared to other forms of evidence before the courts.
Texts that claim the basanoi, had they taken place, would have come to court.
Responses to Criticisms
In Lys. vii 37, despite the most obvious reading, the litigant means to produce the challenge not the basanoi.
In Isoc. xvii 54, the emphasis of the passage makes it clear that the dicasts decide by conjucture, not clear knowledge from a basanos.
[Dem.] xlvii 35 provides strong evidence, the basanos could have released (7dcX6) the false witnesses for the trial.
In [Dem.] xlix 57, the 'sure sign' (T?Klfgptov) is the unrealized aventuality that would have gone against him.
In [Dem.] lix 120, the basanos is that which Apollodorus proceeds to argue.
Lycurgus i 28 shows how that not by conjecture, but by knowledge of the truth can people vote.
Lys. iv 11, is meant to say that instead of the sworn judges, that the elenchoi or basanoi will take place.
The second group of texts shows the basanos can be compared to other forms of evidence, that serving only as confirming or opposing.
Is. viii 10, is consistent with the text about what what was intended and what actually came from not the basanoi but from claimed challenges.
[The clerk] will read to you the challenge, from which you will continue in the very act of false swearing Dem xlv 59.
For Dem. xxx 35, The logoi aren't speeches but preliminary discussions before witnesses and Onetor wasn't willing (KOCTtI(nifEv) to have to the precision of the basanos at those discussions.
Lastly, there are texts in which it appears that evidence adduced in a basanos would be brought to a dikasterion. However, Thür rejects the argumentation as Nicostratus, wishing to achieve an extra-judicial settlement, would admit that the slaves belonged to the state and so confess.
Whether or not it was a procedure prescribed in Athenian law, the basanos-challenge appears to have been a tradition having de facto decisiveness for the parties.
Also, the dicasts had the ability independently to evaluate the credibility of all the evidence that came before them (freie Beweiswiirdigung) also appears confirmed.
A key point said by Euxitheos, 'you thought it right that [the dicasts] be judges of his words [under torture], while you yourselves became dicasts of his actions'
That, this reversal of roles, the statements of the torture, is an overreach because Athenian courts made judgements based on second-hand information and opinion rather than direct knowledge.
Rhetoric and the Orators
Many legal scholars dismiss rhetoric as bothersome, but it is an essential part of ancient law.
Appreciating rhetoric is crucial for addressing questions about Athenian legal procedures.
Developments in written documents and the activity of professional rhetoricians greatly influenced rhetoric in litigation.
Increasing use of written documents replaced direct oral testimony in court.
The transition was complete before Isaeus (c. 390 BC).
Earlier orators used oral testimony.
Later orators used written testimony.
Written testimony was used from the inception of arbitration (c. 403 BC).
The procedural changes forced a new examination of writing and written documents.
Professional rhetoricians canonized lines of argumentation.
Sophists based arguments on incomplete understandings of legal procedure.
Aristotle and Anaximenes categorized forensic arguments (atechnoi pisteis).
Documents could be read by the court secretary at the speaker's request.
Aristotle included laws, witnesses, contracts, basanoi, and oaths.
Anaximenes included 'the speaker', witnesses, basanoi, and oaths.
Both handbooks shared a common approach.
The original handbook (c. 378-360 BC) predated Aristotle and Anaximenes.
Handbooks replaced challenges with basanoi and oaths, which substituted the basanos-challenge for an out of court decision by a private arbitrator.
The handbooks took one further and very misleading step: seemingly forgetting the procedural distinction of a challenge and identified the basanos as a form of testimony from the marturia by defining basanos 'an agreement of someone who knows, but is involuntary'.
Isaeus (before 364) and Demosthenes (c. 363) pushed forth the handbooks.