Regulating free speech in a democracy: Lysias 10 Against Theomnestos and the law on slander

Abstract

Lysias 10 Against Theomnestos is the only surviving example of a classical Greek speech on a charge of slander (dikē kakēgorias). The case turns on establishing communal consensus in evaluation of meta-discursive claims: assertions as to what the law says about what citizens can say about their fellow citizens. I adapt Marmor’s account of the pragmatics of legal discourse to illuminate the litigants’ strategies as they seek to control interpretation of the legal question in this much-discussed case from 380s BC Athens. We see how each party used different assumptions about the law’s implicatures as well as its declarative meaning and presented these assumptions as grounded in common sense. The persuasive methods used by Lysias’ client are illuminated by means of cognitive narratology’s application of Lewisian possible-world logic to the creation of story-worlds and the relationships they generate between narrator and reader/audience. So understood, Lysias’ speech helps answer questions about the role and limits of free/frank speech (parrhēsia) in democratic Athens and about the relationship between individual agency and the collective agency of the dēmos, questions crucial to an understanding of the place of legal discourse and legal conflict in the ideology and day-to-day praxis of the democratic city.

I. Introduction

Ancient Athenians were famously talkative and outspoken. Talk was the fuel of democracy: the running of the city required citizens to talk a great deal, in assemblies, council, courts and on numerous other occasions for meeting and debate. It was also central to its values, in the form of the ideal of equal opportunity to speak, isēgoria, of the open invitation whereby ‘whoever wishes’, ho boulomenos, could address the assembly, and of the valued principle or characteristic of unrestrained speech, parrhēsia. This did not in itself mean that Athens had a commitment to freedom of speech comparable to that enshrined in the First Amendment to the United States Constitution. ¹ The three concepts mentioned have in common the fact that they are oriented towards protecting, not the rights of individual citizens, but the openness of the public sphere and its accessibility in principle to any citizen (not necessarily in practice to every citizen). What they do express, in different ways, is the idea that freedom of speech in a broad, negatively defined sense (the absence of systematic constraints on who could speak and what they could say) was important to the foundations of democratic freedom itself.

Alongside celebration of speech as a touchstone of freedom there was recognition of its potential to harm. The bold claim of Thucydides’ Pericles that Athenians regard speech not as harmful to action but as essential to its effectiveness is placed under severe scrutiny throughout the rest of the History. ² Speech may displace action, and may also be deceitful, violent or generally corrupting. ³

Speech is the medium of the daily transactions between citizens, formal and informal, which in turn are the medium of social relations within the democratic city. These transactions furnished the vast bulk of the day-to-day business of the law courts and were correspondingly the subject matter of much of Athenian law. The present discussion focuses on the one area of law that was concerned specifically with interactions between citizens qua speech: the law concerning ‘speaking ill’ of someone, kakēgoria. ⁴

In this study I present a re-examination of the one ancient text directly concerned with a prosecution on this charge, Lysias 10 Against Theomnestos. ⁵ Where previous discussions have focused in particular on questions of substantive law (what the law actually was and what rights it accorded to the parties concerned) or of legal procedure (the means available for parties to obtain or defend those rights), I will interpret the speech from the point of view of the pragmatics of law: its significance as and within the context of social and political practice. In other words, I will attempt to answer the question of what it meant (on this particular occasion), what kind of proceeding it was, to prosecute someone on a charge of kakēgoria. As will be seen, I do not mean to concede that the substance of the law is in fact separable, in historical situations, or even conceptually, from its pragmatics, merely that it has sometimes been treated as being so.

The concept of the pragmatics of law that I apply here is influenced in particular by the work of Andrei Marmor, the philosopher of law. ⁶ Marmor draws on the philosophy of language, especially Paul Herbert Grice’s theory of implicature, to illuminate how law functions semantically in practical situations. The centre of Marmor’s attention is the language of law and its explication in terms of what is declaratively meant and contextually implicated by lawmakers on the one hand and by parties in legal disputes on the other. His approach thus takes as its starting point an assumption of the primacy of substantive law (though it goes on systematically to problematize this assumption). This assumption makes more obvious sense when dealing with modern codified legal systems than applied to the different conditions of ancient Athens. ⁷ I therefore adapt Marmor’s approach to place legal praxis itself, the act and performance of taking legal action and engaging in legal dispute, at the centre of analysis.

I make use in particular of insights Marmor offers into what he terms the ‘strategic’ nature of legal discourse, in the sense that legal contexts create situations in which there is a systematic mismatch between what it is in communicators’ interest to assert explicitly and what it may be in their interest to imply. ⁸ I hope to demonstrate that recognition of this characteristic of legal discourse is useful in analysing how law is invoked and contested in the agonistic rhetorical setting of the Athenian law courts.

Athenian democratic politics was characterized by ceaseless competition between groups of citizens united by ties of family or friendship but also by shared enmities in relation to other groups. ⁹ These contours of friendship and enmity shaped the community, fixing social identities but also providing a framework within which they could develop and adapt to circumstances. Litigation and verbal performance in the law courts provided an important locus for such competition between friendship groups. At stake was power in a variety of forms: status and prestige, the solidarity of the group and ability of its members to exert influence on each other’s behalf, and more concrete assets of wealth, personal security and access to public office.

By re-examining how the law of slander was used within this competitive social context, I hope to contribute to our understanding of (i) how, specifically, Athenians understood the freedom to speak as central to their democracy; (ii) how this freedom related to the quasi-autocratic power of the dēmos (a problem that has been highlighted in a recent article by Matthew Landauer, ¹⁰ to which I will return below); and (iii) how the Athenians understood the identity, agency and responsibility of their dēmos itself, a question that has wider implications for the understanding of collective decision-making and thus of democracy itself, in modern as well as ancient societies.

II. Lysias 10 Against Theomnestos

In around 384 BC, an Athenian citizen in his early thirties whose name is not known (Lysias’ client and the speaker of this speech, henceforth ‘S’) brought a case against an enemy of his, Theomnestos, on a charge of slander. ¹¹ S claimed that Theomnestos had accused him of killing his own father. Bringing this prosecution was prima facie a course of action beset with risks. In the first place there was, as S acknowledges (10.2), the risk of appearing to be small-minded and litigious, and thus incurring ridicule and potentially permanent reputational damage. There was also a significant risk of handing power directly to his opponent Theomnestos by reminding people of the hurtful words he had spoken and acknowledging that they had achieved their hurtful purpose; in so doing, he gives importance to an accusation that need not have been taken seriously and might otherwise soon have been forgotten, and elevates a possible throwaway remark to the status of efficacious hostile action. Finally and most seriously there was a significant risk of losing the case: a setback in itself, but more importantly, as S eventually acknowledges (10.31), something his enemies could easily present as tantamount to a conviction on a charge of patricide. These risks were all the greater in the light of Theomnestos’ considerable experience as a litigant and apparently impressive record of success, which will be discussed further below. ¹²

The outcome of trials in Athens was seldom if ever entirely predictable. If convicted, Theomnestos probably faced a substantial fine, but the real jeopardy for S in the event of an acquittal was considerably greater. ¹³ This is reflected in the speech’s rhetorical strategy of seeking sympathy by transferring attention from Theomnestos to S himself. Thus in 10.4–5 the allegation that S killed his father is deflected by means of the affecting story of how, in the terrible year of the Thirty, 13-year-old S lost both his father and his father’s estate (presumably including his home) and was left in the hands of an unscrupulous guardian; ¹⁴ at the end of the speech, in 10.31, S claims that in this case he is as much the defendant as the prosecutor.

III. The prior ‘history’ of S and Theomnestos

The prosecution in ca. 384 has its roots in a rather complex sequence of earlier events. Lysias’ speech refers back to them frequently and they are crucial both to its persuasive technique and to the interpretation of the significance of this prosecution itself. They must therefore be presented here briefly in order to begin with the sequence of events of which Lys. 10 is, among other things, a carefully crafted narrative. ¹⁵

During the rule of the Thirty in Athens in 404/3 BC, S’ father was executed by the Tyrants. ¹⁶ S, then aged 13, came under the guardianship of his older brother Pantaleon (10.45). ¹⁷ Pantaleon deprived S of his share in the estate, a detail that is mentioned ostensibly to show that S had nothing to gain from his father’s death (though it is hard to see how he could have anticipated this development) but perhaps more importantly to arouse the jurors’ pity for him, both as a destitute orphan and as a victim of the Thirty (like the dēmos, itself the victim of dispossession by the oligarchy).

The next important incident took place some years later and involved a group of men serving together on campaign as hoplites in an engagement where significant casualties were sustained (10.25). Stephen Todd plausibly suggests the Battle of the Nemea River in 394 BC. ¹⁸ This group included the defendant Theomnestos, a certain Dionysios and probably also two other parties to the disputes that would follow, a certain Lysitheos and S himself. This engagement later gave rise to the accusation that Theomnestos showed cowardice by throwing away his shield.

Some years later again, Theomnestos speaks in the assembly. ¹⁹ This results in the first of a series of legal actions (case A): Lysitheos prosecutes Theomnestos for addressing the people (dēmēgorein) when, as a coward who had dropped his shield in battle, he was not entitled to do so (10.1). It is not clear which legal procedure Lysitheos used, or what the outcome was, though it seems overwhelmingly likely that Theomnestos was acquitted (since otherwise Lysias would surely have advised S to exploit a previous verdict against his opponent). ²⁰

Theomnestos then took two legal actions of his own (it is not clear in what order). He brought (case B) a prosecution for false witness (dikē pseudomarturiōn) against Dionysios, presumably for the evidence the latter had given in case A; Dionysios was convicted and suffered the unusually severe penalty of loss of citizen privileges, atimia (10.22, 24–25). He also brought (case C) a prosecution for slander (dikē kakēgorias) against someone called Theon, mentioned nowhere else, who it seems was also convicted (10.12). ²¹ This brings us to the present case (D): S in turn prosecutes Theomnestos for slander (dikē kakēgorias) on the grounds that, in the course of trial A, Theomnestos said that S killed his own father.

The story presented here is entirely reconstructed from the speech itself; we have no external corroboration for any of it, as is often the case with speeches from Athenian private trials. It is also worth noting the organization of material in the speech. Lysias 10 may be analysed in terms of the common four-part structure as follows: ²²

1–3 PROEM. Reasons for prosecuting.

4–5 NARRATIVE. S did not kill his father.

6–39 PROOFS (pisteis).

6–14 First refutative pistis. Refutation of Theomnestos’ de dicto interpretation of the law on slanderous accusations (aporrhēta).

15–21 Second refutative pistis. Didactic epideixis on interpretation of law.

22–26 First confirmative pistis. Comparison of Theomnestos and Dionysios as defendants. Dionysios deserved pity, Theomnestos does not.

27–29 Second confirmative pistis. Comparison of S and Theomnestos as citizens. Like his father, S is brave; like Theomnestos, Theomnestos’ father was a coward.

30 Additional refutative pistis. Theomnestos will claim he spoke in anger: that is no defence.

31 CONCLUSION. S, who prosecuted the Thirty, is effectively on trial for murder.

As this analysis indicates, the narrative section is very short, confined to swift dismissal of the idea that S killed his father. ²³ This is the only part of the account for which witnesses are introduced (10.5 ‘virtually all of you know that I am telling the truth; all the same, I will provide witnesses for it’). The rest of the history that I have presented above is not told as a continuous narrative but divulged piecemeal by means of references scattered through the speech. This is to be connected by the unusual device of telling the jurors at the very beginning of the speech that they themselves are to serve S as witnesses (10.1 ‘I think I shall have no lack of witnesses, men of the jury, since I see many among you serving on this jury who were present at the time’). ²⁴ S clearly makes the claim not to lack (metaphorical) witnesses precisely because he does lack real witnesses for much of what he is going to say (unsurprisingly, since he is bringing a prosecution against someone who has been successful in securing a conviction for perjury against at least one witness in a previous case).

IV. Imagining and shaping the past

The appeal to the jurors’ memory should thus be treated with some scepticism. It is of course possible that some had witnessed and remembered some or even all of the events in question, but in view of the random element in Athenian jury selection, the passage of time, the sheer volume of public and private business generated by the democracy and the lack of saliency of most of these events to anyone but the parties directly involved, it is highly unlikely that many of the jurors would have recalled them in any detail. It is the task of the speaker and speechwriter to construct and shape this past. In this case as in other Athenian legal disputes, the competition is thus among other things a competition pitting against each other different possible worlds, between which speakers compel their audiences to choose. ²⁵ Let us review, by way of illustration, what opposing possible worlds (PW) might look like in this case:

PW1: Theomnestos was a dutiful citizen who had the bad luck on hoplite service to find himself surrounded by men who were or became his enemies. Some time afterwards, back in Athens, he exercised his right to speak in the assembly. At this point these enemies, motivated by sheer malice or by the desire to prevent him from taking an active part in politics, concocted the story that Theomnestos was a coward who had left his shield and run away in battle. One of these men, Lysitheos, turned this story into a public accusation of cowardice, and enlisted associates to back up his false assertions. Theomnestos was, of course, vindicated when the matter came to trial, and made it his business to protect others from the same gang of bullies by taking every legal opportunity he had to impress on them what a serious matter it was to call a fellow citizen a coward or to stand in the way of his democratic rights.

PW2: A group of friends including Lysitheos, Dionysios, Theon and S himself were on campaign as hoplites, and had the misfortune to find themselves serving alongside Theomnestos. Theomnestos was loud but always mysteriously absent when there was danger or hard work, and when it came to the battle itself it was no great surprise to see him leave his place in the line and drop his shield in order to save his skin. All the same, none of them took any action against him until, back in Athens, they saw with alarm that he was putting himself forward as a speaker in the assembly and potential political leader, at which point Lysitheos had no choice but to denounce him as unfit. Naturally the others supported Lysitheos in the ensuing legal inquiry by testifying to what they had seen. Theomnestos, evidently aware that his only hope was to silence the witnesses to his cowardice, instantly turned on his accusers. Not content with winning an unfair judgement against Lysitheos, he has now inflicted atimia on Dionysios and won a verdict against Theon as well. Not for nothing, then, has our speaker S concluded that Theomnestos needs to be stopped, and that the grotesque accusations against him and his father must be confronted before Theomnestos turns them into legal proceedings.

Some version of PW1 presumably figured in Theomnestos’ speech, though it must also have featured the arguments about the law addressed by S in 10.6–21 and probably devoted some space to the question of S’ relationship with his father, which is passed over so quickly by S himself. ²⁶ Lysias’ characterization of Theomnestos is systematically designed to make anything like PW1 seem unlikely while establishing PW2 as the actual world that S and the jurors inhabit. Our first image of Theomnestos is as a coward who lost his shield (1): the participle apobeblēkota is usefully insinuating, because it offers the sense ‘because he had dropped’ as well as ‘on the grounds that he had dropped’, without explicitly repeating the allegation that a previous court had found slanderous. He is then portrayed as worthless (2 phaulon kai oudenos axion), as a loner who expects unique privileges (3 monōi … exaireton), as shameless (6 etolma), stupid (14 anoētōs diakeimenos; 15 skaion), as having dangerous delusions of power and, above all, of course, as a coward. ²⁷

The characterization of Theomnestos is sharply polarizing and undermines any story-world he may attempt to create while drawing the jurors emphatically into S’ own. The fragmentary, jigsaw narrative constructed by the speech also has interesting effects on the construction of time. There are three distinct chronological layers or fields that form the background to the current situation. First, a historical past, the year of the Thirty, when the speaker was still a child and his father, like so many citizens, perished. This year provides a fixed chronological reference point, for the speaker and his audience as well as for us (10.4). In spite of the Amnesty or prohibition ‘against reminding of wrongs’, mē mnēsikakein, to which it gave rise in the following year, the year of the Thirty was well-remembered in Athenian public discourse (‘well’ in the sense of frequently and confidently, not necessarily accurately) and thus provides a firm anchor for S’ account. As has been seen, he is at pains to establish his own status as, like the dēmos itself, a victim of the Thirty. ²⁸ Then there is a middle past, which may be characterized as a time of testing for Theomnestos: this is (according to S’ version of events) when he should have shown courage in battle but failed to do so, and when, conversely, he showed his shamelessness by coming forward to speak in the assembly although he had failed that previous key test. Finally, there is the recent past, dominated by litigation initiated by Theomnestos. To this litigation S now makes his own unwilling contribution (the fourth in the sequence of trials A to D): but does so, as will be seen, only in order to effect a return to that first pristine historical time, and right the wrong that was done there.

V. Slander: the shape of the law

But this is a trial for slander, and it is to the charge of slander that the speaker’s arguments are, at least overtly, directed. I turn now to Athenian law on slander. This is a complex subject that is here presented briefly and schematically. ²⁹

Slander or defamation (literally ‘speaking badly of’ someone: kakōs legein, kakēgoria) is a subset of the wider category of insulting or abusive language (loidorein, loidoria). It is actionable (by dikē kakēgorias) only if at least one of the following is true:

• the victim is dead (Plut. Sol. 21.1, cf.Lexicon Rhetoricum Cantabrigiense, s.vv. κακηγορίας δίκη);

• the victim is one of the ‘tyrannicides’ Harmodios and Aristogeiton (Hyp. fr. 15b (Against Philippides) 2); ³⁰

• the victim is a protected public official (perhaps Dem. 21.32–33); ³¹

• the victim works in the agora and the offence takes the form of a slighting reference to this fact (Dem. 57.30);

• the offence takes place in a protected public space (Plut. Sol. 21.2);

• the offence takes the form of specifically prohibited allegations (aporrhēta, ‘unsayable things’: Isoc. 20.3), which include at least accusations of murder (Lys. 10.6), beating a parent (Lys. 10.8) or abandoning one’s shield (Lys. 10.9). ³²

The legal situation was complex, and it is perhaps unsurprising that our one surviving speech from a prosecution using the law on slander also stands out as one unusually dominated by technical legal discussion, even though only one strand of this law, the category of aporrhēta, is at issue. Lysias’ speech nonetheless helps us to understand how the law on kakēgoria could be used to police the limits of free or frank speech (parrhēsia) in democratic Athens.

VI. The aporrhēta

Where slander is defined by its content rather than by the person addressed or the place where it happens, it is defined in terms of a limited list of unsayable things, aporrhēta. Why these things, and just these things? Robert W. Wallace suggests a connection between these aporrhēta and conduct that could be adduced at a dokimasia rhētorōn in order to disbar a citizen from speaking in the assembly. ³³ This certainly applies to the act of abandoning one’s shield, as illustrated by the case of Theomnestos, but as Wallace acknowledges it is unclear whether it applies to all the aporrhēta, for example homicide. Conversely there are a number of offences, including other forms of military desertion besides shield-loss, mistreatment of parents falling short of physical violence, neglect of one’s property and self-prostitution, which would be grounds for failing a dokimasia but do not figure among the aporrhēta. ³⁴ There is a connection, but it is not one of equivalence. I will return to this question below.

The puzzling aspects of the substantive law on kakēgoria, insofar as we can reconstruct it and insofar as the concept itself is a valid one, do not unduly affect S’ case. That case depends on establishing three facts: (i) that to accuse someone of murder is one of the aporrhēta; (ii) that Theomnestos accused S of killing his father; and (iii) that S did not kill his father. His prosecution, and (so far as we can tell) Theomnestos’ defence, rests on the first of these, the question of law: was the allegation that S killed his father one of the forbidden utterances, the aporrhēta?

S deals with this point in his first two pisteis. Theomnestos apparently maintained in the pre-trial arbitration (10.6), and is expected to maintain again in court, that the law of slander applies specifically to the word androphonos, ‘man-killer’ or ‘homicide’. This defence provides S the opportunity to give an entertaining disquisition on the polyvalence of language and the difference between the letter of the law and its intent, a disquisition that is unique in surviving forensic oratory but finds a striking echo in Aristotle’s discussion of legal ‘equity’ (to epieikes) in the Rhetoric. ³⁵ This enables S not only to develop his representation of Theomnestos as absurdly dense but also to turn the tables on him by returning to the accusation of cowardice with which the whole sequence of litigation represented by trials A to D began. Surely Theomnestos would not have been any less angry with Theon if the latter had merely said that he had ‘flung away’ his shield rather than ‘lost’ it? ³⁶

Theomnestos’ apparent desire to have the law of kakēgoria both ways, interpreting it differently as prosecutor and as defendant, reinforces his characterization from the start of the speech as someone with a sinister (from a democratic point of view) aspiration to exceptionalism and personal power (10.3, 10.13). This shift in focus from the present trial for slander to a previous one also obviously refocuses the judges’ attention on Theomnestos’ alleged cowardice; at the same time, it sets in train a comparison of character between S and his opponent that develops throughout the remainder of the speech and to which we will return shortly.

VII. The strategies of the litigants

Lysias’ speech makes Theomnestos’ defence, that the law applied de dicto not de re and thus prohibited the use of certain words rather than the allegation of certain forms of conduct, seem like a gift to the prosecution. This has been regarded as a puzzle, even as the central puzzle of this speech, especially in view of the fact that it seems likely that the pre-trial arbitration was decided in Theomnestos’ favour. ³⁷ The basic fact of course is that we do not know what form Theomnestos’ defence took; it must have borne some relationship to what S says about it, but not necessarily a close one. One possibility we can rule out is that either litigant adopted a course of action that was simply naive or obviously ill-advised. Both knew what they were doing, in the sense and to the extent that Theomnestos had already been successful in securing a conviction for kakēgoria and S was clearly, if not a friend, at least a close enough associate of the defendant in that previous case to have had the opportunity to inform himself about it. It seems likely that Theomnestos did indeed exploit the oddly specific nature of the law on slander and the fact that it clearly was not intended to, and did not in practice, act as any systematic curb on the frank speech, parrhēsia, which was such a characteristic feature of democratic citizenship. ³⁸ As I have suggested, another advantage of this defence was that it would have allowed him to be liberal with insinuations that S was indeed materially implicated in his father’s death without going so far as to rest his case on the literal truth of what he said.

Returning to the prosecution, S goes on to illustrate his general point about the meaning of the law with an especially fascinating, and most unusually didactic, ³⁹ mini-lecture on the language of archaic law. Because words change, laws come to need glossaries: S is able to provide examples. ⁴⁰ If Theomnestos’ view of the law were correct, when words lost their force laws would simply perish. But he is surely not such a ‘man of iron’ that he has failed to realize that while words change, the realities to which they refer remain the same. ⁴¹

This lecture is topical (in a broad sense) against the background of the extended process of copying and compiling laws that began in Athens in the last decade of the fifth century and continued in the fourth and that was itself part of a wider trend towards an archival and curatorial approach to documents. ⁴² It also obviously gives S the opportunity to cast himself as the mouthpiece of the law and, more importantly, as someone who understands the proper relationship between word and action. Theomnestos, meanwhile, is cast as the dull pupil. But we are also reminded that, in the speaker’s version of events, this whole saga began because Theomnestos presented himself as able to speak for the city’s benefit when he had previously shown himself unable to act for it.

The second half of S’ argumentation builds this contrast between himself and Theomnestos. First Dionysios, the witness in trial A whose conviction for false testimony in trial B led to his loss of citizen rights (atimia), is used as a proxy (10.21–26), standing for S and for the group of friends whose brave service is contrasted with Theomnestos’ desertion. Already Dionysios’ courage has been punished while Theomnestos’ cowardice has been rewarded: an acquittal now would compound this injustice. ⁴³

S here comes as close as he dares to repeating the original charge that Theomnestos abandoned his shield. This object, the emblem of S’ characterization of Theomnestos as a coward, becomes an ever more conspicuous focal point in the course of the speech: ⁴⁴ a kind of negative exhibit, since its absence from view since the time of the speaker’s first encounter with Theomnestos is the very point of contention. This focus on Theomnestos’ shield combined with comparisons between the (justified) charge of losing a shield and the (monstrous) charge that the speaker killed his father prepares us for the climax of the argument, a direct comparison between the speaker and Theomnestos (10.27–29). Here comparison between the two litigants leads us back to comparison between their respective fathers, just as the earlier technical discussion of law took us back to discussion of laws from a previous generation.

Not surprisingly, the two fathers cut very different figures: ⁴⁵ the speaker’s an experienced general whom the judges are invited to remember, and who died nobly at the distinguished age of 67; Theomnestos’ father, by contrast, a cipher, a mere shadow of his son’s cowardice. At this climactic moment the puzzle of the missing shield is resolved: it is out of sight because it hangs in a temple of the Athenians’ enemies, a monument of shame, where it keeps company with similar contributions from his father! By contrast, trophies of the speaker’s own father’s bravery can be seen where they should be, in the Athenians’ own temples. This inspiring image completes the alignment of the speaker with his father, and of them both with the victorious Athenian people, and by implication that of Theomnestos and his father both with the city’s external enemies and with the Thirty. It is thus the perfect way to launch the double emotional thrust of the speaker’s conclusion. ⁴⁶ The trial is here revealed as simultaneously political and personal, and in both respects of existential importance: a chance to defend democracy one more time against the arbitrary violence of the Thirty, and a chance to acquit the speaker on a charge of killing his own father.

VIII. Conclusions (1): the law of slander, the pragmatics of law and the citizen community

Thus Lysias’ speaker develops a prosecution for slander into something of far more profound significance, both for him personally and for the city. But why use the law of slander at all? And what does this tell us about slander in Athens? I conclude with some brief suggestions, returning to the observations about the pragmatics of law that were made in the Introduction.

One reason to use the law of slander against Theomnestos was of course that Theomnestos had used it himself. This clearly made it an easier step to take. It meant that S was able to anticipate and defuse prejudice against slander charges as small-minded and litigious without fear that his opponent would make any serious attempt to exploit this prejudice against him (10.2). It was also an effective pre-emptive strike in case S was in line to follow Dionysios and Theon in Theomnestos’ campaign of litigation, and it gave a convenient opportunity, as has been seen, to revive the allegation of cowardice against him without shouldering an awkward burden of proof.

More fundamentally, though, I suggest that S (perhaps in consultation with Lysias) deliberately chose this case as an opportunity to confront a potentially deadly opponent directly on an issue of law. The sequence of trials so far had exhausted the possibilities of arguments about individual technicalities or questions of fact; it was also, presumably, becoming increasingly difficult to enlist witnesses, both because of the passage of time and because of the natural fears resulting from Theomnestos’ success in securing convictions for slander and perjury. ⁴⁷ The essential facts in this particular case do not, at any rate, seem to have been in any serious doubt. What Theomnestos said at arbitration apparently included the argument about the word androphonos, and there would have been no point in using this argument if he had never said anything about S killing his father; if, on the other hand, there was any prospect of this allegation being shown to be true, the risk taken by S in the present trial becomes unbelievably high.

S therefore had a motive to take a different risk: the risk of pitting his own version not of the declarative content of the law but of its implicature against that offered by his opponent. As Marmor argues, the understanding of law (even in modern systems where substantive law is paramount) depends on dialogues: between lawmakers, between the lawmaker and the parties to legal disputes, and between the parties themselves. The outcome of these dialogues is determined by the participants’ assumptions not just about what the law means in isolation but about its implicatures, what the law means for us in this particular communicative situation: in other words, on ‘conversational maxims’ in the Gricean sense. ⁴⁸

As Marmor shows, even in modern legal settings the conversational maxims that apply to law are by no means clear; the same applies a fortiori to an ancient Athenian setting, where the law is less objectively fixed, and thus also potentially more dialogic, more ‘conversational’. Recognition of this characteristic of legal discourse is useful in analysing how the law is invoked and contested in the agonistic rhetorical setting of the Athenian law courts more generally, but it also has a particular relevance to Lysias 10, because S explicitly makes an argument about the implicature of the law central to his case. Using in particular his appeal to the memory of the Thirty by means of constructing alternate possible worlds, S tries to convince a jury of his fellow citizens that they would rather be members of his conversational community than his opponent’s and thus adopt his rules for the interpretation of the law. If they do so, they will conclude with him that the law on kakēgoria is correctly understood as targeting a particular type of behaviour: one of which he has characterized Theomnestos as an exemplar par excellence.

This brings us back to the wider question of the significance of the law of slander at Athens. The hostility between Theomnestos on the one hand and S and his associates on the other was clearly very rancorous. It had as its focus access to one of the primary expressions of active Athenian citizenship, the right to speak in the assembly (dēmēgorein). It began with an attempt to prevent Theomnestos from doing so because he had apparently failed in the corresponding performance of active citizenship during his military service; the speaker makes play in 10.3 and 10.10 of Theomnestos’ inappropriate sense of the correspondence between speech and action. ⁴⁹ If we accept, for the sake of argument, that the speaker’s version of Theomnestos’ story is true, then the toxic consequences of the failure of Lysitheos’ initial attempt to disbar him from speaking become very apparent.

On this view, Theomnestos is an intruder among the body of citizens, appropriating an active political career to which he is not entitled. Worse still, having taken his illicit place in the assembly, his only means of preserving it is by depriving others, like Dionysios, of citizen rights to which they are entitled, by systematically eliminating all those who have seen him for what he really is. ⁵⁰ It is in this context that the law of slander, a relatively rare and limited way of restricting what one citizen may say about another, finds its application: a silencing measure that Theomnestos has used as a poison but which the speaker sets out to use as a cure. It is a provision that limits what citizens can say about each other, particularly when what is said has an impact on their capacity to function together as citizens.

At this point we may return to Wallace’s theory connecting the aporrhēta (murder, shield-dropping, parent-beating) to the process of dokimasia rhētorōn which provided grounds for excluding a citizen from speaking in the assembly. There is strength in the view that the aporrhēta involve accusations of particularly acute dereliction of duty against fellow citizens: physically eliminating a fellow citizen; failure to stand by fellow citizens in acute danger; violent assault on those through whom one qualifies as a citizen in the first place. In the present case, the speaker and his friends are involved in a conflict with Theomnestos that has become in effect a zero-sum game: his citizen rights or theirs. It is in such situations that prosecution for slander becomes a credible means of warding off imputations against an individual’s standing as a citizen. It is thus a way of protecting the collective integrity of the citizen body, something which (rhetorically and perhaps also in reality) is of particular importance to S. Orphaned and disinherited at a young age, quite probably (despite the unidentifiable action in the Areopagos mentioned in 10.31) prevented from achieving any redress by the terms of the post-war Amnesty, he uses the current case as one step in the process of reasserting himself both as the inheritor of his father’s reputation and as a legitimate member of the citizen community.

IX. Conclusions (2): frank speech, the dēmos and citizen agency

The possibility of prosecution for kakēgoria places a limit (in principle, regardless of how often it was applied in practice) on the frank and open speech, parrhēsia, that was valued as a core feature and touchstone of democratic politics. How is this situation compatible with the democratic ethos of the Athenian law courts? ⁵¹

Parrhēsia as understood by speakers in the fourth-century courts exists ‘for the sake of the city’, ⁵² not primarily for the sake of the individual citizen. It involves a contract between speaker and audience based on a shared perception of frank speech as socially beneficial, an act of solidarity. It also involves implied subordination of the interests of the individual to the interests of the collective, but this subordination is based on the principle that such frankness itself is the expression of the individual’s free and equal participation in the interests of the collective. The individual speaks for shared benefit and at personal risk, but through membership of the community shares not only the benefit but also the risk.

As Matthew Landauer has demonstrated, parrhēsia in ancient Greece was by no means exclusively associated with systems of government on the democratic continuum; ⁵³ in fact many ancient writers, Isocrates among them, focus on the importance of parrhēsia for tyrannical and other autocratic regimes. Landauer emphasizes the fact (central to Foucault’s appropriation of the term) ⁵⁴ that the very concept of parrhēsia is predicated on an element of danger, of jeopardy, without which there would be no need for, or consciousness of, such ‘frankness’ in the first place. On this basis he argues that democratic parrhēsia is a function of the autocratic power, the ‘tyranny’, of the dēmos, reflected in the fact that, unlike other public authorities in Athens (but like tyrants in the literal sense), the dēmos is exempt from another core democratic principle, the principle of euthunē, formal accountability for its actions.

Vincent Farenga provides an interesting counterpoint to Landauer’s argument. ⁵⁵ He construes parrhēsia in fourth-century Athens as an almost physical opening of one’s mind, and of the limited perspectival understandings and perceptions it contains, to one’s fellow citizens, thus breaking down the barriers of individual subjectivity in a way that serves the accumulation of ‘democratic knowledge’ (in the sense articulated by Josiah Ober) ⁵⁶ and may also contribute to homonoia: like-mindedness and civic harmony. Farenga does not downplay the element of jeopardy implicit in parrhēsia but sees it in terms very reminiscent of the ideology of Athenian democracy itself, as self-sacrifice in the interests of the collective in which the individual participates and that is constitutive of the point of view from which he exercises parrhēsia in the first place. Parrhēsia thus becomes the hinge between individual and collective agency.

My reading of Lysias 10 supports Farenga’s argument. The configuration of the Athenian law on kakēgoria can be understood as providing a means for citizens to debate, contest and police the limits of parrhēsia itself. Those limits are defined not so much in terms of propositions that may or may not be uttered as in terms of commitment to and participation in the collective citizen body itself as guarantor of parrhēsia. The aporrhēta are allegations that threaten this collective by placing another citizen outside it as a breaker of its fundamental bonds: as a destroyer of life, of family ties or, in the case of the shield-loser, of the vital ethos of reducing jeopardy in battle by sharing it (in preserving the hoplite shield line), an ethos that offers an analogue in a different sphere of action to the collectively advantageous, risky sharing represented by democratic parrhēsia itself. Recourse to the law on kakēgoria is rare and limited in the surviving speeches because it is confined to the relatively few real grounds (as opposed to specious or fantastical ones) on which an opponent might be represented as wholly outside the democratic process, unfit to be an opponent at all.