Bryn Mawr Classical Review

Reviewed by Kellam Conover, Stanford Law School (kellam@stanford.edu)

Version at BMCR home site

Table of Contents

Recent scholarship on Greek Law has employed an eclectic range of methodologies drawn from an impressive variety of disciplines.¹ Victoria Wohl's stimulating new book, Law's Cosmos: Judicial Discourse in Athenian Forensic Oratory, adds to this mix the Law and Literature movement. Aiming to mine Athenian forensic oratory for its literary qualities and to introduce contemporary legal scholars to Athenian law (back cover), Wohl deftly sketches the rhetorical contours of the legal world envisioned by Athenian orators. In so doing, she presents a strikingly new way to read forensic oratory, one that should nuance our understanding of these texts for years to come.

The Introduction (1-17) sets up the book's central claim: although law seeks to assert authoritative control over the world, that authority is undermined by law's rhetorical nature. Wohl begins with the inseparability of law and rhetoric: "what the texts say about the law is a function of how they say it" (1). Typically, the rhetoric of these speeches has been understood in terms of their ability to persuade with generic tropes. For Wohl, however, the agglomeration of numerous tropes actually opens up unpersuasive, alternate narratives. Speakers give multiple reasons for their own innocence or their opponents' guilt: "I wasn't there!"; "Even if I had been, I didn't do it!"; "Besides, I'd have been allowed to in the first place!" While each reason on its own might prove persuasive, together they are mutually inconsistent, and this inconsistency undermines the speaker's authoritative narrative. Wohl's new approach, rooted in deconstructionism and psychoanalysis, thus mines the speeches for precisely these inconsistent, unpersuasive elements (7-12). The book pieces together detailed readings of entire speeches—twenty in all--to illustrate how reading the 'unconscious' of forensic speeches reveals law's own purpose and desire (10n.20).

Chapter One (21-65) looks at the boundaries of the juridical cosmos found in forensic oratory. Unlike other genres of literature, Wohl claims, juridical discourse constructs a closed world with no outside: all external grounds of authority are folded back into juridical discourse—the lawgiver is as much a rhetorical fiction as a historical reality, for example (24-5). Within this closed universe, juridical discourse derives its authority from fashioning itself as the medium for aligning popular sovereignty with the laws (26-37). Unfortunately for forensic speakers, such legal authority is only undermined by rhetoric itself Aeschin. 1, Dem. 25). Claiming "I speak the truth in accordance with justice" can never fully erase the possibility, raised by an opponent, that one is actually lying (49-50). Accordingly, as Wohl shows via a reading of Demosthenes 25, attempts to banish rhetoric from the juridical world inadvertently expose the contingency of legal authority.

Chapter Two (66-112) details just how disturbing this idea really is, for on Wohl's view law consequently strives for justice but is never fully just. There is always a fine line between legally authorized punishment and mere violence, and Wohl shows how juridical rhetoric blurred that line by euphemizing law's violence. In Demosthenes 54 Against Conon Wohl sees a legal system actively fostering social violence in order to legitimate its own use of force. In particular, she reads the basanos, by which litigants extorted testimony from slaves through torture, as a metaphor for law's repressive relation to violence Antiph. 1; 89-98). As she argues, law uses violence to secure an otherwise inaccessible truth (like that known by a slave), yet disavows that violence by displacing it onto a slave (not a citizen) (86-7). The result is a potential fissure between law and legitimating violence, a gap closed by rhetoric itself (98-112).

Chapter Three (115-54) examines the abstract subjects that inhabit the juridical cosmos: the intentional subject, the probable subject, and the generic subject, appearing in Antiphon's Tetralogies II, I and III, respectively. Wohl's central insight in this chapter is that Athenian law starts with a deed (like a crime) and from that crime posits a criminal--a subject whose personality and will are shaded in by the nature of the crime itself (116-7). By extension, Wohl posits that legal agency—the will of the law itself—is reflected in the character of legal subjects. The probable subject, for instance, is an inherently legal subject: a predictably rational, skilled criminal aware of the law ("If I had really intended to commit a crime, why would I have acted so ineptly?"). Yet these abstract subjects are also legal fictions that, in Wohl's view, undercut the law's fantasy of a regular, predictable world (154). By demanding that agents be intentional, rational, and of a specific character type, juridical discourse opens up the possibility that, in reality, they are none of the above.

A similar picture emerges from Chapter Four (155-97), which examines some of the rhetorical tropes that construct juridical subjects: homonymy, metaphor, metonymy, and irony. In Wohl's view, the rhetorical construction of subjects parallels the configuration of juridical discourse itself. So, in Demosthenes 39 On the Name the threat of splitting or doubling an individual subject—having two people with the same name—threatens, too, the symbolic order of law by exposing the potential arbitrariness of legal meaning (164-6). With insight, Wohl derives such subjective doubling from litigants' competing narratives of themselves—discussed in Demosthenes 48 (167-81). Although speakers identify themselves with the city or the jurors around them Dem. 21; 183-8), then, this identification of legal subject with law can never be total and absolute Lys. 24; 188-97). After all, metaphor and irony convey difference as much as similarity. Wohl concludes that law's attempts to stabilize meaning by defining a rational, unchanging subject can never fully banish the specter of a double, divided subject (197).

Chapter Five (201-42) traces how law strives to fix meaning that is not only consistent but eternal too. For Wohl, juridical discourse's desire to fix meaning links past, present, and future in a "taut temporality," where past crimes are dealt with in present trials that ideally secure future justice (202). This chapter compellingly shows that such synchronization was disrupted by the Athenian amnesty of 404/3. Wohl reveals a resultant pathological tension between recursivity and breach, between remembering without repeating and forgiving without forgetting (241).² For even despite the amnesty, many Athenians simply did not want to forget, and they turned to law to remember. As Wohl details, 'law' was deployed in rhetorically savvy ways: to fill the temporal gap left by the forgotten time period Andoc. 1; 206-17); as a venue for the Athenians to 'get it right' by convicting the Thirty at a trial once and for all Lys. 13; 217-26); and as a salve to the city's wounds, one opening up a critical, 'objective' distance between past and present Lys. 12; 236-40).

Chapter Six (243-86) examines a series of inheritance cases that "record the legitimate reproduction of the genos and at the same time write a history of the law"(243), to explore how law controls the future. Wohl focuses on wills and women: two elements that threaten the legitimacy of the oikos and thereby require an authoritative resolution by the law (249-50). Yet these resolutions seem to open up further instability: the ankhisteia, the legal framework for determining an heir, was open to rhetorical manipulation (252); and a crafty speaker could always replace a deceased's written will (diathêkê) with his heartfelt will (dianoia) Is. 1; 263-8). Wohl similarly uses Isaeus 3 and 6 to show how the desire to define the legitimacy of women within the law was itself undermined by juridical discourse (268-86). Though legal discourse superficially provides resolution, she concludes, it also actively generates ambiguous kin relations, illegitimate heirs, and opaque wills so that it can later lay authoritative claim to familial disputes (286).

Elegantly tying together the entire book, the Conclusion (287-316) focuses on the classic legal problem of whether law should be fixed or flexible, closed or open. Wohl traces the Attic orators' ambivalence towards the idea of a systematized law code and discerns therein a "fear that the law will become closed in on itself and divorced from reality and justice" (291). Law requires closure, but the closure created by a rigid law code is not always just. The orators' response, which Wohl sets up through readings of Demosthenes 24 Against Timocrates (292-300) and Lysias 10 Against Theomnestus (301-9), posited rhetoric as a means to closing the gap between law and justice. Ideally, rhetorical persuasion could align the words of legal texts with the actions of social beings (307-8). For this reason, forensic oratory could paradoxically affirm the unchanging authority of law while shaping that authority to its own ends (313).

Overall, Wohl succeeds admirably in bringing the heterogeneous Law and Literature movement to Classics. Some of the seminal issues that have engaged that movement—the violence of legal texts, the (in)stability of legal meaning, law and narrative, memory—are given center stage here. With but one notable omission, the extensive bibliography should itself prove a valuable resource for Classicists.³ Still, non-specialists will have a difficult time with this book. There is no systematic overview of Athenian law, courts, politics, or society; rather, new legal or social concepts are introduced piecemeal as needed. While all Greek is transliterated, Wohl frequently incorporates transliterations into her suggestive prose, with an accumulative effect that may hinder accessibility for non-specialists.⁴

As a description of the contours of the juridical world of democratic Athens, Law's Cosmos adds much to our understanding of forensic oratory. The book convincingly demonstrates that tracing the unpersuasive paths not taken can shed new light on these superficially straightforward texts. But it is worth asking what is 'juridical' about Athenian 'juridical discourse' in the first place. The Athenians did not have a notion of 'law' as an abstract entity akin to the Romans' ius; nor, outside of the constraints of courtroom practice,⁵ does 'legal' seem to have been a self-consciously marked category. So it is unclear what was distinctively 'legal' about 'legal subjects', say. Was probabilistic reasoning exclusively marked as 'legal'? And was 'law' always heavily inflected through the lens of the courts?

Indeed, at times Wohl's claims reach uneasily into the realm of Athenian legal practice. For example, she seems to take for granted that Athenian law needed to propagate itself—indeed that it thrived on a "covert complicity" with social violence in order to generate more lawsuits (68). But can an abstract entity like 'law' really desire anything? Whose interests were served by adopting this view of law? And was law's desire always constant? Ultimately, without a more rigorous account of how law actually worked, Wohl's readings must remain suggestive. That said, they helpfully point to a new approach both for gauging the interrelationship of juridical discourse, political and legal practice, and for understanding how that relationship changed over time.

Not all of the book's arguments will convince everyone, but—as befits Wohl's inquiry—pursuing the unpersuasive arguments can reward all readers of Athenian law and literature, alike.⁶

1.   These include legal anthropology, discourse analysis, sociology, contemporary legal theory, and socio-legal studies: see D. Cohen, Law, Violence, and Community, (Cambridge, 1995); S. Johnstone, Disputes and Democracy, (Austin, 1999); D. Allen, The World of Prometheus, (Princeton, 2002); A. Lanni, Law and Justice in the Courts of Classical Athens, (Cambridge, 2006); Z. Papakonstantinou, Lawmaking and Adjudication in Archaic Greece, (London, 2008).
2.   Her approach in this chapter owes much to the work of Nicole Loraux in The Divided City (New York, 2002).
3.   G. Binder, G. and R. Weisberg, Literary Criticisms of Law, (Princeton, NJ, 2000).
4.   Sentences like "Their forensic theôria transmutes hidden, internal ennoia into a visible and lasting dianoia"(267) are not uncommon. Most transliterated words are included in the index, with the notable exceptions of aretê, bios, and kairos.
5.  On these constraints, see Johnstone, op. cit. 126-33.
6.  The book itself is extremely well produced, with an index locorum, handy topical index at the back, and only a few typos: Ford (1999: 247n.58) should not have parentheses (45n.55); "seventy mna" for "seventy mnai" (170n.28; cf. 188 "three mna"); "will still want now [that] he's dead" (268).