Rhetoric and the Law of Draco

Rhetoric and the Law of Draco

Rhetoric and the Law of Draco

Rhetoric and the Law of Draco

Synopsis

Trials for murder and manslaughter in ancient Athens are preserved in an outstandingly full and revealing record. Carawan offers a systematic treatment of Athenian homicide trials, outlining the historical development of the law, from Draco to Demosthenes, and analyzing the surviving speeches written for such proceedings.

Excerpt

This book is a study of how the Athenians came to terms with the killer--how the lawgivers of the ancient democracy devised their various remedies against bloodshed and how the citizens themselves decided the inevitable disputes at trial. It is a study of primitive law and the way of reasoning about guilt and innocence that grew out of it. But Athenian justice may seem remote from modern concerns, and the reader who is curious enough to open to this preface but wary of proceeding any further may well ask, 'Why should this matter to us?' To that wary reader, I suggest, the ancient problems matter because they teach us about our own most troublesome assumptions.

In the Anglo-American tradition--indeed in the broader currents of modern law in the West--there are two aspects of a homicide that we consider most important: the wrong to the community and the agent's state of mind. In our understanding of the wrong, the criminal aspect predominates: the hurt to the victims has become part of a deeper violation against us all. And in our reckoning of guilt--who is to blame and how much--we tend to be preoccupied with inner motives: what distinguishes murder most foul from culpable negligence or unavoidable mishap is a matter of the killer's intentions or expectations. These principles enter into our deepest convictions, stir the most impassioned debate about the gravest social ills, and guide the remedies we devise in the legislature and the courtroom. This way of thinking takes on a certain inevitability; and so, when we venture into another way of justice, we are likely to carry these principles with us or to regard any alien typology as irrational or inferior. But let us ask ourselves, how well do we understand our own way of judging the killer?

In Athenian justice the criminality of homicide, the wrong to the greater community was a rather dim concept, largely overshadowed by the wrong to the family. And mens rea itself--the presumption that the real source of guilt is the inner mind--is an even murkier notion. But Athenian justice was based upon a way of arguing things out before a jury of the people, a discursive process for collective decision that is perhaps closer to the Anglo-American . . .

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