This summer, the Classical Rhetoric & Contemporary Law group has begun discussing classical texts relating to rhetoric and argumentation from the perspective of contemporary law. To support that effort, I began a series of background pieces (starting with this post on June 14) to function as a roadmap to classical rhetoric for members of the group and for others interested in classical forensic rhetoric and its intersections with contemporary practice and pedagogy. See that first post for objectives and ground rules of these background posts.
The last post focused on some terminology issues and some history of rhetoric before and up to approximately the time of the sophists in Athens (the 5th century BCE or so). I had originally meant to make the present post a more general one, but as I’m leading a discussing on the anonymous Dissoi Logoi and Antiphon’s Tetralogies tomorrow, I wanted to finish covering them today.
The next post will narrow the focus of the last by explaining the contexts for forensic rhetoric in Athens (and later, Rome); it thus explains what an ancient court case looked like. (Candidly, that would have been helpful in understanding Antiphon’s texts in this post, but it will just have to wait until next time.) It will also introduce some information about how rhetoric was taught in antiquity.
The Double Arguments (Dissoi Logoi)
This anonymous text is a series of show speeches, in most cases arguing both sides of mostly philosophical questions, in other cases arguing for a particular position. Dillon and Gergel date them to the 390s or 380s BCE,[1] after the heyday of the older sophists and well into the era of Plato. They do not readily fit the three genres of classical oratory (deliberative, forensic, or epideictic). Instead, they function as exercises or explorations, and some have said that the Dissoi Logoi are not polished productions by one of our better-known authors or anyone of comparable skill, but are instead the work of a schoolboy or pupil, the position Dillon and Gergel state[2] and which their notes on the text support.[3] Kennedy, however, describes them as “good examples of how to argue on both sides of an issue.”[4] Regardless of their quality as arguments, the fact that these texts have survived suggests that they have been viewed as somehow important or at least emblematic of the arguments or techniques they embody. I speculate that they (or texts like them) might have served as exemplars for folks like Plato of what was wrong with rhetoric. The fact that they may not be aptly argued, or that they argue for radically relativistic views, supports the position of those who are anti-rhetoric.
Antiphon and the Tetralogies
There may have been several Antiphons, and it’s not easy to say which is which: The author of these Tetralogies; the writer of three forensic speeches actually delivered in court; the author of two philosophical treatises, On Truth and On Concord, of which we have only fragments; an anti-democratic Athenian politician; a tragic poet; a dream interpreter; and a psychiatrist.[5] His/their identity was a matter of debate for ancient writers, just as it is for contemporary scholars.[6] In fact, not all contemporary scholars will grant that any Antiphon is author of the Tetralogies.[7] But the “three surviving forensic speeches . . . [attributed to him] have a claim to being among the earliest examples of Attic [Athenian] prose.”[8]
He is identified by Pseudo-Plutarch and others as one of the 10 great Attic (that is, Athenian) orators,[9] and may have had the nickname “speech cook” or logomageiros.[10] Contemporary accounts suggest he was somewhat younger than Gorgias and somewhat older than Socrates[11] and that he operated a school, perhaps of rhetoric (but remember this is before the term “rhetoric”) or sophistry.[12] One Antiphon was an anti-democratic supporter of the oligarchy known as The Four Hundred, which took power in Athens 412 – 411 BCE, and was tried and executed for his part in that coup when democracy was restored.[13] Antiphon is one of the few Athenian citizens classed as sophists—most were foreigners or metics.[14] He is the first author we know by name as a logographos, a writer of speeches for others to deliver before the court or assembly and the first to publish a handbook of rhetoric, though it does not survive. [15]
The Tetralogies are three sets of four forensic speeches, each relating to a single court case—two by the prosecution and two by the defense—and are show speeches, designed either to impress the reader with the author’s skill or to teach his students principles of forensic argumentation.[16] One the one hand, though these are not speeches actually delivered in court, Antiphon may have abstracted them from real cases he argued.[17] On the other hand, at least one scholar dates them to the 440s,[18] placing them more than 20 years before the earliest of his undisputed forensic speeches, which dates to around 419.[19] Kennedy goes further forward in time, nothing that “they seem to reflect legal arguments current at a time after Antiphon’s death,” possibly suggesting they were written in the fourth century.[20] The three Tetralogies all involve homicide: First a premeditated murder, second an accidental death, and third a claim for murder and corresponding claim of self-defense.
Treatment of these texts in scholarship
These particular texts have received scant attention in the legal scholarship, and even in the rhetorical scholarship they have not frequently been treated with great depth. Classics scholarship, not surprisingly, appears to regard them as evergreen sources of debate. In the case of the Dissoi Logoi, the legal scholarship provides really only one examination: Eileen Scallen embraces the figures of Isocrates, Cicero, and Quintillian in her argument for a pragmatic legal rhetoric[21] and its use in teaching evidence,[22] and she cites the Dissoi Logoi to illustrate the proneness of contemporary and classical authors to regard the sophists as supporters of “radical relativism,” despite other possible interpretations.[23] Nuno Coehlo cites but does not discuss the Tetralogies and the Dissoi Logoi as examples of the mode of antilogy—opposing each argument with a counterargument—popular with the sophists.[24]
Dissoi logoi presents the additional problem of referring more generally to “contrasting arguments.” So, for example, Mootz mentions “dissoi logoi,” but not the Dissoi Logoi, in his review of a book that attacks “radical multiculturalism” in legal theory.[25] Mootz’s review functions as an argument for a contemporary rationality, a rhetorical logos, not constrained by oversimplifying Englightenment logic but not entirely unmoored from reason, as some post-modern theorists appear to be.[26] He mentions the concept again while arguing for a reconsideration of the reputation of the sophists in an article where he argues generally for rhetorical knowledge as a foundation for justice.[27] The dual nature of dissoi logoi and Dissoi Logoi shows up in the rhetorical literature as well: Robert Scott, in a landmark essay in rhetorical theory, also mentions the concept of the dissoi logoi without citing our text.[28]
The Tetralogies make a better showing in the legal literature. Adriaan Lanni provides a summary of the Athenian court case.[29] She also explores in considerable detail the evidence that litigants in Athenian cases made references to Athenian law,[30] and used (or mostly did not use) references to precedent.[31] During this process, she compares classical Athenian practice in some cases to concepts from contemporary law, such as identifying the ratio decidendi in a case[32] and distinguishing previous cases.[33] Her discussion is grounded in the corpus of classical Athenian speeches, mostly written by logographoi such as Lysias. She cites two of Antiphon’s forensic speeches[34] and briefly mentions his second Tetralogy.[35] Donald Verene refers to Antiphon’s Tetralogies as an early example of the four-part structure of speeches that he explores in the context of the works of Giambattista Vico, and particularly while comparing them to classical rhetoricians (and Verene would probably say, philosophers) Cicero and Quintillian.[36] Kevin Saunders uses the second Tetralogy as a brief example in a jurisprudence piece on the role of volition in justifying culpability in law.[37] His discussion complements that of Mann, who explores the second Tetralogy in detail while claiming the defense’s argument in it presages contemporary arguments and distinctions among agentive, evaluative, and moral responsibility for acts.[38] There is of course the obligatory cite-without-discussing example: Richard Sherwin includes a reference to the Tetralogies merely as part of a string-cite with several other classical authors in his article on contemporary legal theory.[39]
Antiphon is a subject of substantial interest among classics scholars. For example, in two articles Michael Gagarin discusses whether Antiphon’s existing forensic speeches suggest he was an innovator or reactionary among rhetoricians of his time[40] and the nature of the Athenian law of homicide applied in the Tetralogies.[41] The former piece may become interesting to us later, as it focuses on the distinction between artistic and inartistic proofs that Aristotle will draw in the Rhetoric. The detailed analysis in the latter would prove useful to anyone hoping to make a deep use of the Tetralogies as part of a research project. And Sealey takes up the question of whether the writer of the Tetralogies was using Athenian law as the basis for the speeches, and if so, of what era.[42] He concludes that features of the law in the Tetralogies mean they were “more likely to have been composed after 403 than before”[43] (and thus after Antiphon’s death).
[1] The Greek Sophists 319, (John Dillon & Tania Gergel trans., 2003). Cf. George A. Kennedy, A New History of Classical Rhetoric 17(1994) (placing them at the end of the fifth century); Thomas M. Conley, Dating the So-Called Dissoi Logoi: A Cautionary Note, 5 Ancient Philosophy 59, 62-63 (1985) (arguing they were written centuries later, perhaps as late as the twelfth or thirteenth century CE).
[2] The Greek Sophists, supra, at 319.
[3] See, e.g., The Greek Sophists, supra, at 405 nn.27-28, 33, at 408 n.69, and at 411 n.105. See also Conley, supra, at 59.
[4] Kennedy, supra at 17.
[5] The Greek Sophists, supra, at 133-34.
[6] Dillon and Gergel quote the second-century CE rhetorician Hermogenes of Tarsus at length on the question. The Greek Sophists, supra, at 135-36. For contemporary assessments, see, e.g., Kennedy, supra at 23 n.15; Laurent Pernot, Rhetoric in Antiquity 19 (W.E. Higgins tran., 2005).
[7] R. Sealey, The Tetralogies Ascribed to Antiphon, 114 Transactions of the Am. Philological Ass’n (1974-) 71 (1984). Sealey argues that the author of the Tetralogies did not correctly report Athenian law from the period and was guilty in some cases of writing with an Ionic (rather then Athenian) style; these are unlikely if the leading Athenian citizen of the period known as “Antiphon” was their author.
[8] The Greek Sophists, supra, at 134.
[9] The Greek Sophists, supra, at 137.
[10] The Greek Sophists, supra, at 134 (quoting the tenth-century CE Byzantine encyclopedia the Suda).
[11] Dillon and Gergel place his birth around 475 BCE, with Gorgias a half dozen years earlier and Socrates a half dozen later. The Greek Sophists, supra at vii. Gagarin puts it at 480. Michael Gagarin, Greek Oratory (Series Introduction), in Isocrates I xii, xv (David C. Mirhady & Yun Lee Too trans., 2000). Pernot also chooses “c. 480.” Pernot, supra, at 19.
[12] Xenophon describes “Antiphon the sophist” as trying to lure Socrates’ students away. Xenophon, Memoirs of Socrates, in Xenophon: Conversations of Socrates 95 (Robin Waterfield & Hugh Tredennick trans., 1990) (1.5.6; this section number refers to a contemporary “breakdown” of Xenophon’s text. See the note on a previous post regarding such references).
[13] The Greek Sophists, supra, at 133-34.
[14] Gagarin, supra, at xiii (noting that metics were “non-citizen residents of Athens,” and because “they were barred from direct participation in public life,” their only employment in as rhetoricians was to “contribute by writing speeches for others”).
[15] The Greek Sophists, supra, at 137 (quoting Pseudo-Plutarch, Lives of the Ten Orators).
[16] The Greek Sophists, supra, at 172.
[17] The Greek Sophists, supra, at 375 n.101.
[18] Kennedy, supra, at 23.
[19] Sealey, supra, at 72.
[20] Kennedy, supra, at 23. See also Sealy, supra, at 73 (“[O]ne need merely note that . . . 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.”)
[21] Eileen A. Scallen, Evidence Law as Pragmatic Legal Rhetoric: Reconnecting Legal Scholarship, Teaching, and Ethics, 21 Quinnipiac L. Rev. 813, 850-51 (2003). Scallen’s article provides an overview in broad brushstrokes of classical rhetoric, the controversies between those in the camp of Plato and those in the camp of the sophists and Iscocrates.
[22] Scallen, supra, at 857-86.
[23] Scallen, supra, 839 n.101.
[24] Nuno M.M.S. Coelho, Controversy and Practical Reason in Aristotle, in Aristotle and The Philosophy of Law: Theory, Practice and Justice 87–108 (Liesbeth Huppes-Cluysenaer & Nuno M.M.S. Coelho eds., 2013).
[25] Francis J. III Mootz, Between Truth and Provocation: Reclaiming Reason in American Legal Scholarship (review of Daniel A. Farber and Suzanna Sherry, Beyond All Reason: The Radical Assault on Truth in American Law), 10 Yale J.L. & Human. 605, 637 (1998). Mootz writes: “Protagoras did not seek singular rational truths in human affairs but began with a conception of the world as constituted by dissoi logoi (contending discourses) that can be resolved only as a matter of collective judgment.”
[26] Mootz, Between Truth and Provocation, supra, at 641.
[27] Francis J. III Mootz, Rhetorical Knowledge in Legal Practice and Theory, 6 S. Cal. Interdisc. L.J. 491, 551 n.155 (1998). The article is a thorough and complex synthesis of ideas from Chaim Perelman and Hans-Georg Gadamer.
[28] Robert Scott, On Viewing Rhetoric as Epistemic, 18 Central States Speech J. 9, 15 (1967).
[29] Adriaan Lanni, Precedent and Legal Reasoning in Classical Athenian Courts: A Noble Lie?, 43 Am. J. Legal Hist. 27, 29-31 (1999).
[30] Lanni, supra, at 31-41.
[31] Lanni, supra, at 41-51.
[32] Lanni, supra, at 42, 47, 49, 50. Interestingly, Lanni’s article refers to ratio dicendi, a term unknown to me, rather than the well known ratio decidendi.
[33] Lanni, supra, at 47, 49.
[34] Lanni, supra, at 30 n. 13 (citing Antiphon 5) and at 38 n. 74 (citing Antiphon 6).
[35] Lanni, supra, at 37 n. 67.
[36] Donald Phillip Verene, Vichian Moral Philosophy: Prudence as Jurisprudence, 83 Chi.-Kent. L. Rev. 1107, 1121 (2008). The reference to the Tetralogies as an example of a four-part structure is strange, given that they are conceived as four separate speeches given by two different speakers. The focus of Verene’s article is to argue for Vico’s view that eloquence, ethical prudence, and jurisprudence should be taught as necessary parts of the liberal arts.
[37] Kevin W. Saunders, Voluntary Acts and the Criminal Law: Justifying Culpability Based on the Existence of Volition, 49 U. Pitt. L. Rev. 443, 444-45 (1988).
[38] Joel E Mann, Causation, Agency, and the Law: On Some Subtleties in Antiphon’s Second Tetralogy, 50 J. of the History of Philosophy 7, 16 (2012).
[39] Richard K. Sherwin, Lawyering Theory—An Overview: What We Talk About When We Talk About Law, 37 N.Y.L. Sch. L. Rev 9–53 (1992).
[40] Michael Gagarin, The Nature of Proofs in Antiphon, 85 Classical Philology 22–32 (1990).
[41] Michael Gagarin, The Prohibition of Just and Unjust Homicide in Antiphon’s Tetralogies, 19 Greek, Roman and Byzantine Studies 291–306 (1978).
[42] Sealy, supra, at 72.
[43] Sealy, supra, at 84.