LITMIR.BIZ

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      A Delicate and Dangerous Business

       The emergence of torture in Greek law

      Twentieth-century people, although they may easily recognize the existence of privilege- or status-distinctions in institutions which profess to operate democratically and impersonally, often know little about societies – or earlier periods in our own history – in which privilege and status were the only elements that determined social identity, nor about the processes in early European societies that transformed them from communities based upon status distinctions to communities based upon shared rights. Yet in terms of legal history alone, these processes were fundamental to the emergence of the idea of ‘law’ itself and to the role of law and its incidents in social, cultural and political history ever since.

      For, once the Greeks had succeeded in inventing the idea of an abstract ‘law’ (nomos) and the Romans had followed by inventing the first legal science, an entirely new element entered the history of human social relations. Citizens and historians alike have disputed its importance and character ever since. Individual incidents of legal procedure – not only torture, but the concept of evidence, the character of witnesses, and the functions of advocates and magistrates – thus emerged from earlier unarticulated custom, closely attuned to the needs of new cultures, but also leading those cultures in distinct directions. It is in this context that we must look for the emergence of torture as a distinct phenomenon.

      At the beginning of the history of torture among the early Greeks we find for the first time in western history the transition from an archaic and largely communal legal system to a complex one in which the problem of evidence and the distinction between the free man and the slave are particularly striking. The problem of evidence had emerged from archaic Greek custom, in which the ‘law’ had consisted of the conflict between two litigants exercising self-help in a contest, an agon, surrounded by family, friends and dependents, guided only by themis, custom, and epikeia, appropriate behaviour. Themis and epikeia, the ‘rules’ of particular legal conflicts, came to be pronounced first by voluntary arbitrators, whose decisions in favour of one or the other party were called dikai, ‘statements’. These accumulated over time into a recognized body of opinion, until the popular perception of their abstract moral quality made the term dike come to mean Justice itself. These early legal conflicts probably made little use of evidence, just as they reflected little or no notion of crime as distinct from personal injury. Their outcome depended rather upon the social standing of the litigants and the opinion of the community’s most substantial members. The first personal offence was tort (civil injury to person, property, or reputation) rather than crime, and the ambition of the injured party was to have that injury acknowledged and made good.

      The transformation of Greek society from the eighth to the fifth centuries BC included the shift from feud, or agon, to trial. The poet Hesiod, himself a disgruntled litigant, argued that for the sake of fairness laws should be written, that standards of judgement be clearly stated, and that the most frequent causes of disagreement be surrounded by witnesses who will later testify to fact. The importance of membership in a polis, a city-republic, was that it placed each citizen within a much broader legal context in which ‘the law’ was abstracted from the earlier web of particular events, relationships and experiences and made autonomus. No longer was ‘the law’ the outcome of a series of household-feuds. The law of the city began to displace the laws of household at the same time as private ethics was conceptually separated from public behaviour. Written law emerged almost as soon as the first recognizable city-republics, and written law defined procedure and characterized those who had different kinds of access to it.

      By the sixth century BC, free citizens of the Greek city-republics willingly submitted to many restrictions on their personal actions that would have outraged Homer’s aristocratic warriors. But they submitted willingly because they knew the laws, respected those who administered them, and accepted that even legal procedure was generally beneficial, rather than coercive, to those who were free – and citizens. Those who possessed no ascertainable honour or citizenship status – strangers, slaves, those in shameful occupations, or those whose shame (atimia) was publicly acknowledged – possessed no right, neither the right not to be coerced nor the right to litigate.

      Concepts of honour and status thus stratified Greek urban society. In the fourth century Aristotle summed up the development that he perceived over the preceding two centuries in the matter of legal protection. He observed that, in the early sixth-century reforms of Solon, no citizen could be made a slave for personal debt; certain acts could properly be prosecuted by the public; citizens might appeal from the decisions of magistrates to those of popular courts. These protections greatly strengthened citizenship status. They emphasized the citizen’s unique access to the law, the importance of his knowledge of it and its procedures, his obligation to plead his case in person, and his necessary experience of sitting in the assembly as a juryman himself. Such a citizen clearly possessed honour (time), and there were limits to the degree of coercion to which he might be subjected, as well as to the nature of evidence that might be used against him, or by him against another free citizen.

      The honour of the citizen lent great importance to his sworn word. The doctrine of evidence itself may be said to have been defined by the importance of a citizen’s testimony. Therefore, one possessing no such citizen-status could not provide ‘evidence’ as the Greeks understood that term. The legal procedural protection of the free citizen and his sharp differentiation from other, far less privileged, classes of people led the Greeks to the conclusion that those without legal privilege had to be coerced into a special status in which their testimony became acceptable. Their testimony became equal to that of citizens by means of physical coercion. The origins of this notion are obscure, although they may lie in the power of a head of household over slaves and dependents. Originally, then, the importance of the honour of a citizen created a classification of evidence that distinguished between a ‘natural’ kind of evidence that might be obtained readily from the word of a citizen and a coerced kind of evidence that had to be extracted by force from everyone else.

      This argument for the honour of the citizen may be illustrated by an event that took place in 415 BC. In that year a number of statues of the god Hermes were desecrated, outraging Athenian popular opinion and precipitating a large number of accusations against citizens. One of the accused citizens, Andocides, accused his own accusers of wanting ‘to abrogate the decree voted during the archontate of Skamandrios and to put to the torture those whom Dioclides has accused [of desecrating the Herms]’. Although nothing else is known of the ‘decree of Skamandrios’, it seems to have served as the charter of the citizen’s exemption from general legal disabilities, particularly torture, respected sufficiently to be cited in a case where there was great pressure to discover the culprits and, evidently, an explicit suggestion

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