Vol. 10 No. 1 (January 2000) pp. 65-67.

DISPUTES AND DEMOCRACY:THE CONSEQUENCES OF LITIGATION IN ANCIENT ATHENS by Steven Johnstone. Austin: University of Texas Press, 1999. 207pp.

Reviewed by Jon Goldberg-Hiller, University of Hawaii

What happens when we transport contemporary sociolegal theory back to classical Athens in order to study everyday litigation? Professor Steven Johnstone's inventive and compelling book gives the fascinating and strangely familiar answers. Not only do we learn a tremendous amount about the contradictions of Athenian democracy and the rhetorical construction of legal identity, but, like an anthropologist transported along a temporal and not spatial dimension, we gain a great deal of insight into our own conceptions of law and legality, democracy and citizenship, identity and difference. We are also confronted with a strange conundrum: just how modern is our sociolegal theory if it works so handily for the ancient historian?

Of course, our contemporary social and legal theory does address its debts, sometimes to the ancient past. Foucault, for one, returns to the ancient world in his later works to explore the genealogy of our contemporary concerns with legality, power, and self-identity. Unlike the sometimes inverted world that Foucault's genealogical analyses reveal, Johnstone's more historical temperament presents enough commonality in the political and legal systems between ancient Athens and our own to pass concepts and insights comfortably among ancient historians and the likes of Sally Merry, Sally Falk Moore, Gunther Teubner, Alan Dershowitz, Pierre Bourdieu and many other familiar sociolegal scholars, social theorists, and legal personalities. In so doing, the book moves beyond the Hegelian sense that the ancient world was unique in its self-understandings and unapproachable by contemporary methods. Johnstone's most notable insight is to approach classical Athenian litigation through the anthropological lens of the dispute. Rather than assume the autonomy of "the law" through an exegetical reading of legal texts, Johnstone uses the dispute to explore how rhetoric, institutions, and subjectivities construct the law out of social conflict. In a series of carefully detailed theoretical passages and in his meticulous yet approachable presentations of the extant testimony and case histories (all read in their original Greek), Johnstone demonstrates that the dispute mediates a relative autonomy of the law. Many ancient historians, unused to the windows of contemporary sociolegal studies, have dismissed the issue of autonomy too quickly, following the Weberian belief that legality depends upon formal legal institutions such as lawyers, court personnel, and a rationalized language - all foreign to ancient Athens. Johnstone's anthropological approach confirms that the development of a semi-autonomous legal field was emergent from the singular institutional presence of a large empanelled jury (201 or 501 randomly selected citizens, sometimes more) that permitted the transformation of disputes into a legal form. In his words, "the decision to litigate

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imposed a uniquely legal shape on conflict, a shape that created prosecutors, defendants, witnesses, supporters and 'third parties' out of an undifferentiated collection of disputants."

Bolstering his attention to disputes, Johnstone's book is structured by his study of Athenian legal rhetoric. This provides animated chapters on legal narratives; daring and oath taking; the construction of character; rituals of pity, weeping and supplication-themes both familiar and strange to contemporary studies of disputing. Importantly, Johnstone demonstrates that legal rhetoric is ultimately restricted by, and acts to reinforce, the social and normative contours of Athenian democracy. Neither slaves nor women could invoke the law as its subjects, nor be anything but the object of litigated disputes between male citizens. Nor could they serve as jurors, an exclusion that helped mark the citizen through the shared kinds of knowledge, interpretive skills, modes of address, and the development of common interest that constituted juries and reinforced democratic bonds between them and the litigants. For example, Johnstone shows how defendants' appeals to juries' sense of gratitude (CHARIS) for previously given civic gifts urged a common bond between jury and litigant-an articulation of common values and identities that engendered the polis.

The successful articulation of the values of the Athenian POLIS by litigants depended upon what Johnstone has called "rhetorical resources." These strategic endowments differed for-and thus constituted-defendants and private prosecutors. As these endowments were largely rhetorical, they heightened a familiar, post-modern anxiety over the instability of legal language. In reaction, Johnstone explores how litigants availed themselves of numerous opportunities to anchor their positions in extra-legal norms. These responses to rhetorical anxieties reveal the myriad ways that democratic norms intruded upon disputes over private interests. For instance, confounding Marc Galanter's notion that the "haves come out ahead," Johnstone reveals how wealth often operated paradoxically in Athens to reinforce the DEMOS since appeals to the jury for CHARIS on account of liturgical duties and community generosity encouraged elite submission to the norms of civic consciousness and the authority of fellow citizens.

For an ancient historian, Johnstone has some other modernist tricks up his sleeves. Using descriptive and inferential statistics, he differentiates rhetorical resources utilized by defendants from those relied upon by prosecutors. Thus, we learn that defendants in private cases were more likely to reference the oath taken by jurors that defendants in all cases were twice as likely to cite their own liturgies and public services, and that asking for pity was more often the rhetorical resource of defendants except when children sued for paternal recognition. By isolating these rhetorical tropes by type of litigant, Johnstone is able to demonstrate the role that such appeals had in building democratic norms and institutions. What emerges is a pointillist vision of the original democracy, not reified into a static political theory, but represented as a daily construction in all its contradictions. As such, his history of ancient Athens repeatedly turns us towards our own rhetorical republic.

Johnstone's book is a thoroughly enjoyable read that spans our own modern

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explorations of law and society to the ancient world. If it has a weakness for non-historian readers, it is that it hasn't gazed long enough at this bridge's theoretical underpinnings to inquire what we learn about legal anthropology and disputing from the application of these modern methodologies to the world of ancient Athens. This omission becomes, of course, an open invitation to the modern sociolegal scholar who has much to gain from this fine book.