CBA Record January-February 2025
THANK THE ANCIENT GREEK PHILOSOPHERS In the study of philosophy and legal theory, the Greek concept of ethos is pivotal. Greek philosophers refer enced ethos in addressing both an individual’s character and moral compass. Accord ing to Aristotle, effective persuasion begins with estab lishing ethos. He identified three components of ethos: (i) phronesis, prudence and intelligence; (ii) arte, virtue; and (iii) euoia, goodwill towards the audience. His idea lives on in our modern ethics, which extends beyond the art of persuasion to pro fessional and moral standards governing the conduct of judges and lawyers. Similarly, English borrows the root-log from logos, or logic, as in dialogue, methodol ogy, and criminology. Logic remains the backbone of argumentation and decision making. Logical strategies like deduc tive reasoning, syllogisms, and inferences originate in the thinking of Aristotle, Plato, and other Greek phi losophers. We’ve been using their thinking to settle argu ments ever since.
(Strictly an either/or decision—a coin toss with consequences rather than a fair out come.) Majority vote decided the result; a tie went to the defendant. The archon maintained order with their archi -like authority and knowledge of the law, which, considering they had no legal training, suggests they were making it up as they went along. (Fortunately, law schools would come along in due course—winging it doesn’t exactly scream “justice.”) Each side had an equal amount of time to speak, measured by a water clock. (Another feature worth bringing back?) They presented their accounts, argu ments, and a proposed verdict to the jury. Litigants honed in on a juror’s sense of reason and emotion, crafting speeches to underscore the gravity of the injustice and evoke the utmost sympathy. There were no rules of evidence, no cross-examination of witnesses, and no case-law precedent. “Appeals to the prejudice and passion of the jurors were common,” and “[d]irect requests for pity
were so common that the failure to beg for the jurors’ compassion was regarded as a sign of antagonism” to the process. Syco phancy in Athens, supra, at 15. Athenian laws were often ambiguous (some things never change), and archons did not give jury instructions or infor mation on relevant laws. Nor did they restrict claims litigants could make. So, litigants rarely argued the law. (Glad that disappeared quickly. Sure would make appellate work baffling.) The laws were displayed to the public on walls in the city’s center. (It’s a good thing our laws aren’t chiseled on walls. A four-foot-high wall displaying the Illi nois Compiled Statutes would probably stretch along the complete perimeter of Illinois.) As you might suspect by now, the trials were more like an amalgamation of a professional wrestling match and a political debate, before an audience that would make a Taylor Swift concert seem like a gathering of librarians. In addition to jurors, spectators could attend, further
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