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Article

Sophistry and Law: The Antilogical Pattern of Judicial Debate

Department of Public Law and Legal History Studies, Autonomous University of Barcelona, Bellaterra, 08193 Barcelona, Spain
Humanities 2023, 12(1), 1; https://doi.org/10.3390/h12010001
Submission received: 4 November 2022 / Revised: 5 December 2022 / Accepted: 7 December 2022 / Published: 20 December 2022
(This article belongs to the Special Issue Ancient Greek Sophistry and Its Legacy)

Abstract

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This essay aims to reveal the relationship between sophistry and law in a twofold direction: on one side, how the development of ancient Greek law influenced sophistry’s production, and on the other, how and to what extent the knowledge and skills developed by sophists contributed to the development of legal expertise in classical Athens. The essay will initially focus on the historiographical category of the sophists to identify a line that connects these intellectuals to the new vision of society, the democratic polis, and the community that presides over legal and judicial life. This section will show that we can indeed speak of a “sophistic movement” in light of the structuring role of antilogies (antilogiae, or antithetical arguments) in forensic rhetoric. The rest of the essay will examine, from a theoretical point of view, sophistic methods of argument that contributed to the development of ancient Greek law. Touching on the issues of opposition, the debate, the reductio ad absurdum, and the principle of non-contradiction, the essay will highlight the relevance of sophistic thought to the judicial field and, more generally, the legal arena, in ancient Athens, so much so that one can think of the sophists as advocates of a particular legal culture.

1. A Brief Overview of the Reception of the Sophists

The sophistic movement has suffered virulent criticism since the time of its contemporaries in the fifth and fourth centuries BCE. First, the Socratic position, which was hostile to the sophists, was synthesized and pushed to the extreme mainly by Socrates’s pupil, Plato, especially in his dialogues Gorgias, Sophist, and Theaetetus. Then came the contribution of Aristotle (Plato’s pupil), whose works—especially his Metaphysics and Sophistical Refutations—were also decisive in establishing the hostility toward the sophists that we find throughout the history of philosophy, in which the term “sophist” has a wholly negative meaning: it corresponds to a lack of seriousness, and, worse, is identified with immorality and deception. The negative view of the sophistic movement is also due to the scarcity of surviving primary and secondary sources, coupled with the fact that much of the relevant information we possess about the sophists is found in the corpora of Plato and Aristotle—two hostile but authoritative philosophical witnesses. Our limited information about sophistic thought inevitably led to an almost unconditional adherence to the critical positions defended by these ancient philosophers, especially because these master thinkers are viewed as the founding fathers of philosophy so strongly that they seem to direct the whole course of Western philosophy.
In addition to the texts of Plato and Aristotle, Diogenes Laertius’s Lives of the Philosophers represents another central node in our extant material on the ancient Greek and Greco-Roman sophists. Indeed, this work contains the most extensive repertoire of information on Greek philosophers that has come down to us, a repertoire in which the author was keen to specify all his sources. In this way, we get a strong impression of the reliability of the main lines of ancient Greek thought, starting with Thales and other so-called “PreSocratic” philosophers and passing through Epicurus and the Stoics. Nevertheless, Lives of the Philosophers and its catalogue of sophists and philosophers still relies on the interpretative framework established by Plato and Aristotle. One can therefore deduce that if there is a historiographical problem regarding the sophists and their reception it was born with the uncritical acceptance of Plato and Aristotle’s points of view, which were diffused by Diogenes Laertius’s work and accepted almost unconditionally throughout the history of philosophy. In fact, Diogenes Laertius was the model for the first histories of philosophy, a subject that only developed in the seventeenth century and which is therefore a relatively new discipline. In two of the first and most important histories of philosophy, Thomas Stanley’s The History of Philosophy (Stanley [1656] 1701) and Johann Jakob Brucker’s Historia Critica Philosophiae (Brucker 1742), the adoption of Diogenes Laertius’s perspective is evident in both their formal and conceptual aspects. For these scholars, sophistry is not a movement—the term “sophist” is associated generically only with a few authors. For example, Stanley refers to Protagoras but rarely refers to Gorgias, while Brucker, on the other hand, devotes a section to Protagoras but offers only a brief treatment of Gorgias.
A little over a century later, however, a fundamental work that reintegrated the sophists into the field of philosophy appeared in Germany: Georg Wilhelm Friedrich Hegel’s Lectures on the History of Philosophy, a compilation of lectures Hegel delivered at Jena, Berlin, and Heidelberg from 1805 to 1831 (see Hegel 1995; MacDonald 2006). In keeping with the assumptions of his system of Absolute Idealism, Hegel reads the history of philosophy through the prism of speculative dialectics. In ancient philosophy, he identifies the thesis in the philosophy of Thales and Anaxagoras, the antithesis in the philosophy of the sophists and Socrates, and the synthesis in the philosophy of Plato and Aristotle. The sophists are therefore positioned as the antithesis to the naturalist philosophy of the Ionian physikoi because, for Hegel, their subjectivism represents the first attempt to find an absolute essence in reason, even if it is still unable to rise from consciousness to self-consciousness: Protagoras and Gorgias inaugurate a new epoch of “subjective reflection” in the history of philosophy. This fact was enough to justify their inclusion in the history of philosophy. Hegel’s lectures gave rise to a new global reflection on sophistry by treating it as a “movement,” but not without retaining, however, some reductive assessments, especially because Hegel sought above all to integrate the sophists into his reading of the history of ancient philosophy as a dialectical development: the appearance of the sophists reveals a logical necessity at work in the history of philosophy (as well a fundamental need of Geist or Spirit) and, as the moment of antithesis, serves to prepare the way for the richer, more fully developed philosophy of Plato. Post-Hegelian histories of philosophy continued to maintain reservations about the sophists, but they nevertheless accorded the sophists a place in the history of ancient philosophy.
In the twentieth century, the fundamental turning point in the revival of sophistic thought was the inclusion of their texts and fragments in the third edition (Diels 1912) of the Die Fragmente der Vorsokratiker (The Fragments of the PreSocratics), by Hermann Alexander Diels. With their works now widely available, the twentieth century witnessed a gradual increase in scholarship on the sophists. One work that profoundly marked the study of the sophistry was George B. Kerferd’s The Sophistic Movement (Kerferd 1981), in which the philosophical aspects of sophistic thought almost eclipse its rhetorical aspects because, according to Kerferd, philosophy dominated the works of these authors, who almost stop being rhetoricians to become full-fledged philosophers. In addition to increasing scholarly publication on the sophists, conferences devoted to the sophists and their legacy—especially after congresses in the early 1980s in Athens (1982), Lentini-Catania (1983), and Cerisy-la-Salle (1984)—accelerated the rehabilitation of these thinkers and turned the study of sophistry into a new driving force in academia that continues to inspire research today. The critical literature on the sophists has grown exponentially over the past 40 years, as have the number of seminars and conferences devoted to this subject. Nevertheless, the tendency to highlight the theoretical and philosophical aspects of the sophistic movement at the expense of its rhetorical and practical aspects remains dominant. Furthermore, scholars have gradually abandoned the idea of sophistry as a movement in favor of a careful reading of individual sophists. However, in my opinion, we are far from having a stable definition of sophistry: many questions about the ancient Greek sophists remain open, and there are still important observations to be made about the sophistic movement.
With this context in mind, this essay aims to reveal the relationship between sophistry and law in a twofold direction: on one side, how the development of ancient Greek law influenced sophistry’s practice, and on the other, how and to what extent the knowledge and skills developed by sophists contributed to the development of legal expertise in classical Athens. The essay will initially focus on the historiographical category of the sophists to identify a line that connects these intellectuals to the new vision of Greek society, the democratic polis, and the community that presides over legal and judicial life. This section will show that we can indeed speak of a “sophistic movement” in light of the structuring role of antilogies (antilogiae, or antithetical arguments) in forensic rhetoric.1 The rest of the essay will examine, from a theoretical point of view, sophistic methods of argument that contributed to the development of ancient Greek law. Touching on the issues of opposition, agonistic debate, the reductio ad absurdum, and the principle of non-contradiction, the essay highlights the relevance of sophistic thought to the judicial field and, more generally, the legal arena, in ancient Athens, so much so that one can think of the sophists as advocates of a particular legal culture.

2. A “Movement”: Starting from Law

In The Sophistic Movement Kerferd identifies 26 sophists: he does not propose a list, but the criterion used for counting sophists is the presence of the epithet sophistēs (sophist) next to the names of individuals, even unknown ones. Plato, of course, played a fundamental role in associating the term “sophist” with a specific group of thinkers. From a Platonic point of view, this association has a discrediting value: Plato considered it immoral for sophists to share their teachings indiscriminately and for profit. The epithet sophistēs may indeed serve as an identifier of sophists, but it seems to have had too broad an application to identify an actual group called “the sophists” or “the sophistic movement.” It is easy to see, for example, that the epithet does not guarantee actual membership in the movement. In some cases, the term sophistēs seems to have another function apart from identifying membership. This is the case with Antiphon, where the epithet “sophist” serves to distinguish Antiphon, a sophist and orator according to the unitary doctrine, from other Antiphons, such as the poet or other people with the same name (this name was common in the fifth century BCE (agreeing with Gagarin 2002, in particular pp. 42 ff.)), or cases of expounders falsely recognized as sophists who in reality belonged to other schools of thought, as in the case of Lycophron, who was probably a minor Socratic (Giombini 2016; see Notomi 2022 in this issue). It is therefore not feasible to make the presence of sophistēs a criterion for determining who was or was not a sophist—its application is too broad, generic, and instrumental to be recognized as a helpful tool.2
It is therefore necessary to find new coordinates and standard terms capable of bringing together these heterogeneous thinkers if we are to grasp the meaning of their common belonging. For this reason, it is worth paying attention to the actual doctrines of sophists. This perspective also makes it possible to discern the heterogeneity of sophistic doctrines, even if we stick to the main lines: Protagoras was interested in both gnoseology and in ethics, Gorgias in rhetoric but also in ontology, Prodicus in the mechanism of language and in ethical themes, Thrasymachus and Critias in rhetoric and in politics, Hippias in politics and in ethics, and so forth. It is easy to deduce, therefore, that the sophists of the classical period did not have a single focus, a shared and uniform interest; on the contrary, their thinking extended into many different fields, a fact made clear in Aristophanes’s Clouds, in which the sophists or “sage souls” study everything from grammar and rhetoric to entomology and meteorology. Kerferd recognizes some shared lines of investigation among the sophists, such as their interest in language, the doctrine of logos, relativism, the opposition between nomos (custom) and physis (nature), the teachability of virtue, and not least the relationship with the divine. However, these elements are not common to all the so-called “sophists”: sometimes they are present only in some, while at other times they are dealt with by only one of these intellectuals. In light of all these variables, it is difficult to justify grouping the speculations and works of these authors under the single term “sophistry,” especially if we consider them as a single body or intellectual movement.
Thus, there seems to be no possibility of identifying a homogeneous group, let alone a movement, in the sophists and their doctrines. Nevertheless, if we look at the cultural context of ancient Athens and how the ancient Greek sophists actually taught and displayed their knowledge, it is possible to identify a few traits that connect them. One such trait is the teaching and practice of rhetoric. Most of the sophists devoted themselves to giving public lectures (epideixeis) and teaching the art of rhetoric. In general, rhetoric is the dominant feature of sophistic teaching and methodology—so much so that Plato criticizes the practice of rhetoric in most of his dialogues devoted to the sophists.
Even this statement is highly general because attention to practical and persuasive communication was not the exclusive interest of the sophists, or at least not the only ones: any pre-philosophical or philosophical text has a high degree of rhetorical refinement. The difference, however, lies in the fact that the sophists not only practiced rhetoric but contributed significantly to the development of rhetorical knowledge in producing texts for persuasive purposes and, above all, from a technical point of view. In other words, the sophists contributed to the development of rhetorical theory. Let us therefore consider the rhetorical treatises by sophists that preceded and, in a certain sense, shaped Aristotle’s Rhetoric (see Giombini 2011). These manuals (technai), to which we will return shortly in a more precise manner, have unfortunately not come down to us. Nor has the Compendium (synagōgē technōn) that Aristotle authored, perhaps around the same time as the Gryllus dialogue but certainly before the Rhetoric (see Quintilian, Institutio oratoria II 17). In the Sophistical Refutations (184 a–b), Aristotle does not attribute theoretical or conceptual knowledge to the sophists, only technical knowledge based on models. According to the Stagirite, the sophists did not arrive at formulating a comparable logic of discourse. However, it is possible to hypothesize that these sophistic texts were the first attempts to identify the parts of speech, define rhetorical figures, and reflect on the relationship between texts and possible readers—in short, the basis and sum of rhetorical knowledge under construction at the time. In this context, perhaps the most important contribution, both theoretically and practically, of the sophists is their treatment of antilogies (antilogiae) and the argumentative techniques these antithetical arguments entail. Antilogies are the most outstanding contribution of sophistry to rhetoric and to the new socio-political context of the time. Antilogies or contrary arguments are a central feature not only of judicial discourse but of political discourse as well (for example, in arguments between opponents who are not present at the same time). As a result, there has been renewed interest in the sophistical antilogies in recent years.3
Protagoras wrote an emblematic work entitled Antilogiae (Antilogies), which unfortunately has not survived as an integral text; it was originally composed of two books, at least according to Diogenes Laertius (see Lives III 37). A hypothetical but necessary attempt to reconstruct its content was undertaken by Mario Untersteiner ([1949] 2009, p. 96, n. 55), who, starting from the possible subtitles of the works in the Laertian catalogue and Plato’s Sophist (232 b–e), proposes the following possible division by themes: the gods, the physical world, the reality of being, the laws, the state, and the arts. Since we cannot avail ourselves of the original text, we must consider the testimonies that can help to give us a more general picture of the nature of the Protagorean antilogies. Diogenes Laertius (Lives IX 51) states that Protagoras “was the first person to say that, concerning every subject, there are two arguments opposed to one another; and this is also the way he formulated questions, which he was the first person to do in this way” (trans. Laks and Most 2016). I will not go into the substance of the search for the philosophical foundation that makes the construction of opposing theses possible, which is not the aim of this essay. Instead, I will focus on the application of the antilogy in Protagoras, starting from the argument of the famous episode between Protagoras and his student Euathlus (Apuleius, Flor. 18, 19–29; Aulus Gellius, Noct. att. V 10; Diogenes Laertius, Lives IX 50–56; Quintilian, Inst. orat. III 1.12). The judicial facts are as follows. Euathlus has promised to pay Protagoras his tuition fee after winning his first case. After Euathlus threatens not to pay if he loses his case, Protagoras warns him that he will sue and win in any case. Indeed, if Euathlus wins, according to the agreement, he will have to pay; similarly, if Euathlus loses the judgment, he will also have to pay the fee. Euathlus offers an equally valid counterargument: in winning the case, he will not pay the judgment in his favor; in losing it, he will not pay under the original agreement. This story clearly shows how the two opposing discourses start from the same object but reverse the value of the results, moving on logically opposite fronts. In effect, Protagoras’s reasoning turns an alternative (Euathlus will not pay if he wins but will pay if he loses) into a double bind dilemma—Euathlus will pay whether he wins or loses.
There are no complete antilogies in the works of Gorgias (that is, texts composed of two opposed argumentative aims—an affirmation and a negation of a thesis), but his works do exhibit arguments that contradict traditional Greek cultural views. This is the case with both the Encomium of Helen and the Defense of Palamedes. These two epideictic works propose a different version of two well-known myths, while his infamous work, On Nature: Or On Non-Being (Peri tou mē ontos), argues against Eleatic ontological theses (though it is not clear whether these theses are those of Parmenides or Melissus—or both). These Gorgianic epideictic speeches differ from sophistic speeches that oppose contrary perspectives but argue in a robust and logically structured way. Indeed, if this perspective is accepted, many discourses could be included in the category of antilogiae. That is, whenever there is a solid and predominant logos in the narrative of the audience or a social group (for example, that Helen of Troy is worthy of blame, not praise), the presentation of the opposing discourse appears as antilogical opposition. This method is problematic because it might broaden the meaning of antilogy too far. On the other hand, the mythological tradition of the characters he deals with, such as Helen and Palamedes, is so consolidated—there is no single version of these myths, but Greek culture understood them well—that it is easy to see in Gorgias’s responses the antitheses against the known and culturally shared theses: “Thus it is right that I refute those who rebuke Helen, a woman about whom the testimony of inspired poets has become univocal and unanimous as had the ill omen of her name, which has become a reminder of misfortune” (Encomium of Helen, Section 2; trans. Kennedy 2007).
Another example of antilogy can be found in the work of the sophist Prodicus of Ceos, whose Heracles at the Crossroads (contained in Xenophon’s Memorabilia (II 1.21–34)) moves along the track of an antilogical structure. Much has been written about this work, especially its adherence to the original version of the story. Indeed, it is Socrates who proposes to the young Aristippus a reflection on the relationship between power, virtue, and happiness, and, in this perspective, he relates the story of Prodicus about Heracles who, finding himself at the crossroads between Virtue and Vice, must decide which path to take. The characterizations of Virtue and Vice are opposed but also ethically unbalanced, and while the path of Virtue is traced with narrative delicacy and ethical exaltation, the other, the path of Vice, is presented as crude and fallacious. Most scholars agree that this passage results from a reworking of Xenophon’s original work to present the narrative by the speaker, i.e., by the Socratic position. The work moves toward a moralizing position, even from the antilogical point of view. Thus, the idea that the two positions are equally strong is not maintained: the “A” and “non-A” theses have neither argumentative power nor evidential value, yet the structure is bifurcated, which suggests that Prodicus conceived it according to the precepts established by antilogic. In other words, in the Xenophonian version, one of the two positions is privileged and thus maximally persuasive over the other. The balance of parts that characterize the two logoi of each antilogy is not respected and, under that, besides the troubled moralistic aspect, it is conceivable that from the antilogical text of Prodicus Xenophon transmitted a version according to Socratic assertions.4
Another sophist, Antiphon, produced antilogies in which there is an equivalence of the proposed opposing theses. The Tetralogies, a judicial work devoted to three murder cases, is a well-constructed model that shows how antilogies were structured. All three cases are antithetical situations: the first concerns the murder of an Athenian and his slave, the second a young man killed during a javelin exercise in the gymnasium because of another young man’s throw, and the third the case of an old man who died in a confrontation with a young man. In each tetralogy, the first accusation’s speech, followed by the defense’s first response, and the second speech of accusation, followed by the second speech of defense, may only reflect the actual circumstances of these cases. But it is nonetheless easy to deduce from the texts that the speeches in each tetralogy are reverse images: each speaker argues and counter-argues against what is stated by the other side. The Tetralogies is thus a pure work of antilogiae, but Antiphon also seems to have used the antilogical method in his other texts as well.5 In short, the Tetralogies are the most complete and complex case of antilogies that we have and that fit perfectly into the socio-political context in which sophistic rhetorical theory and practice evolved: a space, physical and mental, in which the judicial confrontation represents a peak of the social dynamics of Athenian democracy.
In addition to the works of Gorgias and Prodicus, there are many other works by sophists that feature the use of antilogical argument. For example, we could include two antilogical discourses by Antisthenes, Ajax and Ulysses, which could be viewed as testimony of the Gorgianic influence, as well as the Odysseus by Alcidamas, which could also be viewed as a response to the Defense of Palamedes by Gorgias (who was probably his teacher). The Dissoi logoi could also find a place in this review of ancient Greek antilogies. These are antilogical texts (dissoi logoi) on various subjects written by an unknown author some time in the fifth century. Only the first three discourses have completely survived (in nine sections): 1. “On Good and Bad”; 2. “On Seemly and Shameful”; 3. “On Just and Unjust.” The rest are incomplete or do not fully maintain the oppositional form of strict antilogiae: 4. “On Truth and Falsehood’; 5. (no title); 6. “On Whether Wisdom and Moral Excellence are Teachable”; 7–9 (no titles). Each antilogy has two opposing positions, although the scarcity of the rhyming material and its level, sometimes elementary, do not make the Dissoi logoi look like the work of a master rhetorician in antilogical structuring. The fact remains, however, that these works, despite their bland and unorganized structure, are antilogical in their argumentative procedure.
Therefore, as a heterogeneous group, these intellectuals possessed rhetorical, oratorical, and argumentative skill. Sophists in fact wrote treatises and speeches for public situations of all kinds; they knew how to entertain and persuade and prepared antilogies for rhetorical display, teaching, and forensic debate. They did so in an itinerant way, even if classical Athens was the polis through which everyone passed and found opportunities, especially in the fifth century, when Athens expanded under a democracy that allowed male citizens to participate more fully in political, social, and judicial life. The enterprises of the sophists were an integral part of this new world and its innovative, dynamic structures. A close link between the democratic polis and rhetorical activity is the framework within which the sophists’ activity occurred.

3. Process, Debate, and Antilogy

Athens experienced great dynamism, especially in the years of Periclean rule, a dynamism that was also inherent in the definition of new duties and new rights (property, civil, matrimonial, and so forth). As a consequence, the courts soon became the agonistic battleground of socio-political confrontations. All of these developments could not remain marginal to the speculations and activities of the thinkers of the time. On one hand, philosophers elaborated theoretical speculations about the nature of justice, whether human beings can achieve truth, what values the city needs, the function of social happiness, and other topics. The sophists certainly speculated about general issues in politics and justice. This is evident in texts by Critias and Hippias, in Antiphon’s On Concord and On Truth, passages of Gorgias’s works (epideictic works, to be sure, but also in the Epitaph), and above all in Protagoras, especially as recounted in Plato’s Protagoras. On the other, however, it became necessary to provide a technical substratum to the new judicial dynamics. Speech, discourse, and persuasion enter strongly to occupy the space of debate but do not settle issues on a strictly speculative level: they must be implemented and made technically possible. Under this specific aspect, the contribution of sophistry was fundamental. Above all, it was a harbinger of novelty and structuring, notably in Athenian law courts. Let us therefore examine the structure of the legal process in more detail.
Legal processes included well-defined phases in which many citizens (secretaries and officials) were involved in its steady development: the level of procedural technicality was high (see Gagarin 1989).6 A well-articulated procedure in all trial phases may be summarized as follows, using the example of a general accusation (graphē) between the fifth and fourth centuries. The process began when the plaintiff publicly communicated his accusation to the accused with witnesses (the prosklēsis). In five days, the parties filed their grounds (enklēma and antigraphē) on which they swore and paid the sums necessary for the trial with the magistrate. In case of failure, the magistrate attempted conciliation, identified the court, and organized the trial, ensuring the collection of all evidence and testimony. After the oaths, the trial began with the parties’ speeches, with two for the prosecution and two for the defense (water or sand clocks calculated the duration of the speeches). The speeches were presented directly by the parties themselves—no lawyer could take care of this phase (though sophistic “ghostwriters” or logographoi could be employed to write these speeches). The court made its decision through two votes, one in the middle and one at the end of the trial, and there was no appeal except by showing a procedural error. After the conviction, the process ended with the sentence and its execution. Of all these phases, the hearing in court is undoubtedly the most relevant from a rhetorical point of view: it involves the interested parties, prosecution, defense, judges, and any spectators who decide to attend. That is the public dimension of the trial, which arrived quickly at the sentence and required a tremendous persuasive effort on the part of the prosecution and defense.
We must try to go beyond pre-established ideas about what a trial is for us today if we are to grasp what the Greeks understood by it. To do this, let us look at the first paragraph of Gorgias’ Defense of Palamedes: “(1) Accusation and defense [he men katēgoria kai he apologia] are not a judgment regarding death. For nature, by a manifest decree, has condemned to death all mortals on the day that they were born. What is at stake is dishonor and honor, whether I must die justly or must die violently, from the gravest allegations and the most shameful accusation” (trans. Laks and Most 2016). Gorgias’s case of Palamedes starts from a myth: Palamedes, accused of treason, is judged under the walls of Troy by a tribunal composed of the chiefs and kings who attended the siege. It is a mythological and archaic context that Gorgias develops. However, following the conceptual and lexical perspectives of the classical period, Gorgias offers the definition of the trial as katēgoria kai apologia, that is, the moment of the judicial debate. That is the apical moment of the trial itself: of all the phases, it is the decisive one that will lead to the sentence, which Palamedes faces here by noting its ethical and social dimensions (to die is natural, to die in dishonor is an injustice). Aristotle, speaking of the judicial genre in Rhetoric (1358 b10–12), emphasizes how the nature of the judicial debate results from two opposing discourses, namely, an accusation and a defense. Aristotle notes that “in the law courts there is either accusation [katēgoria] or defense [apologia]; for it is necessary for the disputants to offer one or the other of these” (trans. Kennedy 2007). According to Aristotle, a trial is the whole of the accusation and the defense: the dike is accusation and defense. That allows us to say that for Aristotle, as for Gorgias, the essence of the trial is fully manifested when there is a judicial debate. In sum, the trial, from the moment it poses its premises to the sentence, lives its crucial moment in the debate. The trial development as a debate was its most careful and complex part, and the rules and techniques through which it was represented is a precious research subject.
In the trial, therefore, the speeches of the two parties alternate. There is, however, a third party involved, the jury, which is an external element that must remain as neutral as possible. The trial is an unmediated confrontation or agōn in which the third element, the jury, is not emotionally involved with the parties, at least according to an ideal plan. Despite this plan, however, both parties usually made great efforts to bring the process to an empathic and engaging level for the jury. The requests of the parties are admitted, as are the requests and cries of those present such as relatives and friends (see Lanni 2005), but the judges must respect the laws and, only as a last resort, interpret them. This is a theme that Aristotle discusses in his works, including Rhetoric (1354 a–b; Pol. 1270 b30–31, 1287 a17 ff.; see also Maffi 2018). Indeed, the judicial debate is not a dialogue (a parity dialogue as we conceive it today): it is an antilogical contest. There are two opposing theses that interact with each other, creating a dynamic of confrontation. The two parties do not need to reach an agreement: mediation is not sought—one tries to be more persuasive than one’s opponent to obtain a favorable sentence from the judges. In sociological terms, one could speak of a possible application of “realist mediation,” which has its origins in the Melian dialogue recounted by Thucydides in The Peloponnesian Wars (V 84–114) and which realistically accepts the victory of the stronger over the weaker without any possibility of cooperative mediation to improve relations or states of things (see Cozzo 2014). Antilogy does not seek cooperation but the stabilization of the conflict, which requires the intervention of the third party to be decided. Antilogy, potentially without resolution, is only dissolved—that is, decided—by the phase that establishes which of the two positions is to be considered trustworthy. We state the obvious by pointing out that the antilogical dynamic is more accentuated when the case analyzed in the trial is undecidable: it is a matter of conjectural debates, as Roman judicial rhetoric well defines (see, for example, Cicero, Inv. II 13 ff.; Quintilian, Inst. orat. IV 2.11 ff.). When there is no proof, the rhetoric of the arguments must be more robust and becomes more decisive. It becomes necessary to develop technical evidence, according to the Aristotelian lexicon, when atechnical evidence is lacking (contracts, witnesses, etc.). Needless to say, it is in this context that the techniques of forensic argument and persuasion elaborated by the sophists became invaluable.
Trials followed precise procedures, depending on the type of accusation and the court of destination. However, especially in the field of popular juries, the judges did not know the law, or at least were not obliged to know it. The principle iura novit curia—“The court knows the law”—was not in force in ancient Greece7; it is a principle that belongs to the more advanced legal systems that emerged at the beginning of the modern age. This means that in ancient Greek trials there was much space for persuasion. Although there were no professional judges or lawyers, the conduct of the trial followed a well-developed procedure. Among the procedural rules, there was one that regulated the debate: the so-called criterion or principle of relevance, which required the parties, prosecution, and defense to concentrate on the object of discussion and not depart from the subject matter of the trial (exō tou pragmatos).8 In other words, the judicial debate had to be within the subject of the trial and not outside it. This principle is not only procedural but also ethical (and deontological) because it imposed limits on how the trial should develop that needed to be accepted and observed by both parties. This principle was not always respected, of course, and speakers often tried to force it towards its paroxysm: this is the crucial role of rhetoric and persuasion.
Because of the latitude for rhetorical persuasion in trials, Greek orators often used a personal accusatory argument called diabolē, to which they responded with arguments of equal power. The diabolē or personal attack fits with the antilogical structure of the debates. Diabolē’s issues are extraneous to those of the trial and concern primarily the character and past lives of the subjects involved in the trial. Roman rhetoric, particularly Cicero and Quintilian, treats the same themes with the vita ante acta.9 In the Greek judicial literature we have many examples of diabolē (and of rejoinders to it) that consist of concrete applications in orations rather than theoretical formulations. A critical note about the diabolē is found in the book I of the Rhetoric. The Stagirite notes that “for verbal attack [diabolē] and pity and anger and such emotions of the mind [psychē] do not relate to fact but are appeals to the juryman” (1354 a16; trans. Kennedy 2007). Aristotle argues that trials needed to leave room for both logically sound demonstrations (such as enthymemes) and for laws to be clear and well defined to leave less room for the judges to be manipulated by rhetoric or to interpret, rather than follow, the law. Thus, for Aristotle diabolē, compassion, and anger do not belong to the objects of the trial and must therefore remain outside it because they try to act on the jury’s feelings. Although Aristotle’s critique is part of a rationalization of judicial discourse, readings of oratorical works from the fifth and fourth centuries teach us that the orator’s attempts to persuade were often enhanced by using diabolē. Indeed, diabolē, and the response to diabolē, occurs frequently in sophists’ works. For example, in Encomium of Helen (3–5) Gorgias describes Helen’s exemplary life as a wife and daughter, and in Tetralogies (A 2.12) Antiphon has the accused present himself as an active and positive citizen for all Athenians. To see more clearly how diabolē functions in forensic rhetoric, we can turn to a fascinating example in Gorgias’s Defense of Palamedes.
As is well known, Palamedes’s defense is an apology with which Gorgias attempts to demonstrate that Odysseus’s charge of treason against Palamedes is false, unprovable, and rationally questionable. In paragraph 15 Palamedes argues the following: “Someone could say that it was out of a desire for wealth and valuables that I undertook this. But of valuables I possess a moderate amount, and I have no need of more: for it is those who spend a lot who have need of a lot of valuables, not those who are stronger than the pleasures of nature, but those who are slaves to pleasures and who try to acquire honors by means of wealth and magnificence. Of these things, none matters to me. To the fact that I am telling the truth, I shall offer my past life as a trustworthy witness; and you, be witnesses in support of this witness. For you are together with me, and for this reason you know this” (trans. Laks and Most 2016). Here Palamedes calls on his past life to testify to the fact that he is a trusted person. Indeed, in paragraphs 28–31 he presents himself as a positive citizen for all the Greeks, his contemporaries, and those of the future. Palamedes lists the discoveries that have qualified him as prōtos heuretēs (first discoverer): the written laws that are the basis of law; the alphabet for memory; measures and weights; numbers; measures for exchanging money; and fire signs for communication. All these elements show that he always dispensed good things and avoided bad ones. An element stands out in these passages: past life has a testimonial function (martyra piston) intended to provide an argument in favor of the accused himself. This aspect is relevant because it claims that the answer to the diabolē not only has argumentative value by itself but also that it is evidence for Palamedes’s innocence. Gorgias was no stranger to inserting in his speeches critical remarks of the judicial world of his time (see Giombini 2015). In this passage, the sophist seems to criticize the principle of pertinence, arguing that, on the contrary, the vita ante acta (lit. “the life done before”)—that is, Palamedes’s previous life until the moment of the trial—should be given weight and a role, especially when, as in this case, the accusation has a hypothetical character. Here it is an element that will be no longer present in the Greek world but which, on the contrary, will become typical of Roman oratory and its construction of conjectural arguments. Now that I have described what conditions a speech must respect (and how rhetors tended not to respect them), let us return to the construction of speeches.
As I have noted, the rhetorically oriented debate is a concrete element of the trial that must be carefully structured. Let us therefore examine the modalities of this structuring and how sophistic rhetoric, especially rhetoric manuals, shaped these speeches. The sophists based their rhetoric on the treatise or manual (technē). Their treatises likely contained a review of figures of speech, rhetorical arguments, and even elements of language. In other words, we should not understand this type of work as an exclusively theoretical construction but more as a compilation, a list, or compendium of the technical knowledge to be acquired, the methods of rhetoric, and, according to Cole (1986, p. 12), perhaps even exercises. Rhetorical treatises thus served specific purposes by providing material that should be known to those who studied rhetoric (or wanted to learn to use it) and a series of argumentative methods that, if learned by heart, would facilitate the production of a speech. Sources inform us that Corax and Tisias, Gorgias, Thrasymachus, Theodore (Arist., SE 183 b30 ff.), Polos, and Likymnios of Chios (Pl., Phdr. 267 b–c) wrote rhetoric manuals. It is clear, therefore, that the sophists produced material or at least compiled rhetorical material for educational and speculative purposes. Critical literature has debated the nature of this rhetorical material, and it is necessary to deepen the subject by going back to the origins of rhetoric itself.
We must acknowledge that rhetoric is a judicial necessity if we consider that the first rhetorical argument we know of is a judicial one. It is the “corax,” an argument based on plausibility (eikos) attributed to Corax and/or Tisias. We need not go into the attribution of the argument here, nor the identity of Tisias and Corax, although Cole (1991) and Velardi’s (2007) hypothesis that Tisias and Corax are the same person and that Corax (“The Crow”) is the epithet with which Tisias identified himself is well founded. But it must be emphasized, as Cole has done so well, that this argument, which Plato has identified as a political (deliberative) one, is in fact judicial or forensic in nature (see Giombini 2022). But given the historiographical context and especially the nature of the corax argument itself, there is no doubt that the corax belonged to the judicial sphere, as Aristotle explains in his Rhetoric (1402 a17–28). In fact, the only surviving example of this type of argument from plausibility or probability is in a judicial antilogy—the first Tetralogy by Antiphon. In Tetralogy A, a debate about a homicide case, the corax and anticorax are applied:10 “There are also many others who hated him almost as much as I did; surely one of these is more likely to have killed him. It was clear to them that I would be suspected, and I was quite certain I would be blamed instead of them [A 2.6]”; and “If anyone thinks arguments from likelihood carry as much weight against me as the truth, by the same reasoning he should consider it more likely that in planning I would watch out for my own safety and would take care not to be present at the crime rather than let this man recognize me as he was being killed [A 3.8]” (trans. Gagarin 1998). As these quotations indicate, the corax works when an accusation is too plausible: the excessive obviousness and the reasonable doubt of a machination assume the role of destroying the accusation itself. The anticorax, on the contrary, affirms the reliability of the plausible: in cases without evidence, the criterion of plausibility must be maintained, or one would have to acquit those who are not likely to be guilty and those who are likely to be guilty. Antiphon thus takes the corax and places it in a judicial and antilogical context, elaborating its argument (the corax) as well as its opposing argument (the anticorax) to create a complete argument. It is essential to highlight an important aspect of this argument: Antiphon worked not only in using the corax, as transmitted by Aristotle, but also developed the reverse, or specular, argument. The desire to complete the argument stems precisely from the nature of the judicial text, which is antilogical: corax and anticorax in the service of judicial oratory.
Sophistic rhetoric was therefore created to meet the requirements of a new legal regime and provide the argumentative means to carry out persuasive speeches in front of juries and citizens who attended trials. The sophists contributed to the emergence of forensic rhetoric by elaborating speeches for public situations and developing the apparatuses suitable to decode the rhetorical knowledge necessary for a speaker both on a technical and logical level. More specifically, the sophists elaborated antilogies (antilogiae) and contrary discourses (dissoi logoi) that strengthened the binary logical scheme characteristic of adversarial legal debate and controversy. To begin moving toward a conclusion, let us examine how the sophists also contributed to forensic rhetoric by the use and development of the reductio ad absurdum and its related concepts: paradox, contradiction, and non-contradiction.
The reductio ad absurdum is essentially the act of taking an opponent’s discourse to its most extreme conclusions, reaching a contradiction that makes the position absurd and hence untenable. The reductio ad absurdum is already well-structured in Zeno of Elea’s paradoxes.11 These paradoxes are absorbed and used by the sophists, who employ them precisely for the construction of antilogies and thus of discourses of a judicial nature. It is therefore a necessary argumentative modality in the antilogical confrontation of the opponent, not only in philosophy but in the judicial field. The judicial speeches of Gorgias (as well as On Nature: Or, On Non-Being) and the Tetralogies of Antiphon are strong examples, but the Apologue of Heracles of Prodicus and the Dissoi Logoi also exhibit reductio ad absurdum arguments that reduce opposing arguments to a state of self-contradiction. Indeed, the sophists made significant contributions to the study and practice of contradiction and non-contradiction in law, logic, rhetoric, and philosophy. The principle of non-contradiction adapts precisely to the binary logic of the antilogy. Therefore, its use as a means of argument and refutation becomes a means of demonstrating the impossibility of accepting the opponent’s position and the necessity of accepting one’s thesis. It is an appeal to logic designed to strengthen the antilogical force of the dispute (and the differentiation of positions) and the force of rhetorical persuasion, since what is logically founded and argued is more plausible and persuasive to an audience. As Aristotle points out in the Rhetoric, we are most fully persuaded when we think arguments come close to logical demonstration. The history of the principle of non-contradiction begins with the three versions of this principle set forth in Aristotle’s Metaphysics (IV 3, 1005 b19–20 and 1005 b16–27; IV 6, 1011 b15–20), which have the necessary degree of universalization and abstraction that one expects from a definition: “It is impossible to hold (suppose) the same thing to be and not to be” (Metaphysics IV 3, 1005 b19–20). Before Aristotle, non-contradiction was implicit in any valid or correct discourse (and some conceptual adumbrations of the principle were present in pre-Socratic philosophy, particularly in Parmenides12), but no one had proposed a formal definition, apart from an incomplete formulation in Plato’s Republic (436 e–437 a).13
In this sense, the defining attempts of sophistry we find in Gorgias, Antiphon, and Dissoi Logoi represent a proto-history of the principle of non-contradiction. Gorgias, for example, proposes a version of the principle of non-contradiction in the Defense of Palamedes § 25 (detected by Calogero (1967); Vitali (1971); and Tordesillas (1990)) when Palamedes accuses Odysseus of falling into contradiction because he considers him wise because he plotted the betrayal, and mad because he betrayed Greece by attracting ruin and dishonor. In fact, Palamedes asks, “And how can one trust a man like that, one who, in saying the same speech to the same men, says completely contrary things about the same matters?” (25; trans. Laks and Most 2016). Wisdom and madness, of course, are opposites that cannot coexist in the same subject and therefore make the accusation’s speech inconsistent. This formulation is a rather subtle attempt to cultivate this principle, even if it applies to the specific case of Odysseus, the hero Palamedes is talking about. A similar formulation is present in the version of Gorgias’s Peri tou mē ontos preserved and paraphrased by Sextus Empiricus (adv. math. VII 65–87). These proto-definitions, referring to two contradictory states of the same subject, enjoy a certain degree of potential universality that makes them significant in comparison with (and contradictory to) Aristotle’s formulation of the principle of non-contradiction in Metaphysics IV 3, 1005 b29–31.
The same opposition between madness and wisdom is present in the Dissoi Logoi (5.6–8), where the anonymous author notes that those who argue that the wise and the mad do and say the same things are not expressing themselves correctly: “Those who say these things (that the demented <and the sane, and> the wise and the foolish, do and same the same things) and maintain the other consequences of the argument are mistaken. Because, if you ask them this sort of question, whether madness differs from sense, or wisdom from folly, they say ‘yes.’ For each of them makes it pretty well clear even from his actions that he will agree. Therefore, if they do the same things, both the wise are demented and the demented wise, and everything will be thrown into confusion” (trans. Kent Sprague 1972). They are afterward ready to admit that wisdom and madness are different based on the acts: they therefore fall into contradiction. In addition, the first defense speech in Antiphon’s Tetralogy A contains another sophistic proto-formulation of the principle of non-contradiction that the critical literature has not taken into consideration: “They claim that my cleverness makes it hard to establish my guilt, but they also accuse me of foolishness when they argue that my actions show that I did the deed” (2.3; trans. Gagarin 1998). This proto-formulation lacks a certain degree of universalization, as it moves into the context to which the discourse refers and does not have the ambition to present itself as a definition. Moreover, it exhibits another shortcoming: the conclusion of impossibility, i.e., that two contrary states cannot coexist simultaneously in the same place. In any case, the contradiction that appears implicitly is consequential in the context in which it is inserted; moreover, its presence shows that the principle was applied and that it was also evoked in the speeches as proof that the audience could understand it without any difficulty. The formulations of Gorgias and Antiphon represent not only two fundamental stages in the history of contradiction but also antecedents that may have contributed significantly to the subsequent evolution of Aristotelian definitions, especially if we consider the Stagirite’s deep knowledge of classical rhetoric and the sophists (see Giombini 2011).

4. Conclusions: Sophists as Jurists?

The sophists, wholly immersed in the Athenian life of the democratic polis and the ample space it granted to judicial and political discourses and confrontations, thus contribute to the development of rhetoric in general and judicial rhetoric in particular, pursuing the task started, at least formally, by Tisias for a complete application in their present. Their contribution was fundamental to the development of Greek law, a written law that, in its judicial dimension, was essentially structured in the moment of the trial and the discourses that are its primary nature (see D’Agostino 1975). Thus, while reintroducing sophistry into the philosophical sphere, the critical literature has left aside a fundamental aspect of the context in which the sophists found themselves operating: the new role of the courts and judicial practices, which were themselves highly democratic. Sophists adapted their production and their interests and teachings to what this new context required, that is, the development of compelling and persuasive speeches that could lead to victory both in court and in deliberative assemblies. Moreover, immersed in this context, they enriched and rethought it. The development of antilogies, together with the practices for their elaboration, led the sophists to structure rhetoric and analyze deeply the logical validity of arguments. Therefore, diabolē, contrary arguments, reductions to the absurd, and the principle of non-contradiction but also questions about judicial practice (what constitutes proof, whether vita ante acta can serve as a proof, and so on) reveal a theoretical aspect in the evaluation of judicial and antilogical practices.
The contribution of the sophists to rhetoric and judicial discourse, as well as the philosophical and critical speculations they put forward on the concept of justice, the just, and the law itself, constitute what could generally be defined as a “legal culture” (see Stolfi 2020, in particular 3.3), even if a limit must be placed on this terminology. Roman culture will later develop a legal culture in the strict sense: the jurists, specialists in the elaboration, and, above all, in the reflection on law, will become a source of law itself. In the Greek world, this dimension is not fulfilled: the figure of the jurist does not develop. Sophists and philosophers never rise to this role. They do not reflect on individual laws, do not comment on laws in a structural way, and do not become the source of law. Sophists are not jurists. Nevertheless, they contributed decisively to judicial practices and therefore to the evolution of law. As a consequence, the sophists, thanks to their technical and rhetorical contributions in the field of law, accomplished more than the philosophers’ speculations about the concrete life of the polis.

Funding

This research received no external funding.

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Conflicts of Interest

The author declares no conflict of interest.

Notes

1
Schiappa (1999, 2017) argues that it is necessary to investigate the origin of rhetoric starting from the ipsissima verba, i.e., from the presence of the technical vocabulary of the discipline. According to the scholar, the traditional interpretation of ancient rhetoric comes from Plato, who defined it in opposition to philosophy. It means sophists are not the founders of rhetoric: they apply some of its dynamics without being aware of developing art. On the contrary, from my point of view, it is possible to assume that the sophists developed a rhetorical art, a technique of argumentation, even if our knowledge about it is limited and not derived from the ipsissima verba. For further investigations on the topic, see Reames (2017).
2
On the generality of the term see also Bonazzi 2010, p. 14.
3
For an overview of the latest trends see, for example, Giombini (2020); Reames (2022); and the References section of this essay.
4
Whether the narration is Socratic or produced by Xenophon need not concern us here.
5
It may be true, as Morgadinho dos Santos Coelho (2018) argues, that the sophists deployed the antilogical structure in other texts besides their formally antilogical works.
6
The procedural aspect is advanced: according to Gagarin (1989), it is precisely the procedural dimension that develops even before the legislative content in Greek law. For the professional figures involved in this process, see Rossetti (2016).
7
See Stolfi (2010) (in particular 63) and Pelloso (2012). For the Roman legal system, see Gil (2022).
8
There is a relevant debate on the existence or non-existence of this principle and whether it was an applied principle or just a recognized but not formalized need. Even if it is a question of a deontological indication and not a procedural norm, the very recognition of this need manifests the need, later clearly delineated by Aristotle, to require judges to adhere to the law as much as possible and to make persuasion a minor element of the trial, again, in order not to influence the judges, who lacked specialized knowledge of the law. On this topic, see Butti de Lima (1997), Wallace (1989), Bearzot (1990), Ammendola (2001), and Rhodes (2004). An important source is Lysias’s On behalf of the Soldier 1: “What on earth did the opposing litigants have in mind when they ignored the point at issue and sought to defame my character? Was it because they are unaware that they are supposed to speak about the point at issue? Or do they recognise this, but (in the belief that they will escape attention) take more account of everything else than of what is appropriate?” (I; trans. Todd 2007). Another important source is his Defense against Simon: “[46] I could tell you many other things about him. However, given that it is unlawful to mention irrelevant material in your court, you should bear this point in mind: these men are the ones who enter our house by force; they are the ones who pursue us; they are the ones who drag us forcibly out of our path. [47] Remember this, and deliver a just vote. Do not look on while I am expelled unjustly from my fatherland, for which I have faced many dangers and performed many liturgies. I have never been responsible for any harm to it, nor have any of my ancestors: instead, we have been the cause of many benefits” (trans. Todd 2007). See also Demosthenes, Against Stephanos I 45.50.
9
For the relationship between diabolē and the vita ante acta, see Giombini (2023).
10
The formulation of the corax is present at par. 2.6, and the anticorax at par. 3.8. To avoid entering directly into the question that would take up too much space, see Giombini (2022).
11
On the idea of Zeno as the father of antilogic, see Giombini and Marcacci (2010).
12
The principle had already been elaborated in the Eleatic context, particularly in Parmenides, in an applicative sense, without constructing a purely formal aspect.
13
In this passage, Socrates says that none of these examples can convince us that an identical reality can remain itself and at the exact time change or act on something else.

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Giombini, S. Sophistry and Law: The Antilogical Pattern of Judicial Debate. Humanities 2023, 12, 1. https://doi.org/10.3390/h12010001

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Giombini S. Sophistry and Law: The Antilogical Pattern of Judicial Debate. Humanities. 2023; 12(1):1. https://doi.org/10.3390/h12010001

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Giombini, Stefania. 2023. "Sophistry and Law: The Antilogical Pattern of Judicial Debate" Humanities 12, no. 1: 1. https://doi.org/10.3390/h12010001

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