the historian-judge

Dame Barbara Hepworth, Ita, 1971
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By ANNA LIA A. PRADO & ALBERTO A MUÑOZ*

Commentary on the book by Paulo Butti de Lima

The relationships between the means of persuasion regarding the veracity of the historiographical discourse and the means of proof used in Athenian judicial practices are the object of this book by Paulo Butti de Lima, graduated in philosophy at USP, doctor at the Scuola Superiore de Studi Storici at the University of San Marino and professor at the University of Bari.

Sensitive to the basic methodological objection that it is not possible to attribute the emergence of historiography as a literary genre to a single cause, the author is careful not to take the means of persuasion of the truth, employed by Herodotus and Thucydides, as mere developments of indexical practices common in Athenian courts.

While the proponent of a cause or defendant can present to the jury the evidence at his disposal – whether material or testimonial and, as usual, after the end of the inquiry –, the historian cannot present to his public the witnesses or the facts themselves. who witnessed. From this appearance of impartiality and veracity – regardless of whether real or simulated by the historian, critic of the reports and evidence that lead to the reconstruction of the past – the reader's persuasion will result.

 

the historian-judge

In the first part, “Inquiry and Proof in Legal Practice”, Butti examines in detail the structure of the Attic judicial process and the means of persuasion. It is a structurally fundamental part of his work, since, since the introduction, he warns that his effort aims to show how the image of legal activity reappears in the field of historical research, less through the image of the “historian-judge” – in this case , the strategy is much more to place the public as a jury – than resorting to the use of “means of proof”, and means of proof relating to the past. There is the point that is common to both fields, and is focused, from a legal angle, in the first part of the book.

At the end of the first two chapters of this section, the reader is not only informed of the investigative and evidentiary procedures admitted in the courts, but is also in a position to form a very rich picture of the structure and role of the Judiciary in fifth-century Athens. of the action or the defendant, when appearing personally before a popular court, composed of ordinary citizens and coordinated by magistrates whose role was essentially administrative and executive, but not deliberative, had to prove, before their oral defense, the veracity of their speeches , making the jury present (and criticize) the testimonial and material evidence, being allowed to use “básanos” (slave torture), in order to obtain confession or testimony.

In this peculiar form of judicial regime – contrary to the constitution of a body of jurisprudence, based on the idea that the truth about the facts that occurred should emerge from the regulated debate between the parties in dispute, before the judge, in the public space of the court, incumbent on the accuser and the accused to personally assume the defense of their rights - the logographoi, speechwriters, specialists in legal practice, who were in charge of preparing their clients, guiding them as to the legal resources they should use and providing them with the appropriate arguments to guarantee victory in the process.

It was the logographers who possessed procedural knowledge (types of evidence, models of speeches, effective strategies for different situations) that served to instruct ordinary citizens who appeared before the jury, although this knowledge had no value in itself. legal, given that, in each case, the jury itself decided, in a sovereign way, on the merits of the action and on the sentence. The activity of logographers can only be understood in a culture that dominates writing, a condition sine qua non for the institution of historiography.

Although the jury was sovereign, there was a tradition in the Athenian courts of admitting a series of means for the establishment of past facts and for the defense or criticism of acts known to all, from which a legal normativity emerged tacitly. Theoretically, this series of means did not depend on the rhetorical skill of the speaker or on his knowledge of the most effective techniques of legal persuasion that the logographoi and the rhetoricians try to constitute. Paulo Butti makes emerge, little by little, the rules that allow the constitution of a rational discourse about the past. This is how a “general probative function” is constituted, which allows understanding the presence of some rhetorical terms that occur both in the work of historians and in the practice of courts.

 

Verisimilitude Argument

The second part, “Proof in Historiographical Discourse”, will seek to examine to what extent these general proof procedures reappear in Greek historiography.

In legal practice, it is necessary that a version of the facts be confirmed with the presentation of a testimony (marturion), and what one reads in Herodotus, and particularly in Thucydides, is that the investigation process, for them, requires the critique of testimony, a procedure that will give the historian's discourse its value of objectivity and its power of persuasion. With the use of “indications” or “evidence” (tekmeria), past facts can be established (or rather, saying with Herodotus and Thucydides, “discovered”), even if the historian has not had access to them. This was also one of the means of proof present in legal practice.

And more: the judicial rhetoric already demanded that the versions of the facts presented in the speeches of the adversaries be proved by the use of the argument of verisimilitude (I'm eikos), considered by Aristotle in the Rhetoric, the rhetorical proof par excellence. This was the last requirement to which the presentation of facts in court had to be submitted and, in the historiographical field, the argument of verisimilitude will be the instrument for criticizing divergent reports or for verifying the truth of the facts.

Testimonial evidence, indications and the argument of the necessary verisimilitude of the report were, thus, the three dimensions of that “evidence function”, exercised both in the sphere of legal practice and of historiographical investigation and that, later, Aristotle will try to systematize.

This vanishing point – the probative function –, to which legal practice and historiography point, receives its last outline in the last part of the work, “O Limite da Imagem”, in which Butti starts to refine some of the conclusions he reaches in his work, because, although legal practice and historiography point to a general probative function, the fact is that it is performed in different ways in these two domains.

The central point of the difference between the ways in which the probative function is carried out, in one and another domain, is precisely in the idea of ​​“investigation” or “inquiry”, which founds the very image of the historiographical work in Herodotus and Thucydides, but does not have place in judicial activity. "History" in Herodotus is as much the result of the investigation as the investigation itself. This is how the image of the historian who travels, investigates, witnesses and gives his personal testimony, guaranteed by the “autopsy”, with his research report being the very content of his work.

In his investigation, in turn, Thucydides carefully chooses the information, and always makes his critical effort clear to the reader, especially when, in the narratives or in the antilogies, he presents discordant versions and, through the antithesis logos/ergon, opposes what is said in public and the truth that words hide. His instrument in this work of unveiling the truth is always the argument of verisimilitude, even when the historian was a witness to the events. Here the “truth function” is seen as critiquing information. Hence his distrust of testimonial elements and, in particular, of information transmitted in assemblies. It is a critique of the public function of discourse which, in order to indicate the veracity of the narration, employs terms that connote rhetoric and legal practice.

Butti's conclusion is that historiography, at the very moment in which it constitutes its field through the use of heuristic and rhetorical means, has refused the “rhetorical” presentation of facts. Truth and public space, he continues, are incompatible in Herodotus and Thucydides, or at least contrasting: through rhetoric, but against rhetoric, Greek historiography thus exhibits an option for a Platonism before la lettre.

A surprising conclusion if we contrast the activity of the ancient historian, committed to achieving objectivity beyond evidence and testimonies, with that of the contemporary historian, so concerned with “relativeizing points of view”, “dissolving objects” and always “calling into question ” their theses. Butti's book is not only a rigorous (and at times tiring, precisely because it is rigorous) walk through the paths trodden by the legal practices and historiographical forms of classical Greece, but above all an invitation to reflect on what contemporary historiography has lost, against the way of making history of the first historians of the West.

Anna Lia Amaral de Almeida Prado (1925-2017) was a professor of classical literature at USP.

Alberto Alonso Muñoz he holds a doctorate in philosophy from USP and a judge at the São Paulo Court of Justice.

Originally published in Folha de S. Paulo\Journal of Reviewson July 10, 1999.

 

Reference


Paulo Butti from Lima. L'Inchiesta e la Prova: Immagine storigrafica, giridic practice and rhetoric in classical Greece. Turin, Einaudi, 202 pages.

 

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