This is a post in a series examining how ancient rhetorical techniques shape contemporary public life.
Under the George W. Bush administration, embassy personnel died and privately hosted White House emails were lost, all without investigation by either party in Congress. So why are Republican members of the House of Representatives investigating the same activity under Obama, focusing entirely on Hillary Clinton’s term as Secretary of State? Last week saw Hillary testifying before a Congressional committee about the Benghazi incident, and the investigation into her use of private email servers has dragged on for months.
Neither investigation is motivated by the pursuit of truth and justice, but instead by Republicans’ desire to discredit a potential Democratic presidential candidate. Fox News and two Republican congressmen involved in the Benghazi hearings have admitted that their investigation is a mere political maneuver. Republicans have been using these tactics at least since Bill Clinton’s impeachment hearings. But Democrats are not above it either. During George W. Bush’s term, Democrats in the Senate held hearings sounding the alarm about the sale of US port facilities to a company from Dubai. It was easy to make selling US infrastructure to a Middle Eastern company look like a threat to national security. The deal turned out to be a routine, legitimate business practice, something that the Senators who publicly opposed the deal, among them Hillary Clinton, must surely have known. Just because there is legitimate legal authority behind an investigation doesn’t mean we can be sure it is worthy of our attention and outrage.
It is easy to see this as a symptom of our degraded public trust. Corruption has corrupted even the processes by which corruption is found out. How can our democracy recover from such a sorry condition?
But there is grim comfort in the knowledge that it has ever been so. The use of legal processes as weapons in the power struggles of the ruling class is a practice as old as democracy itself.
In ancient Athens, members of the political class regularly deployed two legal methods to discredit, imprison, impoverish, or exile their enemies. One was called ostracism, and it has no parallel in the American system (though perhaps it should). The other is called political prosecution and we see it all the time in American politics.
Ostracism is the origin of our word “ostracize,” which means to banish. Once a year, the assembly of Athens would vote on whether or not to hold an ostracism. If one was called for, all eligible voters were invited to write on a pot sherd (called an ostracon) the name of the citizen they wanted to banish. If at least 6000 ostracons were tallied, the citizen with the most votes against him was banished for ten years. They suffered no loss of property and could return without shame. The practice was by all accounts peaceful, if not always above board. Middens of ostracons have been found with names written in a single or just a few handwritings, meaning that they were probably passed out en masse, rather than cast as the result of individual voter choice. Only one ostracism was allowed per year, and only one “winning” citizen, if any, was exiled. Ostracism’s aim was ruthless and simple: remove your enemy from public life, period. Once an ostracism was over, it ceased to occupy the attention of the body politic. It may not have been just, but it was a contained, incontestable way to remove villains or settle a public battle of wills. It cauterized the festering wound of controversy. When I compare ostracism’s cleanliness to the stream of noise generated by the manufactured scandals of American political life, I half wish we had our own version of the practice.
After the first quarter of the 5th century, ostracism was abandoned in favor of another process, “political prosecution,” i.e. bringing up trumped up legal charges against your enemies. Anybody who could present what seemed at first glance a convincing reason to haul somebody into court was allowed to initiate legal proceedings. Just before political prosecution became common, juries in Athens had been increased in size from a handful of fellow citizens to about five hundred. A court appearance went from something we would recognize as a legal proceeding to something more like a live debate in a political campaign, but with real consequences at the end of it.
Just suing your enemies had distinct advantages over ostracism, from the perspective of a anyone unscrupulous enough to use it. In comparison to the rare, uncertain chance of provoking a successful ostracism, political prosecution required nothing more than a hasty case against your enemy, and you could do it as many times as you wanted. The consequences for your enemy were sometimes worse than ostracism, depending on the charge you levied: loss of prestige, time, property, privilege, or even life. Just having to defend yourself in court was an automatic drain of resources for your enemy.
Political prosecution became so common that a new profession, called logographoi, arose to write speeches to be used in court. The accused had to speak for themselves, making the ability to manipulate an audience with one’s words and manner of speaking an essential survival skill. Juries were randomly selected and prone to convict, especially if the accused were rich and famous. The court of public opinion and the court of law were more or less the same. Hillary Clinton (on a good day), Bernie Sanders, Barack Obama, and Donald Trump would probably fare quite well before a jury of 500 randomly selected Americans. So would Martha Stewart, I imagine. George W. Bush, Dick Cheney, and Richard Nixon would probably have fared quite poorly if forced to think on their feet or even just read a speech before a jury of average Americans.
U.S. corporations sue one another all the time in pursuit of combat rather than justice. Imagine if the CEOs and Chairmans of the Board actually had to speak in court in defense of their property, liberty, and life. Frivolous law suits would be less common, I’d imagine. And if not less common, at least less drawn out.
Ancient legal practices like trial by single combat, sortes Biblicae, or ostracism seem less bizarre when you consider the great advantage of decisiveness that they carried, not to mention satisfying spectacle. Once the oracle has spoken, the shards have been cast, or your enemy lies dead and bleeding at your feet, the debate is once and for all over.
You’ve got to hand it to the ancient Greeks. As with so many of their inventions that we inherited, they did things more magisterially, decisively, with greater hazard and glory than we do, including political corruption.
The Art of Rhetoric by Aristotle, introduction by Hugh Lawson-Tancred, Penguin Classics edition.
“Rhetoric” from Encylopedia Britannica, vol. 19, Edition: 1967
“Ostracism,” from the Oxford Classical Dictionary, Hornblower & Spawforth.
Howatson, M. C. ed. The Oxford Companion to Classical Literature. Oxford, New York: Oxford University Press, 1898