LEWIS, R. G., The Procedural Basis of Sophocles' "Oedipus Tyrannus" , Greek, Roman and Byzantine Studies, 30:1 (1989) p.41 The Procedural Basis of Sophocles' Oedipus Tyrannus R. G. Lewis T HE IDEA that Oedipus Tyrannus is in some sense 'court room drama' or even a 'detective story' is no novelty. 1 Juristic features abound in the vocabulary, the style of dis­ course, the agonistic dialogue, and various rhetorical devices and commonplaces, all plainly paralleled in the forensic and the­ oretical work of the Attic orators.2 On these matters this article has little to offer. It is more concerned with formal elements­ that is, with the Attic legal procedure that Sophocles adopted as the framework of the play to carry forward the action in a way readily comprehensible to his fifth-century Athenian audience. The vehicle was particularly suitable, since the vast majority would certainly have ample familiarity, mostly at first hand, with the city's judicial apparatus.3 That very fact, together with the un­ doubted critical tendency of the alert Athenian spectators, makes it unlikely that Sophocles was simply content (or could afford) to use any convenient hotch-potch of disparate juristic ingredients. Rather, we should expect to find the essential basis of his exposition in a single process identifiable in Attic law; and if the poet needed to modify or amplify it with any other, the t Exponents of the theme (cited hereafter by authors' names) include B. M. W. KNOX, Oedipus at Thebes (New Haven 1957) 78ff, and G. GREIFFENHAGEN, "Der Prozess des Oedipus," Hermes 94 (1966) 147--76 (further literature at 148f); cf R. D. D AWE, Sophocles Oedipus Tyrannus (Cambridge 1982) esp. 13. G. Kremer, Strukturanalysen des Odipus Tyrannus des Sophokles (diss.Tiibin­ gen 1963), and W. Schadewaldt, Hellas und Hesperien (Stuttgart 1960), cited by Greiffenhagen, were not available to me. 2 See in particular Knox 84-98; Greiffenhagen passim. 3 Knox 78ff; cf his argument at AJ P 77 [1956] 133-47 for a date after the great plague at Athens (430/429) and before alleged parody in Aristophanes' Knights of 424-probably 425, in his view; further discussion and literature in R. M. Newton, GRBS 21 (1980) 5-21. The exact date does not affect the pres­ ent argument. 41 LEWIS, R. G., The Procedural Basis of Sophocles' "Oedipus Tyrannus" , Greek, Roman and Byzantine Studies, 30:1 (1989) p.41 42 THE PROCEDURAL BASIS OF OEDIPUS TYRANNUS combination should be possible and plausible not only dramati­ cally but also in juristic terms. Only if these requirements can­ not be met need we or should we fall back on the essentially un­ satisfactory hypothesis of a melange devised solely to suit the play and fictionally conflating components in a way that would have been impossible in the legal usages of the age in which it was written and presented. The first and most obvious theory to consider is that the pre­ ponderant formal influence on the play's exposition is the BtKTl q>ovou, the Athenian suit for homicide brought by kin of the de­ ceased before one of five courts (each for a different kind of kill­ ing) under presidency of the archon basileus. 4 The case is founded on undoubted allusions in Sophocles' text to this process, but on several counts it fails. The historical process shows features entirely lacking in the play. Litigants at the open­ ing of the hearing-in-chicf of a BiKll cpovou were required to swear oaths over special sacrifices to the veracity of their pleas, and the winner to the correctness of the eventual verdict. Witnesses too had to swear not merely to the truth of their testimony but also that the defendant was or was not guilty.s The only 'evidentiary' (as opposed to 'promissory') oath in the play is that of Creon, to his innocence of treason. 6 An Athenian trial-court could take testimony from tortured slaves, but only in a report from the torturers and not from slaves in person. The shepherd's evidence, strictly speaking, should therefore have no place in a BiKll. Perhaps that is unduly pedantic and the 4 See in general, amongst others, D. M. MACDOWELL, Athenian Homicide Law in the Age of the Orators (Manchester 1963), and The Law in Classical Athens (London 1978) 108-22; A. R. W. HARRISON, The Law of Athens II Procedure (Oxford 1971) 36-43; R. J. BONNER and G. SMITH, The Administra- ~ tion of Justice from Homer to Aristotle II (Chicago 1938) 192-231 (all cited by authors' names). The chief advocate of OllCTl cp6vou as the basis of the play is Knox, esp. 82ff; see also Greiffenhagen 151 ff (variation). 5 Evidence for oaths of litigants and witnesses in MacDowell, Homicide 90ff; cf. Law 119; Bonner/Smith 165-74. 6 OT 644f. On evidentiary and promissory oaths (respectively, 'that X is or was the case'; 'that Y shall be the case'), Bonner/Smith 14M, Harrison 150ff. LEWIS, R. G., The Procedural Basis of Sophocles' "Oedipus Tyrannus" , Greek, Roman and Byzantine Studies, 30:1 (1989) p.41 R. G. LEWIS 43 irregularity might be allowed on grounds of dramatic economy -but an irregularity it remains.? Again, no such court can dis­ pense with a jury, and it is doubtful whether the Chorus can be made to fill this role. For one thing, in the Attic courts juries were required to listen, not to speak. Neither can much weight be put on the suggestion that the Chorus in the second strophe and antistrophe of the first stasimon, where it voices bewilder­ ment and doubt over the evidence of Teiresias, mirrors a jury conferring.8 So far as we know, Athenian jurymen did not con­ fer but merely voted. True, there is no need to suppose that the passage shows members of the Chorus conferring at all, rather than simply expressing their collective reaction to the previous altercation between Oedipus and Teiresias. They are indeed trying to evaluate evidence and consider the validity of judge­ ment based upon it; but nothing shows that they must do that either in the capacity of jurors. Again, while Attic law allowed a form of 8iKll E'tat or some larger body of Areopagites or dicasts. 9 For the duty and right of kin (and perhaps no others) to prosecute by OiKll qx)vou, MacDowell, Homicide 8-32, citing the plentiful evidence and discussing problems, and Law 109-13; Harrison 76f; Bonner/Smith 209ff. For a magi­ strate initiating proceedings, MacDowell, Law 235ff, who thinks it may have been possible for the same official both to prosecute and to preside. For mur­ der, at least, an archon basileus on whom devolved the duty to prosecute might have waited until his year of office had expired, there being no time limit. LEWIS, R. G., The Procedural Basis of Sophocles' "Oedipus Tyrannus" , Greek, Roman and Byzantine Studies, 30:1 (1989) p.41 44 THE PROCEDURAL BASIS OF OEDIPUS TYRANNUS over, the historical OtlCT) c.povou allotted at most only two speeches each to prosecutor and defendant (and surely less where the defendant was unknown!), and while these might and usually did include production of witnesses and their inter­ rogation,lO clearly no amount of ingenious manipulation can make OT fit readily into this pattern. For these reasons it seems highly improbable that the OtlCT) c.p 0- vou provided Sophocles with the formal structure of this play. Nevertheless patently he did exploit sundry features of that process. A litigant had to be a citizen and (normally anyhow) kin of the victim: we duly find Oedipus-in full irony, of course-made to claim capacity to champion Laius in precisely these terms, by his adoption into the Theban citizen body and through his marriage with Laius' widow. 11 That will show that a OtlCT) c.povou is contemplated, certainly, but no more. The action also involved proclamation, both by the plaintiff and by the archon basileus who accepted the case for trial, of a curse on the guilty man, barring him from participation in 'ttl vOJ.1LJ.1a-that is, all aspects of public life, including religious observance-and Oedipus does indeed pronounce just such a curse. 12 In Attic law that was required even against an unknown and unnamed killer, against whom one variant of the OtlCT) c.povou could be brought, but almost certainly only after painstaking and sus­ tained efforts to identify him-which at this stage in the play have not yet been made.13 Besides, there is no reason why a curse of this kind on an unknown killer should not also have been used in somewhat different procedures, and some reason to suppose that it very probably was, as will emerge later. 10 MacDowell, Homicide 113ff, Law 118-120, cf Harrison 161. 11 See supra n.9, and Harrison 82-85; Greiffenhagen 153f; Knox 82 (Oedi­ pus' claims: 0 T 258-64, cf 245, 222). 12 236-48; Knox 82f; MacDowell, Homicide 24f; for 'ta VO.,UI.I.CX , Antiphon 6. 35f, 45f; Dem. 20.148, 47.69; Arist.Ath.Pol. 57.2; Pollux 8.90; Lex.Seg. 310.6-8. 13 Almost certainly (in this instance) a fair reflection of the actual laws of Athens is PI. Leg. 9.874 A-B: cav OE nSvEWe; .... EV a-o 'tle; ZtU 1ta'ttp. U1tO o~ cp9icrov KEpauvcp. On the court of the Areopagus. MacDowell, Homicide 39-47, Law 11M; Harrison 37ff. For the influence of Zeus on the trial of Orestes, Aesch. fum., esp. 17ff, 92, 365, 616-24, 797ff, 973. For one myth of how Arcs' Hill came to be so named, and for its role at Athens as a salutary reminder to avoid civic strife, Eum. 685-710. Not much weight can be put on Anon. Vito Soph. 4 as evidence that Sophocles was Aeschylus' pupil in any formal sense, but parallels in the surviving plays are not hard to detect. On the other hand, another myth (not necessarily entirely inconsistent with that in Aeschylus) derived the name of the Areopagus and the function of its council as a court for cases of homicide from the trial of Ares there by a divine tribunal for his murder of Halirrothius, son of Poseidon (Eur. El. 1258f, Apollod. 3.180, Panyassis ap. Clem. Alex. Protr. 22.26 Stahlin, Dem. 23.66). 19 OT 203-15. Note especially 'taoo' £1tcOVUIlOV yilc; (of Bacchus), neatly am­ biguous between Thebes and the theatre of Dionysus at Athens. One might further reflect that the City Dionysia were attended by the allies of the Delian League, and it may not be entirely fanciful to see an appeal to their loyalties in the reference to Delian Apollo and probable allusion to Cimon (if not also EI­ pinice) in the opening strophe, very possibly echoed in the closing antistrophe where the Dclian twins Apollo and Artemis reappear, at least one in associa­ tion with Lycia, a further possible allusion to Eurymedon. Moreover, while in terms of the drama at Thebes Ares seems to be identified with the all-consum­ ing plague there, an Athenian dimension could readily make it the demor- LEWIS, R. G., The Procedural Basis of Sophocles' "Oedipus Tyrannus" , Greek, Roman and Byzantine Studies, 30:1 (1989) p.41 R. G. LEWIS 47 Omission from the parodos of any reference to the other two homicide courts of Athens is no surprise, for neither was rel­ evant. That held at the Prytaneum merely pronounced verdict and sentence against an unknown killer after search for him had failed, and that held EV P£O:t'tOl concerned an exiled killer ac­ cused of a second intentional murder. 20 Nor is this reading viti­ ated by a second apparent difficulty. The public testimony al­ ready given by the servant who escaped from the scene of Laius' death-that it was done by 'brigands', and so plainly cp6- vo~ b(Qucrto~-is already known to the audience (OT 122f), and presumably also in the drama to the Chorus. One might there­ fore claim that reference to the Palladion and the Delphinion would be quite otiose, and therefore be tempted to reject the whole interpretation. But the Chorus, as it emerges later, in fact does not have much faith, if any, in the servant's story;21 its un­ certainty at this stage of the playas to whether the murder was intentional or not, or perhaps even lawful-that is, in historical Attic terms, which of the three possible courts would be the right one to try the case-is therefore entirely appropriate. More important for present purposes, these very doubts show, like Oedipus' eagerness to champion the dead Laius (135ff, 252ff), that while a btKTl cp6vou of some kind is indeed in pros-. . pect, none IS yet In progress. II. TIPOOtKUOlU If the play merely envisages a murder trial before a jury with­ out its action being essentially based upon that process, we have alising concomitant and indeed part cause of the Athenian plague-epidemic in the earlier 420's-namcly, the Spartan invasions of Attica, to which no resis­ tance was offered (? 1 90: axcxAKo~ a01ttOwv), while Athens hoped to win at sea (194-97: ch' e~ /lEYCXV eUAa/lOV 'A~.LtcrJ.ux to appoint ~ll'tll'tai and give them their terms of reference-probably drafted ad hoc for each occasion.32 In 415 it appears that the boule had overriding powers of supervision33 and that the ~ll'tll'tat might be and perhaps had to be ~OUAEU­ 'tat,34 of unknown number and apparently charged with the task of recording names of persons accused,35 and examining by £AEYXO~ the J.1llvucrn~ or J.1llvuJ.1a'ta and dcraYYEAtat. 36 The re­ sults were sifted to decide which cases were daaycOytJ.1ot, and the Cll'tll'tai reported to the boule, which proceeded-appar- ently by 1tpO~OUAEUJla and ,V'rlq>toJ.1a-to organize or promote prosecution and trial in due form. 37 Information was solicited by proclamation of rewards (J.1"vu'tpa) and immunity from pun­ ishment (li8na), except of course for false testimony, which in 415 at least was punished by death (Andoc. 1.20, 65f). The evi­ dence of metics was admissible, and so was that of slaves-ap­ parently even in person, which was not the case before a di­ castery. The latter were in some circumstances subjected to tor­ ture,38 in others not. Otherwise the 'rules of evidence' appear to 32 There is apparently some variation of procedure, and certainly of course in terms of reference, from case to case. For institution by ",Tt Oe 0i1~<;<> 'troY 'A811va{rov aa~evo<; A.a~c.Ov, ro<; cpe'to, 'to aa­ m; that occasions sr,'tll(n~, as distinct from 1l1lVUavctl, of positive affirmation; cf xct'taq>ctvctl , of positive affir­ mation or attribution, opp. ctVctt, in Aristotelian and later logic, surely de­ rived from earlier less specialised usage, very possibly forensic [cf. xct'tTlYOPEtV Xct'tctYOPEUElv]-as it happens, however, unattc3ted except for this line of Soph­ ocles); Thuc. 6.60.2; PI. Leg. 879A; Oem. 23.40; Arist. Arh.Pol. 57.4. At aT 411 YE"(pa'l'Ollctt is usually taken with Hesychius as a reference to a list of metics under a patron; perhaps rightly, but one might also recall that in t;lj'tT]£t;; 61.1, 'to 'twv 'Ep­ llwV ... actq>i:~ cxnv. C.1 Andoc. 1.43,58, 1t'U8fa8m. LEWIS, R. G., The Procedural Basis of Sophocles' "Oedipus Tyrannus" , Greek, Roman and Byzantine Studies, 30:1 (1989) p.41 R. C. LEWIS 55 (?cf. 582, 848, 1063, 1059, 1229) and especially where Oedipus undertakes to investigate (cpayw, 132; cf. cpayouJlE8', 146, overtly different, but with a hidden second meaning iro~ically close to 132), and his agonised OO'tl~ 1tEcpaOJlat cpu~ 't' acp' roy OU xp1\ K'tA. (1184). More of the technical parlance of Attic law emerges when we return to detailed discussion of the play's procedural substra­ tum. On receipt of Apollo's and Creon's advice to look into the murder, Oedipus puts a few preliminary questions to establish whether there are any witnesses already known, and the rea­ sons for previous failure to pursue the matter. This leads him to a decision and declaration of intent: he will assume that task him­ self in the interests of the deceased, of Thebes, and of Apollo.49 There has of course been no \jfllcptoJla of the 31\Jlo~; in the play the king's authority is sufficient substitute. His next move is to summon the Theban populace to hear his proclamation, which opens the first episode (144, &AAO~ 3£ K&3Jlou AaOY Cil3' a8pot­ ~Etw). Meantime comes the parodos. As has already been suggested (supra 47f), after invoking the principle of law it envisages a 3ixll cp6you, but leaves its precise type a question still to be resolved. Equally unclear at this point is the character of the Chorus itself. Although their entry appears to be occasioned by the king's or­ ders for a general assembly, it is unlikely that a mere fifteen xo­ pEu'tai are supposed to constitute the whole Theban people. Rather, they will be its most prominent citizens. The ancient list of dramatis personae, for what it is worth, designates them 'YE­ pOY'tE~, and they are usually and perhaps best regarded as some kind of 'YEpOUOta or boule, rather than mere bystanders, a view unsupported early in the text but perhaps arguable from later allusions to them as XcOpa~ &yaK'tE~ (911), 1tPEO~Et~ (1111), yi\~ Jl£'Yto'ta 't1\03' ad 'ttJlcOJlEVOt (1223), and (former) advisers (13 70).50 Whether Sophocles intended them to function as a 49 Preliminary questions and answers at 112-32; decision to reopen enquiry at 133, an' t~ {mupxTic; u{)8tC; uu"[' £rw A.t\)' E't1 seems to require. 51 Quoted 60f infra. The ~l1'tT\'ta{ of 415 either were (in effect) a committee of the boule or at all events reported to it (supra nn.34, 37). In the Harpalus affair (Deinarch. I, 2) the Council of the Areopagus constituted the investigat­ ing board. 52 Proclamation in aT: 223 (1tpoq>Cl)Vro), 350, 450, 1381£. For parallels in 415: proclamation, Andoc. 1.40; rewards and &5£la, I, II, 12, IS, 27, 34, 40, 45; Thuc. 6.27.2 (t'lfTlq>laav'to ... J.lllVUElV a5Eroc;), 60.3. 53 aT 23~3. On 'ta VOJ.llJ.la, supra nn.12, 23. LEWIS, R. G., The Procedural Basis of Sophocles' "Oedipus Tyrannus" , Greek, Roman and Byzantine Studies, 30:1 (1989) p.41 R. G. LEWIS 57 the first opportunity to excommunicate and curse the culprits -that is, on instituting the ~"tll(JtC;, without waiting for any re­ sultant trial. It could also be expected that an historical ~1l't1l't"<; on appointment would indeed swear not to protect any guilty person. True, Oedipus' ensuing claim to kinship with the mur­ dered man is indeed like that of a would-be prosecutor, as Greiffenhagen maintains, but he declares his immediate purpose and function perfectly clearly (265f, 1(i1d 1tavt' a o{~()\) 'tOO' dm:iv; and on Teiresias, 284ff and esp. 297, 'CE 1tp<>a x'tepoeoo' iiA8e Kopa XO'tE, Kal oocpOC; wcp81l ~aoavcp 8' aO\mOAtC;· 't41 ax' EJlUC; cppevoc; OUXo't' ocpAilon KaKlav. 59 In the second episode Oedipus seeks to reinforce his cross­ suit against Creon, that of conspiracy with a view to usurping the kingship. In Attic law judicial conspiracy to secure wrongful conviction is ~ouAe'UOtC;) and to suborn false witness is KaKo'tEX­ viat-precisely what is here alleged verbatim against Creon. 60 It 58 Andoc. 1.65f, cf 7, 20. In the play, attempted EAeyxO~ in 378-403, also in­ corporating the counter-charges against T eiresias and Creon, referred to as such by Creon at 514 KU'tTlYOPc'iv; cf 520 ~T\/llU, 526 ",e'\)Oe\~ A.6yo'\)~, 529 KU't­ T\YOPe\'tO 'to'\~l1tlKAT\/lU 'tou'to /lOt>, etc. 59 It is worth noting that il<;. It would seem that he still thinks that the elimination of Teiresi­ as' allegations does not vitiate the enquiry or remove the need to pursue it, Jo­ casta's reasons for doubting the oracular authority of Apollo notwithstanding LEWIS, R. G., The Procedural Basis of Sophocles' "Oedipus Tyrannus" , Greek, Roman and Byzantine Studies, 30:1 (1989) p.41 R. G. LEWIS 61 For present purposes, fortunately, there is no need to discuss the large problems posed by the great second stasimon at the heart of the play. In terms of the action at Thebes it is enough to observe that the essence of it is belief in the eternal validity of divinely ordained moral law, and that the Chorus' insistence upon it, despite the doubts of many critics,69 is entirely relevant to the drama. By now it has emerged that there is some like­ lihood that Oedipus' victim was Laius. Worse, although he has not abandoned the sllt11cHC;;, he has assented to Jocasta's dis­ missal of prophecy. This clearly could lead to his repudiation of divine authority altogether, and with it of any need to suffer the stipulated penalty, should he be shown to be the guilty man: complete subversion of the principle of law, and tyranny in­ deed. This possibility Sophocles continues to exploit in the next epi­ sode. It may have been allowable in fifth-century Athens briefly to suspend proceedings at a hearing-in-chief, whether for O(K11 t:'tat operated on a similar basis is not known, but likely enough. LEWIS, R. G., The Procedural Basis of Sophocles' "Oedipus Tyrannus" , Greek, Roman and Byzantine Studies, 30:1 (1989) p.41 62 THE PROCEDURAL BASIS OF OEDIPUS TYRANNUS to have evidence relevant to the trial. It is very much easier to fit the testimony of the Corinthian messenger into the con­ veniently elastic procedure of the ~il'tT1CJtC;, which by its very nature would be forced to hold hearings, adjourn, and recon­ vene for more as witnesses became available or came forward. True, in the play no obvious formalities mark resumption of the ~il'tT1CJtC;, but resume it certainly does.?1 In a few lines the news of Polybus' death takes an exulting Oedipus into almost total scepticism of divine oracles, and there remains only a last shred of faith to prompt scruples about his supposed mother Merope, which persist against Jocasta's advice to abandon them72-and bring him to eventual disaster. Intent on allaying Oedipus' fears of incest with Merope, and so of return to Corinth, and on thus retaining his own chances of a handsome reward, the messen­ ger reveals that he had received the king as an infant, ankles pierced and tied, from a servant of Laius in the mountain borderlands of Cithaeron. That is enough for Jocasta, who of course already knows that the servant in question is the man to whom she gave her infant son for exposure: she leaves to hang herself, her only recourse on failing to dissuade Oedipus from persisting with his enquiries. 73 By now it is evident that the focus of the ~il'tT1CJtC; has shifted from identifying Laius' killer to the parentage of Oedipus. As it happens, a comparable shift also occurred in the remit of the in­ quisition of 415, originally set up to investigate the mutilation of the Hermae, but later charged with taking evidence of any other aCJE~T1J.La (Thuc. 6.27.2). The play therefore shows no divergence from the proposed model in this respect. Although at this stage Oedipus already has enough information to be able to infer the truth with a fair degree of certainty, for the ~il'tT1CJtC; to be complete and to put the matter beyond any reasonable doubt interrogation of the servant is still indispensable. It re­ mains true that his evidence might still clear the king of Laius' murder, and might still show that the infant that he gave to the 71 Presumably with Oedipus acceding to Jocasta's request (952f), a.lCOUE 'tavopO~ 'tOUOE, lCat OlC01tEt lCA:UCilV 'to. oiJ.l.v' 'iv' filCH 'tOU Owu J.l.avnuJ.l.U'ta. Ad­ journments in 415 were frequent, e.g. at Andoc. 1.15. 72 977-83, 'ti 0' UV ~ vii>v cl1ttXel]~ OUOK4:l]~ 't' cl1tc.OA,£'tO. 7tpo<; au'tov aJ.L7tA,aKlll.UX'tU>V Ot7tA,n<; 0"'£\<; clpal;a~ au'to<; au­ 'toupyii> Xtpt. Here at OT 1213, aKOVe' is not of course a reference to qOvo; clKOUO"lO~ but either to Oedipus' remorse on discovery or just possibly to his long fight against it in looking for any chance of escape. 77 On cl1taYU>rTl in general, and in particular for KaKoupyta and (probably) homicide, etc., see Harrison 222-29; Hansen, Apagoge, Endeixis and Ephegesis (Odense 1976) esp. 9-108; and the other moderns cited supra n.75 .. Oedipus' re­ quest for a1taYU>Yl} is neatly paralleled in Creon's plea for similar treatment on confessing guilt for the death of Eurydice at Ant. 1317-25: JlO\ JlOt. 'taO' OUK aA,A.oV ~po't&v Elln~ <'xpJlOOtl 7to't' E~ ai'tta~. EyOO yap 0' EyOO 'Kavov, ro Jl£AtO~, £yOO, PE'Yll have been merely the formal vehicles.84 UNIVERSITY OF EDINBURGH December, 1988 0" d9£ (0'£) jlTl1tO't' d06jluv); 1356, 9£AOV'tl KajlOl. 'toU't' (Xv ~v; 1367f, OUK 010' 01tOOC; 0'£