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My schooldays, on reflection, were remarkable for an omission; that the schools I attended never alluded, so far as my memory serves, to alternative sources of knowledge. The obvious one was the world of books, accessible in the Dublin city public library system.

What lay behind that was the malign power of the Department of Education. “Education” was the process of adhering to the school curriculum laid down by the Department. This was a theft; theft of the word “education”. There were some things to be learned from following the curriculum, but many more to be found elsewhere.

To say what is an education is beyond this post, but to know something (indeed, a great deal) about the national legal system seems to this writer to be a required component of an education. Not that we should be able to, all of us, discourse on what is hearsay and what is not, or drive a High court judge to distraction with rambling cross-examination of witnesses as we run our very own constitutional challenge to some piece of legislation (not least because many lawyers do not know what hearsay is or is not, and rambling cross-examinations are standard).

No, indeed. We should, however, know what it would be like if we do find ourselves as a Plaintiff or a Defendant in litigation.

Leaving aside the fact that “litigation” covers a lot, there is a source of knowledge that might reflect the experience of a lawsuit. The source is Xenophon’s “Anabasis”, written 2,400 years ago.

It has no litigation in it. It is the story of what happened to a group of Greek mercenaries whose services were engaged by Cyrus the Younger in 401 BC. Ostensibly Cyrus was going to launch a military attack on Tissapharnes of Ionia. The Greeks were to be part of this attack. In fact, Cyrus intended to overthrow his elder brother Artaxerxes II , the king of Persia. “Anabasis” is also known as “The Persian Expedition” or “The March Up Country”.

So, when you set out on an expedition or start the march up country, it is very undesirable to be confused or ignorant of the purposes of the expedition, or march, or the country into which you are about to go, as Xenephon’s story shows.

Could the connection with litigation be clearer?

Xenophon knew in detail what he was writing about; he joined the Greek contingent and consequently found with his fellow Greeks, that, rather than fighting Tissapharnes’ forces, they were ranged against the superpower of the age; the Persian army itself. Nominally this was no equality of arms, but the Greek mercenaries were no pushover. As Cyrus knew, they had the benefit of sophisticated tactics and considerable experience in war.

Still, good advice is valuable as you start into war (litigation is not unlike war). So Xenophon sought advice from his friend, Socrates, (yes, the philosopher). Socrates recommended that Xenophon consult the oracle at Delphi. There are some questions only a god can answer.

In litigation, it is best to know what those questions are, so that, when the question is answered we can take the measure of the person giving the answer. (People who answer have, often, asked the question themselves. To ask those questions is also revelatory.

In the events that happened, it must have been the case that Xenophon adapted his speech to the formality that speaking to an august Oracle might induce. We can infer this because, on his return, Socrates berated him for asking the wrong question of the Oracle. Instead of seeking to learn what the future might hold, he asked to which god he should pray to secure his objectives in the venture with Cyrus. (He was clear in his mind what his objectives were; to make his fame and fortune. He was, after all, a mercenary).

In modern parlance this can be expressed as; rubbish in – rubbish out.

Cyrus eventually told the Greek soldiers the truth; they were, with his Persian troops, to attack the King’s vast army. By that time they were deep in Persian territory. That Cyrus was in the immediate family of the King was no longer a security; it was, in fact, a great offence. Regime change was on the agenda and they were the striking force in a palace coup.

They declined to proceed.

This was not based on a principle; it was based on an assessment of what was likely to happen to them if they clashed with the King. Consequently it was open to change by persuasion, and was changed.

Mature reflection revealed that the prospects of fortune were now enhanced. The stakes were higher and consequently the assessment of risk was warped.

That risk transpired in the death of Cyrus at the first battle with the Persian army.

Now, success was impossible; regime change was off the agenda. Nothing was left but to try to reduce the size of any loss. The King’s generals offered talks to this end. The Greek generals took them up on the offer. In modern parlance this would be expressed, possibly, as peace talks or even as mediation.

The Greek negotiators met the Persians in the Persian camp where they were seized and killed by the King. The reason was simple; the Greek generals were the negotiators. The temptation and opportunity to kill the Greek leadership was too much for the King and he took it. The Greeks responded by producing a new crop of leaders, including Xenophon.

They struck off northwards into mountainous territory unfavourable to the large army possessed by the King. The Black Sea lay to the north and offered the possibility of an escape to Greece by water. Again, this did not happen as planned or hoped, but the southern shore of the Black sea, when reached, provided a guide to the Greeks in their march west to their home and it was by this route and manner they got home.

As a metaphor for litigation, clearly Cyrus was the client. Not unusually for clients he failed to disclose very important information. He also disabled the Greeks’ judgment in military matters by weighting the balance when it came to decide whether to plunge into Mesopotamia, not that the Greeks were not also at fault. It’s easy to dream of riches, or even possess them, when theft and fraud are on the agenda.

Again, Cyrus and his project were not deserving of the allegiance of the Greeks. Only if he were successful would they be assured of full payment. This was a “no win; no fee” arrangement with a vengeance.

For the Greek generals the price was very high; they paid with their lives. What they regarded as a matter of business, the King took very personally. Alternatively, they lacked experience of the “real politik” required to hold a kingdom together; a King needs to think of the next challenge and deter that challenge now, before it appears. Artaxerxes II needed to ensure there would be no escape for anyone who challenged him. He had to destroy the army of Cyrus and all its soldiers. That the Greeks would have no qualms about working for him was not a consideration. They and their talents were not indispensable to him.

Mediation and settlement were not options. It was a fight to the death and there were no restraints. As usual, there was no equality of arms and, in a sense, the issues were trivial; who, even then, besides themselves, cared whether Artaxerxes II or his brother Cyrus was the king of Persia?

One Comment

  1. I must have fallen asleep when we covered the misadventures of Xenophon and Cyrus in my Legal Systems lectures.
    I wonder what your thoughts might be on the merits of Philip of Macedon’s approach to waging strategic warfare versus his scion Alexander’s philosophy of conquest and how that might be applicable to the honourable exercise of legal rights and duties?