An Introduction to the Athenian Legal System
Victor Bers and Adriaan Lanni
Yale University and Harvard University
Demosthenes 54, Against Conon
“In the criminal justice system, the People are represented by two separate yet equally important groups: the police, who investigate crime, and the district attorneys, who prosecute offenders.” In the classical period, roughly the fifth and fourth centuries B.C., Athens, a city notorious for its vigorous judicial system, had no comparable legal personnel. Though a small group of men became expert in the workings of the lawcourts, every player in the system–litigant, presiding magistrate, juror– was fundamentally a layman. And though a man might be required to answer charges brought against him, nearly every other participant in the process did so as a volunteer.
These features give a populist cast to Athenian law consistent with what one might expect from the West’s first large-scale direct democracy. After all, the Athenian government relied almost entirely on ordinary citizens selected by lot to fill the numerous magistracies of the city (the major exception was election to the board of ten generals). Most important, citizens voted in large assemblies on nearly every decision of the Athenian state, from the making of war and peace to honoring individuals with a free dinner (see Blackwell on Assembly). In fact, Aristotle, no enthusiast for democracy, insists that the lawcourts, whose juries were manned by ordinary, lay citizens, are an indispensable component of democratic government. Nevertheless, one hears little of law in the standard encomia of Athens for its invention of democracy. On the contrary, the most well-known example of Athenian justice is an outrage: the trial and execution of Socrates. Athenian law and lawcourts get bad press. Much of the blame for the poor reputation of the Athenian legal system falls on its amateurism, especially as compared to Roman law.
In this world with no shingles hanging out to advertise professional advice for a fee, how did a male citizen with a grievance he wished to pursue by legal means or a man who found himself under legal attack select and implement a course of action? We take a male citizen as our example because individuals in other status groups had a more limited right to engage in litigation in Athenian courts. A foreigner could initiate a suit in commercial cases or in other types of case only by special dispensation of the assembly. The standing of resident aliens, known as “metics,” and slaves to bring suit has been the subject of some debate among scholars. It seems that metics could pursue at least private claims, but may have been otherwise restricted in their legal capacity as compared to citizens. With a few exceptions, slaves could serve as neither plaintiffs nor defendants; when a slave was involved in a dispute, the case was brought by or against the slave’s owner. Similarly, women were forced to depend on their male legal guardians to act on their behalf in the legal sphere.
Here, we outline and illustrate the structure and procedure of the Athenian legal system, giving an overview of topics treated in detail in other lectures. For the most part, we will be drawing on the lawcourt speeches, the principal source of evidence for Athenian law, along with legal inscriptions, the occasional passage in comic plays, and the writings of Plato and Aristotle. To be sure, the roughly one hundred forensic speeches that survive are problematic sources: we almost never have speeches from both sides of a legal contest, we rarely know the outcome of a case, and citations of laws and witness testimony are generally omitted or regarded as inauthentic, later additions. Moreover, our surviving forensic speeches were nearly all written for use by wealthy litigants (see Orator Biographies). This may mean either that Athenian litigants were normally people of the upper class, or that our sample is skewed: court appearances by men too poor to afford the expense of an expert speechwriter (logographos see Glossary) would leave no trace in the speeches considered good enough to publish, preserve, and sell for study.
To start with the most urgent sort of situation, consider a man physically attacked on the street. The speaker in Lysias 3, a man involved in a lovers’ quarrel–the love object was a boy named Theodotus from the town of Plataea–tells how he and his companion were jumped by his opponent and assisted by passersby:
The young man ran into a fuller’s shop, but they charged in and started to drag him off by force. He began yelling and shouting and calling out for witnesses. Many people rushed up, angry at what was happening, and said that it was disgraceful behavior. My opponents ignored what they said, but beat up Molon the fuller and several others who tried to protect Theodotus. Lys. 3.15-16.
Notice that Theodotus does not call for the police, and the bystanders do not hesitate to “get involved” in his behalf. There was, as said, no police force to prevent or investigate crime (the closest thing to police in Athens was a band of slaves from what is now southern Russia, the “Scythian archers,” whose primary function seems to have been crowd control). Theodotus calls on those who happen to be present both to protect him from harm and to serve as witnesses if the scuffle results in a trial. It is also a notable difference from our experience that nobody was arrested; if one or the other party decided to bring legal action, he would be responsible for delivering the appropriate summons to his opponent at a later time.
Or one might know ahead of time that an action could result in litigation, as for example, the payment of a debt or, more colorfully, the killing of a man in bed with your wife. In such situations, men would gather a group of kin, friends, or neighbors both as physical backup and as potential witnesses in court. In On the Murder of Eratosthenes, the speaker, Euphiletus, is defending himself on a charge of homicide after killing his wife’s lover. He argues that his action was sanctioned by the lawful homicide statute, which provided that a man who catches an adulterer in flagrante delicto may kill him with impunity. (Demosthenes 23.53) When a loyal servant informed Euphiletus that the adulterer had entered his wife’s bedroom, he does not immediately confront the intruder but rather rounds up a posse to attest that Euphiletus found Eratosthenes lying with his wife should he later be prosecuted for homicide:
Eratosthenes, sirs, entered and the maid-servant roused me at once, and told me that he was in the house. Bidding her look after the door, I descended and went out in silence; I called on one friend and another, and found some of them at home, while others were out of town. I took with me as many as I could among those who were there, and so came along. Then we got torches at the nearest shop, and went in; the door was open, as the girl had it in readiness. We pushed open the door of the bedroom, and the first of us to enter were in time to see him lying down by my wife; those who followed saw him standing naked on the bed. I gave him a blow, sirs, which knocked him down, and pulling round his two hands behind his back, and tying them, I asked him why he had the insolence to enter my house. He admitted his guilt; then he besought and implored me not to kill him, but to exact a sum of money. To this I replied, “It is not I who am going to kill you, but our city’s law…” Lys. 1.23-26.
So far we have been describing the prospect of a protracted legal process, initiated by delivering a summons to the defendant to appear before a magistrate at a later date. However, summary arrest (apagogesee Glossary) was possible in a limited set of circumstances, most notably in the case of “wrongdoers” (kakourgoi), a class that seems to have included much of what we think of as street criminals: certain types of thieves, house burglars, clothestealers, and pickpockets. If a man caught a thief “red-handed” (there is some dispute over whether the Greek term — ep’autophoroi — requires that the criminal be caught in the act, or merely that his guilt be manifest, as for example, if stolen goods are found on his person), he could personally arrest him and haul him before a board of magistrates known as the Eleven (see Glossary) . In a rare exception to the reliance on private initiative at all stages of the legal process, if the man did not feel able to arrest the thief on his own, he could ask a magistrate to make the arrest for him in a procedure known as ephegesis. Once before the Eleven, a man who admitted stealing was summarily executed, while if he did not, he was imprisoned pending trial. We don’t know for sure why street criminals were subjected to this special procedure, but it may be that it was considered important to deal strictly and expeditiously with offenses that were both flagrant and potentially disruptive to public order and citizens’ sense of security.
To take the opposite case, what if a man suffered loss or damage but didn’t know for sure who was at fault? It was entirely up to the aggrieved party to seek out witnesses and act as his own private investigator. The law imposed reasonable limits on such investigations; a citizen was authorized, for example, to search another’s house for stolen goods provided that the head of the household gave his consent and that the searcher left his cloak outside to make it more difficult to plant evidence.
Once a man determined that he had been wronged by another, he had a variety of options. He could, of course, ignore the legal system altogether and attempt to obtain redress through violence or persuasion backed by threat of litigation. Alternatively, the men involved could decide to submit their dispute to a mutually agreed-upon third party for binding private arbitration. If the aggrieved decided to go to law, he often had more than one type of procedure to choose from. There were two main categories of legal procedure: private cases (dikai see Glossary) , in which the victim (or his family in the case of murder) brought suit, and public cases (graphai see Glossary), in which anyone was permitted to initiate a suit. According to Plutarch and Aristotle, the lawgiver Solon introduced this generalized standing rule in public cases to protect the weak, but it is unclear how often disinterested parties brought cases for altruistic reasons. In our surviving graphai the prosecutor tends to be the primary party in interest, or at least a personal enemy of the defendant with something to gain by his conviction. Although volunteer prosecutors were vital to the functioning of the Athenian legal system, there was a real worry that some men would take advantage of the open standing rule by bringing frivolous suits, perhaps in some cases with the hope of extorting a settlement from an innocent potential defendant. The Athenian term for such a man was “sycophant,” a word of uncertain etymology, and unrelated in meaning to the later English word. (sukophantai see Glossary) The practice of sycophancy was discouraged not only by a heavy social stigma, but also by a system of penalties for dropping a public case or failing to win one-fifth of the votes at trial.
Although no ancient source explains why some charges were designated as graphai and others as dikai, graphai seem to have been cases that were thought to affect the community at large. This division does not neatly map onto the modern criminal-civil distinction; murder, for example, was a dike because it was considered a crime against the family rather than the state. Bringing a graphe was a more serious affair for both prosecutor and defendant: graphai were allotted more court time, involved greater penalties, and placed the prosecutor at risk of a 1000 drachma fine (perhaps 500 days’ wages for a skilled workman) if he failed to receive at least one-fifth of the jurors’ votes at trial. A passage from a speech of Demosthenes offers a somewhat exaggerated view of the variety of procedures available to potential litigants and the considerations that influenced their choice of charges:
Solon, who made these laws, did not give those who wanted to prosecute just one way of exacting justice from the offenders for each offense but many …. for example thieves. You are strong and confident: use the summary arrest procedure; you risk a 1000 drachma fine. You are weaker: use ephegesis [the procedure for pointing out an offender for arrest by magistrates] to the magistrates; they will then manage the procedure. You are afraid of even that: use a graphe. You have no confidence in yourself and are too poor to risk a 1000 drachma fine: bring a dike before the arbitrator and you will run no risk. Now none of these actions is the same…. It is pretty much like that for all offenses. (Dem. 22.25-6).
Ariston, the prosecutor in Demosthenes 54, found himself facing a similar array of choices. While taking a walk though the agora, Athens’ marketplace, one evening, he was jumped, beaten, and stripped by a group of drunken men. Adding insult to injury, Ariston reports that one of his attackers yelled epithets at him and stood over him crowing and flapping his arms at his sides like a victorious fighting cock. Ariston explains to the jury why he settled on a dike for assault rather than availing himself of the summary arrest procedure or bringing a graphe for hubris, a charge that was not clearly defined but seems to have involved an affront to one’s honor:
All my friends and relatives, whose advice I asked, declared that for what he had done the defendant was liable to summary arrest as a clothestealer, or to a graphe for hubris; but they urged and advised me not to take upon myself matters which I should not be able to carry, or to appear to be bringing suit for the maltreatment I had received in a manner too ambitious for one so young. I took this course, therefore, and in deference to their advice, have instituted a private suit (dike), although I should have been very glad to prosecute the defendant on a capital charge. (Dem. 54.1)
Ariston thus suggests that he chose the assault procedure not because the defendant’s actions most closely fit that crime, but because of his own youth and inexperience. In fact, Ariston attempts to characterize the defendant’s actions as hubris, and not merely assault, from the first word (hubristheis: I have suffered hubris) to the penultimate sentence (hubristeoi: we do not deserve to be subject to hubris); in the course of his speech he quotes the laws on clothestealing and hubris but not the law prohibiting assault. These passages illustrate one of the most distinctive features of the Athenian legal system: the emphasis on procedural rather than substantive law. Ariston’s decision to charge Conon with assault had a variety of procedural consequences involving the length of the trial and the risks borne by the prosecutor and defendant, but his choice did not restrict his substantive arguments at trial to the assault charge.
Once a man decided on a legal procedure, the first step in bringing suit was to draw up and personally deliver (accompanied by witnesses) to his opponent a summons to appear before a magistrate to answer a particular charge. On the appointed day, the prosecutor presented his indictment to the magistrate, who collected court fees and arranged for a preliminary hearing. We know very little about the purpose or procedures of the preliminary hearing, or anakrisis (see Glossary), but it is possible that litigants were required to place all the documentary evidence, such as contracts, wills, and laws, they planned to use at trial in a sealed jar. These preliminary proceedings may have helped litigants prepare for trial by providing advance notice of their opponent’s evidence, but there is no hint of the winnowing functions served by pretrial procedures in modern courts; the presiding magistrates, men without any formal legal expertise, did not dismiss suits on legal grounds or set out particular issues to be decided at trial. In the fourth century, however, most private cases involving very small sums were decided directly by a magistrate following the anakrisis. Public arbitration (see Glossary), a mandatory procedure that followed the anakrisis in most private cases in the fourth century, also reduced the volume of cases that came to trial by providing for referral to a public official for a non-binding decision.
With the preliminary procedures out of the way, the litigants proceeded to trial before a jury. Litigants were evidently expected to deliver their own speeches in court, though they could donate some of their speaking time to a co-speaker, often a friend or relative (sunegoros see Glossary). Speakers could obtain the services of speech-writers, or logographoi (see Glossary), to help them prepare their case, but orators never mention their logographos and generally pretend to be speaking extemporaneously in court. In fact, speakers often boast of their inexperience in public speaking and ignorance of the lawcourts, perhaps to head off an accusation of sycophancy (sukophantai see Glossary). Specialized legal terminology never developed in Athens, and forensic speeches are dramatic recreations of the events told in laymen’s terms. Presenting a case pro se was not as daunting in classical Athens as it may at first appear; most Athenians probably acquired some familiarity with the workings of the lawcourts, both from serving as jurors and by attending trials, which took place in or near the shopping district and served as a form of popular entertainment. (See Law Court Locations in Archaeological Finds)
Each litigant was allotted a fixed amount of time to present his case. Some private cases were completed in less than an hour, and no trial lasted longer than a day. Speaking time was measured by means of a water-clock, a simple device whereby a set amount of water flowed through a hole in one pot into a second pot placed below it. A plug was used to stop the water during the reading of laws and evidence. A fragment of one water-clock survives. Unlike a modern trial, in which evidence is presented in a highly fragmented form and later synthesized into a coherent case by the attorneys’ summation, Athenian litigants provided a largely uninterrupted narrative of their case punctuated with the reading of evidence; in an Athenian court the evidence did not make the case but reinforced the claims and arguments presented in the litigant’s speech. Although a magistrate chosen by lot presided over each popular court, he did not interrupt the speaker for introducing irrelevant material or permit anyone else to raise other legal objections, and did not even instruct the jury as to the laws.
The laws were inscribed on large stone blocks erected in various public areas of Athens. Beginning at the end of the fifth century copies were kept in a public building, but it is unclear whether this archive was sufficiently organized to serve as a user-friendly source of law for potential disputants. Litigants were responsible for finding and quoting any laws that helped their case (presumably speech-writers assisted in this task), but there was no obligation to explain the relevant laws, and in fact some speeches do not cite any laws at all. There was no formal mechanism to prevent a speaker from misrepresenting the laws, though knowledgeable members of the jury and the crowd could heckle orators whose speeches were misleading. The treatment of law in our surviving speeches is consistent with Aristotle’s characterization of laws as a form of evidence, similar to contracts and witness testimony, rather than a decisive guide to a verdict. There was no system of precedent through case-law since there were no Athenian law reports. Verdicts were not regularly recorded and in any case the jury did not reveal the reasons for its decision. Nevertheless, speakers do at times refer to past cases in their arguments, though the jury was not bound to follow such “precedents.”
In the fifth century, witnesses testified in person and could be cross-examined, while beginning in the early fourth century litigants drafted a statement and the witness stepped forward during the trial simply to swear to the statement’s veracity. Women were not permitted to serve as witnesses, and slave testimony could be introduced only if the evidence was obtained under torture. A slave’s powerful fear of his master would normally prevent him from testifying against him, hence his testimony would need to be “improved” by an even stronger wish to end the physical pain to which the examiners subjected him. But our sources do not clearly indicate whether slaves’ testimony was actually ever used in a trial. Some scholars believe that the whole business of making one’s slaves available for questioning under torture or demanding another man do so was just a rhetorical ploy.
We have been using the terms “juror/jurors” as a translation for the Greek dikastês/dikastai to refer to the audience of these forensic speeches, but others prefer the translation “judge/judges.” Neither English word is entirely satisfactory, since these men performed functions similar to those both of a modern judge and a modern jury. This was a system with no professional judges to regulate what the jury heard, to instruct it in the relevant law, and to separate matters of fact from matters of law. There was no provision for appeal from the verdict; the Athenian jury wielded very great power indeed. Though we may suspect lawcourt speakers of flattering the jurors at the expense of the truth, the speaker in Demosthenes 57 is not exaggerating very much when he tells them:
I have turned to you, men of Athens, for I see that the courts hold greater authority, not only than the voters of the deme …. but even than the Council and the Assembly–and rightly so, since your decisions are in all matters the most just. (Dem. 57.56)
Jurors not only ruled in routine cases but also decided whether a law or decree passed by the Assembly was constitutional; most remarkably, after 403 B.C. the Assembly could not, on its own, make a new law, for which the technical expression, rigorously maintained in practice, was nomos, but only a psêphisma, decree. Any new laws, strictly defined, required ratification by a group called the nomothetai, literally “layers down of the law.” But though the task was legislative, the nomothetai were drawn from the 6,000 men who had taken the juror’s oath and were thereby entitled to present themselves for jury service. These remarkably broad powers make it important to know who served on juries, how they were assigned to particular cases, and how they went about their business.
Speakers almost always implied that the jurors all shared a large body of knowledge and opinion; and they often address the jury as if it were a single body that sat in judgment over many decades. Thus Aeschines can say to the jurors hearing a case fifty years after the fact, “You condemned the sophist [sic] Socrates…” (Aeschines 1.173). But of course the jury panels were not so many identical slices of the population. What were they actually like? How did they compare with the rest of the population?
As in most aspects of Athenian civic life, citizen males enjoyed a near monopoly, but jurors were a subset of that privileged group. Whereas a man could speak in court and vote in the Assembly when he was eighteen, he had to wait until his thirtieth birthday to take the juryman’s oath and his place among an annual panel of 6,000 men. The twelve-year difference in minimum age may look trivial, but must have counted for much in a society where the average life expectancy was about twenty-five. Moreover, the average juror might have been a good deal older than thirty: older men are more likely to have time on their hands in an economy where most work made heavy physical demands.
The economic character of the jury panel cannot be known for sure, and is likely to have varied from year to year and season to season; still, there are good reasons to believe that the jurors tended to be poor enough to find the small fee, a fraction of what a laborer could make in a day, an inducement to serve. And though we lack the evidence to be sure, the jury panels hearing most cases were likely to be comprised of men poorer and far less famous than the men on whom they were sitting in judgment.
Far from evading jury service, more jurors presented themselves for service than could be seated on any one of the 150 to 200 days the courts were in session each year. This was so, even though the jury panels were, at least in the fourth century, outlandishly large by our standards. The smallest panel was 201, and some important cases were assigned to much larger groups: 1001, 1501, and 2001. To judge from the Wasps, Aristophanes’ comedy about a jury addict, a fifth-century juror would simply need to arrive early enough to be sure of a seat that day. During the fourth century an elaborate system of multiply random selection was introduced, using wood or bronze tickets that each juror brought with him, a sort of slot machine with black and white balls, and wands color-coded to match the painted lintels at the entrances to various courtrooms. The procedure, which we know in great detail from The Constitution of Athens, not only determined which jurors would serve that day, but which cases an individual juror would hear, and even which jurors would perform certain simple, but indispensable, tasks, such as minding the water-clock that timed the speeches and handing jurors a coin in payment for the day’s service. The procedure was probably meant, in the first instance, to prevent litigants from bribing or otherwise corrupting the jurors, but a likely side effect may have been to turn this step into a ceremony that would impress litigants, jurors, and bystanders with the seriousness of the occasion. Drawing lots was regarded as quintessentially democratic, and those Athenians prone to see a divine hand as lying behind a random process might have seen the sortition as providing an arena for the gods to do their work. Given the wide discretion and great power of the jury, this system probably did much to enhance the prestige of the judicial process as a whole.
Consistent with the fiction that the jury was an unchanging group of men, there was no process like our voir dire, meant to exclude from the jury those with some knowledge of the case or acquaintance with the principals, their associates, or the men in court to speak on behalf of either side. On the contrary, Athenian litigants at times encouraged jurors to base their decision on preexisting knowledge. In his prosecution of Timarchus, Aeschines tells the jurors:
Let nothing be more credible in your eyes than your own knowledge and conviction regarding this man Timarchus. … Look at the case in the light, not of the present moment, but of the time that is past. For the words spoken before today about Timarchus and his practices were said because they were true; but what will be said today will be spoken because of the trial, and with intent to deceive you. Give, therefore, the verdict that is demanded by the longer time, and the truth, and your own knowledge. (Aesch. 1. 93).
Speakers routinely refer to the jurors’ opinion of the litigants or their supporters, even when the supposedly notorious persons were not prominent, say leading politicians, but ordinary persons, too obscure to be known by many jurors, if any at all. Court rhetoric often pretended that the city was not a large area with a population in the hundreds of thousands, but a small village.
In our courtrooms one normally hears one voice at a time; judges gavel down any unauthorized voice, and jurors in particular are cowed into profound silence. Perhaps because the jurymen were perfectly conscious of their collective might and the presiding magistrate had no right to expel or punish a noisy juror, the Athenian jury panels were often raucous, and it is very likely that the crowd standing around at many trials augmented the hubbub of shouts, murmurs, and catcalls. Speakers often plead with the jurors to abstain from heckling, especially when they expect their words will provoke anger: “Now please, gentlemen of the jury, by Zeus and the other gods, let no one shout, let no one get angry at what I am about to say” (Demosthenes 57.50). Enemies of the democracy, notably Plato, denounced the tumult of the courtroom and suggested that it was symptomatic of the poor quality of justice meted out by the democratic courts. Yet it must be said that in the absence of professional guidance, jurors might have served justice by communicating to each other what they knew of the laws, the credibility of certain witnesses, or even their sense of what constituted a reasonable argument.
Once the litigants and men speaking in their behalf made their presentations–the number and length of the speeches varied with the sort of case being heard–the jury proceeded at once to cast their ballots. There was no formal deliberation, though the unruly shouting might have served as a primitive substitute. “Cast” is no metaphor, since Athenian jurors voted by dropping ballots into baskets.
Jury ballot, hollow
The axle is hollow, indicating a vote for the plaintiff. Drawing by Amy C. Smith, after Agora 28, B 10, 51.
Jury ballot, solid:
: , The axle is solid, indicating a vote for the defendant. Drawings by Amy C. Smith, after Agora 28, B 11, 46.
In the fourth century these ballots came as a set of two discs with an axle running through the centers: the ballot for the defendant had a solid axle, for the plaintiff a hollow axle. The jurors marched past two urns, and dropped the ballots to be counted into one basket, the ballots to be discarded into another. By holding thumb and forefinger over the axle ends, the jurors were able to conceal their vote from onlookers. The ballots were immediately counted and the totals announced. Decisions were by majority vote, hence the preference for odd-numbered panels, but the exact numbers might be important if the case was in that category for which a prosecutor receiving fewer than one-fifth of the votes was subject to a fine. If the relevant law dictated a penalty, the vote concluded the court’s business; but in many cases, known as the agônes timêtoi, the opponents would each in separate speeches propose a penalty, and the jury would need to vote one more time, selecting one or the other. This procedure is best known from Plato’s Apology of Socrates, though we have no parallel for Socrates’ address to the jury after the initial verdict and after the jury voted for death rather than a monetary fine.