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Legal Space in Classical Athens

Published online by Cambridge University Press:  07 September 2009

Christopher Carey
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Extract

Like many features of democratic Athens, the legal system is both strikingly familiar and disturbingly alien to the modern reader. The principle of trial by a jury of laymen is one which, though intermittently criticized, remains the basis of the decision-making process in modern Britain. At the same time, the size of the jury panels, their powers, the reliance on volunteer prosecutors, the use of an exchange of speeches as the method of presentation, these and other features diverge significantly from accepted practice in our own courts. My concern in this paper is with one striking divergence, the way in which the relationship between the legal system and society at large is conceptualized, and with the problems it raises. In modern developed societies the law and the lawcourts are fenced around with procedural, psychological, and in some cases constitutional barriers. The law itself is a self-contained system, distinct from other coercive forces, and perceived as separate from the political life of the community. Procedures and participants in the courts are given a degree of protection from constraints which apply elsewhere, in order to ensure that all relevant information is disclosed and that a verdict is given on the facts of the case, taken as far as possible in isolation from the rest of the lives of the participants and the community. All these barriers are absent in the context of classical Athens. In practice and in conception the law and its administration are in some important respects indistinguishable from the life of the community in general.

Type
Research Article
Information
Greece & Rome , Volume 41 , Issue 2 , October 1994 , pp. 172 - 186
Copyright
Copyright © The Classical Association 1994

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References

Notes

1. Though from the language used by speakers addressing jurycourts it appears that the Athenians imagined them as equivalent to sessions of the assembly; speakers addressing the courts regularly use the second person when referring to policy or legislative decisions of the assembly.

2. Arist, . Ath. Pol. 43.4, 61.2Google Scholar.

3. See in general Wolff, H. J., ‘Normenkontrolle’ und Gesetzbegriff in der attische Demokratie (Sitzungsberichte der Heidelberger Akademie, 1970Google Scholar), Hansen, M. H., The sovereignty of the people's court in Athens in the fourth century B. C. and the public action against unconstitutional proposals (Odense, 1974Google Scholar).

4. For discussions see MacDowell, D. M., JHS 95 (1975), 62–74CrossRefGoogle Scholar, Hansen, M. H., GRBS 26 (1985), 345–71Google Scholar, Rhodes, P. J., CQ 35 (1985), 55–60CrossRefGoogle Scholar.

5. Ath.Pol. 55.2, 45.3.

6. Ath.Pol. 49.3.

7. See Lys. 10.1, 12, 24–5, 30.

8. Aischin. 1.

9. [Dem.] 59.

10. Cf. Dem. 54.9, 17, Aischin. 1.55.

11. See F. Blass, Die attische Beredsamkeit 3 (repr. Hildesheim, 1962) III.l, 541 n. 1, Demosthenis orationes (Leipzig, 1891) III, lxii–lxiiiGoogle Scholar; see further Carey, C., Apollodoros, Against Neaira. [Demosthenes] 59 (Warminster, 1992), pp. 141Google Scholar f.

12. Cohen, D., Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, romanistische Abteilung 102 (1985), 385–7CrossRefGoogle Scholar, Roy, J., LCM 16 (1991), 73–6Google Scholar. See further Carey, C., ‘The return of the radish’, LCM 18 (1993), 53–55Google Scholar.

13. Arist. R. 1.5.1354a. According to Ath.Pol. 67.1 the litigants in the ordinary jurycourts also swore to keep to the issue. The date of this provision is unknown. If it predates the 320s, it seems to have little effect on practice in the courts.

14. See the references collected in Carey, C./Reid, R. A., Demosthenes: selected private speeches (Cambridge, 1985), pp. 8ffGoogle Scholar.

15. Isai. 3.19, Dem. 57.14.

16. Humphreys, S. C. in The discourse of law, ed. Humphreys, S. C. (London, 1985), pp. 313–69Google Scholar, especially 350.

17. See Carey, /Reid, (op. cit, n. 14 above), pp. lOfGoogle Scholar.

18. Lys. 14.5, 15.1.

19. See in general Bers, V. ‘Dikastic thorubos’ in Crux: essays in Greek history presented to G. E. M. de Ste Croix, ed. Cartledge, P. A./Harvey, F. D. (Exeter & London, 1985), pp. 1–15Google Scholar.

20. Dem. 45.6.

21. Arist. R. 1.2.1356a.

22. For earlier discussions see Carey, /Reid, (op. cit., n. 14 above), pp. 75fGoogle Scholar. (to which add Fisher, N. R. E., G&R 23 (1976), 177–93, 26 (1979), 32–47)Google Scholar, and see further MacDowell, D. M., Demosthenes Against Meidias (Oration 21) (Oxford, 1990), pp. 18ff.Google Scholar, Fisher, N. R. E., ‘The law of hubris in Athens’, in Norms: essays in Athenian law, politics and society, ed. Cartledge, P./Millett, P./Todd, S. (Cambridge, 1990), pp. 123–38Google Scholar, and Hybris (Warminster, 1993), pp. 36ff.Google Scholar, Murray, O., ‘The Solonian law of hubris’ in Nomos, pp. 139–45Google Scholar.

23. Arist. R. 1.15.1375a–b.

24. Thuc. 2.37.3, Lys. 6.10, Plat. Leg. 793a–d, Dem. 18.275, Arist. E.N. 1180a.

25. See e.g. Dem. 57.5, 54.17, Hyp, . Athen. 13Google Scholar.

26. See Carey, C., ‘Apollodoros' mother: the wives of enfranchised aliens in Athens’, CQ 41 (1991), 84–9CrossRefGoogle Scholar.

27. See in particular Todd, S./Millett, P., ‘Law, society and Athens’, in Nomos: essays in Athenian law, politics and society, ed. Cartledge, P./Millett, P./Todd, S. (Cambridge, 1990), pp. 1–18Google Scholar.

28. Garner, R., Law and society in classical Athens (London & Sydney, 1987), pp. 58ffGoogle Scholar.

29. For Eskimo and Tiv procedures see Roberts, S., Order and dispute: an introduction to legal anthropology (Oxford, 1979), pp. 59fGoogle Scholar., Bohannan, P. J., Justice and judgement among the Tiv (London, 1957), pp. 142ffGoogle Scholar.

30. Garner, (op. cit., n. 28), p. 63Google Scholar grossly oversimplifies in stating: ‘the education of an Athenian gave him good reason to expect that even if he had done what he was charged with in court, he could ask to be acquitted or to win the case on the basis of past excellence in achievement and service’.

31. Todd, S. C. in Nomos: essays in Athenian law, politics and society, ed. Cartledge, P./Millett, P./Todd, S. (Cambridge, 1990), pp. 30fGoogle Scholar. Humphreys, (op. cit., n. 16 above) pp. 323fGoogle Scholar. is more cautious; she notes: ‘The theory – though perhaps not the practice – in modern western courts is that what matters about a witness is not who he is but what he says. As we shall see, this theory does not apply to Athenian courts, where the content of witness testimonies is often unimportant or irrelevant’. Her parenthetic rider highlights a problem in comparisons between modern western systems and that of ancient Athens. Since we lack direct evidence for the debates which led to specific procedural developments, jurisprudence in the Athenian context is for the most part either implicit or embodied in statements by speakers in court; the latter in turn are based on a combination of common sense and rhetorical need. When dealing with modern systems we have access to evidence for the rationale behind procedures and to a substantial body of specialist jurisprudence. Accordingly, we frequently find ourselves comparing modern theory with ancient practice; the result is often an exaggeration of the divergence and a patronizing attitude to the Athenian system.

32. See Harrison, A. R. W., The law of Athens, vol. ii (Oxford, 1971), p. 143fGoogle Scholar.

33. This is a revised version of an inaugural lecture given at Royal Holloway on 23 February 1993.