Collections: How to Polis 101, Part IIc: The Courts

This is the third part of the second part of our three(ish) part look at the governing structures of the Greek polis (I, IIa, IIb, IIc, III). At some point I promise I will write a series whose organization does not look like a parody of itself. Last time, we looked at the particular role of magistrates within a polis and the many kinds of minor magistrates that served as part of the Athenian polis government in particular. This week we’re turning to the last major component of the polis government system, the courts.

Of course this is an enormous topic, but we’re going to keep the focus quite narrowly set on the structure of the courts (mostly in Athens where we can see them most clearly) and on the process they involve, rather than on the laws themselves. Our goal, after all, is to understand the place of the courts within the governing structure of the polis, rather than the intricacies of the laws the courts (ostensibly) made their decisions by, which might in any case have differed quite substantially from one polis to the next.

Because, as we’ll see, the structure and public nature of ancient Greek courts made them effectively part of the political process, as ancient Greek courts combined the fact-finding role we generally associate with lower courts and the interpretation of law and precedential role we generally associate with higher courts (like the Supreme Court of the United States) into a single court and a single jury, composed either of the citizenry at large, empowered to decide both fact and law (as in more democratic poleis) or by a panel of the ruling elite, elders or magistrates (as in more oligarchic poleis).

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(Bibliography Note: Greek law is its own subfield, so it is worth providing a quick bibliography note here; it may be a few years out of date as I am drawing on my coursework on Greek law, which was at this point nearly a decade ago. The standard starting point in English is D.M. MacDowell, The Law in Classical Athens (1978), which offers a capable overview of the whole topic. On the particularities in Athens, note M.H. Hansen, Athenian Democracy in the Age of Demosthenes (1991) and E. Harris, Democracy and the Rule of Law in Classical Athens (2006). On the orators, the Oratory of Classical Greece series (edited by M. Gagarin) is the standard starting resource. The Cambridge Companion to Ancient Greek Law, eds. M Gagarin and D. Cohen is also an invaluable resource for getting into the details (as well as touching on the applicability of Athenian evidence to non-Athenian contexts). Likewise valuable is The Law and the Courts in Ancient Greece, eds. E.M. Harris and L. Rubinstein. And then finally, because no bibliography is complete without some monumental late-19th or early-20th century work in German, there is Justus Hermann LipsiusAttisches Recht und Rechtsverfassung (1905-1912), to my knowledge never translated but still regularly referenced.)

Origins and the Role of the Courts

The first crucial difference between the way Greek courts functioned as compared to the modern legal system that must be stressed is this: ancient Greek courts primarily existed to resolve disputes, not to enforce the law. That doesn’t mean the laws (which might be written or customary laws, the Greek word here, nomos (νόμος) encompasses both) don’t matter; the role of the courts at least in theory is to resolve disputes in accordance with the law, but the laws are merely the rules by which the disputes are resolved; the resolution of disputes is the thing the courts do. Thus, while there are public crimes (that is, crimes against the whole community) there are no public prosecutors, no police or investigative service because what the court is handling is a dispute between an accuser/prosecutor and a defendant.

(I should be clear here: it is not that the Greeks have no idea or notion that courts are there to enforce the law. Indeed, Greek law speeches regularly appeal to the jurors on this basis, that theirs if the job of enforcing the law (on that other guy). Rather, my point is that the structure of this system is a system of dispute resolution, to which written law was later appended. But the system is designed for dispute resolution, its purpose is to avoid the feud as much if not more than its purpose is to ensure that everyone follows the law. As we’ll see, if a law is ‘broken’ but no one (who matters) is understood to be directly injured by it, this is a legal system which does not care.)

This fits with how we generally suppose Greek law to have come to be,1 that legal proceedings, be they courts or arbitration, arose to solve the problem of the feud, particularly between elites. Without a legal system, parties that feel wronged have to resort to ‘self-help,’ which for serious wrongs might include violent retaliation (and thus the feud). Elites (by which we mostly mean large landholders) might be able to enforce dispute resolutions on non-elites, but there was no one to make one magnate accept a resolution in their dispute with another magnate. Worse yet, those big landholding elites have the capacity for a lot of violence due to their resources and standing, which would be disruptive to the whole community.

And so the very earliest evidence we have for the function of a Greek court is found in the Iliad (18.497-508) where inscribed on Achilles’ shield is (among other things, because this is a divinely crafted shield) a court scene worth reproducing in full (trans. following M. Gagarin (2005), op. cit., 83):

Meanwhile, a crowd gathered in the agora where a dispute
had arisen: two men contended over the blood price2
for a man who had died. One swore he had paid everything,
and had made a public declaration. The other refused to accept anything.
Both were eager to put an end to their dispute at the hands of a judge3
People were speaking on both sides, and both had supporters;
but the heralds restrained them. The old men
took seats on hewn stones in a sacred circle;
they held in their hands the scepters of heralds who raised their voices.
Then the two men rushed before them, and the elders in turn gave their judgments.
In the middle there lay two talents of gold
as a gift for the one among them who would speak his judgement most rightly.

There’s a lot we don’t know about this scene (who decides which judge judged best? Gagarin thinks it is the crowd and that may be right) but it shows us a system of dispute resolution already functioning where a body of elders has the authority to impose a resolution to a dispute (although note the important presence of the crowd, these are very much public events). And of course at the same time, even though the issue at question here is a murder (or at least a ‘wrongful death’), the suit is essentially a private one, over the appropriate amount of damages or the requirement that the wronged party accept a quantity of damages and forswear future retaliation (the text isn’t entirely clear).

Now you might imagine that this would mean that our earliest surviving Greek laws would thus be about dispute resolution (or the equally common assumption that the Greeks would start with ‘don’t murder anyone’ and move down from there), but they’re not. Instead, the oldest laws we have almost entirely focus on regulating the actions of magistrates. But that’s a bit deceptive too, because written law comes relatively late; the first evidence we have for written laws are more than a century after the (re)introduction of writing into the Greek world. Before that point, the law would have been mostly oral and so a lot of dispute resolution was going to depend on the judgment of the magistrate or officials (the elders in the Iliad passage above) applying customary solutions to problems. And so it makes a degree of sense that the first things that get written down and codified are not the norms the judges uphold, but the rules for judges (and other magistrates with state power).

Via Wikipedia, the law code of the polis of Gortyn on Crete, one of the few surviving (partial) codes of Greek law.

I should also note briefly here that even at this early point these laws have a secular, not religious character. We’ll get to the role of religion in the polis in the next installment of this series, but the Greeks very much do have a sense of a distinction between the sacred and the profane (but not so clear a separation between ‘church’ and ‘state’ in our sense); the law fits in the latter category. That said, beginning in 650, the various poleis of Greece begin writing down their laws, beginning with regulations for magistrates but eventually extending into what we’d understand as public and private law.

And here we get to the applicability of our evidence. Unlike the Romans, for whom we have a more or less complete law code, we have no complete code or body of laws from any Greek polis (no, not even you, Athens). That said, the vast vast majority of our evidence comes from Athens, which is both super-over-represented in the epigraphic evidence, but also in the literary evidence. Key here is a body of roughly 150 legal speeches written by ten orators; all of the orators lived in Athens (thus they are called the ten ‘Attic Orators’) though not all of them were Athenian citizens. All but one of the surviving speeches was ostensibly written for a court case in Athens (the exception being Isocrates 19).4

And indeed, the ‘unity’ or ‘disunity’ of Greek law has been a topic of considerable debate.5 Looking at the bibliography above, you can see the considered decisions of authors to mark out if they thought they were discussing ‘Greek’ law or ‘Athenian’ law – keeping in mind that the evidence being used is often not very different between those two categories. And indeed, where we can see them, laws often differ substantially; property and marriage law in Athens was quite different from the same in Sparta or Gortyn, for instance. But there are some commonalities, especially in procedure which suggest that while some of the laws may have differed, the basic function of courts in one polis were at least fairly similar to the same in another polis.

Since we’re focused today mostly on procedure – how the courts worked rather than the specifics of the laws they were implementing – we can be a bit more free with our use of the Athenian evidence to understand the process. Nevertheless I should note at the outset that what follows is very heavily based on the Athenian evidence, because that’s the evidence we have.

Getting to Trial

So as noted above, we have to start with a dispute. Not a crime, as we’ll see, but a dispute. Disputes can be of two kinds of Athenian law, private disputes (dike idia, δίκη ἰδία ‘private case’) or public disputes (dike demosia, δίκη δημοσία, literally “a case of the people” so this is ‘public’ in the sense that the injured party is the demos). Private disputes generally had to be brought by the injured party, but public disputes could be brought by ὁ βουλόμενος (ho boulomenos), a legal phrase which means ‘[anyone] who wishes.’ This is what a Greek polis has in lieu of a public prosecutor: a rule that for certain crimes and infractions where the injured party is the whole community, anyone may bring the case.

Now we should be clear about the nature of the difference between dike demosia and dike idia because it is not the same as modern civil/criminal or felony/misdemeanor distinctions: it is about who the injured party is imagined to be. Thus while some public crimes are very serious, not all serious crimes give rise to a dike demosia! Some dike demosia were obviously oriented to the community: treason, desertion or cowardice in the army, stealing public money or maladministration of officials. Others were about individuals the community had some special guardianship over, so the mistreatment of orphans or the seduction of free, citizen women were dike demosia at Athens, as was hubris (which means not ‘pride’ but an act of violence designed to humiliate, which was understood to endanger the dignity of free and equal citizens in a democracy; MacDowell (op cit) defines it really well as “A person shows hybris by indulging in conduct which is bad, or at best useless, because it is what he wants to do, having no regard for the wishes or rights of other people”).6

By contrast, murder was a dike idia! After all, only one person was injured, so the issue was clearly a private matter! In the case of murder, it seems that relatives of the deceased were considered competent to prosecute (the deceased obviously not being able). I’ve always found this striking because in the event of a murder charge, the accused was immediately ordered to ‘keep away from the things laid down by law’ which were things like courts, religious activities, temples, public buildings and so on. The reasoning here was that a murderer was ritually polluted in a way that offended the gods and so had to be kept away from key public things, yet murder (in Athens at least) remained a private dike rather than a public charge and seems always (or nearly always) to have been brought by the family of the deceased.

And you may ask, what if there is a private case in which no one is competent to prosecute. The murder, for instance, of an entirely friendless man with no family? Or an injury to someone who, because they weren’t a citizen (or had been disenfranchised) lacked standing and had no one to sue on their behalf? In some cases, you can see above, these problems are anticipated and made a public case. In other cases, the injured party would need to find a citizen to bring the case on their behalf, called a prostates (προστάτης, lit: ‘one who stands for/in front of’). But in the remainder, well, this is a system for settling citizen disputes; if there is no citizen dispute, the system doesn’t really care. This, in particular, renders most legal protections of enslaved persons almost entirely toothless, since the only person with standing to sue is the slave’s owner, who is also likely the one doing the injury and unlikely to prosecute themselves. This is what I mean when I say this is a system for settling disputes rather than enforcing the law; the point is not that the law be enforced upon everyone but rather than no unlawful injury come to either any individual citizen nor the demos as a whole.

The exception to this ‘no public prosecutors’ rule were magistrates who noticed an offense in the course of their duties. The most common sort of that might be either regulatory officials (like the agoranomos running the market) noticing an infraction or else the magistrates we detailed before whose job was to check the behavior of other magistrates (part of the process of euthyna or examination of ex-magistrates). In Athens it was also possible for the ekklesia or the boule to order by decree that someone would be tried and they would appoint someone (a synegoros or kategoros) to carry out that prosecution; such things were fairly rare. By contrast in other poleis, magistrates bringing charges as part of their duty as magistrates may have been more common; the Spartan ephors seem to do this a fair bit.

In Athenian law, at least, once you have identified your dispute, there are a whole bunch of ways the issue can be brought, mostly different procedures for initiating the legal process. For dike demosia, the most common was the graphe (charge submitted to the thesmothetai in writing), but there was also apagoge (arrest someone and drag them to the public prison), ephegesis (bring the magistrate to the defendant and tell the magistrate to arrest him), endeixis (drag the defendant to the magistrate with the option of continuing to hold them after the charge was delivered) and eisangelia (denounce the defendant before the ekklesia or boule). Not all crimes or injuries seem to have provided access to all procedures (see Dem. 22.26-7), so you’d have to know what kind of procedure to use. The graphe was by far the most common. Mercifully, by contrast, basically all private cases fit under the rubric of a dike, with a slightly different procedure for issues where multiple people claimed the same thing (like an inheritance dispute) called diadikasia.

In any case, you take your case in the relevant way to the relevant magistrate or board of magistrates. Usually in Athens for serious matters these are the thesmothetai, but certain crimes were unusual. For instance murder cases (dike phonou) were brought first to the archon baslieus, presumably because the threat of ritual pollution put it under his purview. For less serious matters, complaints went to the dikastai, who decided small claims directly and sent larger ones to arbitration.

Arbitration seems to have been a fairly common remedy for disputes and seems to have worked one of two ways in Athens. On the one hand, two individuals with a dispute could agree together on an arbitrator (as a private arbitrator) to resolve it, and this seems to have been a common way to avoid having to take the issue to court; as far as we can tell the decision of such a private arbitrator was final. Alternately, cases coming before the thesmothetai or the diskastai might be sent to arbitration before a public arbitrator (we discussed this office last time). Those arbitration decisions could be appealed, which would send the issue to a jury court, albeit with the requirement that both parties were stuck using the evidence they had used at arbitration and could add nothing to that. Very serious matters, as you may have gathered, just went straight to trial, set by the thesmothetai.

Which now at least brings us to:


Alright, so let’s assume our case hasn’t been submitted to arbitration and we’ve instead been assigned to one of Athens’ many jury courts (or an equivalent jury, council or assembly in another poleis). Immediately there are going to be some key structural differences to the court systems you may be used to. The first major difference – and this may be a positive or a negative difference, depending on your opinion of the legal profession – is that there are no lawyers in this system, indeed, no legal experts of any kind (save for the speech ghostwriters we’ll come to in a moment).

The other big immediate difference is that in many modern legal systems, there is a separation between the trier of fact (that is, who gets to decide what is true about a situation; this is often a jury if present) and the trier of law (that is, who gets to decide what the relevant law says; this is more often a judge, even with a jury present), but in an ancient Greek court these roles are combined. In oligarchic court systems, they might be combined into the form of a panel of elders or magistrates who decide cases, but in many poleis (both democracies and oligarchies) they were combined into a jury of the politai. While there may well be a magistrate present at the trail, their role is not to explain the law but merely to manage the proceedings, more an event-coordinator than a judge.

So as far as the Greeks were concerned, non-specialists were perfectly competent to decide matters of law and so it followed equally that the prosecutor-plaintiff and the defendant-respondent ought also be perfectly competent to argue their own cases. Consequently, citizens were expected to represent themselves in court, regardless of profession or ability. There were exceptions; a person who lacked the citizen status to stand at trial might be represented, as noted, by a citizen prostates. Alternately, in some public prosecutions, the accusers might speak as a team, with a series of speeches. Nevertheless the strong expectation is that the litigants speak for themselves. This is an all amateur system (though some of these amateurs have the leisure time to devote to becoming good at speaking in court and some do not).

For those wondering ‘wait, where are the legal experts?’ the answer is ‘in Rome, somewhat later,’ as the Romans effectively invent the modern Western concept of the legal expert, be that a lawyer, professional judge or legal services provider. The Roman term for a legal expert was a iuris prudens (pl. iuris prudentes, literally ‘knower-of-laws’) and we see the emergence of Roman elites who opt to specialize in law bloom in the second century, though it doesn’t become a career until the imperial period. The emergence of legal experts was enabled by the fact that in Roman courts, you could be represented by someone else, another innovation of the Roman legal system. We’ll talk about the Roman legal system some other day.7

Instead the presiding magistrate (such as one of the thesmothetai) mostly directs, but matters of fact and law are decided by the jury. For instance, if one of the litigants can’t be present it is the jury who decide if their excuse is valid or if the case is to be summarily ruled in favor of the party present. The magistrate did have some assistants in managing the proceedings, a herald (κῆρυξ) who announces the various stages of a trial and more importantly a clerk (γραμματεύς, grammateus) who had the job of reading out the text of laws, testimony or other evidence presented by either party. The clerk only read out such documents as brought by the litigants and only read them (he does not interpret them); the penalties for submitting fake laws were, unsurprisingly, severe.

Instead the trial is structured effectively as a set (or two sets) of dueling speeches. Both litigants were given an opportunity to lay out their case to the jury within a set time. Time was kept via a klepsudra (κλεψύδρα, lit, ‘water-stealer‘ but in practice, a water-clock working like an hourglass); both parties had equal time and had to stop speaking when that time was exhausted, though the timer stopped for the reading out of documents or testimony of witnesses. So the prosecuting litigant speaks first, then the defending litigant, then the jury votes.

We’ll talk about the structure of court speeches in a second, but let’s cover voting procedure first. By Aristotle’s day, the procedure for voting went thus (Arist. Ath. Pol. 68-9): each juror had two ballot tokens (called ψῆφοι, ‘pebbles’), one with a hole through it and the other not; by depositing one in a large jar to be counted, the juror indicated a vote in favor of whichever party (the tokens with holes indicating a vote for the prosecutor, the whole ones a vote for the defendant); a simple majority carries and in the event of a tie the defendant wins.8

There is no jury deliberation as in most modern legal systems, nor is unanimity or a super-majority required, although there were financial penalties for a prosecuting party that failed to get at least 20% of the votes, a mechanism to discourage making meritless lawsuits. If there was not a clear penalty proscribed by law and the jury voted for guilt, then the second phase, the penalty phase (called timesis, τίμησις, literally ‘assessment’ or ‘valuing’ which again speaks to the functionally civil nature of these systems), occurred which effectively repeated the first: the prosecutor and defendant both suggested an appropriate penalty or resolution and the jury chose between them.9

Now we should have a word about juries. In particular in Athens, juries tended to be, by our standards, extremely large. We hear of Athenian juries in a range of sizes: 201, 401, 500,700, 1000, 1001, 1500, 1501 and even 2501.10 The odd exception were murder charges, which were still tried by the Areopagus, a council of ex-Archons; the Areopagus had earlier had competence over many more crimes, but democratic reforms in Athens one by one removed these until only trials for murder remained.

As you can see, these juries could be very large! These were, after all, not deliberative bodies; juries simply voted for one or the other litigant and a simple majority ruled. The idea here is, in essence that the jury reflects a sort of select committee of the ekklesia and acts thus as an extension of the demos like the ekklesia. At Athens we know jurors were paid for their time, to encourage participation by poorer citizens; the pay was initially 2 obols and later 3 obols a day. It will not surprise you to learn that oligarchic poleis might not follow this practice and so confine their juries to men with enough wealth and leisure to tolerate losing a day without compensation. Instead, in oligarchic poleis, it’s more often that we see cases decided by smaller bodies drawn from the polis‘ elite, as for instance the role of the gerousia in Sparta as a high court. Still, even in those settings, the impression of the sources is that the role of legal speeches and argumentation remained much the same (though such smaller bodies probably had a more deliberative role).

Via Wikipedia, a map of the Athenian agora. The Square Peristyle (number 1 above) is supposed to have been the main courthouse, though religious issues would have gone to the archon Basileus at the Stoa Basileios (the ‘Royal Stoa’) which is number 17 on the map. Crucially note that these cases are taking place in a public space, indeed in the most public space in all of Athens; there would have been crowds observing important or interesting cases!

So that’s the process: two speeches (which can, but do not need to, include the presentation of evidence, witness testimony or a reading of the laws), each time limited (we don’t know exactly how many minutes, but not too many given the length of the speeches we have), followed by a straight no-deliberation up-or-down vote, repeated if necessary for the penalty phase. Trials of this sort were quite short; they were pretty much were always completed in a single day and probably didn’t take up most of the day either.

The Speeches

The core of the actual trial in the US legal system is typically the testimony of witnesses, which occurs live in the courtroom, with lawyers for both parties questioning those witnesses.11 Lawyers are sharply confined with the sort of questions they can ask and how they can frame them here; they’re not allowed to simply speechify with the witness on the stand but have to be asking certain kinds of questions. By contrast, the ancient Greek trial is organized with legal speeches as the centerpiece, so let’s talk about their style and structure.

Now we first need to caveat our evidence here, because the 150 or so legal speeches that survive to us in the Greek tradition are probably not entirely typical speeches.12 See, the reason these speeches were preserved when so many others weren’t was because these speeches were seen as particularly excellent or effective rhetorically and so they were used as teaching tools to teach effective oratory and rhetoric.13 Consequently, these aren’t your average legal speeches, but what were generally thought to be the best, most elegant, most persuasive, most excellent speeches. So a speech which is two minutes long because one litigant walked in, presented his dead-to-rights physical or testimony evidence and then sat down just isn’t going to be the sort of speech preserved to train rhetorical effectiveness.14 Nevertheless, what we have of evidence for Greek courtroom process tends to confirm that those sorts of cases were rare; Greek courtrooms were heavy on rhetoric and relatively light on evidence or testimony. As we’ll see, this is compounded by the lack of anything like ‘rules of evidence,’ meaning the speeches can in theory be about anything (though in practice talking about the case is a good idea if you want to sway a jury).

From the British Museum, a Roman copy of a third century original bust of Demosthenes. Demosthenes is generally regarded as the finest Greek orator

While there is some variation in the structure of the speeches they have, they often follow a pretty standard structure. We have to wait until the Romans (Cicero, specifically) to get this structure theorized out for us into defined parts, but you can easily identify those parts in most ancient Greek legal speeches (this is also why the parts have Latin names). It’s a six-part pattern.

The opening of the speech is the exordium, which serves as an introduction and usually tries to establish an emotional connection between the speaker and the audience, building trust and laying out the purpose of the speech. Then comes the narratio, a narrative (thus the name) of the ‘facts of the case.’ This tends to be where witness testimony, if used, comes in; the narratio is often a fairly long chunk of the speech and is usually rhetorically kept simple (because a simple rhetorical affect can lead an audience to believe they’re getting the ‘straight story’). After this narrative comes the divisio, where the speaker lays out what they think – or what they want the jury to think – is the key issue on which the case turns (think, “if the glove doesn’t fit, you must acquit” – that’s a divisio). Note that it is the litigants, not a judge, who presents here a theory of the law; the jury has the job of deciding which party’s interpretation of the law is valid.

Having then established the facts (in the narratio) and the key question (in the divisio), we then get the confirmatio, where the speaker presents his affirmative case of how the facts back up his preferred resolution of the key question laid out in the divisio. This is often where the law might be read out, if the case turns on a legal question; ideally the speaker, having framed the divisio favorably to his position can now read the law out in a way that favors his intended resolution. Following this part is the refutatio, where the speaker responds to the other litigant’s arguments; a defendant can respond to arguments actually made, while a prosecutor must anticipate the arguments the defense will make. In a Greek courtroom setting, it was allowed to pose questions to the opposing party, and this tends to happen here, if it’s going to. Finally, the speech ends with a peroratio, a stirring conclusion designed to grab the emotions of the jury. This is generally quite short and the most rhetorically developed part of the speech where a good speaker pulls out all of the stops.

Note that each speaker gets to walk through all of these steps in a row – there is no give and take in this courtroom. One party speaks all the way through, then the other, though speakers often seem to have had to deal with juries (or spectating crowds outside of the court space itself) who might interrupt. Imagine defending yourself in a courtroom where you can be heckled by the jury.) In terms of evidence, you can see where that might be incorporated into the speech. Witness testimony was generally not live testimony, but written affidavits read out by the court clerk; likewise any laws to be cited had to also be submitted to the clerk in writing to be read out (which means you need to go find where that law is written and copy it down).

Now, in most modern court systems, lawyers are heavily restrained by rules of evidence: certain kinds of evidence or statements are deemed valid and others are excluded. Thus in the US legal system, hearsay is excluded (with a whole boatload of exceptions) and lawyers can’t just turn to the jury at any moment and pontificate about any subject they like. This is not how an ancient Greek court works: there are no rules of evidence; you can say anything in these speeches. Legally irrelevant character assassination? Valid. Moral pontificating that makes the jury like you but is at best only tangentially related to the case? Allowed. Political grandstanding? A-OK. Trying to make the case about some partially or entirely separate issue (‘what this case is really about is our foreign policy regarding Philip II and Macedon…‘)? Also fine!

Now on the one hand, making a clear and effective legal argument is still the best way to convince a jury, but on the other hand this structure tends to prioritize rhetorical persuasiveness over an evidence-heavy case.15

With so much depending on direct persuasion, you might ask what a regular person with no training in rhetoric was to do? The answer was to hire a logographer, a professional legal speechwriter. A litigant who worried that he couldn’t write his own speech very well would describe the case to a logographos (λογογράφος, literally ‘argument writer’), who would then write a speech for him. The litigant then learned the speech by heart and recited it at trial (it was bad form to read it, so you are memorizing it). Indeed, most of our ten Attic Orators worked as logographers at least some of the time (some exclusively), which goes some way to explaining why their speeches were so good as to be worth preserving. That said it is worth noting that logographers were really more professional rhetoricians than lawyers. That’s not to say cases didn’t turn on interpretations of law – they absolutely could – but the arguments offered were more often emotional and rhetorical than based on strict legal technicalities. Remember, after all, the audience is a non-specialist jury drawn randomly from the general populace, so appeals to common morality could be as effective as appeals to the laws as written.

Resolution and Purpose

And at last we come to the resolution phase of the dispute. Unlike modern court systems, there was generally no appeal from a jury verdict in a Greek court; these matters were final. For litigants found guilty or liable, the range of penalties available was in theory vast but in practice limited by custom and circumstance. Some crimes, we know, had their penalties stipulated in law but many did not which led to the second penalty phase of the court hearing. Technically both litigants could propose any penalty; indeed Socrates is said to have proposed that his ‘penalty’ for his conviction should be that he be dined at private expense like an Olympic victor for the rest of his life.16 But in practice we see a few common penalties.

By far the most common were monetary damages, be they fines or compensation to the injured party. These could be mixed, so a jury might vote that a defendant (for instance in a case of assault) might both owe damages to the injured party and a fine to the state; there was no distinct word separating fines from damages, so they were only different in that the receiving party of one was the polis. Failure to pay a proscribed fine to the state incurred the penalties for public debtors, which was its own graphe (available to ho boulomenos) which resulted in property being seized to pay the state with the prosecutor, if successful, being rewarded with three-quarters that amount. If a citizen lacked the property to pay (or simply refused to), they were disenfranchised until the debt was settled. Failure to pay damages to a private individual gave rise to its own cause of action, a dike exoules, a legal action to enable the receiver to use force to recover property from the person who owed them.

(Much) more serious was atimia, the imposition of disenfranchisement, often combined with the seizure of property; failure to abide by atimia (by, for instance, doing something only citizens could do like attending the ekklesia) was punishable by death. Juries could also impose exile or outlawry, which seem to have, by the fourth century at least, been distinct from atimia (but perhaps not earlier).17 An exile ostensibly kept his citizenship and thus some of his protections under Athenian law, but could not return to the territory of Attika under penalty of death; but those protections meant that if, say, an Athenian murdered that exile, he could be prosecuted by the exile’s family in Athens for the murder. By contrast, an individual could be outlawed with the formula, ‘Let him die with impunity’ and lost all legal protection in Attika or elsewhere. Non-citizens could also be enslaved as punishment; generally enslavement for non-citizens in Athens seems to be treated as parallel atimia for citizens, so where a citizen would be disenfranchised, a non-citizen is sold into slavery (most often for falsely claiming citizenship).

Finally, as implied, juries could sentence individuals to death. Executions seem to have been carried out immediately unless some religious stricture (like the voyage of the sacred ship) delayed them; as noted there was no appeals process to wait for. For some criminals in Athens there was a barathon (chasm) or orygma (pit) into which prisoners condemned to death were thrown; it is unclear if they were thrown alive or killed by some other means and then ignominiously buried there. Alternately, some condemned, such as Socrates, were made to drink poison. Finally, murderers, traitors and common thieves were executed by being secured to a board with iron bands and left to die of exposure (effectively crucifixion of a sort).18

Two notable options are missing from the menu of punishments: long-term imprisonment and the infliction of non-lethal pain. In the former case, the logistical issues are clear; Athens had a jail, run by the Eleven (who also supervised executions), but this was only to hold defendants for trial. There was no long-term prison nor really the state capacity to have one, so the only punishments available to an Athenian jury were those which could be inflicted instantly. In the latter case, it is striking in Athens that we do not see beatings or floggings as punishments. For my own part I wonder if this has to do with concerns about hubris – violence inflicted with the intent to humiliate – and how hubris would demand retaliation by the injured party. Since a public flogging was, almost definitionally, an act of violence intended to humiliate, it would demand that kind of retribution and that might have been destabilizing. The goal here is to resolve disputes, not create newer and more serious ones.

And that leaves us to one final question I saw asked that is worth answering: why, in such small communities, do the Greeks seem to need such developed court systems? The answer is that they used them, clearly quite a lot. Part of the reason is what you would expect: people have disputes! And with the emergence of a developed court system, it was no longer socially appropriate to settle those disputes through ‘self help’ (or, and we’ll come back to this with the Romans, through systems of patronage). It’s likely that most of these sorts of common disputes were settled in arbitration, but some of them must have bubbled up to full trials when one party refused to accept the result of arbitration.

But most of the trials we see seem to involve the fairly well-to-do and that gets to the other purpose of the court system, which was as a tool of political competition. Remember, this system emerged to control the violent elite feud by channeling those rivalries into the courts. And it worked! And you can easily see how the very structure of these cases, being public with both a large jury and crowds of non-involved observers and having at their core public speeches, lent themselves to elite rivalries and political competition. After all, here was an opportunity before a large audience of the politai to ridicule or lambaste your rival in public or alternately to score very visible points with the citizenry by prosecuting public crimes understood to be wrongs against the whole demos.

We see a hint of this actually in how the same system was viewed in oligarchies. Matthew Simonton notes (op. cit.) that oligarchies generally kept the juries of cases limited to their members of the oligarchic elite (Arist. Pol. 4.1301a), but they also worked to suppress the expression of rivalries within the oligarchy through the courts. Allowing elite disputes to run regularly through the courts, with the public spectacle that implied, could fatally weaken the oligarchy. Aristotle seems to imply (e.g. Arist. Pol. 2.1272b) that instead oligarchies policed their own members extra-judicially, with factions and conspiracies, while using the courts to police the general populace.

By contrast, in a democratic polis like Athens, the courts provided both a channel for those elite rivalries but also reaffirmed the supremacy of the demos. The courts were, in effect one means by which the demos itself decided disputes between elites. Attic orators are clearly aware of this tension and indeed often reaffirm in their speeches, as a way of gaining favor with the jury, the fundamentally democratic character of having elite disputes settled by a jury drawn widely from the politai. But of course that practice, where not only crimes and normal disputes but also elite rivalries and political ambitions spilled over into the courts made for their very frequent use, and given the incredibly wide latitude the system gave for the topics and content of legal speeches, the courts remained a prominent venue for both private and political action in most poleis, as far as we can tell.

  1. I say generally suppose because we have functionally no evidence in Greece for these formative stages. Our earliest evidence for the legal system is in Homer, as below, where it appears already in a fairly developed form. If you want a more detailed sense of the traditional understanding of the origins of Greek law. H.J. Wolff, “The Origin of Judicial Litigation Among the Greeks” (1946) opens with a fairly doctrinaire description. See also more recently M. Gagarin, “Early Greek Law” in The Cambridge Companion to Ancient Greek Law, eds. M. Gagarin and D. Cohen (2005)
  2. That is, an amount of money to be paid by the at-fault party to the wronged party in order to settle a dispute.
  3. ἵστωρ, lit. a ‘knower,’ thus ‘judge’ or even as Gagarin has it, an ‘umpire.’
  4. As noted by S.C. Todd, “Law and Oratory at Athens” in The Cambridge Companion to Ancient Greek Law, eds. M. Gagarin and D. Cohen (2005)
  5. On that debate, see M. Gagarin, “The Unity of Greek law” in…wait for it… The Cambridge Companion to Ancient Greek Law, eds. M. Gagarin and D. Cohen (2005).
  6. I should note also my list of dike demosia leans on MacDowell’s discussion too.
  7. Our evidence for it is much, much, much better. So much better. You have no idea. Every time I look at the evidence for ancient Greece I am so happy to be a Romanist. All hail the corpus iuris civilis.
  8. This process does seem to have changed a bit over time in its technical details, but not its overall character. For a fairly complete (if somewhat older) overview of the voting process in various periods, see A. Boegehold, “Toward a Study of Athenian Voting Procedure” Hesperia 32.4 (1963).
  9. Though it seems to have been common in at least some cases (e.g. the trial of Socrates) for the two parties to try to negotiate at this stage to try to hammer out a mutually acceptable resolution now that the ‘winner’ had been decided.
  10. On this, see MacDowell, op. cit. 36-40).
  11. Yes, I know, a lot of the actual lawyering is in motions practice, but I’m talking in the actual trial with the jury present.
  12. There is also forever a debate about if these speeches actually resemble the real thing delivered in court. I think they do, myself. The whole reason these speeches were preserved was to train oratory and they could hardly do that if they were obviously fake, artificial sorts of speeches. Moreover, as we’ll talk about, for speeches crafted by a logographer, there’s no reason there wouldn’t have been a written copy to work from. So unlike the clearly invented speeches placed in the works of ancient historians (who often admit those are invented), I think we should take these speeches as being at least fairly like the actual speeches given (though probably not exact transcripts) in most cases.
  13. Why teach that when there’s no legal profession in ancient Greece? Because, as we’ll get to in just a moment, being good at legal speeches could be a big advantage for a wealthy young man looking to move up in politics.
  14. In the Roman tradition, Cicero’s Pro Archia actually comes close to being this very thing, actually. Cicero neatly introduces very early that he has show-stopping testimony confirming that his client, who has been accused of falsely claiming to be a citizen, is in fact innocent of the charge. But then Cicero, being Cicero, effectively uses the rest of the speech to stunt, showing off his rhetorical ability with an extended, entirely superfluous defense of the art of poetry (his client was a poet). Because he’s Cicero, easily the greatest Latin orator and arguably the greatest orator full stop (his only rival for the position in the ancient corpus is the fellow pictured below), so why not show off a bit?
  15. I should note that in the versions of the legal speeches that come to us, the actual quotations of the law or witness testimony are generally omitted, replaced with a note where they would have been read (so the speaker asks the clerk to, say, read out the law on homicide and then the text jumps right to where the speaker resumes speaking after the clerk has finished), because the goal here is to train rhetoric. Often the surrounding text lets us infer what was read out by the clerk, though.
  16. The jury did not go for it.
  17. MacDowell (op. cit.) on this, 73-4, 254-6
  18. If you are wondering why the penalties for thievery are so intense, keep in mind that ‘theft’ here often means brigandage, which is to say banditry or mugging, and so involved violence or the threat of it.

84 thoughts on “Collections: How to Polis 101, Part IIc: The Courts

  1. “What have the Romans ever done for us?”

    “They gave us lawyers!”

    “Yeah, that’s not sweetening the deal…”

    1. I can’t speak as to the reason, but a workable transliteration would be “kērux.” (Kappa often gets transliterated as “c”, but using “k” here makes the pronunciation less ambiguous.)

  2. Missing a fairly critical word here:

    “An exile ostensibly his citizenship ”

    Based on context, I believe it had to be ‘kept his citizenship’ rather than ‘lost it’

    Also, if I’ve managed to capture your attention, Mindstalko’s question from two weeks ago is preying on my mind:

    This week:

    “Even in cases where magistrates function as a board, it is often the case that each member of that board carries the full power of the magistracy – it is a board of ten magistrates, not a board of ten acting as a magistrate, which means the individuals can act independent of the board.”

    Last week:

    “Another difference from the Roman model here, it is typically the board that acts; the strategoi collectively have the power to command the armies, not any individual strategos on his own.”

    Seems inconsistent?

    1. It is “often” the case that each member of the board carries full power; the strategoi seems to be a situation where they did not carry full power. It is an unusual circumstance and outside the norm for the society.

  3. I’d be curious (although it’s probably impossible to verify) how ‘well-developed’ these Greek legal systems were in comparison to contemporary non-Greek societies and their legal systems. But of course since things are so much more poorly documented outside of Greece, it’s probably impossible to say. I’m immediately struck by how the ‘Judges’ in the epynomous biblical book spend a lot of time leading military expeditions, conducting assassinations, or occasionally just waging one man wars, and while I can think of resolving a dispute between tribes, I can’t remember resolving any individual disputes within it.

    Still though, I wouldn’t that calling your ad-hoc military/religious leader a ‘Judge’ would happen in a society that didn’t view the judge’s role as important and that implies a legal system of some sort, even if we can’t see into it. And why can’t the same be true in even less well documented societies?

    1. Based on the Biblical account, we know that Deborah, at least, resolved disputes, and may have done so between individuals (“She used to sit under the palm of Deborah…and the people of Israel came up to her for judgment.” Judges 4:5)

      Also, we do know a little something about how Israelite law was supposed to be administered, usually in a way akin to the Greeks as described here–the two litigants would go before the elders at the gate and present their case, and the elders would make their decision.

    2. I wonder how much the use of the word “Judge” in the commonly available translations influences our perception.

      Wikipedia tells me that the world has a root that means “to pass judgment” ( but then it seems that it was used everywhere in semitic speaking areas as the name of a kind of ruler, not of somebody primarily involved in the courts (and that outside the biblical context the Greeks and sometimes the Romans would translate it as king).

      OTOH, having a king also be the highest court for disputes is not unheard of in history.

      1. The Phoenician/Punic word “sufet” is a cognate, and the sufets were non-military Carthaginian magistrates who lead the Carthaginian state, presided in their senate, and had judicial functions (or did the same in Phoenician cities and Carthaginian colonies). Obviously, the Phoenicians had a non-autocratic system, as we know from Roman sources. The “melek”, the king, was, at least in theory, a much more autocratic ruler than the shophet whose rule was more consensual. Samuel’s speech on king’s role compared to his own (as a shophet) is a mark that this is also how the ancient Jews understood it, a few centuries later.

    3. > “I’m immediately struck by how the ‘Judges’ in the epynomous biblical book spend a lot of time leading military expeditions, conducting assassinations, or occasionally just waging one man wars, and while I can think of resolving a dispute between tribes, I can’t remember resolving any individual disputes within it.”

      To be fair, there could be bias in what’s written about. As 60guilders mentioned above, at least Deborah is directly recorded as judging the people, but it’s possible that decades of small claims court and petty dispute resolution weren’t as interesting to write about as a single surprise upset military victory, even if the latter was a tiny fraction of her life. Essentially, the various judges could potentially have spent 95% of their time time “judging”, but it’s the 5% “other” that gets recorded, leading to a perception that they spend all their time on extra-judicial matters. It’s speculation, but it seems plausible to me.

  4. “indeed Socrates is said to have proposed that his ‘penalty’ for his conviction should be that he be dined at private expense like an Olympic victor for the rest of his life.”

    Who was supposed to pay for this private expense? Or did you meant to say “at public expense”?

    1. I think it’s public. Note that Socrates was convicted IIRC 280-220, but the vote for the death penalty was (again IIRC) 360-140. Socrates managed to convince over a third of the jurors who’d thought he was innocent that execution was the correct punishment for the crime they didn’t think he’d committed.

      And this is why a show of contrition is good if you don’t want the serious penalty.

      1. If—and only if—not getting the serious penalty was your goal. If you didn’t care about that—which Socrates apparently didn’t particularly, given that he’d already lived a rather rich life—you could grandstand and argue that you should be REWARDED for your ”crime.“ Which…is its own kind of reward, given that it’s still talked about ~2300 years later—and still kinda inspiring, considering what he was accused of, and what Plato let us know about him.

        If it ever even happened. Which is a fair point to raise on Good Friday (said as a devout Christian who can’t help but be agnostic even so).

      2. That’s just valid conditional logic. If a juror who thought Socrates was innocent believes that the jury’s decision on whether he’s guilty should be respected, then the juror evaluates which punishment is more suitable given that Socrates is guilty. Obviously in that case “death” is more appropriate than “dined at public expense”.

        Which, incidentally, creates an interesting strategic element: if the jury must make a binary choice between what the two sides argue the penalty should be, both sides have an incentive to argue for the penalty closer to what the median juror supports (the median voter theorem). Going second gives you a sizable advantage in that situation, since you then know what the other side proposed (and can hear the jury’s reaction to it!) and thus optimize what you propose to be as good for you as possible while marginally closer to the median juror than what your opponent proposed.

        1. Psychology of juries can be interesting.

          For instance, if you give a jury a choice of a lesser included charge (conviction for manslaughter rather than murder, for larcery rather than robbery), they may go for it because it’s between the larger charge and acquittal even if the larger charge is, in fact, proven. But if you don’t give them the choice of the lesser included charges, it’s under double jeopardy.

  5. “Those arbitration decisions could be appealed, which would send the issue to a jury court, albeit with the requirement that both parties were stuck using the evidence they had used at arbitration and could add nothing to that. ”

    In other words, they could not re-argue the case, only appeal to whether the case had been properly judged; sort of like an appeals court or a Supreme Court (state or federal) decision?

    1. Or possibly they could not add new evidence, e.g. asking for new laws to be read into the record or put forward witnesses or contracts that were not part of arbitration, but would still be allowed to make their speeches.

  6. The lack of legal specialists is surprising. You mentioned that non-citizens had to find a citizen to prosecute on their behalf (a prostrates), but did none of these folks become essentially specialists in legal rhetoric and representation of non-citizens after doing it a fair amount?

    1. That would depend on whether it was either legally forbidden or socially frowned on to do this for money; the British had the solicitor/barrister system to maintain the legal fiction that the barristers weren’t mere “tradesmen” selling themselves for coin for example. Otherwise I suppose some citizen could have been a “do-gooder”, but at some point they might have gained a reputation as a gadfly.

    2. Is it really? There doesn’t seem to be much evidence for a well developed body of procedural law. If there’s no complicated paperwork to file, no strict rules about what sort of evidence is and isn’t admissible, no system of appeals that you might need to navigate through, no precedent to impose stare decisis, then a lot of what the specialist lawyer does today simply isn’t applicable.

      If the main skill involved in arguing a case in these courts is your rhetorical skill, that’s something a bit broader than being a lawyer, and probably has all sorts of applications that its better practitioners would want to use in fields besides just arguing cases. Politics probably has more immediate rewards.

      1. Supposedly the Sophists were paid quite handsomely to train citizens in rhetoric, although most of what we know of them mostly comes, to my understanding, from Plato (who HATED the Sophists).

        There’s a story that one of the Sophists, Protagoras, gave a man named Euathlus training in rhetoric on an agreement of deferred payment, where Euathlus would pay once he’d won a case at trial for the first time. Euathlus went on to use the rhetorical teaching for politics and actively stayed out of courts, so Protagoras sued him, arguing that if he won the court would have determined that Euathlus had to pay, and if Euathlus won then he would have won a case, which would mean the agreement would take effect and he’d have to pay. Euathlus responded that if he won, the court would have determined that he owed nothing, and if he lost he still wouldn’t have won a case so the arrangement wouldn’t come into effect.

        Nothing to do with anything, just a great circular Greek rhetorical slapfight I really liked.

        1. I’ve heard that paradox before, but the structure of the court described here actually sheds more light on how it would go down if it actually happened! Protagoras is trying to set the divisio as being about whether he is owed something for his teaching even though Euathlus has evaded the agreed on payment by avoiding it’s conditions, following the letter of the agreement but breaking it’s spirit; Euathlus is trying to set the divisio as being about holding to a contract, emphasizing that he has followed the contract both agreed to and it’s not his fault Protagoras didn’t foresee him not taking any cases. The arguments aren’t as symmetrical as they sound from the standard framing! Since P is bringing the suit, if E wins then he walks away without paying, and P either accepts this or sues him a second time, saying, “Look, he won that case so NOW he owes me,” and they have to argue it again. If P wins, then they go back to the jury for the second vote to decide how much he actually has to pay. (And E would be smart to propose something like paying half the originally agreed amount as a compromise, since he has now undoubtedly won a case.) The fact that deciding who’s in the right and deciding on payment are separate phases, separated in time, breaks the setup of the paradox where deciding who “wins” and deciding whether E has to pay P are a single event.

          1. I would say that the whole issue here is the confusion of meta-level (first or higher order logic) and predicate logic. The case is not far away from Russell’s paradox and I would wager it can be reduced to it. The Greeks were good at finding paradoxes like this, but lacked the necessary logical and mathematical tools to handle them.

  7. “If there was not a clear penalty proscribed by law”- should be “prescribed”, unless certainly penalties were proscribed as unjust.

    1. Also,
      “Failure to pay a proscribed fine to the state incurred the penalties for public debtors”

  8. One question: if someone didn’t pay and their property was designated to be siezed, who actually did that? Was it the individual who prosecuted them? That would seem like it’d make it hard to enforce actual recovery if there was a power imbalance and the defendant decided to resist by force. Did some of the magistrates do it? Or was it an accepted rule that whoever had the time would form a posse to take stuff? Same for arrests of people with friends, though I guess the existence of tyrants shows the systems for that weren’t very good.

    1. In the Icelandic Commonwealth, which by design did not have government officials to do such a thing, it was a common practice in that situation to sell one’s claim to someone strong enough to enforce it, i.e., “Chief Thorvald, I can’t make Chief Lief pay what the Althing said he owes me, but if you make him pay you can keep a quarter of it”. Of course, as Chief Lief knows you can do this, he may just go ahead and pay up instead of having to deal with Chief Thorvald coming with a bunch of armed men to make him do so.

      1. There’s also the standard judgement in cases of outlawry – ‘that his goods be forfeit, half to the accuser and half to the men of the quarter”. Presumably to encourage the latter to join in enforcing. If the sagas are accurate, they did not collect often.

  9. Typo: “appeals to common mortality”

    (I suppose that giving the jury a “memento mori” might not be ineffective in some cases, but I don’t think that’s what you were talking about!)

  10. ” Alternately, cases coming before the thesmothetai or the diskastai might be sent to arbitrator”

    to an arbitrator.

  11. At some point I promise I will write a series whose organization does not look like a parody of itself.

    I do not anticipate this happening while Devereaux has a day job. Or books he wants to write.

    1. From someone who has read every post on the blog, please feel free to divide up you subsections however you like. Pretty much every time you divide more than you initially planned I know I’m in for a treat because you have a lot to say. This week is no exception. It’s a great entry.

  12. As a lawyer, I find the differences less stark and there is a lot of similarities that carry through. While the common conception of the law is as a means of enforcing conduct, it can also be viewed as a construct to resolve disputes predictably and through that process, then enforce predictable conduct. So law isn’t so much an abstract concept that we seek to enforce but rather a means towards an end. With laws come predictability, and that avoids disputes or people can resolve their disputes more easily, and only turn to the courts if enforcement or a dispute as to what the law says arises. For instance, all of contract law is to settle disputes on agreements between parties. Private and civil law is all about dispute resolution.

    In the criminal context, the modern approach is societal, with the crime being committed against the state or the people. But depending on your jurisdiction, private prosecutions can still be permitted. You can also see the same challenges being tackled with respect to whether a party can even sue over an issue based on the rules of standing, and as with Athens, we also have certain issues where anyone can bring a suit, with looser rules of standing.

    Today, much of the courts is about dispute resolution, as that the primary purpose to determine if an disputable event occurred under the law, the circumstances of the dispute, and then ultimately resolve the dispute. This is particularly true in the civil context as it is essentially all dispute resolution, even if you are seeking an injunction.

    We can see the roots of dispute resolution through the rise of ADR such as mediation and arbitration. In my jurisdiction, we even have a new tribunal where legal representation is barred, and this tribunal adjudicates all cases below $5,000. Up to $35,000 is small claims where there is some legal representation, but the court and judges bend over backwards to help the parties navigate the system.

    With respect to the role of the court, judges and jury, and the split between the trier of fact and the trier of law, the lines have blurred, especially depending on your jurisdiction. While the US of course has a heavy emphasis on juries, only certain criminal cases in Canada for instance, are eligible for juries. Outside the common law, juries are generally unheard of in most cases, especially in the civil context. In all other cases, and all civil cases, the judge is both the trier of fact and trier of law and wears both hats. The concept of jury nullification also blurs the line a bit between the facts and law, and is a residual power on the interpretation of laws.

    For many common law jurisdictions, there is also the law of equity and the courts of equity, which have been codified to a great extent. But the idea there was to resolve disputes in the most just manner possible, and as a court of inherent jurisdiction, the remedies that can be granted can be very creative under equity, though its been reined back by codified law over the centuries. But you will see some creative remedies and sentences and a lot of that flows from the historical courts of equity. For instance, an injunction is an equitable remedy, unless it is otherwise grounded in a statute that specifically provides for an injunction as an remedy, which is generally rare.

    For witnesses and evidence, in most common law jurisdictions, the direct examination is the one with all the constrained rules, but cross-examination is generally much broader in scope. As much as evidence plays a role, the closing submissions are where we see much grandstanding these days, and a chance to pontificate. So long as there is a connection to the evidence heard (or not heard, as in an omission or hole in the evidence), counsel can pretty much say whatever they want, especially on a judge alone trial.

    On that point, there are actually quite a lot of paper motions, or applications or trials heard on a paper record, entirely on agreed facts, affidavit evidence, and ‘paper’ record evidence. So there are actually no live witnesses in court. With agreement of the parties, even if you had witnesses, a deposition can be the ‘paper’ record for the trial as well, with the witness having testified and put under cross as well on what is essentially what is no different than an affidavit. This is especially common for civil matters, where the parameters and facts of the dispute might not be in much question. For criminal cases, it is far more rare and generally more for pre-trial matters.

    1. Some interpretations of Shariah law, similarly to what Mr. Devereaux is saying about the Greeks, also treat homicide as a crime against the family of the victim as well, rather than a crime against the state or against God. (In all functioning Islamic countries today, though, as far as I know, Shariah is just one source of law among others, not the only source).

      1. Tomek Kulesza is perorating, so it’s unnecessary for it to have anything to do with the case.

      2. This has to do with the part of this blogpost where author points to patreon as a mean to support him, with conjunction of his outspoken support for Ukraine in the war.

        Frankly, I thought it was obvious.

  13. This is really fascinating! Now I remember an odd incident from the trial of Socrates in Diogenes Laertius (or his source Justus, rather):
    > [I]n the course of the trial Plato mounted the platform and began: “Though I am the youngest, men of Athens, of all who ever rose to address you”—whereupon the judges shouted out, “Get down! Get down!”

  14. Though this is a Roman example, I have always been rather confused by one description of long-time imprisonment. Thus writes Pliny the Elder:
    “In the second Punic War L. Fulvius, a banker, who was said to have looked out into the Forum from his veranda wearing in the daytime a chaplet of roses, was on the authority of the senate led away to prison, not being released before the end of the war”

    1. Without knowing the circumstances I can’t say for certain but it sounds like wartime internment: so-and-so hasn’t specifically done anything wrong but their background is suspicious enough that security demands that preemptive measures be taken. Maybe before war broke out he loaned the Carthaginians a lot of money?

  15. One notes that the legal fiction in common law systems is that the State can act on its own behalf and it’s a dispute between it and the alleged criminal.

    Indeed, it started with a king using the tort of disturbing the peace (of a person) and the steady expansion of the king’s peace to cover more and more of the kingdom.

    1. Oh? Interesting. Which king?

      It seems to me that this serves the useful function of ensuring that neutral policies can be enforced, especially when the offender has a great advantage within the community.

      We can imagine a system in which, say, a charge of battery is a private dispute where charges must be pressed by the victim. And where unlettered peasants are expected to bring their disputes before an elite tribunal drawn from the landed gentry. And where “he had it coming” is an admissible defense for the charge of battery. In such a system, the law against battery is unlikely to be enforced if a peasant gets beaten up by a son of the aristocracy, who has more sympathy and training when it comes time for him to navigate the legal system than the peasant does.

      Creating the legal fiction that “the nation of Elbonia” can be the one in a dispute with young Lord Hothead for horsewhipping Joe the Peasant enables the Elbonian court system to hire professional prosecutors, at which point the odds of Lord Hothead being accountable start improving. Especially if this is combined with a professionalized court system.

      But if the English-speaking common law countries handle such cases this way, how is everyone else handling it? In developed nations, the idea that the state [i]cannot[/i] enforce laws directly and must rely on private citizens bringing up their own charges in most cases seems to be rare, so they must be doing it some other way.

      1. The King’s Bench (late 12 or early 13th century) is the first English court to take cases as lying between the offender and the crown, rather than between the victim and offender (so an offence against the ‘King’s Peace). Brett will no doubt enlighten us in due course on Roman law systems.

        1. We could also bring up the German concept of Landfrieden (countries peace). One important idea in the concept of Landfrieden, is that law breaking isn’t some dispute between two parties, but between the offending party and the community, and thus should be dealt with by the community.
          An idea I have to add, that needed to be enforced by groups of armed men chasing each other through the country side, and the slighting of castles.

          1. Swedish medieval law has something similar, starting with a set of “peace laws” (in the classical formulation, protecting people at the thing, women, people’s houses and churches) that every dignitary had to swear to uphold and then expanding from there. These were also some of the first laws that applied to the entire country, and not just a single province of it.

  16. There’s a lot here similar to Icelandic and old Norse law, which also was designed to arbitrate elite disputes. Taking money for legal help was a crime in itself, the only official role was to confirm that a move was lawful, and juries were made up by lot or selection by both parties. Any remedies were for the winning party to apply, if they could.

  17. I’ve served on a jury where heckling the prosecutor would have expedited the process tremendously and we could all have gotten home in time for dinner. (It was a conviction.)

  18. Bret, here is my list of possible proofreading considerations for you:

    that theirs of the job of enforcing > that theirs is the job
    depend on the judgement > judgment
    who noticed an offensive > offense
    might be sent to arbitrator before a public arbitrator > sent to arbitration
    modern western concept > modern Western concept
    vote for in favor of whichever > [delete extraneous word for?]
    the other (though speakers . . . the other (though speakers . . . pace itself) who > [is there a closing parenthesis missing here?]
    An exile ostensibly his citizenship > [missing word: lost?]
    at least leaves us to one final > [either “least leads us to one” or “least leaves us one”]

    1. it is striking in Athens that we do not see beatings or floggings as punishments.

      Intentional or not, that was an amusing pun.

  19. “appeals to common morality could be as effective as appeals to the laws as written”

    I get the impression that the court system was older than written law, so was common morality meant to be the basis of the written law anyway?

  20. Now I’m wondering how common extrajudicial punishments were. As in, the elites operating independently from the courts just because they could, but ostensibly as some sort of justice.

    1. The lower ranks could lynch as well. If the family were cowed enough, it would not even be dangerous.

  21. This makes me (more) curious about government finance. Juries of thousands paid three obols for service is starting to add up to real money as I understand the value of an obol (IIRC 3 a day was what rowers got for service in the Athenian fleet). Obviously, the leases on the silver mines and the payments from the empire both produced income, but I get the impression that the general system probably predates the mines and empire. Even 500 jurors at 2 obols a day is still something like a man-year’s income or more for every trial.

    1. Minor point, but I believe six obols (=1 drachma) was the standard pay in classical Athens for heavy, moderately-skilled work like rowing. Jury duty, which paid half that, mostly attracted those too old or unhealthy to do heavy work.

    2. In other cultures payment in goods was accepted–I’ve read about ransoms (in the Middle Ages, where this was an accepted part of war) where the captors demanded gold or equivalent, and the payment included grain and other agricultural products. Could something like that happen here? Maybe you don’t get paid in coins, but you get some fabric or oil or a goat or a certain amount of labor.

      1. Which still leaves you needing a source of substantial government income. Most anchient societies were pretty light on taxing citizens (although Greek citizens would give money for the prestige in some cases, but I can’t see too many people voluntarily sponsoring a trial). Even if the payments aren’t cash, the government still needs something to pay with, and it needs to be enough income for 500 citizens to be willing to (voluntarily) show up for Jury duty.

        1. There are three potential sources I can see (bearing in mind that almost everything I’ve learned about classical Greece was from this blog so this is speculative):

          First, you have conquest. Money and goods taken from enemies is money you don’t have to tax out of people. Not sure if this would be a factor here; it would depend on successful campaigns. But it’s not exactly unique–the Admiralty of the British Royal Navy considered doing so when they captured the Spanish treasure galleons right before declaring war on Napoleonic France again.

          Second is public slaves. They’ve been mentioned a few times, and might have been a source of public goods/funds through which jurors could be payed. My ignorance of Greek culture is such that I’m not sure if this would have been viable.

          Third is payment from one of the parties in the trial. This could happen one of two ways. First, we offer to pay the jurors in order to get to trial–useful if you’re using the trial as part of a run for public office. But, as you say, this is expensive and likely not to be too common. Second, the loser may have to pay court costs, including juror pay. This would be similar to what we have today.

          1. If the prosecutor didn’t get 20% of the jury to vote on his side, he had to pay for the trial, but this means that if he got 20-49.999% he lost but did not pay for the trial, so it’s not loser pays.

    3. FWIW:

      “Much of this income came from publicly owned farmland and silver mines that were leased to the highest bidders, but Athens also taxed imports and exports and collected fees from immigrants and prostitutes as well as fines imposed on losers in many court cases. In general, there were no direct taxes on income or wealth.”

      So, sustainable (non-mine) income: rent from public land, tariffs/excise taxes, residence taxes? on metics, fees on prostitutes, court fines. Plus what the article goes on to talk about: ‘liturgy’ or big contributions by the richest Athenians to fund triremes, militia, festivals. Ad hoc contributions from high income or wealth that were “voluntary” apart from the pressure of social esteem and perhaps the threat of ostracism (exile) if you were seen as too wealthy and selfish. (Then again, Wiki says the last recorded ostracism was around 417 BC.)

      Wiki “Economy of Ancient Greece” says

      > Taxes were levied on houses, slaves, herds and flocks, wines, and hay, among other things. The right to collect many of these taxes was often transferred to publicans, or telônai (τελῶναι). However, this was not true of all cities. Thasos’ gold mines and Athens’ taxes on business allowed them to eliminate these indirect taxes. Dependent groups such as the Penestae of Thessaly and the Helots of Sparta were taxed by the city-states to which they were subject.

      No further detail on Athens business taxes. I’m also looking askance on the spin of Helots there.

      So, a mix of public land rent, tariffs, wealth taxes apart from a simple land tax (maybe that too somewhere), and exploitation of vulnerable groups.

  22. I see from the Wikipedia article on obols that 3 obols was (maybe around the time being discussed here) a typical fee for a prostitute. Which suggests that the Athenian jury remuneration was considerable more generous than that in the typical American jurisdiction, where you won’t get paid enough to buy a hooker.

    1. I imagine that prostitution being both fully legal and practiced by slaves made the fees cheaper.

    2. AIUI a drachma/day was considered a decent wage to support a family on. 3 obols might then be comparable to minimum wage. In the US, that would be $58/day. (7.25/hour, last set in 2009, so with inflation adjustment should arguably be $80/day.) US jury compensation ranges by state from nothing up to $50/day. So just from that, we can see that Athens paid much more in relative terms. Also, jury service was voluntary (I believe you had to sign up for it) and guaranteed to last only a day per trial, if that.

      1. As Bullseye said, part of the difference is that the US peculiarly makes sex work illegal, driving up the price. That’s not Baumol.

        Per my minimum wage calculation, $80 wouldn’t get you far with US escorts, but I dunno, might get you a quickie with a streetwalker if you can find one? Would 3 obols have gotten you anything more in Athens?

        But worldhistory dot org claims “Solon set the price of a session with a prostitute at one obol.” Wikipedia “In regards to price, there are numerous allusions to the price of one obolus for a cheap prostitute; no doubt for basic acts. It is difficult to assess whether this was the actual price or a proverbial amount designating a “good deal”.” But then also “The average charge for a prostitute in 5th and 4th century ranged from three obols to a drachma.[8]”

        Both sources claim there were gigolos for female clients, without much source other than Plutus.

        ‘Expensive prostitutes could charge a stater (four drachmas),[9] or more, like the Corinthian Lais in her prime did.[10] In the 1st century BC, the Epicurean philosopher Philodemus of Gadara, cited in the Palatine anthology, V 126, mentions a system of subscription of up to five drachma for a dozen visits. In the 2nd century, Lucian in his Dialogue of the Hetaera has the prostitute Ampelis consider five drachma per visit as a mediocre price’

        5 drachma/12 visits would be back at 3 obols per visit. Lucian is from 2nd century _AD_ so devaluation might have applied by then. (Were eastern Roman coins called drachma and not denariis?)

        Over in earlier Imperial Rome, “The fees recorded at Pompeii range from 2 to 20 asses per client”, with I think 16 asses per denarius, the rough Roman equivalent of the drachma. 2 asses would be a bit less than a obol, 20 would be over a drachma.

        1. The distinction between a common prostitute and a hetaira was that that the latter did not have a fixed price. Indeed, there are court cases where the speech emphasized the set price to establish the lowly status of common prostitute.

  23. You know, thinking about justice systems as a way to prevent elite feuds makes the idea of trial by combat make a lot more sense to me. I never quite understood the logic behind it (if you believed that God could intervene to decide the outcome of a duel, then couldn’t He also intervene to decide the outcome of i.e. a coin flip – “heads if he’s guilty, tails if he’s innocent”?). However, through this lens, it seems to be more of a way to limit the violence that could arise from elite disputes – you fight one duel and accept that it puts the matter to rest, rather than having a bloody, multigenerational feud.

    Do you know if that was (part of) the reason that trial by combat became a thing?

    1. Dueling, at least in the early modern world, was as much a call for arbitration as a fight. When a challenge was accepted, the first thing that usually happened was the seconds would go and try to negotiate a face saving way out of it that both sides could accept. Only when this failed did you proceed.

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