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Note: Greek law is its own subfield, so it is worth providing a quick bibliography note here; it may be a few years out of date as I am drawing on my coursework on Greek law, which was at this point nearly a decade ago.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 Lipsius‘ Attisches 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).

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:

Trial!

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).

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).

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.