Athenian Court Systems Outline

I. Types of Laws

A. Draconian Laws

1. Punishment for all crimes was death

2. Draco was infamous “lawgiver” [judge] who started the harsh penalties

B. Solonian Laws

      1. Concerned with repayment of money

      2. Solon = lawgiver who created these laws.

            a. created other lawgivers called “Archons”

                        i. monopoly on justice

            b. Thetes

                        i. common citizens for juries

      II. Types of cases

A.     Dike

1.      private cases / civil cases

2.      person v. person

B.     Grafe

1.      Pubic cases

a.                   treason

b.                  murder

c.                   embezzlement

      III. Laws and Punishments [Solonian]

A.     Adultery

1.      death

B.     Rape

2.      pay a fine

C.     No talking about dead people

D.     Leave money to anyone if you have no children

E.      Free access to water

F.      Only oil can be exported

      IV. Courts

A.     Areopagus

1.      homicide

B.     Palladion

1.      Unintentional homicide /manslaughter

                                                                           i.      punishments

a.       exile

C.     Prytaneion

1.      killers of animals and those killed by animals

 

       V. Jury

            A. Large #s

                        1. 6001 jurists!

            B. only 30+ yr old males

 

        IV. Procedures

A.     No prosecutor or defense attorneys

B.     Speeches only

C.     Jury by knobs

1.      Innocent = solid knob

2.      Guilty = hollow knob

D.     No cross examination

1.      slaves could testify only under torture

E.      Men only could plead in court – no women allowed.

1.      Women had to work through their male relatives

 

 

 

THE ATHENIAN COURT SYSTEM

In order to study the ancient Athenian court system it is essential to examine the two legal codes, the Draconian and the Solonian Codes of Law, which had a great influence on the courts in Athens. For the decisions handed down by these courts were based, at least in theory, on these written laws. It must be stated at this point that all the laws attributed to Dracon and Solon were not necessarily written by these individuals. Any laws that were written during the period of time in which the Athenian society was under the influence of the laws of either Dracon or Solon were attributed to them, whether or not they had actually written them.

The first written laws appeared in Athens around 621 B.C. They were attributed to Dracon, a thesmothes (a lawgiver). The punishment for all offenses was death. Regardless of how small or serious the infraction the punishment was the same. Dracon felt that people guilty of small infractions of the law deserved the death penalty and that there was, after all, no greater penalty for those that had committed the more serious infractions. As a result, laws today which are cruel and harsh are sometimes referred to as Draconian.

(A discussion could center on how harsh or mild the laws should be. See ‘Teaching Strategies’ below.)

One would tend to think that such a harsh code of law as the Draconian Code would incite the people to riot and rebel. This was not the case in Athens. Our sources, primarily Aristotle’s Constitution of Athens, suggest it was apparently the disparity of wealth between the rich and the poor which caused the collapse of the existing constitution. Another important factor seems to have been the demands of rich men from common families to share in the privileges reserved for the aristocrats.

The people of Athens realized that they needed someone to revamp their constitution to stop the quarreling among the various families. The rich were concerned about collecting their debts and the poor were concerned with paying these debts. All groups agreed that Solon was the man for the job. For Solon owed no one and no one owed Solon anything.

Solon was given a great deal of leeway in reorganizing the Athenian constitution. Solon’s first step was to abolish all of Dracon’s laws except the ones pertaining to homicide. The affluent wanted Solon to aid them in collecting their debts, while the poor wanted Solon to divide up the land and give everyone an equal share. Solon however acquiesced to only the first demand.

Solon was able to appease the poor by cancelling all debts. It was also common at this time for Athenians to use their bodies and those of their family to secure loans. Solon outlawed this practice. The wealthy non-aristocrats were satisfied when he instituted a property qualification for admission to the archonship, the chief magistracy, previously the sole prerogative of certain noble families. Under Solon’s new system, they were elected from the richest of the four newly created Solonian classes. The archons had a virtual monopoly on the administration of justice.

The lowest class in the Solonian system was made up of “Thetes” who were initially prohibited from holding public office. These were common citizens. From this group most of the members of the jury were selected. (The process of selecting a jury will be discussed in detail later in the unit.)

The decisions of the magistrates called “archons” could be appealed in the courts. As time passed, it became so common to appeal the decisions of the archons that they, instead of passing judgement, referred the cases to the appropriate courts.

There were two types of cases handled by the Athenian courts. First, there was the dike or private case. This type of case did not affect the community as a whole but involved individuals who claimed they had been wronged. This type of case could only be initiated by a person who was personally involved or affected by the case. Second, there was the graphe or public case. This type of case did affect the community. Cases of treason, desertion, or embezzlement of public funds serve as examples of ‘graphe’ cases. Any Athenian male citizen could initiate this type of case. It should be noted that in both cases if the prosecutor received less than 1/5 of the jurors’ votes a substantial fine was levied.

It would be impossible to examine every law attributed to Solon. The laws listed below were chosen to give students an idea of the wide range of laws and how some of these laws dealt with some of the practical problems of an agricultural society. A discussion of these laws should occur with students while covering this part of the unit. I would also suggest that if a teacher would like to examine some of Solon’s other laws that they refer to the books listed in the teacher’s bibliography concerning the life of Solon. Among the laws are the following:

1) A man was permitted to kill an adulterer caught in the act.

2) Fines were levied against men who either forced or enticed a free woman.

3) Men were forbidden to talk evil of the dead.

4) Athenians were permitted to will their estates to people outside of their family if there were no children.

5) If a man couldn’t find water within a certain distance from his house he was permitted to use his neighbor’s well

6) Among agricultural products, only oil could be exported.

Jury duty was optional in Athens. The only judicial service required from all Athenian male citizen was that after their fifty-ninth birthday they had to serve as arbitrators. An arbitrator tried to settle a case without it having to be taken to a court.

The Athenian court system was comprised of a series of courts. A few of the courts that we are aware of that existed in ancient Athens are:

1) the Middle Court

2) the Greater Court

3) the Red Court

4) the Green Court

5) the Areopagus

6) the Palladion

7) the Delphinion

8) the Prythaneion

The Middle, Greater, Red, and Green Courts were for the lesser offenses. Our knowledge about these courts is somewhat limited. However, we know a great deal more about the proceedings of the Areopagus, the Palladion, the Delohinion, and the Prytaneion. These are the courts where the homicide cases were judged. These are the courts that I wish to focus on in this part of my unit.

The Areopagus received its name because it met on the hill of Ares in Athens. This court had the sole right to try cases of intentional homicide. The Areopagus was comprised of ex-archons who had had experience in government administration, including the court system. The tone of this court was more serious than that of the other courts due to the seriousness of the cases dealt with in this court. Even though the death penalty was still on the books from the Draconian era, it was not the inevitable punishment. Some common judgements that were handed down included sending the guilty person into exile or confiscating the murderer’s property.

The Palladion was reserved for cases concerning unintentional homicides. For example, if someone was killed in a wrestling match, that person would have to appear in this court to prove that the homicide was accidental and unpremeditated. In this case the person involved was usually never punished. A common punishment for unintentional homicide was exile.

I think that many students would love to hear about how a person who was already in exile would defend themselves against a charge of homicide or infliction of bodily injury. The accused would have to make his defense standing in a boat offshore at a specified place called Phreatto while the jury convened on the beach.

If a person felt that they were justified in killing a person their case would be tried in the Delphinion. It was justifiable homicide to kill an adulterer caught in the act or a burglar caught in the act at night according to Athenian law.

The last Athenian court I would like to discuss is the Prytaneion. This court tried homicide cases in which animals, inanimate objects, or unknown person were responsible for a death. If an animal or an object was found to be responsible for a death, the animal or object was removed from Athens, or the animal was put to death.

The unknown person was sometimes “forced into exile” by decree. The purpose of prosecuting the animal, the inanimate object, or the unknown person was to prevent other citizens from meeting the same fate. It also gave the Athenian citizen the feeling that something official was being done.

The next aspect of the Athenian court I would like to examine concerns the jury system and its selection process. The Athenians believed in large juries and taking elaborate precautions to avoid corruption. The size of the juries could run as high as 6,001 members, depending on the severity of the case. The juries were composed of an uneven amount to avoid ties. Ties would work in favor of the defendant because a tie meant acquittal and there was no appealing a decision of a court.

Another interesting aspect of the Athenian jury system was that the jurors were paid about 1/3 of what a skilled worker was paid for a day’s labor, three obols. This wasn’t a great amount of money, but only the citizens that were somewhat well-off could afford to give up a day’s earnings. Thus, some Athenians were not enticed by this payment.

In order to become a juror all one had to be was a citizen of Athens, i.e., a male born to Athenian parents, and be at least 30 years old. Under the system used for most of the fourth century, a person who wished to become a juror had to report to an area designated for his tribe. (there were 10 tribes which had been created by Cleisthenes near the beginning of the fifth century) They would draw lots with their fellow tribe members for a ticket which would indicate whether they would serve that day and, if so, in which court they would serve. An allotment machine was used in this selection process.

Once the jury was in court, lots were drawn to select a juror to work the water clock. The water clock was used to time the speeches of the defendant and the prosecutor. The length of the speeches depended on the penalty involved. The clock was only stopped for testimony or the reading of a deposition by a clerk. There was no evidence in the form of exhibits presented at trials. A slave’s testimony was only admissible if it was made under physical torture. In addition to choosing a juror to monitor the water clock, four jurors were selected to count the votes.

The jurors were given two bronze knobs, one hollow, the other solid. Bystanders could not tell which knob was which. If the juror felt the defendant was innocent he cast the solid knob, if he believed the charges made by the plaintiff, he cast the hollow knob. The winner would be decide by a simple majority.

It must be emphasized at this point that there was no public prosecutor and cross examination of witnesses was not allowed. The case was thus decided by the speeches made by the plaintiff and the defendant involved in the case. The participants spoke for themselves. Others could join in speech making for either side if the person was unable to speak adequately. Also litigants employed paid speech writers (which was an illegal practice, but was common nonetheless) known as logographoi. Some of the well known speech writers of the time were Lysias, Antiphon, Aeschines, Demosthenes, Isaeus, Isocrates, Andocides, Aeschinese, Demades, and Hyperides. (See book in ‘Teacher’s Bibliography‘ for several court cases with speeches written by several of the above mentioned.)

Another interesting aspect of the Athenian legal system was that only free male citizens could instigate litigation. If a women wanted to bring someone to court, she would have to do it through her father, her brother, or some other male relative.

Before concluding my discussion of the courts in Athens, an examination of the role the Athenian political clubs played in this legal system must be noted. One reason why precautions were taken against corruption in the jury selection process was due to the activities of these political clubs in Athens.

When I first read about these activities I became somewhat dismayed with the justice system in Athens. However, upon further study and thought I realized that due to the large size of the juries these club activities may have been somewhat ineffectual and justice was a reality and not a farce in the Athenian legal system. I feel these club activities should be cited in order for students to get an accurate picture of the Athenian court.

Some of the ways in which these clubs tried to influence the courts are:

1) Friendly Prosecution—in this instance someone from the same club as the defendant would prosecute, but they would present a weak case.

2) Counter Suits—a member of the club would instigate a suit against the person prosecuting a fellow member of the club in hopes of getting the accuser to drop his case.

3) Creating Sentiment—club members would circulate favorable stories about the defendant and lies about his opponent or vice versa depending on the position of the club member.

4) Falsifying evidence or Suppressing evidence

5) Bribery of jurors

6) Antidosis—a person assigned a “liturgy”, i.e. paying for some public enterprise, challenges another man to pay for the liturgy or to exchange property with him.

7) Assassination

Athenian Radical Democracy

The structure of the new court system reflected the underlying principles of what scholars today call the “radical” democracy of Athens in the Golden Age of the mid-fifth century B.C. In that system, candidates for the office of general (strategos) and a few other offices competed in elections for their annual offices because their posts required special competencies. Most posts in Athenian government, however, were filled by lot from among the adult male citizen body. All adult male citizens could attend the assembly, which met in regular session about forty times a year, to propose, discuss, and vote on legislation. The egalitarian nature of Athenian radical democracy depended on a set of principles, which was not without its own internal tensions: 1) wide-spread participation by a cross-section of male citizens in government and the administration of justice, 2) selection of participants at random for most public offices, 3) elaborate precautions to prevent corruption and strict procedures for reviewing the performance in office of officials, 4) equal protection under the law for citizens regardless of wealth, 5) some legal restrictions on citizen women, 6) privilege being given to the interest of the majority when that interest was in conflict with the interest of any minority or individual, while maintaining at the same time 7) a firm respect for the freedom of the individual.


Ostracism

The potential conflict between Athenian radical democracy's principle of privileging the interest of the majority while valuing the freedom of the individual can be seen most dramatically in the official procedure for exiling a man from Athens for ten years. Every year the assembly voted whether to go through this procedure, which was called ostracism (from the word ostrakon, meaning a piece of broken pottery, the material used for ballots). If the vote was affirmative, all male citizens on a predetermined day could cast a ballot on which they had scratched the name of the man they thought should be exiled. If 6,000 ballots were cast, whichever man was mentioned on the greatest number of them was compelled to leave Attica for ten years. He suffered no other penalty, and his family and property could remain behind undisturbed. It is important to emphasize that ostracism was not a criminal penalty: men returning from ostracism enjoyed undiminished rights as citizens. Ostracism served different purposes. The first ostracisms, for example, which occurred in the 480s B.C., were intended to protect democracy, after the appearance of the ex-tyrant Hippias with the Persians at Marathon in 490 B.C. had spread the fear that someone might try to reestablish tyranny in place of democracy. Ostracism could also serve as a mechanism for placing blame on an individual for a failed policy that the assembly had orginally supported. Cimon, for example was made the scapegoat for the disastrous Athenian attempt to cooperate militarily with Sparta during the helot revolt of the late 460s and therefore ostracized. Ostracism was not undertaken casually, it seems, at least not if one judges from the number of men ostracized in the fifth century. The total of men ostracized probably amounted to no more than a total of a dozen or two. Ostracism fell into disuse after about 416 B.C. because the procedure was discredited by the discovery of a conspiracy by two prominent politicians, Alcibiades and Nicias, to manipulate the process to keep themselves from being ostracized.


 

 

 

 

Pericles on Athenian Democracy

 

Our constitution does not copy the laws of neighboring states; we are rather a pattern to others than imitators ourselves. Its administration favors the many instead of the few; this is why it is called a democracy. If we look to the laws, they afford equal justice to all in their private differences; if to social standing, advancement in public life falls to reputation for capacity, class considerations not being allowed to interfere with merit; nor again does poverty bar the way, if a man is able to serve the state, he is not hindered by the obscurity of his condition. The freedom which we enjoy in our government extends also to our ordinary life. There, far from exercising a jealous surveillance over each other, we do not feel called upon to be angry with our neighbor for doing what he likes, or even to indulge in those injurious looks which cannot fail to be offensive, although they inflict no positive penalty. But all this ease in our private relations does not make us lawless as citizens. . . . Our public men have, besides politics, their private affairs to attend to, and our ordinary citizens, though occupied with the pursuits of industry, are still fair judges of public matters; for, unlike any other nation, regarding him who takes no part in these duties not as unambitious but as useless, we Athenians are able to judge at all events if we cannot originate, and instead of looking on discussion as a stumbling-block in the way of action, we think it an indispensable preliminary to any wise action at all. . . .

In short, I say that as a city we are the school of Hellas; while I doubt if the world can produce a man, who where he has only himself to depend upon, is equal to so many emergencies, and graced by so happy a versatility as the Athenian.

[Source: Thucydides, The Peloponnesian War, (translated by Richard Crawley, 1951), pp.104-106.]

 

Pericles Funeral Oration

(from Thucydides, 430 B. C. E.)

 

At the end of the first year of war, the Athenians held, as was their custom, an elaborate funeral for all those killed in the war. The funeral oration over these dead was delivered by the brilliant and charismatic politician and general, Pericles, who perished a little bit later in the horrifying plague that decimated Athens the next year. The Funeral Oration is the classic statement of Athenian ideology, containing practically in full the patriotic sentiment felt by most Athenians.

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I have no wish to make a long speech on subjects familiar to you all: so I shall say nothing about the warlike deeds by which we acquired our power or the battles in which we or our fathers gallantly resisted our enemies, Greek or foreign. What I want to do is, in the first place, to discuss the spirit in which we faced our trials and also our constitution and the way of life which has made us great. After that I shall speak in praise of the dead, believing that this kind of speech is not inappropriate to the present occasion, and that this whole assembly, of citizens and foreigners, may listen to it with advantage.

Let me say that our system of government does not copy the institutions of our neighbors. It is more the case of our being a model to others, than of our imitating anyone else. Our constitution is called a democracy because power is in the hands not of a minority but of the whole people. When it is a question of settling private disputes, everyone is equal before the law; when it is a question of putting one person before another in positions of public responsibility, what counts is not membership of a particular class, but the actual ability which the man possesses. No one, so long as he has it in him to be of service to the state, is kept in political obscurity because of poverty. And, just as our political life is free and open, so is our day-to-day life in our relations with each other. We do not get into a state with our next-door neighbor if he enjoys himself in his own way, nor do we give him the kind of black looks which, though they do no real harm, still do hurt people’s feelings. We are free and tolerant in our private lives; but in public affairs we keep to the law. This is because it commands our deep respect.

We give our obedience to those whom we put in positions of authority, and we obey the laws themselves, especially those which are for the protection of the oppressed, and those unwritten laws which it is an acknowledged shame to break.

And here is another point. When our work is over, we are in a position to enjoy all kinds of recreation for our spirits. There are various kinds of contests and sacrifices regularly throughout the year; in our own homes we find a beauty and a good taste which delight us every day and which drive away our cares. Then the greatness of our city brings it about that all the good things from all over the world flow in to us, so that to us it seems just a natural to enjoy foreign goods as our own local products . . . .

Our love of what is beautiful does not lead to extravagance; our love of the things of the mind does not make us soft. We regard wealth as something to be properly used, rather than as something to boast about. As for poverty, no one need be ashamed to admit it: the real shame is


 

 

in not taking practical measures to escape from it. Here each individual is interested not only in his own affairs but in the affairs of the state as well; even those who are mostly occupied with their own business are extremely well informed on general politics—this is a peculiarity of ours: we do not say that a man who takes no interest in politics is a man who minds his own business; we say that he has no business here at all. We Athenians, in our own persons, take our decisions on policy or submit them to proper discussions: for we do not think that there is an incompatibility between words and deeds; the worst thing is to rush into action before the consequences have been properly debated. And this is another point where we differ from other people. We are capable at the same time of taking risks and of estimating them beforehand. Others are brave out of ignorance; and, when they stop to think, they begin to fear. But the man who can most truly be accounted brave is he who best knows the meaning of what is sweet in life and of what is terrible, and then goes out undeterred to meet what is to come.

Again, in questions of general good feeling there is a great contrast between us and most other people. We make friends by doing good to others, not be receiving good from them. This makes our friendship all the more reliable, since we want to keep alive the gratitude of those who are in our debt by showing continued goodwill to them: whereas the feelings of one who owes us something lack the same enthusiasm, since he knows that, when he repays our kindness, it will be more like paying back a debt than giving something spontaneously. We are unique in this. When we do kindnesses to others, we do not do them out of any calculations of profit or loss: we do them without afterthought, relying on our free liberality. Taking everything together, then, I declare that our city is an education to Greece, and I declare that in my opinion each single one of our citizens, in all the manifold aspects of life, is able to show himself the rightful lord and owner of his own person, and do this, moreover, with exceptional grace and exceptional versatility. And to show that this is no empty boasting for the present occasion, but real tangible fact, you have only to consider the power which our city possesses and which has been won by those very qualities which I have mentioned. Athens, alone of the states we know, comes to her testing time in a greatness that surpasses what was imagined of her. In her case, and in her case alone, no invading enemy is ashamed at being defeated, and no subject can complain of being governed by people unfit for their responsibilities. Mighty indeed are the marks and monuments of our empire which we have left. Future ages will wonder at us, as the present age wonders at us now. We do not need the praises of a Homer, or of anyone else whose words may delight us for the moment, but whose estimation of facts will fall short of what is really true. For our adventurous spirit has forced an entry into every sea and into every land; and everywhere we have left behind us everlasting memorials of good done to our friends or suffering inflicted on our enemies.

This, then, is the kind of city for which these men, who could not bear the thought of losing her, nobly fought and nobly died . . . .

Perhaps I should say a word or two on the duties of women to those among you who are now widowed. I can say all I have to say in a short word of advice. Your great glory is not to be inferior to what God has made you, and the greatest glory of a woman is to be least talked about by men, whether they are praising you or criticizing you. I have now, as the law demanded, said what I had to say. For the time being our offerings to the dead have been made, and for the future their children will be supported at the public expense by the city, until they come of age. This is the crown and prize which she offers, both to the dead and to their children, for the ordeals which they have faced. Where the rewards of valor are the greatest, there you wil find also the best and bravest spirits among the people. And now, when you have mourned for your dear sons, you must depart.