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Law and Justice in the Courts of Classical Athens
In Law and Justice in the Courts of Classical Athens, Adriaan Lanni draws on contemporary legal thinking to present a new model of the legal system of classical Athens. She analyzes the Athenians’ preference in most cases for ad hoc, discretionary decision making, as opposed to what moderns would call the rule of law. Lanni argues that the Athenians consciously employed different approaches to legal decision making in different types of courts. The varied approaches to the legal process stem from a deep tension in Athenian practice and thinking, between the demand for flexibility of legal interpretation consistent with the exercise of democratic power by Athenian jurors and the advantages of consistency and predictability. Lanni presents classical Athens as a case study of a sophisticated legal system with an extraordinarily individualized and discretionary approach to justice.
Adriaan Lanni is assistant professor of law at Harvard Law School. A former member of the Harvard Society of Fellows, she holds a law degree from Yale Law School and a Ph.D. in ancient history from the University of Michigan. She is a scholar of ancient law and modern criminal law and procedure.
LAW AND JUSTICE IN THE COURTS
OF CLASSICAL ATHENS
Adriaan Lanni
harvard lawschool
cambridge university press
Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo
Cambridge University Press
The Edinburgh Building, Cambridge cb2 2ru, UK
Published in the United States of America by Cambridge University Press, New York www.cambridge.org
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© Adriaan Lanni 2006
This publication is in copyright. Subject to statutory exception and to the provision of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press.
First published in print format 2006
isbn-13 978-0-511-16833-8
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isbn-10 0-511-16833-0
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isbn-13 978-0-521-85759-8
hardback
isbn-10 0-521-85759-7
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To the memory of
Mike Lanni
1941–1992
Contents
| Acknowledgments | page ix |
| 1. Introduction | |
| 2. Athens and Its Legal System | |
| 3. Relevance in the Popular Courts | |
| 4. The Homicide Courts | |
| 5. Legal Insecurity in Athens | |
| 6. Maritime Cases | |
| 7. Conclusions | |
| Bibliography | |
| Index |
vii
Acknowledgments
This book, which began as a dissertation at the University of Michigan, has been shaped by many teachers and colleagues. I benefited from an excellent dissertation committee, including Sara Forsdyke, Raymond Van Dam, and James Boyd White. I could not have asked for better advisors and editors than my dissertation co- chairs, Bruce Frier and Thomas Green. I would also like to thank several former teachers from the University of Cambridge and Yale Law School who, though not directly involved in this book, have influenced my thinking on Athenian law in important ways: Paul Cartledge, Peter Garnsey, Simon Goldhill, Robert Gordon, Keith Hopkins, Paul Millett, Dorothy Thompson, and James Whitman.
The Greek law community is an uncommonly generous one. Over the years I have benefited from conversations with many classicists, including Danielle Allen, Alan Boegehold, Eva Cantarella, Michael DeBrauw, Matthew Christ, David Cohen, Edward Cohen, Craig Cooper, Edward Harris, Steven Johnstone, Josiah Ober, David Phillips, Lene Rubinstein, Adele Scafuro, Gerhard Thu¨r, Stephen Todd, and Robert Wallace. Michael Gagarin deserves individual mention; he read drafts of every chapter and offered valuable corrections and suggestions regarding both technical matters and the overall argument.
Both the dissertation and book manuscript were written at Harvard. While at the Society of Fellows I received many useful comments from junior and senior Fellows, particularly Bernard Bailyn, Oren Bar-Gill, Michael Gordin, Martha Minow, and Gregory Nagy. I would also like to thank my colleagues at Harvard Law School for their valuable comments and advice, particularly Charles Donahue, Morton Horwitz, Kenneth Mack, Martha Minow, and William Stuntz. Two law students, Karl Chang and Rita Lomio, provided excellent research assistance. The project was greatly improved by suggestions I received while presenting part of this work to the law faculties at Columbia, Cornell, Harvard, the University of Michigan, the University of Minnesota, New York University, the University of San Diego, the University of Southern California, and Willamette. I am also grateful to Cambridge University Press’s two referees for their helpful suggestions.
Although this book is not directly comparative, the ideas in it are informed by my background as a lawyer. I was lucky enough to clerk for two judges who have
ix
x acknowledgments
earned a place in history: Judge Stephen Reinhardt of the U.S. Court of Appeals for the Ninth Circuit and Justice Dana Fabe of the Alaska Supreme Court. My approach to all legal questions reflects their influence.
I owe a special debt to Victor Bers, who introduced me to Athenian law in an undergraduate class in Yale College more than a decade ago and has served since then as mentor, friend, and marriage officiant. He commented on several versions of the dissertation and manuscript and was an invaluable resource throughout the project.
Finally, I would like to thank Wes Kelman, a partner in this project as in all things. The dedication refers to my father, a union leader who pointed out to me at an early age the distinction between law and social justice that is central to the thesis of this book.
1 Introduction
what role did the law courts play in the world’s first well-documented democracy?1Ancient Athens is celebrated for its democratic political institutions, but its law courts have been largely ignored by lawyers and legal historians. This neglect is not mysterious. Athenian law has failed to attract the interest of legal historians because it was run by amateurs and did not generate jurisprudential texts. It has not helped that the best-known example of Athenian justice is an outrage: the trial and execution of Socrates.
Classicists have begun to remedy this neglect, but much of their work has emphasized the arbitrariness and anti-legal aspects of Athenian litigation. Most of what we know of Athenian law comes from court speeches, and these scholars have focused on the fact that these speeches contain information – boasts of their family’s public services, character attacks, appeals to pity – that would be considered irrelevant or inadmissible in a modern courtroom. On this basis, they argue that the aims and ideals of the Athenian courts were radically different from those of modern courts. On this view, the Athenian courts did not attempt to resolve disputes according to established rules and principles equally and impar- tially applied but rather served primarily a social or political role.2 According to this approach, litigation was not aimed chiefly at the final resolution of the dispute or the discovery of truth; rather, the courts provided an arena for the parties to publicly define, contest, and evaluate their social relations to one another, and the hierarchies of their society.3The law under which the suit was brought mattered little to either the litigants or the jurors; the statute was merely a procedural mechanism for moving the feud or competition onto a public stage.4 Extra-legal
1 Robinson (1997:16–25) discusses possible examples of early democracies outside of Athens, some of which predate the Athenian democracy. Our sources for these possible early democracies are too thin to permit meaningful analysis of these political systems.
2 D. Cohen 1995:87–88; Osborne 1985a:52.
3 D. Cohen 1995:87–88. Cohen argues that Athenian judges and litigants acknowledged that litigation was
primarily a form of feuding behavior.
4 D. Cohen 1995:90. However, the choice of whether to bring a private suit or to style the prosecution as a public suit, which would mean a higher profile and more severe penalties, had important consequences in the game of honor (Osborne 1985a:52–53).
considerations trumped law in a process that bore little relation to the functioning of modern court systems – or so the argument goes.
This approach to the Athenian legal system has been challenged by two different academic camps, both of which credit Athens with attempting to implement a rule of law. First, institutional historians argue that reforms in the late fifth and early fourth century curtailed the lawmaking powers of the popular Assembly, and created a moderate democracy committed to a rule of law.5 Second, other scholars analyze the surviving court speeches and argue that “legal” reasoning – citations to, and exegesis of, the applicable statutes – played a much greater role in Athenian litigation than is commonly thought.6 They tend to dismiss the extra- legal arguments in the surviving speeches as stray comments reflecting only the amateurism and informality of the system.7
This book offers a different account of the aims and ideals of the Athenian courts. Rather than approaching Athenian courts as a homogeneous entity (as most historians have to date), this book focuses on the differences between ordi- nary cases tried in the Athenian popular courts, on the one hand, and the homicide and maritime cases that were tried in special courts with their own procedures, on the other. The Athenians handled these cases quite differently, and the juxtaposi- tion illuminates a key feature of the Athenian concept of law. Most interestingly, the Athenians understood the desirability of a regular application of abstract prin- ciples to particular cases, but made this the dominant ideal only in the homicide and maritime cases.
Popular courts tried the vast majority of trials in the Athenian court system, and they are the focus of modern scholarship on the nature of Athenian litigation. In these cases, litigants regularly discuss matters that are extraneous to the application of the relevant statute to the event in question. For example, popular court litigants
5 Ostwald 1986:497–524; Sealey 1987:146–148. In the fourth century, the Athenians distinguished between general laws passed bya Board of Lawgivers and short-term decrees of the popular Assembly that could not contradict existing laws (Hansen 1999:161–177).
6 Meyer-Laurin 1965; E. Harris 2000; Meineke 1971. Meyer-Laurin and Meineke argue that Athenian litigants and jurors applied the law strictly, while Harris suggests that the open texture of Athenian law left room for creative statutory interpretation. All three share the view that litigants and jurors considered themselves bound by the law and that the goal of the system approximated modern notions of a rule of law. E. Harris (2000:78 & n. 85), for example, argues that “litigants pay careful attention to substantive issues and questions about the interpretation of law” and jurors “considered themselves bound to adhere to the letter of the law.”
7 E. Harris 1994a:137.
introduction 3
make arguments based on their opponents’ actions in the course of the litigation process, or the financial or other effects a conviction would have on the defendant and his innocent family. I argue that these extra-legal arguments were vital to making a case in an Athenian popular court rather than aberrations in an essentially modern legal system. However, the prevalence of extra-legal argumentation does not indicate that the triggering event and legal charge were mere subterfuge in a game aimed at evaluating the relative honor and prestige of the litigants. Rather, both legal and extra-legal argumentation were considered relevant and important to the jury’s decision because Athenian juries aimed at reaching a just verdict that took into account the broader context of the dispute and the particular circumstances of the individual case.8 Even the relative importance of legal and contextual information in any individual case was open to dispute by the litigants.9
Homicide and maritime cases, by contrast, followed a perceptibly more formal, legal approach. The homicide courts employed a rule prohibiting statements “outside the issue.” A written contract was required to bring a maritime suit, and speeches in this type of case tend to focus more narrowly on the terms of the contract and less on arguments from fairness and the broader context of the dispute than comparable non-maritime commercial cases.
Do the homicide and maritime procedures suggest that Athens was gradually discovering the rule of law, and would have eventually insisted that popular courts resolve disputes based exclusively on the application of set legal principles? The short answer is no. Although maritime procedures were introduced toward the end of the classical period, the more formal homicide procedures were developed sometime before the popular courts came into being. The jarring differences in the level of formality between the homicide courts and the popular courts were therefore the product not of progress but of ambivalence. In the spectrum of
8 Of course, some litigants were undoubtedly motivated by a desire to gain honor or to pursue personal enmity. Moreover, I do not doubt that the courts at times functioned in a manner far from the ideal, or that popular court trials may have also served a variety of social or ideological roles in society. I am concerned with the primary aim of the popular courts, as it was understood by the majority of the participants. I argue that litigants and jurors by and large considered the purpose of the trial to be the arrival at a just resolution to the dispute. The primary goal was to resolve the specific dispute that gave rise to the litigation, using social context as an instrument toward that end.
9 My contention that Athenian jurors attempted to reach a “fair” or “just” decision based on the evidence before it rather than strictly applying the laws to the case is in accord with the views expressed by Christ (1998b:195–196); Scafuro (1997:50–66), and Humphreys (1983:248). These scholars do not distinguish between approaches taken in different types of suit.
Athenian approaches to law, we find, in the first legal system we know very much about, the fissure between following generalized rules and doing justice in the particular case that has haunted the law ever since.
The varied approach to the legal process stems from a deep tension in the Athenian system between a desire for flexibility and wide-ranging jury discretion on the one hand, and consistency and predictability on the other. The special rules and procedures of the homicide and maritime courts indicate that the Athenians could imagine (and, to a lesser extent, implement) a legal process in which abstract rules were applied without reference to the social context of the dispute, but rejected such an approach in the vast majority of cases. This choice reflects not only a normative belief that a wide variety of contextual information was often relevant to reaching a just decision, but also a political commitment to maximizing the discretion wielded by popular juries. In other cases, however, such as commercial suits, where the practical importance of predictable verdicts was high, the Athenians employed rules of admissibility and relevance that limited jury discretion. Classical Athens thus provides a valuable case study of a legal system that favored equity and discretion over the strict application of generalized rules, but managed to do so in a way that did not destroy predictability and legal certainty in the parts of the system where it was most needed.
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