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Although we cannot trace the beginnings of Athenian democracy with any con- fidence in the details, the general trend is clear. Over time, ordinary men, neither well-born nor rich, acquired political power that culminated in a democracy more direct and more radical than any the world has known. Democratic rule was man- ifest throughout the city’s governance, but nowhere did it carry greater weight than in its courts. What follows is a brief sketch of the historical development of this extraordinary democratic system from the late seventh century b.c.e. to the fourth century, the era in which the judicial system is most richly documented.1
In the earliest period for which we have some sort of historical evidence, a group of aristocratic families, the eupatridai (literally, those descended from good fathers) enjoyed a monopoly on the political offices known as archonships. Men who had served as archons became life members of the Council on Ares’ Hill, or, to use the standard term, the Areopagus. We have only late and controversial evidence for the nature and extent of the Areopagus’ powers in this period. It is also likely that there was some form in which popular will could find expression, an assembly, perhaps convened at moments of crisis, of those ordinary men who constituted the Athenian army. But it does seem that in the informal and decentralized politics of the nascent city, domination by the well born was the general rule until some time after the first half of the seventh century. As in other parts of archaic Greece, Athens saw the rise of groups outside the nobility now demanding a greater share in political power by virtue of their wealth and military contributions.
Athens’ legal history might be said to begin with Draco’s lawcode of 621/0 b.c.e., evidently a response to the violence that erupted after an aristocrat’s attempt to make himself tyrant at Athens. Only fragments of the law on homicide survive, preserved verbatim on stone inscribed in the late fifth century. This law appears to mark the first step in the shift in emphasis from self-help to legal sanctions. It
1 Important treatments of the topics discussed here in cursory form include Andrewes 1963; Osborne
1996; Murray 1993; Ober 1990:53–103;Wallace 1989; Gagarin 1981a, 1986; Carawan 1998; Hansen 1999;
Anderson 2003; Ruschenbusch 1966.
has long been assumed that the Areopagus had jurisdiction in homicide cases, but even that is neither well attested nor beyond controversy. We can only guess about the venue for the adjudication of other legal disputes in this period – assuming that these disputes came before any judge or judges.
During the tenure of the lawgiver Solon, the center of political power began to shift from the well born to the well heeled. Although a fourth-century Athenian would probably not hesitate to refer to the body of Athenian law as “Solon’s code,” this would at best be a vast oversimplification. If we can trust the only surviving continuous narrative of the city’s political development, the Constitution of the Athenians, Solon was appointed archon with extraordinary powers in 594/3 to resolve a severe economic and political crisis. His acts included the establishment of wealth qualifications, designated in bushels of grain, for holding various offices. By implication, membership in one of the eupatrid families was now irrelevant for political office. In the judicial sphere, Solon introduced two reforms of great significance: the provision for “appeal to the lawcourt,” presumably from the decision of a magistrate, and the right of any man to bring a lawsuit on behalf of another, a reform likely designed to enhance access to justice for the less powerful. Many scholars believe that “the law court” referred to in the Constitution of the Athenians was the assembly of male citizens sitting as a judicial body.
Far from accepting the Solonian reforms, the eupatridai resisted with such vigor that no archon was elected in the year 590/89 and 586/5, “anarchy” in its literal sense. Peisistratus, a member of an aristocratic clan, succeeded in establishing himself and his family as tyrants, though he maintained the outward formality of the constitution already in place. His one known contribution to the legal system was the institution of a system of circuit judges who traveled to rural areas of Attica, the large territory outside the urban center of Athens, to decide disputes. This step not only expanded the role of the formal legal system in Athenian social life, but persisted in the form of “deme judges” empowered to decide minor disputes in the fourth century.
Without question, the single most important figure in the formation of the Athenian democracy was Cleisthenes. His reorganization of Attica in the last decade of the sixth century both consolidated the political entity known as Athens and made possible the wide scale and regular involvement of ordinary citizens in its governance. Under the reorganization, the “deme,” the smallest political unit and roughly equivalent in rural areas to a village, supplied representatives chosen by lot for the Council of 500, the legislative body that prepared the agenda for
historical background 17
the Assembly. Each deme was assigned to one of ten tribes. These tribes, each of which included demes from disparate geographical areas, in turn rotated in service as the executive committee of the Council. In this way, the reforms both insured widespread participation and weakened the political influence of local “big men.” Remarkably enough, we have no specific evidence relating to the judicial system in this period of political upheaval and restructuring. Still, it is difficult to imagine that the popular court system of the classical period could have arisen before this profound shift toward democratic rule. It is not possible to assign a date to the creation of the popular courts as we find them in the classical period, but the Cleisthenic revolution must be considered a terminus post quem.
In 490 and again in 480, Athens led the Greek city-states in repelling the advance of the Persian empire. Land and sea victories in the Persian wars and their aftermath raised the stock of ordinary soldiers and sailors, who returned from their experiences with an enhanced sense of their importance to the city and hence their right to political power. Moreover, the vigor of democratic sentiment was likely increased by the pointed contrast between Greek freedom and the despotism of Persia, an empire in which all men were slaves save one, as Aeschylus puts it in his tragedy the Persians.
Despite these democratizing trends, the Areopagus, evidently still a conservative body, enjoyed a position of prominence, even acquiring some new powers (the sources provide no details) for some seventeen years after the conclusion of the Persian Wars. In 462/1 the radical politician Ephialtes conducted an attack on the Areopagus, stripping it of all powers other than the adjudication of homicide cases and supervision of some religious matters.
Athenian leadership in the Greek alliance against Persia, originally shared with Sparta, evolved into the Athenian empire in the mid-fifth century. This had two consequences especially important to the legal system. Some lawsuits originating in the subject cities were required to be heard in Athens, increasing the business of the courts. More important, the tribute received from subjects made it easier to introduce pay for jury service, a step attributed to Pericles, the city’s leading politician and general. Although our sources provide no description of the legal system in the Periclean age, it seems likely that by this time the courts had taken on the forms and procedures seen in the surviving court speeches.
For my purposes here, Athens’ subsequent history can be quickly summarized. In 404, Athens lost a decades-long struggle with Sparta, and with it its empire and economic supremacy. The city experienced two short-lived oligarchic revolutions
in 411 and 404, after which the democracy was restored. These coups d’e´tat provoked a revision of the lawcode of uncertain scope and enduring effect.2
There was also a specific reform that introduced a distinction between decrees (psˆephismata) enacted by the Assembly, and laws (nomoi) which required confirmation bya separate body drawn from the same pool as the jurors. Some scholars view this limitation on the legislative authority of the Assembly as evidence for a significant shift from the radical, direct democracy of the fifth century to a more moderate form of government. In any event, after these reforms, the city’s legal and political institutions experienced only minor changes until Athens’ capitulation to the Macedonians in 322/1 and the resulting dismantling of the democracy.
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