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By the classical period the homicide courts were considered – and, to a lesser extent, were– distinctive in their approach to relevance and legal argumentation. When, how, and why did this process of differentiation occur? Or, stated differently, what is it about homicide that explains its unusual treatment? Because we know very little about the history and development of either the homicide or the popular courts, any answer to these questions is necessarily speculative. In my view, it is the peculiar development of homicide law in the archaic period, not a sense that homicide was more serious or in some way different from other charges, that accounts for the unusual character of the homicide courts in the classical period. Although the early history of the homicide courts is murky, the more formal, legal approach of these courts appears to reflect the concerns of a state just beginning to assert control over private violence in the seventh and early sixth century b.c.e. The popular court system was introduced about a century or a century-and-a-half later as part of the creation and development of the democracy. In constructing the new popular court system, the Athenians consciously declined to adopt the strict approach of the existing homicide courts, but permitted these courts to continue to decide cases involving homicide in the traditional manner. The existence of a parallel court system for homicide can tell us a great deal about the aims and ideals of the popular courts and, more generally, about Athenian notions of law.
The Differentiation of Homicide and Popular Courts
The association between homicide and substantive legal argument is already evi-
dent in what is almost certainly Athens’ first written homicide law, Draco’s law of 621/0 b.c.e. This law, which survives in fragmentary form inscribed on a stone stele, appears to provide the first example of the formal distinction between
offenders’ mental states familiar in classical homicide law.145 Draco’s law sets out a legal procedure whereby cases of unintentional homicide appear to be judged by ephetai. 146In a fragmentary portion of the inscription, the law also appears to pro- vide for two types of justifiable homicide: self-defense in a fight started by another, and defending oneself from highway robbers.147 The law as we have it mentions neither intentional homicide nor the Areopagus.148 It is unclear precisely how homicide prosecutions worked in Draco’s time: was jurisdiction divided among different courts as it was in the classical period?149 Did the ephetai judge all cases of homicide, or did the Areopagus exist at this time as a homicide court as well?150
How, if at all, was intentional homicide treated?151What were the consequences of an ephetic finding of unintentional or justifiable homicide?152The surviving evidence does not permit confident answers to these questions, but it does seem reasonably clear from the inscription that the ephetai were charged with determin- ing a defendant’s intent when he argued that he had killed unintentionally.153Just
145 Carawan (1998: 48) argues that the idea that intent was relevant in the treatment of homicide had been in circulation for some time before Draco, but was not formally recognized until Draco’s law.
146 IG I3104, lines 11–13. The inscription is lacunose. I follow Stroud’s text and Gagarin’s translation as given in Gagarin 1981a: xiv–xvii).
147 IG I3104, lines 30–36.
148 It is unclear whether the law originally included a provision addressing intentional homicide. For
discussion, see, e.g., Gagarin 1981a:111–145; Carawan 1998: 35; Sealey 1983: 292; Wallace 1989: 16–18.
149 Most scholars now assume that the classical division of courts did not exist at the time of Draco. For
three different reconstructions of the development of the various homicide courts, see Humphreys
1991:30ff; Carawan 1998: 133–135; Sealey, 1983.
150 The traditional view, relying primarily on ancient legends of the Areopagus’ history, held that the
Areopagus was the first court for homicide and that Draco transferred some of the Areopagus’ jurisdiction to the newly created ephetai. For a review of literature subscribing to this “Areopagite model,” see Carawan 1998: 7–8. For a recent variation on the Areopagite model, see Wallace 1989:3–47. Recently, several scholars have argued that the ephetai judged homicide cases in the time of Draco and that the Areopagus did not become a homicide court until the time of Solon or later. See, e.g., Humphreys, 1991:32; Gagarin 1981a: 135ff; Carawan 1998:134; Sealey 1983:290–294.
151 On this question, see, e.g., Humphreys 1991: 36; Gagarin 1981a: 111–145;Carawan 1998: 35–6.
152 See, e.g., Humphreys 1991:23; Gagarin 1981a: 111–145;Carawan 1998: 35–36;Sealey 1983: 290–294.
153 So Humphreys 1991: 23. The ephetai may also have decided whether a killing qualified as justifiable
homicide and was therefore not punishable, but this portion of the inscription is too fragmentary
to draw any firm conclusions. Carawan (1998:35–36) argues that under Draco’s law intentional and unintentional homicides resulted in the same penalty – exile with the possibility of pardon by the victim’s relatives – and therefore that the ephetai would not ordinarily have made rulings based on intent. It is unclear from the inscription whether the victim’s family could grant pardon in all homicide cases, or only in the case of unintentional killings. However, even if it is true that intentional killers were
as in the classical period, the distinction between intentional and unintentional homicide in Draco’s law provided greater legal definition and presumably served to focus both litigants and ephetai on the narrow question of intent. From the very first written statute, then, homicide law exhibited greater legal definition and substantive content than the laws governing the popular courts in the classical period.154
We do not know how or why the distinction between types of homicide came to be recognized in Draco’s law. Many early written statutes appear to have been ad hoc responses to quite specific pressing problems.155It is possible that the legal specificity of Draco’s law reflects an attempt to address a specific controversy – whether to punish men who had killed fellow Athenians during a recent civil war. A little over a decade before the enactment of Draco’s law, an Athenian aristocrat named Cylon attempted to establish a tyranny. The Athenian archons, led by the elite Alcmeonid clan, drove Cylon out of Athens and killed his supporters. Draco’s law may have been enacted specifically to prevent the political enemies of the Alcmeonidae from charging them for the killing of the Cylonians and thereby driving them into permanent exile. It is possible that the law was designed to classify the actions of the Alcmeonidae as a form of unintentional or justifiable homicide.156It may be that the first step in differentiating homicide procedure was thus an historical accident of sorts, unrelated to the unique nature of the crime of homicide. However the differentiation between types of homicide first developed, once in place Draco’s law provided substantive guidance to those judging cases of homicide, focused the attention of litigants and judges on the issue of intent, and, presumably, fostered an association between homicide proceedings and legal argument that took on a life of its own and would in time become self-reinforcing.
technically granted the possibility of pardon, an ephetic finding of unintentional homicide would have the effect of putting pressure on the victim’s family to come to a settlement with the killer. There is no reason to believe that the ephetai were not charged with determining intent under Draco’s law.
154 Draco’s law includes substantive content on other issues as well. It appears to instruct the ephetai to treat “the planner” of a homicide in the same manner as one who kills with his own hands (lines 11–13), and it declares that killing an exiled killer calls for the same sanction as one who kills an Athenian (lines 26–29).
155 Ho¨lkeskamp 1992b; 1999.
156 This theory was suggested to me by Sara Forsdyke. Various provisions support this view of the law’s
purpose: prosecution is limited to the relatives of the victim; the law appears to be preoccupied with addressing unintentional and justifiable homicide; and a retroactivity clause makes it clear that the law would apply to those involved in the Cylonian conspiracy. For discussion, see Forsdyke (2005: xx).
The early history of the homicide courts’ relevancy rule is even murkier. Classi- cal sources state that that the unusual homicide procedures are ancient in origin and have remained unchanged since the time of Draco.157 It is difficult to know whether to credit such statements, as these passages may simply reflect fourth-century ide- ology rather than seventh-century historical reality. A passage in Lucian describes the operation of the relevancy rule in the time of Solon,158but this source is too far removed from our period to offer secure evidence. My own, necessarily speculative, view is that the relevancy rule, which seems so “advanced” in comparison to the free-for-all approach to relevance in the popular courts, developed well before the creation of the popular courts.159 The prohibition against irrelevant material likely grew out of an urgent need to foster obedience of and respect for verdicts in a fledgling legal system that was just beginning to assert control over the private use of violence. The traditional response to homicide in pre-Draconian Athens was retaliatory murder carried out by the victim’s family unless they agreed to accept a blood price.160 Draco’s law sets limits on the family’s power over a homicide: unintentional killers are to be permitted to flee the city unharmed; at least one type of justifiable homicide is proclaimed to be nˆepoinei (without penalty); and, although the family retains the final decision on whether to accept compensation from unintentional homicides, a finding that a killing was unintentional likely put pressure on the family to do so. The process of convincing the relatives of a man who had been killed to relinquish the traditional right of immediate retaliation and abide by the findings of the ephetai must have been a slow and difficult one.
A relevancy rule may have been thought to assist in this process in two ways. First, by limiting the judges’ discretion and discouraging evidence about the litigants’ social background the relevancy rule may have fostered a belief in the impartiality of the judges,161 and thereby encouraged families to appeal to and
157 E.g., Ant. 5.14; 6.2.
158 Lucian Anach. 19.
159 Perhaps the relevancy rule was introduced sometime between Draco’s law (621/0b.c.e.)and the reforms
of Solon (ca. 590 b.c.e.).
160 Gagarin 1986:5–18.
161 Hesiod’s Works and Days (248–273) suggests that the possibility of unfair judgments meted out by
corrupt or partial judges was a source of anxiety among litigants in the archaic period. It was particularly
important that the Draconian ephetai establish a reputation for impartiality because by their nature their verdicts would disappoint one or other of the parties. By contrast, Gagarin (1986: 22, 43) has suggested that judges in early Greece tended to use compromise settlements acceptable to both sides to insure compliance.
abide by the results of the official homicide procedures. Second, the rule forced families to cast their arguments in terms of the narrow question of the individual homicide. The relevancy rule would therefore promote the view that a homicide was an isolated event to be resolved rather than simply one part of an ongoing and escalating cycle of violence that reached beyond the individual killer and victim to encompass their families as well.
It was only after the homicide courts had been operating for about a century or so that a popular court system resembling the classical courts in structure and function was introduced. We can’t put a precise date on the creation of the popular court system, but it seems most likely that this institution came about during the period of the creation and development of the democratic system. That is, sometime between Cleisthenes’ political reorganization of 508/7 b.c.e. often thought of as the “invention” of the democracy, and the Periclean reforms that brought the radical democracy to full maturity in the mid-fifth century.162
The formalism of the homicide courts was available as a potential model at the inception of the popular courts, but was rejected in favor of a more flexible approach.163The chronological priority of the homicide court procedures belies an evolutionary account of the development of law and legal thinking in Athens.
The legalism of the homicide courts grew out of the fledgling state’s attempts to curb the violence and social disruption associated with this unique crime. Once the distinction between the two types of law court was established, however, it seems likely that it was inertia and the tradition of legalism in the homicide courts rather than a sense that homicide by its nature required different treatment that led to the decision to maintain the homicide courts as islands of formalism in a sea of highly informal popular court cases. Factors such as the seriousness of the offense and concern over pollution may also have played a role in the continued existence of the homicide courts’ strict approach.164 But our evidence suggests that these
162 Though there may have been some form of popular judicial decision making prior to this period, a court system similar to the classical courts, with selection of jurors by lot and a clear differentiation between the Assembly and the court, was most likely a creation of the democracy. Whatever the nature of the archaic hˆeliaia, it is likely to have been radically transformed with the introduction of the democracy in the early fifth century. For a review of the evidence regarding the hˆeliaia and a new proposal, see Hansen 1981–1982; see also Sealey 1983: 295–296.
163 Later in this chapter I discuss why the Athenians rejected the homicide model for their popular court
system.
164 Parker 1996a: 104–143; Arnaoutoglou 1993; Carawan 1998: 17–19.
characteristics of homicide were less important in the classical period than one might expect. It is not clear, for example, that the Athenians shared the modern view of homicide as the most serious possible crime. Homicide was a private rather than a public matter; it was only one of many crimes that could result in the death penalty;165 and, indeed, a man accused of intentional homicide could avoid death by voluntarily going into exile after the first of his two defense speeches. In addition, recent scholarship suggests that the relative importance of pollution in the treatment of homicide has been exaggerated, and that by the fourth century concern over pollution in relation to homicide was in steep decline.166 The thesis that the differentiation of the homicide and popular courts was not primarily linked to the nature of the crime of homicide is supported by the introduction near the end of the fifth century of an alternative procedure, apagˆogˆe, for dealing with at least some types of homicide through the popular court system. Further, we have seen that the praise of the homicide court procedures was not limited to their ability to resolve homicide cases alone; Athenian attitudes toward relevance cannot be explained simply by a clear preference for different modes of decision making when judging different types of offense.
The Homicide Courts and Athenian Notions of Law
The homicide courts’ special procedures can tell us something about the Athenian
notion of law and the aims of its popular courts. The existence of a rule forbidding irrelevant statements demonstrates that the Athenians were capable of imagining a legal process that entails the regular application of abstract principles to particular cases. There was a notion that in the homicide courts, at least, judicial decisions were to be based on the narrow legal and factual issues of the case detached from
165 In addition to homicide, the death penalty could be used for treason, impiety, theft, robbery, assault, public corruption, extortion, debasing the coinage, violation of the grain laws, illegal exploitation of the silver mines, and forging a will. For discussion, see Barkan 1935: 5–41.
166 Some aspects of the homicide procedures appear to suggest concern about pollution: those accused
of homicide were ordered to avoid holy places and the agora (Dem. 20.158), homicide trials took place in the open air (Ant. 5.11), and pardoned killers had to perform sacrifices and purify themselves before returning to Attica (Dem. 23.72). Litigants in homicide trials also took special oaths in an elaborate religious ritual (Dem. 23.67–68). But the importance of pollution in the development of homicide law and procedures has been questioned in recent scholarship and there may be other explanations for these provisions. For discussion, see, e.g., MacDowell 1963: 144–146; Parker 1996a: 104–143; Arnaoutoglou
1993; Gagarin 1981a:164–167; Carawan 1998: 17–19.
their social context, and without regard for the character or social standing of the litigants and the impression that their rhetoric made on the judges.
The antiquity and conservatism of the homicide courts invested them with great prestige, even apart from any perception of the merits of their mode of deci- sion making. The fact that the Athenians did not introduce similar constraining procedural and evidentiary rules in the popular courts despite these older examples seems to indicate a conscious reluctance to embrace that mode of notably stricter legal argumentation. Opportunities for an assimilation to the perceived methods of the homicide courts were not lacking: there were several episodes of major and minor legal procedural reform in the classical period, including the revision of the laws at the end of the fifth century, the transition from oral to written deposi- tions, and the creation in the fourth century of a new set of legal procedures (the emmˆenoi dikai) for certain types of case. It is true that the enforcement of a rele- vancy rule might have presented more practical difficulties in the popular courts than in the homicide courts because the Areopagite judges were more experienced and presumably therefore more likely to express their displeasure when a speaker strayed from the issue at hand. But we should not underestimate the ordinary Athenian’s familiarity with legal procedures. It is not improbable to suppose that knowledgeable jurors and spectators would be able to enforce a relevancy rule by shouting down speakers who introduced character evidence.167 Even if a relevancy rule similar to that used in the homicide courts would be unenforceable in the popular courts, we would expect to see some mechanism similar to the jurors’ oath that was in practical terms unenforceable, but which speakers nevertheless referred to often and milked for its rhetorical value.
The Athenian decision not to emulate the special procedures and apparent rigor of the homicide courts, most notably the relevancy rule, in the popular courts may be attributed to countervailing values in their political culture: the widespread participation of ordinary men, and the broad discretion extended to juries to temper strict legality with equity. The broad view of relevance evident in the popular courts reflected not only a normative judgment about the value of individualized justice but also a commitment to popular decision making in the new democracy. It is one thing to hold that a wide range of extra-legal information and argumentation, such as the prior relationship and interaction of the parties and the effect an adverse verdict would have on a particular defendant,
167 On the possibility of knowledgeable bystanders heckling jurors, see Lanni 1997: 187–188.
is potentially relevant to the resolution of a legal dispute.168 But it is quite another to unleash a popular jury to determine, without being provided with any rule of decision, what types of legal and extra-legal information and argumentation should be credited in reaching a just decision in a particular case. Support for an open-ended system of relevance like that used in the popular courts cannot be separated from the critical question: who decides what is most relevant in a specific case? The discretionary approach of the popular courts was thus intimately linked to the creation of a participatory democracy in which, in Aristotle’s words, the dˆemos was kurios (supreme) in all things, including the popular courts.169
Why did the homicide courts not assimilate themselves to the more flexible procedures of the popular courts in the classical period? The sheer force of conservatism and reluctance to alter the traditional procedures of the Areopagus must have played some role. It is possible that the fact that the homicide courts did take into account the most important type of contextual information relating to a homicide – the intent of the offender – made it seem less necessary to reform the homicide procedures. The most important factor may have been the rarity of traditional homicide procedures. Homicide appears to have been unusual in Athens. Our sources mention only fifteen cases of homicide between 507 and
322 b.c.e.,170 and only three homicide speeches for delivery in the special homicide
courts survive.171 The frequency of traditional homicide trials may have further
declined in the fourth century because apagˆogˆe, an alternate procedure for bringing at least some types of homicide cases in the popular courts, was introduced near the end of the fifth century.172 Apagˆogˆe avoided the formalities, oaths, relevancy
168 For a discussion of categories of extra-legal evidence that Athenian jurors appear to have found relevant, see Chapter 3.
169 Arist. Ath.Pol. 41.2.
170 Herman 1994:101.
171 Including non-homicide cases, six speeches for delivery before the homicide courts survive. It may
be that the rarity of special homicide court trials is not the only explanation for the relatively small number of remaining homicide speeches. Bruce Frier has suggested to me that because homicide speeches were focused more on the legal and factual issues and less on rhetoric, speechwriters might be less inclined to publish these speeches and ancient scholars less likely to preserve them.
172 The dating and types of apagˆogˆe used in homicide cases have been the subject of scholarly dispute for some time. The defendant in Antiphon 5, delivered around 420 b.c.e., complains that the prosecutor’s use of the apagˆogˆe kakourgon procedure (the procedure normally used against street criminals) for an ordinary homicide is unprecedented. It is unclear whether this case marks the first instance of the expansion of apagˆogˆe kakourgon to homicide cases, or whether this suit was merely an aberration. Another type of apagˆogˆe applicable only in homicide cases (sometimes referred to by scholars as apagˆogˆe phonou)
rule, and jurisdictional complexities of the traditional homicide courts and was heard in a popular court before ordinary jurors. Although the homicide courts continued to hear cases throughout the classical period,173 the existence of this alternate homicide procedure, as well as the overall infrequency of homicide trials, may have weakened any inclination to change the traditional homicide procedures.
Even if the Areopagus and other homicide courts rarely heard cases in the classical period, the Areopagus remained prominent in the Athenian legal imag- ination, serving as a notional antithesis to the flexible approach of the popular courts. Indeed, if the homicide courts rarely sat in judgment, that probably only enhanced their reputation by promoting an idealized view of their operation undi- minished by frequent or apparent departures from the ideal. The idealization of the Areopagus and other homicide tribunals in the classical period may reflect Athenian anxieties about the decision making process of its mass juries. Praise of the Areopagus and the homicide courts was particularly focused on the special ability of the judges and their tendency to ignore the social standing and character of the litigants. The use of character evidence in the popular courts was contro- versial,174 and praise of the Areopagus may reflect a widespread unease about the potential for misuse of this type of information, especially at the hands of a pop- ular court jury. In fact, litigants in the popular courts who use character evidence are careful to explain how this contextual information is relevant to reaching a just result.175
The Athenians were aware of, and uneasy about, the aspects of their legal system that discouraged strict legal argument divorced from the social context of the dispute. Theirs was a conscious choice to favor contextualized justice and broad jury discretion over the more formal, legal approach represented by the homicide courts. Nevertheless, there appears to have been a decided ambivalence about the decision not to follow the Areopagus’ paradigm of expertise and legal
may have been introduced at the end of the fifth century. For an account of the dating and reasons behind the rise of the use of apagˆogˆe in homicide cases, see Volonaki 2000. It is unclear whether apagˆogˆe was available in all types of homicide (compare Gagarin 1979 with Hansen 1981a). What is important for our purposes is that in the late fifth- and fourth century some homicide suits were brought not through the special homicide court procedures, but in the ordinary popular courts via apagˆogˆe. Carawan (1998: 164–167) has suggested that apagˆogˆe gradually eclipsed the dikˆe phonou.
173 Carawan (1998: 164 n.45) catalogues only six possible examples of traditional homicide prosecutions in the fourth century.
174 See Chapter 3.
175 See Chapter 3.
argumentation in the popular courts. The social construction of the Areopagus reveals anxieties about the dangers of broad-ranging jury discretion in the popular courts, particularly the potential misuse of character evidence. In the next chapter, we will explore a different source of ambivalence in the popular court system, namely the need to sacrifice some measure of consistency and predictability to produce contextualized and individualized judgments.
5 Legal Insecurity in Athens
the past few chapters have described some aspects of the athenian judicial system as a sign of tension between contradictory goals. The Athenians’ idealiza- tion of the homicide courts reveals their ambivalence about the broad conception of relevance employed in the popular courts, and in particular their unease over the potential misuse of character evidence. In this chapter I explore another disadvan- tage of the popular courts, a defect inherent in any system favoring flexible justice: the unlikelihood that there will be even a rough consistency and predictability in judgments. Whereas much recent scholarship emphasizes the positive role played by the popular courts in fostering social stability and cohesiveness in Athens,1 this chapter assesses the social and economic costs associated with the Athenians’ discretionary system of justice.
Legal consistency is the notion that like cases should be treated alike. Pre- dictability is the ideal that the law is sufficiently certain to permit citizens to confidently conform their conduct to the law in most situations. These are two basic, closely related prerequisites of what lawyers today call the “rule of law.”2
Of course, even modern legal systems do not provide near-perfect consistency or predictability. Determining whether two cases are so alike that the decision in the first case should control the second is far from a straightforward process.3In today’s common law legal cultures, this task of comparing past cases to insure consistency is generally undertaken only with respect to legal, not factual, deter- minations.4 Moreover, most contemporary trials are, by definition, unpredictable: cases that reach the trial stage are generally considered winnable by the attorneys on both sides. Nevertheless, in most cases one can determine one’s legal rights and liabilities in a particular situation by examining the relevant statutes and deci- sions interpreting those statutes. The rules elucidated through this process are
1 E.g., Ober 1990:145; Johnstone 1999:106–108, 124–125.
2 For a general discussion of the requirements of a “rule of law,” see Rawls 1999:206–235.For a recent
discussion of the rule of law as an ideology, see Burns 1999:13–31.
3 For discussion, see MacCormick 1994:60.
4 Of course, the jury instructions come in the form of rules and interpretations of those rules that reflect
appellate decisions in past cases.
sufficiently clear that very few modern disputes result in the creation of a new rule of law.
Athens, by contrast, lacked clear, well-defined rules that permitted potential litigants to predict the likely result in even the most straightforward popular court case. We have seen that within the popular courts Athenian jurors were presented with a wide variety of legal and extra-legal information and argument and were left to their own devices to assign weight to different types of evidence as they saw fit, unguided by an authoritative rule of decision. As a result, popular court verdicts were largely ad hoc determinations. In the process of choosing a highly individualized form of justice in the popular courts, the Athenians were forced to sacrifice a good measure of consistency and predictability in their legal system. “Sacrifice” may be too strong a term, for the Athenians do not seem to have been
as troubled by the lack of consistency and predictability as a modern might expect. Nevertheless, legal insecurity – that is, pervasive uncertainty about legal rules and likely verdicts – did have significant negative consequences. The Athenian ideal of equality before the laws (isonomia)5implies treating like cases alike, and the lack of consistency across cases detracted from the lawcourts’ perceived legitimacy and authority. On a more concrete level, legal uncertainty meant that the law did not provide reliable ex ante guides for behavior in many situations, which increased the risk and cost of private transactions. Nevertheless, the advantages of an individualized, ad hoc system of justice appear to have outweighed these disadvantages, at least in the popular courts. This chapter examines the extent and effect of legal uncertainty in Athens, and explores why the legal (and social) system managed to function surprisingly well despite this climate of legal insecurity.
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