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At the end of the fifth century, two political crises pushed the Athenians from an uneasy acceptance of legal uncertainty to large-scale legal reform. In 411 the Athenian Assembly was persuaded to vote the democracy out of existence. Two short-lived oligarchic regimes ruled Athens before the democracy was restored the following year. In 404, not long after Athens surrendered to Sparta to conclude the Peloponnesian War, an oligarchic coup ushered in the spectacularly violent reign of the Thirty Tyrants. In both cases, legal reforms were instituted shortly after the restoration of the democracy. The revolutions revealed the fragility of the democratic constitution and the need for safeguards in the process of lawmaking to protect the most important Athenian laws from hasty repeal or amendment. The political crises also raised questions about the character of the patrios politeia (“ancestral constitution”): both democrats and oligarchs claimed the patrios politeia laid down by Solon and Draco as their own, and the focus on collecting and reorganizing the laws of Solon and Draco after the restoration of the democracy may have been an attempt to establish the bona fides of the democracy.102
his participation that he recognized the legitimacy of the procedure and would accept the outcome, making it socially untenable to reject the verdict. Luhmann (1975) discusses the process by which legal procedure insures compliance with decisions quite apart from the perception of procedural or outcome fairness through a learning process that changes the structure of the expectations of the participants and socially isolates the unsuccessful litigant.
102 Hansen 1999:162.
Although the oligarchic revolutions provided the impetus for reform, the nature of the reforms suggests an attempt to address the longstanding problem of inconsistency and uncertainty in the laws as well. The paucity of our evidence and the difficulties involved in interpreting our literary sources103 make it impossible to determine the precise extent and aims of the legal reforms with any certainty. But the conclusion that the Athenians were striving for coherence, or at least the absence of contradictions, in their legal rules seems beyond doubt. We depart here from a largely synchronic study of the legal system to examine the legal develop- ments of a single decade not because the reforms had an important impact on the functioning of the courts – in fact, we will see that the various reform measures were either short lived or ineffective. Rather, this episode is of interest because in the attempts at reform we can see both a widespread ambivalence about the uncertainty inherent in the legal system, and the limits of Athenian willingness to alter their legal system to reduce legal insecurity.
The Revision of the Laws, 410–404 and 403–399
Soon after the restoration of the democracy in 410,a board of magistrates known
as anagrapheis was set up to research and write up the laws. According to Lysias
Against Nicomachus, this board, which included Nicomachus, was instructed “to write up the laws of Solon.”104 A separate decree of 409/8 also ordered the anagrapheis to republish Draco’s law of homicide.105 Modern accounts of the legal revisions tend to interpret the evidence in one of two ways.106 For some, the board was charged with collecting and publishing only the laws of Solon and Draco that were
103 Our two main literary sources for the reforms are Lysias Against Nicomachus, and Andocides On the Mysteries. Against Nicomachus concerns the prosecution of Nicomachus, who served in 410–404 and again in 403–399 as one of the officials involved in collecting and publishing the laws as part of the reforms. Because this speech accuses Nicomachus of overstepping his powers, it may exaggerate the actions taken by the board on which Nicomachus served, and/or understate the mandate given to this board. On the Mysteries discusses at some length the second phase of the reforms that began in 403. Andocides was involved in a religious scandal in 415, and as a result was barred from attending the Eleusinian Mysteries. In this suit, Andocides is charged with breaking the ban in 400 or 399, and Andocides argues in part that the original provision banning him from participation, along with all other laws passed prior to the reforms of 403, was made invalid by the revision of the laws. It is therefore in his interest to portray the reforms as a sweeping revision of the entire law code.
104 Lys. 30.2.
105 IG i3 104.5–6.
106 Robertson (1990) has proposed a third interpretation, namely that the anagrapheis were appointed to
transcribe all the laws for Athens’ new central archive, and did not permanently “publish” the body
of laws, but merely, during the second phase of reforms, temporarily posted individual statutes for
currently in force; that is, the anagrapheis replaced those Solonian or Draconian laws that had been clearly superseded by later legislation,107 but otherwise did not concern themselves with valid laws unrelated to subjects addressed by these ancient lawgivers.108 On this view, the revisions were aimed at collecting the valid laws of Solon and Draco in one place109 and eliminating inconsistencies that had developed in one part of their statute law, but did not include an attempt to publish a single, comprehensive, and coherent body of law.
However, because the phrase “the laws of Solon” is commonly used to refer to the Athenian laws in general, it seems likely that the Lysias passage should be interpreted somewhat more broadly to mean that the anagrapheis were charged with collecting all the laws currently in force and publishing them in a single place.110 This broader account of the mission of the board gains strength from epigraphical evidence suggesting that the anagrapheis did in fact write up recent laws in addition to the laws of Solon and Draco.111If this interpretation is correct, the legal reforms of 410 were aimed in part at producing a single, consistent code of laws that would foster legal certainty by eliminating obvious inconsistencies among statutes. However, this reform did not address the indeterminacy and inconsistency created by the application of the laws by juries in court cases. The process of revising the laws was terminated six years later when the Thirty Tyrants came to power.
When the democracy was restored in 403, the anagrapheis were reappointed for a second term to continue their work. It seems likely that the revision of the
inspection. This provocative thesis has thus far not won many adherents. See, e.g., Rhodes 1991:91; Todd 1996:128.
107 The prosecutor in Lysias 30 states that Nicomachus not only collected and published the laws but also deleted regulations he found in his research (Lys. 30.2). The speaker implies that deleting laws went beyond the mandate of the anagrapheis, but it is more likely that one of the functions of the board was to discard outdated, inconsistent, or redundant laws. For discussion, see Todd 1996:109.
108 E.g., K. Clinton 1982.
109 Laws were inscribed on stone stelai and generally displayed near the offices of the relevant magistrates
(Todd 1993:56 & n.7). As a result, the texts of laws were scattered throughout Athens. Sometime around the end of the fifth century, a public archive was constructed to house copies of the laws (Boegehold
1972).
110 Sickinger 1999:98. Other, slightly different, accounts that also posit the revision of all the laws then
in force include Rhodes 1991 and Hansen 1999:162–163.Presumably the anagrapheis ignored nonce
enactments, like honorary decrees, in the process of revision (Rhodes 1991:91–92).
111 Inscriptions on stelai that scholars have associated with the anagrapheis ’ first term from 410–404 include
laws recent enough to mention the trierarchs and the dikastˆerion (Rhodes 1991:90).
laws was completed fairly soon after reappointment, as the anagrapheis appear to have devoted much of their second term to producing a sacrificial calendar which survives in fragmentary form.112Our most important source for the second phase of legal reform is Andocides’ speech On the Mysteries. In the course of his defense, Andocides quotes a decree moved by Teisamenos in 403 that outlined which laws were valid in the restored democracy. The decree provided in part that the Athenians should be governed in accordance with tradition, using the “laws of Solon” and “the decrees of Draco which we used in the past.”113The “laws of Solon” and “decrees of Draco” in this statute probably refer to the revised code of laws collected and published by the anagrapheis. 114 The decree also describes a process for vetting new laws: two boards of nomothetai were set up, one, elected by the Council, proposed laws and temporarily displayed them in public, while the second, selected from the demes, voted on whether to ratify each law and add it to the code.115Andocides claims that all the laws were examined through this process before being included in the new law code, and some scholars have taken him at his word.116But a straightforward reading of the decree itself (rather than Andocides’ interpretation of the decree) suggests that the laws published by the anagrapheis were automatically included in the new code and only new laws that were deemed necessary additions to the code underwent this examination and ratification procedure.117
Andocides also quotes a series of related laws, two of which are of interest here. “The magistrates shall not use an unwritten law concerning any matter;” and “No decree, whether originating from the Council or the Assembly, can supersede a law.”118 The first law is generally interpreted to mean that mag- istrates were to enforce only the laws that were written up by the anagrapheis and amendments ratified by the nomothetai; other laws that were not included in the revisions were now void.119 The second law created a distinction between laws (nomoi) of general application included in the new law code, and decrees
112 Sickinger 1999:99.
113 Andoc. 1.83.
114 Rhodes 1991:97.
115 Andoc. 1.83–84.
116 E.g., Hansen 1999:163.
117 MacDowell 1962:194–199.
118 Andoc. 1.87.
119 E.g., Rhodes 1991:97; Sickinger 1999:100.
(psˆephismata), which were generally temporary or more specific enactments passed by the assembly and could not contravene a valid law. Taken together these laws indicate that the laws collected and published in the process of legal revision were intended to be an exclusive, authoritative law code that could not be con- travened by the assembly alone (the elaborate process for amending a law or creating a new law after the completion of the codification is discussed below). The revision of the laws from 410–399 thus attempted to eliminate inconsistent, outdated, or redundant laws, and to create a single, at least superficially coherent law code.
The codification should have alleviated the legal uncertainty in Athens to some degree by providing a single, authoritative collection of laws in a central location that could be consulted by litigants.120 But the law code is not mentioned again after Andocides’ speech in 400. When litigants do state their source for a law, they mention either the individual stele or the archive where copies of laws were kept.121I find the interpretations of the revisions put forward by Hansen and Todd most plausible: the Athenians did indeed strive for legal codification in 403 in an attempt to increase consistency and coherence among their body of legal rules, but seem to have abandoned the idea almost immediately.
We cannot know for certain why the Athenians became so quickly disen- chanted with codification. It seems likely that the completed code did not remain unchanged for long and required numerous amendments and additions.122 Perhaps the process of constant revision and republication of the laws seemed impracti- cal.123 More attractive is Todd’s speculation that the public process of constant revision of the law code would highlight the reality that the Athenian laws were not, in fact, the unchanging ancestral laws of Solon and Draco, but were in constant flux. Todd suggests that “the Athenians collectively preferred chaos and a sense of continuity to coherence at the price of admitting change.”124 Stated another way, the Athenians may have felt that the authority of the law was diminished rather than enhanced by codification, and that the gains in legal certainty (which
120 Some scholars who characterize the legal reforms as a “codification” of the laws nevertheless doubt that all the laws were published on stone in a single location. See, e.g., Rhodes 1991:98–99; cf. Hansen
1999:163–164.
121 E.g. Dem. 59.75–76 (stele); Dem. 25.99 (archive); Lyc. 1.66(archive).
122 Hansen 1999:164.
123 So Hansen 1999:164. He suggests that once codification was abandoned new laws were kept in the
archive on papyrus and that some were also inscribed on individual stone stelai.
124 Todd 1996:130.
were in any case modest because the reforms did not change the ad hoc nature of jury decision making) were outweighed by the reduction in the respect for and authority of the laws.125
Nomothesia
The process of lawmaking in the fourth century, known as nomothesia, was also
designed in part to foster coherence and consistency in the Athenian corpus of laws. It is not clear when the nomothesia procedure was introduced, but it may have been conceived as part of the legal reforms and enacted sometime not long after the revision of the laws of 403–399.126 The three laws concerning nomothesia that are most interesting for our purposes are the “review,” “repeal,” and “inspection” laws.127 The “review law,” quoted in Demosthenes Against Timocrates, provided that each year the Assembly was to reconsider the entire body of laws and vote on whether to retain or reject each law.128 If any law was voted down, anyone who wished could make a proposal to replace the old law. A board of nomothetai (chosen by lot from the jury pool, unlike the one-time board of nomothetai involved in revision of the laws from 403–399) heard arguments and decided whether to accept the new proposal or retain the original law. Under the “repeal law,” any citizen could at any time, on his own initiative, make a proposal to replace an old law with a new one to be considered by the nomothetai. 129 The “inspection law” described in Aeschines Against Ctesiphon provided a procedure for eliminating inconsistent laws. Under this measure, the thesmothetai were charged with examining the laws and informing the Assembly “if any written law is contrary to any other law, or if an invalid law is included among the valid ones, or if more than one law has been written on the same subject.”130 In such a case, the Assembly arranged fora board of nomothetai to sort it out.
125 The Athenian approach to legal consistency may not be as foreign as might at first appear. In modern legal theory judicial consistency is generally justified either as a requirement of fairness, and thus an end in itself, or merely as a policy that serves to enhance the authority of the law and the predictability of decisions.
126 Hansen 1999:165–166. Some scholars have argued that the various surviving laws relating to nomothesia were introduced gradually throughout the fourth century. For discussion, see D. M. MacDowell 1975; Rhodes 1985; cf. Hansen 1985.
127 There is some dispute as to whether or not there were additional laws related to nomothesia. See Hansen
1985; MacDowell 1975; Rhodes 1985.
128 Dem. 24.20–23.
129 Dem. 24.33.
130 Aesch. 3.38.
Unlike the revision of the laws, nomothesia remained in force throughout the period of Athenian independence and, in some scholars’ view, had a profound impact on the nature of the Athenian democracy. By taking the power to make laws out of the hands of the popular Assembly, so the argument goes, nomothesia contributed to the transition in the early fourth century from a radical to a more moderate democracy.131However, the effect of nomothesia on the workings of the legal system was much more limited: although nomothesia fostered some coherence and consistency among the laws,132this process did nothing to alleviate the uncertainty and inconsistency caused by the highly particularized, ad hoc nature of popular court jury decision making.
It seems that the problems created by legal insecurity, serious though they were, were not troublesome enough to trigger changes in the basic workings of the popular courts. Apparently there was no political will to limit the popular court jury’s discretion in order to create greater legal certainty and to improve the capability of the law to guide conduct. In the next chapter, we will see that in one area of law – maritime suits – the costs associated with contextualized justice outweighed the benefits, and steps were taken to narrow the range of evidence considered relevant to the jury in an effort to enhance the predictability of verdicts.
131 For the argument that the distinction between the nature of fifth- and fourth-century Athenian democracy is overdrawn, see Ober 1990:95ff.
132 The Athenians were not entirely successful at avoiding inconsistencies: Demosthenes and Aeschines
introduce conflicting laws regarding the awarding of honorary crowns. Compare Dem. 18.120–122 with
Aesch. 3.32–48.For discussion, see Rhodes 1980:306.
6 Maritime Cases
in the middle of the fourth century b.c.e., the athenians created a special procedure for maritime suits, the dikˆe emporikˆe. 1 Dikai emporikai were most likely heard in the ordinary popular courts,2 but were exceptional in the frequency of non- citizen participation as litigants and witnesses, and in the rule that only disputes over written contracts could be heard through this procedure. Maritime suits, like Athenian homicide cases, exhibit a distinctive notion of relevance and mode of legal argumentation. Speeches in dikai emporikai appear to be more focused on the terms of the written contract and less likely to appeal to arguments from fairness or to evidence regarding the character and social standing of the litigants than ordinary popular court speeches. The unusual mode of argumentation in maritime cases can be traced to two interrelated causal factors: the common participation of foreigners in dikai emporikai, and the need to facilitate trade and attract non-Athenian merchants3by offering a predictable procedure that focused on the enforcement of contracts as written.
A few words regarding the nature of our sources for the dikai emporikai are in order. In discussing characteristics of the homicide courts that set them apart from ordinary popular courts, it was possible to draw on numerous texts explic- itly remarking on the differences between them. There are no comparable dis- cursive comments regarding the procedures of the dikai emporikai. 4Consequently, the analysis offered here must be based on the evidence from the five surviving maritime speeches themselves, which are virtually silent on the significance of the
1 Dikˆe emporikˆe (pl. dikai emporikai) refers both to the special maritime procedure and to a maritime case brought under this procedure.
2 For the possibility that dikai emporikai were heard in special courts before specialist judges, see below.
3 On the domination of Athenian maritime trade by non-Athenians, see Reed 2003:27–33.
4 Demosthenes 7.12 may be suggestive in this regard:
And yet, at that time we had more dealings with each other than we have now, Macedonia was in our control and paid us tribute, and at that time more than now we used their markets and they used ours, and maritime suits (dikai emporikai) were not akribeis (“by the book” or “carried out according to rule”) as they are now, carried out monthly, making it unnecessary for those who
are so far away from each other [i.e., Macedonia and Athens] to make an interstate legal agreement [ symbolˆon ].
distinctive procedures at issue, and on inferences drawn from comparisons of the argumentation found in maritime and non-maritime cases. Judgments about the extent to which maritime speeches are distinctive in their approach to legal and contractual as opposed to extra-legal argumentation is inevitably somewhat sub- jective. However, the written contract requirement for dikai emporikai sets these procedures clearly apart from ordinary popular court cases.
THE CREATION AND CHARACTERISTICS OF THE DIK E ˆ
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