The Athenian Court System

by
Henry A. Rhodes, Yale-New Haven Teachers Institute

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.

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.

Another interesting aspect of the Athenian legal system was that only free male citizens could instigate litigation. If a woman 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 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