Sunday, November 29, 2009

Athenian courts

Adriaan Lanni's book Law and Justice in the Courts of Classical Athens is not really an introductory survey of Athenian courts. She examines a specific feature of Athenian law: relevance in the courtroom. As a background to her argument, however, she provides the basic outline of the courts which existed in classical Athens.

Except for maritime cases, litigation in Athens was the privilege of male citizens, with few exceptions. There were two categories of procedure, private cases (δίκαι) in which the victim could bring suit, and public cases (γραφαί) which anyone could initiate. There was a measure to prevent the courts being used as public stages, whereby the prosecutor was penalized if he failed to win at least one-fifth of the votes, sometimes involving exile. Citizens could choose arbitration to avoid the courts. There was also a body called "the Eleven" in front of whom criminals were brought when caught red-handed; they were executed if they confessed, or sent to trial if they maintained innocence. If it came to trial, cases were heard by juries of Athenian citizens, usually numbering between 201 and 501 people, although there are claims of much larger juries in certain cases.

Homicide cases were a different matter. There were five homicide courts. The Areopagus is the most famous, and probably the oldest, and its foundation is mythologized in the Orestia of Aeschylus. The Palladion probably heard cases of unintentional homicide, although there is debate on its precise function (some think that it heard cases in which a person was involved in homicide but did not carry out the act with their own hands). The Delphinion heard cases in which the defendant admitted killing someone, but claimed that they they had acted within the law. The Prytaneion seems to have involved matters of religion and ritual, and the Phreatto heard cases in which "a defendant in exile for a prior offense was charged with homicide or wounding; he was not permitted to enter Attica but was obliged to deliver his defense to the court from a ship anchored off shore." But these last two courts are poorly attested. Much of the information for the operations and jurisdictions all of these courts comes from the Aristotelian Constitution of the Athenians.

Lanni sees a broad division in the court system between the popular courts, on one hand, and the homicide and maritime courts on the other. Her division is based on the standard of relevance of evidence introduced in the courtroom. The Athenians made a distinction between evidence that was to the point (εἰς τὸ πρᾶγμα) and evidence that was outside the point (ἔξω τοῦ πράγματος). Interestingly, however, they required speakers to stick to the point only in homicide and maritime cases, whereas in popular courts, which handled all other matters, speakers were not prevented, as any reader of the Greek orators knows, from introducing all sorts of information which had no bearing on guilt, such as the philanthropy or misanthropy of the defendant, or the possible effects of a guilty verdict on the defendant's family.

In designing a legal system, "all societies must address the inevitable tension between consistency and flexibility," and Lanni argues that the Athenian system represents a complex solution to that problem. She suggests that the Athenians deliberately allowed irrelevant information into the popular court proceedings in order to provide that each case was understood in its particulars, and was not judged blindly according to impersonal laws. In homicide cases, however, speakers were required to stick to the point at hand, and Lanni argues that this displays both the conservative nature of the homicide courts, and a desire to avoid the dangers of volatile emotion in deciding cases of the utmost seriousness. She argues that the flexible nature of the popular courts developed out of the most conservative homicide courts, and not the other way around, as is sometimes supposed. There were also special procedures for maritime cases, known as the δίκη ἐμπορική, which probably were heard in the popular courts, but which, like the homicide courts, required speakers to stick to the point, and suits could only be brought under this procedure when a contract was involved. Lanni argues that the stricter standards of relevance in these matters was meant to instill confidence in foreign investors and merchants that they could count on "consistency" when appealing to Athenian courts.

For the most part, Lanni makes her case strongly, and the book provides a good overview of the legal system, if not really an introduction to the subject. I think, however, that she too lightly dismisses the religious element of pollution in homicide cases. Perhaps the stricter standards of relevance in homicide cases reflects the situation that defendants were either polluted or not, they had either committed the act or not, and any other information was irrelevant to the proceedings. Robert Parker has argued that the pollution element in Greek religion has been exaggerated, and the homicide courts did in fact take intent into consideration, so maybe Lanni is right, but she dismisses this with only the briefest mention, and I wish she had addressed it at greater length.


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