The city state of Athens in the 4th and 5th century, from the time of Pericles to the time of Demosthenes, is famous for two reasons: as a source of a great deal of literature that still survives and as the first famous example of democracy. To most moderns, that implies a system were government officials, at least at the top level, are chosen by majority vote or appointed by politicians who are. The Athenians had a rather different approach. Laws were made by majority vote of the Assembly (Ekklesia), which consisted of all adult male citizens who chose to show up. But the officials—magistrates—were selected by lot, each to serve for a term of one year; the only officials to whom this did not apply were the generals. The result was a government of amateurs and a legal and political system designed to accommodate it. As I hope to persuade you, the legal system containing a fnumber of clever ideas by clever people, some of which probably worked and some of which probably did not.
The Athenian Population
The population was divided into three large groups: Citizens, Metics, and Slaves. You were a citizen if you were the acknowledged child of married citizen parents,1 duly registered as such, although it was possible, under exceptional circumstances, for a non-citizen to be granted citizenship. Being a citizen gave you a bundle of political and economic rights, including the right to marry an Athenian citizen and, if male, the right to vote in the assembly, serve as a magistrate, volunteer for jury duty, serve as a paid arbitrator in your sixtieth year, and own property in Attica.
The metics were resident aliens, sometimes resident for several generations. They could not be selected as magistrates or vote in the assembly but could prosecute law cases. Their economic rights were more limited than those of a citizen; they could not, save by special dispensation, own land in Attica. A metic had to have a citizen sponsor who was to some degree responsible for him. A metic might be given citizenship, or some of the rights of citizenship, as a reward for some particularly valuable service.
Debt slavery was abolished as part of the reforms of Dracon, about two hundred years before the start of the period being discussed, so most slaves were either prisoners taken in war or the descendants of such. They may well have made up a majority of the population, although we do not have any solid figures.2 A slave’s owner could sue to collect damages for an injury to his slave and could be sued for damages done by his slave. He was not free to kill his slave but was free to beat him. The child of slave parents was a slave; it is not clear what the status was of the child of a slave and a free man or woman. While many slaves were household servants, farm laborers, or workers in the silver mines from which Athens got much of its wealth, some were independent workers who paid a share of their earnings or a fixed sum to their owners.3
If a master chose to free a slave, the slave could either return to his home city or become a metic, provided that his previous master was willing to be his sponsor; he could not have any other sponsor. It seems likely that, as in many other societies, a slave could buy his freedom, either with borrowed money or in exchange for a commitment to pay his previous owner from his earnings as a freedman. Other than being freed, a slave had one legal means of leaving his master; he could claim asylum in the Theseion4 and ask for someone else to buy him.
Laws and Courts
By the 5th century the assembly had spun off the job of trying cases and functioned primarily as a legislature. Cases were tried by juries in one or another of a variety of courts, which one depending on what law charges had been brought under. The procedure was overseen by the magistrate associated with that court. He received the charges that started the process and presided over the trial, but the verdict was up to the jury.
Each year, 6000 jurors were selected by lot from those who volunteered; the only qualification was being a male citizen and at least 30 years old. The size of the jury for a case varied over time and according to the nature of the case, but seems usually to have been about 500. Jurors were paid ½ drachma for each day they served, about half the wage of a rower, so jury service provided a sort of low end welfare. If we accept an estimate of 30,000 for the total number of adult male citizens, the jury panel made up about a fifth of the population; even allowing for the fact that a juror not might serve every day, that suggests that trials absorbed the attention of a substantial fraction of the population.
Juries gave their verdict by majority vote. The sums at stake in litigation could be substantial and jurors were likely to be poor, which raised an obvious risk of bribery. To prevent that, the Athenians contrived elaborate procedures designed to make sure that no juror would know what case he would be assigned to until more or less the last minute.
No full text of the laws has survived, merely pieces quoted in the orations written by professional orators to be memorized by prosecutor or defendant and fragments of laws recorded in surviving inscriptions, and we cannot be sure that even what we do have is accurate; an orator might, and it seems likely that some did, deliberately misrepresent the law in order to make it appear more favorable to his case. It appears, however, that each law included, explicitly or implicitly, a description of the court in which cases arising from it was to be tried and the procedure for initiating a case; the magistrate responsible for the case would be the magistrate associated with that court. Some cases were to be initiated by the plaintiff or private prosecutor arresting the defendant and taking him to prison, some by bringing the defendant to the magistrate to be arrested, others by other procedures. Unlike the Chinese statutes, the laws did not, in most cases, specify the penalty; that was left to the jury.
Once the case was initiated, it was up to the magistrate to collect evidence and run the trial. The parties were not allowed a legal representative to present their case, as in a modern trial; each had to speak for himself, although it was permitted for a party to yield some of his time to a friend to speak for him on an unpaid basis. There were no limits to what sorts of arguments could be introduced; it seems to have been common for a defendant to bring his children to stand by him, in the hope of inspiring pity in the jurors. Litigants could, and often did, employ orators to write speeches for them, which the litigant would then memorize and deliver. A considerable number of these speeches were preserved for their literary value, which is why we know as much as we do about the legal system.5
Witnesses were required to give their testimony in writing in advance; during the trial, their only contribution was to confirm that it was indeed theirs. Witnesses could not be cross examined but the parties could, if they wish, question each other.
The evidence of slaves was admissable only if given under torture,6 and only if the owner permitted it. The argument for this rule was that a slave could not otherwise be trusted to tell the truth, the argument against that a slave would tell whatever lies his interrogator demanded in order to stop being tortured. The latter point was obvious to them as well as to us; there is one pair of orations, composed by the same orator for two different cases, in one of which he makes the argument for torture, in one the argument against–according to whether his client wished to credit or discredit evidence given by a slave under torture. Torturing free men was not permitted by the law.
A witness could be required to give testimony, under penalty of a fine if he refused. A slave owner could not be required to permit his slave to give evidence, but his refusal to do so could be introduced as evidence.
Public and Private Cases
Most law cases were either public or private. A public case corresponded roughly to our criminal cases; it was supposed to be for an offense that injured not merely a single person but, in some sense, the whole community. At one time such cases seem to have been prosecuted by magistrates, but by our period that was possible only for minor charges. The ordinary procedure was for the case to be privately prosecuted by any male citizen who chose to do so. If prosecution was successful and led to to the defendant paying a fine, the prosecutor would, for many but not all sorts of cases, receive a substantial fraction of the fine, sometimes as much as half, as his reward. Similarly, if the case was based on the claim that the defendant was holding property that properly belonged to the state, a successful prosecution would result in half of the property forfeiting to the state, half to the prosecutor.
Such a system raises the risk of suits against defendants believed to be rich, unpopular, or both—whether or not they have broken any laws. One solution was a provision of the law under which a prosecutor who failed to get at least a fifth of the jurors to vote for conviction was himself fined, as well as barred from any future suits of the same kind. The fine was 1000 drachmas, roughly two years wages for an ordinary craftsman. It was also possible to charge a prosecutor with the crime of sycophancy, abusive prosecution, although such charges were limited to at most three citizens and three metics each year.
If the defendant was convicted, prosecutor and defendant each got to propose penalties; the jury voted on which to accept. In addition to fines, possible penalties included execution, exile, forfeiture, disfranchisement of descendants, loss of some privileges of citizenship, and, for a metic or other alien, enslavement.
In Athenian law, the equivalent of our tort suit was a private case, a case based on the claim that the plaintiff, or someone the plaintiff was representing such as a woman or child for whom he was responsible, had been injured by the defendant. Some categories of private cases were required first to go to arbitration, the arbitrator being selected from a group of citizens in their sixtieth year. If both parties accepted the arbitrator’s verdict, the case was over. But either could instead appeal, in which case there would be a jury trial. No new evidence could be introduced; only the evidence that had been presented to the arbitrator was admissable. It was also possible for parties to bring their case to a mutually agreed upon private arbitrator, whose verdict would be binding.
Murder cases were under a special part of the law believed to predate the reforms of Solon; it is unclear whether prosecution could be by any citizen, as with a public case, or only by kin of the victim, in analogy to a private case. For intentional murder, the penalty was execution with forfeiture of property, for unintentional killing, exile without forfeiture. After the first day of the trial, a defendant who expected to lose had the option of going into exile instead of proceeding with his defense.
When looking at any legal system, one question one should ask—one that will be the subject of a later chapter—is what incentive those who enforce the law have to do so. If there is no benefit to the prosecutor from prosecuting offenses, it is unlikely to happen. If there is too much benefit, defendants may be prosecuted even if they have done nothing wrong. In the Athenian case, the obvious incentive was money, a share of fine or property in a public case, a damage payment in a private case. An additional incentive, given the nature of the Athenian democracy, was political, to injure an enemy.
The victim of theft was was entitled to get back both his stolen property and a sum equal to twice its value. We worry about police planting drugs on a suspect in the process of search; the Athenians worried about a private party planting his own property on someone in order to accuse him of stealing it. They had a simple, solution. The accuser was allowed to search the house where he suspected his stolen property was hidden. But he had to do it naked.
Athenians, like gypsies, believed that certain acts resulted in pollution; their equivalent of marimé was miasma. It was contagious and it brought bad luck.7 One consequence was that a murder trial had to be held in the open, for fear that in an enclosed space the miasma would spread from the defendant to others present. Another was that someone charged with murder was not permitted to be present in temples or courts. In one case we know of, a defendant charged with murder claimed that the only reason for the (false) charge was to keep him from showing up in another court to prosecute a different case.
In another case the belief in miasma was used to get around an amnesty. The defendant was charged with failing to stay away from courts and temples despite being polluted. He had, it was charged, committed murder during the brief period when Athens, having been defeated by Sparta, was under the rule of an oligarchy. The killer could not be prosecuted for murder because the restoration of democracy had been accompanied by a blanket amnesty for crimes committed under the Thirty. Instead he was charged with entering temples and courts even though, being a murderer, he was polluted and so not permitted in such places.
Miasma shows up in at least one other oddity of the law; an object responsible for killing an Athenian had to be ceremonially exiled, removed beyond the boundaries of Attica. That reminds one of the deodand in early English law, an object which, having been responsible for someone’s death, was supposed to forfeit to God via the Crown, which was to sell it and apply the money to some pious use. It also resembles the modern legal rule of civil forfeiture. Trying a rock for murder may seem odd to us, but we are in a poor position to make fun of the practice, given that our legal system produces civil cases such as “The State of California vs 88 Ford Truck.”
Marriage and Inheritance
As a result of a law introduced by Pericles, a citizen could only marry another citizen. Marriage was monogamous, although the husband was also permitted to have a concubine, a recognized position with less status than that of wife; the concubine could be a slave or a free non-citizen, such as a metic. A free woman, wife, concubine, or umarried, had to have a lord, a kyrios,8 a man who was responsible for representing her—a citizen woman could not, among other things, sue on her on behalf—and supporting her. Before marriage a woman's kyrios was her father, after marriage her husband. If her husband died her kyrios was again her father again if she returned to her own family, or, if she remained in what had been her husband’s household the head of that household, usually her own son or a different son of her husband.
For a woman to be first betrothed and then married required the consent not of the woman but of her kyrios, usually her father. Divorce was permitted at the initiative of either side, with the woman's dowry going back to the man who had provided it, again usually her father. A dying man could assign wife and dowry to another, or specify in his will who they were to go to.
When a man died, his property was divided among his sons, who were then obligated to support his widow and provide dowries for his daughters. While he had some control over the details of the division, he could not disinherit any of them save by denying his legitimacy. The only way in which he could beqeath his property to someone other than his sons was by adoption, in which case the adopted son forfeited any claim he might have to inherit from his actual parents. If a son died with no male descendants but a daughter, she was required to marry the nearest male relative (outside of the narrow limits of the incest rules) who would have her. If already married, she was required to divorce her husband. It seems likely that one motive for these rules was to keep the household in existence in order that there would be someone to take care of the family tombs and do the required ceremonies on behalf of dead ancestors.
Legitimacy was a serious issue, since it affected not only inheritance but citizenship as well; not surprisingly, citizens took precautions to guard their wives, including permitting them only very limited opportunities to go out of the household. If a man caught another in adultery with his wife he was entitled to either kill the seducer or hold him for ransom, and was required to divorce the wife. Seduction was a more serious crime than rape, the latter being punished with a fine, initially 100 drachma, later set by the jury. Seen from the standpoint of the husband, that made sense; seduction implied the loss not only of confidence that his wife's children were his but also of his future trust in her.
Liturgies: The Production of Public Goods
The Athenians had a straightforward solution to the problem of producing public goods such as the maintainance of a warship or the organizing of a public festival. If you were one of the richest Athenians, every two years you were obligated to produce a public good; the relevant magistrate would tell you which one.
“As you doubtless know, we are sending a team to the Olympics this year. Congratulations, you are the sponsor.”
“Look at that lovely trireme down at the dock. This year guess who gets to be captain and paymaster.”
Such an obligation was called a liturgy. There were two ways to get out of it. One was to show that you were already doing another liturgy this year or had done one last year. The other was to prove that there was another Athenian, richer than you, who had not done one last year and was not doing one this year.
This raises an obvious puzzle. How, in a world without accountants, income tax, public records of what people owned and what it was worth, do I prove that you are richer than I am? The answer is not an accountant’s answer but an economist’s—feel free to spend a few minutes trying to figure it out before you turn the page.
The solution was simple. I offer to exchange everything I own for everything you own. If you refuse, you have admitted that you are richer than I am, and so you get to do the liturgy that was to be imposed on me.
MacDowell, Douglas M. The Law in Classical Athens M
Freeman, Kathleen, The Murder of Herodes F 1946
Appendix: Prices et. al.
1/3 to 1/2 drachma (2 or 3 obols) for juror
1 drachma for rower
2-2.5 for craftsmen or masons working on public projects.
The first propertied class (pentakosmedimnoi) had annual incomes at or above 500 medimnoi of wheat (250 times the daily minimum of an adult male). This income carried a value of 1,500 drachmae in 460-400 B.C.
The second class or cavalry (hippeis) had incomes between 300 and 500 medimnoi or 900 to 1,500 drachmae.
The third class of hoplites (zeugitae) had annual incomes of 200 to 300 medimnoi or 600 to 900 drachmae.
Pension for an "unfit" (crippled?) citizen: 1 obol/day= 1/6 drachma/day
The panoply or the suit of hoplite armor and weapons cost between 300 and 500 drachmae (equivalent of 1/2 to 1 year’s income of a zeugites).
wheat for a family of four about 50 drachma/year
Oil about 12.5 drachma
Property tax in an emergency, 1%
Implies 120 million drachma of propertied wealth.
1 At one time it was sufficient that one parent be a citizen, but under Pericles the law was changed to require that both be and to forbid marriage between a citizen and a non-citizen.
2 Freeman estimates that the free adult male population consisted of about 30,000 citizens and 15,000 metics; allowing for women and children would bring the total free population to something between a hundred and two hundred thousand. She guesses a slave population of 200,000-400,000. The Population of Ancient Athens by A.W.Gomme, 1933, estimates for 431 B.C. a total population of about 315,00, of whom 40,000 were adult male citizens and 115,000 slaves.
3 The same was true of slaves in the ante-bellum South; there was at least one who was a steamship captain.
4 A temple on the Acropolis, later known as the Hephaisteion.
5 Readers interested in seeing what the speeches look like will find sixteen of them in Freeman.
6 This was also the rule in Roman law.
7 “You know that, before now, many men whose hands are unclean, or who have any other sort of pollution, have gone on baord ship, and by doing so have brought destruction on the innocent souls who sailed with them, or have brought them into grave danger.” Helos, defending himself against a charge of having murdered Herodes, offers the fact that he and his shipmates did not have bad luck as evidence of his innocence. Freeman p. 81.
8 The same title was used for the head of a household. If a woman was married to a man who lived in his father's household, her kyrios would be her husband, but the kyrios of the household she was part of, and her husband’s kyrios, would be her husband's father.