Download Outline for Ancient Law with Lanni

Outline for Ancient Law with Lanni:
I
Course Introduction and Historical Background:
Introduction:
A. Why is Athenian Law important:
1. The juries of ancient Athens would look at the character of the of the parties. Juries would look at
the effects of sentencing and guilt on the non-guilty parties involved (families).
2. The Issue of Free Speech in Athens: free speech was tempered by the people’s interests. If a
citizen proposed a law that was contrary to the good of the public, he could be penalized.
3. In Ancient Athens, professional speech writers would write speeches for litigants who would
present them in their own defense. It is not clear if the legal arguments won, or what the other side
was. We do not know if the courts were available to the poor. However, the sources include
every day type issues and tackle a wide variety of issues.
B. First Case:
1. Demosthenes 54. Ariston v. Konon: in private (dike) cases it is the victim who is allowed to bring
suit and he carries the suit himself. Public cases affect the public at-large. The audience for the
trial was the dikastai who were like a Jurie (or lay judges) they would judge law as well as fact.
a. There would be a magistrate who would run the courtroom, and instruct speakers as to time.
All the jurors would have two disks which would lead to the verdict.
(1) The litigant would bring in the laws in his narrative. A copy would be read out, and each
individual case could bring in whichever law they wanted.
b. The legal charges are battery (aikeia) and clothes stealing. However, he states that he is also
guilty of outrage or hubris.
(1) Clothes stealing is a crime included in the crimes called kakourgoi that is a common
crime (like regular thievery). They can be physically arrested on the spot, and they can
be summarily executed for this crime.
(2) Outrage or hubris is not really understood. The laws did not give the jurors what the
criteria was for a particular charge. It is a graphe, or public charge that anybody is
allowed to prosecute not just the victim. If you are a prosecutor in graphe and you don’t
get 1/5 of the votes you are substantially fined.
- Any behavior that is uncontrolled and shows a willful desire to humiliate or defame
others.
- It could be an offense against the public order, or perhaps even bring the wrath of the
gods down on Athens.
(3) The fact that Konon does not keep his sons in line, and joins in the battery shows that he
probably did not respect his own father.
c. Ariston does not bring the more serious public charge because of many reasons, higher
standard of proof, no share in the fine received (goes to the public), and modesty as a young
man bringing a case against his elder.
d. The use of character evidence: one must base their ruling on a “man’s life and character”
Ariston looks at the character of Konon’s family who are characterized a ruffians, while
juxtaposed with the supposed virtuousness of Ariston himself.
(1) Since Konon was part of an impious group as a young man, the Ithyphallics, so therefore
any oath he took should be discounted.
(2) In the ancient world there was more of a belief in the immutability of character than there
is now.
e. Themes: Amateurism of the system, that there is no judge, the fact that the laws brought into
the case are not the laws of the case, character evidence, and an entertaining story is part of
how you succeeded. There is a reference to the laws as thin wall that preserves public order,
but must be upheld to prevent anarchy.
B. Historical Background: very few speeches survive. In Plato’s apology we are given an example of a
sentencing phase. Throughout Athens many large stones were left to explain what the laws were. History
of the development of the democracy:
1.
e.
2.
Classical Greece was divided into 750 city states. Athens was the largest city state in terms of
population, but second largest in terms of space (Sparta was larger). Athens was the city center of
Attica.
a. There was a move from oligarchy rule of the rich to a radical democracy were all citizen’s
ruled. The Aristocrats, Eupatridai, ruled through Archonships.
(1) The Military innovation of the Hoplite formation led to the democracy. Since yeoman
farmers could afford to participate in the military defense of the city they demanded more
political power.
(2) Political change was further popularized with the ascendancy of the Navy which was
manned by the poorest sector of society.
b. In 621 Draco set down his homicide law and established the Areopagus. Very harsh, thus
Draconian!
c. Solon’s period in 594 was made Archon, he established wealth qualifications for political
participation instead of relying on the well born aristocracy.
(1) Constitution of the Athenians:
- Led to the end of debt bondage.
- Provided for ephesis or appeal to a law court.
- Established the graphe or public procedure where anybody could bring a suit on
behalf of someone else. Helped victims because if you were weak you could get
support from a more powerful citizen.
d. Peisistratus 561 became tyrant (somebody who took power through not constitutional forms)
because there was Anarchy.
(1) Created a system of Circuit judges. Thereby centralizing the judicial process and
allowing for the development of civic identity.
e. Cleisthenes, 508 created demes so that every tribe had representatives from every part of the
territory. The executive branch of the assembly boule would rotate to the different Athenian
tribes.
(1) He also created the punishment of ostracism: every year there would be a vote, and if the
people wanted an ostracism you would have to live in exile for 10 years if whoever got
the plurality of votes.
- Ostraka: are the stones were the votes were written.
- Aristeides: he was walking to an ostracism and wrote his own name so that a blind
man could have him ostracized.
f. 490, 480 there are the Persian wars. Athens was sacked in 480 because the Athenians
voluntarily left.
(1) The land and sea victories gave ordinary soldiers and sailors a sense of importance and
increased democratic sentiment.
(2) The Athenian alliance to deter Persia becomes an empire, which leads to an increase in
court cases (because peripheral cases occasionally must be tried in Athens). And tribute
increased wealth which allowed jurors to be compensated for their service.
g. Periclean Athens 450-429: GOLDEN AGE, by this time the major characteristics of the
Athenian justice system are thought to have been established.
(1) In 404 Athens loses the Peloponnesian war, but keeps its democracy.
(2) Limits Athenian citizenship to people who are born to two Athenians.
Fourth Century Athens: PERIOD FROM WHICH MOST OF OUR SPEECES COME. The
distinction between laws and decrees comes into existence. The nomoi (laws) are considered
superior to the psephismata (decrees) and all decrees must conform with the law.
(1) Democracy ends in 322 B.C. when the Macedonians take over.
(2) Law is understood as superior to the rule of men
Political institutions:
a. Herodotus Persian Debate: Democracy leads to equality isonomia, accountability of public
officials, and offices chosen by lot.
b. The Assembly: decided military matters, and decided small matters.
(1) There were powerful individual politicians who had supporters around him.
(2) Would meet on a hill called the Pynx.
c.
The Boule or Council of 500: included men over the age of 30 who were chosen by lot. This
institution was created by Cleisthenes. Was the administrative body that ensured that what
the Assembly decided was actually implemented.
d. Areopagus: existed before the democracy, and was made up of ex-Archons who would serve
for life. Served as a homicide court in classical Athens.
3. Population: 30,000 adult male citizens, 100,000 total citizen population, 40,000 metics (resident
aliens); and 150,000 slaves. Farming was considered the occupation of choice, commercial
activity and working for someone else was considered dishonorable.
a. For free people without land there were different activities you could engage in. Including
farm for another, or receive pay as a juror/assembly person, or even social security.
4. Social Classes: Rich (eupatridai) and Poor (thetes). Divisions in wealth were also clear in
military, the rich would be in the cavalry, the middle class in the phalanx, and the poor in the
Navy.
a. The very rich were required to pay a property tax and take on a liturgy, a public expense.
(Like pay for the upkeep of a naval ship).
C. Law Codes and Archaic Law:
1. Purpose of prologues: seem to try and justify the purpose of what has been done. The rulers state
that authority and law has come from the gods. Much of the prologue is trying to persuade people
to follow the laws by invoking the good character/authority of the lawgiver.
2. Laws of Ur-Namma: the laws try to show the view that they are for the purpose of protecting the
downtrodden and oppressed.
a. The divine river ordeal: the law suggests that the gods have something to say in some types of
cases. There is some ideas that these decisions were not as fair as thought, but involved the
discretion of priests.
b. There are examples of the laws protecting people in relative weakness (divorcees and slaves).
“I did not deliver the orphan to the rich. The widow to the mighty, etc.”
(1) It also protects property rights, and the relative status of people.
c. The first law outlaws homicide. This is innovative as very few of the codes have an explicit
prohibition on homicide.
3. Laws of Lipit-Ishtar: emphasizes the kings role as a restorer of justice and the social order. It
blesses any future king who follows the law and curses any king who desecrates or mutilates it.
4. Laws of Hammurabi: historically known as law collections. The penalty for regular homicide is
death, but it explicitly leaves out the penalty. It states that those who accuse of homicide and have
no proof will be executed.
a. Many times the laws that are clear are not written down because they are customary and they
are known by everybody. It is only the laws that are less obvious that become codified.
b. Epilogue: explains that fixing the laws in a written medium will give solace to the victim. Or
give the loser a sense of why he lost before the judge.
(1) There are no examples of contracts quoting the specific laws.
(2) There are certain inconsistencies in the law (theft of personal property v. theft of
agricultural property).
- Some people have asserted that this may take into account past precedent that meted
out different punishments.
(3) There is a general rule to the writing, and then there is a series of specific examples that
have no relation the rule.
(4) The code states that it will protect the weak, but it really protects the weak and innocent.
And there are some protection to debtors and slaves.
- Protection of slave owner’s interests and property interests.
c. Generally, the rules are very complicated and then they extrapolate out to less borderline
cases.
d. One interpretation is that these rules were just propaganda and were never really imposed,
they just attested to the power of the ruler and their authority.
(1) It could be seen as partly or completely symbolic. This is still part of our law today,
where legislature passes laws that are impossible to enforce in order to gain popularity.
(2) These laws establish the guidelines, frame the societal debate and give people ideas of
how to act in certain circumstances, even if it is not enforced.
Law can function to change people’s social norms over time even if they are not
enforced.
- Perhaps Hammurabi’s code was just meant to frame the debate and say what is right
or wrong.
5. The Twelve Tables of Rome: came out of the struggle between the upper and lower class in Rome.
The Patricians wrote the first 10 tablets, but later a combination of Patricians and Plebians wrote
the last two tablets.
a. The only aspect that speaks about the classes is the provision that prevents marriage between
the classes.
b. The rules do not appear to help the oppressed in any way.
c. It is a very short code, and only singles out problems concerning property.
d. Again, the only stuff written down is the newer laws that have not been internalized and are
less certain.
6. Gortyn: 450 BC was a Cretan legal code. The society was an oligarchy, and it was believed to be
a colony of Sparta. It is similar to Hammurabi in that the very first provision is a general rule that
provides a penalty.
a. The individual cases appear to be separate laws enacted a different times.
b. Could any one read these laws? we do not know, but from this period in Crete there were a lot
of inscriptions of laws but other types of inscriptions could not survive.
(1) Perhaps only the aristocrats and magistrates could read these laws, but not the common
people.
c. In this case there is evidence of innovation, there are non-retroactive clauses that suggests that
something new is being tried.
d. Perhaps the protection of property rights is related to life at home, as opposed to life in the
camp.
7. Solon’s Reforms: abolished debt slavery, allowed appeal to the law court, and established the
graphe or public case.
8. Why did people right laws at all?
a. Some thought that it was a struggle from the lower classes to protect themselves from the
powerful.
b. Others think that because of the social struggle going on, the Aristocrats wrote the laws to
solidify the status quo.
c. The Greeks were expanding trade and needed written laws to determine their interaction with
other cultures.
d. Some believe that the Greeks were basically interacting with the near-east and taking cues
from them
a. Others believe that the incredible growth that the polis experienced during this time
period served as an impetus to organize and write laws.
D. Early dispute resolution: there was a general desire to stop people from taking justice into their own
hand. By setting specific penalties, it would discourage people from engaging in self-help and retaliation.
Many norms seemed to be effective because of social shaming mechanisms.
1. Herodotus: The Histories: the story of Deioces, he is chosen by the people to be a judge because
his decision are regarded as fair. He becomes so popular that even other villages clamor for his
help. Impartiality increases status.
a. The idea that the judge is in the position of convincing the litigants to follow the laws and
follow the verdict is necessary when there was weak or no enforcement.
(1) Also, the judge usually has to convince the people that he deserves the title.
b. The justice dispensed usually would provide some relief for both sides since it had to appear
fair.
c. Both sides have to decide to actually go to the judge. But it would appear that social pressure
would encourage people to go to an arbitrator and settle disputes through law.
2. Hesiod’s Theogony: the gods will make the person’s tongue spout honey. So again the idea of the
judge persuading the litigants instead of the other way around. It is the leaders position to stop
quarrels and stet things straight for the people.
a. There is an association between speaking well and justice, however there is the counter
example of fooling others by speaking well.
-
3.
Homer and Achilles Shield: it is believed that the Mycenean period is being depicted, but
especially when looking at the military weapon that suggest a later period. In this case the guilt is
assumed.
a. The peaceful city depicted in the shield depicts two scenes, a wedding and a trial.
(1) It appears that a blood price would be paid by the defendant. The victim could exact
retaliation, so the onus would be on the defendant to offer a blood price or go to a judge.
- It is possible that they are arguing whether the blood has been paid, or the amount
paid. The other question is whether the victims relatives are forced to accept the
blood price.
- Perhaps it was customary to reject payment initially, but then take it.
- Sometimes it is believed that an aggravated homicide cannot accept a blood price,
while a mitigated homicide must accept a blood price.
(2) A series of elders would offer solutions and the crowd would reward the solution they
found best.
- Perhaps the judges would just formulate oaths that the litigants would have to take,
and the community would reward the judge who came up with the best oath.
4. General themes: the litigation is public, it is oral, there are compromised decision that get the
litigants to follow the verdict. There is an emphasis on persuasion on the part of the judges.
5. Draco’s Homicide Law: does not explicitly prohibit homicide, but talks about unintentional
homicide.
a. Every kinsman is given a veto over whether to accept a pardon and blood price from exile.
b. In this passage the first thing to be determined is whether the accused is guilty of homicide.
c. It appears to be a new law in that it is retroactive, and if it was custom there would be no need
to include this clause.
d. Once you go into exile, you cannot be killed by the family. The killer is not allowed to go to
international events where he might encounter the family.
e. Looks at special cases of victim having no relatives, or in the case where somebody plans the
murder but does not do it himself.
E. Egyptian Procedure and Ancient Law: many documents no longer survive and are available in a
limited fashion.
1. There are four sources:
a. Monumental sources, found in the stone of temples.
(1) There are a few legal decisions that were set in stone to advertise the rights that these
decisions created.
b. There is also archival material, that was mostly in the administrative branch.
(1) There is also a great land survey which details for a large section of Egypt who has the
rights to a particular piece of land.
(2) There are also papyrus that talk about the great criminal trials of the era. Like the grave
robbery trial.
c. There are also stories and Myth that can elucidate practice. But, myth is mostly apocryphal
and it does not go with what we have.
d. There is also private law sources. The readings look at the village of Deir el-Medina.
2. Deir el-Medina: 1500 B.C. to 1250 The men who lived here are the men who were working on
royal tombs and the men’s families.
a. This was a highly literate village. They wrote mainly on ostraka or clay pieces.
3. Three different dispute resolution centers. All three authorities are thought to have worked
together very closely.
a. The Oracle of the Pharoe. The authority is a dead king that represents local interests.
(1) It was not an exclusively legal body. People took at sorts of questions to the oracle.
Only in legal cases was there a full record.
(2) In Deir el-Medina: the oracle most often consulted was the deified king of Ame Hotep I.
On special occasions the cult statue was taken through the village by priests.
(3) All sorts of questions were posed to the Oracle.
(4) The Oracles in Egypt would give yes or no answers as opposed to the mysterious answers
of the Greek oracles.
II
(5) Communal pressure would force them to conform. The bearers of the Oracle would feel
that they were being impelled by the god.
- The questions would probably be answered according to bearer knowledge.
(6) There are a few cases where poor victims appeal to the oracle because they believe it is a
source of higher law.
(7) Ordinarily the Vizier would be the one who would make the decision about property in
the village, but occasionally the oracle would get involved.
b. The office of the Vizier.
(1) Scribes of the Vizier sat on the community court frequently.
(2) The office of the Vizier had the ability to hear criminal trials. Reporting crime was every
person’s duty. All officials, including the workmen swore an oath to report any
suspicious incidences that happened in the Valley of the Kings.
(3) Members of this court would include the two chief workmen, the scribes and other
particularly high-ranking officials.
(4) The accuser was made to swear a heavy oath, and to produce witnesses, and then the
accused was questioned and explained that it belonged to his father. Later we find that he
had in fact stolen more than was thought.
- In other cases, the court decides that it is unable to go further when it uncovers a
serious crime it is up to the Vizier to take over.
(5) In earlier cases of theft of copper the accused was taken by the river bank, so it appears
that precedent was occasionally used.
c. And the community court. These were composed of at least one local official.
(1) Dispute 126. Reluctant enforcement. The court was not able to enforce its verdicts all
times. It relied mainly of social pressure enforce its rulings. In this one case the court
does order physical punishment, but the litigant only recovers a small fraction of what his
donkey was worth.
(2) Once people took on a position on the court they would be known as “officials of the
court” no matter what their position in life.
4. The Great Tomb Robbery Scandals: the documents are the direct interrogation and confessions of
these individuals. All of the kings tombs were left OK except for one, but all the private tombs
were raided.
a. Dozens of thieves were executed, it appears that capital punishment had to be approved by the
king.
5. There is very little evidence on crimes against individuals. Theft was a tort, and restitution would
be the remedy. Adultery was not crime for the courts. There was also reluctant enforcement.
Procedure:
A. Old Sources of Procedure:
1. Gortyn Code Procedure: A judge, whatever it has been written he should judge according to
witnesses or as denied on oath, shall so judge as has been written; and in respect of other matters
he shall decide on oath in reference to the matters of contention.
a. The judge would decide by taking an oath himself.
2. Procedure in the Ancient Near East: there were three levels of courts during this period,
a. The King had jurisdiction in certain types of cases (including capital cases), he would
occasionally have jurisdiction in small civil cases, and he would also be available to clarify
what the law is. (Also had appellate jurisdiction)
b. Royal judges tried a wide variety of cases in the first instance. Women could litigate just a
well as men (but no examples of slaves litigating).
(1) The plaintiff usually relied on self help to get the defendant to court. However, the court
did have the power to bring a person physically into court (much different from an
Athenian court).
(2) There was a mixture of adversarial and ministerial justice, the court could bring in
witnesses on its own.
(3) The court would also have the power to set an oath that the litigant would have to say in
order to win. Many people would refuse to say oaths for religious reasons.
(4) Had various powers, such a powers of restitution, enforcement and even injunction.
-
3.
4.
The court was very concerned with frivolous litigation and would impose penalties
on those who lost their cases.
- They could also impose burdens on the litigants in order to prove guilt or innocence.
(if she floats then she is not a witch like we thought).
Athenian Procedure: is very adversarial, there is a real emphasis on oral arguments. The trial was
considered the climactic event. The Athenian constitution shows a great concern for justice.
a. Private initiative was important, the litigant had to get the case and his adversary to court. It
was up to the victim to investigate who was responsible for the crime.
(1) A victim of violence would have to bring bystanders as evidence.
- The attacked would call for witnesses, and occasionally could get helped out by
other members of the community.
(2) How does private prosecution vs. public prosecution: in America public prosecution leads
to a bureaucratization where certain crimes would not be prosecuted (domestic violence),
but in the Athenian period this could have allowed the poor more access.
b. There could be summary arrest and prosecution in the case of kakourgoi or wrong doers who
were caught red handed. If they would be taken before elders and if they confessed they
would be executed, if you did not you would go trial.
c. There were two major types of procedure:
(1) Dikai: private cases and procedure.
(2) Graphai: public charges, could be brought by anybody and were created in order to give
more power to the weak.
d. Sycophancy: was a frivolous or malicious prosecution. Once you brought the case if you
dropped the charge or settled you would have to pay a fine, or lose your citizenship. Once
you bring a public indictment you cannot settle the case.
(1) In a public case if you did not get at least 1/5 of the vote you would have to pay 1000
drachma, worth about 500 days of skilled work man.
e. Who litigated in Athens: we do not know, the surviving speeches were only for rich people.
Small claims would not get to trial, they would be decided by magistrates.
(1) However, Aristophanes makes fun of Athens litigiousness, this suggests that it was wide
spread among rich and poor.
Stages in Athenian Procedure:
a. Summons: are like an indictment, some are simple which stated the crime, while others
included a long a detailed narrative. It would be set up the Agora for all to see.
b. The indictment would be presented to the magistrate.
c. Preliminary hearings (anakrisis): this hearing would give both parties a sense of what their
rivals were going to argue, and would encourage settlement of private cases.
d. Cases involving small sums decided directly by magistrate after anakrisis.
e. Public Arbitration: all documentary evidence would be placed in a small jar (including laws,
and evidence). All Athenian citizens over the age of 60 would have a chance of being chosen
as arbitrators. If both parties agree to the result of the arbitration then trial is averted.
f. Trial and timesis if penalty not specified:
(1) Parties would always try to appear as simple and not legalistic.
(2) They would never confess to have their speech written by a professional speech writer.
(3) Time was kept by a water clock.
(4) Juries (Dikastes) were a panel of 6000 citizens, no evidence as to how panels were
chosen. Over the year if you wanted to be on the jury you would be chosen by lot and
paid by the state coffers.
- In the Athenian constitution we find that each juror would have to go through an
elaborate ceremony to be chosen. This would impress them with the solemnity of
their duty.
- Jurors were allowed to use the litigants general reputation and anything that
happened outside the trial be part of their judgement.
(5) Penalties: some statutes would state what the penalty was, if it was not specified each
side would propose its own penalty (timesis).
- Death penalty would be carried out by the state.
-
In private financial penalties the prosecutor would have to collect, if the defendant
did not pay then he would get the dike exules which gave him the right to collect the
property.
5. Demosthenes v. Meidias: there was an initial procedure in the assembly with offenses related to a
festival called the probole. This initial procedure would carry no penalty, but would encourage
the party to settle. Also the probole procedure has been viewed as evidence that the Athenians
were actually religious.
a. The legal charge is not clear: Demosthenes talks about Hubris or outrage, but he also
mentions injustice as a related to the festival.
(1) Another thing he is charged with is with attacking an official who is in charge of the
festival.
(2) Also neglecting his duties as a leader of Trireme, using it for his personal purposes while
the polis is at war.
(3) He also charges him with impiety, because the festivals are related to oracles and
anybody who commits a crime at a festival is guilty of impiety.
b. Demosthenes mentions barbarians as showing that even other nations have laws against
outrage.
c. One of the main characteristics of Athenian litigation is that it was used a lot as a way for
people to get at their enemies.
(1) Character attacks are a way to turn a trial into a popularity contest. Basically the litigants
are asking the jurors to chose who they like more.
d. Demosthenes portrays himself as an ordinary person, and then tries to show that Meidias is an
elite who victimizes the poor (even going as far as stripping an Athenian unjustly of his
citizenship) and does not live up to his public duties.
e. Demosthenes tries to deflect criticism of himself as a orator, and that he has thought a lot of
how he is making his arguments before the court.
(1) Demosthenes also looks at other examples of times when people have committed
offences at a festival.
- He uses the example of debt collection at a festival, which was not allowed. But it is
merely a private crime and not an outrage such a Meidias punch.
f. Lanni believes that this was a pretty strong case and that Demosthenes would probably win.
However, Meidias settles before the trial
B. Models and interpretations of the Athenian courts: The jurors oath that can be found on handout 6
gives evidence for both models.
1. The primitavist/social drama school: Athenians had no idea of the rule of law, they were not trying
to apply abstract rules to cases, but litigation was basically a public state or arena for elites to
come and compete for honor from the juries. The legal charge is basically a mechanism to get into
court, once in court the parties just discuss their relative merits and the jurors decide on the basis
of who they like better.
a. This model emphasizes character evidence.
b. Evidence for this model is seen in that the legal charges are not always that clear.
2. Modernist school: legal reasoning plays a much more important part. Although extra-legal
arguments take place, we must remember that these are ordinary people arguing. The law courts
had the same ideals as the modern legal system.
a. Even modern societies have had not terribly legal approaches to trials, especially when jurors
are important.
b. In any legal system you have to balance equity and discretion on one hand an applying the
legal rule on the other.
c. Lanni’s camp: she believes that there was a balance, and that the Athenians basically weighed
both sides, but leaned heavily towards equity.
C. What is considered Evidence and Admissible?
1. There was a lot of freedom of speech in the court, and there was no formal restriction.
a. But, Forobos: the jurors would originally shout speakers down when they made poor
arguments.
2. Types of arguments:
Appeals to juror’s pity: speakers would talk about how sentence would accept them
personally or their family.
(1) The defendant would many times know what type of penalty would be proposed because
the prosecutor would mention it in his indictment.
(2) The defendant never admits guilt, but states that if he is found guilty these will be the
ramifications.
(3) Athenian Jury Nullification: is not based on the fact that “this should not be illegal or the
penalty is to high”, but that the ramifications of this penalty will have strong negative
effects on 3rd parties.
(4) Harm to third parties: should we take into account the fallout of a decision? who should
bear the discretionary role? In Athens the third party issue was relevant to the conviction
phase not the defense.
b. Just about anything that had to do with the dispute was relevant for the court. Past
interactions, and the reliability of witnesses was relevant.
(1) Also looking at if the parties were generally reasonable and willing to settle the case, and
the relationship between parties.
(2) General arguments of equity and fairness. Where there is a given will you get general
arguments as to who deserves to inherit based on who was closer, who had more
responsibilities etc.
c. Character: this is by far the most common category. When speakers use character evidence
they will often say why they use the evidence. The ancient world found character to be more
stable and immutable.
(1) Crime in the past was very good evidence that he had committed crime today.
(2) The character of defendants was talked about much more often than the character of
prosecutors.
- This hurts the social drama approach because if it really was a popularity contest
then both of the parties character would be mentioned.
Demosthenes v. Nicostratus: there was a relationship between two men, but one of the men had
been a con man and borrowed a lot of money. The fact that he is being attacked by a guy whom
he had previously paid ransom for.
a. Demosthenes brings a suit in apographe which is an inventory list of the property in dispute.
b. In public cases it happened that many times people would get others to bring public cases
because they could avoid the penalty for losing.
c. Demosthenes tries to prove that he is not a sycophant by referencing his deep personal hatred
of Nicostratus. Revenge was a legitimate motive (personally bringing suit was used as
evidence against sycophancy).
d. The speaker believes that the slaves should be tortured by a public official, and Nicostratus
refuses to allow the torture.
(1) Who ever was in charge of torturing the slave would have the authority to stop the
interrogation whenever he chose.
(2) Nicostratus refuses to allow the slaves to be tortured.
(3) But there is no evidence that slaves were ever tortured to get evidence. Perhaps it was
rhetorical device to offer to have slaves tortured or to refuse so.
Isaeus, On the Estate of Ciron: Isaeus was not a citizen, but was a speech writer who specialized
on speeches regarding inheritence.
a. There is a factual issue of whether he is the legitimate son of the daughter of the deceased, in
order to prove this Isaeus brings up a lot of witnesses who testify to the family life and the
duties that he caries on.
b. During a deme meeting Ciron presented his daughter as a formal daughter. Thereby
establishing her citizenship.
c. As soon as Ciron dies, the grandson tries to be the host of funeral there is a battle between
who actually gets to host the funeral in order to establish kinship because conduct plays a role
in establishing kinship.
d. Law: if there is no male heir, the daughter will inherit as an epikleros (or heiress), and the
property will travel with her until she gets married.
a.
3.
4.
(1) An heiress will inherit before any collateral relatives. If there is an heiress that survives
she will inherit before the brother of the deceased, but what happens if she is dead? That
is the issue in this case.
(2) Descendents of male relatives take precedence over the descendents of female relatives.
(3) Another law states that you have to support your indigent grandparents, but collateral
relatives do not have to. He uses this argument to cement his claim to the inheritance.
e. Character evidence: he goes through and gives various examples of how Diocles (the brother
of the deceased) tries to trick other out of their inheritance. He ends the speech with a
deposition showing that Diocles is an adulterer.
f. This case states that in public and private matters examination under torture is the most
exacting test. Even up to the point of preferring evidence of slave (tortured) than that of free
men.
D. Proofs and Evidence: Aristotle talks about two types of evidence
1. Entechnoi: these are artistic proofs that are created by logic and the speakers argument.
2. Atechnoi (inartistic proofs):
a. Witnesses: with the exception of homicide cases you were not required to swear an oath.
(1) In homicide you swore an oath not only that you were telling the truth, but that the
defendant was guilty or not guilty.
(2) Prior to 380 B.C. witness testimony was presented orally. After that period it moves to
written testimony that was written by the litigant and sealed in jar. The witness would
come up and swear that what was said was true.
- This solidified testimony and made it less likely that it would be forgotten.
- There would be a written document of what was said that would facilitate perjury
cases.
(3) Adult Male citizens would be witnesses, foreigners and freedmen could be witnesses,
slaves could testify only under torture. Women could not be witnesses. Hearsay was not
admitted except to admit testimony of a person who had died.
(4) Unwilling witnesses: a charge could be brought against people who refused to testify or
did not show up for trial. There was political theater that either challenged the other side
to take an oath or pay a fine.
(5) If you were convicted three times of giving false testimony you lost your citizenship
rights. If you were convicted twice you were no longer legally obliged to testify.
b. Contracts: there was no statute of frauds, there was no sense that a written document is any
better than an oral agreement.
(1) In the mid 4th century, there was a maritime procedure that required a written document.
But generally speaking there was an interchangeability between both types of document.
- There was no such thing as a receipt.
- Bankers would keep written records of their accounts.
c. Torture: slave testimony could only be admitted if the slave had been tortured first. There is
no evidence of any case of a slave actually being tortured.
d. Oaths: the litigant could challenge an opponent to either make an oath or accept an oath made
by the litigant or a third party. Women could also take an oath and give evidence in this way.
(1) Both parties had to consent to this.
e. Real evidence and physical evidence: it was very rare, but was occasionally used.
f. Laws: they were presented as a type of evidence because the litigants brought them in rather
than a court official.
(1) Laws were inscribed in large stone tablets.
(2) Beginning at the end of the 5th century there was a public archive where laws were kept.
(3) Each party was responsible for finding which law was applicable to their case. The
penalty for citing a non-existing law was DEATH. (no example of this).
g. References to previous cases: there were no records kept, but occasionally public documents
would show who was convicted of particularly serious cases. Also, indictments were public
posted. Perhaps the best way to get information of past cases was word of mouth and talking
to other people.
(1) Athenians would generally not bring unfavorable precedent on their own initiative.
(2) In Meidias we see that the litigant looks at past precedent during the festival and what
penalties were meted out.
3. Demosthenes v. Phaenippus: in the absence of income tax, liturgies would be imposed. If you
thought you should not have to pay the tax, then you could propose somebody else to take your
burden (antidosis).
a. If you proposed somebody and they refused to pay the liturgy, then you could force a mutual
exchange of all the property between the parties.
b. You would inspect the property and see if there were any liabilities on the property and secure
the chattel.
c. Phaenippus agreed to exchange property, but then tried to take property off the land after the
agreement and stymied efforts to make a quick exchange.
d. This was very much a legal argument, and was not a character driven as some of the other
cases.
E. Disabilities in Athens: If you were a war orphan you were supported by the state, you were also
protected if you were maimed.
1. Lysias 24, For the Disabled Man: The speaker argues that the prosecutor has an illegitimate
motive for prosecution including calling him a sikophant and saying that there was no personal
enmity between the parties to justify a prosecution.
a. This case is a dokimasia (scrutiny): the use of dokimasia to examine the qualifications of
those who have been appointed to public. In this case it is not an office but an entitlement.
b. This is one of the few remaining examples of a case were the speech was written for a poor
man. However, how would he retain Lysias as a speechwriter?
c. One powerful argument was the one of reliance, in that he had received this payment in the
past why would they change it now that he was older and weaker.
F. Roman Litigation: Three major forms of Roman Procedure,
1. Legis actions: this was the first stage of procedure. Its goal was for either the Pontiff or the
Praetor to decide if the action should continue. The defendant had to be present in order to bring a
case.
a. It was very formalistic and certain legal formulas would have to be used.
b. Both sides could agree on a judge ahead of time.
c. During the second stage you would go to the judge who would appoint adviser and who
would give a verdict without giving a reason.
d. In order to enforce an action you were on your own. You could handcuff the defendant until
he paid.
2. Formulary Procedure (2 century B.C. to 3 rd century A.D.): generally you would bring private
actions (injured party), but certain crimes that affected public could be brought by everybody.
a. There was a right to seizure.
b. If the defendant did not show, then the Praetor would grant the plaintiff access to the
defendants property and help himself.
c. In the first stage you would decide whether to accept the action, but it was not a formalistic as
before.
(1) At this pre-trial state one party could challenge the other to take an oath as to the justice
of their cause, if they took the oath then that would resolve the matter.
d. If the action was recognized under the edict, then the Praetor would make a formula that
would assign the judge and describe the conflict and the defenses that were to be brought.
Finally he would mention the penalty. Both parties would have to agree on the issues
between them.
e. The secondary state would be before the judge: The judge would only look at what was in the
formula, nothing else was within the competence for the judge to determine.
(1) Would include the judge’s legal experts.
(2) Parties would either agree on who would be the judge, or they would be taken from a
public list by striking names until only one was left.
(3) Witnesses and evidence would be presented.
(4) The judge would always have to assign a monetary prize, if specific performance was
desired then the judge would allow the plaintiff to set the price for his missing property.
Cognitio extra ordinem: This was the ordinary form of procedure in the 3 rd century AD. This
development changed the role of the judge and made him much more active.
a. If the defendant failed to appear the judge could condemn the defendant.
b. The procedure became much more inquisitorial, and advocates play a much less prominent
role.
c. Fundamentally it is an inquisitorial process.
4. Jurists: originally any jurists could give an opinion, but later Augustus gave the right of
respondere where only certain jurists were allowed to give an opinion.
5. Criminal Law in Rome: theft and damage to property were considered civil crimes. Any person
could bring a criminal case. Juries were generally either senators or equetii. If the jury acquitted
they could decide if the prosecutor should be charged with bringing false charges.
a. Low Level Crime: would be dealt with by magistrates.
b. Higher crimes: forgery of wills and documents, murder and poisoning, treason, bribery,
extortion in the provinces were considered charges that harmed the community at-large.
Augustus added adultery involving an honorable woman, and also speculation and hording
involving food and grain.
(1) The punishment would be death and confiscation of property.
(2) The defendant could go to voluntary exile before trial.
(3) Witnesses were examined and cross examined, each social class or orders were tallied.
G. Comparative Discussion of different systems:
1. Athens:
a. What are the advantages and disadvantages of the highly discretionary system in Athens. In
Athens there would be inconsistent verdicts, but in a smaller society it may be fair because
people know each other.
b. Crimes that had to do with public order were a summary procedure that would put people to
death if they proved that they had done it. It was swift justice for public order issues.
c. This system of discretion probably led to class based bias. And had a lack of predictability
and certainty.
d. In the Athenian system were the juries generally legislating from the jury? Many times it is
thought that membership on the assembly and juries was overlapping.
e. In commercial litigation, the Athenians began to insist on written contracts and would just
enforce the contracts very strictly (thereby allowing the parties to create their own laws).
2. Our system:
a. We have an adversarial system where it is put together to protect individuals from the
excesses of state action.
3. Inquisitorial Justice: usually happens in a strong state, because a weak state does not have the
power to support the system. Adversarial justice can arise in either system.
a. Most studies show that the inquisitorial system is better at arriving at the truth, but that
litigant satisfaction is higher with the adversarial system. But wealth and equity are much
better in an inquisitorial system.
Free Speech and Democratic Institutions:
A. Isegoria and Deliberative Democracy: Isegoria means equality of speech, especially in speaking in the
assembly.
1. Thorubus: was a limit to Isegoria. More than anything it involves speakers being shouted down,
or being physically dragged off the podium. Many times speakers would ask the assembly to
please be quiet and listen to him.
a. It was a right to speak, tempered by the right to listen (or not) by the assembly.
2. Moral qualifications: you must meet the requirements to speak at the assembly. If you mistreat
your parents, wasted your patrimony, dropped your shield in battle, or prostituted yourself you
could not be an assembly speaker.
3. Graphe Paranomon: a public charge that you had proposed an illegal decree, or an illegal law.
You have the right to speak in the assembly, but did not have the right to protected speech.
a. Anytime you proposed a decree within one year, if a person prosecuted you by saying that the
law was not in the interest of the people you would lose your rights.
(1) This procedure worked as a second check on statutes, this was a way of allowing people
to institute a charge against a law.
3.
III
4.
5.
6.
7.
Comments on direct democracy:
a. Suppliants by Euripides: the herald advances the argument that people don’t really know how
to make decisions. In response Theseus believes that democracy is better because the poor
can protect themselves from the strong through law.
(1) Theseus also explains that democracy allows the best decision to be taken.
b. Funeral Oration by Pericles: argues for a merit based system. He believes that ordinary
people are good a judging, although not necessarily good at coming up with ideas.
(1) Sings a paean to the Athenian constitution as a model for others.
c. The Politics by Aristotle: the idea that because the Athenians are free they will fight better
and will put the interests of the polis or the city-state before their own welfare.
(1) Looks at the many as being better than the sum of their parts. Collectively people usually
come up with the right answer.
d. Notes: Cass Sunstein studied jury deliberation behavior. When people agree and deliberate
they tend to skew them to the extreme. When you have people who are like minded
deliberation will actually lead to extreme results. Psychological studies suggest that
deliberation can be bad.
Free Speech for Comic and Tragic Poets:
a. Comic Poets: it was thought to occur in the assembly and in comic drama. It is usually filled
with personal insults against specific politicians and political institutions.
(1) These drama’s also treat the gods with irreverence.
(2) In tragedy there is also irreverence against the gods. Kataibates (“one who descends in
thunder” v. skataibates “thunder crapper.”
(3) There is a lot of political and religious criticism.
b. Limited examples on restrictions of free speech in comedy:
(1) Any play that depicted the sack of Miletus was not allowed.
(2) In 440 B.C. they were not supposed to lampoon specific people (komoidein), but it this
rule was either short lived or not enforced.
(3) Speaking bad of Athens in front of allies. (Kleon brought a charge against Aristophanes).
(4) In 415 there was a decree limiting comic freedom that applied the slander law (see supra)
to comedy.
Asebeia (impiety) and Atheism: could people be tried for impiety only for deeds, or was it simply
for not believing. During the 5th century there was a series of these trials related to impiety.
a. Herm scandal: people who mutilated these genital statutes were people who were against an
expedition in Sicily. Several Athenians were tried for this.
b. Profanation of the mysteries, several people parodied the mysteries and were tried and
executed.
c. Decree of Diopeithes: those who did not believe in the gods or gave instructions in astronomy
would be tried for impiety.
(1) Celestial bodies were thought as divine, and also there was a thought that sophists would
question religion and poison the people.
(2) Protagoras: was exiled under this law and his books were burnt.
(3) Anexagoras: was prosecuted under this decree.
The Trial of Socrates: what relationship if any do these speeches have to Socrates speech?
a. Did Socrates speak in way that was basically committing judicial suicide?
(1) What is interesting is that Socrates addresses the jurors again after he is condemned to
death, there is no example of such a procedure in Athenian trials.
b. How is Xenophon’s Apology different from Plato’s?
(1) In Xenophon’s speech it appears that Socrates is courting death out of fear or avoidance
of old age.
- There is more arrogance in this Xenophon’s speech.
(2) In Plato’s he is not scared of death, he is merely ambivalent about it. One support for
Plato is that nobody thought he could get away with writing such a speech if it was so
different from the truth since he wrote it only 10 years after the trial.
c. Legal Issues: Socrates firs response is to counter the idea that he is a sophist, he then states
that the Oracle states that there is no one wiser the Socrates.
(1) He is an example of the wisest man because he knows that he is ignorant. He then
discovers that all people are not as wise as he is.
(2) Because he admits that he does not know, and does not teach people, therefore he is not a
sophist.
- He is not teaching the aristocrats they are only following him around.
d. Formal charges: corrupting the minds of the youths, not believing in the gods of the city and
creating new gods.
(1) Corrupting the youth: he had two students, Crytias (in league with the thirty tyrants) and
Alcibiades, so both of his students were bad apples (anti-democrats). This is a politically
motivated charge.
- Socrates does not defend himself on this political question, he only states that he did
not join the 30 tyrants when he was asked.
(2) Impiety: is it merely a failure of belief, or is it about actual actions.
- Socrates admits that he has gone through the rituals, but he there is no evidence that
he actually believes in the gods.
- He thinks that the Athenians should question religion and their traditions.
e. Penalty Phase: it is basically judicial suicide.
f. Athenian notions of liberty: Positive liberty is seen as so much more than negative liberty.
(1) Negative Liberty: you could not be executed without due process, no trespass into home
and some freedom of speech was negative. A man to be left to do as he likes.
(1) Positive liberty: is seen as to rule and be ruled in turn.
B. Slander: (Kakegoria), Athenian law considered slander narrowly, it was not interested in defamation in
general but in certain types of utterances, contexts and categories of victim.
1. Rules of Slander: slander was generally a disfavored action because it was seen to promote overlitigiousness.
a. The law forbid the utterance of slander in certain places, the slandering of the dead and people
working the market place.
b. Certain specific allegations were also prohibited such as aporrheta and therefore subject to
action by the individual maligned.
(1) Accusations of homicide, throwing away one’s shield, and beating one’s father or mother
were covered.
(2) The law did not exempt statements made before private bodies.
2. Lysias 10, Against Themonestros: it was a defense under slander law to argue that the accusation
was true.
a. Overly legal argument that the “term” proscribed by law was not used. Calling somebody a
homicide is not the same a saying that “a” killed “b”. (ie Androphonos v. apokteino)
(1) The speaker makes a public policy argument that the assembly should be concerned with
meaning, not expressions.
b. The law prohibiting slander of work in the market, lends credence to the interpretation that the
law was concerned with certain types of insult rather than specific terms.
(1) Juries were more concerned with the thrust of the law rather than the specific wording.
3. Lysias, For the Soldier: the speaker claims that he has been called up unfairly for military service.
The generals give him a summary fine for slander. He is no being prosecuted by apographe (in
order to collect his goods).
a. This law for slandering the generals only applies if the slander occurs in the sunedrion.
The plays of Athens and the Judicial System:
A. Tragedy: New academic opinion points out the similarity between courtroom trials and tragic drama.
Both have narrative of a violent act, both have a formal structure and formal language. There is much
emphasis on the intention of the participants.
1. Agon: there is a formal for real trial, but can also be used as a competition where there is a
judging.
2. These plays are valuable in order to determine the attitude of the poet towards the political even
and the institutions themselves (law courts).
a. When searching for ideology you must look at if the play right has any known associations
with the institution.
b.
IV
The audience of Athenian drama was not expecting a morality play that represented it easy, it
would prefer ambiguous plots.
c. The courts were considered a virtual necessity to the government by Aristotle.
3. There is a pervasive theatricality in Athenian life. People act in a way that shows that they are
preparing for trial.
4. Difference between real life and entertainment: There is a very strong Greek tradition that there
are different genres, with different features, however much an audience can be caught up in an
event they will remember that they are a play.
a. Tragedy: in Athens was state sponsored, was an official occasion, with the state through a
system of liturgies paying for the event. .
5. Eumenidies: the Furies are anthropomorphized and are considered residents of the city of Athens
as metoicoi (resident aliens). In Tragedy a technical expression or phrase is given a bit of a twist
for some reason.
a. It is the enactment of a time where civilization moves from revenge to a judicial process.
b. In Eumenides, Orestes must go to the Areopagus, which is the court of the gods where the
gods will deliver a split verdict. This is the court run by the twelve gods.
(1) Why isn’t the whole controversy settled by divine beings in the Eumenidies? To
professor Bers it is a deviant account.
(2) In the originals Areopagus as arranged by Athena, only the best men are chosen to be
jurors.
c. The furies act as the prosecutors, Apollo acts as a co-speaker and Athena is the presiding
magistrate.
d. There is a triumph of the community as a whole, what is done in the case of Orestes is
decisive for Athens and the whole Greek world.
(1) He is acquitted and his person is declared sacrosanct.
e. Apollo states that the furies should not be admitted into a court of law. They belong among
the barbarous and dark parts of human nature.
f. The Eumenedies and Clytemnestra are in the same line, they approach crime in the same
fashion of unguided emotion instead of rational deliberation.
g. Although at first glance the Eumenides appears to lead towards rationality, it is interesting
that vengeance and emotion play an important role in Athenian law.
6. Wasps: is overtly a political play. The fee for jury service and the figure of Cleon (who was a
politician) is controversial.
a. In this play, Philocleon does not appear to be the most upstanding of greatest of men. He is
the distillation of the worse qualities of a juror.
(1) Jurors are seen a petulant and forgetful old men.
b. The jury is seen as a body that is mislead and influenced by Cleon because of the three obol
jury pay.
c. The court is reduced to a single old man who must deliberate within his own house.
d. Gods are used very little in this play. There is a metaphorical comparison between the
thunder that Zeus creates and the sound of the jurors deliberating.
e. The Chorus serves as a jury that judges the agon (dispute) between Philocleon and
Bdelycleon.
f. The play brings up the issue of the Athenian democracy giving the average poor man quite
phenomenal powers.
(1) There is a joke that states that Athens could very easily return to tyranny, but it was not a
real fear during this period.
g. Jury service is unique among activities in Athens in that it is unaccountable. It is a
recognizable feature, it also gives extraordinary power to ordinary men.
Crime and Punishment:
B. Wounding:
1. Lysias 3 Reply to Simon: the speaker states that it was the plaintiff who started the fight, and that
he tried to flee. But the plaintiff argues that he had paid for the sexual company of the boy and
that the defendant attacked him in his own home. This type of offence falls under the jurisdiction
of the Areopagus. Unlike homicide, wounding (which uses a weapon) is considered graphe.
a.
b.
c.
The legal charge is Trauma ek pronoias, which is intentional wounding. It usually required
using a weapon and having an intent to kill. This crime also necessitates pre-meditation
according to the speaker. Other examples show that premeditation is not required.
Speaker tries to argue against pre-meditation by showing that he did not go into the melee
prepared by using a pot shard to attack and going into a large groups.
This case is consistent with violence not being very prevalent in Athens, and there was also
not a police force (nobody walked around with serious weapons, just rocks and shards).
C. Murder:
1. Antiphon 5 On the Murder of Herodes: a murder is brought as a Kakourgous type of prosecution.
a. The prosecution tries to find forensic evidence on the boat. They find a note that confesses to
the murder and finds some blood (said to be animal blood).
b. The prosecutors violate the rule of slave testifying. What they did for the purpose of
investigating it was OK to torture, but the testimony wasn’t commanding evidence because
the prosecutors killed the slave before the defense was able to examine him. (People likely to
say anything to stop torture).
c. Euxitheos argues that he had no motive to murder Herodes.
d. He also uses precedent, first to show that being with people who are guilty does not
necessarily mean that you are guilty.
(1) He also indicts capital punishment in that previous cases have shown that there have been
applications of the death penalty that have been later found to be mistaken.
e. He uses the fact that if he truly was a murderer he would be polluted and that therefore there
would be a series of inauspicious events that would occur to him.
(1) Since they had not, the jury should take that into account when charging him.
f. The Apogoge procedure of summary arrest was generally applied to street criminals, thieves,
etc. You could arrest the person haul him physically before the 11 and if he confessed he
would be put to death. Otherwise it would go to trial.
(1) They probably used this procedure because under the regular homicide procedure he
would be able to go into exile (is it only from Athens or also from his small city) before
giving his arguments.
(2) Also in non-homicide trials there was no requirements for witnesses to take oaths. In a
homicide each witness had to take an explicit oath of “he is guilty” or “he is innocent.”
(3) The litigants would only look at the veracity of the charges and not consider irrelevant
actions relating to other crimes (no character or irrelevant evidence).
(4) Homicide cases were also tried in open court so that the judges and jury would not be
polluted by the alleged murderer.
(5) This Apogoge procedure also is biased against the defendant in that it subjects him to
double jeopardy.
(6) In this trial it appears that the accusers are out for money and have proposed an
assessable penalty. He believes that the prosecutors are sikophants.
g. Athenian law of extradition: if somebody from another city refuses to come on their own, the
relatives of the victim could take 3 hostages from the other city until the city forced the
accused to come to Athens.
2. Ideas on policing in the ancient world: Thucydides states that nobody really walks around armed
in Athens. We know of only 15 cases of homicide for a period of over 100 years. Scholars
believe that it is a fairly safe place.
a. Scythian Slaves: were used to do general police activities in Athens. They would throw
people out of the assembly, and do other order promoting activities.
b. Republican Rome: there was no real police force. Magistrates had the ability to arrest people
and inflict small fines.
(1) For the Romans there was actual criminal courts that dealt with Questiones Perpetuae
that dealt with crimes against the state like murder and poisoning, forgery of wills and
documents, treason, bribery during elections, extortion in the provinces and
embezzlement. (Augusts added adultery against an honorable woman).
(2) Tresviri capitales: where like a primitive police board. They were in charge of having a
fire brigade, and they had slaves that worked under them and may have gone out on
patrol.
(3) Rome was much more violent than Athens, upper class people would travel with a body
guards. During long distance travel there would be brigands and highway men.
- Athens had swift harsh punishment in the case of street criminals, it was much less
swift or certain in Rome.
- The size and diversity of Rome also encouraged crime through anonymity.
- Others argue that there was a cultural difference, that the Romans were addicted to
cruelty and gruesome punishments.
- There was a history of the use of violence in Rome related to political disputes.
D. Homicide Procedures:
1. Lanni’s ideas on how this procedure works within the Social-Drama/Rule of Law divide: she
believes that homicide have much more legalist rules. Even if the Athenians could not implement
the rule of law, they believed it to be a possibility, but rejected it in most cases except homicide.
2. Procedures:
a. First a Charge is read in the Agora, then the charges is read out by the basileius, later there a
three pre-trials. During the trial there are three sets of speeches, the accused can leave after
the first set of speeches.
b. Look at Handout for the different types of homicide courts.
c. Lawful Homicide: actually killing somebody during athletic games or war, killing a man in
the act of adultery, if proven there was no punishment.
3. Bouleusis (planning): it was indirect responsibility for death, instead of bringing it about yourself.
It was a type of proof instead of a different charge. Which court you go into depends on the type
of homicide it was.
4. Antiphon 1, Accusation of Poisoning against the Stepmother: deals with bouleusis of intentional
homicide where the defendant is a woman so she represented by her son.
a. Cases of bouleusis were tried in the Palladion even if it was intentional.
b. This crime requires Pronoia in that she is guilty of intent and premeditation.
c. The accuser makes the argument that the defendant refuses to allow the slaves to be tortured
and therefore is obfuscating the truth.
d. The slave was tortured and killed because she admitted guilt. But perhaps the slave did not
implicate the step-mother.
e. This case appears to be very weak, but many people believe that he was obligated to bring the
case because of honor. The solemn injunction of the father (episkepsis) compelled him.
5. Antiphon 6, on the Chorister: This case sheds interesting light on the use of courts for political
purposes. One of the children on the chorus dies after he quaffs a potion. The case is in the
Palladium as it is unintentional homicide. They blame the chorister for ordering the boy to take
the drug.
a. The accused argues that he had direct knowledge of the act and was therefore not responsible.
He also argues that he took all due care in training the chorus.
(1) It was very unusual to have a charge of Bouleusis or unintentional homicide, so it appears
that the defendant makes both types of arguments because he is anticipating what the law
may turn out to be.
b. A more important argument is that the prosecutors were motivated by political reasons. The
Chorister was bringing suit against other people and the bereaved were paid off by the persons
he was to prosecute because once polluted you cannot file charges.
(1) This did not work for the people the Chorister was to prosecute because of the 4 month
time table prevented them from filing the murder charges until the next Archon was
chosen.
c. If you find a person guilty, the Chorister believes that it is not the fault of the prosecutor, but
of the jury itself.
6. Lysias 1, On the Killing of Eratosthenes: the lawful homicide law. The adulterer must be found in
the home and in the act of adultery.
a. Euphiletos misinterprets the law and tries to argue that murder was the only option and that he
was required to kill Eratosthenes.
b. The law that allows the speaker to kill one who sleeps with the concubine is a very old law
because during the trial one would have to have two Athenian parents in order to have
citizenship, but the law allows the killing of adulterers that sleep with concubines for
begetting citizens.
c. Other options were to hold the adulterer under arrest and require compensation, impose a
physical insult upon the man
d. The prosecution will try to argue.
(1) That he was entrapped and that the servant girl enticed him into the house.
(2) Also that you can take refuge in the hearth, that would open you up for impiety.
However, the prosecution does not have any witnesses and therefore there is no way they
could know.
e. One argument that Euphiletos makes is that he is allowed to kill a thief in the night he should
also be allowed to kill the Adulterer, or else a thief would always claim that he was an
adulterer to save his life.
f. Character evidence: throughout he represents Euphelitos as a dupe who is gullible, who would
never lay a complicated plot. Eratosthenes is represented as a recidivist.
7. Ideas on the positions of women adultery and rape: there was a sense that it was very important to
control the women. However, the women have very important role inside the house as to how the
household is run. Also there were separate living quarters for men and women.
a. The women who is victim of adultery must divorce her husband and is stripped of female
citizenship rights, and it would also prohibit her from wearing jewelry and attending certain
pure festivals.
b. The name of a women is not mentioned in a court if she is a respectable woman.
c. The idea that somebody could over a long period of time could be having intercourse with
your wife would really draw into question the legitimacy of your children, unlike rape which
is usually a one time action… therefore seduction had a bigger punishment than rape.
(1) The victim of the Hubris would be the husband and the person who committed the
adultery would have committed the hubris.
d. Graphe for Moicheia could be filed even if you did not catch the adulterer in the act.
e. In classical Athens it appears that they followed more of the Gortyn code where you would
hold the adulterer hostage until he paid a ransom. The law that allowed killing appears to
have been very archaic.
f. Roman Law: you could only kill people of certain lower social standing, but as a high status
person if you killed somebody you should not have you would have mitigated punishment.
(1) A paterfamilias can kill the adulterer no matter what the status of the adulterer, but must
also kill the daughter as well (worked as a check to make sure that it was happening).
(2) In Rome both the man and the woman could be prosecuted for adultery at it was defined
as “relations between respectable married woman and a man not her husband.”
(3) Husband is required to bring a prosecution for adultery and takes precedence the father in
bringing the case.
(4) Stuprum: sexual relations between a man and a girl or unmarried or widowed woman of
respectable status, or homosexual relations with a respectable man or boy.
E. Different types of punishments:
1. Religious:
a. Post-mortem punishments: that the gods would punish certain types of irreligious conduct in
the afterlife. Much like Tantalus.
b. Curses: they were written on clay tablets, invoking a god, and would be placed in the grave of
someone who died young (it was thought it would give them energy).
c. The Furies: come up in cases of crimes within the family and also in perjury.
d. Purpose:
(1) They served as a deterrent for people who would not be caught for wrongdoing they
would
2. Taleonic Punishments: an eye for an eye, was found a lot in archaic societies. (look at Near East)
3. Mirror Punishments: punishments that are somehow related to the type of crime committed. Like
cutting a hand off of a thief.
a. It would be highly visible and in pre literate times would explain to society what the offense
was.
b. It was also disproportional and could go beyond a mere eye for an eye.
4.
Execution: it was not carried out very often.
a. Executioner: there was a professional executioner and it is not know if he was a slave or a
freeman.
b. Types of Execution:
(1) The Pit (Barathon): you would be thrown into a pit and left there to die.
(2) The Board (Typanon): like crucifixion. Perhaps it was used for very serious offences
such a treason, or if you were a low class person (it is not known).
- One final theory is that the Athenians became more and more lenient, used to give
everybody the board, but then gave Hemlock.
(3) Hemlock: people do not know what ancient hemlock is.
5. Exile:
a. To both exile and the death penalty the demolition of your house and confiscation of your
property could be added.
6. Atimia: loss of citizenship rights, you could not enter temples or the Agora (could not do
business), hold political office or speak in the assembly, but you may still be able to marry a
citizen or live in the city. (It could occasionally be made hereditary).
7. Financial Penalties: you had to pay off, if you did not, then your progeny would.
8. There was no corporal punishment or jail in Athens.
F. Purpose of punishment: from most of the speeches we see basic retribution and deterrence as purposes
of punishemt
1. Plato’s Protagoras: gives various purposes for punishment. Criminality is identified as deviant.
a. Punishment must be imposed in a forward looking fashion as to how to do good for the
society.
(1) First there is the utilitarian view, and also specific and general deterrence.
(2) Rehabilitation is a goal, but if someone cannot be rehabilitated they should be expelled
from the state or executed.
- The only way to rehabilitate people is through suffering and punishment.
b. Backward looking punishment is seen as beastly, blind rage and vengeance.
2. Plato’s Gorgias: the person who is punished will be better off because the person will become a
better soul. If you do wrong you should seek punishment in order to cure yourself.
3. Plato’s the Laws: the law code should be organized in order to educate people in virtue.
a. In the cases of involuntary injury, the law should try to reconcile the parties and give
recompense to the injured party.
b. In the case of voluntary injury, you should teach the wrongdoer the error of his ways and if
you cannot rehabilitate him then he should be killed.
(1) It is completely individualized, you must look at what will cure the particular offender.
4. Mytelene Debate: the city was in the Delian league and was given many benefits, but it rebels
against Athenian rule. Two speakers debate the punishment.
a. Cleon for the Death Penalty: argues that all the men should be killed and the women and
children enslaved. He believes that no city has never done anything so horrible to Athens.
(1) He argues for retribution because Athens had treated them very leniently, also they were
not compelled to rebel or made their own choice.
(2) You must strike while anger is hot and not deliberate too long. Using anger leads to
decisiveness and punishment should be carried out immediately
(3) He looks at deterrence, otherwise other cities in the empire will be encouraged to revolt.
b. Diodotus against the death penalty: he argues completely from expedience and not from
justice. What is in the best interest for Athens?
(1) The reputation of Athens in other city-states will be corroded by executing all the men.
(2) Also forcing people to fight to the death will not make their city a useful asset for Athens
and the empire.
(3) He believes that generally deterrence does not work because people delude themselves as
to their chance of succeeding in committing a crime.
5. Collective punishment: will motivate an insular group to monitor their own individuals, and they
are in a better position than an outsider. (our law is not that pure, vicarious liability in corporate
law impose this type of punishment).
a.
V
You are actually not individual not blameworthy, it is an act of omission. You can only
morally justify these types of sanction when they have a duty to act.
a. Punishment in Rome: in the Roman republic you could always go into exile instead of being
subjected to the death penalty. If you committed suicide, the state allowed your family to
keep your property.
Citizenship and Status:
A. Citizenship: originally, before Perecles having an Athenian father would be sufficient to establish
citizenship. In 451 the new citizenship law was passed that stated that those whose parents were not
citizens (astos/astai from settlement) could not be citizens.
1. Reasons for citizenship laws: war with Persia was causing fear that the democracy would be
subverted by not true citizens from within. Also there were many spoils of war and the Athenians
did not want non-citizens from indulging in the spoils. Also it encouraged Athenian males to
marry Athenian females.
a. This law does not answer the citizenship status of illegitimate children. Under the text of the
law it would appear that they would be citizens.
2. Rituals for citizenship: within ten days of birth there would be a naming that would initiate you
into the citizenship.
a. When you turn 18 there is an official ceremony: before the deme, or local village or
neighborhood, what they do first see if you are old enough. Then, the deme must fingure out
if both of your parents are Athenian citizens.
(1) Ephebe was a young adult that would engage in 2 years of military service prior to being
included in the deme registers.
b. If you are not admitted into citizenship you can appeal to the law court, but if you fail you
will be enslaved.
c. Dokimasia: scrutiny within council would decide if you are in the citizenship, it must be
Okayed by the council as well not just the deme.
3. Naturalization: there were certain rituals and honors that would make outsiders a citizen of
Athens. If you do a lot of services for the state you can be granted citizenship by the assembly.
4. Group grants of citizenship: the people of Platea who were refugees after attacked by Thebes were
granted citizenship. Also during the war with Sparta, anybody who served in the Navy would be
granted citizenship.
5. Rights and duties of citizenship:
a. Only citizens can own land.
b. Special taxes on rich people and liturgies.
c. Must serve in the Army.
d. Participate in public life.
B. Slaves: were not bred locally, they were captives of war or sold to Athenians as slave traders.
1. Slaves performed a series of different activities: there were small levels of slave holding among
citizens. Sometimes slaves would work in mines, other times they would just be helpers in shops
sometimes even like independent contractors.
2. When a slave is killed it is heard in the Palladion and it is treated as involuntary homicide. If you
want to kill your own slave it appears that you must bring him before a magistrate. The general
practice is that it was considered good form to go to a magistrate and get approval
3. An Athenian slave may bring some procedures in the court.
a. Menusis: in cases of treason, thievery, a slave may denounce his owner will be granted
freedom if he is successful otherwise he is returned to his owner.
b. Dikai Emporikai: slaves could probably bring these types of suits involving shipments to and
from Athens.
4. Why were there probably no slave revolts in Athens? In Sparta it was a major problem, the Helot
revolted all the time.
a. The Athenians had a hodgepodge of people, so they did not have a group mentality that would
encourage revolts.
b. The Helots were very poorly treated by the Spartans and had to work the land together.
5. Roman Slavery: a master could not kill his slave unless he got his magistrate’s approval. Also,
master was entitled to compensation if a slave was mistreated. He could give the peculium to a
slave which money that was in personal control of the slave but belonged to the master.
VI
C. Metics: freeborn slaves, or foreigners that lived in Athens. They were generally merchants because it
was not considered respectable for Athenians to engage in trade. Had to have a citizen sponsor called a
Prostates.
1. Responsibilities of Metic:
a. You would have to serve in the military.
b. You had to pay a monthly tax.
c. No Political rights.
d. Not permitted to own land, or marry and have rights similar to an Athenian.
e. Rich Metics had to pay liturgies.
2. Honors:
a. Isotelia: individual Metic could be released from a monthly tax.
b. Enktesis: honor whereby individuals were given right to own property.
3. Polemarch: “War Archon” magistrate in charge of pretrial procedure in cases involving Metics
and foreigners.
4. Foreigners could not bring suits in Athenian courts unless there was some sort of treaty between
the foreign state and Athens.
D. Demosthenes 57: Reply to Euboulides. He was claiming to be a citizen, but the person who had
brought the charge had tried to kick him out of the deme because of personal enmity. This case
demonstrates the lack of written documents to prove citizenship (needed a bunch oral witnesses).
1. The defendant accuses the prosecutor of using vote fraud and also of keeping the assembly from
voting until it was late and only those who were the prosecutors friends would still be left.
2. Exomosia: you can read a deposition and you challenge the witness to either swear they had no
knowledge of the testimony or that it was true.
3. He comes from poor parents, and anticipates the arguments of the prosecution in that his father
fought in war and was captured and that was why he had a foreign accent. Also, his mother was a
wetnurse in the Agora only because she was poor. Being poor is not a crime.
4. Hearsay evidence are not allowed. This speech gives evidence that this was one of the few
evidentiary rules in Athens.
5. This case is evidence for more of the legal system as opposed to the social drama interpretation of
the Athenian court system.
6. It is possible that Euxitheos is a foreigner adopted by poor Athenians, since he speaks very little of
himself, but painstakingly proves the citizenship of his parents.
a. It is possible that he is a bastard, but it is not known if bastards were given citizenship.
E. Lysias 23, Against Pancleon: Pancleon tried to allege that he was a Platean and therefore was free.
The speaker tries to state that he is clearly a slave and not a Platean
1. This is a defense against an antigraphe (variant of the paragraphe) brought by Pancleon.
2. Paragraphe: was a counterprosecution, brought by the defendant in a dike against the plaintiff, on
the grounds that the latter’s dike had bee nbrought before the wrong court. You cannot summon a
citizen before the Polemarch.
F. Roman Citizenship:
1. Romans: it was much easier for them to keep an empire because there was much more joining of
culture. The Roman’s gave citizenship based upon being born a free person if certain approved of
provinces.
Family Law and Prostitution:
A. Prostitution: What is prostitution? In Athens it was normalized. Many of the protections given to
prostitution in Athens are the same protections that those who want to normalize prostitution today would
want.
1. Sexuality for the Greeks was not necessarily heterosexual. Homosexuality was even lauded as a
way to insure that the soldiers would form a cohesive unit.
a. A general even comes forward to state that an attack on prostitution can be an attack on male
homosexuality, which could undermine the security of the state. .
b. Solon (the founder of democracy) was praised by having established state brothels and the
proceeds were used to establish a sanctuary for the goddess Aphrodite.
c. Athenian prostitution was divided into brothel prostitution and free agent prostitution.
(1) The free agents were the one bound by the contract and had a much better quality of life.
2.
Although Athens had a strong anti-commercial tradition, people did engage in commercial
transactions. Payment would be given for teaching and for prostitution even though it was
socially not accepted.
3. There was protection for minors from being offered for prostitution by their fathers and other
family members.
a. The protection against Hybris applied to women, children and slaves. However there is a
great controversy as to what was Hybris?
(1) How could a female bring a Hybris case to court if she was disgraced as a prostitute, if
they were not allowed to bring cases period (as a graphe somebody else could bring
something but not her directly).
(2) Also for breach of contract, it is a private charge so there was no way a woman would be
able to enforce it in court.
4. People entered into written contracts for prostitution. Prostitution was accepted and legal in
Athens. It is unknown as to whether these consensual agreements were actually enforceable in
Athens. Could they be enforced if they were not written?
5. Nothing particularly shameful about prostitution, the only shameful part of it was working for
money.
6. Citizen of Athens could be a prostitute, but they would lose certain types civic rights.
7. Prostitutes could come from three social classes.
a. Pornai (common whores): street walkers and low class prostitutes.
b. Hetairai: were courtesans, considered higher status and were paid for a long period of time,
not just a sex act.
c. Pallake: was a live in concubine and could be had by any married man (it was perfectly
acceptable).
B. Aeschines: Against Timarchus: procedure of dokimasia ton rhetoron (scrutiny for public office). This
was a political trial
1. His objection to prostitution is not based on the sexual aspect, but on the trade and monetary
object that was considered debased.
a. It is not worthy for a free person to perform work that is repetitive under somebody else’s
guidance.
b. The orator states that the contracts are irrelevant, the important thing is to ask if Timarchus is
a whore.
(1) There was no reason to enter into contract in this case, because anybody who brought a
claim of breach of contract would be liable to prosecution himself. Also, he would be
humiliated by the jury.
c. The problem is not the profession, but rather working under conditions that are debasing and
do not provide the opportunity of personal improvement.
d. If an Athenian male infringed the automatic bar consequent upon male prostitution, the
penalty on conviction would be death.
2. List of charges that make a man ineligible to speak before the assembly: atimia (loss of citizenship
would be prescribed as punishment).
a. Violence toward, or failure to support parents.
b. Military derelictions.
c. Prostitution and squandering of an inheritance.
3. There is ambiguity as to what would classify as prostitution. Issues considered when trying to find
if there was prostitution:
a. What was the social status of people you associated with.
b. How promiscuous were you.
c. How much compensation did you take (it was common to take gifts from lovers).
4. At the very end the prosecutor tries to hold the jurors accountable, asking them to react to how
they will feel if they are asked how they voted.
C. Homosexuality in Athens:
1. There was no real sense of sexual identity as a heterosexual or a homosexual.
a. The relationship between an adult male and a young male in his teens was idealized as a type
of mentorship.
(1) The young boy would most of the time try to pick somebody who would be good for his
career. He also had to act coy and try to avoid the advances of the older men.
b. In Plato’s laws he states that homosexuality is contrary to nature, but in most of his other
works he idealizes homosexuality.
2. Laws Regulating Homosexuality:
a. Male’s can’t speak if they are a prostitute.
b. There is a general law against pandering of any type.
c. But there is a graphe if a father, or guardian hires out a boy.
d. General administrative laws: no courting by slaves of free boys, also schools would close
before dark so that the boys would not be waylaid.
e. Law of Hybris: if you were a young enough boy, the boy’s father may bring a suit even
though the boy consented. Non-consensual sex was also punished by hybris.
D. Women and Family Law in Athens.
1. Important terms:
a. Oikos: A household is created by marriage.
b. Kurious: head of the household, when a son became an adult he became legally independent
and when he was married he became Kurious of his wife.
(1) There was no modern sense of property. If you were head of household you were
considered to hold it in trust for the next generation.
- If you were a wastrel you could be prosecuted by your children for wasting their
patrimony.
c. Epikleros: heiress. When a man died leaving no sons the daughter would become an
Epikleros. The nearest surviving male relative is allowed to marry the daughter, but her male
child is will inherit the property.
2. Woman: as a woman you always had to have a Kurious, when you were widowed or your
guardian was away many women had much independence.
a. Metic Women: they did not have to have a Kurious, so they were independent. But like other
Metics they had to have a sponsor.
b. Women were considered perpetual minors under Athenian law. They could not testify in
court, but could be sued, but not if the penalty is a fine or damages (because women did not
have money to pay the fine or damages).
(1) Women would be represented by the Kurious in court. They could only act as plaintiffs
if they were represented by their Kurious.
3. Property: women can inherit property. The evidence is found in Pancleon where the woman
comes forward and claims her slave. However, the amount of resources at the disposal of women
was minimal.
a. Bethrowal contract: it happened between the man and the woman’s fathers. It could happen
very early. It was run by the men in the family and was done in order to preserve property.
The most common age to get married was between 12 and 14 (men would be between 20-25).
b. Epikleros: was the second type of marriage, other than the bethrowal.
4. Divorce: a man could divorce at will, but a woman had to go to the Archon and record the fact that
she was going to divorce. In practice it is believed that she did not have the right to divorce at
will.
a. There were no social consequences for a woman seeking a divorce.
5. Lysias 32, Against Diogeiton: the guardian is charged with embezzling the money of the wife and
children. The law is misappropriation of money by the guardian. Under Athenian law an orphan
(no father) could require a full financial account from his guardian.
a. One of the things that a guardian was expected to do was to either lease the land out (and use
the money to raise the kids and then give the extra money to the kids) or buy land so that the
principle was secured.
b. The speaker makes clear that he tried to engage in an arbitration among friends that would
have been binding to help their dispute.
(1) Family council: was an informal and non-binding way to solve a dispute. At the council
the wife produces some records that show his mismanagement and they find him guilty of
having squandered the estate.
-
In this case you see that women have a voice in some of these matters. The narrator
brilliantly quotes the woman’s speech extensively so gets her perspective to the
court.
6. Abortion: doctors would not perform because they were considered to harm (“first do no harm”).
It was not considered a crime against the gods. Abortion was treated similar to a death in the
family (there was a 30 day purification period in which you were not allowed to go to temple).
a. At any point the head of the household can kill a baby.
b. In the 3rd century A.D. abortion was criminalized by the Roman Emperor Caracala in order to
encourage as many Roman births as possible.
c. Lysias Fragments: a woman has an abnormal baby because of an abortion and the husband
sues the wife because of depriving him of his right to be a father.
(1) The charge of the husband is homicide. It is unclear as to whether it was considered
homicide to induce an abortion, based on the discussion of the types of arguments the
husband decides to bring a case and as a result he is stretching matters by making new
and innovative arguments as to why this is a homicide.
(2) There was probably no law formally outlawing abortion. The husband appears that he
was trying to push the law.
7. Women and Family law in Sparta: men were separated from their family and lived together in
military companies where they had to live until they were 30. Women were given a lot of license
and freedom.
a. Women had physical activity and education: women got to run the household on their own,
they would occasionally be visited by men who sneaked away at night.
(1) Husbands would encourage other men to sleep with their wives because you wanted as
many children as possible.
(2) Women could own property in Sparta and inherit in their own right. However women
had the primary purpose of producing children.
b. Sparta was an aristocratic regime organized as a dual kingship, but the kings did not share
their wives with the rest of the populace (preserved royal blood line).
E. Women and Family Law in Rome:
1. Paterfamilias: owned all the family property until his death. He had the power of life and death
over his children. A new paterfamilias would take over if you had a male above you, but you
became emancipated horizonatally.
a. Puculiam: was a fund of money that the head of the household would allow his son to manage
it however he wanted.
b. Emancipation: by selling the son three times to somebody else you became legally
emancipated and under your own power. When you left the family you lost much of your
inheritance.
c. Women would become independent at the death of the paterfamilias and could inherit
property.
2. Marriage: was much more of a social institution than legal institution. There were no formal rules
to getting married. It just required the consent of the parties and the consent of the paterfamilias.
a. A woman stays under the power of her father when she marries. The dowry can be controlled
by the husband, but usually he had to give it back in the case of divorce.
(1) Women’s property remained entirely separate from the property of the husband.
b. Divorce did not have any specific legal requirements. Any party could declare it.
c. Manus Marriage: was a form of marriage that was prevalent early in the republic, under the
archaic form of marriage all the woman’s property would go to the husband.
3. Concubine: a husband could be married and also keep a concubine. It was done because of the
strictures of marriage between social classes.
a. Sometimes there were upper class women with lower class men. Any kind of respectable
woman should not have sex with a man who was not her husband.
4. Tutors: women would have to have tutors throughout their life. If they wanted to dispose of their
property they had to go through their tutors.
a. Once you had 3 or 4 kids you were exempt from having a tutor.
5. Political and Legal Rights: Women could not hold public office, serve as lawyers, or be judges.
But they could appear in court on their own behalf.
a.
Women could only bring criminal charges involving people of their own household.
Everything that was outside the household should be the discretion of the paterfamilias.
F. Demosthenes Against Neaira: the prosecutor is seen as being a bit uncomfortable in using revenge as a
reason for the graphe. This does not jive with Cohen’s thesis, in that here career as a Prostitute is an issue
that is raised.
1. This case is a good source for how arbitration works. Both sides voluntarily agree to go to an
arbitration, that leads to a joint custody.
a. Each side picks one arbitrator and then there is a third party neutral. The recommendation is
binding.
2. Venerable women take an oath to serve as managers of religious rites. A woman married to the
King Archon will have to perform the rites.
3. The official charge is that she is a non-citizen living in marriage with somebody who is a citizen.
a. The woman will be enslaved if she loses and there will be a 100 drachma fine assessed against
the man.
4. The prosecutor must show first that Neaira is an alien and then that she was living with Stephanos
as a wife.
a. The defense will argue that whether or not she is a prostitute is irrelevant. She will argue that
she is living as a concubine which is perfectly legal.
b. The real issue of the case is whether Stephanos was passing of Neaira’s daughter as his own
and as a citizen.
5. Rhetorical Arguments:
a. He asks the jurors to think about what will happen if their wife, mother, and daughter find out
that they acquitted this terrible woman.
b. Slippery slope argument that all poor free women will become prostitutes if prostitutes are
allowed to marriage.
c. Citizenship is a valuable right given only to those who have rendered service to the
Athenians, it is rare and should be respected. Acquitting the woman would debase
citizenship.
d. He names her over and over again in the speech. In no other speech are women named in the
text.
(1) This is a powerful reminder that this is a low class non-respectable person.
Commerce and Contract Law in Athens:
B. Trade:
1. Landed trade (Kapelia): took place mostly in the agora. In general written contracts were not
required and usually not used.
a. There was generally full freedom of contract. Any agreement that was willingly made with
another was binding. But whenever there was a contract case before a jury there was a lot of
discretion.
(1) It was illegal to say outright lies in the Agora. There were no real rules protecting
consumers.
- The sale of grain is the only exception. They were regulations on international
maritime trade.
b. Banking: it did not consist in lending money at interest, but what you did was exchange
money. On a large amount you could borrow on your own property and it was usually done
through somebody you knew.
(1) If you went to a banker to get a loan it served as evidence that you did not have any
friends.
(2) Banking cases end up being very un-legalistic, but are seen more as social drama. They
look much more at general notions of fair dealing and the reputation of the banker.
2. Sea Trade (Emporia): it was much cheaper to transport things by sea. All of Athens grain was
imported. Famine was very rare in Athens, but food crises were common. Because of this there
was a lot of regulation of the grain supply.
a. The Piraeus was the port city of Athens. It was very international, commercial and full of
foreigners.
b. Laws regulating the grain supply:
(1) It was illegal for any Athenian or Metic to transport grain to any port other than Athens,
or to make a loan for such. Penalty was DEATH. This law only applied to foreigners.
(2) There was a ban on any ship coming to the Piraeus re-exporting any more than a third of
the grain in its cargo.
(3) Grain supply must always be discussed at the assembly. Foreign leaders were given
special privileges if they helped Athens with their grain supply.
(4) A law agaist either hording or cartels.
3. Lysias 22, Against the Retailers of Grain: this case makes it much more likely that it has to do
with a cartel. This case concerns a citizen against Metics (interesting because Lysias is metic).
a. There is an accusation that the Metics make money out of Athens misfortune and that it
encourages them to make up rumors of misfortune.
b. This line of cases may have discouraged people from coming to the port of Athens.
(1) In a small field of the economy, if there was a crack down against retailers of grain many
of them would probably be aware of the case.
4. Maritime Suits (dikai emporikai): was a new legal procedure that was implemented to encourage
traders. Foreigner and Metics were given equal standing to Athenian citizens (usually foreigners
could not file suit).
a. These suits benefited from expedited procedures that made it easier for traders to make use of
the provisions (had to be decided in a month, or in the shipping season, or in the off-season so
that they could focus on this when they were not shipping).
b. Defendants had to place a surety before trial, and if they could not put up a surety they would
be held. There was also strict enforcement, if not they defendant would be held.
c. In Maritime Cases there had to be a written contract in order to get into court.
(1) In these types of cases you see that they refer to the contract a lot, this did not happen
with ground trade cases.
5. Demosthenes 56, Against Dionysodorus: in antiquity the lender would bear the loss of the ship.
The burrower only has to pay back if the ship makes it back safely (this is seen as a primitive
version of insurance). In a modern court the defendants could argue necessity in order to ship into
Rhodes. A very law and economics argument.
a. One of the requirements of the loan was to keep one of the partners in Athens so that the
debtor wouldn’t just take off.
b. Specifics of contract in this case: the loan was for Athens to Egypt, the boat had to dock in
Athens, if it did not then there was a double the amount of the loan penalty clause.
(1) The lender was required to have the boat return to Athens by law.
c. The plaintiff states that the ship was not damaged and did not have to stop in Rhodes because
the ship is still out there sailing.
d. The defense would rather just pay back only the interest to Rhodes and not to Athens (other
lenders had accepted it).
(1) There is a loophole in the contract in that it is still open because the ship has not returned
to Athens or sunk yet. This is a third issue.
e. This case has very little character evidence used. It focuses much more on the writing of the
contract and on narrow and focused legal types of arguments.
(1) As a foreigner you did not want to focus on character arguments because they would not
be familiar with people and the emotions of Athens.
(2) Perhaps not much would be known by the jury about the character of the foreigner.
These people would not be repeat players or could be discouraged by the social stigma of
the marketplace.
(3) In commerce and economics predictability would be more valued than social drama.
C. Contract Law in Athens:
1. Demosthenes, Against Olympiodoros: two people collude to try to get Konon’s money,
Olympiodoros is not related to Knon and is the speakers brother in law. The speaker is owed half
the money and Olympiodoros did not pay up. The procedure is a dike blabes or action for
damages.
a. There seems to be no notion of unconscionability, you could contract to do just about
anything, even something unethical. The agreement that he is suing on is an agreement to
collude against the court.
b.
diadikasia: there are unlimited number of claimants and defendants in ancient Athens when
there was an inheritance dispute.
(1) It is unknown what the procedure was like. How would the jury vote?
(2) There was no real finality in Athenian inheritance law. This procedure gave you a claim
against somebody else, but somebody else could come and claim against you.
- You could keep bringing claims against the same person up to five years from the
death of the person who gave the inheritance.
c. Speakers approach to litigation: there is the idea to present yourself as somebody reasonable
who does not want to bring litigation in what is a family matter.
d. Character evidence: usually you have character and appeals to pity towards the end, but in this
case it was quite brusque. He states that Olympiodoros is a under the influence of a woman.
(1) Solonian law on the validity of will: if a will is made under the influence of a woman,
then it will not be valid.
2. Hyperides, Against Athenogenes: there is not law of agency in Athenian or Roman law. You were
responsible for any of your slaves debts, but if you sold the slave then all the debts would go to the
new owner (what if he was poor).
a. The speaker states that only fair contracts should be enforced. Just as wills, women’s
influence in contract should hold it invalid.
(1) He states that it was a plot that prayed on his love of the slave.
b. Character evidence: accuses Athenogenes of working to establish a pro-Macedonian
government.
(1) He also makes a big deal about him being a Metic and an Egyptian.
(2) He also calls him a sophisticated speech writer.
(3) The speaker emphasizes the fact that he is a farmer as opposed to Athenogenes as a trader
and merchant.
D. The Nature of the Athenian/Roman Economy.
1. Characteristics:
a. There was no protection for patent and copy right.
b. No negotiable instruments, or accounting. No real idea of productive investment.
c. Company law was not very well developed.
(1) Partners were liable to the extent of the assets of their company.
(2) There was Limited Liability only in the tax farming situation.
d. There was not idea of amassing capital for the purpose of investing
2. Lack of technology and innovation: the Roman’s never used the horse very effectively.
a. The horse saddles were primitive, and they did not use horse shoes.
b. The emperor would not support technological innovation like would be expected today.
3. Moses Finley, The Ancient Economy: his thesis is that the phenomena of the lack of agency law
and company law because the economic mentality of the ancients is completely different from
today.
a. There was no capitalist mentality. People were not interested in investing money to acquire
more money. They were interested in consumption that would give honor and social status.
(1) The social ideology was a break in economic innovation because it would hurt the
reputation.
b. Once you have enough money to be respectable you stop being an entrepreneur and instead
buy land.
c. Criticisms: the possibility of engaging in entrepreneurial activity without dirtying your hands.
You could own slaves that were merchants, or give loans towards maritime journeys.
4. Roman Contracts divided into two types:
a. Stipulatio (formal): it was made orally and was conducted in a question and answer format.
The formal terms would have to correspond with one another. The exact correspondence
between question and answer created an obligation binding on the promisor.
(1) There were nor restrictions on the possible content of the promise, apart from the fact that
an illegal or immoral promise would not be enforced.
(2) The terms were interpreted strictly.
b.
Informal contract: was free form, but was applicable only to certain situations. Some came
into being when an object was delivered, while others came into being when an agreement
was reached.
(1) Enforceability depended on the contract meeting the precise legal definition for the
particular contract.
E. The Exam:
1. Answer in a concise form what is the debate or what is known about the substantive law. Cover as
much as possible.
2. Passages: they will bring up a substantive area of law, or a theme or issue, what you need to do is
talk about what is going on in the passage, what does it say about the judicial process, how does it
relate to the themes of the class.
a. Achilles Shield: What is the scene actually describing, is it the compensation process for
dealing with a homicide. Different judges are presenting possible solutions. If it is very
straight forward you do not need to describe what is going on. Focus is on the process of
judging rather than the litigants arguments, it is persuasion by the judge not by the litigant.
Formalized, it has happened again and again, it is an oral and public process open to the
community. Public open process is characteristic of Greek law as opposed to Near Eastern
law.
b. Lysias 1 on rape: it talks about a substantive area of law. What do we know about the law of
adultery and rape in Athens. List the procedures and compare if it is really true that adultery
is worse than Rape. Talk maybe about why that is, if the passage plays a central role in the
argumentation of the speech ask why is it important, is what he is saying actually true or is it
just for Rhetorical purposes.
c. Five total short answers.
F. General Themes:
1. Distinctive Characteristics of Athenian Law: all these themes are linked to the fact that Athens
was a direct democracy and they wanted to give the jurors as much power as possible.
a. The importance of private initiative for bringing people to justice and implementing
judgment.
b. The amateurism and distrust of legal speak.
c. Law was pretty vague and procedural, the purpose of the law was to get you into court.
d. It was highly adversarial, there was no public prosecutor, and each party had a choice of
bringing types of procedures.
(1) The process of Temesis (punishment was very party centered)
e. There was no real rule of evidence in the Athenian Court.
2. The class’s assumption, there is no such thing as an evolution of law. Legal systems do not go
through set levels of development over time.
a. We are not looking at a legal system in a primitive state that will later evolve. Every legal
system has to address certain problems and the Athenians solved these problems through a
different systems because they had different ideological and moral commitments.
(1) Because there was a regularized process you can distinguish Athenian law from a
primitive legal system like despotism.
3. Lanni believes that fundamentally the Athenians liked there system and accomplished their aims.
a. The project of a modern lawyer is to elaborate rules, or change them to embody compassion.
Our process of trying to make the law more and more complex in order to come out with
better outcomes is doomed to failure.
(1) As the rules become more complicated and nuanced it becomes less accessible.
b. The Athenians respond to this with general rules by pretty much abolishing the rule of law.
They were much more homogenous, and had better social norms. The average Athenian
probably had a better idea of what was legal in Athens than what people have today.
(1) Moderns see the Roman system as the beginning of law, however it concealed great
injustice. Although it has progressed it is not necessarily inevitable.
- Have we really gained anything from moving away from the Athenian model?