Litigation in Ancient Athens
Following my interview with Prof. Ernest Metzger about litigation in Classical Rome, I wanted to go further back in time to learn about litigation in Ancient Athens. Unfortunately, there are no direct flights from New York to any year in the past, let alone ancient times. Plus, even if I arrived there, I wouldn’t understand any Ancient Greek and would panic without cell phone reception. So instead I spoke with Prof. Adriaan Lanni, a professor at Harvard Law School who studies the Ancient Greek legal system to learn about litigation in Ancient Athens.
Why should you continue reading this post about litigation in Ancient Athens?
You want to teach philosophy to young people and are afraid of the consequences.
You are excited to hear about a legal system where litigants pretended not to have lawyers.
You’re intrigued by one of the few other legal systems that allowed juries to decide commercial disputes.
Prof. Adriaan Lanni is a professor at Harvard Law School.
Can you tell me about the kinds of disputes that were litigated in Ancient Athens?
Athenian trials heard:
Violence, homicide, and assault cases;
Inheritance disputes;
Contract suits;
Property disputes; and
Political cases of various sorts.
Who organized the judicial system in Athens?
Athens had public officials called archons. They were selected randomly by lot from male citizens, so they did not have expertise in the law. Archons served one-year terms.
Archons would rule each court in Athens. Archons selected juries for trials by using a machine called a kleroterion to randomly select jurors. This process was discussed in detail in Aristotle’s Constitution of the Athenians.
What did the archons do after their terms expired?
After serving a year as an archon, a former archon was admitted to the Areopagus, where he served for life judging homicide cases. As a result, judges in homicide cases were not exactly experts, but had more experience and familiarity with the law.
How did homicide trials in Athens differ from other trials?
Homicide cases also applied rules of relevance and did not allow character evidence, unlike other trials.
These formal homicide trials pre-dated the more free-form popular courts, so the technical trials didn’t evolve from the less technical ones. Instead, it was the reverse: Athenians deliberately chose to have more discretion when deciding non-homicide cases.
How often did Athenians litigate commercial disputes?
It was considered more respectable for citizens to own land rather than be involved in business and commerce. Instead, most merchants were metics, or resident non-citizens. We have some cases involving metics, but since the court speeches that were preserved were written by famous speechwriters, we do not have too many of these.
We do know, however, about Athenian litigation of a certain kind of commercial dispute. There was a specific procedure for commercial disputes that applied to maritime cases. These disputes required a written contract, and involved more legalistic procedural rules than other disputes. Foreigners, metics, and perhaps even slaves could litigate these cases. While other disputes had fewer formal rules for their trials and allowed for more discretion by the jury, Athenians decided to have a more predictable system for commercial disputes. And so it is not the case that Romans invented the rule of law; Greeks had it when they needed it.
Were there formal rules of evidence in Athenian trials?
There were no formal rules of evidence.
Instead, each litigant at trial gave a speech and it was somewhat freeform, a little like Judge Judy. These speeches included matters that may not be technically relevant to the case, such as character attacks, their adversary’s past crimes, or their own altruistic work.
There was also no pre-trial discovery or exchange of evidence between the parties before trial (other than the anakrisis, described below).
There was also no prohibition on telling the jury about settlement discussions. In fact, court speeches may cite how the other side was being unreasonable since they wouldn’t settle.
Did Athenian litigants hire lawyers to represent them in disputes?
No. Litigants had to represent themselves in court.
But they could hire a speechwriter to write their speech for them. Demosthenes was a famous speechwriter for litigants.
However, as litigants delivered a speech, they would need to pretend they were speaking extemporaneously. As a result, litigants would deliberately make comments to make it seem like they were speaking off the cuff, since they didn’t want to seem like they were being too legalistic or technical.
The lack of lawyers applied to all trials. There was no public prosecutor or state actor in Athenian courts. Every dispute involved private litigants.
Did Athenian litigants cite law when they argued their cases at trial?
There was no judge in Athenian trials to instruct the jury on what the law was.
And there was no requirement that litigants needed to quote the law. Sometimes their speeches did not even cite the law under which the suit was brought.
But a litigant may interrupt their narrative to read aloud from any law they chose. The litigant or his speechwriter may prepare for this by writing down the law before the trial from the large stone blocks in different areas of the city on which the law was inscribed. The laws were set by direct democratic vote of a large assembly of male citizens. And the commercial laws were displayed near the Agora. Reviewing these stones and writing down the law was an early form of legal research.
Did Athens have a statute of limitations that barred claims as untimely?
Yes there was a statute of limitations, but the Athenian system favored a broader sense of justice over technicality. As a result, some speeches stated that a plaintiff’s claims had expired, but the speakers would also argue the merits of the case anyway. And in inheritance or will dispute cases, it was common to argue that even though a will exists, the litigants really deserves the inheritance more, and so a sense of equity or justice overrides the contract or statute of limitations.
How strictly did Athenian trials apply the law?
Not very. Athenian laws were vague and so litigants could ask the jury to interpret them favorably. For example, in one case, a defendant fled Athens while it was under attack. He was charged with treason, even though this was not covered by the statute. In that case, the prosecutor argued that the law givers would not have imagined something so bad as the case under consideration, and so the jurors should extend the treason law to include the defendant’s conduct.
Athenian litigants also had a very loose adherence to consistency. The Athenians had informal precedent where speakers cite well-known previous cases, but this was very different from the modern precedent that requires litigants to cite adverse on-point precedent.
Did Athenian litigants examine witnesses at trial?
In the early period, they could cross-examine witnesses, but for most of the classical period they would present written, sworn statements by a witness that are like modern affidavits.
Or the litigant could just present his own narrative in the speech without witnesses.
How long did Athenian litigations last?
We do not know how much delay there was in between a pretrial hearing and a trial. In commercial maritime cases, we think that a trial had to be complete within thirty days.
Public trials themselves usually took a day; private cases could take a few hours or less. At trial, Athens allowed each side in a litigation equal time for its speeches and used water clocks to time the speeches. Reading the law did not count towards the time spent in a speech and Athenians would stop the water clock while a litigant read the law.
Did Athenian trials distinguish between civil and criminal disputes?
No. There were two types of cases, but those two types were not criminal and civil, but public and private.
Homicide was considered a private case since it involved a crime against the family of the victim.
For public harms, anyone could bring a case against the perpetrator. In theory, volunteer prosecutors were allowed to enforce the law to protect weaker people. In practice, most public cases were litigated against the personal or political enemies of the plaintiff.
Image credit: https://en.wikipedia.org/wiki/Ancient_Greece#/media/File:Parthenon_(30276156187).jpg
How did litigants initiate a lawsuit in Athens?
Athens had a weak state, so there were no police officers who could compel a defendant to appear for trial.
Instead, a plaintiff delivered a summons to the defendant to appear in court, bringing friends as witnesses. The plaintiff submitted a complaint to the magistrate. After filing, there was a pretrial stage that was called the anakrisis. At this stage, the plaintiff gave summary of his arguments and evidence. The plaintiff would also submit the relevant laws at this stage.
The magistrate then set a trial day.
What would happen when a defendant did not consent to litigation or pay the amount due on a judgment?
There was no subpoena power in Athens; if a defendant didn’t show up to court, the plaintiff’s recourse was that he could get a default judgment.
Once a plaintiff got a judgment, it was hard to enforce it.
In a public case, there were magistrates who carried out the judgments.
But for a money judgment in a private case, the litigant would have to ask the defendant for the money. And when the defendant refused, the litigant would have to file a second lawsuit as an enforcement action. If the plaintiff won that case, then he was permitted to physically take what was due to him. But if he didn’t have enough people or strength to take the money by force, then nothing would happen. This meant that enforcement of judgments was somewhat unpredictable and sometimes it became violent.
Why did Athenians litigate at all if judgments were difficult to enforce?
For the elites that litigated, a lot of the purpose of litigation was expressive and meant to be a social sanction against the defendant more than a means to get the specific judgment or relief.
But for commercial cases, a few magistrates in the marketplace could effectively decide and enforce decisions in low level commercial disputes. You could run to a magistrate in the Agora and they could give out a fine or a judgment up to a small amount, but enough for ordinary market transactions. For most Athenians, that was their most common interaction with the judicial system.
Who could litigate in Athenian trials?
The enslaved or women couldn’t bring cases or be sued.
Metics could bring some, but not all cases. And male heads of households could litigate on behalf of women.
Who served on Athenian juries?
The jurors were adult male citizens over the age of thirty and who were selected by lot each day. There were 201 jurors in private cases and 501 in public cases. Some political cases had 1,500 jurors.
Scholars estimate that Athens had 30,000 adult male citizens out of a total population of 300,000 (that included women, slaves, and metics).
Jurors served on a panel for a year. There were 5,000 members of a panel for the year and anyone on the panel could decide on any given day they would go to court to be on the jury. As a result, there was some self-selection in the composition of the jury for a particular case based on who showed up. Jurors were paid for their service. Often, more people showed up for a case than the archon could put on the jury. In fact, there is an Aristophanes play about a man addicted to jury service. As a result, jurors needed to get to court early enough to be selected and paid.
To be selected, jurors brought a bronze ticket with their name on it to a lottery machine. Athenians were so proud of their jury service some were buried with their tickets.
How did Athenian juries make their decisions?
The law did not provide time for juries to deliberate. Instead, after each case, the jurors took two ballots (one for the plaintiff and one for the defendant) and place the ballot they wanted to cast in an urn. The majority won.
Did Athens pay jurors?
Jurors were paid. In the fifth century BCE, Athens paid jurors a decent wage. By the fourth century, jurors got a little cash, but not enough to live on.
The money incentivized people to come. And as a result, most jurors were poorer, older, and more urban. But we do have evidence of people walking twenty miles to town for Assembly meetings, so juries probably were not limited to residents of the city.
Were Athenian trials open to the public?
Yes. Not only did hundreds of jurors watch trials, but there were also spectators. Trials were public entertainment. One court was in the open air, right by the marketplace.
Do you believe that the Athenian legal system had a particular strength for resolving commercial disputes? How about a weakness? What are they?
With respect to commercial maritime disputes, the system seems to have met the Athenian’s need for a predictable dispute resolution system to attract trade to the city.
One strength of the Athenian legal system more generally is that while modern courts shoehorn cases into discrete legal boxes that don’t take into account the entire situation surrounding a case, the Athenians let litigants tell their full story. Athenian litigants were able to make their cases the way they wanted to, which made the system more accessible to ordinary people and provided more of a sense of procedural justice.
Yet another is that the Athenian system had a broader, contextualized approach to criminal cases. In modern criminal cases, jurors don’t know what the sentence will be when they decide guilt. But in Athens, the jury was aware of the potential penalty and could consider the impact their proposed sentence will have on the defendant and the community.
While we might want to adopt some features of the Athenian system, for example telling trial juries when a conviction will lead to a mandatory minimum penalty, for the most part the Athenian system is not a model for us. The obvious weakness to this approach is that the Athenian system was inconsistent and unpredictable (at least outside commercial maritime cases), did not provide protections against overly vague criminal laws, and did not provide many procedural protections like the right to appeal. Most important, providing actors in any legal system with wide discretion can easily turn into abuse and discrimination.
Did the Athenian legal system allow for appeals?
No. There were no written decisions or appeals.
Some litigants’ speeches indicated a worry about the lack of accountability of jurors since there were no appeals. Those speeches reminded jurors that the gods were watching them and would punish them for a bad decision. They also asked the jury what they would tell the spectators, and their friends and family about their decision.
How do we know about Athenian litigation today?
About a hundred trial speeches survive today. These are not court records, but speeches that were written by speechwriters for litigants, and then published as advertisements to get clients. Later on, court speeches were used to teach rhetoric, so speeches written by the ten most famous speechwriters were the ones that were preserved. As a result, the court speeches we have have an elite bias—they involve litigants who could have one of the best speechwriters write their speech for them. The Athenians were known to be litigious, so we think that ordinary Athenians also litigated cases, but we don’t know as much about what those speeches were like.
Besides the speeches, we have no records of Athenian court cases. All we know about the outcome of cases is whether the jury found guilt or not. For awhile, Athens did not keep records of verdicts, but later it did keep records, but it did not organize them in a way that enabled legal research on specific issues.
What do we know about Ancient Greek trials outside of Athens?
We don’t know much about litigation outside of Athens in the classical period since most of our documents come from Athens. Some Greek city-states were oligarchies, and so there is an academic debate about whether litigation in other city-states, particularly those that were not democracies, was similar to Athenian law.
Was there any special attire for participants in a trial?
Not for the litigants. They dressed in ordinary clothes, consistent with the concept that they were ordinary people sharing their stories with the public. This also reflected the fact that there was no clear separation between the legal field and social life.
But there was pomp and ceremony for jurors. They had to have a jury ticket and they would hold a staff that indicated which court they were assigned to. It has been suggested that the elaborate random jury selection process was not just to avoid bribery, but was also designed as a ceremony to convince jurors to take what they were doing seriously.