- •Contents
- •Acknowledgments
- •1 Introduction
- •sources and method
- •relevance and discretion
- •plan of the book
- •2 Athens and Its Legal System
- •historical background
- •athenian society
- •athenian moral values
- •the athenian legal system
- •Extra-legal Argumentation
- •Background Information and Fairness in Light of the Particular Circumstances of the Case
- •Defense Appeals Based on the Harsh Effects of an Adverse Verdict
- •Arguments Concerning the Character of the Litigants
- •The Use of Law in Popular Court Speeches
- •4 the homicide courts
- •The Five Homicide Courts
- •A Model Court
- •Legalism in the Homicide Courts: Composition
- •Legalism in the Homicide Courts: Relevance
- •The Mirror of the Areopagus
- •The Differentiation of Homicide and Popular Courts
- •The Homicide Courts and Athenian Notions of Law
- •5 legal insecurity in athens
- •Statutes
- •Precedent
- •Shared Norms and Cultural Knowledge
- •The Exception: Protecting Public Order
- •The Costs of Legal Insecurity
- •Mitigating the Effects of Legal Insecurity
- •Maintaining Public Order
- •The Lack of Economic Innovation
- •Maintaining Authority and Legitimacy
- •The Revision of the Laws, 410–404 and 403–399
- •Nomothesia
- •6 maritime cases
- •The Persistence of Oral Proof in the Popular Courts
- •The Written Contract Requirement and Argumentation in Maritime Cases
- •Relevance and Argumentation in Maritime Suits
- •7 conclusions
- •Bibliography
- •Index
110 THE HOMICIDE COURTS
characteristics of homicide were less important in the classical period than one might expect. It is not clear, for example, that the Athenians shared the modern view of homicide as the most serious possible crime. Homicide was a private rather than a public matter; it was only one of many crimes that could result in the death penalty;165 and, indeed, a man accused of intentional homicide could avoid death by voluntarily going into exile after the first of his two defense speeches. In addition, recent scholarship suggests that the relative importance of pollution in the treatment of homicide has been exaggerated, and that by the fourth century concern over pollution in relation to homicide was in steep decline.166 The thesis that the differentiation of the homicide and popular courts was not primarily linked to the nature of the crime of homicide is supported by the introduction near the end of the fifth century of an alternative procedure, apagˆogˆe, for dealing with at least some types of homicide through the popular court system. Further, we have seen that the praise of the homicide court procedures was not limited to their ability to resolve homicide cases alone; Athenian attitudes toward relevance cannot be explained simply by a clear preference for different modes of decision making when judging different types of offense.
THE HOMICIDE COURTS AND ATHENIAN NOTIONS OF LAW
The homicide courts’ special procedures can tell us something about the Athenian notion of law and the aims of its popular courts. The existence of a rule forbidding irrelevant statements demonstrates that the Athenians were capable of imagining a legal process that entails the regular application of abstract principles to particular cases. There was a notion that in the homicide courts, at least, judicial decisions were to be based on the narrow legal and factual issues of the case detached from
165In addition to homicide, the death penalty could be used for treason, impiety, theft, robbery, assault, public corruption, extortion, debasing the coinage, violation of the grain laws, illegal exploitation of the silver mines, and forging a will. For discussion, see Barkan 1935: 5–41.
166Some aspects of the homicide procedures appear to suggest concern about pollution: those accused of homicide were ordered to avoid holy places and the agora (Dem. 20.158), homicide trials took place in the open air (Ant. 5.11), and pardoned killers had to perform sacrifices and purify themselves before returning to Attica (Dem. 23.72). Litigants in homicide trials also took special oaths in an elaborate religious ritual (Dem. 23.67–68). But the importance of pollution in the development of homicide law and procedures has been questioned in recent scholarship and there may be other explanations for these provisions. For discussion, see, e.g., MacDowell 1963: 144–146; Parker 1996a: 104–143; Arnaoutoglou
1993; Gagarin 1981a:164–167; Carawan 1998: 17–19.
THE MIRROR OF THE AREOPAGUS 111
their social context, and without regard for the character or social standing of the litigants and the impression that their rhetoric made on the judges.
The antiquity and conservatism of the homicide courts invested them with great prestige, even apart from any perception of the merits of their mode of decision making. The fact that the Athenians did not introduce similar constraining procedural and evidentiary rules in the popular courts despite these older examples seems to indicate a conscious reluctance to embrace that mode of notably stricter legal argumentation. Opportunities for an assimilation to the perceived methods of the homicide courts were not lacking: there were several episodes of major and minor legal procedural reform in the classical period, including the revision of the laws at the end of the fifth century, the transition from oral to written depositions, and the creation in the fourth century of a new set of legal procedures (the emmˆenoi dikai) for certain types of case. It is true that the enforcement of a relevancy rule might have presented more practical difficulties in the popular courts than in the homicide courts because the Areopagite judges were more experienced and presumably therefore more likely to express their displeasure when a speaker strayed from the issue at hand. But we should not underestimate the ordinary Athenian’s familiarity with legal procedures. It is not improbable to suppose that knowledgeable jurors and spectators would be able to enforce a relevancy rule by shouting down speakers who introduced character evidence.167 Even if a relevancy rule similar to that used in the homicide courts would be unenforceable in the popular courts, we would expect to see some mechanism similar to the jurors’ oath that was in practical terms unenforceable, but which speakers nevertheless referred to often and milked for its rhetorical value.
The Athenian decision not to emulate the special procedures and apparent rigor of the homicide courts, most notably the relevancy rule, in the popular courts may be attributed to countervailing values in their political culture: the widespread participation of ordinary men, and the broad discretion extended to juries to temper strict legality with equity. The broad view of relevance evident in the popular courts reflected not only a normative judgment about the value of individualized justice but also a commitment to popular decision making in the new democracy. It is one thing to hold that a wide range of extra-legal information and argumentation, such as the prior relationship and interaction of the parties and the effect an adverse verdict would have on a particular defendant,
167 On the possibility of knowledgeable bystanders heckling jurors, see Lanni 1997: 187–188.
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is potentially relevant to the resolution of a legal dispute.168 But it is quite another to unleash a popular jury to determine, without being provided with any rule of decision, what types of legal and extra-legal information and argumentation should be credited in reaching a just decision in a particular case. Support for an open-ended system of relevance like that used in the popular courts cannot be separated from the critical question: who decides what is most relevant in a specific case? The discretionary approach of the popular courts was thus intimately linked to the creation of a participatory democracy in which, in Aristotle’s words, the dˆemos was kurios (supreme) in all things, including the popular courts.169
Why did the homicide courts not assimilate themselves to the more flexible procedures of the popular courts in the classical period? The sheer force of conservatism and reluctance to alter the traditional procedures of the Areopagus must have played some role. It is possible that the fact that the homicide courts did take into account the most important type of contextual information relating to a homicide – the intent of the offender – made it seem less necessary to reform the homicide procedures. The most important factor may have been the rarity of traditional homicide procedures. Homicide appears to have been unusual in Athens. Our sources mention only fifteen cases of homicide between 507 and 322 B.C.E.,170 and only three homicide speeches for delivery in the special homicide courts survive.171 The frequency of traditional homicide trials may have further declined in the fourth century because apagˆogˆe, an alternate procedure for bringing at least some types of homicide cases in the popular courts, was introduced near the end of the fifth century.172 Apagˆogˆe avoided the formalities, oaths, relevancy
168For a discussion of categories of extra-legal evidence that Athenian jurors appear to have found relevant, see Chapter 3.
169Arist. Ath.Pol. 41.2.
170Herman 1994:101.
171Including non-homicide cases, six speeches for delivery before the homicide courts survive. It may be that the rarity of special homicide court trials is not the only explanation for the relatively small number of remaining homicide speeches. Bruce Frier has suggested to me that because homicide speeches were focused more on the legal and factual issues and less on rhetoric, speechwriters might be less inclined to publish these speeches and ancient scholars less likely to preserve them.
172The dating and types of apagˆogˆe used in homicide cases have been the subject of scholarly dispute for some time. The defendant in Antiphon 5, delivered around 420 B.C.E., complains that the prosecutor’s use of the apagˆogˆe kakourgon procedure (the procedure normally used against street criminals) for an ordinary homicide is unprecedented. It is unclear whether this case marks the first instance of the expansion of apagˆogˆe kakourgon to homicide cases, or whether this suit was merely an aberration. Another type of apagˆogˆe applicable only in homicide cases (sometimes referred to by scholars as apagˆogˆe phonou)
THE MIRROR OF THE AREOPAGUS 113
rule, and jurisdictional complexities of the traditional homicide courts and was heard in a popular court before ordinary jurors. Although the homicide courts continued to hear cases throughout the classical period,173 the existence of this alternate homicide procedure, as well as the overall infrequency of homicide trials, may have weakened any inclination to change the traditional homicide procedures.
Even if the Areopagus and other homicide courts rarely heard cases in the classical period, the Areopagus remained prominent in the Athenian legal imagination, serving as a notional antithesis to the flexible approach of the popular courts. Indeed, if the homicide courts rarely sat in judgment, that probably only enhanced their reputation by promoting an idealized view of their operation undiminished by frequent or apparent departures from the ideal. The idealization of the Areopagus and other homicide tribunals in the classical period may reflect Athenian anxieties about the decision making process of its mass juries. Praise of the Areopagus and the homicide courts was particularly focused on the special ability of the judges and their tendency to ignore the social standing and character of the litigants. The use of character evidence in the popular courts was controversial,174 and praise of the Areopagus may reflect a widespread unease about the potential for misuse of this type of information, especially at the hands of a popular court jury. In fact, litigants in the popular courts who use character evidence are careful to explain how this contextual information is relevant to reaching a just result.175
The Athenians were aware of, and uneasy about, the aspects of their legal system that discouraged strict legal argument divorced from the social context of the dispute. Theirs was a conscious choice to favor contextualized justice and broad jury discretion over the more formal, legal approach represented by the homicide courts. Nevertheless, there appears to have been a decided ambivalence about the decision not to follow the Areopagus’ paradigm of expertise and legal
may have been introduced at the end of the fifth century. For an account of the dating and reasons behind the rise of the use of apagˆogˆe in homicide cases, see Volonaki 2000. It is unclear whether apagˆogˆe was available in all types of homicide (compare Gagarin 1979 with Hansen 1981a). What is important for our purposes is that in the late fifthand fourth century some homicide suits were brought not through the special homicide court procedures, but in the ordinary popular courts via apagˆogˆe. Carawan (1998: 164–167) has suggested that apagˆogˆe gradually eclipsed the dikˆe phonou.
173Carawan (1998: 164 n.45) catalogues only six possible examples of traditional homicide prosecutions in the fourth century.
174See Chapter 3.
175See Chapter 3.
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argumentation in the popular courts. The social construction of the Areopagus reveals anxieties about the dangers of broad-ranging jury discretion in the popular courts, particularly the potential misuse of character evidence. In the next chapter, we will explore a different source of ambivalence in the popular court system, namely the need to sacrifice some measure of consistency and predictability to produce contextualized and individualized judgments.