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that some punishment would be forthcoming in the absence of extremely strong mitigating factors. The need to maintain public order in the absence of a police force undoubtedly reinforced the belief in the seriousness of such transgressions.60 Even if the precise outcome in such a case was uncertain, the likelihood that the behavior would result in some sanction may have been sufficient to deter some potential offenders.

With the exception of cases involving serious criminal matters, however, the Athenians’ shared norms and values did not result in legal consistency and predictability. The failure of statutes, citation to past cases, and shared norms to produce legal consistency stems from a single characteristic of the Athenian legal system: a broad notion of relevance that called for considering such a variety of factors that it was impossible to construct explicit or implicit abstract rules and principles that could be consistently applied across cases.

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The ad hoc, discretionary nature of popular court decision making vested ordinary Athenian jurors with enormous power. Scholars of Athenian democracy have argued that broad jury discretion played a vital role in maintaining social order and stability in Athens.61 One scholar, for example, has pointed out that the interactions in the courts may have eased the tensions and conflicts that naturally arise in a society like Athens where citizens were politically equal but socially very unequal. Under this view, the courts provided a forum for ongoing communication and negotiation between elite litigants and mass jurors “in a context which made explicit the power of the masses to judge the action and behavior of elite individuals.”62

But broad jury discretion also brought serious disadvantages. The lack of consistency and predictability in the Athenian courts resulted in widespread uncertainty regarding one’s legal rights and duties. This relatively high level of legal insecurity had a pervasive effect on Athenian social interactions. The capability of the written

60Indeed, we will see below that many offenses that threatened public order – certain types of theft, burglary, highway robbery – were disposed of through summary arrest and execution. Offenders caught red-handed engaging in these types of crimes were denied the opportunity to present a contextualized account to a popular court jury.

61E.g., Ober 1990:145; Johnstone 1999:106–108, 124–125.

62Ober 1990:145.

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law to guide conduct and order social relations was extremely limited, and legal uncertainty imposed significant costs on many private transactions. Oliver Wendell Holmes’ well-known “bad man” theory of the law may help highlight the importance of legal security in the ordinary functioning of law.63 Holmes described the function of law by imagining a “bad man” who viewed the law purely instrumentally and planned his behavior based on what he predicted he could (and could not) get away with under the existing rules. Legal indeterminacy such as that found in Athens makes this task difficult or impossible, reducing the effectiveness of law as a means of social control.

In the absence of clear rules, it was not possible for Athenians to conform their conduct to the law with any confidence, at least in cases that did not involve what we would consider serious criminal matters. Even in situations apparently governed by a precise rule, as was the case in many inheritance disputes, public awareness that a jury might rely on extra-legal arguments to reach a verdict contrary to the outcome suggested by the statute or will reduced the law’s ability to influence conduct. In private law transactions, this state of affairs must have increased the risk and cost of every transaction and created inefficiencies. Sellers and buyers could never be reasonably sure that they would be able, if necessary, to have the terms of a contract or the protections afforded them by law64 enforced by a court. Citizens with what would appear to be a clear legal claim to an estate or other form of property could find themselves mired in lawsuits.

Of course, Athenians would have tried to reduce the effects of legal uncertainty by conducting their affairs with men with whom they had close ties whenever possible.65 This would make it easier to settle their disputes through informal means without reference to the laws or recourse to the courts.66 Members of the local community would be susceptible to informal pressures to honor agreements and to conduct business honorably. Men who regularly did business together

63Holmes 1997 (originally published 1897).

64There was very little state regulation of private transactions, but there were some laws designed to protect buyers, such as a law prohibiting the making of false statements in the agora, a law regulating the process by which an Athenian official would declare silver coinage valid (Rhodes & Osborne 2003: No. 25) and various rules regarding the sale of slaves (Hyp. 3.14–15).

65For examples of Athenians transacting with relatives, neighbors, or close friends, see, e.g., Dem. 33.6–7; 53.9; cf. Dem. 35.6–7.

66Ellickson (1991) has shown that contemporary Americans in close-knit communities, who have imperfect access to predictable legal enforcements because of the high cost of litigation, are able to order their affairs effectively “without law,” by reliance on trust and informal control over anti-social behavior.

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could be assured that each party had incentives to act fairly to preserve the ongoing relationship.67 Even when concluding single transactions with men outside the local community, one could expect that the fear of a tarnished reputation and negative gossip might prevent merchants and other businessmen from engaging in extremely unscrupulous behavior.68

But informal means of social control can not compensate completely for the absence of precise legal rules and predictable judicial outcomes. Informal norms are least effective in regulating conduct when the actors lack close social ties or an ongoing business relationship, or when the stakes of a dispute are high.69 Most Athenians would find it difficult to deal exclusively with members of one’s local community. Although residents of any particular deme would likely constitute a close-knit community,70 the city of Athens and the area around the port of the Piraeus were teeming commercial centers filled with citizens, resident aliens, and foreigners. Athens was not a face-to-face society. Whereas a man might well sell his crops to and obtain his staples from men with whom he had an ongoing relationship, he would likely purchase some items in the market of Athens or the Piraeus from merchants whom he did not know (or know of).71 City dwellers were likely to encounter strangers on a regular basis.72 As already noted, fear of negative gossip may have induced merchants and businessmen based in Athens to refrain from the worst sort of unfair dealing. However, gossip about merchants reaching those outside or in other parts of the city would most likely be limited to extremely negative or positive stories and would therefore be insufficient to fully enforce informal norms of fair dealing. Finally, men performing liturgies, such as outfitting a trireme or funding a dramatic production, would be obliged

67 There is an extensive law and economics literature on “relational contracting” – the tendency of market players to abandon short-term self-interest in individual exchanges for the sake of developing and maintaining an ongoing trading relationship (Bernstein 1992; 1996).

68On the importance of gossip as a means of informal social control, see Hunter 1994:96–119.

69Ellickson 1991:94, 250–251.

70Of course, many deme members lived outside the boundaries of their deme. Those resident in the deme, however, would approximate what we think of as a close-knit community.

71Swords and shields for military service, perfume, pottery, and other such items were unlikely to be produced in local areas and may have been obtained while visiting the city to attend festivals, the assembly, or to serve in the courts. Theophrastus’ citizen agroikos (Char. 4) attends the Assembly while he is in the city shopping and running errands.

72To cite just one example, the speaker in Hyperides 3 appears to have had no prior relationship or knowledge of Athenogenes when he purchased his perfume shop, and Athenogenes apparently did not suffer from informal reprisals after tricking the speaker with a misleading contract.

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to deal with particular specialized vendors and skilled employees. In cases such as these – where the parties share a shallow relationship and are unlikely to engage in repeated transactions – informal norms are ineffective and the failure of the formal law to influence conduct and to order transactions becomes most costly and burdensome.73

A private suit for damages involving a one-off transaction between two strangers, Demosthenes Against Polycles, may present an example of the inability of the law to curb clearly illegal behavior. The case involved a dispute over the performance of the trierarchy, a liturgy which required a rich individual to pay the costs of manning and maintaining a ship in the Athenian navy for one year. The defendant, Polycles, was slated to replace the speaker as trierarch and assume the costs of the ship. Unless the story told by the speaker is a complete fabrication and his witnesses are shameless perjurers, Polycles boldly and repeatedly flouted the law and refused to pay for the ship, forcing the speaker to sue to try to recoup his losses. If Athenian judicial outcomes predictably and consistently followed the written law, we would expect that Polycles would not submit to a trial he would almost certainly lose, but rather would have agreed eventually to take over the ship or at least attempted to settle the claim prior to trial for less than the full amount owed.74 The difficulty of predicting Athenian judicial outcomes encouraged Polycles to take his chances at trial and forced the speaker to waste time and effort on litigation in an attempt to vindicate a clear legal claim.

Even when disputants had close social ties, such as a familial or neighborly relationship, informal means of social control would often prove inadequate to order private transactions if the stakes in the dispute were high.75 Where a significant inheritance was in dispute, for example, family members often turned to the formal legal rules and processes. The costs associated with legal insecurity are particularly evident in our surviving inheritance cases, where the lack of finality exacerbated the problems caused by legal uncertainty and unpredictability. We have already seen that jurors in inheritance disputes appear to have been particularly receptive

73For a discussion of why informal social control works best in close-knit communities, see Ellickson

1991:250–251.

74Of course, blatant violations also occur in legal systems with a relatively high degree of legal certainty, though one would expect that in such cases once the victim evinced the willingness and resources to litigate, the case would likely be settled prior to trial.

75Ellickson (1991:94) notes that in a modern context parties are more likely to turn to formal legal rules and processes if they estimate that the intrinsic or extrinsic stakes of a dispute are high.

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to equitable arguments that contradicted the written rules of testate or intestate succession. Under Athenian inheritance law, a claimant could make a claim on an estate at any time until five years after the death of the man who held it as heir, and we know of one example of an heir’s right to an estate being challenged in court over 20 years after he inherited it.76 Unsuccessful claimants could even sue more than once for the same estate as long as they used a legal theory not addressed in the previous case. In addition to the costs related to protracted litigation, an heir had little incentive to maintain or enhance the inherited property if he could not be reasonably certain that he would be able to ward off a legal challenge.

The most striking evidence of the failure of both the laws and informal norms to order private transactions is the high level of litigation in Athens. In the absence of reliable ex ante guides to behavior, a remarkably high number of Athenians resorted to litigation to resolve their disputes. We have seen that the Athenians had a reputation for being philodikoi, “lovers of litigation.”77 Frequent litigation imposed a cost not only on individuals conducting transactions, but also on the legal system as a whole. Case-by-case decision making carried out by paid juries numbering in the hundreds is far more costly and less efficient than ex ante rulemaking.

The negative effects of legal insecurity were social as well as financial. Because litigation was always a distinct possibility, Athenians carefully planned events that might have legal significance in preparation for a possible trial. It was customary to gather a group of kin, friends, or neighbors to serve as potential witnesses before undertaking any action that might result in litigation, such as agreeing to a contract, paying a debt, making a will, or introducing one’s son to deme membership.78 It has been pointed out that the presence of witnesses gave these events a “staged” quality.79 The process of self-consciously choreographing everyday dealings in anticipation of litigation may have caused these common social

76Is. 3.58; 5.7, 35. For discussion, see Harrison 1998:220 & n.3.

77See Chapter 2.

78Is. 3.19–20; cf. Dem. 57.14; Lys. fr. VI.i (Albini). For a detailed discussion of the use of such Solemnitatszeuge¨, see Scafuro 1997:42–50. The habit of gathering witnesses for a potential court case was not limited to pre-planned events. From Lysias 3 we learn that a boy who was attacked in the street had the presence of mind to call for passersby not only to protect him, but also to act as witnesses: as they were dragging him away, the boy was “screaming and yelling and calling for witnesses.” According to the speaker many people rushed to help (Lys. 3.15–16).

79Scafuro 1997:46.