7 CONCLUSIONS

176 CONCLUSIONS

the character of the parties without any reference to the issue in dispute. The survival, indeed the idealization, of the homicide tribunals and their use of the relevancy rule in the classical period may reflect this anxiety. In addition, discretionary decision making by popular juries made the legal system less consistent and predictable. Athens managed to maintain public order and respect for the legal system despite the climate of legal insecurity, but the lack of predictability imposed significant risks and costs on private transactions. The creation of a special maritime jurisdiction can be seen as an attempt to alleviate the problem of legal uncertainty in one specific area. In these courts, arguments focused on the terms of the contract rather than on the parties, producing more consistent results that fostered commerce and attracted foreign merchants.

The constant negotiation between flexibility and consistency indicates that for the Athenians the primary aim of the courts was to resolve disputes justly, taking into account the circumstances of each case. In this sense, the courts of Athens served “legal” rather than social or political ends. But to say that Athenian courts served legal ends is not to endow them with all the legal powers that modern courts have: Athenian courts resolved the disputes before them, but they could not and did not attempt to speak (as many modern courts do) to whether future disputes should be resolved in the same way. On the contrary, Athenian decisions were entirely ad hoc, and probably did little to assure Athenians that a particular course of conduct was proper. Of course, Athens had norms and mores, and these must have been reflected in, reinforced by, and even influenced by court verdicts. But there was nothing authoritative about a particular decision the way there is in most modern common law jurisdictions. Overall, Athenian courts were backward-looking, a focus that is consonant with Aristotle’s definition of judicial rhetoric as judging an action in the past.1

The Athenian popular courts also lacked a related power traditionally wielded by modern courts: the power to crystallize society’s approval or disapproval of particular conduct. Some legal scholars argue that a key function of the law and of court decisions in particular is to express society’s approval or disapproval of behavior.2 Law probably served such an “expressive” function in Athenian society, but this function must have been attenuated in popular court cases. On the one hand, a popular court jury had the opportunity through its verdict to make a public

1Arist. Rhet. 1.3.

2E.g., Sunstein 1996; McAdams 2000; Kahan 1997.

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statement about whether the litigants had abided by the community’s values of fair dealing or decent conduct in the particular case, regardless of the result suggested by a strict reading of the statute, will, or contract at issue. But because a jury’s verdict could turn on any of a number of specific legal or extra-legal factors raised in the case, the jury’s ability to express a clear and precise moral statement, and thus to influence the moral and social values of Athenian society, was limited. The trial of Socrates is a good example: although the jury’s overall condemnation of Socrates was well known, his precise crime and exactly what the jury thought of him is unclear (and seems to have been unclear even at the time); the guilty verdict may have represented little more than a rejection of Socrates’ unorthodox manner of defending himself.

The emphasis on finding a just outcome to a particular case effectively precluded a court system capable of announcing stable rules or clear moral judgments. Why was informal, contextualized dispute resolution so highly valued, despite its costs? Part of the answer must be that although the disadvantages associated with discretionary justice – the risk of prejudice, the absence of predictability – were the same as they are today, the potential effect of these shortcomings was much less severe in classical Athens than they would be today. Because the Athenian citizen body was ethnically, socially, religiously, and ideologically (if not economically) far more homogenous than contemporary societies, broad jury discretion must have been more predictable than it would be today. In addition, we have seen that a variety of informal mechanisms rooted in the cohesiveness of Athenian society ensured that public order was maintained despite the law’s inability to provide reliable guidance for future behavior.

Then there is the question of administrative costs: case-by-case decision making carried out by juries numbering in the hundreds is an extremely inefficient way to resolve disputes.3 However, Athens’ political culture helps to explain why high cost was not much of an issue. For the Athenians, popular court cases gave average citizens an opportunity to participate in the governance of their city. In fact, Athenians were sometimes buried with their juror’s ticket (pinakion), indicating their pride at performing jury service.4 In the Athenian view, jury trials were

3Many modern evaluations of the choice between predictable rules and flexible standards in constructing legal directives analyze the relative costs of rulemaking and ex post discretionary decisions (Kaplow 1992; Posner 1997).

4Kroll 1972.

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important mechanisms of democratic participation, not costly procedures to be limited as much as possible.

In addition, ex post jury decision making may have been more efficient than detailed rule making. Passing a law or, in the fourth century, a decree, involved a meeting of the popular Assembly, where any male citizen was permitted to propose a rule or give a speech regarding the proposal under discussion. This was cumbersome. Where enhanced certainty and predictability were needed to attract foreign traders in maritime suits, the Athenians avoided the costs of rulemaking entirely by strictly enforcing the terms agreed to by the parties rather than creating substantive contractual rules. The unusual balance between formality and certainty on the one hand and flexibility and fairness on the other was thus well suited to the political and social context of classical Athens.

But there must be more to it than that. The discretionary approach benefited the poor citizen males who formed the dominant political constituency of the democracy. The judicial system placed all litigants, the rich included, squarely in the power of the predominantly poor jurors who enjoyed the right to reach verdicts by whatever reasoning they wished to apply. In the popular courts, the poor had the opportunity to express their notions of good and bad behavior, and thereby in a general way influence the ethical atmosphere of the city. The informality of legal procedures and broad notions of relevance gave the poor access to legal remedies, and the forensic rhetoric appropriate to contexualization allowed room for uneducated men to “tell their story” in a more-or-less natural way. Indeed, although no direct expression of the poor man’s point of view survives, one treatise written by a man with oligarchic sympathies suggests that the aspects of the democracy that he detests, including the judicial system, were rationally seen by the poor and the masses (hoi penˆetes kai ho dˆemos5) as serving their interests.6

This system is nothing the rich would have created had they been given complete freedom of choice. In the last decade of the sixth century, Cleisthenes, in the words of the Constitution of the Athenians, formed a political connection with (literally “brought over”) the dˆemos and effectively ended the monopoly of leading families

5The term dˆemos can mean either the population as a whole (populus) or the poor (plebs). On the ambiguity of the term, see Rhodes 1993:88.

6[Xen.] Ath. Pol. 1.1, 13. The Constitution of the Athenians is a prose piece perhaps written sometime around 425 B.C. that seeks to explain the success of the Athenian democracy. Originally incorrectly ascribed to the fourth-century historian Xenophon, scholars generally refer to the author as the “Old Oligarch,” a name doubtless linked to the author’s clear antidemocratic sentiment.

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in Athenian politics.7 The rich could no longer compete successfully against each other without making at least some gesture to the ordinary Athenians assembled in the city’s legislative and judicial bodies. Regrettably, we have only a sparse record of trials conducted between the reforms of Cleisthenes and the earliest years of recorded logographic activity, starting in about 430, but it must have been within this period that the popular court procedures as we know them took shape to accommodate the newly acquired power of lower class citizens.8

The most important factor in the adoption of a discretionary judicial system was Athens’ political structure. As a direct, participatory democracy, Athens rarely placed men with expertise in official positions, preferring to rely on ordinary citizens selected by lot. Whenever possible, important decisions – including such specific tactical matters as the number of ships to send on a military expedition – were made by the citizen body rather than entrusted to individuals. In the legal sphere, the preference for amateurism and popular decision making meant that legal decisions were left entirely to the popular court juries. Magistrates exercised little power in dismissing cases on legal grounds at preliminary stages, and there was no equivalent of the modern judge to influence the arguments of the parties and to instruct the jurors about the laws and how to reach their verdict. We have seen that laypersons naturally tend to think about social interaction in the form of a story that includes the broad social context, and find the restriction of evidence demanded by formal legal reasoning counterintuitive. It is not surprising that amateur Athenian jurors embraced contextual information and argumentation as relevant and even vital to their task. Moreover, the commitment to popular decision making dictated that juries be given maximum discretion in reaching their decisions. After all, it was not only through the Assembly but also through the popular courts that the people ruled Athens. The justice they dispensed there was popular, democratic, and uniquely Athenian.

7Arist. Ath. Pol. 20.1.

8Boegehold (1995:21–22) assigns a date of not long after 460 B.C.E.