PLAN OF THE BOOK 11

courts favored flexibility to a remarkable degree. Athens thus offers an example of a sophisticated system that managed to function and maintain legitimacy without relying on the regular application of generalized rules, but rather employed a highly discretionary form of justice.29

PLAN OF THE BOOK

Chapter 2 provides non-specialist readers with a general introduction to the history of Athenian democracy and a sketch of Athenian society, with particular emphasis on the moral values and obligations of citizens. Because Athenian jurors in the popular courts made highly individualized, ad hoc decisions, I do not attempt to describe a “substantive law” of Athens. Nonetheless, although popular court jurors operated without general, authoritative rules of decision, in reaching a verdict they drew upon commonly shared norms and values. The discussion of these values is intended to help the reader better understand the various legal and extra-legal arguments to which Athenian litigants appeal as we encounter them in this study. Chapter 2 also introduces the institutions, structure, and procedures of the classical Athenian legal system.

Chapter 3 examines the broad notion of relevance employed in the popular courts. Three categories of extra-legal argumentation were commonly used in our surviving speeches: discussion of the broader background and context of the dispute, including the past relationship and interaction between the parties and their approach to litigation and settlement; defense appeals to the jury’s pity based on the harmful effects of an adverse verdict; and arguments based on the character of the parties. I argue that both extra-legal and legal argumentation were considered relevant and important to the jury’s decision because Athenian juries sought to reach a just verdict taking into account the particular circumstances of the individual case.

Chapter 4 focuses on the homicide courts, which served as a notional antithesis to the flexible approach of the popular courts. I argue that the unusual procedures of these courts, particularly a rule prohibiting irrelevant statements, made these courts (in theory, and, to a lesser extent, in practice) more congenial to formal legal

29Ad hoc legal systems, such as those in a variety of traditional societies, generally draw their legitimacy from the reputation of the judge for legal expertise or wisdom. For the various ways in which the Athenian courts maintained legitimacy in the absence of expert judges, see Chapter 5.

12 INTRODUCTION

argument. I examine in detail the evidence for the real and perceived differences between the homicide and popular courts with respect to composition, legal argumentation, and the approach to relevance. The chapter goes on to address two more general questions: (1) why were homicide cases treated differently? and (2) what do these differences reveal about the Athenian conception of judicial process? I argue that it is the peculiar development of homicide law in the archaic period, not a sense that homicide was more serious or in some way different from other charges, that accounts for the unusual character of the homicide courts in the classical period.30 The unusual homicide procedures suggest that the Athenians were capable of imagining a more formal legal approach, but reserved this austere approach for only a tiny minority of cases. At the same time, the idealization of the homicide courts indicates anxiety over the dangers of broad notions of relevance and wide-ranging jury discretion in the popular courts, particularly the potential misuse of character evidence.

Chapter 5 explores another source of ambivalence, namely the inevitable reduction in legal consistency and predictability that accompanies an ad hoc system like the one developed in Athens. Legal insecurity increased the risk and cost of many private transactions because men could not confidently conform their conduct to the law. Nevertheless, a variety of mechanisms, from informal means of social control to elaborate legal fictions, permitted the system to function and maintain authority. I also describe a short-lived attempt to foster enhanced consistency and predictability – the legal reforms at the end of the fifth century. Chapters 4 and 5 thus illustrate the two disadvantages inherent in any legal system that favors context and flexibility: (1) the possibility of verdicts based on prejudice and motives completely unrelated to the issue in dispute, and (2) reduced consistency and predictability.

In Chapter 6, I discuss the special procedures used for maritime cases beginning in the middle of the fourth century. A written contract was required to bring a maritime suit, and speeches in this type of case tend to focus more narrowly on the contractual dispute and less on the character of the litigants than similar non-maritime commercial cases. I argue that these differences stem from a need to facilitate trade by offering a predictable procedure for enforcing contracts, and thereby to attract foreign merchants to Athens. Further, in judging claims of

30The homicide courts do, however, appear to have a distinctive religious coloring. For discussion, see Chapter 4.

PLAN OF THE BOOK 13

non-citizens, who made up a significant portion of the litigants in maritime cases, Athenian jurors would be less eager to look beyond the terms of the contract to enforce social norms of fair dealing and good conduct. In this one area of the law, the costs associated with flexible justice outweighed the benefits, and steps were taken to narrow the range of evidence considered relevant to the jury in an effort to enhance the predictability of verdicts.

In Chapter 7, I offer some suggestions about why the Athenians favored a contextual approach to justice. Athens’ political structure as a direct, participatory democracy was paramount. The flexible approach benefited the poor citizens who formed the dominant political constituency of the democracy,31 and promoted popular decision-making by granting juries maximum discretion in reaching their verdicts. The picture that I hope emerges from this study is that Athenian justice was no less purposefully democratic than its politics. That it can seem amateurish or alien to us is a measure of the degree to which modern “democracies” have abandoned popular decision-making with hardly a look back.

31As discussed in Chapter 2, the Athenian “poor” (penˆetes) included not just the destitute but anyone who had to work for a living, a majority of Athenian citizens.