Lecture 3 - Introduction to Greek Law

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Western University
Classical Studies
Classical Studies 2301A/B
Randall Pogorzelski

LECTURE 3: INTRODUCTION TO GREEK LAW • Our focus in this class will be on Athens in the fifth and fourth centuries, but Athenian laws and ideas of crime developed from a long history in Greece and beyond • The oldest Greek literature we have is Homer’s Iliad, written sometime in the 8 century BCE and purporting to represent the 12 century BCE o Already in the Iliad there is much we can learn about dispute resolution, self-help, and arbitration • Description of court case (from Versteeg): o Earliest description of Greek law o Crime is murder, in this case o Man who was responsible for the death claims that he can pay money to the family of the victim, but the family is refusing o It is not the fact of the killing that is in dispute here, but rather, the nature of the punishment • The scene on Achilles’ shield also tells us about trial procedure – council of elders present and there is a crowd around the elders, thus the crowd will play some sort of role in the opinion of the elders; a reward of gold is to be given to the elder whose decision is the most just th • In the mid-7 century BCE (the Archaic Period), written laws appeared in several places in Greece. Traditionally, Zaleucus wrote the first law for Locri in southern Italy. One of our most extensive and important early legal inscriptions is from Gortyn on Crete. • The most common Greek word for “law” was nomos (plural nomoi), which also means custom. In this way, the Greek view of law was much like so-called common law. Another early Greek word for “law” was thesmos (plural thesmoi), which perhaps comes closer to so-called civil law. • The Archaic Period was a time of intense competition between oligarchs, tyrants, and democrats in Greece. Although it wasn’t always the case, it was often true in archaic Greece that a city in conflict would ask a neutral person to make laws. This shows the origin of Greek laws in conflict between powerful men and explains why Greek laws are so focused on powerful men • Written laws helped to promote equal treatment, although some inequalities like gender inequality and slavery were included in the laws. Written laws also made legal procedures mandatory rather than voluntary and reduced the judicial discretion of magistrates. • Athenian tradition records that Draco wrote the first law code for Athens in 621 BCE. Draco’s laws had a reputation for being harsh and we get the word “draconian” from him, but this may be because Draco allowed lethal self-help. In some instances, however, he made judicial procedure rather than self-help mandatory. • In 594 BCE, Solon reformed the Athenian government and law code. He abolished Draco’s laws except for his homicide law. Solon’s laws were extensive and the Athenians regarded them as the basis of their laws throughout the Classical Period. • Solon’s laws and government were more democratic than oligarchic, and one of his more important acts was the abolition of debt slavery. He nevertheless wrote his laws largely for the purpose of meditating between aristocratic parties, and under his system it was much easier for aristocrats to take advantage of the courts than it was for non-elites to do so. • Before Solon, Athens was mostly ruled by the aristocratic council of elders known by the name of their meeting place: the Areopagus, which means “the hill of Ares.” They ruled the polis together, and each one was a member of an aristocratic family. The Greek word for household is oikos (plural oikoi). The head of a household was a kyrios. • By the time of Solon, the nine Archons were the most important magistrates and the Areopagus was made up of former Archons. In the 6 century, they were elected. In the 5 century the Athenians would elect a short list and then choose the archons from that list by lot. At some point allotment replaced election even for the preliminary stage. • The archons were: 1. Basileus (king, in charge of religious matters) 2. Polemarchos (warleader) 3. Eponymous archon (the year was named after him) 4. Six thesmothetai (judicial officials) • Before Solon, magistrates would decide legal cases themselves. Solon allowed litigants to appeal a magistrate’s decision and he set up a court called the Heliaia, sometimes spelled Eliaia. At first, it seems that the Heliaia was just the Ekklesia called by a different name. • Over time, the Heliaia evolved into a complex system, and the word could refer to the whole system or to an individual court within it. A magistrate with the appropriate jurisdiction would preside over the court and announce the verdict of the jury. th • In the 5 century, the Athenians selected a volunteer pool of 6000 jurors. Each juror (dikastes) would take the following oath at the beginning of the year: I will vote in accordance with the laws and decrees of the people of Athens and of the council of five hundred, and on matters where there are no laws, I will vote in accordance with the most just opinion. • Jurors were citizen men over 30 years old, and in the 450s BCE Pericles instituted a payment of two obols per day (three obols after 425 BCE) for jury service. This was less than a day of physical labor would earn, and the stereotype was that jurors were men too old for physical labor. • The evidence is not fully clear, but it seems that for most of the Classical Period the standard jury size was 500, but special cases sometimes had different numbers of jurors, and there is a report of one case (a graphe paranomon against Speusippos by Leogoras in 415 BCE) that used the full 6000. • As the system of courts developed, the magistrates presided over courts with specialized jurisdictions. The jurisdictions of the Archons were: o Basileus: religious matters and homicide (with the ephetai as jury) o Polemarchos: cases involving non-Athenians o Eponymous archon: family and inheritance cases o Thesmothetai: all cases not under the jurisdiction of the others • In addition, other officials had other jurisdictions: o The Eleven: in charge of prisons and executions, but could also try cases of major theft themselves o Agoranomoi: cases involving disputes in the Agora o Sitophylakes: cases involving grain o Epimeletai tou Emporiou: cases involving grain in the port (aka the Peiraeus) o Eisagogeis: cases involving loans and banking o The Forty: the tribe judges conducted most of the preliminary hearings for private cases • Over time, the population of Athens grew further and the city also kept closer ties with its allies in the Delian League. This necessitated the creation of various boards of minor officialthto oversee cases, including the nautodikai and xenodikai. These two boards operated from the mid-5 century to the mid-4 century. • In addition to having various types of magistrates with various jurisdictions, the Athenians also developed a judicial calendar that determined in what months certain kinds of cases could be heard. th For example, from the mid-4 century “mercantile cases” (dikai emporikai) could be brought from Boedromion to Mounikhion (roughly September to April). • After the lawgivers Draco and Solon, Kleisthenes reformed the Athenian government in 509 BCE. Under this government, a citizen could propose a new law to the Boule, a council of 500 that determined the business to be considered by the Ekklesia, which was the full assembly of Athenian citizen men. If the Boule agreed to it, the Ekklesia would consider and vote on the new law, which was called a psephisma (plural psephismata). • In 410 BCE, the Athenians decided to inscribe the laws of Solon and Draco’s homicide law on stone. As a part of this project, they discovered some contradictions. Before 403 BCE, the contradictions were resolved by the council (Boule) and assembly (Ekklesia). • In 404 BCE, Athens lost the Peloponnesian War to Sparta and Sparta imposed a governing board of 30 on Athens. These men became known as the Thirty Tyrants and the democratic resistance led by Thrasybulus overthrew them and restored the democracy in 403 BCE. • After the reinscription of the laws and the reestablishment of the democracy in 403 BCE, the formal laws inscribed on stone were officially called nomoi (singular nomos) to distinguish them from psephismata, which is usually translated as “decrees.” • As a part of the restoration of the democracy, the Athenians decided that no law was valid unless it had been inscribed on stone during the reinscription of 410-403 BCE and that no prosecution could be brought for actions taken before the restoration of the democracy. • Moreover, the restored democracy established a board of Nomothetai, or legislators. The Nomothetai conducted an annual review of all the laws to resolve contradictions. In addition, the first meeting of the Ekklesia every year citizens could propose new laws and changes to existing laws. If the assembly voted to change or add a law, the Nomothetai would review the change and if they approved it, would inscribe it and announce it. th • In the late 5 century, around the same time as the reinscription of the laws, Athens also introduced a procedure known as graphe paranomon (misspelled in VerSteeg as “graphe paranomen”). This was a charge against someone proposing a law or decree that was contrary to already established laws. • The historical root of Greek law, as we saw in the Illiad was arbitration of a dispute between two people. In Classical Athens, the simplest and fastest way to resolve a dispute legally was through arbitration. Although any citizen could serve as a private arbitrator, the state also required male citizens over the age of 59 to serve as public arbitrators. • In the Classical Period, if two Athenians had a private legal dispute, the plaintiff would first approach the four judges of his tribe. If the amount in dispute was more than ten drachmas, the judges would refer the case to a public arbitrator. If the two parties were satisfied by the arbitrator’s decisio
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