The Essentials of Greek and Roman Law - Part I

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

THE ESSENTIALS OF GREEK AND ROMAN LAW: CHAPTERS 1, 2, 7 & 8 Chapter 1: Background and Beginnings of Athenian Law 1.01: Introduction • Ancient Greeks had a profound effect on legal progress and evolution, but in an indirect manner 1.02: The Earliest Greek Law • Earliest evidence for law in ancient Greece comes from poetry of Homer and Hesiod • Homer’s Iliad and Odyssey show that individuals usually resolved conflict by fighting and seek vengeance as a means to redress wrongs • This pattern of violent self-help was formative in early Greek law • No historical evidence that early Greek law was founded on religious rules or divine commandment • Dikē – used to refer to law, judgment, or more generally, justice • In Homer, we see evidence that archaic Greek society was beginning to explore an orderly means of dispute resolution • On several occasions, a king acts as arbiter (a person who settles a dispute or has authority in a matter) o Likely older and therefore have considerable experience o As a rule, kings are thought to have received divine inspiration o Kings also hold authority by consent of the aristocracy whom they rule and have the power to enforce their judgments • Hesiod’s poetry makes a strong plea for justice – argues that “without an effective legal process, the social order will disintegrate” • Both Homer’s Iliad and Odyssey depict instances where groups of elders – rather than an individual king – make judicial decisions in public o Public opinion influenced decision of judges • In both Homer and Hesiod, using procedure for dispute resolution was voluntary o In addition, procedure took place in a public forum, involved a judge or group of judges who tried to compromise a settlement acceptable to both parties and often involved the swearing of oaths o It is not until later that dispute resolution evolved into a mandatory process 1.03: The First “Lawgivers” and Written Laws A. Introduction th • First written laws began to appear in the Greek world in the mid-7 century BC • Zaleucus is the Greek who first wrote laws in 662 BC for a Greek colony in southern Italy o Was supposedly a shepherd who learned his laws (nomoi) from the goddess, Athena o Known for simplifying contracts, creating several procedural laws and for providing stiff penalties for anyone who tried to change his laws • City of Dreros on the island of Crete in the 7 century had also written laws, and as the 6 century dawned, many other large Greek cities had begun to embrace written laws as well • Gortyn Code o From southern Crete o Represents early attempt to codify ancient Greek law o Was inscribed in twelve large columns that comprise part of a wall, over 500 lines of text dealing with various legal subjects such as marriage and family, inheritance, debtors and procedure • Sparta and Athens – two city states that came to dominate the Greek mainland during the Classical Period of the 5 century BC, had different experiences at the start of written laws o Sparta – tradition maintained that Lycourgos was the lawgiver who prohibited written laws o Athens – two famous lawgivers, Draco and Solon, initiated a strong tradition of written law B. Draco • Promoted the first written laws in Athens in 621 BC, very important and influential • Homicide law contained both substantive and procedural elements – “establishes exile as the penalty for homicide and then deals largely with procedural matters: the trial, obtaining of pardon, and protection of the killer from the threat of retaliation by self-help.” • Draco recognized the procedures called apagogē and endeixis, which permitted the arrest of certain criminals as a substitute for unrestrained self-help • Draco’s laws helped to achieve two primary social objectives: 1. To curb violent conduct, primarily revenge 2. To establish a judicial procedure that was mandatory rather than voluntary C. Solon • In 594 BC, Solon abolished most of Draco’s laws but not those relating to homicide • Solon’s laws were inscribed on wooden axones • Laws were extensive, covering many different topics of law; can be categorized as 1. 2. Procedural 5. Economic/Commercial 3. Private 6. Religious 4. Political • • Greatest contribution to Athenian law appears to have been in procedural matters • Was responsible for inventing several important institutions of Athenian legal procedure: 1. Public cause of action that later came to be called graphē – permitting a third person to bring suit on behalf of another in certain circumstances 2. Procedure known as dikē exoules – permitting a creditor to sue on a rendered judgment (or verdict) that forced the defendant to pay a double penalty 3. Eisangelia – providing impeachment for tyranny 4. Ephesis – permitting a right of appeal to the popular courts • Responsible for many family laws relating to matters such as adoption, marriage, dowries, inheritance, and behavior of women • Laws that regulated political activity concerned affairs such as citizenship, qualification for political office, taxes and public meals. • His laws also controlled many components of economic activity in Athens – dealt with mortgages, surety, debt slavery, interest rates, and agricultural exports D. The Impact of Written Laws • Promoted equality in law • Increased the use of the judicial system because it made legal procedure mandatory • Diminished power of individual magistrates, by providing innovations such as term limits and a right of appeal • Increased the authority of the polis over its citizens and all who lived there 1.04: The Evolving Vocabulary of “Law” • Athenians did not formulate precise legal definitions th • In the 4 century BC, jurors swore an oath at the beginning of every year (not before each individual trial) • Greek word used for “laws” in the juror’s oath was nomos – means custom, way of life o Term of a norm of action recognized by a society, what is agreed to be the right thing to do th • By the early 4 century BC, the word nomos was adopted in Athens to mean statute or written law • Early lawgivers, Draco in particular, used the word thesmos for their laws o Thesmos – “that which is laid down, law, ordinance” • Some argue that shift in terminology from thesmos to nomos illustrates a shift to a more democratic definition of law 1.05: The “Reinscription” of Laws • In about 410 BC, a special commission called the Anagrapheis was appointed to inscribe Solon’s laws on stone, and shortly after, took the task to inscribe Draco’s homicide law on stone as well • After 404 BC, the Nomothetai (“law givers”), along with the Boulē (“council”) established a new beginning of legal orders in Athens • Ionic alphabet was used for all legal inscriptions and Athenians established a central records office for keeping copies of laws • The Nomothetai had to review and vote on every proposed change to a law that the citizen assembly, the Ekklēsia, handed down • Any new law had to be proposed in writing and read aloud at three meetings of the Ekklēsia th • As the 4 century progressed, both restriction that laws cause only be proposed at certain times and requirement that they had to be read aloud three times fell into disuse 1.06: Justice and Jurisprudence – The Role of Law • Sophocles’ play Antigone – Antigone challenges King Creon by burying her brother against Creon’s laws, arguing that unwritten laws of god and heaven take precedence over mortal laws o Her sympathetic position illustrates an Athenian ideal – that there existed certain natural laws that superseded the positive legislation of humans (man-made laws) • Plato’s Republic – metaphor of the shadows in the cave; people in the cave perceive only one aspect of truth – like a ruler who enacts statutes – whereas the world outside the cave represents complete truth – like Antigone’s universal, higher law o Plato also proposes that law’s purpose is to benefit all people in a society, not just any one class o According to Plato, law either persuades or compels citizens to unite, and it helps them to share the benefits that each individual is able to give the community • In the Laws, Plato’s last dialogue, Plato emphasizes two principles: 1. Laws must apply equally to all 2. Voluntary acceptance of citizens to the rule of law is what gives it its force • In Nichomacean Ethics, Aristotle takes the position that an unjust man is one who either breaks the law or one who appropriates o Postulates a distinction between natural law (that retains its validity in all times and places) as opposed to man-made laws (that are merely conventions adopted by communities with individual differences) o Also explains that there were two types of justice: 1. Distributive justice – relates to equality, operates to reward individuals for the benefits that they confer upon society (in simple terms, those who are equals receive equal rewards while those who are non-equals receive unequal shares) 2. Corrective justice – relates to lawfulness, judges exercise corrective justice when they punish criminals, award damages, or impose injunctions to settle disputes Chapter 2: Legal Procedure, Institutions, and Organizations 2.01: Private and Public Arbitration; Dēme Judges • Athenians could submit a dispute to independent arbitration, could be legally binding • In order to be binding, the parties had to agree in advance: 1. Who would serve as arbitrator(s) 2. What was the content of the question for the arbitrator(s) to resolve • At age 59, all male citizens were required to perform the civic duty of serving as public arbitrators o A plaintiff was responsible for paying the arbitrator’s fee of one drachma o Arbitrators heard cases in public as litigants argued their sides and presented evidence o Under Athenian law, litigants could not produce evidence later at trial unless he had produced it first at the arbitration th • By the middle of the 5 century BC, there were 30 dēme judges who rotated through Attica o Increased to 40 in about 400 BC (each of four ten tribes chose four judges) • A plaintiff first took his complaint to the four judges from his own tribe and if the amount in dispute was ten drachmas or less, they could decide the matter themselves. If not, the tribe judges were required to refer the case to a public arbitrator (after 399 BC) 2.02: The Vocabulary of Athenian Legal Procedure • • Dikē – law case or • Dikē idia – private case • Dikē demosia – public lawsuit case • • However, dikē evolved to mean basically a private action and the most common procedure for bringing a public action came to be called a graphē • Graphē – procedure by which a volunteer could instigate a suit on behalf of a third party or regarding the matters that affected the community at large (introduced by Solon) • A great deal of Athenian litigation is a result of the upper classes using the court system as a tool that was integral in advancing their personal enmities and feuds • Summary procedures o Apagogē – volunteer prosecutor arrests the defendant first and then brings him to the competent official o Ephegesis – volunteer prosecutor leads the magistrate to the defendant for arrest o Endeixis – volunteer prosecutor first explains the charge to the magistrate and is then authorized to make the arrest o Apographē – volunteer prosecutor lists property wrongfully held by the defendant, property that rightfully belongs to the State o Eisangelia – first the volunteer prosecutor denounces the defendant to the Ekklēsia or Boulē or to the Archon o Probolē – preliminary hearing at the Ekklēsia regarding official misconduct o Dokimasia – hearing where a candidate might be disqualified from citizenship, public office or speaking in the assembly (Ekklēsia) o Euthynai – review of performance in public office • Most often, private cases were simply called dikē – was used to refer to a case concerning matters that did not relate to the community as a whole but rather only to an individual o In this case, only the individual himself who actually had been wronged could act as the plaintiff/prosecutor o Cases involving homicide were sui generis, since the victim was unable to prosecute o Homicide was still considered a dikē (dikē phonou), and the term graphē was not used in homicide cases of this type • In addition, some cases could be brought by public prosecutors called Synēgroi (“supporting speakers”, ten citizens selected by lot who were paid one drachma per day) o As a rule, only brought actions against men who were acting in an official capacity 2.03: Litigation Procedure • Legal claims could only be filed on particular days, so a would-be plaintiff/prosecutor had to first consult the judicial calendar to make sure that he was filing his suit during the right time • A plaintiff’s first formal step was to issue a summon (prosklesis) to the defendant, in the presence of a witness – this alerted the defendant to three crucial facts: 1. Specific date on which the defendant was to appear 2. Magistrate(s) before whom the defendant was to appear 3. Alleged wrong for which the defendant was to appear • On established day, plaintiff filed his claim in writing and paid a filing fee (prytaneia) of 3 or 30 drachmas depending on the amount in dispute • Magistrate who heard initial complaint (on the day when it was originally filed), also then scheduled another formal hearing, a pre-trial conference (anakrisis) o At the anakrisis, the magistrate read the complaint aloud and asked the defendant to admit or deny the allegations o Athenians used this pre-trial conference to delineate and clarify the triable issues o At the conclusion of the anakrisis, magistrate assigned a trial date • At the trial’s beginning, a court clerk announced case and recited complaint for all to hear o If one of the parties was absent with legitimate excuse, a friend could appear on his behalf; the jury then voted either:  To postpone the trial due to the party’s excused absence  To grant the party in attendance a default judgment • Athenians managed to finish almost all their trials in one day, or very often, less than a full day • After clerk’s reading, plaintiff spoke first, followed then by the defendant o Athenian law restricted time allowed for speeches; court personnel timed them with a water clock (klepsydra) o In private cases (i.e., those brought by dikē), plaintiff and defendant each made second speech as well; but in public cases (i.e., those brought by graphē), both were limited to one per speaker • Each litigant represented himself and pled his own case on his own behalf o Routinely hired speech writers, called logographoi, to construct their written arguments • Jury voted as soon as the litigants concluded their speeches o Unlike modern American trial procedure, the presiding Athenian magistrate did not provide the jury with a summation nor did he impart jury instructions to advise the jury how they should apply legal rules to the facts of the casth o Throughout both the 4 and 5 centuries, jurors recorded their votes by using small tokens that they dropped into urns – one for prosecutor and one for defendant • If plaintiff had prevailed, the jury’s last duty was to assess defendant’s penalty or damages owed to the plaintiff 2.04: Pleading and Forms of Action A. Diamartyria • Litigant could assert his rights simply by having a witness affirm decisive facts before the magistrate – this procedure was called diamartyria B. Paragraphē • In about 400 BC, Athenians began to realize that not all challenges to jurisdiction could be resolved simply by relying on someone’s bare assertion of fact (diamartyria) • Paragraphē became the most common way for a defendant to mount a procedural challenge to a plaintiff’s case in the 4 century BC • Paragraphē – prosecution in opposition, counter-prosecution o A technical, legal mechanism employed by defendants in an effort to short-circuit a plaintiff’s case • Procedure was essentially a separate trial in which the original prosecutor was himself prosecuted for bringing a prosecution in a way forbidden by law • Result of the paragraphē was whether the original case should proceed or not • Was used to assert the same as the following modern procedural challenges: 1. Res judicata – assertion that another court has already adjudicated the same issue 2. Statute of limitations – the period of time within which a claim of the nature at issue should have been brought has already passed 3. Lack of subject matter jurisdiction – the court is not authorized to adjudicate claims of the nature at issue 4. Statute of frauds – certain types of contracts must be in writing in order to be considered valid • Paragraphē was not without financial risk – unsuccessful party had to pay one-sixth of the amount in dispute 2.05: Organization and Personnel – Judges, Courts and Calendars • By the Classical period, Athens was ruled by nine archons • Archon Eponymous controlled property and family matters • Archon Basileus was responsible for laws regarding religion, homicide and acts of deliberate wounding • Archon Polemarchus was responsible for laws dealing with non-Athenians • In addition, there were six Thesmothetai – in charge of many other types of cases • Board of Generals, the Strategoi, had jurisdiction in military affairs th th • In 7 and 6 centuries BC, as written laws and juries became commonplace throughout the Greek world, subjective power of each magistrate decreased • In Athens, in the 7 century BC, the aristrocratic council called the Areopagus held virtually unlimited power; particularly with respect to serious offences such as international homicide, wounding, arson, destruction of sacred olive trees and tyranny • During 5 century BC, Athenians began formulating a judicial calendar – assigned certain types of cases in this manner, hoped to make attending trials more convenient for those who were from the member states of their Delian League (association comprised of Athens and numerous island states) • Decree from 445 BC mentions for the first time a group of magistrates called nautodikai (“judges of sailors”) – handled cases involving Athenians who either lived overseas or sailed as mariners/merchants • During 5 century, Athens formed a board called the xenodikai (“judges of foreigners”) • Around 350 BC, Athenians abolished both nautodikai and xenodikai – the thesmothetai maintained jurisdiction to hear cases involving both • By late 4 century, Athenian court system was divided into distinct jurisdictional classifications dependent upon either the subject matter of
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