Osborne, R. 1985 - Law in Action in Classical Athens
Athenian law scholarship focuses on laws and technical legal processes.
This paper examines how the legal system worked in practice.
Variety of Athenian Legal Actions
Athenians classified cases by subject matter (private/public) and procedure.
Dikai idiai: Private cases
Dikai dimosiai: Public cases
Procedural division: cases anyone could bring (graphai) vs. those only an interested party could bring (dikai in the narrow sense).
These divisions are distinct and don't correspond to modern civil/criminal law.
The rationale for graphai vs. dikai is linked to Solon's invention of the volunteer prosecutor.
Arguments for the Procedural Distinction
Ath. Pol. (Aristotle):
Highlights three features of Solon's arrangements favoring common people:
Prohibition on loaning money against personal security.
Securing punishment on behalf of the injured party.
Appeal to the court.
Plutarch (Life of Solon):
Gave everyone the opportunity to exact justice on behalf of a wronged man.
Citizens should feel for and sympathize with each other as a single body.
The best city is where those not wronged prosecute wrongdoers as much as the injured parties do.
Isokrates (Antidosis):
Ancestors made a single court responsible for the judgment of even the greatest offenses.
Provided graphai against sykophants (malicious prosecutors).
Analysis of the Arguments
Aristotle takes a political view, noting crimes preventing victim redress require third-party prosecution.
Justified in cases of wrongful detention and crimes against the gods.
Plutarch claims graphai promote social cohesion.
Isokrates argues for varied procedures to ensure justice for all citizens, regardless of their abilities.
Prosecution for Reward: Apographe
Rewards were offered in procedures dealing with foreigners living in Athens and those given in marriage by Athenians.
Procedure of Apographe: denunciation of property.
Types of Apographe
Denunciation following conviction (graphi xenias).
Denunciation to recover debt to the treasury.
Denunciation of those illegally holding public property.
Rewards for Denunciation
Initially thought that the denunciator received one third of the confiscated property.
It's actually that the reward is one third of the proceeds of the sale of the confiscated property.
Priorities in Payment
The state's debt is met from sale of property and the denunciator is only rewarded if anything is left over.
Matching Men and Actions
Variety of legal actions considered a positive thing.
Open texture of the law was not seen as undesirable.
Openness and variety of legal procedures are positive qualities.
Litigants chose processes based on their circumstances.
Prosecution for Reward
Procedures offered rewards to prosecutors, e.g., apographe (denunciation of property).
Rewards intended to encourage prosecution in cases where victims couldn't act.
Rewards could lead to malicious prosecution.
Apographe types included: denunciation of property of those convicted of certain offenses; denunciation of property to recover debts owed to the state; denunciation of illegally held public property.
Rewards to denunciators paid after state debts were settled.
Graphai and Dikai
Often alternatives for offenses; choice depended on prosecutor's circumstances, goals.
Graphai could be reflections of inequality, instruments to create/promote inequality.
Opening prosecution to anyone created conspicuous action, socially conservative.
Law and Social Conflict
Courts played role in regulating conflict; not always about imposing solutions, but managing social relations.
Constant litigation, repeated appearances by same parties indicate ongoing conflicts not fully resolved.
Dike: Only the injured party could bring it.
Graphai: Any person could bring it.
DIRECT QUOTES
The Variety of Athenian Legal Actions
scholars have not always paid enough critical attention to the gap between ancient legal theory and ancient legal practice
In other cases, such as impiety or temple robbery, voluntary prosecution was equally necessary because the injured party was not human. All such prosecutions can be seen as protecting those who could not defend themselves, and to that extent the claim that the effect of graphai was democratic seems justified; but it is not simply this sort of defence which the graphe procedure makes possible
Although the third-party prosecutor is often praised in classical literature, he has power for wanton and blackmailing prosecution as well as for altruistic action.
More important, equal opportunity to prosecute is only an effective means of furthering democracy if accompanied by equal capacity to prosecute, and it is clear that the way in which all prosecutions are in fact embedded in social relations precludes this
iii) Isokrates. Isokrates is contrasting sophists (who include Solon the Lawgiver) with sykophants (against whom all the resources of the law are given) and is arguing from the variety of legal remedies, including graphai, available against the sykophant, to the intentions of the Lawgiver. His argument, that to ensure the fullest prosecution of any particular illegal act it is necessary to make a variety of procedures available, recognises that social factors produce unequal access to procedure
If Isokrates' point is pressed further it becomes clear that, however many different avenues of prosecution are opened up against a given illegal activity, there is no way in which equal access to the courts will result
This point is made in some detail by Demosthenes xxii 25 ff:
Solon, who made these laws, did not give those who wanted to prosecute just one way of exacting justice from the offenders for each offence but many. For he knew, I think, that the inhabitants of the polis could not all be equally clever, or bold, or moderate, and that if he made the laws in such a way as to enable the moderate to exact justice then there would be many bad people about, but if he made it suitable for those who are bold and able to speak then private individuals would not be able to exact justice in the same way. (26)
you’re strong and confident: use apagoge; you risk a thousand drachma fine. You are weaker: use ephegesis to the magistrates; they will then manage the procedure. You are afraid even of that: use a graphe. You have no confidence in yourself and are too poor to risk a 1000 dr. fine: bring a dike before the arbitrator and you will run no risk. Now none of these actions is the same. In the case of impiety, similarly, you can use apagoge, graphe, a dike to the Eumolpidai, a phasis to the Basileus. It is pretty much like that for all the other offences
This remarkable passage has been subject to much debate. Any claim that all the different procedures were available in any case of theft must be exaggerated (we know that apagoge, for example, could only be used where the thief was apprehended 'ep' autophoro', 'in the act'), and it has therefore been argued that the passage is totally worthless.
Demosthenes is certainly concerned with making a rhetorical point about Androtion as a lawgiver, but his claims are not necessarily unfounded. His argument only depends upon a choice existing for the prosecution in some cases of theft, and since it is the variety of procedures that is important for the point about Androtion there is no reason why the gratuitous information about social implications should be forced or false.
Demosthenes' approach can be taken considerably further. Strength, confidence, wealth and the lack of them are relative. A man with sufficient wealth may be confident in some circumstances and fear to bring action in another
hence, the interplay between social status and access to legal remedies becomes evident. This suggests that legal strategies were not only dependent on the nature of the crime but also on the societal standing of the individuals involved.
Demosthenes in fact leaves a whole dimension out of the question. The procedure followed determined the consequences for the defendant as well as for the prosecution.
The man who arraigned a thief by apagoge risked a 1000 dr. fine if he failed to secure one fifth of the dikasts' votes, while the condemned thief might be executed
the man who brought a graph' klopes risked the 1000 dr. fine, while the fate of the thief is less certain-possibly this was an agon timitos with death a possible but not certain penalty
the victim who brought a dike ran no risk at all, while the guilty party had to restore the stolen property, pay a fine of double its value, and possibly be physically constrained for five days and nights (Dem. xxiv 114).
There might therefore be a number of reasons why a man who technically could have used apagoge might choose to settle the matter in a dike
Since most offences for which the law specified procedure by graphe could be redefined to fall within the scope of a law specifying procedure by dike it was frequently possible for an Athenian litigant to choose between processes.
The man who acted by dike had to act himself but ran no risk; the man who wanted action by graphe could prosecute himself or find another who was willing to do so, and whoever undertook the prosecution faced the possibility of a heavy fine if completely unsuccessful.
The variety of actions both constrains a man and frees him to fit his action to his circumstances.
Demosthenes regards the variety of legal actions as a positive feature of Athenian law, but the open texture of the law on which it relies was not seen as unambiguously welcome
In Ath. Pol. 9.2 it is noted that because Solon's laws were not written simply or clearly there were many ambiguities leaving a major role for the courts, and that some thought that this was a deliberate move on Solon's part role 'in order that the people might control judicial decisions'.
This suggestion is criticised here, and in the Rhetoric (I354a 3Iff.) Aristotle stresses that it is important that the lawgiver define as much as possible himself and leave as small a part as possible to the dikastai.
Thus Aristotle is concerned both to deny that Solon can in fact have desired a law of open texture and to prescribe that such a feature is undesirable in any circumstances.
In doing so he sets himself up against a whole school of thought on what law courts should do
Prosecution for Reward: Apographe, Phasis and Cohabiting with a Foreigner
These legal concepts highlight the tensions between private interests and public justice, indicating that prosecutions for personal gain diminish the integrity of the legal system. This notion further complicates the roles of dikastai, as they must navigate between the intent of the law and the motivations of the citizens seeking legal recourse.
The existence of procedures where the prosecutor is actually rewarded for his efforts supports the suggestion that the mere existence of graphai did not make the Athenians altruistically eager to prosecute in cases in which they had no direct personal interest
The mere existence of graphai did not make the Athenians altruistically eager to prosecute in cases in which they had no direct personal interest.
It has often been assumed that offering rewards for prosecution encouraged vexatious and sykophantic litigation, but again it is necessary to examine in detail the known cases of the use of these actions if we are to determine how they were in practice employed
Rewards were offered in the procedures of apographe and phasis, and in the graphai concerned with xenoi/xenai who live with Athenian women/men as their husbands/wives, and with xenai who are given in marriage by Athenians as of Athenian birth.
In each of these graphai the prosecutor receives the third part of the confiscated property of the condemned.
The first of these laws must post-date Perikles' citizenship law of 451/0 BC, and the latter is closely parallel to it.
We do not know how frequently the laws were invoked: the only evidence comes from Apollodoros' and Theomnestos' speeches against Neaira ([Dem.] lix).
That case itself concerns a xene cohabiting with an Athenian and it mentions Phrastor's abandoned prosecution of Stephanos for passing off his daughter by Neaira as Athenian.
Apollodoros and Stephanos did have an old quarrel and Apollodoros may be unduly litigious, but his conduct on other occasions suggests that he has not brought the prosecution simply for the financial reward
The evidence for apographe is richer. In the legal sense apographe is the denunciation of a man's property. Such denunciations occur in various circumstances with different implications for what actually happens
Apographe 1: denunciation may be simply a way of cataloguing and selling off the property of one who has been executed or deprived of civic rights; such cataloguing is sometimes the duty of the demarch.
Apographe 2: denunciation may be a way of raising the sum of a debt owed to the public treasury by listing property sufficient to meet the debt.
Apographe 3: denunciation may be a way of prosecuting a man for holding what is in fact public property
The literary evidence for cases of apographe where demarchs were not involved reveals very strong political overtones to the denunciations.
The one literary case of apographe 1 where we have sufficient evidence concerns the denunciation by the wealthy statesman Kallistratos of Aphidna of the property of Antimakhos, tamias of Timotheos.
Of the four literary cases of apographe 2, one was designed to silence Aristogeiton politically, one follows the condemnation of the general Pamphilos, and the other two belong to a series of court cases in which Apollodoros was involved. Here there is certainly no financial gain for Stephanos in denouncing Apollodoros, for the fine was larger than Apollodoros could pay.
Three literary cases of apographe 3 are also political: one concerns the sons of Eukrates, general and killed by the Thirty: one revolves around the property of Aristophanes, trierarch and diplomat; and one around the money of Ergokles, associate of Thrasyboulos, condemned to death by a court. Only Hypereides iii 34 is devoid of obvious political overtones.
The epigraphic evidence contrasts strongly.
The Attic Stelai and the condemnation of the Thirty are examples of apographe 1, but so is the case of the unknown Theosebes, condemned for hierosylia
the cases of apographe 2 concern the foolhardy surety Meixidemos, the embezzling tribal official Nikodemos, and the naval debtors Sopolis, Stesileides of Siphnos, and Demonikos.
There are no cases of apographe 3. These are clearly much smaller fry, and it is not simply the reticence of inscriptions by comparison with the anecdotal richness of law court speeches that makes them so.
Epigraphic evidence of law court cases is rarely available, and this small archive is invaluable in confirming the extreme partiality of the literary evidence
As such, the inscriptions serve as crucial reminders of the limitations inherent in relying solely on literary sources for understanding the legal practices and societal dynamics of ancient Athens.
From the combined evidence apographontes appear to be of three main types:
(i) those whose duty is to denounce
(ii) those who denounce to follow up an existing political or judicial quarrel
(iii) those who bring an isolated denunciation of the property of someone they know or have some connection with, from a neutral or even friendly concern.
The non-political cases are largely of apographe 2, where we have seen evidence that the denouncer frequently took away no reward at all, and very few of the cases seem to have been brought by sykophants out for financial profit.
Thus apographe is one of three actions in which the prosecution was rewarded, and yet the presence of rewards seem to make little or no difference
Phasis, the third procedure where the prosecutor was rewarded, is not infrequently mentioned, both casually in the literature and in preserved laws, but we are very poorly supplied with actual cases
We have evidence for six possible cases of phasis, all known from literary texts. Two cases are commercial.
It may be that phasis was widely used and abused in small cases which have left no record.
The way in which Aristophanes uses phasis allegations in the Akharnians and Knights suggests that it was not infrequently invoked in commercial contexts and could be felt to be more troublesome than useful.
It is the pettiness of the phaseis in Aristophanes that is notable, however, and this is not evidence that phaseis were a major source of injustice.
The Athenians still thought phasis a suitable procedure to invoke in the fourth century.
Overall the evidence available to us does not justify the supposition that malicious litigation was either occasioned by, or a particular problem in, actions in which the prosecutor was rewarded
Matching Men and Actions
The first section of this paper argued that we should take note of the awareness of Athenian writers of the positive qualities of the open texture of Athenian law and procedure.
The second examined one specific class of actions, actions for reward, and tried to reveal some of the complexity of their legal and social function.
The final parts extend the examination to other circumstances where the prosecution was faced with a choice of procedure, and suggest that the capacity to fit actions to men was a primary quality of Athenian legal procedure
Since it is not clear to us how the type of case affected the penalty exacted from the convicted defendant it is difficult to reconstruct the motives of the prosecutors with certainty
Isokrates xx mentions one further case of aikeia, and one that might touch on a different area of life, for the prosecutor claims to be poor, and we do not know the man he prosecutes, one Lokhites.
Little more can be done with this case, but it seems not improbable that Pittalakos' choice of action by dike had to do with the fact that the men he prosecuted were public figures, and that Theophemos, who had already experienced the length to which his opponent would go, similarly chose not to risk the open trial of strength which a public graphe hybreos would inevitably become.
One further case of violence deserves notice here: Demosthenes' prosecution of Meidias.
Demosthenes and Meidias were old enemies (Dem. xxi 62 f.) and this had already led to a gentle first-round contest, in the form of a prosecution in a dikF kakegorias which Demosthenes had won.
Faced with Meidias' violence towards him when he was chorigos Demosthenes chose the most public form of action of all: he had Meidias condemned before the assembly in the procedure known as probole.
His published speech makes it clear, however, that it was open to him to prosecute Meidias for impiety or for hybris by graphe, as well as in a dike aikeias.
His choice of action was calculated to have the greatest effect on Meidias' standing, and seems to have been sufficient to force Meidias to come to a settlement out of court
Re(dis)tribution
From the very partial data which we can muster it appears that where graphai were used in cases where there was an injured party it was almost always the injured party who prosecuted, while where there was no injured party the action tended to be politically motivated
If graphai were invented to give some means of redress in cases where the injured party was not in a good position to protect himself, this was not the only purpose to which they were put in the classical period.
In the known graphai outsiders show little interest in dealing with breaches in the law, but Athenians do show a lively interest in redressing the balance with those who have breached the law to their own disadvantage
It has become clear that much of the work of the Athenian law courts was at the level of regulating conflict.
Not that the courts impose any final decision: at least eight of the fifteen graphai and twenty of the forty-two dikai which we know to have been brought or threatened (not including pseudomartyria cases) stand in a series of court actions.
In some cases the series of actions is an attempt to try the same crime under a number of different heads; in all cases the repeated appearance of the same parties in the courts bears witness to the way in which the Athenian law courts were a public stage upon which private enmities were played out
There is a broader aspect to this role of the courts, for while it may be true that providing for the regulation of conflict is the 'distinguishing and sole necessary feature of law' modern western society does not, on the whole, control social relations within society as a whole through the courts
That Athenian law courts were also the stage for such a social drama is closely connected with the very features of 'open texture', choice of procedure, and flexibility of action which have been considered here.
This examination of known legal cases has therefore supported the observation made by Demosthenes in the speech against Androtion about the way in which legal actions are embedded in society, and we are now in a position to look again at the distinction between dikai and graphai and to see how that distinction worked in practice
For in practice it is of limited importance that only the injured party could bring a dike and that any Athenian could prosecute a graphe: which type of procedure is used seems far more to be determined by the relative and absolute social positions of prosecutor and defendant.
To bring a graphe when one might bring a dike (which might be settled without coming before dikasts) is to bring oneself to public attention: not only is one choosing to risk a 1000 dr. fine, but one is claiming to champion interests wider than one's own, parading one’s quality of being a citizen
Graphai are open trials of strength, and the offence may be subject to considerable interpretation and redefinition to enable it to be tried by this procedure
The example of the apographi procedure shows that the same procedure could be used to very different ends by different people.
Graphai were similarly flexible, but they could be both reflections of inequality and instruments by which such inequality could be created and promoted.
The 'radical' innovation of opening up prosecution to anyone who wished had the effect of creating a conspicuous action which could be socially conservative