Popular sovereignty has never been as completely in practice as in ancient Athens. The people didn't merely exercise their power at intervals, they wielded it at all times. The Assembly, which was composed of all citizens, decided and debated all questions of public policy. The legislation, executive, and judicial functions of government were exercised by commissions drawn from the citizen body by lot. This made it so the people actually administrated justice, interpreting and applying the law as they saw fit. A jurist on the bench would never balk the popular will by giving inconvenient precedents. Theoretically, a judicial decision rendered today could be reversed in a similar case tomorrow.
Being jealous of the expert as democrats tend to be, the Athenians even tried to prevent the rise and development of legal professions. The law required all men to plead his own case and permitted any man to prosecute a public offender. The law also allowed one citizen to aid another but forbade the acceptance of fees for service. No attempts were made to prevent litigants from using a speech written by another for him as his own, because such a prohibition would have been quite futile. The attempts to prevent professionalism in the administration of justice were not very successful.
Chronological Table
900-800 B.C. Age of Homer.
800-700 B.C. Rise of Aristocracies.
700-(?) B.C. Hesiod.
650-600 B.C. Age of lawgivers.
621 B.C. Legislation of Draco.
594-593 B.C. Legislation of Solon.
560-510 B.C. Tyranny of the Pisitratidae.
508-507 B.C. Reforms of Cleisthenes.
490-479 B.C. Persian Wars.
478 B.C. Confederacy of Delos: supremacy of Athens.
462-461 B.C. Areopagus deprived of its chief political and judicial powers by Ephialtes.
453-452 B.C. Institution of the thirty rural justices.
451-450 B.C. Further restriction of the powers of the Areopagus by Pericles.
450 B.C. Thirty years' peace.
431-404 B.C. Peloponnesian War; Sparta wrests the supremacy from Athens.
425 B.C. Pay for jurors increased by Cleon.
415 B.C. Mutilation of the Herms and profanation of the Mysteries.
411 B.C. Revolution of the Four Hundred; trial of Antiphon.
410 B.C. Restoration of democracy.
406 B.C. Battle of Arginusae; trial of the generals.
404-403 B.C. The Thirty Tyrants; the Forty and the public arbitrators replace the thirty rural justices.
399 B.C. Trial of Socrates
387-386 B.C. The King's Peace (Peace of Antalcidas)
378-377 B.C. Second Athenian confederacy; written evidence substituted for oral.
371 B.C. Battle of Leuctra; supremacy of Thebes.
362 B.C. Battle of Mantinea; Thebes loses supremacy.
346 B.C. Peace of Philocrates; Philip's commanding position in Greece
recognized.
338 B.C. Battle of Chaeronea; Philip master of Greece.
336 B.C. Assassination of Philip.
334 B.C. Alexander the Great makes war on Persia.
324 B.C. Harpalus, treasurer of Alexander, absconds to Athens.
323 B.C. Death of Alexander; unsuccessful Greek revolt.
322 B.C. Antipater forces a moderate oligarchic constitution on Athens;
Death of Demosthenes.
The Judiciary System in Ancient Athens
The Athenians claim the credit of being the first to have regular processes of law. In the beginning the administration of justice was done by amateurs. People were selected by lot, they presided over trials and preliminary hearings before the popular courts. In the fifth century when rhetoric was being taught, some became so good at persuasion, they held a distinct advantage. These men wrote speeches for clients to use as their own. Good speeches were like advertisements for them.
Oratory Rhetoric
Oratory rhetoric was divided into epideictic, deliberative, and forensic. Deliberative was used to address the people in the general Assembly. Forensic was delivered in the law courts. These are usually called political oratory because they both deal with government. Epideictic or display oratory included all other oratations, such as those delivered during festivals, public rites, or moral discourses.
While under Macedonian rule oratory rhetoric languished and Athens became a provincial town. Other cities succeeded Athens, the "School of Greece" as Pericles had called her. However, oratory eventually degenerated into declamation.
Judiciary
The Areopagus, the popular Assembly, called the Ecclesia, and the regular magistrates or Archons all had well-recognized judicial functions. The steps in which government controlled and developed the administration of justice can be followed easier in Athens than anywhere else, because we have more information from there.
In 900-800 B.C. government was what Aristotle called a "monarchy of the heroic age." There were no laws or tribunals. It was up to the individual to get justice for wrongs against him. Relatives and friends were always expected to help and sometimes the whole community if it concerned them all. When a person of another tribe committed an outrage, a crime, against a citizen, his fellow citizens would help him demand compensation. Because of this, communities started to seek to prevent and punish aggressors from other tribes. This is where the popular assembly came in. Anyone could appeal to it provided it was of public import.
In the case of minor disputes it was left to kings or other prominent persons whose integrity and judgment inspired confidence. This led to the belief that settling disputes was a royal prerogative. This is the justification of Aristotle's statement that "the king [in the Heroic Age] was a general and a judge and had control of religion."
About 700 B.C. the monarchy had been gradually disappearing and the dispensing of justice had by this time become a recognized function of government. Unfortunately the chiefs who were the ruling aristocracy did not have a problem enriching themselves by accepting bribes. This and the needs of more complex social and economic organization aroused the people to demand written laws and rules of procedure to protect against corrupt judges.
"No worse foe than a despot hath a state
Under whom, first, can be no written laws,
But one rules, keeping in his private hands
The Law: so is equality no more.
But when the laws are written then the weak
And wealthy have alike but equal right."
After the aristocratic republic came an oligarchy. Instead of kings there were magistrates elected annually on the basis of wealth and birth. Soon functions of the king were distributed among nine magistrates called "archons." The chief was the Archon. He handled civil suits involving estates and family relations. The Polemarch exercised the military functions of the king and had jurisdiction over aliens. The remaining six were known as the Thesmothetae. They took cognizance of all cases outside the jurisdiction of the other magistrates and recorded judicial decisions. The Areopagus was the governing body of the state and served as a criminal court.
In 621 B.C. Draco gave Athens its first code. The only laws that have survived are those dealing with homicide. So severe were the punishments in his code that some said Draco wrote his laws not in ink but in blood.
In 594 B.C. Solon, the great lawgiver, threw out all of Draco's laws except the ones dealing with homicide, and gave Athens a democratic constitution with a senate and popular assembly. With the expulsion of the tyrants Cleisthenes revised the constitution in a democratic spirit.
The Ecclesia was the sovereign power of the state and composed of all citizens. Associated with it was the Council of Five Hundred, or Boule, which was a representative body chosen annually by lot from citizens of thirty years or older. Fifty were selected from each of the ten tribes into which the citizens were divided. Each of the ten was a committee called the Prytaneis. They presided over the Boule, furnished chairmen for the meetings of the government. Higher offices of the state were filled from the first three of the four classes, into which the citizens were divided on a basis of wealth.
All these bodies and officials shared in the administration of justice. However the supreme judicial authority was vested in the sovereign people. They normally dispensed justice only in the case of serious crimes or offenses not otherwise provided for by law, though they could take action in any case they wished.
Regular proceedings were called eisangeliae or "impeachment". Much like today it was a trial before a political body. A crime could also be brought to attention by presentment. A vote of acquittal ended the matter, a vote of condemnation though without legal effect usually encouraged the prosecutor to bring the charge before a regular court. Basically it was an expression of public opinion.
Solon also started the first court of appeals. Magistrates could not be allowed to have final judgment where the people claimed the right to exercise all functions of government. the right to grant appeal went to the members of the Heliaea, a judicial assembly. Only those thirty years or older could be members. And the members were not officials of the state over the people, they were the people.
Significant Changes
Many changes happened between Cleisthenes and the age of Demosthenes. Some were suggested by experience, others because of the progress of democracy. Some to relieve the congestion of the courts.
Some of the more significant changes were: Pisistratus set up a tyranny which endured for fifty years, he made no drastic changes and only filled offices with his friends and family. He did however appoint judges to go on circuit throughout the Attic townships, they acted primarily as arbitrators. Evidence stated to be presented in the form of affidavits acknowledged by the witnesses in court so appeals could be based on evidence in its original form.Pericles made provision for paying the jurors a small fee. In 425 B.C. Cleon made a substantial increase in that pay. Amnesty, statute of limitations, accord and satisfaction were also started by the ancient Greeks.
Homicide
Homicide in 900-800 B.C. was dealt with by relatives who started blood feuds or put a price on the killer. The community did not intervene until the shedding of blood polluted the soil. the killer had to be purified or banished because he was considered polluted as well. Avoiding blood feuds and maintaining peace was an important influence in bringing about state intervention. Special courts were used to try homicide cases. The right to prosecute an alleged murderer was left to near relatives of the victim; the state did not bring cases itself.
The Areopagus is reputed to be the most ancient homicide court in Greece. In the beginning it tried all cases of homicide, but after the differentiation of voluntary, involuntary, and justifiable homicide four additional courts were instituted. Voluntary came under the jurisdiction of the Areopagus under the King Archon who actively participated in the trial. The Palladium tried cases of involuntary homicide and of killing non-citizens, i.e., slaves, resident aliens, and transient foreigners. Justifiable homicide was tried by the court of Delphinium. And the court at Preatto tried those who, while in banishment for involuntary homicide, were charged with murder or wounding with intent. All defendants were tried from a boat before the court seated on the shore to prevent pollution of the soil. The judges were composed of fifty-one special judges recruited from the membership of the Areopagus.
During the fifth century the Ephetae were replaced by regular juryman. this occurred because the Areopagus was deprived of political and judicial powers. The court of the Prytaneum, consisting of the tribal kings under the King Anchon, tried unknown slayers and animals and inanimate objects that had caused the death of a human being. Condemned objects were cast beyond the borders of Attica. A similar practice is found in Anglo-Saxon law, where condemned objects were called "deodands".
As you can see we have a judicial system not unlike the ancient Athenians. They were the first to do many things in the ways of justice and government. Many of today's governments have copied what they did so long ago. Whether or not it is done better now or then is left to argument.
Perjury in Ancient Greece
Just like today, perjury, or lying under oath, was a problem in ancient Greece. The Greeks used verbal oaths to make deals or agreements. These oaths were unbreakable, and if you did break them you and your children would face punishment from the gods in the form of a curse. But what if an oath-taker swears to do a service, but is prevented from keeping his sworn promise by external circumstances, which are not of his causing, then has he committed perjury? And if a sworn man swears to the truth of a statement, not knowing it to be false, does he commit perjury"?;
In the Iliad Hector swears to give Achilles' horses to Dolon. But according to Homer the oath he swore was false, even though Dolon died, which prevented the fulfillment of the oath, and his death was entirely independent of Hector's will. Homer is not considering the intention of the oath-taker. This implies that a perjurer is a person who swears an objectively false proposition.
Hesoid on the other hand did take the oath-taker in consideration: "god Oath...most grieves men on earth when they willfully swear false oaths." Herodutus said that "even the will to commit perjury, without the deed, would bring down punishment." Aristotle was the first to differentiate between the perjury of a promissory oath, breaking an oath, and the perjury of an assertory oath, intentionally swearing a false oath.
In the third century B.C. Cleanthus decided that an oath taker swears rightly or falsely at the time he swears. If he intends to do the things he swears to do in the oath he swears rightly. But if he has no intention of performing them he swears falsely. Chrysippus, on the other hand, said that an assertory oath is true or false, but a promissory oath is either good or bad. According to Chrysippus a man is not a perjurer at the time he swears to an oath if he swears falsely, but becomes one when it is time to fulfill the terms of the oath.
Aristotle, Cleanthus, and Chrysippus agree that the intention of an oath-taker is an essential factor of perjury. And they disagree as to whether the intention can be applied to the future (promissory oath) or the past and present (assertory oath).
Ethical-Religious Aspect of Perjury
The curse of the oath is connected to its religious aspect. According to Homer a "perjurer is a sinner in the eyes of gods, and the Furies" And impossibilities that prevent the fulfillment of an oath do not relieve one from the obligations of the oath. Hesoid said that the perjurer makes an oath a punishment, and Herodotus says the perjurer is stricken by the curse.
This made many believe the curse was magic and the only way to break the spell was to fulfill the oath. This magic was so strong that not even the gods could escape the curse in case of perjury. According to Herodotus, "Delphian Apollo assured that the curse would strike, if not the perjurer himself, then certainly his offspring." And because some oaths were sworn under stress of necessity and then broken, the gods learned how to separate forced oaths from voluntary oaths and did not require their observance.
The Legal Aspect of Perjury
Perjury as false testimony was a legal offense and subject to legal action. In Athens legislation on perjury has been dated fifth century. Because depositions were oral cases of perjury were rare and difficult to prove. In the beginning of the fourth century when depositions became written, perjury cases were more frequent, since they were easier to prove.
Prosecution of false testimony was encouraged and slight penalties were given to the prosecutor in cases of failure. A small fee was given to the party that brought fourth the notice of perjury if they failed to follow up with formal indictment.
Perjury before arbitrators was not punishable. "For it is not the same, men of Athens, to give false evidence before you and before the arbitrator; great indignation and penalty await those who gave false testimony before you; but before the arbitrator they give what evidence they wish, without risk and without shame." Many people wanted to solve problems through arbitrators because there was no risk to lying.
Those convicted usually paid a fine to the wronged party or to the prosecutor and to the treasury. All penalties were decided upon by the judges. Also those convicted faced contempt of court charges, with the penalty of loss of citizenship rights. However, if the prosecutor of the case is unsuccessful, he had to pay the alleged perjurer an amount equal to one third of the litigation sum. Over time there was development in the legal punishment for perjury. Gradual progression of simple compensation to additional punitive fines to the state.