Antiquity is said to be a nurse of modern western civilization. This concerns virtually all the material and spiritual aspects, including philosophy, politics, culture and law. As regards the latter, law of ancient Greece represents us the first example of attempt to approach to law impartially on the basis of written legal regulations and with the court as judicial instance. This paper attempts to examine the basic issues of ancient Greek law, and in particular criminal law and punishment. The study is made in the chronological order to trace the development of legal tradition, and will focus mainly on the classical period of Athens.
Dark ages in the history of Greece lasted from 1200 to 900 BC. Ancient Greeks at the time had no official laws or punishments and the principle of talion dominated in law. Murders were settled by members of the victim’s family, who had a right to kill the murderer, which often resulted in endless blood feuds, similar to later Italian vendettas. It was not until the middle of the seventh century BC that the Greeks first began to establish official laws. Around 620 BC a law giver with dictatorial powers, named Draco, the lawgiver, wrote the first known written law of Ancient Greece.
His laws became known for their cruelty as “draconian” and indeed, death was punishment for the majority of crime, including even the most pity theft. In contrast, this law established exile as the penalty for homicide and was the only one of Draco’s laws that Solon later kept in force. However, even despite of severe punishments, Draconian laws were the first written legal code, enforced not by each and every free person, but by powers of central authority.
It was a period of true flash of ancient Greek legislation, when the law became orderly and divided into branches with separation of material and procedural laws. And this era has been launched by the Solon reforms in early VI century BC.
Lawgiving was no longer a privilege of rulers or kings, but became a function of appointed officials whose sole duty was to write laws. Most of the lawgivers were middle class members of the aristocracy and many were arkhons before becoming a lawgiver. The officials in the government wanted to make sure that law givers would not take sides or be a part of just one group, otherwise laws might be unfair. Because of this, lawgivers were not a part of normal government, and they were considered political outsiders. When he was appointed lawgiver after Draco in about 594 BC, Solon drafted a number of new laws especially in the categories of tort and family laws, throwing out all of the old laws except for the homicide law.
A tort is s sort of breach rights, which occurs when someone does harm to person or his property. Under Solon, these laws had specific penalties for specific crimes. Most crimes were punished by monetary (payment) penalties. For example, the fine for rape was 100 drachmas, and the penalty for theft depended on the amount stolen. Other offenses and penalties were things like the offense of a dog bite, the penalty for which was to surrender the dog wearing a three-cubit-long wooden collar. Solon also paid attention to laws which served as guidelines for the spacing and placement of houses, walls, ditches, wells, beehives, and certain types of trees.
A second category of Solon’s laws was family law, which regulated the behavior of men and women. He composed laws on allowances in marriage and adoption, as well as laws concerning inheritances and supporting roles of parents. Penalties for these laws were not established, but they were enforced by the head of the particular family. Linked to family laws were laws concerning women, whose role in Greek law was extremely small. They had to stay under constant supervision by their kyrios, or “official guardians”, being most often fathers or husbands, and sometimes children or brothers. Such supervision limited the role of women to rare court appearances, where she was either presenting evidence in a homicide case, or was being displayed along with her family to try to evoke pity from the jury.
Following the family laws, Solon reformed public laws, aimed to dictate how public services were to be provided and how public functions should be conducted. Solon contributed these laws by creating regulations that required people, who lived at a certain distance from public wells to dig their own, laws that forbade the export of agricultural goods except olive oil, laws that restricted the amount of land a man could own, laws that allowed venders to charge any kind of interest rate they wanted to, and even laws that prohibited dealing in perfume.
Solon’s revolutionary innovation was the development of procedural laws, which were guidelines that told judges how to use other laws. These laws told in step-by-step detail how law should be enforced. Procedural laws even included such minute details as how many witnesses must be called in each particular case, who could serve as witness and so forth.
In total, Greek court system was driven by non-professionals. Court employees were almost never paid, and most claims were tried in the same day, private cases even more quickly. There were neither official judges, nor lawyers. A normal case consisted of two “litigants,” one from each side, who respectively argued in prosecution and defense. The case has been decided by a group of jurors, acting almost in the same way as later juries of the West, stating that a person was either a guilty or not guilty, after which another vote by the jury would decide the punishment.
Greeks knew a sort of supreme courts – the Areiopagos, which initially tried cases of homicide, but later began to examine other cases as well. It was made up of former arkhons, or magistrates. Arkhons conducted a preliminary hearing, but had no power over the court or its proceedings. Among them was a board of eleven members called the Eleven. The Eleven was in charge of prisoners and executions, entitled to arrest any criminal who had been denounced to them, and could even execute the criminal if he was ‘ep autophoro’ – caught in the act. After Solon around the fifth century BC, the Areiopagos was split into four types of courts, each trying a different type of homicide case now dealing mostly with religious and political cases.
The four other new courts were the Prutaneion, which tried cases of death caused by an animal or inanimate object, the Palladion, which dealt with cases of involuntary homicide and the killing of non citizens, the Delphinion, which tried cases of justifiable homicide, and the Phreatto, which tried those who, while in banishment for involuntary homicide, were charged with murder or intent to harm. These courts were ruled by a group of about fifty-one members, called the ephetai. These members were selected from the Areiopagos and remained in charge of the courts until about 403 or 402 BC, when they were replaced by dikastai, democratically selected jurors.
The system of punishments, which could be amerced by these courts consisted of material and personal punishments. The basic punishment was monetary payment. Since Greeks believed, that the foundation for the punishment was “anger” of a person, such person had to receive compensation for the injury. A polis was also sometimes entitled to receive such a payment from the convict, but in such case the polis acted as an injured party same as it usually happened in other cases. In some way, money replaced talion.
More severe punishments such as exile or capital punishment could be used for crimes, which touched the society as a whole, and this did include homicide as well as disrespect towards state or official religion. Greeks believed, that dangerous freethinking insulted each and every of them, and so many of the philosophers, who later formed the pride of Greece, had to pass through criminal procedure and punishment. Socrates, who has been convicted to death by poisoning, was the most famous of them.
The decline of classical Greece started in early IV century BC after wasteful civil strives and rise of Macedonia. Greeks now strived to conserve that, what they already possessed, and this concerned the legal system as well as all other fields of their activity. Certain changes did occur in the court system with the emergence of Dikastic Courts, with universal jurisdiction to hear every kind of case. They had power to decide both facts and law, and to pass sentence on the party/parties involved.
For normal cases the dikastai was made up of about 500 members, and for private cases either 200 or 400, depending on the sum involved. Fulfilling the requirements of the dikastai did not require the individual to then be available to try cases every day. Each panel of dikastai was simply made up of those legitimate dikastai members that showed up that day. Those that joined the dikastai for that day would oversee a typical case consisting of a dispute between two litigants. The verdict in the case was a vote for one or the other. Verdicts in Athenian courts were not subject to appeal, and sometimes the dikastai would vote after the trial to find a penalty as well.
Ancient Greeks managed to develop an own original system of laws and punishment, which differed dramatically from the earlier samples. Among their inventions one can name a rejection of talion principles, establishing the grounds for independent court system and division of law into separate branches, as well as development of procedural regulations. However, there was little difference between laws and social rules, and laws were rather means to set such rules, so ancient Athens can be called a proto legal society, but not the legal one.
Moving from unregulated traditional type of law and judiciary the Greeks passed through a stage of highly advanced legislation and than back to simplification of legal procedure. Nevertheless, it’s experience in the sphere of judiciary influenced Rome, and via Rome our own ideas about law and it’s designation.
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