Никола Бенин
Книгата на Адриан Лани се опитва да преосмисли традиционното
разбиране за правния ред в Атина през класическия период. Противно на
идеализираните образи на „правова държава“ или правна рационалност, Лани
показва, че атинската правна система се е основавала на комбинация от формални
процедури, неформални норми и социална инициатива. Централно място в
изследването заема идеята, че правоприлагането в Атина е зависело по-малко от
институционалната принуда, отколкото от символичната, социалната и нормативната
ефективност на самите закони. Авторът предлага интерпретация на атинския съд като
гъвкава институция, в която правните норми служат не само като инструменти за
разрешаване на спорове, но и като механизми за изразяване и оформяне на
гражданската идентичност. Атиняните разглеждали съдебните процеси като форми на
публичен ритуал, в който справедливостта се съчетавала с морална оценка,
социална репутация и политическо участие. Значително внимание е обърнато на
взаимодействието между писаното право и устната аргументация, ролята на
прецедентите и значението на извънправните норми – като например характера,
статуса или миналото поведение на ищеца и ответника.
Introduction
The Puzzle of Athenian Order
This book is motivated by a puzzle. Classical Athens had only a limited
formal coercive apparatus to ensure order or compliance with law. There
was no professional police force or public prosecutor, and nearly every
step in the legal process depended on private initiative. Moreover, Athens
did not have a “rule of law” in the sense that the courts did not enforce
norms expressed in statutes in a predictable and consistent manner. And
yet Athens was a remarkably peaceful and well-ordered society by both
ancient and contemporary standards. Why? This book draws on contemporary legal scholarship that understands “law” as the product of the complex interaction between formal and informal norms and institutions to
explore how order was maintained in Athens.
Before turning to solutions, it may be helpful to examine each piece
of the puzzle. First, what does it mean to say that Athens was a peaceful,
well-ordered society? At the most basic level, Athens enjoyed remarkable
political stability, particularly by comparison to other Greek city-states
and the Roman Republic.1
Aside from two short-lived oligarchic revolutions near the end of the fifth century, both of which were precipitated
by major military defeats, the democracy largely avoided serious civil and
political violence and unrest throughout the classical period.2
1 Ober 2008a:39–48; Fisher 1999:70; D. Cohen 1995:6; Herman 2006:76. 2 External violence, of course, was another matter. Athens’ ability to maintain political stability
and social order is all the more impressive given the relentless stress of frequent military conflict
during our period.
Law and Order in Ancient Athens
2
The level of ordinary crime and violence is harder to assess and impossible to quantify, but our evidence suggests that Athens enjoyed “relatively
low rates of criminality.”3
Literary sources indicate that it was not unusual
to walk alone or at night in both the city and the countryside without
excessive fear of crime.4
Athenians did not ordinarily carry weapons,5
and
the fights and violence that did occur were generally limited to the use
of fists, stones, sticks, and potsherds.6
Despite the existence of banks for
safekeeping, we hear of Athenians keeping significant amounts of money
and valuables in their homes.7
To be sure, there is also evidence of theft,
banditry, drunken brawls, and enmity erupting into violence.8
But the overall picture that emerges is one in which fear of crime and violence did not
disrupt everyday activities.
Athens also exhibited a high level of social order. Most Athenians appear
to have fulfilled their public duties with remarkable regularity. Ordinary
Athenians presented themselves for military service despite a near-constant
state of war. Hundreds of citizens chosen by lot served as unpaid government officials each year. Despite some shirking,9
the wealthy and powerful
contributed enough in taxes and liturgies – for much of our period several
hundred trierarchs were needed each year to outfit the navy10 – to support a highly successful military, economic, and cultural power.11 Athens’
economic success would not have been possible unless Athenians could
normally rely on compliance with the requirements of fair dealing and
other business norms in ordinary commercial transactions.
And here is the paradox: order was maintained despite relatively weak
mechanisms of formal coercion. Indeed, some scholars have gone so far as
to challenge whether Athens should be categorized as a “state” and whether
Athenian officials can be said to have exercised a monopoly of legitimate
3 Fisher 1999:83; 1998:86–92; Ober 2008a:256; Herman 1994; 2006:206–215; cf. Riess 2012:33–49.
4 Pl. Republic 1.327a1–328b8; Andoc. 1.38–39; Dem. 54.7; for discussion, see Fisher 1999:73–74.
5 Thuc. 1.5–8; Ar. Politics1268b40. For discussion, see Fisher 1999:74–75; Herman 2006:206–215.
6 E.g., Lys. 3 and 4; Dem. 53.17; Ar. Birds 493–498; Fisher 1999:74–75; Herman 2006:206–215. 7 E.g., Lys. 12.10; 19.22; Dem. 27.53–57; 29.46–49; Is. 11.43; Herman 2006:208; Hunter 1994:150.
Many rural farms included a stone tower, but these seem most likely to have served primarily
as a means of preventing slave laborers from escaping rather than as a protection of person or
property from theft. For discussion of the evidence for these towers and the various theories
attempting to explain their function, see Morris and Papadopoulos 2005. 8 For examples, see Fisher 1999:59–60; Riess 2012:33–49.
9 On which generally, see Christ 2006. 10 Christ 2006:146–147. 11 On Athens’ success, see Ober 2008a:39–79.
Introduction
3
violence.12 What is most important for our purposes is that with limited
exceptions (which we will discuss in due course), Athens was dependent
on private initiative to enforce the law.13 There was no police force charged
with investigating crimes or arresting wrongdoers.14 In most circumstances,
public offenses went unprosecuted unless a private individual volunteered
to initiate a suit. Even a court judgment could mean little if a victorious
private litigant was unable to force his opponent to pay up. This reliance
on private initiative resulted in spotty enforcement and reduced deterrence.
The deterrent effect of statutes was further limited because Athenian
juries did not enforce clearly defined statutory norms in a consistent and
predictable manner. The question of whether Athens had a “rule of law”15
has been intensely debated by classicists in recent decades. Some scholars,
primarily those of an anthropological bent, contend that courts served
primarily a social, political, or ritual role, and did not attempt to resolve
disputes according to established rules or principles equally and impartially applied.16 At the other extreme, some historians have argued that
Athenian juries did strictly and predictably enforce the law.17 Still others,
myself included, have argued that while Athenian juries sought to reach a
just outcome to the legal dispute before them, in doing so they had the discretion not only to apply the relevant statute, but also to consider, if they
wished, a variety of other legal, equitable, and contextual considerations.18
12 Berent 2000; Osborne 1985b:7; cf. Hansen 2002; Hunter 1994:188.
13 See Chapter 2 for further discussion.
14 Hunter 1994:120–153.
15 While the “rule of law” can have many different meanings, the feature most relevant for
debates about the Athenian legal system is the consistent and predictable application of clear
rules. Most classicists agree that the Athenian system satisfied narrow definitions of “rule
of law” that focus on formal equality before the law or protection from arbitrary exercise of
power by officials. For a sophisticated discussion of the debate, see Forsdyke Forthcoming
a. For a discussion of the rule of law in Athenian sources, see Forsdyke Forthcoming c.
16 D. Cohen (1995:87–88) portrays Athenian litigation as a form of feuding behavior; Osborne
(1985a:52) sees Athenian litigation as status competition; Riess (2012:143–145) views Athenian
litigation as ritual performances that were “always unpredictable” and did not necessarily
“operate rationally.” 17 E. Harris 2013; Meyer-Laurin 1965; Meineke 1971. Others (Hansen 1999:161–177; Ostwald
1986:497–524; Sealey 1987:146–148) have emphasized that the institutional reforms at the end
of the fifth century signaled a shift from the sovereignty of the people to the sovereignty of
law, without specifically arguing that Athenian juries faithfully and predictably applied statutes.
Gowder (2014:10–18) argues that Athens had a rule of law based primarily on a narrow definition of “rule of law” that emphasizes the limits on officials’ use of coercion against citizens.
18 Lanni 2006:2–3, 41–75, 115–148; Christ 1998a:195–196; Scafuro 1997:50–66; Humphreys 1983:248;
Forsdyke Forthcoming a; see also Gagarin 2012:312 (noting that the Athenian concept of law
Law and Order in Ancient Athens
4
For example, litigants regularly argue that jurors should consider excuses or
defenses not expressed in the statute, the relationship and long-term interactions between the parties, the effect a conviction might have on the defendant and his family, and the character of the parties, including unrelated
crimes and a record of military or public service.19 As discussed in detail
in Chapter 2, this ad hoc, discretionary form of jury decision-making,
together with the vagueness of many statutes, made it difficult to predict
ex ante when a jury would find a violation, thereby reducing incentives to
comply with the statute nominally at issue. If crime did not pay in Athens,
it was not because the punishment for breaking a law was sure and certain.
To a modern, a natural place to begin to explain social order and
compliance with norms would be the straightforward mechanism of
law enforcement articulated most clearly by Austin: rules backed by
sanctions.20 But in Athens, the direct deterrent effect of statutes was
reduced by the uncertainty surrounding jury verdicts and the lowered
probability of prosecution and enforcement of judgments caused by the
reliance on private initiative. So it is not surprising that scholars who have
attempted to explain how order was maintained in Athens tend to emphasize informal enforcement mechanisms and internalized norms growing
out of a small, relatively homogenous community.21 In Policing Athens,
22 for
example, Virginia Hunter focuses on informal social sanctions such as
gossip and private dispute-resolution mechanisms such as self-help and
private arbitration. Central to Gabriel Herman’s explanation for Athens’
success in Morality and Behaviour in Democratic Athens23 is an internalized code
of behavior requiring self-restraint and cooperation that fostered order
and compliance with law.
In this book I will argue that Athenian legal institutions, though very
different from the straightforward deterrence mechanisms that dominate
“was broader than our own” and included “the broad set of customs or traditional rules that
Athenians generally accepted whether or not they were enshrined in statute”).
19 See Lanni 2006:41–75; Chapter 2 in this book. 20 Austin 1995:13–15. 21 E.g., Hunter 1994; Herman 2006; Allen 2000a:142–145; Finley 1985a:29–30. D. Cohen (1995:24)
is an exception: he describes the role of courts as an arena for feuding and pursuing conflict
that paradoxically both “contributed to the maintenance of social order as well as help[ed] to
threaten it.” 22 Hunter 1994. 23 Herman 2006:23, 352–354, 392–393. It is important to note that Herman does, however, contend that the demos also had the potential to exercise significant coercive force (Herman
2006:221).
Introduction
5
modern legal systems, played an indirect but important role in maintaining order. I want to show that the Athenian legal system did encourage
compliance with law, but not through the familiar Austinian mechanism of
imposing sanctions for violating statutes.24 I use contemporary research on
the interaction between law, social norms, and behavior to explore the various ways in which formal legal institutions promoted order in Athens.25
For example, the Athenian procedures for enacting and publicizing laws
meant that even statutes that were rarely enforced may have altered behavior, as part of what modern legal scholars call the expressive function of
law. The use of character arguments in court and the frequency of legal
procedures provided powerful incentives for Athenians to abide by social
norms: prior misconduct could be brought up in a later unrelated court
case, which not only might influence the verdict, but would also facilitate social sanctions by publicizing the prior norm violation. Court arguments were a form of moral persuasion performed before a large number
of Athenian citizens on a daily basis, providing an arena for debating,
shaping, and reinforcing internalized norms. Through these examples and
others, I show how formal institutions facilitated the operation of informal social control in a society that was too large and diverse to be characterized as a “face-to-face community” or “close-knit group.” In this way,
Athens provides a provocative example of how recent theories about how
law can create order may have worked in a time and place far from our own.
Although I focus on formal legal institutions that were dominated by
adult male citizens, my account also addresses how order was maintained
among the less privileged members of society. Women and slaves were
almost always disciplined privately, within the household.26 Metics (resident aliens) could be disciplined through the court system, though their
participation in trade and commercial matters may have made them more
likely to experience the special, and more straightforward and predictable,
24 Riess (2012) and D. Cohen (1995) also contend that Athenian litigation fostered order through
non-Austinian means, though their proposed mechanisms (respectively, ritual performance
and feuding arena) are quite different from mine.
25 I agree with Forsdyke’s (2012:176–177; Forthcoming a) observation that informal and formal
modes of justice were inextricably intertwined in Athens throughout the classical period.
I focus here on exploring the role played by formal legal institutions because they fostered
order through mechanisms other than a familiar deterrence regime. Throughout, we will see
that formal legal institutions worked in conjunction with informal mechanisms of social
control.
26 For discussion, see Chapter 1.
Law and Order in Ancient Athens
6
procedures and regulations that applied to selected market transactions.27
Perhaps most interesting, we will see that noncitizens, including slaves, were
protected to some extent from violence and mistreatment by the formal
legal system, though not primarily through the straightforward mechanism
of lawsuits charging individuals with committing offenses against noncitizens. Rather, the protection of noncitizens in well-publicized statutes may
have influenced behavior even in the absence of enforcement through the
expressive function of law,28 and litigants may have been indirectly punished for offenses against noncitizens when they were raised as character
evidence in unrelated cases.29
It may be helpful to clarify the aims and limits of my argument. We cannot quantify the relative contribution of the various elements that helped
foster order in Athens. And while I attempt to demonstrate that neither
a traditional deterrence regime nor informal mechanisms like self-help
or social sanctions can entirely explain the puzzle of Athenian orderliness, I do not deny that all these mechanisms played a role in maintaining
order. The chapters that follow explore how formal legal institutions, often
working in conjunction with informal means of social control, helped
foster order through mechanisms quite different from the straightforward
operation of deterrence created by punishment for violations of law. My
analysis applies insights drawn from modern legal sociology, particularly
the academic literature on social norms and the expressive function of law,
to classical Athens. We will see that the high level of publicity surrounding
Assembly and court activity and the Athenians’ contextualized approach to
adjudication made these mechanisms much more powerful in the Athenian
context than they are in modern legal systems.
It is important to emphasize that I am not providing a functionalist
analysis. That is, I am not arguing that the features of the legal system
I describe developed as they did because they fostered order and compliance with norms. Nor do I contend that the Athenians consciously
created their legal system with these benefits in mind. We will see that
widespread citizen participation in the assembly and courts, together with
the loose approach to relevance and legal argument in Athenian adjudication, were central to the mechanisms that helped foster order in Athens. As
27 For discussion, see Chapter 2. 28 For discussion, see Chapter 3. 29 For discussion, see Chapter 4.
Introduction
7
I have argued elsewhere, these features arose from two ingrained cultural
values: (1) a normative belief in contextualized and individualized justice
and (2) a democratic commitment to popular participation and wide jury
discretion.30 I focus here not on the origins of Athenian legal institutions
and practices, but on their operation and effects.31 To borrow the terms
used by Ian Morris to distinguish between “humanistic” and “social scientific” approaches, this book aims to help us “understand” how Athenian
legal culture worked rather than to “explain” how it came to take the form
it took or to quantify the precise degree to which social order can be attributed to the operation of formal legal institutions.32
A Brief Introduction to Athens and Its Legal System
Some background information may be helpful for readers unfamiliar with
Athens and its legal system.33 Athens’ territory of approximately 900
square miles included rural farming villages, small towns, a cosmopolitan
port known as the Piraeus, and the teeming city that served as the political,
commercial, social, and religious center of the polis. Athens was a direct
democracy, but an extremely limited one: most legal and political rights
were limited to male citizens. And citizens accounted for only a small
portion of the total population. Metics were either manumitted slaves
or freeborn foreigners living in Athens,34 generally as craftsmen, traders,
or businessmen. Slaves occupied the bottom rung of Athenian society,
though slaves’ lifestyles could vary considerably. The majority worked
the land (either on small plots owned by a modest farmer, or on a larger
holding supervised by an overseer) or in their masters’ house or workshop. The least fortunate toiled in the silver mines and the most fortunate
30 Lanni 2006. 31 This is not to deny the possibility that the effectiveness of Athenian legal practices in maintaining order contributed to the persistence of Athenian legal institutions. But we have no
direct evidence that this is the case, and process-oriented anthropological studies have demonstrated that societies can reach a successful equilibrium in the absence of social order
(e.g., Roberts 1976; Comaroff and Roberts 1981; Bourdieu 1977; for an excellent discussion of
trends in legal anthropology as they relate to classical Athens, see D. Cohen 1995:1–24).
32 Morris 2002:8.
33 For a more detailed description of the legal system as well as Athenian society, see Lanni
2006:15–40.
34 It seems likely that a foreigner was obliged to register as a metic (and pay the metic tax) once
he had spent a short time – perhaps one month – living in Athens. For discussion of the
evidence, see Whitehead 1977:7–10.
Law and Order in Ancient Athens
8
worked as skilled craftsmen, bankers, or shopkeepers and enjoyed de facto
independence.
The number of citizens, metics, and slaves in classical Athens can
only be guessed at from a census taken in 317 BCE, after the fall of the
democracy, and from sporadic statements in our earlier sources providing
estimates of troop strengths or the adult male citizen population. In the
fourth century, the adult male citizen population was perhaps 30,000, the
total citizen population approximately 100,000.35 The numbers of metics
and slaves are much less certain and are likely to have fluctuated at different
times depending on the economic and political circumstances. Hansen’s
estimate of 40,000 metics, somewhere in the range of 150,000 slaves, and
a total population of close to 300,000 seems reasonable.36
Within the citizenship group, Classical Athens was a highly participatory democracy run primarily by amateurs: with the exception of military
generalships and a few other posts, state officials were selected by lot to serve
one-year terms.37 The Council (Boule), or executive body of the Assembly,
was composed of 500 men chosen by lot, and a new epistates (“president”)
of the Council was chosen by lot for each day’s session. Adult male citizens
voted in the Assembly on nearly every decision of the Athenian state, from
the making of war and peace to honoring individuals with a free dinner.
At the end of the fifth century a distinction was made between laws (nomoi)
which specified rules of general application, and decrees (psephismata) which
were specific, short-term measures. In the fourth century, laws, unlike
decrees, required not just the vote of the Assembly, but also the approval
of a board chosen from the jury pool following a trial-like hearing on the
merits of the law.38
The Athenian law courts are remarkably well-attested, at least by the
standards of ancient history: roughly one hundred forensic speeches survive from the period between 420 and 323 BCE.39 These speeches represent
not an official record of the trial proceedings, but the speech written by a
speechwriter (logographos) for his client (or, in a few cases, for himself) and
later published, possibly with minor revisions in some cases, with a view to
attracting future clients or promoting a political position in political trials.
35 Hansen 1999:90–93.
36 Hansen 1999:90–94.
37 Hansen 1999:233–237.
38 Hansen 1999:161–175.
39 Ober 1989:341–348 provides a catalog.
Introduction
9
Only speeches that were attributed to one of the ten Attic orators subsequently deemed canonical have been preserved. As a result, the speeches in
our corpus are atypical in the sense that they represent cases in which one
of the litigants could secure the services of one of the best speechwriters
in the city. We do not know for certain whether and how the speeches of
poor litigants might have differed from our surviving speeches.40 But it is
important to note that the social class of the parties involved in the surviving cases are quite varied: we have, for example, cases involving a wealthy
banker who was formerly a slave (Demosthenes 36), a man who admits
that his family was so poorly off that his mother was reduced to selling
ribbons in the agora (Demosthenes 57), an accusation against an admitted
prostitute for impersonating a citizen (Demosthenes 59), and, if the case is
authentic, even a disabled man receiving the Athenian equivalent of social
security payments (Lysias 24). The speeches in the corpus run the gamut
from politically charged treason trials and violent crimes to inheritance
cases and property disputes between neighbors.
Despite their copiousness, these sources are not without their problems.
The Attic orations were preserved not as legal documents but as tools for
teaching boys and young men the art of rhetoric in the Hellenistic and
Roman periods. As a result, the information a legal historian would most
like to know about any particular case is generally lost. We almost never
have speeches from both sides of a legal contest;41 we rarely know the
outcome of the case. Citations of laws and witness testimony are often
omitted or regarded as inauthentic later additions. Most important, any
statement we meet in the speeches regarding the law or legal procedures
may be a misleading characterization designed to help the litigant’s case.42
As is often pointed out, however, a litigant who wished to be successful
would presumably limit himself to statements and arguments that were
likely to be accepted by a jury. Speakers may at times give us a self-serving
account of the law, but their arguments generally remain within the realm
of plausible interpretations of the legal situation in question.43
40 On amateur speech, see Bers 2009. 41 Only two pairs of speeches survive (Demosthenes 19 and Aeschines 2; Aeschines 3 and
Demosthenes 18); in two other instances (Lysias 6 and Andocides 1; Demosthenes 43 and
Isaeus 11) we have imperfectly matched speeches on both sides of a particular issue.
42 On how to deal with apparent outliers in our sources, see Bers 2002. 43 Dover 1994:8–14.
Law and Order in Ancient Athens
10
In what the Athenians called “private cases” (dikai), the victim (or his
family in the case of murder) brought suit. In “public cases” (graphai), any
adult male citizen – literally ho boulomenos (“he who is willing”) – was permitted to initiate an action. However, our surviving graphai suggest that
volunteer prosecutors were rarely disinterested parties seeking to protect
third-party victims; graphai are more often brought by the primary party
in interest or enemies of the defendant.44 Although no ancient source
explains the distinction between graphai and dikai, most graphai seem to have
been cases regarded as affecting the community at large.45 This division is
not quite the same as the modern criminal–civil distinction; murder, to
take a spectacular example, was a dike because it was considered a crime
against the family rather than the state.
Athenian courts were largely, but not entirely, the province of adult male
citizens. Foreigners and resident aliens (metics) could be sued in Athenian
courts, and could initiate private suits.46 It is unclear to what extent metics
were permitted to bring public suits.47 With a few exceptions, slaves could
serve neither as plaintiffs nor defendants.48 When a slave was involved in
a dispute or the victim or perpetrator of a crime, the case was generally
brought by or against the slave’s owner.49 Similarly, women were forced to
depend on their male legal guardians to act on their behalf in court.50
This book focuses primarily on the popular courts, the largest jurisdiction in the Athenian legal system.51 Litigants were required to present their
case to the jury, though they could share their time with a “co-speaker.”52
Each Athenian litigant was allotted a fixed amount of time to present his
44 Osborne 1985a; Christ 1998a:118–159.
45 Todd 1993:102–109. For discussion of whether the Athenians had a conception of crime, see
D. Cohen 2005a; Hunter 2007. 46 MacDowell 1993:221–224; Patterson 2000; Todd 1993:196; Whitehead 1977:92–95.
47 A prominent theory is that metics could pursue graphai only in cases where they were the victim, and were not permitted to prosecute on behalf of a third party or the state (Whitehead
1977:94); for some skepticism on this point, see Hunter 2000a:17 and n.29.
48 Todd 1993:187.
49 MacDowell 1993:81. The suit could be brought directly against the slave if the slave was acting
without his owner’s permission (Dem. 55.31), but the owner was still responsible for defending
the suit in court and for any damages awarded.
50 Todd 1993:208.
51 Homicide and maritime cases followed somewhat different procedures and, most importantly,
may have had a more developed concept of relevance. Lanni 2006:75–114, 149–174.
52 In ordinary cases, “co-speakers” were relatives or friends and take pains not to act the part
of an expert advocate. For an in-depth study of the use of supporting speakers in Athenian
courts, see Rubinstein 2000.
Introduction
11
case. Some private cases were completed in less than an hour, and no trial
lasted longer than a day.53 Although a magistrate chosen by lot presided
over each popular court, he did not interrupt the speaker for any reason or
permit anyone else to raise legal objections, and did not instruct the jury as
to the relevant laws. Athenian laws were inscribed on stone stelai in various
public areas of Athens. Litigants were responsible for finding and quoting
any laws they thought helped their case, though there was no obligation to
cite even the law under which the case was brought.
Cases in the popular courts were heard by juries54 chosen by lot from
adult male citizens and generally ranged from 201 to 501 in size, though
in high-profile political cases multiple panels of 500 could be used.55
A simple majority vote of the jury, taken without formal deliberation,56
determined the outcome of the trial. No reasons for the verdict were given,
and there was no provision for appeal.57
While the punishment for some offenses was set by statute, in many
cases the jury was required to choose between the penalties suggested by
each party in a second speech in a process known as timesis. Unlike modern American jurors, Athenian jurors were generally made aware at the
guilt phase of the statutory penalty or the penalty the prosecutor intended
to propose if he won the case. For this reason, the guilt decision often
incorporated considerations typically limited to sentencing in modern
American courts, including questions of the defendant’s character and past
convictions.58
53 A public suit was allotted an entire day (Ath. Pol. 53.3). Private cases varied according to the
value of the suit and were timed by a water-clock. MacDowell (1993:249–250) estimates the
length of various types of suit based on the one surviving water-clock.
54 I have been using the term “jurors” as a translation for the Greek dikastai to refer to the audience of these forensic speeches, but some scholars, notably E. Harris (1994a:136), prefer the
translation “judges.” Neither English word is entirely satisfactory, since these men performed
functions similar to those both of a modern judge and a modern jury. I refer to dikastai as
jurors to avoid the connotations of professionalism that the word “judges” conjures up in the
modern mind.
55 Hansen 1999:187.
56 Audience clamor and conversation while approaching the voting urns may have provided the
opportunity for informal deliberation.
57 A dissatisfied litigant might, however, indirectly attack the judgment by means of a suit for
false witness or might bring a new case, ostensibly involving a different incident and/or using
a different procedure. Some of our surviving speeches point explicitly to a protracted series of
connected legal confrontations. For discussion, see Osborne 1985a. 58 Lanni 2006:53–59.
Law and Order in Ancient Athens
12
Imprisonment was rarely, if ever, used as a punishment;59 the most common types of penalties in public suits were monetary fines, loss of citizen
status (atimia), exile, and execution.60 With some exceptions, the fine in a
public suit was paid to the city.61 In most private cases damages were paid
to the prosecutor, though the penalties for some dikai included public fines
in addition to compensation.
