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Greek Law: The First Democracy

Foreword


Greek law encompasses the legal frameworks of ancient Greece, among which the laws of Athens are the most renowned. While there was no singular system uniformly recognized and practiced across all Hellenic states, there existed foundational legal principles, methodologies for achieving legal outcomes, and a shared legal lexicon to varying extents across these independent polities. However, it is crucial to acknowledge that these common bases spawned a wide array of distinctive legal systems, varying in their complexity and sophistication. These systems reflected the ethnic (e.g., Dorian, Ionian) and historical contexts, as well as the dynamic social, economic, political and intellectual climates of their respective societies.


The legal culture of Greece during the fifth and fourth centuries BCE was shaped by three primary factors. The first was the presence of numerous city-states (Poleis), each possessing and enforcing its own legal code. The second factor was the codification of laws, a practice that had become widespread across Greece from the seventh century onward, leading to the formulation of detailed and comprehensive legal codes that outlined procedural and substantive rules for justice administration. Among the most notable lawgivers were Solon of Athens, preceded by Draco in 621 BCE, Zaleucus of Locri Epizephyrii, and Charondas of Catana; Lycurgus of Sparta, though considered more mythical. Laws attributed to Solon, for instance, are known from literary adaptations that reflect legislative revisions made in the years 403-402 BCE. Additionally, a law from Draco’s code survives in an Attic inscription revised around 409 or 408 BCE. The legal code from Gortyn, revised from an earlier version, remains the most completely preserved.


The third influential factor was the absence of a sophisticated body of jurisprudence akin to that of the Romans. The Attic orators, despite their intimate acquaintance with Athenian laws, primarily focused on crafting persuasive arguments for the jury courts rather than analyzing the legal framework to gain deeper insights. Similarly, the philosophers of the time showed little interest in the existing laws, concentrating instead on exploring abstract principles of justice.


These elements contributed to a characteristic rigidity in Greek legal thought. Recent scholarship challenges earlier views by demonstrating that Athenian jurors, bound by oath, adhered strictly to the literal interpretations of the written laws (nomoi) rather than relying on broader notions of fairness. This strict adherence to textual interpretation, combined with a lack of analytical engagement with legal statutes or situations, meant that Greek law did not achieve the doctrinal sophistication of Roman law, despite exhibiting considerable technical adaptability during the Hellenistic period.



Figure 1: The School of Athens, Raphael


Draconian Laws and the Gortyn Code

Athens, renowned as the cradle of democracy, also harbored a harsher chapter in its legal history marked by Draco, the legislator whose name now epitomizes severity due to the infamous 'Draconian' laws. In the seventh Century BCE, Athens was dominated by aristocrats who manipulated the oral laws for personal gain. To counter this, Draco codified these laws in 622/1 BCE, making them accessible and unchangeable without public consent, a pivotal step towards democratization.


Draco's laws were originally inscribed on wooden tablets, ensuring that literate citizens could read and understand their rights and obligations. This transparency was revolutionary at the time. However, the severity of the punishments prescribed under these laws, such as death for minor thefts, underscored their brutal reputation. Aristotle notes, and perhaps with rhetorical flourish, that these laws were written in blood, a statement reflecting their harshness, rather than their ink.


Despite their severity, Draco’s codes laid foundational principles for equality before the law. All Athenian citizens, irrespective of social standing, were subject to the same laws. This egalitarian approach was radical and paved the way for more nuanced reforms under Solon, who eventually repealed most of Draco’s statutes except for those concerning homicide.

Interestingly, the method of recording these laws transitioned from wood to stone, which while more durable, has not entirely preserved the texts due to weathering. Recent advances such as X-ray fluorescence imaging offer hope in uncovering the original inscriptions on these stone tablets, potentially providing deeper insights into Draco's legal framework.


While Draco's laws were ultimately deemed too severe and mostly replaced by Solon's reforms, their role in setting the stage for a more equitable Athenian society and the concept of accountability under the law cannot be understated. They serve as a reminder of the complex journey towards the democratic principles cherished in Athens and beyond.




Figure 2: Draco

The ancient city of Gortyn, located on Crete's Mesara plain, was a significant cultural hub from the Minoan through the Hellenistic periods. Its most notable contribution to legal history is the Law Code of Gortyn, dating back to around 450 BCE. This code is one of the earliest examples of written law and offers extensive insights into the civil, social and legal workings of ancient Greek society.


The Gortyn Code is comprehensive, covering a wide array of topics such as property rights, inheritance, debt, family matters including marriage, adoption and divorce, as well as issues of personal status and social class distinctions among free citizens, serfs, slaves and foreigners. Importantly, it also addresses crimes like rape and adultery, specifying fines and penalties which often varied by the social status of those involved.


In terms of legal procedure, the Gortyn Code outlined protective measures for the accused before trial, prohibiting their seizure and detention, with fines imposed for violations. The code was pioneering in its detailed regulations concerning property and inheritance rights, particularly in relation to women's rights in cases of divorce and widowhood. For example, divorced women were entitled to retain any property they brought into the marriage and were guaranteed a portion of the marital property.


The writing style of the Gortyn Code, known as boustrophedon, where text is written alternately from left to right and then from right to left, reflects its ancient context and makes it a fascinating document for historians and linguists alike.


This ancient code influenced not only contemporary legal practices but also had a long-lasting impact on the development of legal systems in later civilizations, including Roman law. The Gortyn Code stands as a testament to the complexity and advanced nature of legal thought in ancient Greece, emphasizing a structured approach to justice that balances the rights and duties of individuals within the society.





Figure 3: The Gortyn Code, Crete

Sparta’s Justice System

In Sparta, like in Athens, administrative officials also held judicial responsibilities. The dual monarchy, alongside a quintet of ephors and a council of 28 elder nobles, formed the criminal judiciary. The ephors oversaw judicial proceedings, while the council of elders was composed of members from aristocratic lineage, contrasted by ephors elected from the general populace.


Ephors were crucial officials in ancient Sparta, sharing power with the kings, who ruled for life. Annually, five ephors were elected to represent the city, whereas kings swore oaths solely for themselves. Herodotus, writing in the fifth century BCE, attributes the establishment of the ephorate to Lycurgus during the early sixth century BCE. However, Aristotle and Plutarch suggest an earlier inception around 700 BCE under King Theopompus.


Ephors are noted in other cities such as Thera and Cyrene, which supports the antiquity of their role, but they are absent in major legal texts like the “Great Rhetra.” This absence and the monthly oaths they swore with kings, as recorded by Xenophon, suggest that ephors may have initially been royal appointees rather than elected by the Apella, the assembly. The number of ephors, five, possibly reflects Sparta's composition from five villages, hinting at their role in the city's unification.


By the Classical Age, the ephors, elected from the Spartiates, held significant responsibilities. Their title, meaning "overseer," implies roles such as market supervision or managing land records, and during wartime, they might oversee domestic affairs while kings were away. Annually, they declared war on the Messenians, ensuring legal protection for Spartiates in conflicts with helots. Their powers extended to directing kings, managing warfare, and receiving foreign diplomats, underscoring their representation of the populace. The chairman of the ephors presided over the Popular Assembly and gave his name to the official year, influencing significant historical events like the outbreak of the Archidamian War. Ephors served one-year terms without reelection, enjoying immunity during their tenure but subject to review by successors.


The abolition of the ephorate by King Cleomenes III in 227 BCE, and its restoration after Sparta's defeat at Selassia, marks its significance. In the Roman era, ephors became standard municipal magistrates, reflecting the adaptation of their roles over time.


Annually, candidates for the elder council were presented to the Apella, the people's assembly, in a sequence decided by random draw. The reception of each candidate by the assembly involved varying degrees of acclamation.


Those who garnered the most acclaim were deemed elected. To ensure impartiality, a separate body assessed the applause without visual contact with the candidates. Aristotle criticized this election method as "childish," suggesting a similar approach was taken for selecting ephors, as inferred from the parallel drawn with the elder's election process.

Documented instances of litigation in Sparta are scarce compared to the extensive records from Athens, noted in the works of the Attic orators. However, historical texts do provide some narratives of Spartan trials, indicating a judicial practice, albeit less documented.

Figure 4: Study for Lycurgus Showing the Ancients of Sparta their King, Jacques Louis David


In examining the judicial system of Sparta, one often contrasts it with that of Athens during the fifth and fourth centuries BCE. The Spartan system included a yearly selected group of ephors who functioned as public accusers. In contrast, in Athens, any citizen had the right to initiate legal action against another, leading to widespread sycophancy and its associated problems—a phenomenon absent in Sparta.


In instances where two ephors, who routinely accompanied a king during military campaigns, suspected him of misconduct, they would likely present the case for a preliminary inquiry similar to the Athenian anakrisis, which was a formal procedure where initial accusations were scrutinized, and the magistrate could dismiss a case if the evidence was deemed insufficient to proceed to trial. If a majority found reasonable grounds for a case, the individual would be formally charged and tried.


The ephors were consistently open to hearing from informants, regardless of whether these informants were motivated by civic duty or personal vendettas against the accused. Upon gathering sufficient evidence, the ephors had the authority to detain the suspected individual pending trial.


In capital offenses, the Spartans deliberated for more than a single day due to the gravity of the potential outcomes: a wrongful conviction was irreversible, whereas an acquitted individual could be retried, as the principle of double jeopardy did not apply in Spartan law.

Additionally, Sparta utilized a private arbitration system. Selected arbitrators would bring the disputing parties into the Bronze Temple, where they swore an oath to accept the arbitrator's decision. The parties were required to remain inside the temple until the dispute was resolved, ensuring a binding resolution.

 


Solon, the Father of Western Law

Solon, hailed as the father of Western law, stands as a pivotal figure in Athenian history. Born in 640 BC into a distinguished family, Solon was shaped profoundly by his upbringing, which emphasized the value of life experiences and human relationships over material wealth. This ethos perhaps influenced his modest lifestyle, despite his noble lineage tracing back to Codrus, the last king of Athens.


Renowned not just for his philosophical insights, Solon is best remembered for the sweeping reforms he implemented to stem Athens' political, economic and moral decline. His legislative efforts laid the groundwork for Athenian democracy, marking a significant departure from the practices of his time. Solon's laws were unique in that they did not just address the symptoms of Athens' crises but aimed to recalibrate the societal structure fundamentally.





Figure 5: Bust of Solon


Solon embarked on extensive travels to Egypt and Asia Minor after suffering personal financial loss. These journeys enriched his understanding of other cultures, informing his approach to governance back home. His travels underscored his commitment to learning and adaptation, qualities that he brought into his legislative process.


Upon his return, Athenians entrusted him with absolute power to overhaul the city's laws and institutions in 594 BC, reflecting their respect and the desperation of the times. Solon's reforms were revolutionary: he introduced measures like Seisachtheia, which alleviated debt burdens and abolished practices that enslaved citizens under unfair debts. He restructured Athenian society into four classes based on wealth rather than heritage, which balanced social responsibilities and privileges and fostered a more equitable distribution of fiscal duties. Moreover, Solon’s military and judicial reforms further democratized Athenian society. He established the Heliaia, a people’s court that allowed citizens of all classes to voice grievances and hold the powerful accountable, reinforcing his reform's focus on justice and equity.


Solon's legacy is a testament to his visionary leadership and his profound impact on the course of Athenian and by extension, Western governance, laying foundational principles that resonate through ages.


Athens’ Justice System

As research currently stands, the judicial system of fourth century Athens is the best understood. In this democratic era, justice was administered by magistrates, popular courts Dikasteria and the Areopagus. Various officials managed different aspects of the legal process, with each responsible for specific types of cases, ranging from family and inheritance issues to religious disputes and more general matters. The trial system operated under the principle, initially set by Solon and later universalized, that the citizenry at large should adjudicate the affairs of its members. Dicasts were randomly selected from citizens over 30 years old. In significant political cases, the entire Heliaia, or popular assembly serving as a court, might convene, although typically smaller segments of the Heliaia adjudicated cases.





Figure 6: Areopagus, Athens


However, murder cases were heard by the Areopagus, which consisted of former archons and represented a vestige of the pre-democratic era. The trial's purpose was to ascertain the legitimacy of claims for seizing a defendant’s assets or person, initiated either as a private right or as a public claim aimed at securing punishment.


From the late eighth century, the advent of written law in Greek city-states, Polis, epitomized justice for all citizens, Demos. This innovation arose from the populace's frustration with the biased rulings of elite magistrates favoring the affluent. To ensure transparency and accessibility, these laws were inscribed on stone stelae with brightly colored letters and often included word divisions to aid readability, publicly displaying them for all to see.


These laws delineated crimes, set uniform punishments, and outlined judicial procedures to maintain consistency and fairness in enforcement. Unlike modern systems where judges and juries play distinct roles, ancient Greek legal processes were more communal. In Athens, laws were not enacted by a select few but were voted on by the Demos in assembly. There were no judges or state prosecutors as seen today; rather, any concerned citizen could prosecute offenses deemed significant to the community. Large juries, sometimes numbering in the thousands, decided cases by majority vote through secret ballots, reflecting another Greek innovation.


Athens took its laws seriously, with jurors, referred to as Dikastai (justice men), considered guardians of these laws. They operated within the Dikastêrion (justice place), upholding laws and decrees by the Athenian people. Unlike contemporary legal systems that often rely on lawyers, ancient Greeks required prosecutors and defendants to advocate for themselves, reflecting their mistrust of eloquent speakers and their belief in equal understanding and access to the law.




Figure 7: The Aristotelian Constitution of the Athenians


This distinct approach underscores Athens’ role as a pioneer of direct democracy, where ordinary citizens directly influenced significant state decisions through large assemblies and jury service in law courts, emphasizing the integral relationship between law and democracy in classical Athens.


After completing the preliminary steps, litigants in ancient Athens would present their cases before a jury, speaking on their own behalf. They had the option to share some of their allotted time with a supporter, often a friend or relative known as a sunegoros. While litigants could hire logographoi, professional speechwriters, to prepare their speeches, they typically presented these speeches as if they were spontaneous. It was common for speakers to claim they were inexperienced in public speaking or unfamiliar with legal proceedings, likely to avoid accusations of manipulation or deceit.


Unlike modern legal systems, Athenian trials lacked specialized legal terminology and were characterized by dramatic, layman-friendly recounting of events. Athenians were generally well-acquainted with courtroom procedures due to their civic duties as jurors and the public nature of trials, which were held in central areas like the marketplace and served as a form of entertainment.


Trials were concise; private disputes could conclude in under an hour, and no trial exceeded a day. Time was strictly regulated by a water-clock, which measured speaking time by allowing water to flow from one vessel to another. This mechanism was paused only for the reading of laws and evidence. Evidence in Athenian trials supplemented rather than shaped the narrative, supporting the litigant's claims and arguments presented during their speech. Unlike modern trials where evidence is pieced together by attorneys in their summations, Athenian litigants provided a continuous narrative with evidence readings interspersed to bolster their case.



Conclusion: Ongoing Influence on the Modern Legal System

The ancient Greeks, particularly during the fourth century classical period in Athens, played a pivotal role in shaping the foundations of modern legal systems. Their influence extended to Roman Law, which in turn laid the groundwork for the civil law systems across continental Europe and had a profound impact on the judicial framework of the United States.


The Greeks were not only pioneers in legal philosophy but also in comparative law, drawing from the thoughts of philosophers like Plato, Aristotle and Theophrastus. These philosophers delved into the nature of justice, the roots and functions of laws, and integrated these concepts with an inherent sense of equity within the legal system. Unlike Roman or later English law, which treated equity as a separate body of rules to soften the rigidity of law, Greek law infused equity into the very essence of its legal principles, making it a fundamental aspect of all legal rules.


The contribution of Greeks to law is visible in various literary and rhetorical works. For instance, Demosthenes, in his orations, not only referenced legal cases but also actively worked to challenge unfavorable precedents. Additionally, the comedies of Aristophanes illustrate the Athenian public's keen interest in litigation, often portrayed as a form of entertainment.


It is also believed that the development of Roman law was significantly influenced by the Hellenic culture of Magna Graecia in Southern Italy and Sicily, showcasing the extensive cultural exchange that shaped early legal traditions.


Despite the significant Greek contributions to law, there has historically been a strong Roman bias in the teaching of law from Europe to Asia. Recognizing and studying the Greek roots of legal principles can enhance a more comprehensive understanding of modern legal practices in both the East and the West. This broader perspective is crucial for jurists, lawyers, and advocates who seek to enrich their professional practices and scholarly approaches to the study of law.


Bibliographical References


M. Gagarin, D. Cohen, ( 2005), The Cambridge Companion to Ancient Greek Law, Cambridge University Press


Forrest, W. George, (1983), Democracy and Oligarchy in Sparta and Athens, EMC 27.


A. R. W. Harrison, (1968-1971), The Law of Athens (2 vols), Oxford.

 

D. M. MacDowell, (1978), The Law in Classical Athens, London and Ithaca, New York.

 

M. Gagarin, (2011), Speeches from Athenian Law, Austin, Texas.

 

I. Arnaoutoglou, (1998), Ancient Greek Laws: A Sourcebook, London and New York.


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