The past two decades have seen a dramatic increase in scholarly research on aspects of the prosecution of crime in ancient Greece, and in particular in Athens. Scholarship has focused on the process of prosecution, the history and workings of courts such as the Areopagus, as well as specific crimes like homicide, adultery, theft, sycophancy, and hubris.1 Such research has enhanced our understanding of the procedures used in criminal prosecution and the substantive law of particular crimes. What has received far less attention, however, is the way in which Athenians conceptualized the category of “crime” and the laws enacted to deal with it. Did the Athenians in fact have conceptions of something like our notions of “crime” and “criminal,” as distinct from other types of wrongs and wrongdoers? Did they think of the methods of prosecuting and punishing criminal offenses as a separate legal category from other sorts of proceedings? Did they have a distinctive conception of punishment as opposed to other kinds of legal remedies? What did they believe were the distinguishing features of this area of the law and its relation to the larger framework of Athenian litigation and government? These are large and complex questions that could only be comprehensively answered in a book-length study. This chapter will suggest some answers to them that may furnish a starting point for further reflection and debate.
In discussing a particular problem in Athenian law many experts begin by looking at procedural aspects as a starting point. In the case of Athenian criminal law this tendency has naturally focused on a fundamental distinction in procedural law between two means of initiating a legal action: dikē and graphē. The former, usually taken as denoting a private suit, is an older term and has a very broad range of legal meanings embracing a case at law, justice as an abstraction, a legal remedy or penalty, and so on. The latter term is much narrower and refers to a specific form of legal action that proceeds on the basis of this particular kind of written indictment. The chief distinguishing characteristic is that a dikē may only be brought by the aggrieved party or, in the case of homicide, by relatives of the victim, whereas any citizen could prosecute a wrong for which the law provided a graphē.
Scholars have attempted to classify the types of substantive legal actions under these two categories, but this expedient involves some difficulties because of the uncertainty regarding the attribution of particular kinds of cases.2 A further problem is indicated by Douglas MacDowell’s well-founded admonition that scholars have often interpreted these categories too rigidly as constituting a “comprehensive set of ‘actions’” on the model of Roman law.3 Despite all of these difficulties today there is fairly broad agreement that graphai generally involve public wrongs. The case with dikai is a bit more problematic because although in general they involve legal actions that seem like private matters, there are important qualification to be made regarding the law concerning cases of homicide and intentional wounding. So although the view has been held that graphai were criminal prosecutions4, most contemporary scholars, especially in the Anglo-American world, are more cautious. In the two most recent English handbooks on Athenian law no clear position is taken on the matter.5
One has to be clear, of course, about what questions need to be asked in regard to crime, punishment, or criminal law in a particular legal system. It does not follow, for example, that because the way a legal system categorizes or treats public offenses differs from our own that it does not embody a conception of crime or a system of criminal law. It may just have one that proceeds from different values and embodies different assumptions about society, the public sphere, the relationship of the family to society, the nature of punishment, and so on.
For example, mistreatment of parents and offenses against religious ritual were clearly considered among the very serious forms of wrongdoing in Athens, were both prosecutable by graphai, and might involve the most severe penalties. This, of course, tells us a good deal about the way in which Athenian values differed from our own. Likewise, the criminal law of Nazi Germany provided that any act that harmed the interests of the German people was a crime punishable by death. This points not only to different values but also to an understanding of the criminal law as a naked instrument of state power. Different societies conceptualize the power of the state or community to deprive individuals of their life, liberty, or property in different ways and vary in their opinions as to what sorts of acts justify such deprivations. This was well recognized by Greek political theorists such as Aristotle and Plato, for whom it was a commonplace that different constitutional forms of the state would adopt different kinds of laws suitable to the values and interests enshrined in a particular constitution.
A further difficulty arises from the fact that at Athens there was no Office of Public Prosecution charged with investigating and prosecuting criminal conduct. It is easy from the modern perspective to imagine that such an institution is essential for a system of criminal law to function properly. This says more, however, about how we imagine the authority of the state and its role in maintaining public order than it does about the nature of crime and punishment. It is sobering to recall that public prosecution is actually a rather late development in most Western legal systems. In England, for example, private prosecution was the primary method for pursuing most criminal acts until late in the eighteenth century. Legal systems that rely on private initiative for the prosecution of acts considered to impact the public sphere may do so for a variety of reasons, including the simple lack of centralized governmental institutions equal to the task. One of the goals of this chapter is to arrive at a clearer understanding of what the private initiation of prosecution meant in the Athenian context.
In pursuing this inquiry we will first examine the conceptualization of certain kinds of wrongdoing, with particular attention to the way in which the public/private dichotomy was used to construct distinctions in the courtroom. We will then turn to an examination of citizen prosecution, arguing that it must be understood in Athens in its relationship to the form of participatory government associated with the radical democracy. This inquiry into private initiative in prosecutions will inevitably involve discussions of the role of private enmity in public litigation as well as the reliance on self-help in the apprehension and punishment of wrongdoers. Finally we will take up the Athenian understanding of the political force of criminal justice and the way in which this understanding informs conceptions of the functions and nature of the popular courts, of the Athenians who sat in judgment, and of the law which they applied.
The overarching argument of the chapter will be that regardless of what label we attach to it, the notion of certain kinds of wrongs as harming or threatening not just the immediate victim but the community as a whole and therefore requiring not merely compensation to the victim but punishment of the offender in the name of the polis, was central to Athenian thinking about law and justice. This, of course, is the core idea of “criminal law” as an analytical category in historical jurisprudence. We may do well to recall that the German term for criminal law is Strafrecht, literally, “the law of penalties/punishments.” The same is true in French: Droit Penal. At its core, criminal law is the judicial expression of the authority of the state to punish through legal process in the name of the public interest, by depriving citizens of their lives, status, liberty, or property. It is these features that distinguish it from the redress, usually in the form of compensation for loss or harm, provided in private cases (however the substantive content of “public” and “private” may be defined in a particular legal system). Such analytical conceptions of public harms and punishment were well-known in Athens, but although they may seem very familiar to us, their contours in the Athenian legal system were, in important ways, quite distinct from our own and they were enmeshed within a political and legal system that strongly identified the unity of the law, the judges, the demos, and the polis. This identification, it will be seen, shaped criminal trials in ways that produced a tension with notions of the rule of law, both Athenian and our own.
In his history of the Athenian constitution, Aristotle devotes considerable time to the development of the Athenian system of courts. The way in which the system developed over time and the interplay of a variety of other factors (in an historical process largely obscure to us) resulted in a system where different kinds of prosecutions were brought to different officials and were heard by different courts or other bodies. The central theme in Aristotle’s account, however, is the development of the jurisdiction of the Areopagus and its subsequent limitation in favor of the popular courts associated with democratic reforms, where the lay judges were selected by lot from among the male citizens over 30 and served in large panels (101, 201, 501) assembled for a particular trial. The political and legal implications of this development will be discussed later, but immediately relevant is Aristotle’s description of the tasks of the Areopagus.
In speaking of its historical importance, he says that although the Areopagus had the position of guarding the laws, “actually it administered the greatest number and the most important of the affairs of state, punishing and fining those who offended public order without appeal” (Ath. Pol. 6.3). Later in his discussion he explains that under Solon the Areopagus continued in its function of guarding the laws and watching over the most important affairs of state, “and it had sovereign power to scrutinize offenders and to punish and to fine” (8.4). In these passages Aristotle makes clear that the function of punishing those who transgressed public order is of vital interest to the polis as a whole, one of the most important political functions. On this view, maintaining order by punishing wrongdoers is the state’s business not a private matter. Because homicide and intentional wounding were closely associated with the Areopagus, this would presumably apply as well to them, despite their formal procedural status as dikai, or private prosecutions.
With the emergence of the popular mass courts as part of the development of democratic institutions from Solon onward this conviction that the punishment of public wrongdoing was of vital importance to the state did not diminish. But what constituted public wrongdoing? What lent particular kinds of harms their public quality and made them of interest to the polis as a whole instead of merely to the aggrieved party? For the category of offenses that deal with acts directly harmful to the institutions of the state, such as treason, bribery of public officials, or attempting to overthrow the democracy, the answer to these questions is fairly obvious. But what of other kinds of wrongdoing that were inflicted on an individual citizen?
We may take as our starting point an oration by Isocrates, Against Lochites (20), involving an accusation of assault. The action for assault (aikeias) was classified as a dikē, and judgment for the plaintiff resulted in compensation in an amount determined by the judges. This was the least serious category of wrongdoing involving physical assault and appears typically to involve cases where there has been an altercation that escalated into blows being exchanged rather than a premeditated attack. Although the action may be classified as a dikē, the speaker nonetheless makes the argument that the case involves public wrongs. He claims, for example, that cheating someone of money is a far less serious offense than a wrong committed against the person, because the latter is a matter of public concern (1). To increase the persuasiveness of this argument about the public nature of assaults on the person, the speaker employs a strategy found in other orations involving assault as well, asserting that the defendant is actually guilty of a far more serious form of physical violence, hubris. Hubris can take the form of violent assault or sexual violence, but its distinguishing characteristic was the intentional infliction of humiliating treatment that dishonored the victim, in addition to the physical violence and harm.6 Hubris was prosecuted by a graphē and did not result in compensation to the victim, but punishment; the penalty as severe as the judges thought appropriate. The perceived advantage in using the rhetoric of hubris in an action that was actually based on only simple assault (aikeias) is that the public quality of the former will make the judges see that this sort of conduct represents a public harm and a threat to the public interest. This indicates, of course, the centrality of this distinction and the greater emotional weight attached to public as opposed to private harms.
Thus, the speaker in Against Lochites claims, because hubris is a matter of public concern the law provides that any citizen, and not just the victim, can lodge a prosecution before the appropriate officials (20.2). He later explains that he is seeking revenge not because of the harm caused by the blows, but because of the humiliation and dishonor (characteristics of hubris). He supports this argument by saying that the punishment for private theft (klopē) or theft of sacred property (hierosulia) is not measured according to the value of the stolen goods, but rather all such offenders are punished by death. That is, the judicial response is not redress but punishment, the severity of which is based on the public harm represented by these acts, not the economic loss to the individual or to the polis. Likewise, he argues, the punishment for assault should not depend on the amount of physical injury inflicted (5). In concluding his plea, rather than asking for damages in compensation for his injury, he accordingly reminds the judges that severe penalties/punishments in such cases will be in the interest of all and will both cause others to restrain themselves from such acts and make the lives of all citizens (he addresses the judges here as representatives of the demos) more secure (15–18).
Another oration that employs the same strategy of using the rhetoric of hubris to inflate the severity of what the defendant will try to pass off as a minor assault is Demosthenes’ Against Meidias (21).7 This case arose out of Meidias’ insult to Demosthenes by slapping him in the face at a public festival. Though the actual charge on which the oration is based involves a violation of the festival regulations, Demosthenes’ central strategy is to use hubris to argue that violent men such as Meidias represent a threat to the security of the polis. He does this by emphasizing the public quality of hubris and the way it harms and threatens all ordinary citizens, arguing at length throughout the oration that he is not bringing the prosecution from private motives but in the public interest (7–8). What is important, he argues, is not just rendering justice to individuals wronged, but to the Laws, which Meidias violated, and to all of the citizens, for they were also wronged (20–1). Punishment, he claims, is thus not carried out in the interest of the accuser, but strengthens the law in the interests of the demos (again addressing the judges in the second person as representatives of the demos). This argument articulates the fundamental distinction between punishment inflicted by the state on certain classes of wrongdoers as opposed to remedies designed to compensate those who suffer other kinds of losses or harms.
Building on this point about the difference between public punishment and private remedies, he develops this argument in an interesting way by inquiring into what makes a particular kind of wrongdoing public. Why, he asks, is it the case that the laws provide that when a man withholds even a very large sum of money from someone who has deposited it with him the state has no concern with this matter? But if someone takes even a very small amount by force, the laws provide for a fine to be paid to the treasury equal to that paid to the private party. The reason, he claims (21.44–5),
is that the lawgiver considered all violent acts as public offences (koin’ adikēmata) committed also against those who stand outside the deed. . . . The man who agreed to the transaction can care for his interests privately, but the victim of violence needs public assistance. On this account the law allows anyone to bring a public indictment for hubris, but the penalty is paid entirely to the polis. The legislator considered that the polis was wronged as well as the victim and his punishment was sufficient satisfaction for the victim.
This argument sets out a basic theory of public offences and characterizes them in much the way that we would define acts of violence as a crime against the community as well as the victim. Alleged wrongdoing in voluntary contractual or other financial transactions is posited as fundamentally distinct from crimes of violence because of the nature of the threat the latter poses to public order. The distinction between the wrongs is also manifested in the notion of the response appropriate to each. Public offenses require punishment, which is exacted by the polis on its own behalf. We are dealing, then, with the notion of a body of law that deals with such offences, distinguishes them from private wrongs, and punishes them in the name of the polis as opposed to merely providing compensation to the victims for the harm or loss they have suffered.8 Of course, the pattern of what is included within each of these categories will vary from legal system to legal system, as will the capacity to control or influence which path is adopted in a particular case, and other factors.
In the closing passages of the oration Demosthenes returns yet again to the theme of the hubristic rich as a danger to the polis as a whole. In doing so he identifies a conceptual nexus between the integrity of the rule of law, the judges as the embodiment of that rule, and the interests of ordinary citizens in preserving their equality by punishing such wrongdoers. He argues that the physical victim of hubris is not the only victim but all of the citizens as well, because the failure to punish such an offender only produces more such acts against citizens and thus creates a situation where all ordinary citizens are in danger. The reason why citizens do not walk around in constant fear, he maintains, is that they trust in the laws/constitution (politeia) to protect them from violence. Thus he asks the judges, “Do not betray me or yourselves or the laws” (my emphasis). This willingness to enforce the law regardless of the wealth or status of the defendant is the basis of the rule of law. To drive this point home he asks the judges, “What is the strength of the law? If one of you is the victim of a wrongful act and cries out, will the laws come to his assistance? No, they are only letters and incapable of this. Wherein then resides their power? In you, if you support them and enforce them for those in need. So the laws are strong through you and you through the laws” (224–5; and cf. 20–1).
The punishment of all wrongdoers through legal process is, on this view, the bedrock of legal order. Such men, who commit these kinds of crimes against individuals, must meet with an appropriate response from the political community that they have wronged. Thus he tells the judges that they must consider that wrongful acts in violation of the laws are public (koina), regardless of who has committed them, and that no excuse such as public service, pity, or influence, should enable the man who has violated the law to escape punishment (219–25). Combining all of these themes together, he concludes that in voting to convict, the judges will be coming to his aid, providing redress for the demos, teaching others moderation, enabling themselves to lead their lives safely, and making an example of the defendant for the benefit of others (227). We find here a clearly articulated, though rhetorically hyperbolic, rationale for the way in which crimes such as hubris are public in nature and demand a public response in the form of criminal penalties rather than private remedies. All of this reflects an understanding of criminal law and the rule of law as the bulwark of society by which impunity for any person because of their status undermines the law which is the protection of everyone. Only punishment of those who act with impunity can preserve that order.
The functioning of the system Demosthenes describes depends on the willingness of individuals to seek redress through the courts. This means, of course, foregoing seeking revenge on their own. The most famous rationale in the Athenian context for refraining from private vengeance is in Aeschylus’ Eumenides, where only the establishment of the first Athenian homicide court can end the cycle of murderous retaliation.9 In an agonistic society where personal honor was a highly prized commodity, there might be considerable social and psychological pressure to avenge oneself directly.10 In Against Meidias, for example, Demosthenes explains at some length why he chose the better course of action by restraining himself and leaving it to the courts to punish Meidias (21.74–6). Similarly, in Against Aristocrates, he develops an argument (however self-serving in the context) that those who are the victims of violence should not take revenge themselves but should leave it to the courts to punish the wrongdoer. It is the role of the judges, not the victim, to enforce the protection against violence provided by the laws (23.75–6). The fact that he felt compelled to make this argument in these orations indicates that there were countervailing values to the rule of law at Athens, values that dictated that men should answer certain kinds of violence against their persons or families in like terms. Such values existed in tension with the recognition that the purpose of the laws providing punishment for violence, hubris, and the like is to take such conduct outside of the realm of private vendetta and make it the business of the state and its courts. As Demosthenes repeatedly puts it, this involves prohibiting revenge and providing public penalties for the punishment of wrongdoers.
A legal system in which prosecution remains in the hands of citizens naturally implies that the individual bringing the action must decide which remedy to pursue. In another oration of Demosthenes we see the way in which this choice involves a strategic dimension that differs significantly from our notion of how the law should, at least ideally, operate. The oration Against Conon (54) arises from another lawsuit for simple assault, brought by a young man who claims to have been humiliated, stripped naked, rolled in the mud, and badly beaten by Conon and his sons and their friends. In this suit (dikē) for assault (aikeias) the plaintiff, as in the orations just considered, acts as if it were an action (graphē) for hubris because of the far greater emotional weight that public offense carries with it. The evocation of hubris is particularly appropriate here because his allegations of Conon’s conduct read like a textbook case of that offense.11 Moreover, this will clearly be on the minds of the judges, because the word “hubristheis” (“I have suffered hubris”) is the first word of the oration. Why then did he not bring an action for hubris and seek the judicial revenge that it would have provided?
The speaker explains that he is young and inexperienced and that after he recovered from his injuries he consulted friends and relatives as to what to do. They said that the defendant was in principle liable for the procedure of summary arrest (apagōgē) as a cloaksnatcher (i.e., because Conon allegedly stripped his cloak from him he committed this crime, lōpodusia) or for an indictment (graphē) for hubris. But they advised him not to pursue such actions and to content himself with a private suit. The grounds he gives for this is that they said that the other kinds of prosecutions would appear as too ambitious for one his age and he would not be able to bear the burden of conducting them. What does this suggest about the Athenian legal system? It indicates the way in which in any system that relies on popular prosecution the choice of remedy will depend on the identity and status of the parties, not just when it comes to judgment, but even in initiating such a case. This is, of course, part of the rationale for state prosecution, for the state is less likely to be intimidated by powerful defendants (though in practice in many states this is not the case).
Further, what does the speaker mean when he says that his advisors counseled him that he would not be able to bear the burden of prosecuting for hubris? This indicates the way that the gravity of the redress sought would determine the response by the defendant. The higher the stakes, as reflected in the status and connections of the defendant and the seriousness of the charge, the more that litigation may come to resemble feud, or a kind of private war, and the greater the capital (symbolic, social, economic, political) someone must have to enter into this struggle, which will continue long after the case at hand is over.
At the same time, however, it is important for a plaintiff like the young man in Against Conon not to appear too timid. For if his injuries are as great as he claims he must demonstrate to the judges an appropriate desire for revenge or risk being suspected of having exaggerated the charges. So he says that he decided to follow the advice of his elders (demonstrating his good character) though it would have pleased him to have pressed a capital charge (54.1). Having detailed the horrific nature of his humiliation and injuries, in his peroration he argues that the judges should share in the anger he feels toward Conon and should not regard this as a private matter that might happen to any man. Again taking the language of criminal wrong from hubris and the like he asks the judges, “Will it be in the interests of each of you to let off a man who beats people up and commits hubris? I think not. But if you let him go there will be many, if you punish him, fewer” (42–3).
We see in these orations the way in which speakers utilize the rhetoric of public wrongs, harm to the public interests of the polis as a whole, and punishment (as opposed to compensation to the victim) to press their case, even when in a technical sense it is a kind of action involving only a private matter. The rationale of punishment is expressed as advancing the public interest in deterring others from committing such wrongs. The pervasiveness of this strategy in the corpus of legal orations reveals the power of such appeals and, hence, the centrality of such thinking in Athenian conceptions of wrongdoing and legal process. Athenian law may provide a series of remedies for many kinds of wrongs, but regardless of what procedural rubric they fall under orators expect the mass courts of citizen-judges to respond to characterizations of private violence as a threat to public interests.
The cases reviewed thus far all involve nonlethal bodily violence, but such arguments were also thought appropriate where the object of the wrongdoing was property. Thus, in Against Timocrates Demosthenes applies a similar argument to the variety of actions by which individuals might pursue different kinds of thieves. The speaker notes how the various kinds of theft may be punished summarily or through a trial, depending on the circumstances. These are clearly conceptualized as public offenses and involve capital penalties rather than compensation (24.113). But even private suits for theft might be so regarded. The speaker discusses the various options and says that if someone is convicted in a private (idian) suit for theft (klopē) the normal penalty is to pay double the amount of the value of the stolen property. But, he continues, the judges can also assess an additional punishment of confinement in the stocks for five days and nights “so that everyone can see him bound.” He says that the purpose of this law was to deter other potential thieves, because in addition to paying double, the humiliation of this public confinement would cause them to live in shame for the rest of their lives (115). This again shows the way in which certain kinds of conduct that represent a forcible violation of protected private spheres could formally fall under the procedure of private lawsuits (dikai) but might nonetheless be regarded as an offense against the public.
If the prosecution of crime depended on the actions of private citizens, what did Athenians think of these citizen prosecutors and their role in the polis? Our principle knowledge on such matters comes from the persuasive efforts of such prosecutors to characterize themselves to the judges. These rhetorical constructions, in turn, reflect the speakers’ expectations of how judges will view them and what kinds of criticisms they might expect. Aeschines’ oration Against Timarchus (1) offers valuable insight into what anticipated responses guide such rhetorical constructions. This oration involves the prosecution of Timarchus for speaking to the Assembly when the laws prohibit him from doing so because he allegedly prostituted himself as a young man. The real motive behind the prosecution appears to have been Aeschines’ enmity toward Demosthenes, with whom Timarchus was closely associated. This points up one of the dangers of popular prosecution, which is its potential misuse in the service of private enmity. Indeed, the Athenians considered malicious prosecution a serious offense that endangered the integrity of the administration of justice.
The seriousness with which such matters were taken is indicated by the very first words of Against Timarchus: “I have never indicted (graphēn grapsamenos) any citizen nor assailed any man when he was giving an account of his office . . .” (1.1). The role of the citizen-prosecutors can thus cut either way. On the one hand they may be seen as doing their civic duty to protect the city from wrongdoers who commit crimes against the public interest, or, on the other hand, they may be viewed as abusing the ability to initiate criminal actions for gain or revenge. Accordingly, in these very first sentences Aeschines makes clear that his prosecution is in response to a public wrong: “When I saw that the city was being greatly harmed. . . . I decided that it would be most shameful if I did not come to the aid of the whole city, and its laws and you and myself” (my emphasis). He concludes this opening section by arguing that his conduct proves the truth of the adage which maintains in regard to public prosecutions (dēmosiois agōsin) that “private enmities (idiai echthrai) very often rectify public wrongs” (1–2). Here the private citizen, though he may be motivated by enmity against the defendant, appears as the defender of the interests of the polis and its laws and institutions. In the absence of magistrates entrusted with public prosecutions the system relies on individuals acting in such a manner. In the following passage Aeschines offers a rationale for this way of organizing the city’s affairs.
For Aechines this is a central feature of Athenian democracy. He begins by contrasting the role of law in democracy with other forms of constitution. In democracies, he claims, “the laws guard the person of the citizens and the constitution of the city,” whereas oligarchies and tyrannies are preserved by force (1.5). The democratic idea of the rule of law thus rests on the notion that it is the law that protects citizens in their persons from harm. This is because in a democracy the law is enforced through the citizens themselves, as judges and as prosecutors. It is this democratic unity of interest that underlies the identification of the prosecutor, judges, law, and the interests of the demos/polis embodied in formulations such as that quoted in the preceding paragraph: “the whole city, and its laws, and you and me.” We saw the same sentiment voiced by Demosthenes in Against Meidias, and it appears throughout the corpus of forensic orations. This position, as Aeschines makes explicit, rests on a notion of law as a support not just of public order, but of the democratic political order. Thus, he argues, when legislating, the demos (as represented by the judges) must consider how to make laws that are in the interests of their democratic constitution. Further, once the laws are enacted, if the state is to fare well they must punish those who do not obey the laws (6, and cf. 36 and Aeschines, Against Ctesiphon, 3.6–7). Punishing crime thus appears as the necessary foundation for upholding the rule of law and the democracy on which it is based. Citizen prosecutors and judges are the instruments by which the democracy is preserved. As Demosthenes sums it up in another oration (18.123), “Our ancestors established the law courts (dikastēria) not so that speakers would air their private grievances against one another but so that those guilty of offenses against the polis might be convicted.”
This view is made even more explicit in an oration by Lycurgus that in parts reads like a kind of “civics lesson” in Athenian democracy. In Against Leocrates (1) Lycurgus portrays himself as prosecuting Leocrates for his crimes for the benefit of the demos and the polis. He justifies this stance by setting out a democratic conception of criminal law and public prosecution. He begins by saying that those who prosecute should be regarded with gratitude by the city. Instead, though they are acting for the common good, the reverse is true, which does not result in either justice or advantage for the polis. He supports this claim by explaining how, on his view, the system of popular prosecution works.
There are three main factors, he maintains, that preserve the democracy and the prosperity of the polis: the system of laws, the vote of the judges in the popular courts, and the system of prosecution by which crimes are brought to court. He then explains in detail how this schema works. The laws, he says, proscribe what must not be done. The prosecutor (katēgoros) accuses those who are liable to the penalties prescribed by the laws. The judges punish those whom the other two elements have brought into court. On the basis of this conceptual diagram of how a system of popular prosecution for crime works, he concludes that the whole system depends on someone who will bring the criminals into court. This is, of course, his role, which he has just elaborated and defended (1.3–5). Thus, though driven by private initiative, the system works in the public interest and expresses and preserves the Athenian democracy.
Articulating the same concern about the role of private enmity as Aeschines, Leocrates gives it a different rhetorical spin, but one that reflects similar concerns about how the relation of enmity to public prosecution will be perceived. He thus claims that he brought the case forward not out of enmity or vexatiousness, but rather to prevent harm to the city. Elaborating the principles behind this, he says that the just citizen will not bring public (koinas) prosecutions against one who has committed no crime on account of his private enmity (dia tas idias echthras). Rather, he will regard as his private enemies those who violate the laws of the polis. The public quality of the crimes (ta koina tōn adikēmatōn) provides public grounds (koinas kai tas prophaseis) for enmity toward such men. Here the central thrust of the passage is that when the system operates properly, prosecutions, though initiated by private citizens, respond to public wrongs and serve the public interests of the polis, not the private interests of the prosecuting party (1.5–6).
For Aeschines and Lycurgus, then, the role of the good citizen is to prosecute crimes on behalf of the demos or, when sitting as a judge, to punish such crimes in the name of the democratic order that they are sworn to defend. What of those who defend wrongdoers? Lycurgus indicates that it is to be expected that friends and relatives will speak in their defense, but he attacks individuals who otherwise defend those who betray the democracy. Such rhetorical skill, he says, should be used “on behalf of you, the laws, and the democracy” (138).12 The identification of the interests of the judges, laws, and the democratic constitution is a natural one in Athens, but as one sees here, it has its dangers in providing a rhetoric for condemning or silencing opposition. These will be explored in more detail below, but one such problem appears in a later section of Against Leocrates, when Lycurgus argues that the judges should take vengeance on Leocrates for his crime (141–6). Conceiving of the judges in this way threatens to collapse the distinction between vengeance and punishment that the rule of law and the public trial of offenders is designed to preserve. This collapse is, however, already implicit in claiming that in meting out punishment the judges are at once serving the laws and their own interests as citizens and members of the demos. The rhetoric of Demosthenes and Lycurgus at times verges on that of a kind of public and institutional self-help, not the impartial application of judicial judgment.13 This was perhaps at Athens a natural tendency, given the centrality of participatory government and the elements of self-help and summary action that played an important role in the Athenian treatment of crime.
We have seen the way in which Athenians were well aware that the private desire for revenge or the pursuit of enmity might well be the fuel that impelled individuals to initiate prosecutions. The idea here is that if the defendant is convicted the polis will substitute its punishment for the vengeance of the aggrieved party. Athenian law, as in many other legal systems, permitted even more direct forms of self-help. For example, certain kinds of serious offenders might be dealt with by summary procedures if apprehended in the act. In such cases they might be executed on the spot by private citizens or detained and brought before officials known as The Eleven (by the procedure of apagōgē), who could execute them immediately or bring them to trial if they plausibly denied their guilt.14 Despite scholarly disagreement about the details of these summary procedures, what is important for our purposes is that they legitimized summary execution without trial, whether carried out by private citizens or public officials. How did the Athenians conceive of this exercise in self-help and extrajudicial execution and how did they reconcile it with their commitment to judicial punishment and the rule of law?
The case is more straightforward when the execution is carried out by the Eleven, for the law permits them to do so only where the offender does not deny his guilt. This may sound strange at first glance, but as in most other legal systems that adopted such provisions, essential to this manner of proceeding is the public apprehension of the criminal in the act. A thief caught in the act and dragged off by witnesses to the Eleven with the stolen property will be hard put to deny his guilt to the satisfaction of the Eleven. If he does so, perhaps claiming that he was only recovering his own property, he will be tried before a popular court. The more difficult case arises where the victim takes matters into his own hands.
Lysias’ oration On the Murder of Eratosthenes (1) represents such a case.15 A cuckolded husband takes the adulterer Eratosthenes in the act, having summoned many witnesses before he enters the bedroom that is the scene of the crime (23–8; 37). As he admits, he killed the man on the spot and is later prosecuted for homicide. This would be part of the considerable risk that those engaging in direct self-help would have to bear. What is of interest for our purposes is the rhetorical strategy by which he defends and justifies his actions. What he does is to portray his exercise in self-help as the legal punishment for a public offense as ordained by the laws of the polis. His argument is a classic statement of criminal punishment as opposed to private vendetta. When Eratosthenes begs for mercy, the husband replies. “It is not I who am going to kill you but our city’s laws, which you have transgressed . . .” (26). He presents his self-help as an instrument for the execution of the laws of the polis and repeats this theme over and over as his central argument (29, 34). In his peroration he sums up the point in the clearest terms: “Therefore I do not regard this penalty to be on behalf of my own private interest, but rather on behalf of the whole city” (47). Whatever the actual merits of this case, the salient point is that Lysias believed that the most persuasive strategy lay in constructing self-help as a means by which citizens acted for the laws and the demos in punishing wrongdoers. In a participatory system for the prosecution of crime that depended on a citizen’s initiative he might well expect such a plea to be persuasive.
As noted earlier, it might seem that the area of prosecution of homicide, of which On the Murder of Eratosthenes is an example, does not fit in with the notion of public offenses, crime, and punishment because it was pursued through a category of action (dikē phonou) open only to the kin of the victim. We have seen, however, that this procedural classification did not necessarily imply that the prohibited act was seen as merely a private wrong that did not affect the polis. That this is in any event unlikely is indicated not only by the prohibition against the polluted perpetrator entering the public spaces of the city but also by the fact that those accused of intentional homicide (like those accused of intentional wounding, also a dikē) were not brought before the courts that heard ordinary dikai, but before the court of the Areopagus that in classical times only heard these kinds of cases and was regarded with particular awe.16 The literary portrayal of the foundation of this court in Aechylus’ Eumenides amply reveals the way in which the stability of the polis was regarded as depending on the establishment of a public court to punish homicide and prevent vendetta. As will appear, it is quite clear from our sources that homicide was not regarded as a purely private wrong affecting only the family of the deceased, and it is important to understand why from the Athenian perspective there may have appeared to be no contradiction between murder being seen as one of the most serious offenses and not including it in the category of crimes which any citizen might prosecute.
Demosthenes’ oration Against Aristocrates (23) deals at some length with the law of homicide. The portrayal of homicide law here insists on its public quality. Thus, the speaker says that when someone is accused of homicide it is the city that punishes him only after it has satisfied itself by a trial whether the accusation is true – and not before. He expounds on this by indicating how the law of homicide substitutes public legal process for private revenge. This is because, he explains, the lawgiver thought that because “we avenge the victim” we must first know if the defendant is guilty. In homicide cases, regardless of the fact that they are brought by a dikē, the city is portrayed as the avenger of the victim and trial, rather than vendetta by the kin, is the mechanism (25–6). The speaker goes on to explain the difference between punishment and vengeance, using as an example the summary arrest of a convicted murderer who has come back from exile and is apprehended and taken to the Archons. He explains that taking a man to the Archons is fundamentally different than leaving him to the mercy of the prosecutor. In the former case, he says, “the man is punished as the law commands, in the latter case as the prosecutor pleases. And there is the greatest difference whether the law has sovereign authority over punishment/retribution (timōrias) or the man’s enemy” (31–2).
He continues by adducing the many prohibitions on mistreatment of those who have gone into exile after a homicide. As an example he cites how killing the murderer who has fulfilled the requirements of the law in fleeing into exile is treated the same as ordinary homicide against any Athenian citizen (38). These measures, he explains, are designed to prevent an endless chain of revenge killings (39), that is, blood feud. The conception of homicide as an offense that in a direct way involves the public interest is clear. This whole battery of laws is designed to limit revenge, curtail the role of the kin, remove the violence of feud from the city, protect the man who goes into exile, and vest the sole authority for punishment for homicide in the polis.17 In a later section (69) he concludes by arguing that even when the prosecutor has proved the charge and the murderer is convicted, the laws (nomoi) alone have the authority to punish him. Significantly he adds that it is only permitted the prosecutor to see the penalty that the law prescribed being inflicted and that is all. The interest of the family in prosecuting homicide is apparent here, but so are the limitations that the polis places on the family’s role in recasting private vengeance as public punishment. All that remains of the duty of kin to avenge blood with blood is that they are permitted to observe the execution being carried out.18 This, he says, is the right of the prosecutor (69); no less, but also no more.19
As we have seen thus far, Athenian sources discuss a notion of the rule of law that requires that the power to punish be vested in judges who pronounce judgment in the name of the polis. It was also seen, however, that although Athenians might “condemn as uninhabitable those states where citizens are sometimes put to death without trial” (Isocrates, Antidosis, 15.22), the Athenian legal system’s ways of dealing with crime incorporated a significant measure of summary procedures and self-help. This was, of course, the result of the way in which the system developed over time, the general participatory nature of Athenian democracy, and the persistent respect for the right, within carefully demarcated limits, of the oikos (household, family) to protect its domain against violation and dishonor. It is also important to recognize, however, that summary procedures might also be institutionalized in other forms where they seem to conflict clearly with the requirements of the rule of law. This involves extrajudicial execution by public bodies.
Aristotle, in his history of the Athenian constitution (Ath. Pol. 44.1), explains how
The Boule formerly had the power to fine, imprison, and execute. But once when it had brought Lysimachus to the public executioner and he was waiting, about to die, Eumelides of the deme Alopece rescued him, saying that no citizen ought to die without being convicted by a court. . . . And the demos deprived the Boule of the right to fine, imprison, and kill, and made a law that all convictions and penalties passed by the Boule must be brought . . . before a court, and that the judgment of the dikasts should prevail.
Little is known of the way in which such discretionary power to punish citizens without trial was exercised.20 Aristotle’s discussion indicates that the limitation of this power represented a shift in power to the popular courts by giving them the exclusive right to punish (see below). It also demonstrates a commitment (however imperfectly it may at times have been implemented) to a model of the rule of law where the power of the state to punish wrongdoers is conceived as operating exclusively within and through the law. This indicates the recognition of the kind of principles of legality that we today see as intrinsic to a legitimate system of criminal justice that protects citizens from arbitrary punishments through application of the principle that punishment can only proceed from conviction after a fair trial.
The grave public interests at stake in such circumstances are further indicated by another event recounted by Aristotle in the same text. After having discussed the oligarchic coup of the Thirty Tyrants and the excesses of their extralegal executions, banishments, and confiscations, Aristotle turns to the reconciliation of 403 B.C. and the amnesty which prohibited seeking legal redress for wrongs suffered. In this context, he describes the three great statesmanlike acts of one of the leaders, Archinus. One of these takes place when an individual began to provoke grudges against the returnees. Archinus takes him off by summary arrest to the Boule and persuades them to put him to death without trial (akriton apokteinai) on the grounds that this is the moment to make an example and show they are committed to saving the democracy. Aristotle, who has just condemned the illegal execution of the generals from Arginusae, has only praise for this measure. What accounts for the difference in his reaction to these two instances of extrajudicial execution?
On my view, such judgments arise from the widespread conviction in Athens that that the criminal law is ultimately an instrument to preserve the political order, an exercise of political power. When swift action is required to save the state, then it is legitimate for a political body other than the courts to exercise that power extrajudicially, that is, to use their political authority to deprive someone of his life without resort to trial. The willingness to do so and the way in which it is viewed as unproblematic, statesmanlike, and praiseworthy by Aristotle tells us a lot about the way in which Athenians may have viewed the criminal law and its power of life and death over citizens – not just as impartial justice dispassionately meted out but as the bedrock of the political order in the use of which the ends may justify the means. This is buttressed and justified by the identification of the laws, the judges, the demos, and the democracy frequently cited above. Athenian judges took the Heliastic oath, which requires impartiality, and acknowledged principles of legality and the rule of law, but these values existed in tension with others that identified the laws with the interests of the polis.
This is what for Aristotle distinguishes the democratic excess of the response to Arginusae from the statesmanlike act of Archinus and the Council. As Isocrates asserts in his Areopagiticus (7.46–7), when Athens was well-governed the Boule enforced discipline by summoning the disorderly and threatening or punishing them. They understood that order is maintained only through both punishment and watchfulness (epimeleia). They thus could see in advance who were likely to commit an offense. Such disciplinary (in the Foucauldian sense) fantasies are typical of Athenian political theorists skeptical of radical democracy, but more democratically minded thinkers were also not immune to this logic. In such a context Lycurgus (Against Leocrates, 1.124–7) refers to a law adopted after the overthrow of the Thirty, which provided that anyone who killed a person trying to overthrow the democracy or aspiring to tyranny should be guiltless. Commenting on the wisdom of this provision, he says that for normal crimes the punishment follows the crime, but in the case of treason or overthrowing the democracy it should precede it. This comment again demonstrates the participatory nature of the system of criminal law, its intermingling with the political goals of protecting the democratic constitution from its enemies, and the way in which self-help can be put to use in such a system. In a political context where the interests of the prosecutors, judges, law, and polis might be so closely identified, such attitudes could naturally arise. In the remaining part of the chapter we explore other tensions this might produce within a system that viewed itself as embodying the rule of law.
In his account of the development of the Athenian judicial system from the time of Solon to the fourth century, one of Aristotle’s overarching themes is the steady growth of the power of the demos through legal reform. This begins with the extension of the power to prosecute to “any citizen who wished to do so” (Ath. Pol. 9.1–2) and culminates with measures like the introduction of pay for serving on the popular courts (27.4–5). What Aristotle understands by this is judicial reform as a principal means by which the power of the demos was enhanced at the expense of the “better” classes. That is, the courts become dominated by those who associate their political interests with the radical democracy. In his review of eleven stages of the development of the Athenian constitution (politeia), he concludes his account of the final stage by emphasizing how it has given ultimate power to the demos: “For the demos has made itself sovereign over everything and administers everything by decrees and by popular courts in which the demos is the ruling power, for even the cases tried by the Council have come to the demos” (41.2).
In his discussion of the radical democracy in his Politics, Aristotle argues that these courts have even put themselves above the law and in doing so have made this form of democracy like a tyranny in its lawlessness. Athenian democrats did not share Aristotle’s conception of the rule of law,21 but what was clear to all who viewed Athenian legal institutions was that they represented a major source of political power. Tyrants from Peisistratus to the Thirty Tyrants, tried to control or eliminate the authority of the Athenian dikastērion (Ath. Pol. 35.2). Plato advances a theoretical account of this view in his laws, where he sees all existing states as merely having institutionalized the results of social conflict in their constitutions, whereby the wealthy in an oligarchy or the many in a democracy write the constitution in such a way so as to use the laws and judicial institutions of the state to advance their own interests at the expense of the group that is out of power (713–15). On Plato’s view, under such conditions there can be no rule of law for the law is subordinated to the political interests of the ruling party.
Athenians of all political perspectives recognized what our belief in the ideology of the neutrality of the administration of justice and the rule of law tends to blind us to (unless we belong to the groups who feel that the legal system discriminates against them on account of race or poverty). That is, they understood that the power to punish violations of the law in the name of the state is central to the authority of those who (on the Greek view of constitutions) wield the power in the state, whether the many (democracy), the few (oligarchy), or a tyrant or monarch.22 That is, they recognized that laws and courts did not just establish that offences against the public weal must be defined and punished according to the law so as to maintain the social and political order, but also that this function is an instrument of political power. In the orations discussed above speakers often identified the interests of the democracy with “its” laws and courts. As Demosthenes put it in one oration (24.154), reducing the authority of the courts is a sure way to facilitate the overthrowing of the democracy. It was in this light that they, democrats and their critics alike, saw the historic shift of power to democratic courts and citizen prosecutors. The impact of this recognition is felt throughout the corpus of legal oratory, for it underlies the constant fear that the rule of law, and particularly its component principle of equality before the law, will be undermined in particular cases by considerations of the interests of the demos.
The fear, depending on one’s point of view, was that the wealth, status, and influence of a person would weigh for or against the arguments in the case at hand. Demosthenes (51.11–12) employs widely used rhetorical topoi in commenting on the ideology of equality before the law and the problem of different punishments for rich and poor. He asks the judges, “If a poor man commits a crime because of his poverty he will be punished with the most severe penalties, but if a rich man does the same thing on account of shameful love of gain he will be pardoned. Where then is equality for all and democratic government if you manage things in this way?” In Against Meidias and other orations Demosthenes also inveighed against the way in which the hubristic rich used their influence to harm other citizens with impunity and to deny equality before the law (21.112, 123–5, 169–70).
The real problem here is not just that wealth and status might help a citizen avoid punishment for wrongdoing (as it also does in our own legal system through a variety of means). What underlies the fear that such factors (e.g., hostility or deference to the wealthy) will play a role in reaching judgment is the realization that in an Athenian prosecution a person’s life is on trial as well as the act for which he is accused. This results in the attacks on character that are such a striking feature of Athenian forensic oratory. Equally striking is that they are leveled not just at the defendant, but also at his accuser. In a sense, both parties’ lives are on trial in many cases. This seems wildly at odds with our notion of criminal prosecution, where the accused is to be judged for what he or she did or did not do, not for what he or she is or might have done in the past. But given the tendency of Athenians to identify the interests of the laws, the judges, the demos, and the polis, it was natural to view a prosecution in a different light.
This is the danger represented by this notion of the unity of the demos with its laws and courts. In Athens the idea that a criminal trial is not about what a man is but about what he has done is also present in forensic rhetoric, but it exists in tension with the ideas advanced by orators such as Aeschines, Demosthenes, or Lycurgus that the laws and courts are mechanisms for the demos to protect itself from those who may harm it. This notion can result in the criminal conviction of a Timarchus, but also of a Socrates. In Against Ctesiphon, Aeschines tells the judges that they will protect their democracy if they punish those whose policies are opposed to “the laws and to your [i.e., the judges’] interests” (3.8). On Aeschines’ formulations, or Lycurgus’s admonition that in cases of treason punishment can precede the crime, it is not clear that the interests of the demos are not enough to convict, regardless of the niceties of legal guilt. The point here is that the nature of Athenian democratic institutions, and the manner in which thinkers such as Aeschines and Demosthenes conceptualize them rhetorically, blend legality and interest together in a way that makes them largely indistinguishable and tends to convert some criminal trials, at least of those engaged in public life, into a trial of their social standing and usefulness to the polis in relation to that of their opponent. In this sense it is an agōn about who they are as much as it is a trial about whether a particular violation of the law occurred. Of course, this would have been different for the average thief or cutpurse who comes before a dikastērion to stand trial, but it is itself telling that such individuals largely fall below the horizon of our sources except in occasional anecdotes. It is equally telling that they are the types of criminal who are subjected to summary procedures and may have only infrequently come before a court.
As we have seen, on the one hand, prosecutions for public offenses in Athens were informed by ideas about crime, punishment, and the rule of law that are clearly familiar to modern readers in their adherence to notions of impartial judgments dispensed in the name of the law to vindicate and prevent harms to the community as a whole. On the other hand, the incorporation of elements of self-help, summary procedures, execution without trial, and judgments based on the character, wealth, political clout, and public benefactions of the parties challenges us to understand why the understanding of crime and punishment in democratic Athens could differ so sharply from that of today. And differ not because their legal system was corrupt, primitive, or incompetent, but because the Athenian understanding of concepts of justice, democracy, and the rule of law in important ways differed fundamentally from our own.
1 See, for example, Gagarin (1981, 1986, 2002), MacDowell (1963), Hansen (1975, 1976), D. Cohen (1983, 1991, 1995), Cantarella (1976, 1979, 1987, 1991b), Saunders (1991), Wallace (1989).
2 See most recently Todd (1993: 99–112).
3 MacDowell (1978: 59).
4 Calhoun (1927).
5 MacDowell (1978) and Todd (1993: 109–10).
6 See Aristotle, Rhetoric 1374a13–15, 1378b23–5, and D. Cohen (1995), Chapter 7. On the general concept of hubris, see Fisher (1992).
7 For a different approach, see MacDowell’s edition (1990).
8 Demosthenes, in Against Meidias (21.19), says that in bringing a public action he is foregoing the financial gain damages would have given him and instead is entrusting his punishment (timōria) to the state.
10 See D. Cohen (1995: Chapters 4–5). On Against Meidias, see Wilson (1992).
11 In addition to the violent and humiliating acts mentioned above, the victim claims that after doing all of this to him Conon stood over his bloody, muddied, naked body and flapped his arms in a kind of victory dance like a crowing rooster. This is paradigmatic of the conception of hubris articulated by Aristotle, above.
12 See also Dinarchus (Against Demosthenes, 1.113).
13 There would have been a natural tendency in this direction in political offenses against the polis. See Dinarchus, Against Philocles, 3.8 and cf. 19.
14 See Aeschines, Against Timarchus, 1.90–1, and Aristotle, Ath. Pol. 52.1. For different inter- pretations see D. Cohen (1983: Chapter 3), Hansen (1976), and Todd (1993: 117–8, 228).
16 See Demosthenes 23.66: “The Areopagus is the only tribunal which no democracy, oligarchy, or tyrant has dared to deprive of its jurisdiction over homicide.”
17 Of course the distinctions that go back to Draco between intentional, unintentional, and accidental homicide are also a limitation on the process of seeking vengeance by classifying homicide according to public standards of justice. On the development of early homicide law see Gagarin (1981) and Cantarella (1976).
19 Of course the other role assigned to the family is to seek vengeance through legal process through their role as initiators of the prosecution. Though in actuality blood money may well have been paid not to do so, in terms of social norms and ideals it was unthinkable for a family not to seek to avenge the deceased and it was considered an act of impiety (asebeia) not to do so.
20 See Lysias 22.2–4, Todd (1993: 316 n.2), and MacDowell (1978: 189–90).
21 See D. Cohen (1995: Chapter 3),