Dēmos · Classical Athenian Democracy · a Stoa Publication
→ Preliminary Procedure.
Victor Bers & Adriaan Lanni, edition of March 15, 2003
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Once a man determined that he had been wronged by another, he had a variety of options. He could, of course, ignore the legal system altogether and attempt to obtain redress through violence or persuasion backed by threat of litigation. Alternatively, the men involved could decide to submit their dispute to a mutually agreed-upon third party for binding private arbitration. If the aggrieved decided to go to law, he often had more than one type of procedure to choose from. There were two main categories of legal procedure: private cases (dikai see the Glossary entry), in which the victim (or his family in the case of murder) brought suit, and public cases (graphai see the Glossary entry), in which anyone was permitted to initiate a suit. According to Plutarch and Aristotle, the lawgiver Solon introduced this generalized standing rule in public cases to protect the weak, but it is unclear how often disinterested parties brought cases for altruistic reasons. In our surviving graphai the prosecutor tends to be the primary party in interest, or at least a personal enemy of the defendant with something to gain by his conviction. Although volunteer prosecutors were vital to the functioning of the Athenian legal system, there was a real worry that some men would take advantage of the open standing rule by bringing frivolous suits, perhaps in some cases with the hope of extorting a settlement from an innocent potential defendant. The Athenian term for such a man was “sycophant,” a word of uncertain etymology, and unrelated in meaning to the later English word. (sukophantai see the Glossary entry) The practice of sycophancy was discouraged not only by a heavy social stigma, but also by a system of penalties for dropping a public case or failing to win one-fifth of the votes at trial.
Although no ancient source explains why some charges were designated as graphai and others as dikai, graphai seem to have been cases that were thought to affect the community at large. This division does not neatly map onto the modern criminal-civil distinction; murder, for example, was a dike because it was considered a crime against the family rather than the state. Bringing a graphe was a more serious affair for both prosecutor and defendant: graphai were allotted more court time, involved greater penalties, and placed the prosecutor at risk of a 1000 drachma fine (perhaps 500 days’ wages for a skilled workman) if he failed to receive at least one-fifth of the jurors’ votes at trial. A passage from a speech of Demosthenes offers a somewhat exaggerated view of the variety of procedures available to potential litigants and the considerations that influenced their choice of charges:
“Solon, who made these laws, did not give those who wanted to prosecute just one way of exacting justice from the offenders for each offense but many… for example thieves. You are strong and confident: use the summary arrest procedure; you risk a 1000 drachma fine. You are weaker: use ephegesis [the procedure for pointing out an offender for arrest by magistrates — VB/AL] to the magistrates; they will then manage the procedure. You are afraid of even that: use a graphe. You have no confidence in yourself and are too poor to risk a 1000 drachma fine: bring a dike before the arbitrator and you will run no risk. Now none of these actions is the same…. It is pretty much like that for all offenses.” (Dem. 22.25-6).
Ariston, the prosecutor in Demosthenes 54, found himself facing a similar array of choices. While taking a walk though the agora, Athens’ marketplace, one evening, he was jumped, beaten, and stripped by a group of drunken men. Adding insult to injury, Ariston reports that one of his attackers yelled epithets at him and stood over him crowing and flapping his arms at his sides like a victorious fighting cock. Ariston explains to the jury why he settled on a dike for assault rather than availing himself of the summary arrest procedure or bringing a graphe for hubris, a charge that was not clearly defined but seems to have involved an affront to one’s honor:
“All my friends and relatives, whose advice I asked, declared that for what he had done the defendant was liable to summary arrest as a clothestealer, or to a graphe for hubris; but they urged and advised me not to take upon myself matters which I should not be able to carry, or to appear to be bringing suit for the maltreatment I had received in a manner too ambitious for one so young. I took this course, therefore, and in deference to their advice, have instituted a private suit (dike), although I should have been very glad to prosecute the defendant on a capital charge.” (Dem. 54.1).
Ariston thus suggests that he chose the assault procedure not because the defendant’s actions most closely fit that crime, but because of his own youth and inexperience. In fact, Ariston attempts to characterize the defendant’s actions as hubris, and not merely assault, from the first word (hubristheis: “I have suffered hubris”) to the penultimate sentence (hubristeoi: “we do not deserve to be subject to hubris”); in the course of his speech he quotes the laws on clothestealing and hubris but not the law prohibiting assault. These passages illustrate one of the most distinctive features of the Athenian legal system: the emphasis on procedural rather than substantive law. Ariston’s decision to charge Conon with assault had a variety of procedural consequences involving the length of the trial and the risks borne by the prosecutor and defendant, but his choice did not restrict his substantive arguments at trial to the assault charge.
Once a man decided on a legal procedure, the first step in bringing suit was to draw up and personally deliver (accompanied by witnesses) to his opponent a summons to appear before a magistrate to answer a particular charge. On the appointed day, the prosecutor presented his indictment to the magistrate, who collected court fees and arranged for a preliminary hearing. We know very little about the purpose or procedures of the preliminary hearing, or anakrisis (see the Glossary entry), but it is possible that litigants were required to place all the documentary evidence, such as contracts, wills, and laws, they planned to use at trial in a sealed jar (one such jar has been found during the excavations in the Athenian Agora). These preliminary proceedings may have helped litigants prepare for trial by providing advance notice of their opponent’s evidence, but there is no hint of the winnowing functions served by pretrial procedures in modern courts; the presiding magistrates, men without any formal legal expertise, did not dismiss suits on legal grounds or set out particular issues to be decided at trial. In the
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