The Council met every day, and was in effect the daily government of Athens. It controlled the state’s finances through its supervision of the relevant committees, it negotiated with foreign states and received their representatives, it heard petitions from Athenian citizens, and it had certain judicial functions. But its most important work related to the Assembly: it debated and prepared the Assembly’s agenda, attached its recommendations to every item on the agenda, counted the Assembly votes, and saw that Assembly decisions were carried out (by means of its authority over all the various bureaucratic committees and subcommittees). It posted the business for all ordinary meetings of the Assembly and had the right to call extraordinary meetings if necessary. The Assembly could not debate a matter which was not on the agenda prepared by the Council, but they could insist that an item be included in the agenda for the next Assembly.
To avoid all five hundred Council members being inconveniently occupied all year round (though they were paid a small daily allowance), the Council year was divided into ten prytanies (slightly variable periods of time), one for each tribe. During its prytany, the fifty men from that tribe were on daily duty, and they reported back to the full Council when it next met; they were chaired by one of their number, chosen on a daily basis by lot, who became for that day the head of the Athenian state, symbolized by his custody of the city’s seal (whose device we can only guess at: an owl? The goddess Athena?) and the keys to the temples where the state’s treasures and archives were stored. Since any adult male citizen could be a member of the Council, and it was the best way to become educated about the city’s political systems, this in turn guaranteed a politicized Assembly, because the people who served as councillors also attended the Assembly. If the historians’ record of speeches is anything to go by, the farmers and peasants who attended the Assembly were politically sophisticated – capable of absorbing a commentary in the New York Times, say, not just the Daily Mail.
One of the remarkable features of the classical Athenian democracy is the degree of involvement by people at all levels of society in the running of the state. Six thousand citizens were enrolled every year as the bank from which to draw personnel to man the jury courts; another seven hundred or so sat on committees or held more prestigious jobs; there were five hundred members of the Council; and thousands also attended each Assembly meeting (though, in the nature of things, only a very few of those thousands spoke at any given meeting, while the rest listened, applauded and heckled). If we count religious festivals as political – as the Greeks would, since it was part of one’s civic duty to maintain a good relationship between the gods and the city – then we can include the thousands who filled the streets or the theatre during the great festivals, for which Athens was famous. Wealthy individuals supported the state by maintaining its navy and funding its spectacular festivals – and, generally speaking, were proud to do so. Every citizen was also on stand-by, from the age of eighteen until he reached sixty, to serve in the branch of the military appropriate to his social status and wealth: a very rich man in the cavalry, a middle-income man in the hoplite phalanx, and a poor man as an oarsman in the navy. Their future prosperity depended directly on their own efforts, but they could not have devoted so much time to public matters if Athens had not been a slave-owning and wealthy society.
THE ATHENIAN LEGAL SYSTEM
Legal systems are value-laden; they offer a good route towards understanding a society’s values. The classical Athenian legal system is bound to seem, to our minds, somewhat strange, but we are now, thankfully, leaving behind the tendency merely to damn it for its ‘deficiencies’, assessed against some modern standard. It should rather be seen as a system that worked by its own lights, and as a genuine attempt to bring social justice to a community, to safeguard its welfare, to make its leaders accountable, and to put judicial power in the hands of the majority. We should not expect it to be more than it could have been: it was in transition between the kind of primitive justice where settlement is reached by flexible agreement among the interested parties, and the more rigid, developed system where settlement is reached by reference to the terms of a standing legal code. The Athenians retained a higher degree of flexibility or vagueness than we would nowadays feel comfortable with, and relied more or less entirely on concerned citizens rather than legal professionals.
Scholars speak of ancient Athenian law as being ‘procedural’ rather than ‘substantive’. To take the case most relevant to this book, in so far as we can reconstruct the Athenian law about impiety, it read somewhat as follows: ‘If a man is guilty of impiety, he is to be tried in the court of the King Archon and made liable to death or confiscation of property. Any citizen who so wishes may bring the prosecution.’ Here the emphasis is procedural, because the focus is on the legal action to be taken, and ‘impiety’ is not substantively defined. But even though many Athenian laws tended to be phrased as threats in this fashion, there were areas of law (such as property law and family law) where clear definitions were more essential, and a substantive element was far more prominent.
Crimes such as impiety, which were taken to affect the community as a whole and to transgress the community’s largely unwritten moral code, were left vague precisely because it was up to the community itself to bring the prosecution (by means of one or two concerned citizens), and to interpret and apply its moral code in reaching a verdict and choosing a penalty. Within broad parameters, then, the understanding of a particular offence could change from case to case, depending on how the dikasts themselves judged it. Of course, there could be no doubt in anyone’s mind that certain actions, such as defacing statues of the gods or stealing sacred property, constituted impiety, but matters rapidly blurred beyond this core. We can go some way towards reconstructing the oath taken by dikasts: in addition to what one would expect about impartiality and so on, there was a provision for voting according to one’s sense of justice, in cases where that sense of justice was not guided by any substantive law. Hence the dikasts were occasionally addressed even as law-makers, rather than as law-interpreters.
There was no public prosecutor; for most kinds of cases where the public good was felt to be at stake, any citizen could take any other citizen to court. The main curiosity here is that even for the most serious crimes, such as murder, the state offered no help; if no individual chose to prosecute a case, it would not come to court. The main abuse of the system was that it became an arena for personal vendettas. A case could be reopened by bringing a charge against one of your opponent’s witnesses, but more commonly, to quote Josiah Ober, ‘The prosecutor in one action, dissatisfied with a jury’s acquittal, might indict the same person, for the same crime, in front of a different jury by use of a different class of action. Similarly a convicted defendant could prolong proceedings by turning prosecutor.’ In the fourth century, Demosthenes and Aeschines spent the best part of ten years trying to destroy each other’s careers in a series of vicious lawsuits, when the real issues between them were how to perceive the Macedonian threat – and who was to be the leading statesman of Athens.
There was a protracted attempt at the very end of the fifth century to tidy things up, but until then laws had arisen piecemeal, without adequate protection against contradiction and vagueness. Written laws were idealized as equalizers, but in practice tradition, gossip and other factors played just as large a part in legal procedure. Precedent was recognized, if at all, as a weak factor, whose surface appearance was more important than consideration of why a previous jury had reached such a decision in the first place. It was easy for speakers to base arguments on biased versions and interpretations of Athenian laws while expecting the dikasts not to spot the bias. The laws, especially those that were phrased vaguely, were regarded more as a kind of evidence, to be wielded as instruments of persuasion, than as the system of regulations on the basis of which a verdict should be reached.
There was little concern in the courts with what we might recognize as valid or relevant e
vidence. In the first place, there was nothing in Athens remotely resembling a police force; gathering evidence was up to the litigants themselves, and even then they were not always obliged to produce it in court. In the second place, there was no opportunity in court to cross-examine witnesses or one’s opponent (whatever Plato and Xenophon may have implied in their versions of Socrates’ defence). Evidence was presented chiefly by an exchange of speeches by two sides, and usually consisted of circumstantial evidence, backed up by arguments from plausibility, along the lines of: ‘Is it likely that I, an elderly weakling, would have assaulted such a strapping young fellow?’
In many categories of case, one could say the most outrageous or innuendo-laden things about one’s opponent and his ancestors and friends – precisely the kind of tactic that Socrates refused to employ in his defence speeches. The most popular accusations included foreign or servile birth, low social status and deviant sexual behaviour. There was hardly any need to prove these slurs, and they were introduced whether or not they were strictly relevant to the case. By contrast, one presented oneself as a true bearer of the most noble and valuable Athenian characteristics. Contrast this with the relative isolation of modern democratic courts, where (ideally) only the case at hand is to be judged, whatever the litigants’ behaviour in the past; for us, the fact that the defendant needs a shave and a haircut should be entirely irrelevant to the question whether or not he committed the crime for which he finds himself in court, but for ancient Athenian dikasts it was precisely relevant.
There was no judge to instruct the dikasts, and dikasts were untrained men selected at random from the citizen body, who had to decide by themselves matters of law as well as of fact. Precise interpretation of fine legal points would have required a body of experts, and the very existence of such experts would have detracted from the democratic nature of the courts. Dikasts were more likely to be persuaded by the most impressive speaker, or the one they warmed to most for other reasons (such as his political usefulness to them in the near future). Hence speakers tended to skate over complex issues, in speeches that were theatrical (literally: there was influence both ways between forensic and tragic oratory) and combative, and which included a whole host of extralegal matters, deliberately to appeal to the emotions of the jurors, rather than to employ a dispassionate and strictly legal approach. Weak speakers were at a terrible disadvantage; professional speech-writers were available for those who needed them and could afford them.
Juries were large to reduce the possibility of bribery, and because they were supposed to represent the democracy, but their large size could encourage irresponsibility. When a jury consists of twelve, each person is bound to appreciate that his or her vote makes a substantial difference; the same does not apply to a jury numbering well into the hundreds. Moreover, though the dikasts were obliged to reach a verdict, they were not obliged to say why they reached it. However complex the case, it was not allowed to last more than a day. At the end of the day, the dikasts’ decision was final. There was no right of appeal, because the dikasts already were an assembly of the sovereign Athenian people: to whom else could an appeal be made?
One quirk of the system was that it made it possible for unscrupulous people to make money by threatening to take someone to court. In many cases the threatened person would make an out-of-court payment to the blackmailer, either to avoid the nuisance of a court case, or in fear of losing more if the case came to court; even innocent men were tempted to pay, because the open nature of the system made it possible for a man to be convicted even of a crime he had not committed, if he was otherwise unpopular or if his opponent impressed the dikasts. These blackmailers were called ‘sycophants’ – a word that has a curious origin. Ever since the beginning of the sixth century, it had been illegal to export any foodstuffs except olive products out of Athenian territory; there was to be no profiteering when Athenians needed all the land could produce. Occasionally, however, people tried to smuggle figs across a border. If one of your fellow citizens denounced you as a fig-smuggler, he was a sycophantēs, a ‘tale-teller about figs’; if it was part of his purpose to ingratiate himself with the authorities, he was close to being a sycophant in the modern sense of the word. Sycophancy in ancient Athens was a genuine nuisance, and steps were periodically taken to curb it, but it was an inevitable consequence of the virtual lack of a police force, of the system whereby individual citizens themselves acted as prosecutors, and of the rewards given to successful prosecutors of cases involving crimes where the state’s interests were felt to be at stake.
The impulse for all the essential features of Athenian law was that the workings of the courts were expressly considered to be part of the workings of the democracy as a whole; hence the boundary between court matters and the rest of the political life of the community could be thin (and court cases were usually heard, anyway, in more or less public places, where onlookers were welcome). In a modern democracy, the legislative and judicial branches of government are, or are supposed to be, independent, so that they can act as checks against each other; in ancient Athens both were unified in the common people. One important upshot of this was that dikasts tended to rule conservatively: the spirit of the law was as important as the letter (if there was a ‘letter’ in the first place) and, fundamentally, the law was animated by a desire to preserve the community. This is a true reflection of the capaciousness of the Greek word for law: nomos means not only ‘law’, but also ‘custom’ or ‘convention’ – the way a given society traditionally goes about things.
Political scientist John Wallach succinctly summarizes the necessary conclusions:
The Athenians’ criteria of guilt were not wholly legal in nature, or at least not legal in our sense. Because their conception of legality included conformity to everything signified by nomoi – legislative enactments, their constitutional heritage, and sanctioned social customs – guilt for violating such laws could be much more loosely defined than it is in contemporary western courtrooms, where the line between political and legal charges is, or at least is supposed to be, firmly drawn.
Every route by which we approach classical Athenian law brings us sooner or later to the same realization: precisely those aspects that we might see as deficiencies are what enabled it to be a powerful tool of the democracy.
THREE
The Charge of Impiety
All Athenian trials on social charges such as the one Socrates faced were potentially or evidently political. Undercurrents and subtexts were usual, and these undercurrents were political, at least in the sense that it was up to the dikasts to decide whether the defendant was a good citizen, and whether condemnation or acquittal would best serve the city, as much as whether he was guilty of the particular crime with which he was charged. ‘Impiety’ was exactly the kind of amorphous charge that opened up the texture of the Athenian legal system. The vagueness of its definition placed it squarely among those kinds of charges where it was expected, even required, that dikasts would assess the man as much as the crime.
This is what we find in other impiety trials we know of (too few, and usually in far too little detail). Later in the fourth century, at least two other philosophers resident in Athens, Aristotle of Stagira and his right-hand man Theophrastus of Eresus, were threatened with trials for impiety, when everyone knew that the real issue was that they were in favour of Macedonian rule of Athens. Aristotle fled Athens and quipped, with a neat reference to Socrates’ trial, that he was leaving to stop the Athenians wronging philosophy for a second time. Theophrastus, whose case came to court, was acquitted.
There were other Athenian impiety trials at more or less the same time as that of Socrates, two of which, those of Andocides and Nicomachus, were similarly high-profile. With possibly as many as six impiety trials in the space of a year or two, some scholars have inferred that there was a conservative backlash at the time, but the haphazard nature of our knowledge of Athenian trials, and the tiny percentage we know of, make this an unsafe
inference. It would take us too far afield to examine in any detail the only other two trials about which we know much, but Andocides of Cydathenaeum was a man with an extremely dubious political past, from a democratic point of view, and with many enemies in Athens; we will later explore in more detail the scandal in which he was caught up in 415 BCE, but for our present purposes it is enough to agree with the scholarly consensus that his prosecutors were out to settle old political scores.
As for Nicomachus, the facts of the case are obscure, and the attempt to achieve clarity is not helped by the weakness of the prosecution speech that survives. He was clearly a man of considerable talent, since he rose from being a public slave to membership of the board entrusted in 410 BCE with tidying up Athenian laws – a position of some political power. He was charged, among other things, with innovations that had caused the neglect of certain religious rites, to the detriment of the Athenian people. In the course of the speech, his prosecutor also accused him of various kinds of anti-democratic behaviour. In neither case, then, would it be safe to rule out the kind of political subtext that impiety trials made possible. It even begins to look as though a prosecution for impiety could be a prosecution for ‘un-Athenian activity’: certainly, as Stephen Todd remarks, ‘a surprisingly high proportion of known impiety trials reveal, on examination, a surprisingly strong political agenda.’
Why Socrates Died Page 5
