"Verdict Most Just": The Modes of Classical Athenian Justice

Abstract

Most comparative lawyers know a great deal about Roman law but almost nothing about the courts of classical Athens. This is no mystery: unlike Roman law, Athenian law produced no jurisprudence and very little legal doctrine, and contributed nothing to the courts of Europe, England, or any other modem legal system. For the most part, Athenians decided legal disputes by empowering juries to apply statutes that were hopelessly broad. Juries could give weight to any sort of fact or plea that a litigant cared to bring before them. To us, this looks like lawlessness. Did the Athenians simply fail to grasp the value of the rule of law as we know it? Were legal disputes fundamentally contests for status decided without any pretence to justice? These are the explanations ancient historians commonly give. In my view, the Athenian legal system was more complex than is generally thought. The Athenians made a conscious decision to reject the rule of law in most cases, and they did so because they thought giving juries unlimited discretion to reach verdicts based on the particular circumstances of each case was the most just way to resolve disputes. But in other cases, such as commercial suits, where the practical importance of more predictable results was high, the Athenians did have rules of admissibility and relevance that limited jury discretion. The Athenian legal system struck a balance between following rules and doing justice that is altogether different from that which may be seen in the pages, for example, of the Federal Reporter. Classical Athens thus provides a valuable case study of a legal system that favored equity and discretion over the strict application of generalized rules. But it managed to do so in a way that did not destroy predictability and legal certainty in the parts of the system where they were necessary.