Publicity and the Courts of Classical Athens

Abstract

This Essay explores the role that public legal proceedings played in the classical Athenian democracy of the fifth and fourth centuries B.C.E. The courts in classical Athens enjoyed a larger market share of cultural communicative space than any modem court could hope to achieve: trials were held in the presence of hundreds of jurors and were watched by local and foreign spectators. The publicity surrounding the Athenian courts was vital to the operation of the Athenian democracy in several respects. First, publicity helped to provide accountability for jurors by exposing their decisions to public scrutiny. Second, public legal proceedings promoted truth by inhibiting litigants from making baseless accusations or misstating the law. Third, public trials provided a form of democratic education vital to the functioning of Athens's direct, participatory democracy. Fourth, publicity provided accountability for litigants' out-ofcourt behavior: the courts provided a venue for litigants publicly to shame their opponents for wrongdoing. This informal enforcement of norms was important to maintaining order in Athens because it compensated for systematic under-enforcement due to the absence of state prosecution and enforcement mechanisms. Fifth, the public, participatory nature of the Athenian courts assured that the courts were a site of popular norm elaboration. And finally, publicity helped to ensure that court sessions were a form of democratic practice that fostered a sense of civic identity.

In this way, Athenian public trials exemplified Bentham's notion of publicity by fostering truth, civic education, and, above all, accountability. The Athenian courts also implemented some of the more ambitious goals of public court proceedings envisioned by Curtis and Resnik in Representing Justice by providing a process for participatory norm elaboration and by publicly enacting the democratic ideal of popular sovereignty. At the same time, the public nature of Athenian trials was intimately linked to the unique elements of the Athenian legal system. Examinations of publicity and accountability in modem courts assume a disconnect between government power, which is wielded by expert judges, and the people - a gap that publicity helps to bridge. By contrast, in Athens's wholly amateur, highly participatory system, the popular jury itself fulfilled some of the functions of the modem public, while at the same time being subject to scrutiny from court spectators.