Legal System Development
In general, there are three stages that most legal systems progress through:
The only recognizable characteristic of a pre-legal society is that it has no established ways of dealing with disputes that arise in a society. A small society may remain in this stage for an extended period of time, but when the population density reaches a certain point there are too many people who don't know each other and a more formal system is needed.
A proto-legal society has rules as well as procedures for handling disputes. At this stage there is no distinction between rules (social standards, such as it's not nice to point), and laws (linking specific acts to specific consequences). This is a linking stage between the anarchistic pre-legal stage, and the more rigid legal stage.
A legal society is one such as ours, which society has deemed certain acts so undesirable as to warrant a punishment. These societies have not given up their rules, but the rules do not necessarily result in punishment. Because the laws of a society link acts with punishment, normally a society must have developed a form of writing in order to enter this stage
After the Dark Ages - About 1200-900 BC - and beginning at about 900 BC, the Ancient Greeks had no official laws or punishments.
Murders were settled by members of the victim's family, who would then go and kill the murderer.
This often began endless blood feuds.
It was not until the middle of the seventh century BC that the Greeks first began to establish official laws.
Around 620 BC Draco, the lawgiver, wrote the first known written law of Ancient Greece.
This law established exile as the penalty for homicide and was the only one of Draco's laws that Solon kept when he was appointed law giver in about 594 BC. Solon created many new laws that fit into the four basic categories of Ancient Greek law.
A tort occurs when someone does harm to you or to your property
Draco and Solon wrote many of these laws.
These laws had specific penalties for specific crimes.
Most crimes involved monetary (payment) penalties.
Murder was a tort law, and the punishment was exile as set by Draco.
Under Solon's laws, fine for rape was 100 drachmas, and the penalty for theft depended on the amount stolen.
Other offenses and penalties were things like the offense of a dog bite, the penalty for which was to surrender the dog wearing a three-cubit-long wooden collar.
Solon even made laws to serve as guidelines for the spacing and placement of houses, walls, ditches, wells, beehives, and certain types of trees.
Solon also created many family laws, which were laws that regulated the behavior of men and women. He wrote laws on allowances in marriage and adoption, as well as laws concerning inheritances and supporting roles of parents.
Penalties for these laws were not set, but were enforced by the head of the particular family.
Linked to family laws were laws concerning women, whose role in Greek law was extremely small. This is because they were under constant supervision by their kyrios, or "official guardian."
Most often this was a girl's father, or if she were married it was her husband. Because of this supervision, women's role in law was limited to rare court appearances, where she was either presenting evidence in a homicide case, or was being displayed along with her family to try to evoke pity from the jury.
Public laws dictated how public services were to be provided and how public functions should be conducted. Solon contributed some of these laws. He wrote laws that required that people who lived a certain distance from public wells needed to dig their own, laws that forbade the export of agricultural goods except olive oil, laws that restricted the amount of land a man could own, laws that allowed venders to charge any kind of interest rate they wanted to, and even laws that prohibited dealing in perfume.
Procedural laws were guidelines that told judges how to use other laws. These laws told in step-by-step detail how law should be enforced. Procedural laws even included such minute details as how many witnesses must be called forward for someone to be found guilty of homicide.
Law giverswere not rulers or kings, but appointed officials whose only job was to write laws. Most of the lawgivers were middle class members of the aristocracy and many were arkhons before becoming a law giver. The officials in the government wanted to make sure that law givers would not take sides or be a part of just one group, otherwise laws might be unfair. Because of this, law givers were not a part of normal government, and they were considered political outsiders.
One of the most famous law givers in Athens was Draco. His homicide law is the first known written law of Ancient Greece. He was appointed law giver in Athens after a failed Cylon attempt to overthrow the government. Draco earned a reputation for being extremely severe with his punishments, and it is even argued that he set death as the penalty for all offenses. He served as law giver until he was succeeded by Solon in about 594 BC
Solon was appointed law giver in Athens because he did not take any sides. He was known to be a fair man, and so he had full support from all of the various political parties. When he replaced Draco, Solon threw out all of the old laws except for the homicide law, and he created many new laws, especially in the categories of tort and family laws.
In order to have punishments carried out, the Ancient Greeks needed some sort of system to "try," "convict," and "sentence" guilty persons. To do this, they created a court system. Ancient Greek courts were cheap and run by what people today would call amateurs. Court officials were paid little, if anything, and most trials were completed in the same day, private cases even more quickly.
There were no "professional" court officials, no lawyers, and no official judges. A normal case consisted of two "litigants," one who argued that an unlawful act was committed, and the other argued his defense. The audience, or "jurors," would vote for one side or the other. The result was either a guilty or not guilty, after which another vote by the jury would decide the punishment.
Oratory rhetoric was divided into epideictic, deliberative, and forensic. Deliberative was used to address the people in the general Assembly. Forensic was delivered in the law courts. These are usually called political oratory because they both deal with government. Epideictic or display oratory included all other orations, such as those delivered during festivals, public rites, or moral discourses
While under Macedonian rule oratory rhetoric languished and Athens became a provincial town. Other cities succeeded Athens, the "School of Greece" as Pericles had called her. However, oratory eventually degenerated into declamation.
The Areiopagos is reputed to be the most ancient homicide court in Greece. It first tried cases of homicide, but later began to try other cases as well. It was made up of former arkhons, or magistrates. Actual arkhai (plural of arkhon) were court officials who could conduct a preliminary hearing, but who otherwise had no power over the court or its proceedings. Among the arkhai was a board of eleven members called the Eleven.
The Eleven was in charge of prisoners and executions. They had the right to arrest any criminal that had been denounced to them, and could even execute the criminal if he was 'ep autophoro' - caught in the act.
Around the fifth century BC, the Areiopagos was split into four types of courts, each trying a different type of homicide case.
The Areiopagos remained but now dealt primarily with religious and political cases.
The four new courts were the Prutaneion, which tried cases of death caused by an animal or inanimate object, the Palladion, which dealt with cases of involuntary homicide and the killing of non citizens, the Delphinion, which tried cases of justifiable homicide, and the Phreatto, which tried those who, while in banishment for involuntary homicide, were charged with murder or intent to harm.
These courts were ruled by a group of about fifty-one members, called the ephetai.
These members were selected from the Areiopagos and remained in charge of the courts until about 403 or 402 BC, when they were replaced by dikastai, democratically selected jurors.
With the emergence of the ephetai came a new age of dikastic courts. Previous courts were replaced with one, which heard every kind of case.
Regular public prosecutions were referred to as a graphe, and a dike was a private prosecution.
Graphe translates literally into 'a writing,' and in this case it means 'a written indictment'.
Dike translates literally into 'prosecution'.
The dikastai had the power to decide the law, to decide the facts, and to pass sentence on the party(s) involved.
To qualify as a member of the dikastai, one needed to meet three requirements.
The potential dikastes needed to have full citizen rights, be at least thirty years old, and he had to be one of the six thousand fully qualified citizens that took the dikastic oath at the start of that year.
For normal cases the dikastai was made up of about 500 members, and for private cases either 200 or 400, depending on the sum involved.
Fulfilling the requirements of the dikastai did not require the individual to then be available to try cases every day.
Each panel of dikastai was simply made up of those legitimate dikastai members that showed up that day.
Those that joined the dikastai for that day would oversee a typical case consisting of a dispute between two litigants. The verdict in the case was a vote for one or the other.
Verdicts in Athenian courts were not subject to appeal, and sometimes the dikastai would vote after the trial to find a penalty as well.