Athenian Courts and America

It is common practice to trace the origin of the American court system to the courts of Periclean Athens. There are many similarities between the two systems. In both systems the concept of sovereignty of law is well established. Consequently, the greatest threats to the systems' stronghold on equality and justice are the different types of corruption and bias that corrode the courts. In ancient Athens and in modern America the socially and financially advantaged[1] have found effective ways to use their resources to disadvantage the subaltern in the courts.

In Athens, as in America, fairness in court was considered an ideal of the utmost importance and the Athenians "took great pains in an attempt to ensure fairness and prevent corruption."[2] In addition to imbuing a concept of sovereignty of law and a belief in justice in the minds of citizens, steps were taken to ensure against corrupt individuals, the possibility of a corrupt jury, and the possibility of a jury comprised of the wealthy. "The introduction of state pay for the jurors in the people's courts"[3] by Pericles brought "dispensation of justice"[4] to the masses. Furthermore, the size of the juries made it difficult for a rich litigant to control the jury. The average size of 500 jurors in "ordinary cases" would be dwarfed by even larger juries in more important cases with higher stakes where litigants had higher motivation for foul play. Also, "the principles of collegiality and limited tenure" and the "use of the lot" created a "high turnover of officials" and consequently "a very different situation from an entrenched bureaucracy"[5]

These safeguards were not infallible. In addition to the basic corruption of paid officials ("men make money out of office and out of public life"[6]) that is essentially unavoidable and continues today, monetary bribes occurred in Athens.[7] However, there is no reason to think that these bribes were regarded to be any more acceptable than they would be in America.

While bribes were fairly uncommon and did not fit into the Athenian model of acceptable conduct, a far more commonplace and sinister aspect of the Athenian court was the way the rich and the upper class used their advantages to curry favor beyond the merits of their case. The Athenian upper class had a wide variety of tactics it deployed to win cases.

The first advantage that the rich had in the Athenian court system was the way the court system was set up. The standard of proof was more than fact based. It centered on "presenting the jury with a quasi-dramatic representation of the character and social milieu of the litigants."[8] This system was an attempt to reconcile "uniformity and impartiality in the judicial process with full appreciation of the circumstances of each individual case."[9] In effect, this philosophy of law (which persists today in the insistence on learning about the "character" of defendants) contains the flaw that the rich and privileged are able to present their circumstances and personal integrity in a positive light more persuasively than the poor and the subaltern. In giving everyone an equal chance, the rich learn how to make more of their chance.

This opportunistic approach on equality is given license by the prosecutors and defense attorneys of Ancient Athens: the rhetores. The varied skills of the rhetores of Athens combined with the Athenian citizenry's appreciation of well-written speeches ensured that the rich would be able to afford the most talented speech-writers who could persuade the jury to vote for their side.

The fact that the advent of "professional speech-writers" created an inequity between those who could and could not afford their services is ironic in that the most effective (and high priced) rhetores portrayed their rich, upper class clients as "simple fellow[s]."[10] This is the central paradox in the Athenian courts. The most prosperous Athenians gained the financial and social advantages of court victories by acting like the poor and simple Athenians who do not have the resources to speak both simply and eloquently.

However, this rhetorical fiction has another more egalitarian truth behind it. It shows that being rich was considered essentially undemocratic and the rich needed to contribute something, whether it be the rhetoric of the poor or charity for the poor, in order to be perceived as equal to the rest of the Athenians. This necessity of the rich to pretend to live the lives of the poor "symbolically lessened the degree of the power inequity [that] wealth produced"[11] although, in effect, the rich still profited from the deception. In defending a wealthy client, "Demosthenes resorts to a counterfactual example to show the jurors just how perverse it would be to allow [someone] to go free for the sake of his money."[12]

While these examples of the rich paying lots of money to pretend to be poor might seem comically duplicitous to the modern observer, the current American system could learn something from the misguided Athenian attempts at humility. The lack of a negative stigma for wealthy litigants has created a culture in the United States where the wealthy can spend as much money as they can afford to win a case. The limited and ineffectual restraint on the spending of the rich practiced in campaign finance laws for political office has no parallel in the American courts. While there is a popular sentiment in the United States that hiring high-priced attorneys is a perversion of justice, there is no avenue in American law to accuse a wealthy litigant of being guilty because he spent too much on an attorney.

Another way that the Athenian upper class changed the subaltern's negative impression of the rich was through charity. Before they were even brought to court, the upper class took precautions against the contempt of the poor and "would perform enough liturgies to balance the negative perceptions their wealth had engendered" in order to gain "judicial charis in private suits."[13] While this does not align perfectly with the American idea of the court as an institution separate (and above) the concerns of the rest of the state, it created an incentive for charity and acted as an obstruction to stinginess. But there could not be a complete "ideological fusion"[14] of supporting equal justice for the poor and favoring philanthropists. This practice decreased the equality of the courts by giving the rich and privileged a way of impressing the jury that the poor could not afford.

All of these advantages to the well-off combined to give them an additional advantage. The "upper class" was "able to pervert the legal process" with "the awe or even fear that poorer citizens sometimes felt when confronted with a member of the wealthy elite."[15] This defeat is echoed today with the resignation to loss of Americans who rely on overworked public defenders. The innocent can end up in prison in the United States solely because they do not feel equipped to fight the money and might of the U.S. government.

Athenian courts were and American courts are essentially driven by the public's whims. In both systems, cases are won by who can convince the jury that they are right by the facts of the case. The disappointing truth is that a system of courts and law has not yet been invented where the rich and upper class cannot devise schemes to make the facts of their side seem more correct than the facts of the poor and subaltern. Nonetheless, the courts served, and continue to serve to keep the rich "safe against envy and the poor against oppression."[16] Despite their flaws, both systems perform well this essential task of approximating perfect justice.

[1] The upper class reaped the advantages of the rich since their social status gave them the support of influential and talented friends that the rich would have to pay for.

[2] Sinclair, R.K. Democracy and Participation in Athens. New York. Cambridge University Press. 1988. p. 70

[3] Ober, Josiah. Mass and Elite in Democratic Athens. Princeton. Princeton University Press. 1989. p. 81

[4] Sinclair, op. cit., p. 70

[5] Ibid, p. 181

[6] Sinclair, op. cit., p. 179

[7] "Witnesses for the other side could be suborned...not to testify or to give false witness; the prosecutor might be bribed to drop the case, even the demos as a whole might be offered money to win their sympathy." - Ober, op. cit., p. 219

[8] Humphreys, Sally. The evolution of the Legal Process in Ancient Attica. Tria corda: scritti in onore di Arnaldo Momigliano. Como. Edizioni New Press. 1983. p. 229.

[9] Ibid, p. 229

[10] Humphreys, op. cit., p. 248

[11] Ober, op. cit., p. 223

[12] Ober, op. cit., p. 218

[13] Ibid, p. 230

[14] Whitehead, David. Cardinal Virtues: The Language of Public Approbation in Democratic Athens. Classica et mediaevalia. Volume 44. 1993.

[15] Ober, op. cit., p. 219

[16] Payne, Robert. The Corrupt Society. New York. Praeger Publishers. 1975. p. 178