Democratic law in classical Athens is the latest product of M. Gagarin’s long engagement with Athenian law and oratory. As the introduction states, the book aims to contribute to the ongoing scholarship on the effectiveness of the Athenian judicial system. Although this is not the first attempt of a scholar to defend the Athenian legal system against the usual negative assessments—based on the typical argument about Athens’ lack of legal experts—, what makes Gagarin’s work stand out is his position in relation to the existing landscape. Two scholarly camps exist in the study of Athenian law: one has tended to privilege extra-judicial aspects of the Athenian judicial system, such as social or political worth; the other has tended to favor ‘rule-of-law’ behavior—the assessment of legal actions according to their description in the Athenian law code. Although Gagarin admits the validity of each camp’s position, he thinks neither of these groups fully describes the situation in ancient Athens and seeks instead to surmount their disagreements by presenting eight special features of the Athenian trial.
Since the book concerns democratic law, it comes as no surprise that the first chapter, the longest in this work, deals with the democratic character of Athenian law. Gagarin begins his analysis by pointing to the difference in attitudes towards democracy between Athens and modern Western states: from an Athenian perspective a democracy is a state where every sector of administration is run by ordinary citizens. The author offers a detailed summary of the democratic features of Athenian government and law, drawing attention to lay involvement in every stage of the legal process in Athens. At the same time, he does not overlook the inequality created by the fact that wealthy litigants’ pleas were more likely to succeed, due to their ability to pay for logographers (speechwriters) to prepare speeches. At the end of the chapter, although he recognizes the weaknesses of a system run by laymen, he points to the tension between law as “science” and law as “rhetoric” that exists even in modern legal systems: no legal system is grounded on a scientific ‘rule-of-law’ principle only; rhetoric—and thus non-legal elements—always plays a crucial role during trials. This observation allows the reader to see the bridge between the two aforementioned scholarly camps on Athenian law, which Gagarin intends to demonstrate in the next chapters.
Since rhetoric is associated with the element of public performance, in Chapter 2, Gagarin discusses the similarity between Athenian litigation and dramatic performance. He questions the influence of theatrical presentation on Athenian litigation by rightly underlining the different goals in each type of performance (dramatists compete for a prize; litigants seek to win a case) and, more importantly, the antiquity of Greek litigation. Gagarin points to passages in the works of Homer and Hesiod in which the reader can easily recognize elements of performance that are formalized in Athens: the ordinary citizens who support each side in the dispute depicted on Achilles’ shield are the forerunners not only of the Athenian citizen-populated law courts but also of the bystanders who, according to forensic speakers, cause thorybos (uproar) in trials as a reaction to the litigants’ behavior.
In Chapter 3, Gagarin turns to a theme familiar to him from past publications: negotiation. He notes the similarity between the use of negotiation in the US legal system and that in Athens as a way to settle disputes, though he admits that evidence does not provide a clear picture of the frequency of such proposals and, as in the case of performance, he underlines the antiquity of this legal practice by providing evidence from the Homeric epics. Gagarin’s thorough knowledge of the subject is demonstrated by his detailed analysis of the types of negotiation in Athens, which ends with the correct observation that, given its contribution to limiting the number of court trials, the most successful type of negotiation would have been private arbitration. On the other hand, he describes some tactics, such as oath-swearing or the interrogation of slaves, as rhetorical tricks used by litigants who, aware that the opponents would refuse such evidence, found it useful as a way of discrediting them. Gagarin admits that this type of “doomed to fail” negotiation could be considered a way of conning the Athenian legal system, but he correctly suggests that its recurrence in forensic speeches proves its significance for the decision-making process.
After his comments on performance and negotiation, Gagarin turns to the subject of rhetoric in Chapter 4. He dismisses the negative attitude of ancient and modern writers towards rhetoric by pointing to studies that show the high impact of the use of rhetoric by legal experts on the shaping of decisions in modern law courts. He stresses the significance of rhetoric in the form of “storytelling”, not only for the presentation of the facts of a case, but also for determining the laws applicable, in both ancient and modern law courts, though he admits that the degree of reliance on it would have been greater in ancient Athenian trials than in legal proceedings in modern Western states. The manipulation of rhetoric, and controls imposed to constrain its power, are dealt with by Gagarin in the next chapter.
In Chapter 5, Gagarin discusses rules of procedure and of evidence in Athenian litigation. He points to the existence of procedural rules concerning litigation, especially to the rule about “speaking to the issue”, and to responsibility for the observation of relevance by litigants, as prescribed in the Athenian judges’ oath. In addition to procedural rules, he reminds the reader of the role of bystanders in the enforcement of litigants’ obligation to avoid arguments irrelevant to the case, which he has already mentioned in his discussion of performance. Gagarin mentions the significant scholarship on the importance of the enklema (written complaint) for limiting the ability of litigants to present irrelevant arguments, but he points to the broader sense of ‘relativity’ in Classical Athens regarding the choice of procedure by which an offence was prosecuted and the range of accusations.
The above observation works neatly as a link to the next two chapters in which Gagarin discusses the influence of two seemingly extralegal concepts on the Athenian judicial decision-making process. In Chapter 6, which concerns law and justice, he notes the different sense of justice in Athens and the modern legal systems: justice in modern Western legal thought is mainly connected with procedural fairness, but in Athens the rule of law was intrinsically connected with substantive justice. The clause in the Athenian judges’ oath concerning their obligation to vote according to the laws and “the most just understanding”, along with a significant number of forensic speakers’ remarks about the just character of the Athenian legislation, serve as evidence of the Athenian attitude towards the deep-rooted bond between law and justice. He rightly notes, however, that the changing notion of justice may have led to conflicts with old laws, and he provides a compelling example from Lysias 1 concerning the meaning of just murder. At the end of the chapter, Gagarin adopts the assumption of many scholars that, in view of the scarcity of relevant references, the notion of equity for the production of just decisions in Athens is negligible.
In Chapter 7, Gagarin examines the importance of public interest as a factor leading to a decision by the judges. He correctly connects promotion of public interest through the legal system with the democratic character of the Athenian government, and provides quotations from forensic speeches that stress the community benefits arising from verdicts in favor of the speaker or the speaker’s contribution to the community as character evidence. He notes, however, that, with the exception of cases in which public service was the main issue of the trial, litigants usually mention such issues very briefly at the end of their pleading, which suggests a weak role for public interest in judicial decisions.
Chapter 8 brings us to the most important topic in Gagarin’s analysis of the Athenian legal system: the rule of law. This is a key point in his study, since Athenian adherence to observing the law has been disputed by several scholars. Gagarin acknowledges the remarks of many scholars on the Athenian judges’ commitment to the observation of law, while noting their disagreement regarding the concept of the rule of law. His earlier study of the principal concepts of the Gortynian legal system (order established by a set of authoritative rules, no man above the law, and exclusion of ‘non-legal’ considerations) (Gagarin 2004, 173) allows him to demonstrate the existence of relevant notions in the Athenian trial. In order to tackle critics of the Athenian legal system who stress the importance of ‘non-legal’ elements, he ingeniously turns to the principles of the rule of law suggested by modern legal expert T. Bingham (2010, 37-129) which show the pre-eminence of the sense of the rule of law in both modern legal procedure and the Athenian judicial process.
Gagarin summarizes his conclusions in a ninth chapter, in which he discusses the success of democratic law in Athens. This success, he assumes, was based on the fact that the democratic elements of the Athenian legal system went hand in hand with safeguards against arbitrariness in the judicial decision-making process and with measures to promote the public interest and justice. Although the Athenian legal system was not independent from the political system as in modern Western countries, it was developed in a way that made it effective for the interest of that community.
Apart from being well-written and easily comprehended, Gagarin’s latest work is worth reading above all for his courage in tackling the much-debated issue of the effectiveness of the Athenian legal system. The author’s intelligent employment of comparisons between legal practices in Athens and in modern states, which helps him demonstrate the high degree of efficiency of the Athenian legal system, brings studies on Athenian law closer to comparative legal studies and, thus, to a readership not limited only to classicists. While several objections to Gagarin’s arguments may be raised by scholars who tend to stress the negative features of the Athenian legal system, readers who are open to discovering a new perspective on Athenian law will be made to feel at ease by the clarity of his thought.
Bibliography
Bingham, T. 2010. The Rule of Law. London.
Gagarin, M. 2004. “The Rule of Law in Gortyn” in Edward M. Harris and Lene Rubinstein, eds., The Law and the Courts in Ancient Greece, 173-83. London.