FROM ATHENS to AMERICA: Our Legal Roots

The law’s got plenty of Latin—those fancy maxims and phrases that make lawyers sound like they’re casting spells instead of arguing cases. Roman law seems baked into our legal system, too. But there’s a kicker: Ancient Greece deserves as much credit, maybe more. Its form of democracy set in motion Ancient Rome’s and our own.

Political ideas, philosophical musings, and legal principles that form the backbone of Western jurisprudence all trace back to Ancient Greece. The only reason we don’t notice? Latin is more visible in English.

So, let’s go back about 2,500 years to when Greeks were inventing things like democracy. It’s roughly 300 or 400 years before the Romans showed up with their togas. Picture a time when arguing was a national pastime and justice was a work in progress.

Archons and Juries

Archi means both beginning and rule, embodying the essence of leadership, authority, and respect—principles entrenched in the Greek legal structure. The root arch appears in concepts like monarchy, anarchy, and golden arches.

Another “arch” word, archon, a court magistrate, roughly corresponds to today’s judges. Initially chosen by family lineage, then land ownership, and, eventually, election, the role of Athens’s nine archons evolved with the city-state’s embrace of democracy. This shift curbed the archons’ power but kept them supervising jury selection.

During their one-year term, archons used a technological wonder, the kleroterion, a marble contraption, to randomly select jury members for an assigned number of private and public cases. (If only our court clerks had kleroterions to assign judges to cases; the marbles would add a little excitement.) Archons also presided over cases of homicide. Juries were the decision makers. Every year, a pool of 6,000 citizens, chosen by lot, served as jurors. A hefty pool of 501 or more jurors would hear public cases because they involved broader societal harms and the potential for harsher penalties. (Think Socrates, who ended up with a koupa full of poison hemlock.) Between 201 and 400 jurors heard private cases, which sought to compensate the plaintiff rather than punish the defendant. No examination determined a juror’s fitness to sit on a particular case. (The sheer number of jurors explains why there was no voir dire; otherwise, archons would have had to consult oracles for a sanity check.)

“Jurors frequently had knowledge about a case beforehand and their minds made up.” John Oscar Lofberg, Sycophancy in Athens, The University of Chicago Libraries, 1917 at 11. “Apparently, the most desirable juror was the one most familiar with the case.” Id. at 12. In Laws, none other than Plato urged making a juror familiar with a case a witness. (Plato had lots of good ideas. This is just one example.)
Only free-born Athenian men over age 30 could be chosen for jury duty, about 30,000 individuals. Women, enslaved people, foreigners, and children were considered noncitizens. The large pool ensured a broad representation of social classes.

Once selected, jurors could choose the cases they wished to attend, and the archon picked the appropriate number from the interested pool. (Imagine modern jurors doing that; judges would need barkers touting their courtrooms: “Step right up for a jaw-dropping, multi-million-dollar medical malpractice lollapalooza! See expert witnesses galore! Hear explosive testimony! Hurry, hurry, hurry!”)

Jury duty was a civic honor and a compensated responsibility, akin to military service. (An oldie but goodie.) As Aristotle said in his Politics, “Law is a pledge that citizens of a state will do justice to one another.”

Athenians were a litigious bunch. The playwright Aristophanes, in his play The Peace, has a character say that Athenians “do nothing but try cases.” Similarly, in The Birds, Aristophanes observes, “The cicadas chirp away on their branches for a month or two; the Athenians chirp away at lawsuits continually all their lives long.” (With so many citizens required for the jury pool and each case, well, of course, Athenians did little else.)

Initiating an Action

Speaking of justice, the Ancient Greek word for justice, dike, is a formal, written complaint laying out the incident and defendant’s transgressions. Dike shares etymology with the Latin iudicia, related to judicia, jurisdiction, judiciary, and prejudice. Dike encompassed early notions of equality and figured prominently in private cases.

To begin a lawsuit, the aggrieved party submitted a dike. Then, the plaintiff personally visited the defendant’s house, dragging along a few friends as witnesses, to notify the defendant of the court date. (I would have hired an oracle to accompany me— might as well have divine intervention on one’s side.) Before trial, the aggrieved party could supplement the dike with additional evidence or laws to strengthen their presentation.

Private and Public Cases

Legal disputes were private or public rather than criminal or civil. In private suits, the injured party squared off against the alleged troublemaker. The victim’s family prosecuted homicide cases. (Talk about adding insult to injury, a phrase evolved from fabulist Aesop, a Greek.)

No one represented the state or the people, even in charges against the government. In public cases only, given the absence of government attorneys, any citizen (remember, any free-born Athenian male over age 30) could present a graphe, claiming injustice, regardless of personal involvement. (The precursor to our private right of actions.) A graphe was a written indictment submitted to the court. A defendant’s enemies launched public suits, but volunteers could do this too, as a source of income. (In America, these individuals are called contingency lawyers.)

Citizens could propose a new law. The catch: They could be sued for proposing an unconstitutional law. If acquitted, the law passed; if convicted, the proponent was punished. (Worth bringing back?)

The potential reward for winning a public case would be considerably greater than in private suits. Why? The purpose was to give an incentive for citizens to uphold the law for the city’s benefit, sort of like qui tam actions. This forced litigants to be more strategic in making their arguments to the jury, especially because the plaintiff faced a heavy fine if he did not secure one-fifth of the votes. (The original version of fee-shifting.)

The Trial

Trials were held outdoors and usually lasted one day or less. Jurors voted without deliberations and by secret ballot immediately after a case concluded. Jurors voted up or down on the question of guilt and on which side’s proposed sentence to accept (Strictly an either/or decision—a coin toss with consequences rather than a fair outcome.)

Majority vote decided the result; a tie went to the defendant. The archon maintained order with their archi-like authority and knowledge of the law, which, considering they had no legal training, suggests they were making it up as they went along. (Fortunately, law schools would come along in due course—winging it doesn’t exactly scream “justice.”)

Each side had an equal amount of time to speak, measured by a water clock. (Another feature worth bringing back?) They presented their accounts, arguments, and a proposed verdict to the jury. Litigants honed in on a juror’s sense of reason and emotion, crafting speeches to underscore the gravity of the injustice and evoke the utmost sympathy.

There were no rules of evidence, no cross-examination of witnesses, and no case-law precedent. “Appeals to the prejudice and passion of the jurors were common,” and “[d]irect requests for pity were so common that the failure to beg for the jurors’ compassion was regarded as a sign of antagonism” to the process. Sycophancy in Athens, supra, at 15.

Athenian laws were often ambiguous (some things never change), and archons did not give jury instructions or information on relevant laws. Nor did they restrict claims litigants could make. So, litigants rarely argued the law. (Glad that disappeared quickly. Sure would make appellate work baffling.)

The laws were displayed to the public on walls in the city’s center. (It’s a good thing our laws aren’t chiseled on walls. A four-foot-high wall displaying the Illinois Compiled Statutes would probably stretch along the complete perimeter of Illinois.)

As you might suspect by now, the trials were more like an amalgamation of a professional wrestling match and a political debate, before an audience that would make a Taylor Swift concert seem like a gathering of librarians. In addition to jurors, spectators could attend, further creating a lively atmosphere. Plato compared the behavior in courts to a theater audience, hooting and clapping. (Like watching The People’s Court, except with more shouting and no commercial breaks.)

Post-Trial

Although trials supported the legal rights of litigants, once the gavel came down, there was no means to enforce the award. If the losing party refused to pay, another trial would be held to examine the original case and obtain the legal right to forcibly collect payment. This secondary trial, called ephesis, was the ancient version, though much narrower, of an appeal.

If the plaintiff won the ephesis, he and his supporters had to handle the collection effort themselves. Still, many plaintiffs got stiffed. (A tradition that remains to this day.)

An Engaged Citizenry

Most remarkable was the Ancient Greek legal system’s emphasis on ordinary citizen participation in all aspects of legal proceedings. This was deliberate. “In Athenian eyes, expertise in the law was inherently suspicious; amateurism, the mark of democratic control, was for them the system’s chief virtue.” www.stoa.org/demos/intro_legal_system.pdf at 24. Indeed, “[A]t any one time, nearly a sixth of the citizens were engaged in public activity of one kind or another.” Matthew A. Pauley, Athens, Rome and England: America’s Constitutional Heritage, Intercollegiate Studies Institute 2014, at 43.

The success of the Athenian courts informs us of the crucial engagement and responsibility required to preserve democracy, and, with it, the promise of freedom and justice.

History informs us of what happens when civic commitment is forsaken—democracies falter, their spirit wanes, and the legitimacy of the courts deteriorates with each injustice.

For More Information

For additional source materials and information on classical Athenian democracy, visit https://generales.uprrp.edu/humanidades/wp-content/uploads/sites/5/2018/09/AthenianDemocracy.ABriefOverview.pdf.

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Printed with Permission from The Chicago Bar Association Record, January/February 2025.

Justice Michael B. Hyman is Editor-in-Chief of the CBA Record and a former CBA president. He sits on the Illinois Appellate Court, First District.

Bailey Wieland, a junior at the University of Chicago, assisted in the preparation of this article.

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Side Bar:
THANK THE ANCIENT GREEK PHILOSOPHERS

In the study of philosophy and legal theory, the Greek concept of ethos is pivotal. Greek philosophers referenced ethos in addressing both an individual’s character and moral compass. According to Aristotle, effective persuasion begins with establishing ethos. He identified three components of ethos: (i) phronesis, prudence and intelligence; (ii) arte, virtue; and (iii) euoia, goodwill towards the audience. His idea lives on in our modern ethics, which extends beyond the art of persuasion to professional and moral standards governing the conduct of judges and lawyers.

Similarly, English borrows the root-log from logos, or logic, as in dialogue, methodology, and criminology. Logic remains the backbone of argumentation and decision making.

Logical strategies like deductive reasoning, syllogisms, and inferences originate in the thinking of Aristotle, Plato, and other Greek philosophers. We’ve been using their thinking to settle arguments ever since.