ARISTOTLE AND THE LAW COURTS - SFU

4D.C. MIRHADYSolon takes an important place in both the Politics and in the Athenaiônpoliteia. He was the original architect of the Athenian democratic constitution, and in the Politics Aristotle is keenly interested in whether Solon actually intended democracy. Did democratic power in Athens result fromSolon’s decision to make the law courts democratic? Aristotle argues againstthe notion in the Politics, preferring to credit Ephialtes’ docking of the powerof the (oligarchic) Areopagus, Pericles’ jury pay, and the increasing influenceof the dêmos resulting from its role in the naval victories over the Persians andin establishing Athenian rule over the Aegean (Pol. 2.12 1274a1–12).Many scholars have suspected the account of Solon in Pol. 2.12 as un-Aristotelian, but that hardly matters for this discussion of the relevance of the lawcourts to political theory. The account in 2.12 attempts to see Solon as theauthor of a mixed constitution, with oligarchic (the Areopagus) and aristocratic (elected officials) elements, as well as the democratic law courts(1273b). It seems almost axiomatic to Aristotle that the law courts, like theAssembly, should be constituted by all the citizens. It seems integral to theGreek idea of freedom. But that in itself could hardly have accounted for popular sovereignty. So long as the questions posed to the courts were circumscribed, for instance to the three areas identified by Hippodamus, the dêmoscould hardly have had much power.In the Athenaiôn politeia Aristotle points to other reasons for popularascendancy that were due to Solon. Along with other popular measures, suchas the prohibition of loans secured by the person and the right of volunteerprosecutors to intercede on behalf of wronged third parties, Aristotle lists asthe chief basis for democratic power ‘the right of appeal (ephesis) to the lawcourt; for the dêmos, being sovereign over the vote, becomes sovereign overthe politeia’ (Ath. pol. 9.1). Plutarch expands slightly on this account,explaining that appeals were made against the judgments of the magistrates(Sol. 18.2), and both Aristotle and Plutarch explain the role played by the lawsbeing unclearly written, which left it up to the dikastêria to decide betweendiffering interpretations.For Solon, the most basic elements in democratic participation were theAssembly and the law courts. His lowest property class, the thêtes, wererestricted to these institutions alone (Ath. pol. 7.3). For Solon as for Aristotlehimself, the Greek ideal of freedom was expressed through these two institutions. Why this was so should become clearer in the next few pages, as severalof the issues that have been identified by looking at the evidence forHippodamus and Solon are investigated. After the connections between thelaw courts and citizenship, I follow Aristotle’s own method for treating thelaw courts, dealing with several related questions about the dikastêria underthe headings, from whom?, about what?, and how?.

ARISTOTLE AND THE LAW COURTS5CitizenshipA citizen is defined simply by nothing other than participation in judgmentand rule (Pol. 3.1 1275a22–23).In this barest definition Aristotle makes the terms metechein kriseôs kaiarchês carry a large load. Aristotle is envisioning rotating participation inwhich all free adult males of the polis share, though he gives consideration tosuperannuation and so on. Krisis is his term for judging cases, there being nosuitable noun to describe the activity of being a judge that is cognate with theword for judge, dikastês. Likewise, archê has to stand in both for the activityof being a magistrate, an archôn, and for taking part in deliberative bodies,such as the Athenian boulê and ekklesia.In response to Plato’s description of the essential parts of a polis, Aristotleclaims that the deliberative and forensic aspects are essential:It is necessary that there be somebody to return and to decide justice; ifindeed one would count the soul of an animal to be more a part of it than thebody, one must also count such parts of poleis parts of them more than thoseparts that contribute to necessary utility, the military and the part that participates in judicial justice, and in addition the deliberative part, deliberationbeing a function of political intelligence (Pol. 4.4 1291a23–28; cf. 6.81322a5–6, 7.8 1328b13–14).Schütrumpf points out that Aristotle puts special emphasis on the necessityfor justice and law courts because in his critique of Plato he can here catchPlato leaving justice out of his ideal polis whose purpose is to promote justice.11 Those who perform these essential functions within the polis were forAristotle the truest politai.As a negative example against his own preferred definition of citizenship asconsisting in participation in deliberative and judicial bodies, Aristotle pointsto Sparta, wheresuits for breach of contract are tried by different ephors in different cases,while cases of homicide are tried by the elders and likewise other suits bysome other magistrate. The same method is followed at Carthage, wherecertain magistrates judge all the lawsuits (Pol. 3.1 1275b9–12).Sparta and Carthage are not democratic, so citizenship is more limited there.Aristotle sticks with his definition, however, since none of the offices inSparta or Carthage are permanent; they are all for limited terms. When Aristotle suggests a correction of his definition it becomes exousia koinôneinarchês bouleutikês kai/ê kritikês (3.1 1275b18–19).12 The substitution ofexousia koinônein for metechein seems to emphasize that actual participation11E. Schütrumpf, Aristoteles, Politik (Berlin, 1996), vol. III, p. 271.There are disagreements over the reading. Most now follow Aretinus in substituting kai for ê, ‘and’ for ‘or’, which is what appears in the manuscripts. With the Spartanand Carthaginian example focusing on judicial functions, the ‘or’ seems possible.12

6D.C. MIRHADYis not as significant as the ability or possibility of participating, as in limitedterm offices.Why Aristotle thinks that participation in both deliberative and judicialbodies is important for citizenship is not fully explained. After all, I havenever served on a jury — perhaps I never will — and yet I do not doubt my citizenship. For Aristotle, it seems, these two functions were the essential elements of the polis: the polis made decisions about what was beneficial for theentire citizen body, and the polis had the sovereign power to resolve disputesand punish wrongdoers. These functions could not be delegated. A selectbody, like a Council, might manage day-to-day affairs, but the Assembly wassovereign. Likewise, the dikastêrion was the dêmos in judicial matters. Itpoliced behaviour within the polis with the authority of the polis.From Whom?At the end of book 4 of the Politics, after treating the Assembly in ch. 14 andthe magistracies in ch. 15, Aristotle turns to the law courts in ch. 16. Hedivides his treatment into questions of who mans the courts, whether from allcitizens or from a certain class, what kinds of court there are, and whetherselection to them is by election or lot.Although in the Rhetoric Aristotle includes considerations against popularcourts as being more easily manipulated than single judges, in the Ath. pol.and Politics he inclines more toward large juries, ‘for a few are more easilycorrupted by gain and by influence than the many’ (Ath. pol. 41.2; cf. Pol. 3.51286a31–40). There is a close identification between the dêmos actingthrough decrees passed in the Assembly and the dêmos acting through the lawcourts (Ath. pol. 41.2). Through these two institutions the dêmos made itselflord of everything. So the question of whether an individual judge or a massedpanel of judges is better amounts in many ways to the same question aswhether an individual ruler or massed panel of rulers, like a popular assembly,is better.Aristotle needs to answer the objection that the many, considered individually, are ethically worse than the few, the elite, and thus should be denied apart in decision-making. He answers the objection in a number of ways. First,although the many are individually worse ethically, collectively they generally have greater ethical worth than the better few (Pol. 3.11 1281b1–14).Second, the many collectively make up a body, coming at issues from different perspectives and having different parts of goodness and wisdom, and thushave better judgment (1281b11–25; cf. 3.15 1286a24–30, 3.16 1287b25–30).Third, if the many are denied a share in decision-making, they become enemies to those who do have a share (1281b27–35). As with food, a mixture ofhighly nutritive food with less nutritive food is better than only the highlynutritive food alone, so long as both are in the mixture (1281b35–38). Fourth,like patients, the many are able to judge the results of a doctor’s ministrations

ARISTOTLE AND THE LAW COURTS7(the statesmen’s proposals/the litigants’ claims), even if they cannot be doctors (statesmen/legislators) themselves (1282a14–23). Fifth, although property qualifications for executive offices mean that such officials are richerthan average individual members of the dêmos, collectively the worth of thedêmos is greater than that of any official (1282a30). Finally, sixth, as has beenmentioned, the many are less corruptible than the few. By ‘corruptible’ Aristotle has particularly in mind the susceptibility to emotion (1286a31–35; cf.2.9 1270b12 on the corruptibility of the Spartan ephors).Robinson argues that Aristotle nowhere says that the many have a right tosovereignty.13 His arguments in favour of broad participation all centre onwhat is objectively good. While it is true that his arguments centre on what isobjectively good, Aristotle does argue that ‘those who are by nature equalsmust have the same right by nature and the same worth according to nature’(Pol. 3.16 1287a12–13). He makes this argument against the inequality ofkingship rather than in favour of popular juries, but this is a passage in whichsome of his strongest arguments appear for the rule of law. Rulers, viz. judges,are only to be ‘guardians of law and servants to the laws’ (1287a21–22).In the Athenaiôn politeia several considerations are introduced that have afurther bearing on the question of who mans the law courts. Courts in Athens,or instance, had different sizes depending on the value of dispute: ‘claimswithin 1000 drachmas came before a court of two hundred and one judges,and claims above that before one of four hundred and one’ (Ath. pol. 53.3).The principles involved here are on the one hand obvious, on the other somewhat obscure. A more important case should demand the attention of morejudges. But there is no sense that a more just judgment might result. There hasto be some limit to the need for greater size, and that limit would seem farbelow even four hundred and one. Aristotle also recognizes that there arecases whose worth does not justify the assembling of a large court (Pol. 4.161300b34–35).In his discussion of how oligarchies are maintained, Aristotle lists five pretexts (prophaseis) that are made in response to the dêmos, that is, methods ofexcluding it from power. Among these is the imposition of fines for those whodo not participate in the law courts, which would compel the rich more thanthe poor to participate (it being understood that there is no jury pay). Whetheron not it seems likely to us that the rich would be more compliant to fines thanthe poor, what Aristotle takes from the idea is clear. He wants ‘to mix justly’the rich and poor in the deliberative and judicial bodies by achieving the rightbalance between paying the poor for attendance and fining the rich fornon-attendance. Underlying these recommendations, of course, seems animplicit cynicism about the class allegiances of those participating in thesebodies. That aside, it seems a practical issue for Aristotle to adjust the levelsof payment/fines in order to achieve his preferred mixture (Pol. 4.913R. Robinson, Aristotle, Politics Books III and IV (Oxford, 1962), pp. 39–40.

8D.C. MIRHADY1294a41–b1). This mixture, he supposes will be best able to decide what isobjectively best or most just for the entire polis rather than for one of its constituent parts (cf. 4.14 1298b13–25).One of Aristotle’s four kinds of kingship he characterizes as heroic, and heincludes the role of judge under this form of kingship, along with military andreligious leadership, making a king as general/judge/high priest, who decidedlawsuits on oath or without (Pol. 3.14 1285b5–12, 21–23). These kings arenot quite the same as the Homeric, let alone the Hesiodic, kings, who oftenwork by committee.14 For Aristotle they represent only historical relics.In the Athenaiôn politeia Aristotle raises the issue of the local judges(dikastai kata dêmous). Peisistratus originally sent them out from the city.Aristotle claims that their purpose was that ‘men might not neglect their agriculture by coming into the city’ (Ath. pol. 16.5). It seems more likely thatPeisistratus was interested in extending the power of the polis against the prerogatives of local aristocrats, who may formerly have decided disputes amonglocals. We learn nothing about how these judges were selected. In 453/2 Pericles followed Peisistratus’ lead in reinstituting these judges, numbering thirtyat the time, presumably one from each Cleisthenic trittys (Ath. pol. 26.3). Pericles’ reasoning is also unclear: he had no need to assert centralized control inthe way Peisistratus did; perhaps he wanted to relieve pressure on the centralcourts by having minor disputes settled locally. In the 4th century, after thenumber thirty had been disgraced, the number was increased to forty, and theystayed put in Athens, deciding disputes valuing less than ten drachmas (Ath.pol. 48.5, 53.2). At that point, the need for Athens to assert judicial authoritythroughout Attica must have been taken for granted; perhaps transportation toand from the asty had also become commonplace enough for worries aboutlosses in agricultural time to be no longer a concern. Aristotle seems toacknowledge a need for a court like the Forty, the Local Judges, in his discussion of petty transactions, which do not fall to a large court, even if they dorequire judgment (Pol. 4.16 1300b32–35).About What?Aristotle names eight kinds of courts eidê dikastêriôn (Pol. 4.16 1300b19).But it is unclear where he got the number. His list is clearly more inclusivethan that of Hippodamus, but he leaves us wondering where Hippodamus’category hybris should fall. Presumably it would be under private transactions, though in Athens it was treated under the graphê procedure, making it amatter of public, rather than simply private, interest. Indeed the Athenian distinction between dikai and graphai is entirely absent from Aristotle’saccount.14 See Homer, Il. 18.497–508, 23.566–613, Od. 11.543–51; Hesiod, Theog 80–93,Op. 27–39.

ARISTOTLE AND THE LAW COURTS9Aristotle’s eight-fold listing is not as systematic as we could have hopedfor, but it is nonetheless worthwhile to investigate how it is articulated(1300b19–34).1.audit (euthyntikon) (end of magistrate’s term)2.public interest (ta koina) (in particular situations)3.constitution (politeia)4.disputes about penalties, for both magistrates and private individuals5.private transactions (idia synallagmata) beside these6.homicide (deliberate, involuntary, justifiable, exiles)7.suits involving foreigners8.petty transactionsAlong with Solon’s ‘appeal to the dikastêrion’ and Pericles’ payment forjury service, Ephialtes’ contribution to the role of the dikastêria in Atheniandemocracy is significant, although much harder to define precisely. In 462/1he stripped the Council of the Areopagus of many of its powers ‘to safeguardthe constitution’ and transferred them to the Council of Five Hundred, theAssembly and the courts (Ath. pol. 25.2). The powers transferred to the courtsare likely to have included those that regulated oversight of officials. Ath. pol.48.4 and 54.2 both refer the auditing of officials, processes that had to bebrought before the law courts. At first glance, it might seem odd that the lawcourts conducted such oversight inasmuch as the Council carried out mostexecutive responsibility. But final authority over the audits of the magistratesappears to have rested with the dikastêria. In Athens, the dikastêrion oftenworks as an appeal court, e.g., against the demes regarding their membership(Ath. pol. 42.1).‘Public interest’ seems a hugely vague area. Plato, Laws 767b–c, sees a distinction between private individuals making claims on each other and peoplemaking claims against other on behalf of the common good, and this seemsthe distinction here. In Athens the graphê procedure instituted by Solon, bywhich a voluntary prosecutor might intervene, entailed recognition that private individuals might dispute not only their private matters, but also mattersof concern to the integrity of the polis. But what seems to be envisioned hereare acts against the polis, refusal of military service, and so on, for which, inAthens, either a graphê (against individuals) or the eisangelia (‘impeachment’, against those in an official capacity) might be used.As Shütrumpf notes, the eisangelia was also the primary procedure usedagainst those who would ‘subvert the dêmos’.15 This is the sort of thing Aristotle has in mind when he writes about things that ‘bear on the constitution’15 Schütrumpf (see note 11), vol. 3, p. 421. According to the Lexicon RhetoricumCantabrigiense, s.v. eisangelia, Aristotle’s colleague Theophrastus (636B FHS&G) dis-

10D.C. MIRHADY(eis tên politeian pherei). Hyperides, Lyc. 12, notes that such broad chargesare easily abused, for instance by those who would use impeachment againstthose involved in sexual improprieties.Disputes about penalties ‘for both magistrates and individuals’(1300b21–22) are at first not entirely clear, and other passages in the Politics(5.4 1304 a13–17 and 6.5 1320a9–11) are not especially helpful. But Ath. pol.45.1 tells the story of Lysimachus who was sentenced to death by the Council,until Eumelides objected that he could only be sentenced to death by adikastêrion. So began the law that only the law court could pass such sentences. More importantly, this is an instance of that Solonian principle ofallowing appeal to the law court, whether for a magistrate accused of malfeasance or for a private individual. Many such instances of appeals are mentioned in the Ath. pol. (Ath. pol. 45.1–3, 46.2, 48.2, 54.2, 55.2, 56.1, 61.2).Aristotle makes useful distinctions between voluntary and involuntarytransactions. Under the former he includes buying and selling, lending, underthe latter theft, adultery, poisoning, and so on, including violent acts, such asassault and killing (Nic. Eth. 5.2 1131a1–9). With the exception of the lasttwo, these would all seem to fall under Hippodamus’ blabê. They would probably fill the majority of the courts’ activities.Aristotle describes the first five of his categories as much more importantthan the last three. When he describes what democratic law courts in particular should interest themselves in, he says ‘everything, or on the majority andthe most important and the most authoritative matters, such as audits, the constitution, and private transactions’ (6.2 1317b25–28). He describes these matters as politika, ‘which when not well conducted cause conflicts andconstitutional changes’ (1300b37–38).Aristotle’s last three matters with which judges may concern themselves donot seem exhaustive at first. Homicide, suits involving foreigners, and pettytransactions do not cover everything, but we should recall just how widely hisnotion of transaction (synallagma) goes. Athens’ law courts certainly handledwhat we would now consider criminal matters, thieves and so on, as well ascontractual disputes (Ath. pol. 52.1, 3, 56.1, 57.1). As well as contract disputes, however, Aristotle’s synallagmata include theft, violence, abuse ofparents, even adultery. His expanded discussion of Athens’ various homicidecourts may be undertaken as an answer to discussion of Sparta’s variouscourts (2.9). The method of selection to the Areopagus, for instance, was profoundly different from that of the other, popular courts.Within a discussion of what matters are decided in courts, the question ofthe courts’ fidelity to the laws must also arise. Aristotle is without a doubt anadvocate of the subordination of all executive and judicial power to the rule ofcussed eisangelia in the fourth book of his On Laws. Besides ‘subversion of the democracy’, Theophrastus says it also applied if an orator took bribes and gave less than his bestadvice, or if someone betrayed a position or ship or army, and so on.

ARISTOTLE AND THE LAW COURTS11law. He champions the view already ea

Abstract: In the Politics, Aristotle recognizes participation in law courts as an essential element in citizenship, yet there has been relatively little scholarship on how he sees this participation being realized.2 References to law courts are sprinkled widely through the Politics, Rhetoric,andEthics,aswellastheAthenaiôn politeia,