Research Question: How did ancient Greek Law determine the authority to make legal decisions and

settle disputes?

Introduction:
In ancient Greece, there was no established or developed term that defined legal practice

or law. The concept of law was most closely defined as the Greek word nomos, which means a

statute or legal rule in the fifth century B.C.; prior to the fifth century B.C. nomos was used to

refer to a “custom” or “tradition.” The plural of nomos, hoi nomoi, can be used to identify an

entire set of communities’ laws, however, it does not include the aspect of legal process. Legal

process is more closely linked to the word dike which means “judgement”, “settlement” or

“trial.” The later form of the word, dikaiosyne, means “justice” with similar definitions as the

English word (Gagarin, M. & Woodruff, P., 7). In order to fully understand how modern society

legal practices function, it is important to examine the origins of legal thought.

Understanding how the ancient Greeks started to develop of written law and decide who

has the authority to make legal decisions gives us an understanding of legal thought at the time.

Examining and understanding how the ancient Greeks determined who can settle a dispute and

how disputes were settled helps identify the nature of legal practice during this period.

1st Section

Before the 7th century law was a settlement of disputes determined by sophoi—“wise

men.” Sophoi in ancient Greece were considered to be poets, philosophers, and historians on

which most of the accounts for ancient legal thought rely on. Among the first examples of early

Greek legal thought is in Homer’s Iliad. The scene depicts two generic Greek cities on Achilles’

shield, one at war and the other at peace. In the city at peace, there are two scenes, a trial and a

wedding and another scene, a harvest in the country. In the trial scene, “two men were wrangling
about the blood-money for a man who had been killed, the one saying before the people that he

had paid damages in full, and the other that he had not been paid.” (Homer, Iliad, 18. 497-500).

This dispute is over two men who cannot agree on a blood debt. A blood debt is a debt, either

monetary or material, owed to a relative of a victim who died. Unlike modern legal procedure, if

there is a dispute the litigants must voluntarily appeal for a trial.

The men proceed to the agora (marketplace/public area), so elders can gather and hear

the case. Trials in ancient Greece were public and attended by onlookers and supporters of the

disputants, who were allowed to express their support for litigants in the trial. The litigants plead

both their cases one after the other. Then each of the elders offer their opinions and ultimately

one judgement or resolution is determined as the dike or “the straightest judgement.” Whoever

introduced the opinion receives a prize. Rewarding prizes disincentives the judge from achieving

the truthful verdict, however it rewards a judge to appease the community, rather than create

strife. This depiction is an early representation of the settlement of early Greek disputes. It is

important to note that the legal process is public and takes place in the agora. Therefore, trials

might have been heavily influenced by the community due to the interjectory nature of the

audience. The goal of the settlement to reach a “straight judgement” (dike), which is determined

by a consensus of judges or an individual, depending on his authority (king, public official, etc.)

(Gagarin 20-2). These consensuses were developed and influenced by the community’s opinion

of the subject.

Among the first examples of law in ancient Greece history is the story of Deioces, the

King of Medes. The fifth century Greek historian, Herodotus, accounts that Deioces, a wise man,

wanted to be tyrant of Medes. At the time communities were lawless and had no functioning

body to settle disputes or crimes. Deioces gained respect and prominence in his village for
practicing justice (dikaiosyne) (Gagarin, 20-1). Having the power and reputation for straight

judgments (dike) enabled Deioces to garner more attention and respect from neighboring

villages.

Unlike judges in modern times, a strong reputation for dike was established if the judge’s

ability to render favorable settlements for both sides. Judges were meant to appease the litigants

rather than apply a proper discourse of law. Law was not meant not to punish a crime or a

violation of rules, it was meant to develop a compromise to lessen strife in society. As Deioces

fame grew, people from all the surrounding villages flocked to him in order to settle their

disputes. The increased demand for settlements overwhelmed Deioces and as a result he decided

to stop judging settlements so he could tend to his own business. Due to his retirement,

lawlessness and civil unrest plagued the villages once again. Villagers pleaded for Deioces’

return in order to restore justice to Medes. Consequently, he was appointed the first King of

Medes.

Deioces’ kingship completely transformed the traditional ancient process of justice and

legal practice in the Median world. According to Herodotus, Deioces’ legal process shifted from

the publicly held trials and oral traditions of law to a system centered on private written,

recorded judgements. “People had to put their cases in writing and have them sent in to him; then

he made his decisions and sent them back.” (Herodotus, Histories I.100) This system gave

Deioces complete control over judgements and removed the role of public opinion from the

settlement. The king in this scenario is the absolute judge and secludes himself from his people

in the palace. Deioces hires informants to go over all the land to properly punish people for their

wrongdoings. It is important to note that although Herodotus frames this story as a historical

event, this is not a factual story. The story of Deioces is a foreign tale warning the Greeks of the
consequences of changing to an authoritarian form of legal practice. Initially Deioces followed

the traditional ancient Greek oral traditions of law, then shifted to oriental legal practices

(Gagarin, Woodruff, 13-4). Through this story, Herodotus implies that implementing an

authoritarian system of rule transforms the nature of legal practice.

The poet Hesiod affirms some of the procedures referred to in Herodotus’ account of

Deioces. In Hesiod’s Theogony he refers to the Muses, whom bestow skills of rhetoric and

decision making to the kings. The Muses are goddesses of literature, science and the arts.

According to Greek mythology, the Muses are the source of inspiration for poetry, songs, myths

or any sort of technical art.

"And all the people look at him, deciding the proprieties with straight settlements. And
he, speaking surely, quickly and intelligently puts an end to even a great dispute. Therefore there
are intelligent kings, in order that in the agora they may easily restore matters for people who
have suffered damages, persuading them with gentle words." (Hesiod, Theogony, 84-90)

This account of Deioces is consistent with Herodotus’ understanding of ancient Greek

procedural law. According to Achilles’ shield scene, Herodotus’ account of Deioces and this

passage in Hesiod’s Theogony, settlements were announced publicly and restore the matters back

to previous condition if a victim suffers damages and the king convinces the litigants to accept

the settlement (Gagarin, 25). In order for a settlement to be reached, both parties must accept the

settlement. Unlike current legal practice, it is theorized the legal procedure was entirely an oral

process. There is no significant evidence that indicates any form of written or codified laws were

used in the archaic period.

2nd Section: the Thesmothetai, Solon and Lycurgus

By the beginning of the archaic period in Greece, the Athenian monarchy fell and was

replaced by an aristocracy, ruled by nine archons. Six of the archons were called the
thesmothetai (“lawgivers”). They decided cases and recorded them to use for future disputes.

The thesmothetai were the first Athenians to record written laws. According to Aristotle

(Athenaion Politeia 3.4), the thesmothetai were chosen “in order that they might publicly record

thesmia and keep them for deciding disputes.” Most scholars agree that thesmia means the

results of particular court cases (Gagarin, 56).

An example of a pre-Draconian law enacted by the thesmothetai in Aristotle’s Athenaion

Politeia provides evidence to how the thesmothetai developed their judicial decisions. “The

following are ancestral thesmia of the Athenians: if any people establish a tyranny or if anyone

assists in establishing a tyranny, he shall be outlawed, both he and his family." The thesmothetai

began by recording the thesmion, which means a rule established by a case, to use in future

cases. Afterwards, a law reaffirming this ancestral thesmion as a valid Athenian law was publicly

enacted (most likely by Solon) (Gagarin, 56).

The tyranny law presents that the thesmothetai did not record the judicial decision, (he

shall be outlawed…) but the general rule (“if anyone attempts tyranny…”) on which their

decision was based. The law was recorded in a third-person conditional form, the same form as

Draco’s homicide laws. This distinction emphasizes an important shift in creating an officially

published set of laws. There is limited evidence of the laws of the thesmothetai, so it is unclear if

the other thesmia were recorded in the same fashion in order to emphasize the rule. Since these

thesmia were not recorded for public display, but for their own use in future cases, they did not

have the same status as the laws of Draco (Gagarin, 56). However, if the pre-Draco thesmothetai

did in fact record thesmia on the general rule of which their decision is based, they made a

significant contribution to the development of written sets of law in ancient Athens.

 By the middle of the seventh century, Greek city-states started develop written laws with

the exception of Sparta. The emergence of written law discerned rules of the community so they

were identified as laws, established a sense of security and permanence of these rules and

guaranteed the laws were available to the community. In addition, written law established a sense

of special authority to the rules and was backed by the political entity that enacted the laws. The

laws were officially published on axones, rotating wooden blocks located in public areas, for all

members of the community to see (Gagarin, 54)

The lawgiver Solon was one of the nine archons in Athens and lived from 640 to 558

BCE. He came from an emerging middle class and was most likely an outsider in the aristocratic

government of Athens. Typically archons came from the noble class of the aristocracy called the

eupatridae meaning, “good fathered.” Solon was appointed eponymous archon, chief magistrate

of Athens, at a time of civil turmoil. In an attempt to settle the civil unrest Solon developed a

series of reforms to appease both the wealthy aristocrats by preserving their advantages and the

poor by redistributing land (Gagarin, 63-64).

Some of Solon’s reforms deal heavily with the legislation of family law. According to

ancient sources Solon implemented laws regulating the assignment of women to husbands,

prohibiting dowries and regulating the behavior of women in public, especially at funerals,

where excessive morning and expenditures were prohibited (Gagarin, 69). Solon’s family law is

meant to strengthen and establish the power and control of the head of the family (kygrios) over

other family-members or slaves. There is no indication of any penalties for the violations of these

laws; however, private enforcement by the head of the family most likely was the acceptable

remedy. In some cases remedies were not stated because the settlement would often be a legal

suit and was often implicit in particular laws.

 In some cases a private suit, also known as dike, could not enforce Solon’s family laws.

As result he created a new procedure for remedies, the graphe or public suit. The graphe enables

any party to file a suit not just a victim’s family or relatives contrary to private suits. However,

graphe was only allowed in particular cases in which the victim or their relatives could not bring

on the suit themselves. Laws pertaining to a family member who is being sold, or against

mortgaging oneself are two of the few instances in which a graphe would be acceptable

(Gagarin, 67). Solon’s introduction of public suits marks an important development of civil

liberties given to individuals in the legal process. Slowly this procedure of public suits started to

apply to more forms of cases, and as a result propelled Athens toward a more fair and balanced

legal system.

In contrast to the transcribed laws in Athens by Solon were the Spartans, whom opposed

any form of written law. Their predominant legal thought was based on the works of their

symbolic, legendary, and possibly mythical leader, Lycurgus, who supposedly lived sometime

between 800-600 BCE. According to the Greek biographer Plutarch from the first century AD,

“Concerning Lycurgus the lawgiver, in general, nothing can be said which is not disputed, since

indeed there are different accounts of his birth, his travels, his death, and above all, of his work

as lawmaker and statesman,”(Plutarch, Life of Lycurgus, 1). Like Plutarch makes apparent, little

is known or agreed upon about the origins, early life and works of Lycurgus. However, Lycurgus

is attributed with developing the Spartan rhetra (“proclamation”) an oral constitution of Spartan

laws. The Spartans perceived that Apollo at Delphi gave their laws to Lycurgus. Unlike the

Athenians who attribute their laws to Solon, the source of the Spartan rhetra is from the divine

(Gagarin & Woodruff, 25). Therefore, while both Solon and Lycurgus are well-revered

lawgivers, Solon’s status is more of a founding father of Attic law, while Lycurgus is perceived
as a divine, mythical leader. The evidence pertaining to Lycurgus is so limited that there are

doubts that he even existed.

“None of his laws were put into writing by Lycurgus, indeed, one of the so-called

"rhetras" forbids it.” (Plutarch, Life of Lycurgus, 13:1). Plutarch’s account explains that

Lycurgus believed in oral constitution because there was no need to inscribe the principles that

the Spartans should follow; rather the goal was to instill these principles in society. Lycurgus and

the Spartans believed their laws should be imprinted wholly through an education of common

principles and virtues. Scholars believe that up until the 4th century BCE, the Spartans persisted

their oral traditions of law (Gagarin, 54). It is implied that Lycurgus’ most important form of law

giving was through education, because it was critical in attaining the law. Spartans must have a

proper education in order for his system of laws to work (Plutarch, Life of Lycurgus, 14:1-2).

According to Plutarch’s account, Lycurgus developed the Spartan Council of Elders, also

known as the gerousia. The senate of 28 men functioned judicially as a Supreme Court and had

the ability to try any Spartan including kings (Plutarch, Life of Lycurgus, 5:6). According to

Plutarch, Lycurgus did not create the ephors rather they were created 130 after Lycurgus. The

ephors were council of five leaders that held legislative, judicial and executive powers and their

authority was similar to those of a king. Despite their executive authorities, two kings ruled

Sparta hand in hand with the ephors. Since no written law was recorded, settlements and disputes

were reached not at the ruling of prior cases, but were at the discretion of the judges (usually the

ephors or gerousia) and their interpretation of the oral legal thought of the rhetra (Plutarch, Life

of Lycurgus, 7:1-2)
References:
Aristotle, trans. Sir Frederic G. Kenyon. Athenaion Politeia. Internet Classics Archive. MIT.
http://classics.mit.edu/Aristotle/athenian_const.1.1.html
Gagarin, M. (1989). Early Greek law. Berkeley: University of California Press.
Gagarin, M. Woodruff, P. (2015). A treatise of legal philosophy and general jurisprudence:
Volume 6: A history of the philosophy of law from the ancient Greeks to the scholastics.
Chapter 1: early Greek legal thought. (Second ed.). Dordrecht: Springer Netherlands.
Herodotus, trans. George Rawlinson. Histories. Chapter I. Internet Classics Archive. MIT.
http://classics.mit.edu/Herodotus/history.html
Hesiod. The Homeric Hymns and Homerica with an English Translation by Hugh G. Evelyn-
White. Theogony. Cambridge, MA. Harvard University Press; London, William
Heinemann Ltd. 1914.
Homer, trans. Samuel Butler. Iliad. Chapter XVIII. Internet Classics Archive. MIT.
http://classics.mit.edu/Homer/iliad.html
Plutarch, trans. Bernadotte Perrin. Lives, Volume I: Theseus and Romulus. Lycurgus and Numa.
Solon and Publicola. Harvard University Press.