N. 8
– 2009 – Note & Rassegne
On the origins of popular court (heliaia)
in archaic Athens[1]
Russian Academy of Sciences
Institute of World History
It happens sometimes that a common point
of view, while met another time, impels to state a question if it is really
true. In a recent book (the first in Russian) on the Athenian popular court,
its author, T.V. Kudryavtseva, says that in ancient sources (first of all,
Aristotle and Plutarch) there is no doubt that Solon established the heliaia
in Athens[2].
Some years ago I also thought so[3].
But, to be strict, the argument is not very firm.
Aristotle says that Solon gave the poorest
Athenians (thetes)[4]
the right to take part in the court (Ath. pol. 7.3) and that he established the
habit of appeal to the popular court (Ath. pol. 9. 1). But nowhere does he say
that Solon founded such a court. Moreover, from his evidence we can make an
indirect conclusion that the author of the Athenaion politeia considered
the heliaia a body in existence already before Solon. Only an existing
body can receive new functions and new members.
Plutarch (Sol. 18) is even more definite;
he speaks explicitly of a pre-Solonian heliaia. According to him, Solon
“raised the importance of the courts”. Surely only importance of an
already existing body could be “raised”.
So the tradition, to read in Aristotle and
Plutarch the thought of establishment of the heliaia by Solon, is
nothing more than a historiographic myth born under the influence of common a
priori premises. In the text of the sources such information is absent.
However, again to common opinion, there is
a notion of Solon as the “father” of the heliaia in
Aristotle’s Politics
(1273b36 sqq.). But the expression in the treatise ta dikasteria
poiesas ek panton should not
obligatorily be interpreted in the sense that Solon established the popular court.
Besides, in such a case Aristotle would have contradicted himself: the evidence
in his Athenaion politeia runs otherwise, as we have seen. In all other
cases there is agreement between the Politics and the Athenaion
politeia[5].
There is a way to escape postulating a
contradiction. The expression quoted can also (and with much greater
probability) be interpreted in the sense that Solon allowed all citizens to be
members of the court; accordingly, earlier the court had existed but included
only some part of citizens.
I should emphasize that what I deny is not
founding of the heliaia of Solon but the presence of information of this
founding in the sources. If Solon ever did some such a thing, no ancient author
indicated it. To see in Solon the “father” of Athenian popular
court is traditional, but only because each of us has been so taught when being
a student.
When enumerating “clear indications
in our principal sources on creation of the popular court exactly by
Solon”[6],
T.V. Kudryavtseva cites also a passage from the Athenaion politeia
according to which Ephialtes in 462 B.C. gave some rights earlier executed by
the Areopagus Council “partly to the Council of Five Hundred, partly to
the people and the courts (Arist. Ath. pol. 25. 2). Kudryavtseva thinks there is a
contraposition here, but there is none. To be strict, there is
contraposition here, but along a different line: not between the people (that
is the ekklesia) and the courts (that is the heliaia), but
between the Council of Five Hundred, on the one hand, and the people and
the courts, on the other. In the Greek phrase the adversative construction men
– de is posited exactly so. As to the people and the courts, they
are connected with the coordinating conjunction kai that is never used
in situations of contraposition but only in situations of rapprochement,
uniformity, sometimes even sameness. Sj from the passage cited we also cannot
conclude responsibly that for Aristotle the Assembly and the court were two
distinct bodies.
So if Solon did not created the heliaia
but only reformed it to a body consisting of all citizens, what can have been a
hypothetical pre-Solonian heliaia? The answer is evident: it included
not all citizens. It is possible to make this thesis maximally exact: it did
not include thetes, the poorest citizens. Both Aristotle and Plutarch
say expressis verbis that Solon admitted thetes to the court.
The situation appears quite the same as
with the Assembly (ekklesia), for the
latter body was open for thetes also from the time of Solon’s
reforms. The analogy is so full that it compels to recall the much-discussed
question of whether the bodies were really one and the same in Archaic Athens.
This question of identity or non-identity
of the ekklesia and the heliaia is answered by scholars in
different ways. I have always been among proponents of the view that the heliaia
was initially a judicial session of the Assembly, not a separate body[7].
When citizens gathered to legislate or to elect, they were the Assembly. When
they sat to judge, they were the heliaia.
The generally simple level of political
and legal development in early Athens does not allow conjecturing some
sophisticated systems of various institutions, “branches of power”.
Further, an important etymologic argument says that heliaia was in many
Greek cities the term exactly for the Assembly. Further yet, in judicial
speeches Athenian orators often identify the judges with the citizen body in
toto.
If the heliaia had not coincided
with the Assembly, then its members would have been among the Athenian
officials (archai) and so, first,
would have been somehow selected (through election or lot) and, second, would
have rendered accounts to the citizens. But all this is manifestly wrong, for
the dikastai (judges in the court) did not render any accounts to
whosoever (Aristoph. Vesp. 587). They were unaccountable, and this feature
makes them similar only to members of the Assembly. The judges weren’t
also selected, despite a common opinion. There was no body of 6000 judges
selected by lot every year, as I have demonstrated in earlier papers[8]
(and in the sources there is no one word about such a procedure). Last, if the
court had been an institution separate from the Assembly, the latter (as the
supreme power) would have been able to annul verdicts of the former, but this
is not the case.
Naturally, even during the Archaic period
identity of the Assembly and the court was not absolutely full. To be a judge,
one had to satisfy an age qualification (30 years old) and also to swear every
year. If an Athenian for one or another reason didn’t swear, he
couldn’t be a judge during the year in question. But in general, the
Assembly and the court are in our sources interchangeable structures, which can
carry out functions of each other.
There is a view (especially defended by
M.H. Hansen[9],
and in Russia – by T.V. Kudryavtseva[10]),
according to which the heliaia from the very beginning had nothing in
common with the ekklesia but was created later. But such a view leads to
eclecticism and internal contradictions. To be repeated and emphasized is that
in Aristophanes’ Wasps and in judicial speeches of Attic orators
judges are identified with the demos. So they were no representatives of
the people (as Athenian democracy was not a representative one).
T.V. Kudryavtseva produces any essentially
new reasons supporting her opinion. She calls in question the etymologic
argument mentioned above, but she offers no alternative solution. So either the
word heliaia has no etymology at all (and that would have been very odd),
or it is to be derived from helios, but this is surely an etymologia
vulgaris.
Examples given by T.V. Kudryavtseva in
support of her view that the Assembly could annul verdicts of the court do not
work. After the overthrow of the “Thirty Tyrants” in 403 B.C. the
people decreed that judicial sentences passed under that regime were not valid.
However, as far as we can judge, under the “Thirty” the heliaia
didn’t sit at all[11],
and trials were conducted in extra-ordinary order: by the “Thirty”
themselves, or by the Council, or otherwise. So, while annulling sentences
passed under the oligarchy the Assembly annulled no sentences passed by the heliaia.
As to other cases cited, T.V. Kudryavtseva
confuses pardon and amnesty with annulling judicial sentences, but those are
quite different legal mechanisms. Or else we would have been compelled to admit
that in many modern countries, where presidents can grant pardon and
parliaments can grant amnesty, presidents and parliaments have a right to annul
sentences passed by a court. But this would have been a rough legal (and
political) mistake, as according to the law judicial power is independent from
legislative and executive ones. There was no higher instance above the heliaia,
no body to appeal against its sentences.
It has a sense to dwell in more detail on
the question whether there was annual selection by lot of 6000 dikastai
in Classical Athens. The view is quite common, but is it right? I can admit
that in any given moment there were circa 6000 judges, but I don’t
believe in a strictly fixed number, especially as an annual sortition is
mentioned. I have no idea how could such a vast sortition have been conducted.
But the main thing is that no such
sortition is evidenced by any ancient author. The procedure of filling courts,
as described by the sources[12]
is quite different. Every citizen above thirty years could once a year swear at
the Ardettus Hill, and then he could come any working-day to the court
buildings and take part in a sortition (to be strict, in a series of
sortitions). Accordingly, he got or did not get a right to hear a trial as a
member of a judicial board.
Permanent controversy between supporters
and non-supporters of the “fixed number” theory is always around
only three pieces of evidence (as there are no others). A passage in
Aristophanes (Vesp. 661 sq.) is especially important as it contains in the sole
ancient literary work wholly devoted to the heliaia. But Aristophanes
only says that in Attica there are no more (oupo pleius) than 6000 dikastai. The expression itself
proves that the figure is approximate and not strict.
The orator Andocides (I. 17) claims that
his father Leogoras was at law “in the presence of sixth thousand
Athenians” and won the case. Andocides was a very much biased author, and
his statements can hardly have any argumentative force[13].
Moreover, in the case in question he was naturally interested in shielding his
father. It should be noted that Athenians didn’t gather a court of 6000
judges even for much more significant cases. It would have been extremely
strange if they (for what reason?) decided to gather such a huge court for a
relatively contemptible case of Leogoras.
With the third text, by Aristotle (Ath.
pol. 24. 3), the situation seems more definite. The text runs, “there
were six thousand judges”. And surely, if everything told by such a great
man as Aristotle[14]
is the truth in the highest instance, the question must be closed, once and
forever. But things are again more complex than they seem to be. Chapter 24 of
the Athenaion politeia is full of figures; some of them are correct but
some are unreliable.
For example, the author says that in
mid-fifth-century Athens there were 700 “internal” (endemoi) magistrates and 700
“external” ones (hyperorioi,
that is in cities of the Athenian Empire). The numbers look strongly
exaggerated, especially those relating the “external” officials.
And the very coincidence of two numbers is too suspect to be right.
The whole chapter gives an impression of a
borrowing from a biased pamphlet on Aristides. So I can repeat that we
shouldn’t accept uncritically and without doubt its figures. I should add
that in the received text of the Athenaion politeia in general there are
serious problems with figures[15].
And in any case we have no objections against rough calculation of
members of the heliaia as 6000. But we object against a view that the
number was fixed and reached through a total annual sortition.
An official limitation of the number of
judges would have contradicted basic principles of Athenian democracy, as it
would have meant something similar to a limitation of the number of citizens in
the Assembly (an oligarchic, not a democratic feature). The members of the
Athenian heliaia were not representatives – they were the citizen
body itself in one of its functions.