Wolff, Hans Julius - The Origin of Judicial Litigation Among The Greeks - Traditio, 4 - 1946!31!87

THE ORIGIN OF JUDICIAL LITIGATION AMONG THE GREEKS
Author(s): HANS JULIUS WOLFF

Source: Traditio, Vol. 4 (1946), pp. 31-87
Published by: Fordham University
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THE
OF JUDICIAL LITIGATION
ORIGIN
By HANS
AMONG THE
GREEKS
JULIUS WOLFF*
Students of the history ofGreek procedure generally hold that public adminis
tration of justice originated in a prehistoric habit of settling disputes between
individuals by voluntary waiving self-help and resorting to arbitration.1 This
ancient custom is supposed to have been gradually developed into a system under
which the parties were denied the right to seek realization of their claims by pri
vate force and compelled to submit their cases to authorities designated and
Litigants are
empowered to try the claims and hand down binding judgments.
believed to have been forced by an ever increasing pressure of public opinion,
as well as by the growing power of the rulers, to refrain from armed feud and
and to seek the decision of the princes who by virtue of their
blood-vengeance,
social and personal preponderance were predestined to act as arbitrators. After
of the state, their jurisdiction, according to the prevailing
the consolidation
a
became
legal institution and passed, after the abolishment of the early
theory,
and later, in the democracies,
the
to
aristocratic city magistrates,
monarchy,
to the popular courts.2 As an intermediate stage, the existence of a system of
*
An
cated
indirectly enforced by the public disapproval
arbitration',
Obligatory
earlier
draft
to Professor
article
formed part
of the present
Rabel
by friends and disciples
Ernst
of a collection
on his seventieth
of those
of manuscripts
dedi
birthday,
January
=
Arch. f. Papyr.
= R. J. Bonner
and
19 [1944] 1).?Special
abbreviations:
Law Review
28, 1944 (see Tulane
and Smith
und verwandte Gebiete; Bonner
Archiv f?r Papyrusforschung
toAristotle
G. Smith, The Administration
(2 vols. Chicago
;
1930-1938)
of Justice from Homer
= A.
= J. H.
Atticarum
CIA
(Berlin
1873ff.); Lipsius
Kirchhoff,
Corpus
Inscriptionum
=
Lipsius, Das Attische Recht und Rechtsverfahren(Leipzig 1905-1915) ;Mitteis, Chrest.
L. Mitteis,
Teil
der Papyruskunde,
Chrestomathie
Juristischer
des
(Leipzig
1911); Rev.
=
der griechischen Dialektinschriften,
?t. gr. = Revue des ?tudes grecques;
SGDI
Sammlung
= A.
ed. H. Collitz
and others
Die Streit
; Steinwenter
(G?ttingen
1884-1910)
Steinwenter,
durch
und
nach
Rechte
(M?nchner
Urteil,
Schiedsspruch
beendigung
Vergleich
griechischem
=
zur Papyrusforschung
Munich
und antiken Rechtsgeschichte
VIII;
1925); SZG
Beitr?ge
der Savigny-Stiftung
Germanistische
SZR = id.,
Zeitschrift
f?r Rechtsgeschichte,
Abteilung;
=
Ztschr. f. vgl. Rechtswiss.
Romanistische
Zeitschrift f?r vergleichende Rechtswis
Abteilung;
used
senschaft.?Commonly
and for collections
authors,
1
See,
above
all:
(1927) 508, and M.

Further:
29f\ 42f.
are
abbreviations
of papyri.
3ff. 29ff.,
Steinwenter
San Nicol?,
G. Gilbert,
Ztschr.
Jahrb.
for the names
employed
in the main
f. vgl. Rechtswiss.
f. class. Philol.
of Greek
and Latin
SZR
47
by P. Koschaker,
approved
and Smith I
43 (1928) 294; Bonner
Suppl.
23
(1897)
458ff.; L.
Br?hier,
Revue historique 84 (1904) 27ff.32-,85 (1905)Uff. 21; Lipsius 6; R. J. Bonner, Class. Philol.
7 (1912) 17;K. Latte, Heiliges Recht (T?bingen 1920) 2f.; G. Smith, The Administration of
Justice fromHesiod toSolon (diss. U. of Chicago 1924) 1, 9; R. D?ll, Der G?tegedanke im
to Greek
Introduction
1931) 112ff.; G. M.
Calhoun,
(Munich
im fr?hen Griechen
Die Rechtsidee
9.
V. Ehrenberg,
Similarly
r?mischen
Legal
Zivilprozessrecht
Science
(Oxford
1944)
tum(Leipzig 1921) 57,72fL,who also derives the civil procedure of thehistorical period from
an original
custom
of settling
controversies
through
arbitration,
but
suggests
that the kings
of the heroic period dispensed justice authoritatively by virtue of their themistes(pp. 4,

8tetal.).
2
Steinwenter
29fL 42,54
n. 2; Bonner
and Smith
143f.;
Calhoun,
op. cit. 16f. 31.
31
32
TRADITIO
not complying with it, has been suggested for the type of society known from
Hesiod's Works and Days*
Support for this theory of the origin of the judicial procedure has been found
in the fact that the recognition of a binding force in the judicial sentence seems
to have been achieved only at a comparatively late moment, as well as in the
important r?le which arbitration played in all periods of Greek legal history.4
In addition to these arguments drawn from the history of the Greek law itself,
the theory is supposedly confirmed by comparative legal history; particularly,

by the new and deeper understanding of the Roman procedure which we owe to
On the ground of his discovery that the litis contestatio was
Moriz Wlassak.
an agreement of the parties concerning the issue and its submission to the iudex
had already been
for a decision, this scholar reached the conclusion?which
civil procedure had grown out of
briefly proposed by Ihering5?that Roman
customary private arbitration later seized upon and equipped with public au
thority by the state.6 The idea that compulsory public administration of justice
organically from private settlements and arbitration has also been
formany other legal systems,7 and the process is believed to be a typi
cal, perhaps universal, feature.8
in spite of these seemingly convincing arguments, such a gradual
Nevertheless,
but uninterrupted process of consolidation and transformation of private arbitra
tion into a compulsory trial before publicly authorized judges is hard to con
ceive. Voluntary resort to arbitration no doubt did play an important part in
developed
advanced
for it is not lacking. But it would be

society, and documentation
contrary to human nature to suppose that even the strongest pressure of public
opinion alone could ever effectively eliminate the use of force and bring about a
satisfactory system of law and order by inducing litigants to seek peaceful
primitive
3Bonner
and
4 Steinwenter
Philol.
40 (1945) 11.
especially
48f.; also Class.
38ff. 60ff. 197f.; D?ll,
op. cit. lllft.
especially
Rechts I (5th ed. Leipzig
1891) 167ff.
im Kriminalrecht
in Anklage
und Streitbefestigung
formulation
Smith
I 44fL,
passim,
des R?mischen
5Geist
6 See his
(Sitzungsberichte
(1916) 356; E.
Wenger,
Wlassak's
der Wiener
Diritto
Betti,
Institutes
of the Roman
are quoted;
writings
der R?mer
37
SZR
1917) 222, also Koschaker,
romano
I (Padua
For
information:
L.
1935) 451.
general
Law of Civil Procedure
(transi. Fisk; New York
1940), where
in the
himself believes
pp. 5, 24, 175f. Wenger
especially
Akademie
184 I; Vienna
of justice by the kings and of an ancient

administration
authoritative
of an original
side by side in the
to have existed
of private
both of which he assumes
arbitration,
see his paper
in Festschrift
(Graz
1925), espe
fur Gustav Hanausek
period;
pre-republican
. 13.
cially pp. 6ff.; also Instit. cit. 25
7Literature
and Assyria
is quoted
op. cit< HOf.
by D?ll,
Babylonia,
concerning
Egypt,
Das
Gff. and authors
laws see Steinwenter
cited by him; cf. also F. Beyerle,
For Germanic
fusion
custom
Entwicklungsproblem
im
germanischen
'Rechtsgang
(Deutschrechtliche
Beitr?ge
20
II;
Heidelberg 1915) 272ff.333ff. For English law: Sir Frederick Pollock in Select Essays in
Anglo-American
Legal History
(Boston
19C7) I 95.
8Sir Frederick
Pollock, A First Book ofJurisprudence (6th ed. London 1929) 24; Sir Paul
Outlines
Jurisprudence
of Historical
in Festschrift
op. cit. 110 note; J. Pantapoulos
were
ibid. 268.
Objections
199; see also E. Berneker,
Vinogradoff,
D?ll,
I (Oxford
1920) 351; Steinwenter
3f.;
1939) III
(Weimar
f?r Paul Koschaker
SZR 50 (1930) 443.
raised by G. Beseler,
THE
ORIGIN
OF
JUDICIAL
LITIGATION
AMONG
THE
GREEKS
33
and abide by the awards.9 We have no reason to assume that a

tendency toward arbitration in primitive society should have been any more
inter
successful in suppressing anarchy than were similar efforts in modern
national relations.10 If, on the other hand, such a success had ever been achieved,
no ground could be seen why the state should have bothered to put its authority
behind a smoothly working system of private arbitration.
These psychological considerations are supported by the legal situation as it
Resort to arbitration implies the waiving of self-help and volun
actually was.
arbitration
If the establishment of public adminis

tary and peaceful abiding by the award.
tration of justice had meant no more than making arbitration compulsory and
equipping the award with public authority, self-help should have disappeared
entirely as soon as the state had succeeded inmaking such arbitration a com
It is common knowledge, however, that actually self
pulsory public business.
help everywhere persisted deep into the historical period; and H continuad to be
lawfully applied both in the initiation of the lawsuit and in the enforcement of
the judgment when litigation before state-authorized courts, and in legally fixed
In the 'action based on ejectment'
forms, had long become a matter of course.
Athens
law
of
the
classical
?
provided for a protection of lawful
(
)
self-help.11
the question of the origin of litigation before tribunals equipped with

In the present study the at
public authority should be considered still open.
for
the
to
the
Greek
solve
be
made
problem
sphere. Here the sources
tempt will
are particularly favorable, since they allow us at least a glimpse of a very archaic
If interpreted in the light of findings made with regard to other legal
trial.
systems comparable as to their general background of social and psychological
conditions, this trial enables us to form an idea of the earliest fashion of getting
Thus
private controversies under public control.

The following investigation will consist of two main sections.
deal with the nature and purpose of the primitive lawsuit. The
The first will

conclusions to
9
24 n. 10, SZR
60 (1940) p. xxvi.
Class.
Festschr. Hanausek
Bonner,
7, Institutes
Wenger,
a sys
took a second
Greeks
that 'the Homeric
Philol.
7 (1912) 17, suggests
step by devising
to arbitration.'
to submit
to induce an unwilling
tem of challenge
and wager
opponent
the
between
did play their parts in the settling of disputes
and wager
certainly
Challenge
as they did in every primitive
system, but I find it hard to see how they could
early Greeks,
his own will, unless
the challenger
had
arbitration
to make
anyone
against
accept
with the right and the power to employ means
of some sort of public
the support
authority
of compulsion.
10For the nature
International
Politics
of those efforts see F. L. Schumann,
and history
remarks by Professor
See also the interesting
and London
1941) 181fL
(3rd ed. New York
be used
19th annual meeting

Soc. of Internat.
Law,
1925, p. 113.
di Aldo Alber
in Studi
in memoria
See also U. E. Paoli
36 (1915) 34Cff.
has shown the limitations
Paoli
of the right to self-help
toni II (Padua
1937) 314 n. 4, 33Cf.
in the law of classical
,which
every act of
? a
by the
lay against
Athens,
imposed
a a
recent
and k&ipeuis.
The most
of the acts of
and by the formalization
violence,
64 (1944) 191f?\ is likewise
in basic agreement
SZR
discussion
of
, by M. K?ser,
Proceed.
Hart,
11E.
Rabel,
with
Rabel's
Amer.
SZR
conclusions.
34
traditio
be reached here are in substantial agreement with a theory suggested thirty

years ago by Ernst Rabel.12
They will be confirmed in the second section by an
in the period during which
inquiry into the function of the judicial magistrate
that archaic conception prevailed.
Our central problem will be the question
of how public authority first subjected the free use of private force to its control
and to what results the establishment of such control led. It will become clear
that private arbitration and procedure before state-authorized
judges were not
two stages of a single evolutionary process, but developed as parallel but basically
the fact that themethods of getting
different legal phenomena?notwithstanding
the evidence and reaching a decision were probably more or less identical in both
In the third section, the overall result of the two preceding sections
of them.
will receive further support from comparative
law. A surprising parallelism
between the most ancient forms of judicial litigation and the most modern
methods of peaceful international settlement will become evident.
I. Nature
and
of Judical
Purpose
in the Primitive
Litigation
Age
1. The Shield of Achilles

earliest known specimen of a lawsuit in the Greek sphere is the famous
trial depicted in a sequence of pictures on the legendary shield of Achilles and
The scene testifies,
described in the eighteenth book of the Iliad, verses 497-508.
as we shall see, to genuine legal procedure, but of a character so primitive that
we are entitled to consider the verses as a source shedding light on the very
beginnings of social control of private disputes, exercised in the forms of law.
An analysis of this testimony of early law will put us on firm ground where we
shall be able both to delimit the procedure discernible in it against even more
primitive modes13 of seeking settlement without resorting to mere brutal force,
The
12SZR
38
(1917)
315.
See
also,
as
to Roman
law, Koschaker,
Juncker, inGed?chtnisschrift
f?r Emil Seckel (Berlin 1927) 203
In a very general way the idea is further
and International
Order (London
1935) 20 and
9.
SZR
37
(1916)
356,
Legal
Process
J.
. 1, 212;D?ll, SZR 55 (1935)
by H. Kelsen
expressed
in the symposium World
in The
(Wash
Weiss,
1942) 393, and,
following
him, by J. Hostie,
ington
Aujourd'hui
11 (1921) 1-49, finds the motive
Rhein. Ztschr.f.
Zivil- und Prozessrecht
power for the growth
take over, and eventually
in the effort of the state to curb, gradually
of judicial
procedure
are drawn from the ways
in which
this strug
His arguments
eliminate
vengeance.
private
theft
in the evolution
of the substantive
of certain branches
law, especially,
gle is apparent
Organization
16. E.
(1940)
In the present
is approached
in various
study the problem
legal systems.
adultery,
with Weiss,
I am the more
from a procedural
agreement
glad to state my basic
angle.
com
as his article
came to my knowledge
in the main
inasmuch
only when my study was
as to the nature of the judgment
in primitive
I am glad also to find my conclusions
pleted.
and
d'hist.
with a theory set forth by L. Gernet,
Archives
in substantial
agreement
procedure
com
came
1 (1937) 111-144.
Gernet's
to
after
du droit oriental
my
too,
knowledge
article,
of the pertinent
part of my manuscript.
pletion
V3
in the chronological
earlier
Not
sense, since those more
necessarily
primitive modes
the organized
such law
in their sphere, have been still in use when within
community
may,
suits as the one described
in our source were
already
the order
of the day.
It may,
however,
be noted that thePoem of the Shield is considered bymost authorities one of the latest parts
of the Iliad; see A. Fanta, Der Staat in derWas und in der Odyssee (Innsbruck 1882) 3
(following
Lachmann);
Lipsius
6; G.
Busolt,
Griechische
Staatskunde
(M?ller's
Hand
THE
ORIGIN
OF
JUDICIAL
LITIGATION
AMONG
THE
GREEKS
35
and to trace the lines leading forward to the fully developed civil procedure of
the classical city.
No agreement has yet been reached as to the character and significance of the
the rich literature that has accrued14 will lend us
Homeric trial. Nevertheless,
Some features, which necessarily remained obscure as long as a
valuable help.
solution was sought, with only a few exceptions, merely on the basis of the
Homeric text, will receive light from the method of comparative legal history.
A general remark on the spirit inwhich thismethod will be employed may not
The unending dispute which has been going on with respect to
be out of place.
on
scene
the
shield is evidence that the riddle of our source can never be
the
solved by philological means alone. When
approached with an exclusively
numerous
are
its
of necessity capable of widely
ambiguities
philological method,
or
must
remain
On the other
altogether inexplicable.
differing interpretation
hand, I firmly believe that this is one of the cases where the comparative method
is the way to illuminate a story which is not told with sufficient precision to
The comparative
admit of a definite judgment, as long as it is taken in isolation.
on
rests
the
established
that
in
matters
fact
legal the human
method, which
as
so
to
seek
solutions
for
similar
similar
mind is
constructed
situations under
It is a proven means to clarify
conditions, needs no justification.
analogous
hints and equivocal expressions, the true significance of which cannot be under
The Homeric text under discussion
stood from the context where they appear.
sort.
is full of hints of this
I am of course aware of the fact that I cannot furnishmathematical
proof for
my theory any more than my predecessors could. The source being what it is,
nobody will ever be able to do this. But if the solution offered here must remain
hypothetical, it is a hypothesis which takes into consideration every one of the
features of the scene and at the same time frees the trial on the shield ofmost, if
not all, of the baffling singularities by which so far it has seemed to be charac
terized. All the earlier attempts at an explanation have failed in either one or
As long as, from the philological point of view,
the other of these directions.
can
our
source
be explained in the fashion suggested here?
the ambiguities of
buch
der
classischen
Altertumswissenschaft
IV
Fournier
Paul
C. W. Westrup,
(Paris
M?langes
Die Was
still U. von Wilamowitz-Moellendorff,
op. cit. 55;

1920) .332; Ehrenberg,
1; Munich
1929) 774 n. 46; Steinwenter
34; differently
und Homer
(Berlin
1920) 164. Neverthe
the possibility
to consider
found
that legal information
less Lipsius
and others
refused
and social conditions
reflect different political
in the various
respec
parts of the epic may
to the attempt
(In taking an opposite
stand, I do not intend to give support
by
tively.
feature to either of
H. J. Treston,
Poine
every particular
1923] 13-24, to attribute
[London
the
two
one
another,
racial
are
groups which
the social structure
to have made
from
up, in complete
separation
supposed
of the heroic age, namely,
the 'Achaean'
and the
nobility
on
and the latter organized
the first forming an individualistic
society,
masses,
'Pelasgian'
and History
tribal lines; see also W. Leaf, Homer
[London
1915] 243ff. The historical
ques
of the Homeric
tions of the origin and development
system and of the relations
political
the scope of this study.)
and common
folk are not within
between
aristocracy
14
not quoted
Other
of it is listed by Bonner
and Smith I 31 n.5.
Most
there,
literature,
notes.
will be cited in the following
36
TRADITIO
even if the philological method alone might admit of other explanations as well?
the result just mentioned should speak strongly in favor of the theory proposed.
this theory fits in with what I feel able to state with respect to the
Moreover,
post-Homeric development of judicial procedure down to the classical period,
again with the backing of analogous phenomena well known from other legal
systems. All the results reached in this paper lend each other mutual support,
and I beg the reader to judge each of them in the light of all of them.
observation another problem more specifi
With this general methodological
our
source
is connected.
To what extent are we entitled to
cally relating to
as
a
consider the description of the trial
genuine source of historical Greek law?
There has been a great deal of debate as to whether the poet is describing an
actual shield or presenting us with a mere product of his imagination.14*1 In my
opinion, this archaeological question is as immaterial for our purpose as is the
philological question of whether the scene represents an early or late layer in
the composition of the epic. Even if there has never been a shield of the kind
described by Homer, the trial-scene itself cannot possibly be a piece of pure
A priori, we may consider it as no less true to life than the wedding
phantasy.
scene which is supposed to have been depicted in another sector of the shield.
It is of course impossible to decide whether the poet describes a custom known to
him from his own observation ormerely relates memories from a past age which
I think it does?a
If, however, our analysis shows?as
lingered on in his period.
procedure which, in the light of later Greek sources as well as of comparative
legal history, appears plausible, our assumption that the verses are a legitimate
source revealing early law may claim acceptance, no matter in what period it
was a reality. The Greek character of the scene as such can be safely assumed,
even if Pernice145 is correct in suggesting that the artistic idea expressed in
In any
Homer's description of the shield corresponds to a Phoenician milieu.
event the story itself was composed by a Greek for a,Greek audience.
During
the period which, according to Pernice, is indicated by his hypothesis, i.e., the
ninth or eighth century, such a trial as narrated bv the poet would have been
in line with the general state of Greek civilization.
These are the words of the poet :
'
elv ?yopfj e a
*
a
e ,
a
a
'
e
500.
a
a
14a See E.
Pernice
Leipzig 1922) 75f.

14b
op.
'a a
'a
in Gercke-Norden's
e e
e a
,a
>e
Einleitung
a .
a
e
e e
e ve?aos
e ?a
e a
e
e
'a
e
ea
e e
'
evi
in die Altertumswissenschaft
cit. 76.
II
(3rd ed.
THE
ORIGIN
OF
JUDICIAL
, de
505.
ev
,a
eireiT*
'
ev
'a
Kel
?s
AMONG
LITIGATION
'
THE
37
e%ov
,
a
? a
GREEKS
a,
a e'Lwoi.
the folk were

in the assembly
for there a strife (498) was
(497) But
gathered
place;
two men
the blood-price
arisen,
striving about
(499) of a man
slain; the one claimed
to have
to the people,
but the other insisted
that he had
paid
all, (500) expounding
received
fain to receive arbitrament
at the hand of a
(501) and both were
nothing;
the folk were
daysman
(istor).
(502) And
cheering
both, as they took part on either
side.
the folk, while
the elders
(503) And heralds
kept order among
(504) on polished
stones were
in the sacred
in their hands
staves
from
sitting
circle,
(505) and holding
the loudvoiced
heralds.
before
the people
(506) Then
they rose up and gave
judg
ment
unto
each
in turn.
him who
should
in the midst
(507) And
lay
utter among
them the most
two
talents
righteous
of gold,
doom.15
(508)
to be given
A majority of authorities hold with the scholiast16 that the controversy of the
parties concerns the question whether or not the defendant has paid a werguilt
(
) which he had undertaken to pay in order to settle a feud that arose from
his having murdered a man, supposedly a relative of the plaintiff.
In other
words, the issue of the present suit is the funiment or non-fulfilment of a pact
of composition concluded in a case involving the right of blood-vengeance.
This
on
even
more
to
can
based
which
be
convincing reasons,17
opinion,
added,18
is accepted here as the basis for a discussion of the procedural problem posed
by the scene.
This is shaped by the obscurity which arises from the circumstance that we
are told, on the one hand, that the parties agree to submit their case to an istor
(501), while, on the other, we do not seem to see this istor in action, but hear
only of a group of elders who obviously play some part in reaching the deci
sion (506).
What was
the relationship between
15Translation
but
changed
16E.
Maas,
17Bonner
Griechisches
to prevail
by A. Lang,
in verses
499f.
W.
Leaf,
the istor and the elders?
E. Myers,
The
Iliad
of Homerus
The word
(London
1903)
istor
381,
in Homert
Iliadem
(Oxford 1888) II 273.
Townleyana
I 32-35, with
literature.
This
also shared by J. Partsch,
opinion,
I (Leipzig
1909) 77, and Vinogradof?,
op. cit. 347, now seems
B?rgschaftsrecht
over the theory
1829 II
(first advanced
by M?ncher,
Allgemeine
Schulzeitung
Scholia
and
Graeca
Smith
2 [1880] 444ff.; more

by A. Hofmeister,
fully developed
Ztschr.f.
vergi. Rechtswiss.
34 n. 3., who himself
seems
listed by Steinwenter
inclined
to accept
it) that the
or might
whether
a
the question
the plaintiff might
suit concerned
not refuse to accept
offered by the defendant.
blood-fine
18Decisive
vvcll in 499.
a
In all periods
of Greek
is, in my opinion,
legal history
a ,was technical
a
for paying a debt already
If the meaning
of verses 499f.
incurred.
a . Cf. H. J. Wolff, Transact.
were that suggested
the term should be a
by Hofmeister,
Ass.
The
72 (1941) 427.
Amer. Philol.
Steinwenter
finds in the pointed
difficulty which
'
e a , disappears
a?
a
a
when we recall that the rigidity of prim
contrast
.
does not admit of qualified
itive procedure
assertions
Cf. also
(see Latte,
op. cit. 16
27).
579, and
followers
Juncker,
op. cit. 219 n.3.
38
TRADITIO
means
expert or one who knows.19 However, neither here nor in the only other
instance where he ismentioned (Iliad 23.486) can the istor be defined as a witness,
as he is not produced by one party for the purpose of confirming his plea but
appointed by both of them to give a verdict which both are willing to obey.
This fact, pointed out long ago by Dareste and now almost generally accepted,20
recently served Jolowicz21 as the background for an attractive and helpful sug
gestion. He compared the Homeric istor to the English jury in itsmost primi
tive form,when it was not yet a body ofmen who decided on the ground of the
evidence laid before them, but a group of neighbors who gave their verdict on the
It thus functioned, along
ground of their own knowledge of the facts involved.
with oath, ordeal, and battle, as one of the formal means of evidence as used in a
primitive legal system. Therefore, as evidence always did in archaic procedure,
their verdict immediately brought about the decision.22 Jolowicz's comparison
certainly fits inwith Iliad 23.486, where Agamemnon is called upon by Idomeneus
and Ajax to act as an umpire familiar with thefacts, as he is himself one of the
It is also in
spectators, in their controversy over the result of a chariot race.
complete agreement with the etymological meaning of the term istor, and there
can be little doubt that it applies as well to the istorwho appears on the shield
of Achilles.
But there remains the question: who is this istor? Jolowicz's theory excludes
the idea that he might be a king or the chairman of the elders who takes the final
decision upon the advice of his council of elders.23 Nor does it seem possible to
follow the English scholar's own theory any further. He suggests that the ver
dicts of the elders were interlocutory sentences comparable to the medial
judg
ment of themedieval Germanic law, through which they proposed inwhat formal
way the evidence should be taken, leaving the choice between differing proposals
to the parties.
But the parties had already agreed to resort to an istor before
the elders voiced their opinions.
The latters' only task then would have been
to name a person suitable to act as an istor,u a hypothesis that indeed seems
hard to believe.
This leaves us with those authorities who have identified the
istor with the elders.25
This, however, presents us with a new difficulty. If we interpret, as do the
authors just quoted, verse 501 as referring to the group of elders as a whole, we
are forced both to impute to the singular
a collective sense and to assume
19Bonner
Durham
and
Univ.
Smith
Journ.
I 35
1925
. 2.
In view
(quoted
with
I do not
of this etymology,
approval
by Sir Frederick
see how F. D.
Jevons
Law
Quart.
Pollock,
Rev. 41 [1925]376; see also his note onMaine's Ancient Law [ed.London 1930],on p. 419),
was deposited.
could define the istor as a stakeholder
with whom
the werguilt
Certainly
can be inferred from Schol.
a a.
ad II. 23.486 (Maas,
nothing
a]
op. cit. 427) :
20R.
Ann.
des ?t. gr. 1884 p. 94ff.
and Smith I 35, also Stein
See now Bonner
Dareste,
wenter
34 n. 3.
21Atti
Dir. Rom.
Congr. Internaz.
(Pavia
1935) II 73-75.
22
op. cit. 72.
Jolowicz,
23Such was
the opinion
It now
of Dareste,
Nouv.
?tudes d'hist. du droit (Paris
1902) 11.
seems to have been generally
see Bonner
and Smith I 35f. with bibliography.
abandoned;
24This
seems to be the opinion
of Jolowicz,
op. cit. 75.
2
Authors
listed by Bonner
and Smith
I 36, who have
this view.
themselves
adopted
THE
ORIGIN
OF
JUDICIAL
LITIGATION
AMONG
THE
GREEKS
39
'
that the phrase kwl
ire?pap eXkadcuhad already become a fixed formula.26
The latter suggestion has justly been branded as 'not a very satisfactory explana
tion',27 and the first is highly doubtful on linguistic grounds.28 Actually we are
not compelled to accept this theory. The answer to our question follows from
the interpretation that, in my opinion, should be given the last two verses of
Homer's description of the scene.
The opinions ofmodern scholars are divided as regards the destination of the
two talents mentioned there. These have been defined as the werguilt itself,29
as a wager between the parties,30 and as a prize for the elder who gives the
'straightest' verdict.31 To my mind, the third alternative appears to be themost
acceptable one.32 The fashion in which verses 507f. follow upon verse 506 calls
for the conclusion that the two lines are meant to add further detail to the
process of rendering the verdict as described in 506. There is little doubt that
refers to the elders, and not to the
those are right who understand that
eiwe?v
of
the
Hence
in 508 is identical with that of
meaning
litigants.
a e in 506.
It must be taken to express to give judgment, or better: to state
the right (see below, sub II 3), but not to plead. This interpretation is all the
more called for, since the word a ?
(in turn) in 506 makes the idea of a
In addition, Lipsius' sugges
vote
the
elders appear very unlikely.
by
majority
?
means
viz.
the
a
elders' is not supported by any
'before them,
tion33 that
in this sense, while the
must
understood
be
other instance where the preposition
26
12
Stud.
Leipz.
Lipsius,
.
op. cit.
1907) 65
6, Busolt,
27
op. cit. 73.
Jolowicz,
28
a nomen agentis,
Being
29
12
Stud.
Leipz.
Lipsius,
30Bonner
and Smith I 40.
31Sir
Ancient
Henry Maine,
(1890) 231, R. Hirzel,

.
333
4, Steinwenter
Themis,
36.
Dike
und Verwandtes
(Leipzig
sense.
not very well be used in a collective
cit.
333.
R.
Att.
op.
230,
4, Busolt,
to this theory are listed there.
adherents
could
(1890)
More
Law
(ed. London
1930) 398, Hofmeister,
op. cit. 452; W.
Leaf,
The Iliad (2d ed. London 1902) II 612L; Gilbert, op. cit. 459; G. Glotz, La solidarit? de la
famille dans le droit criminel enGr?ce (Paris 1904) 129; L. Br?hier, Rev. Hist. 84 (1904) 29;
Hirzel,
37; H.
tion
cit. 65 n. 6, 414; Ehrenberg,

op. cit. 55 n.4; Vinogradoff,
112
1928 p. 366f.; D?ll,G?tegedanke
Philol. Woch.
Hommel,
76 (translation
to Greek Legal
Science
of our passage).?Treston's
that
op.
two of the elders
functioned
348; Steinwenter
op.cit.
. 12; Calhoun,
Introduc
suggestion,
and that the two
for the parties,
for his client,
is purely
imaginary.
as counsels
Poine
talents
89,
were the fee for him who won the case
32
I 37f.
see the reasons
set forth by Bonner
and Smith
the wer guilt-theory,
Against
so
even if the two talents were not actually
are convincing.
in my opinion,
But
which,
as is supposed
and Smith and the authors
small a value
by them, the
quoted
by Bonner
the trial con
As was
must
be considered
stated
most
unlikely.
above,
werguilt-theory
a werguilt,
or not the plaintiff had received
the question
whether
and, as we shall
see presently,
to have grown out of an act of self-help performed
itmust be supposed
by the
be
would
was
This
decision
act
to
be
decided
whose
to
such
the
issue
upon.
creditor,
right
cerned
the result were simply the

the debtor,
judgment was against
in
the presence
In a case concerning
to the creditor.
debt,
in primitive
law.
be quite unique
legal history
Comparative
at
on an obligation
is aimed
that in every primitive
proves
legal system the action based
not at obtaining
with
the revenge
for non-performance,
the right to proceed
obtaining
of the debt.
performance
if, in case
significance,
out of the werguilt
handing
court of the sum owed would
of no
33
Leipz. Stud. 12 (1890) 229. See also Bonner and Smith I 39.
40
TRADITIO
translation between or among for ? a is borne out by a considerable number of

passages in both Iliad and Odyssey showing the word in the same or a related
connotation.35 Accordingly, verse 508 should be rendered: 'to be given to him
who among them says in the straightest way what is right.' Bonner's argu
ment38 that settling disputes by wager was frequently practiced by the Homeric
Greeks cannot prevail over the philological evidence.
The elders, voting one
by one in a solemn fashion, join in a contest, and the one whose vote is accepted
as the best is the istor*7?i.e., the one who knows thefacts, like Agamemnon,
the
winner of the prize.

It is true that this mode of
umpire (Iliad 23.486)?and
it will be
reaching a verdict seems strange to the modern mind.
However,
shown presently that we are in a position to call on Germanic law, not for an
exact parallel, but at least formethods based on related ideas which render the
Homeric procedure less unique than it appears to be at first sight.
Among the scholars who share the view just expressed there is no agreement
as to who was to decide which of the various suggestions forthcoming from the
elders was made
It is hardly conceivable that it was
'in the straightest way'.
up to the parties to make their choice by mutual consent,38 and even less so is
the idea39 that the elders themselves determined who of them had given the
best verdict. Nor does the text admit of any interpretation to the effect that
a third man?whether
a king or other official or a trusted man called upon by
as a judge. Both the poet's own words and the analogy
the parties40?acted
of the Germanic law41 favor the hypothesis that the final decision was taken by
34
. 1.
. 4.
See also Gilbert,
op. cit. 55
op. cit. 459
Ehrenberg,
35See R.
e a c. dat.
J. Cunlif?e,
A Lexicon
Dialect
(London
1924) s.v.
of the Homeric
e
a
e
a
tv
a
a
are:
vus
a
II.
1.368:
a
Characteristic
A
, 4.37f.:
examples
'
a e
a
e a
e
a (cf. Od. 3.136), 4.16:
ye ve?Kos
yev
?ky
1
e a
a
e
e (cf. Od. 24.476).
to the sense suggested
Closer
?a
by Lipsius
"
'
e e a
e
e e . But even in these passages
are II. 3.85; 7.66:
the transla
tion between seems
and the
to be more
the Achaeans
Hector
addresses
both
adequate:
lined up for battle.
Cf. further D. B. Monro,
and B. Gerth,
(2d ed. Oxford
1891) 177f.; R. K?hner
der griechischen
I (3rd ed. Hannover
Satzlehre
1898) 507.
Sprache.
I 41.
Cf. also Dareste,
Nouv.
?t. S?.
between
Trojans,
standing
A Grammar
of the Homeric
the two armies
Dialect
Grammatik
Ausf?hrliche
36
and Smith
Bonner
37 It is true that to
the main
or not the blood-fine

had been
(to wit, whether
is
Nevertheless
the use of the singular
possible.
tie best verdict did not have to be that of the majority,
but also
several
the greatest
of the people
among
(see pre
concurring
opinions
applause
in the text above)
be accorded
the one that was
in the most
stated
might
appeal
question
answers were
only two alternative

justified, not only because
paid)
because
sently
ing way.
38This
is suggested
op. cit. 367.
by H mmel,
39
op. cit. 70.
Hirzel,
40This was
and adopted
the earlier
suggested
opp. citt.; among
by Homnel
by Dull,
see Gilbert,
op. cit. ( . 1) 459.
literature,
41
the most
or a
Under
as known
ancient
form of Cerrranic
to us, one man
procedure,
committee
chosen
judgment'
as 'finders of the
from anong
tbe pecple
assembled
in Ding
proposed
which
received
its validity
through acclamation
by the assembly
their consent
K.
their weapons
expressed
by clapping
together.
des Gei manischen
Rechts
(3rd ed. Strassburg
1913) 255f. According
judgment
; the people
Grundriss
(Umstand)
von Amira,
to others
(see R.
Schr?der,
Lehrbuch
der deutschen
Rechtsgeschichte
[6th ed.
by E.
von
K?nssberg, Eerlin and Leipzig li??] 47), the judgment was proposed by the presiding
prince
after
deliberation
with
some
of the assemblymen.
THE
ORIGIN
OF
JUDICIAL
LITIGATION
AMONG
THE
GREEKS
41
the surrounding crowd.42 Against this conclusion the objection has been raised
that verse 502, which shows the people taking sides with the parties,43 makes it
impossible to think of them as those who ultimately decide the issue.44 But
these manifestations
of sympathy took place when the suit was still in the stage
of pleading; we must not expect of this primitive assembly the dignified calm
and impartiality of a true court. What
is important is the fact that silence
when the elders gave their verdicts and that this silence had been
This reminds us of the Hegung through
imposed on the people by the heralds.
which the presiding official solemnly bade peace on the Germanic Ding;45 that
the mention of the heralds is indicative of the cooperation of some governing
If the final word was spoken by the people,
authority will presently be shown.
we understand why the parties when pleading addressed the crowd and not the
elders (500), and we see a very simple reason why the case should arouse somuch
interest.46 The procedure may be imagined to have been the one
popular
prevailed
usually
followed in the Homeric
assembly
place:47 the people
listen in silence
42This
been
has already
The Iliad
op. cit. 398; Leaf,
by Maine,
suggested
613; and E.
Griechisches
I (Leipzig
Privatrecht
Weiss,
1923) 23 n. 21.
43
as
is the theory that these men were
Quite
unacceptable
compurgators
(Eidhelfer),
.
a
cit.
42f.
469
1.
in
and
Poine
op.
way,
suggested
by Gilbert,
again,
peculiar
by Treston,
et Pellana
Trait?
entre Delphes
de l'?cole
des Hautes
(cf. also B. Haussoullier,
[Biblioth?que
were not unknown
to the Greeks
1917] 60).
(see Gilbert,
222; Paris
Compurgators
cit. 468f.; Glotz,
Rhein. Mus.
Solidarit?
63 [1908]
f?r. Philol.
2S8fi\; R. M. E. Meister,
Heil.
Recht 23ff.; Smith, Admin,
and
io Sol.
559fL; Latte,
of Just. fr. Hes.
59ff.; Bonner
?tudes
op.
II 83, 179ff.) but,

like the Germanic
op. cit. 272f.; Schr?der,
(see Amira,
Eidhelfer
and properly
did not swear to
when originally
op. cit. 93) Greek
compurgators,
employed,
the facts but to the truthfulness
of the oath taken by their party
op. cit. 289; Latte,
(Glotz,
Smith
op. cit. 32; contra Meister,

op.
none of the parties
is admitted
scene
and Smith II 181).
cit. 579ff.; Bonner
In the Homeric
?t. 5.
to an oath, as was already
Nouv.
observed
by Dareste,
a fact which
the parties do not offer any proof whatsoever,
is in perfect agreement
Actually
with Jolowicz's
As to
of the rcle of the istor.
Cf. also Glotz,
op. cit. 292f.
explanation
J. L. My res, The Political Ideas of theGreeks (New York and Cincinnati 1927) 200ff.who
are referred to in the source a different group

thinks that each
time that /the people'
is
see Bonner
and Smith I 34 n. 1.
meant,
44
op. cit. 69.
Hirzel,
45
and K?nssberg,
fact that the Germanie
op. cit. 256; Schr?der
Amira,
op. cit. 45f. The
in our source
of a lawful Ding, while
to the constitution
Hegung y/as a solemn act essential
was
the activity
of the heralds
obviously
the comparison
cisive
argument
against
Homer's
'city'.
46
reasons
have been suggested
Various
limited
to mere
of the Ding
with
a de
does not involve
policing,
in the agora of
the assembly
and Smith I 34 n. 1), all in one way

(see Bonner
or even sensational
at which
to the trial an extraordinary
character,
attributing
an adherent
to the theory that
there is no hint in the description.
Sir Irederick
Pollock,
a blood-fine,
the lawsuit-concerned
that
the obligation
to accept
goes so far as to suggest
a leading precedent
the case may have been considered
(Law Quart. Rev. 41 [1925] 375; 42
Ancient
[1926] 2, and inMaine's
Law, p. 419f.)
47
In
Cf. Fanta,
cp. cit. ( . 13) ?2, and the evidence
by him; see also Calhoun,
produced
an
a judgment was
the
in which
of
trod. to Greek Leg. Science!.?
idea
loose
way
give
or another
in this type
tion o? the procedure
reached
it n ay be interesting
of proceduie,
to quote W. von Br?nneck's
descrip
of a much n ere advanced
i.e., that of the city of Frauenburg
system,
in Ermland in the fourteenth century (SZG 87 [1916] 329f.): 'Der Richter ruft aus der
Mitte
der
an Gerichtsstatt
erschienenen
dingpfiiehtigen
B?rger
einen
oder
den
anderen,
42
TRADITIO
to each suggestion and, after the speech, either remain silent, if the proposal
displeases them, or express their consent through acclamation.
The two talents, then, were to go to the elder who won the greatest applause
It is true that the crude way in which the assembly ex
from the gathering.
pressed its feeling must often have made it difficult to decide whose verdict had
As pointed out before, the circumstance that the
the people most.
pleased
question of fact laid before the elders admitted only of two alternative answers
does not bar the possibility of a contest between more than two men. Much
depended on the reasoning given for each answer, on the power of each of the
In these matters we
elders, or on the personal esteem in which he was held.
cannot
It is a
expect anything but the most primitive conditions.
certainly
were
or
more
men
that
controversies
safe assumption
frequent between two
cheers.
The
in 506, which suggests
who have received loud
expression
someone leaping to his feet and delivering a vigorous speech, rather than merely
casting a vote, favors our interpretation.
law shows us the direction in which we may seek
Here again the Germanic
an answer to the questions that arise. While it does not offer any exact parallel
to such a contest as we are supposing, it did feature institutions which seem to
reflect a very similar attitude toward the problem of reaching a satisfactory
law, which perhaps show us the
judgment. The sources of early Norwegian
forms of Germanic procedure at itsmost primitive stage, know of a wager be

tween the 'judges' named by either party, to be made when their verdicts differed;
Somewhat more re
the ultimate decision in such a case lay with the Ding.4*
mote from themethod testified to by Homer, but still in a related line of thought,
is the Urteitsschelte which was an essential characteristic of the trial before the
Ding as known from other sectors of the Germanic
sphere. Before the as
sembled people expressed their feeling, the parties, as well as any participant
in the meeting, might challenge (schelten) the judgment proposed by the 'finder1
Then a new controversy, incidental to the main suit, would
of the judgment.
arise between the challenger and the 'finder' and would originally be decided by
a duel between the two.49
It is true that these procedures are not identical with the one described by
The general character of his scene rather discourages the assumption
Homer.
that there may have been only two elders, one named by either party;50 nor is
den
damit
er f?r geeignet
h?lt, auf,
legt ihm die
die Aufforderung,
sie zu beantworten
zu stellenden
und
Urteilsfragen
so das Urteil
zu finden.
vor
und
verbindet
es von
Wird
dem
der ?brigen Dingleute

sei es ausdr?cklich
mit Worten,
sei es nur still
gebilligt,
indem ihm von keiner Seite widersprochen,
in Vorschlag
noch ein Gegenurteil
schweigend,
er das an erster Stelle gefundene
oder das statt seiner von
wird, dann verk?ndet
gebracht
Umst?nde
einem
das
anderen
zustande
Dingmanne
gekommene
andere
vorgeschlagene
Urteil.'
solches
gebilligt
wird,
als
48F.
Boden, SZG 24 (1903) 16f. Litigants might name whomever they pleased, with the
of certain
related
closely
kinsmen;
Boden,
a partisan
inclined
to assume
attitude.
'judges' were
49
op. cit. 256; Schr?der,
op. cit. 400.
Amira,
60The
of the source
is inconclusive,
since
wording
exception
use
wenn
Urteil,
of the plural
when
only
two subjects
are
involved;
op.
cit.
26.
the Homeric
see, e.g.,
verse
It
is clear
language
498.
that
permits
such
the
THE
ORIGIN
OF
JUDICIAL
LITIGATION
AMONG
THE
GREEKS
43
there anything in the text that would allow us to infer that there were two
It ismore likely
groups of elders, each of them attached to one of the litigants.
that the gerontes were several respected representatives
of the community,
perhaps the heads of clans, who were vested with the authority to suggest a solu
tion. This would be in full agreement with what is known about Homeric
society in general. But apart from this, the Norwegian
fudges' seem to show
a remarkable similarity to the Homeric istor, and their wager is not very distant
from the prize which we assume for Homer.

Whatever
the procedure may
have been in the Homeric community, the Germanic customs at least prove that
the idea of a second trial following upon the voting of the elders, and with the
prize at stake, does not deserve the criticism to which it has been subjected by
some scholars.51 Lack of evidence forbids us to propose a hypothesis as to
how such controversies were settled. The Germanic parallels, as well as the
general character of primitive law, may perhaps suggest another chance for the
people to make their choice or a decision by some sort of ordeal.
It remains to say a word about the question of who contributed the two
talents. The answer has been found long ago byW. Ridgeway.52
He combined
verses 507f. with verse 324 of the Hymn toHermes:
&
y?p a
a
a
a
a
and suggested to explain the two passages through the phrase:
a aa
Ti?kvai
,by which the filing of an action might be expressed in clas
a a were a fee to be paid by the plaintiff, the in
Since the
sical Athens.
ference that the talents mentioned
in the description of the shield and in the
Hymn were contributed by the parties (a
) as a reward for the judges
offered itself readily and is, inmy opinion, confirmed by the conclusions reached
in the preceding pages.53 There is nothing to discourage the assumption that
such a deposit was one of the prerequisites of the trial. The officerwho, as will be
shown presently, prevented an attempted use of arms and arranged the trial
will have induced the litigants tomake the deposit by the same indirect coercion
which brought about their agreement to submit to the trial.
The character of the Homeric passage and the practically complete lack of
sources that might throw light on the questions under dis
contemporaneous
cussion inevitably cause every interpretation of the scene on the shield to be
I believe, however, that the interpretation suggested here, which

hypothetical.
to a considerable extent is supported by analogies found in the Germanic sphere
at approximately
the same stage of legal development,
leaves fewer riddles
unsolved than those proposed by earlier expounders.
In particular, it offers
an explanation for the singular Uro pi, which is compatible with the linguistic
meaning
? P. M.
Stein wen
of the word
Laurence,
. 2.
ter 37
and Jolowicz's
Journ.
of Philol.
convincing
8
(1879)
theory concerning the function
128f., Bonner
and
Smith
I 39.
Cf.
also
52Journ.
ofPhilol. 17 (1888) lllf.
53
Br?hier,
for the Hymn
a reward
Rev. Hist.
toHermes,
for the 'finder'
84 (1904)
but not
of the
and Smith 150f.

29, and Bonner
for the scene on the shield.?Some
judgment
whose
verdict
was
theory
accept Ridgeway's
laws allowed
Germanic
accepted
by the people,
the re
ward consisting in a portion of the penalty inflictedupon the defeated defendant; H.

Brunner,
Deutsche
Rechtsgeschichte
II 1 ; 2nd ed. Leipzig 1906) I 204.
(Binding's
Handbuch
der deutschen
Rechtswissenschaft
44
TRADITIO
of the istor. It justifies the participation of the people in the proceedings.54

The following will show that the scene as understood here also is suited to serve
as a background forwhat the Homeric passage, again interpreted in the light
of the comparative method, reveals about the place which this trial occupied
in the general evolution of civil procedure among the Greeks.
It is generally assumed that the trial scene depicted on the shield reflects a
stage inwhich the idea of state power had not yet matured to a point where the
community was able and willing to subject private controversies to a control
strong enough to replace armed feuds with a compulsory judiciary system and
self-help with court decisions capable of enforcement by, or under the super
The trial is supposed to be a case of arbitration
vision of, public authority.
the
to
resorted
voluntarily
by
parties.55 This view undeniably receives strong
verse
matter
No
which of the various theories on the function
from
501.
support
and identity of the istor is accepted, there can be little doubt that the source of
his activity is an agreement of the parties.
If, however, our previous explana
tion of the scene is correct, we are no longer in a position to interpret this agree
ment as a
of the right to settle the dispute by the
simple and voluntary waiver
use of private force, by way of submitting it to the peaceful arbitration of a
friend. If the final decision lay with the people, there must have been some
Its amount and character, and the bearing which the
degree of public control.
scene has on legal history, are revealed by what we may assume, with a fair
claim to probability, to have preceded and led up to the trial itself as described
by Homer.
No attention has ever been paid to the rather striking fact that it is the
'defendant', not the 'plaintiff', who in the poet's description of the scene pleads
In view of the accuracy with which all the other details are
first to the people.
rendered in the order in which they should be expected to have followed each
if we dismissed this reversal of a
other, it would not seem to be methodical
as a mere poetical license without
to
order
that
would
natural
us,
appear
pleading
verses
In
most revealing of the legal
will
499f.
fact,
prove
legal significance.
aspect of the whole scene and of the stage reached in the evolution of judicial
litigation at the time of this trial. They suggest the inference that the suit
was instituted through the initiative, not of the 'plaintiff' but of the 'defendant'.
Actually this interpretation of the two verses receives strong support from a per
law.
fectly parallel phenomenon discovered in the sources of early Babylonian
Here,
too, at least down to the period ofHammurabi,
itwas
the defendant who
54 It
that our conclusions

the principal
features of the trial,
may be remarked
regarding
of the istor by the people with a possibly
between
ensuing
dispute
i.e., the determination
even if it could be proven
not necessarily
have to be discarded,
would
several
contestants,
so that the two talents would
in 508 refers to the litigants,
that
have to be considered
or even the werguilt
a wager
still furnish sufficient
would
us.
itself.
For
is in primitive
Wager
arbitration.
than mere voluntary
65
op. cit. 448, 450; Lipsius,
Hofmeister,
Rev. des ?t. gr. 32
?p. cit. 29; A. Croiset,
Bonner
and
Smith
the rest of our statements
auxiliary
evidence,
law compatible
with
in addition
a type of procedure
Leipz.
(1921)
to what
Stud.
12 (1890)
99; Ehrenberg,
op.
the Germanic
parallels
the passage
itself tells
that is something more
231; Att. R. 4; Br?hier,
cit. 55; Steinwenter
36;
I 31, 36.
THE
ORIGIN
OF
JUDICIAL
LITIGATION
AMONG
THE
GREEKS
45
brought the case before the court when he was not prepared to yield to the claim
raised against him by his opponent privately and without any public inter
ference.56 Only in those cases which were decided by the king himself or by
officials acting under his immediate authority, was the defendant summoned
before the tribunal officially upon request by the plaintiff.57

Now the whole situation becomes clear. We are still in a stage where he who
believes that he has a claim against another has no other means of realizing it
but self-help, carried out by forcibly seizing or killing the person liable. That
an act of self-help by the use of force had preceded the trial narrated by Homer
can be assumed without doubt. Not only is this a necessary condition on which
our understanding of the scene, particularly of verses 499f., depends, but the
initiation of the lawsuit by extrajudicial
self-help is so universal a feature of
primitive law that, in the light of comparative legal history, nothing else can be
law offers docu
the Babylonian
Moreover,
presumed in the case in question.
mentary evidence of the seizure of the debtor by the creditor, which forced the
former either to yield or to call on the tribunal for a decision.58 However, while
the realization of a claim was still entirely left to self-help, the community had
already established machinery devised to protect the person attacked from
becoming an innocent victim of brutal force applied without right. The creditor
could not be presumed willingly to give up the advantage secured by his forcible
act. Therefore the opportunity of appealing to the people would have been of
no avail to the debtor unless itwas bolstered by a public force which intervened
immediately and prevented the creditor from carrying the execution to its end.
This called for an authority equipped with the power to interferewith a private
execution already under way; for the people themselves were not able to do so
in an orderly fashion, however tiny the community may have been. As a matter
of fact, the existence of such an authority is evident from the mention of the
heralds in verses 503 and 505; throughout Greek history heralds were the aides
of established government, whether of kings or republican officials.59 Moreover,
the very activity inwhich the heralds are shown lends support to our hypothesis.
of order at the popular meeting by restraining

Their task was the maintenance
the masses from taking sides, so that the trial might proceed without leading to
their superior might have been, his function is clear.
public strife. Whoever
He protected a member of the community who was threatened with private
force; he arranged for the settlement of disputes by trial; and he policed, and
But
perhaps presided over,60 the assembly before which this trial took place.
he had no business in the trial itself, and this iswhy he is not mentioned by the
56J. G.
und die Streitbeendigung

im altbabyloni
Die
richterliche Entscheidung
Lautner,
Stud. 3; Leipzig
Rechtswiss.
schen Prozessrechte
1922) 16f.
(Leipziger
57
op. cit. 20.
Lautner,
58
op. cit. 12ff.
Lautner,
59See Pottier
. Cf. also C.
s.v.
The International
in DS
IV 607-609
Phillipson,
Iliad
7.274ff. shows
Greece and Rome
Law and Custom
(London
1911) II 321.
of Ancient
the heralds
performing
?0
This may
explain
Holding
Hirzel,
combatants.
their duty of separating
the elders held herald's
(verse 505).
they voted
sceptres when
to the people,
to speak
cf. Iliad
2.278ff. 23.567f.;
they had authority
why
the sceptre,
op. cit. 75. However,
Hirzel's
conclusions,
p. 71, go too far.
46
TRADITIO
poet.61 It is likely that this official was the dikaspolos mentioned elsewhere in
the epic.62
This is all that can be said. We are in no position to determine how far the
Noth
principle of public interference with private controversies had developed.
ing tells us whether the extrajudicial action to be taken by the creditor had
law of the period
already been formalized, as was the case in the Babylonian
of Hammurabi,63
thus facilitating the task of the officer charged with the pro
tection of the debtor against unlawful execution.
Nor do we know whether the
official took any steps when the debtor chose to fight it out rather than to appeal
to the people.
Certainly the stage represented by the earliest known Roman
procedure, where the official already interfered with the action of the creditor,
forcing him to take the case to court,64 had not been reached.
As a matter of fact, our conclusions would fit in even with the most primitive
conditions. We are not forced to assume that the law already confined the
creditor to a mere attachment of the debtor's person, thus giving the latter a
chance to set the judicial machinery in motion by an appeal to the authority.
We may well imagine that the creditor who claimed to have received no werguilt
for which he would have desisted from taking revenge simply proceeded with
The latter, however, managed
to
his vengeance by trying to kill his opponent.
find refuge with the officer of the community who granted him protection until
the question whether or not the werguilt had been paid was settled.
If the
answer was in the affirmative, a revenge taken by the creditor despite such
Nor is it necessary
decision would of course have been unjustifiable murder.
for the interpretation proposed to presume that the law had already advanced
to a point where a killer had a right to buy off revenge with a werguilt.
It may
well be that the creditor had voluntarily surrendered his right to immediate
The issue to be
revenge when the defendant promised him a composition.
decided in the trial was not, as we have seen, a possible privilege of the killer
61An
is offered by the early Norwegian

interesting
parallel
to the conduct
of the trial before
the Ding were
taken
exercised
but not
functions.
only policing
magistrate
judicial
relating
(1903) 58.
62Iliad
1.238, Od. 11.186. See Wolff, Seminar 3 (1945) 97ff.
law.
There
all
the
while
by the parties,
See F. Boden,
SZG
steps
the
24
63
op. cit. 14.
Lautner,
64
.
the Babylonian
mode
of raising a claim with
op cit. 14
Lautner,
40, 17, compares
in ius vocatio by way of manus
the Roman
1.1 and 2.
Tables
iniectio, such as set forth in XII
the difference
between
and the Babylonian
the Roman
(as well as, for that mat
However,
ter,
the earliest
Greek)
systems
should
not
be
The
forgotten.*
Roman
creditor
had
only
the right to take his debtor to themagistrate; he could not immediately realize his debtor's
liability and leave it to the debtor to seek the protection of the public authority against a
possibly
advanced
unlawful
step of the creditor.

Functionally
we do not know whether
stage,
although
private
action.
the Roman
it had
been
system
preceded
a more
represents
by a system analo
gous to theBabylonian or developed originallywhen public authority firstbegan to inter

fere with
The
former would
seem
to be the case
ifD?lPs
theory
concerning
the original function of the vindex (SZR 54 [1934]98ff.; 55 [1935]9ff.) could be accepted;
but
see below,
1937] 169 n.l.)
note
237.-(*See
also
E.
Volterra,
Diritto
romano
e diritti
orientali
[Bologna
THE
ORIGIN
OF
LITIGATION
JUDICIAL
AMONG
THE
GREEKS
47
to avoid vengeance by paying a werguilt, but the mere question of fact whether
a werguilt promised by him had been paid.
the actual state of the law may have been at the time of theHomeric
Whatever
The public authority acted
the
trial,
principle behind the procedure is obvious.
somuch by placing itself at the disposal of those
on behalf of internal peace?not
of their claims as by lending its protection to
who sought peaceful adjudication
an attacked member of the community as long as the aggressor's right to the
However
attack was not established.
primitive and imperfect it may have
taken to keep self-help from growing
had
been
first
and
the
decisive
step
been,
into a wild feud that might imperil the order and peace of the community.
Our result may claim the support, not only of analogous institutions of the
and other archaic legal systems,65 but also of further evidence found
Babylonian
the
Greek
in
sphere itself.
far beyond
The Greek law of the historical period had of course advanced
a
as
we
a
scene on
lawsuit
the
mode
of
inferred
from
such
initiating
primitive
the shield. But some recollection of it apparently still existed in the fifth cen
it is Orestes, the defendant, who calls on
Eumenides
tury. In Aeschylus'
a
trial
that he hopes will rid him of his torturers
to
obtain
in
order
Athena
Athena
thereupon, with the consent of the parties (438, 471f.),
(241-243, 260).
to take the decision herself (473-475) and refers
She
trial.
declines
the
arranges
the case to a court which she convokes and before which the trial takes place
under her chairmanship, after the heralds, on her order and behalf, have bidden
We observe all the basic features of the
silence on the crowd (see 566-573).
act
of
An
is
shield-scene.
taking place, and the persecuted man seeks
self-help
a
with
person who wields power over both parties.
protection by taking refuge
or
r?le
of
the
in
the
Athena,
king
magistrate,
stops the execution temporarily
and brings the matter before a body of citizens who are to decide whether or
not the execution is sought rightfully. Nothing, however, is borrowed from
This elevates Aeschylus'
is genuine.
and the consonance
dramatic
Homer,
the
rank
of
above
pure poetical phantasy and permits us to consider it
episode
as an indirect testimony for a habit that had actually existed in the primitive
age.66
65An
built along similar

of the medieval
institution
lines was the assur?ment
French
law.
a first attempt made
in a capitulare
of 805, the institution made
its
by Charlemagne
in communal
and royal ordinances
of the twelfth and thirteenth
charters
appearance
again
After
un officier royal,
It consisted
in a 'promesse
centuries.
donn?e
devant
solennelle,
seig
ou municipal,
envers
de s'abstenir
de toute violence
la personne
neurial,
qui a requis Pas
. . .En
surement
Passurement
?tait requis par la partie
?tre atta
g?n?ral,
qui redoutait
a somewhat
more advanced
At
officials
stage, i.e., under an ordinance
qu?e.'
by St. Louis,
were
even when
to impose
the assur?ment,
under
certain
it had not
required
conditions,
been
as grande tra?son.
Breach
of the promise was punished
The
institution
requested.
an effective
instrument
in its struggle for the suppression
in the hands of the Crown
was
of private
feuds.
Its most
that it indirectly
system
consequence
important
proved
of the
compelled
quarreling
parties
to
seek
the
decision
of
the
courts.
E.
Ch?non,
Histoire
g?n?raledu droitfran?ais public etpriv? d?s origines? 1815 (Paris 1926) I 754-757.
66For
Political
another
Refugees
instance
of Aeschylus'
archaic
featuring
Greece
1943)
(Johannesburg
in Ancient
legal institutions
42.?The
value
see E.
of our
Balogh,
source
is
48
TRADITIO
Even the positive law of classical Athens seems to have preserved a last rem
nant of the ancient institution.
In the pseudo-Demosthenic
speech against
an
Neaera
there
is
action based on unlawful detention (a a
mentioned
(59.66)
a
?
a ), which, by virtue of an express legal provision, was available
to the man who, when caught in illicit relations with a woman, had been held
as a ravisher (
) and released only after having agreed to pay a penalty
and having procured sureties. The ensuing trial was to determine whether
there had actually been a case of rape, in the legal sense, that justified the deten
tion of the prisoner and the extortion of the promise. The fact that the law
) suggests that the unlawful detention was
provided for a public action ( a
besides
the
that
the plaintiff and his sureties went out
consequence
punished,67
of
their
But
in
the
addition
action presented the unique feature
free
obligation.
that in case the detention proved justified the sureties had to surrender in court
the plaintiff to the defendant, who then might manhandle him at pleasure, with
the sole limitation that he was not allowed to use a knife.68 It seems obvious
to me that this still represents, in a modified way, the idea that the court, called
upon by the victim of an act of self-help, was to decide on the admissibility of
such act.
We conclude that our opening statement was justified: the scene on the shield
testifies to the existence of genuine legal procedure.
No objection against this
verse
501.
It
is
that this verse speaks
should
be
derived
from
true
inference
their case to the istor
favor
of
the
that
submitted
the parties
strongly in
theory
to
consent.
their
But
refuse the trial does
freedom
voluntarily and by mutual
a
mere
us
as
case
to
not compel
consider it
of
private arbitration any more than
does, with respect to the proceedings apud iudicem, the fact that under the
republican and classical law of Rome the litis contestatio was contracted by
the parties who could be induced to agree to it only by indirect means of coercion
To understand the situation
emanating from the imp?rium of the magistrate.69
uses some features of the homicide
trial
not impaired
certainly
by the fact that Aeschylus
as during
of his own day, inasmuch
the proceedings
is made
the first plea
by the Erinyes,
.
not by Orestes,
to the people.
and the court's
made
verdict
is final, not a proposal
67Cf.
245.
This
conclusion
who
for by the fact that Stephanus,
is also called
Lipsius
to have the case settled by
the father of the ravished
girl, was very anxious
that other
This
is best explained
(sect. 68 of the speech).
by the supposition
to collect
wise he had to fear worse
to be unable
the money
than merely
consequences
von ZivilE. Gerner,
und Straftat
Zur Unterscheidbarkeit
promised
by the plaintiff.
to be
claimed
arbitrators
best?nden
.
y a
68Cf.
im attischen
Partseh,
(1921) 14.
69Under
to proceed
B?rgsch.
(diss. Munich
(
17)
1934)
15f.; Weiss,
52f. denies
Rhein.
the penal
Ztschr.
f. Zivil-und
character
of this
Prozessrecht
11
the classical
with
non-cooperative
in rem in case
denial
Recht
law the praetor denied

to the plaintiff who was unwilling
the action
a formula
as was authorized
a
the
praetor, and granted,
against
by
a missio
in bona in case of an actio in personam
and a missio
defendant,
such
of an actio
or permission
in rem.
of execution
All
these measures
by way
of private
must
grown out of an original

See Wolff,
Louisiana
Law
have
force.
Review 5 (1943) 370. Cf. also Ihering, Geist des r?mischenRechts I (5th ed. Leipzig 1891)
168, 170; Koschaker, SZR 37 (1916) 356, 359; Eeseler, S2R 46 (1926) 138; Juncker,Ged.
THE
ORIGIN
OF
JUDICIAL
LITIGATION
THE
AMONG
GREEKS
49
it is necessary to realize the true purpose of judicial litigation in this archaic

Judicial
community as it emerges fromwhat we were able to state heretofore.
procedure had not yet developed to a point where the lawsuit serves the interest
of the parties, especially the plaintiff, in obtaining a judgment which puts an
Its sole purpose was the protection
end to their controversy and is enforceable.
order
of
internal
the
the
of
community by establishing a certain amount of
over
use
control
the
of self-help, which was still the only existing means
public
of realizing a claim.70 It therefore will not appear to be too daring a hypothesis
to suggest that the public authority simply would have extended its protection
over the debtor indefinitely if the creditor had refused to plead, or would have
its protection if the debtor had failed to accept the trial in a form
withdrawn
was
deemed
which
appropriate.71
2. The Greek Judicial
Judgment
It is true that the last conclusion goes beyond the immediate evidence of our
source. But it is consistent with what the source allowed us to inferwith respect
to the general character of the procedure, and it receives strong support from
the Roman
circumstantial evidence is supplied by the
analogy.72 Moreover,
Greek law of procedure of the historical period. Rabel has pointed out73 that
even in the classical and Hellenistic epochs the judicial sentence did not create,
but only implemented, the plaintiff's right to enforce an execution.
Only very
gradually and at a late moment was pure self-help in carrying out the execution
restricted by the establishment of public controls and eventually replaced by a

praxis effected by officials of the state.74 Furthermore, in the beginning, liability
everywhere was realized by seizing the person liable in order to kill or at least
enslave him, thus characterizing liability, not as a means of enforcing claims,
but as a relationship wThich enabled the creditor to take his revenge if his claim
had not been fulfilled.75 All these well established facts warrant the conclusion
that originally the lawsuit had not the purpose of eliciting a judicial statement
of the plaintiff's claim and an enforceable order, issu d by the court to the
Sehr.
is Beseler's
zur Kritik
remark
in his Beitr?ge
der
237, 256.
f. Seckel
Unacceptable
. 2.
r?mischen
IV (T?bingen
See also
1920) 105; cf. Juncker, op. cit. 204
Rechtsquellen
The Function
H. Lauterpacht,
of Law in the International
(Oxford 1933) 424 n. 2.
Community
70The
of the effect of the judgrrent
is immaterial
in this connection.
Even
question
force of the judgment
on an express
if the binding
to
depended
agreement
by the parties
as is plausibly
assumed
for primitive
of
character
by the judgment,
laws, the public
as assumed
here remains
unaltered.
litigation
71
as to whether
is possible
No answer
the istor-procedure
was the only one in use!or might
alternate
with others;
the choice between
several possible
and, in the latter case, whether
abide
the
was with
or whether
the parties
procedures
to te followed.
procedure
72See
same principle
note 69. The
above,
to Anglo-Saxon
with respect
law, R. Eechert,
customary
law determined
in the Germanic
prevailed
SZG 47 (1927) 41, 51.
for each
sphere;
case
see,
the
e.g.,
73SZR 36
(1915) 359; 38 (1917) 314; see also Weiss, Criech. Privatr. 457.
74For the details

see Weiss,
of this evolution
Griech.
75See
Rhein.
Ztschr. f. Zivilund Prozessrecht
Weiss,
495fT. In the latter place finda bibliography.
Privatr.
456ff.
11 (1921)
Iff. and
Griech.
Privatr.
50
TRADITIO
merely that of removing

defendant, to satisfy this claim?but
a
which in well policed community ordinarily prevented a man
seizing property or free persons.
the obstacles
from forcibly
This archaic idea,76which is linked up with the primitive conception of obliga

It is
tion,77 is still clearly discernible in the procedure of the historical period.
somewhat obscured by the fact that under the classical law ofAthens execution
was enforced by attaching and selling property of the debtor up to the value of
a a
?
a ? ). But it need no longer be
the amount adjudicated
(
was
still conceived as a sort of ransom to be paid
demonstrated that the latter
in order to avoid execution7751rather than as the object of the original debt or the
of the damage
sustained by the plaintiff. Proof is the terminology
? , kur?veiv; ? is etymologically related to
) and the fact that the
(a
sum adjudicated was not necessarily identical with that of the debt or actual
damage.78 Only the first step toward a more modern conception had been taken.
the new conception had already to some extent penetrated the minds
Doubtless
of the Athenians who never bothered to analyze the outward appearance of their
value
76See
same idea was, as

d'hist. du droit orient. 1 (1937) 133. The
Archives
Gernet,
of early Roman
SZR 37 [1916]
also a characteristic
(see Koschaker,
procedure
a
to
with
universal
and
e.g.,
(see,
respect
early
phenomenon
Norwegian
356)
is, perhaps,
can be found in R. R. Marett's
Anthro
SZG 24 [1903] 55; ethnological
examples
law, Boden,
and
London
New
York
without
of
Modern
37;
year]
University
Knowledge
[Home
pology
we have
also
seen,
no difference whether
the Homeric
(as in Babylonia,
'city*, and medieval
a
on
was
execution
which
the
of
the
progress
self-help
decision,
depended,
France)
judicial
or
to the victim
of his attack,
the protection
the creditor
forced upon
through
granted
or
XII
law
Roman
of
the
the
claimant
under
law
the
in
later
Greek
whether
Tables)
(as
to
of bringing his adversary
take pre-judicial
steps of self-help only for the purpose
might
can a fundamental
laws made
difference
be found in the fact that Germanic
Nor
court.
193f.).
It makes
on the further requirement

to be
of the defendant's
outlawry
dependent
had
failed
to
virtue
the
if
he
due
of
the
the
pay
by
Ding
penalty
judgment.
by
pronounced
In the Germanic
( .7) 234fL, judicial
Entwicklungsproblem
sphere, too, as shown by Beyerle,
to suppress
fines grew out of the public
desire
for private
feuds, while
private
litigation
the
execution
was
outlawry
same principle
the
reaction
governed
two systems differed
The
as a means
ure primarily
of the
the Greek
to crimes
committed
community
see H. Swoboda,
law of outlawry;
only in so far as the Germanic

to settle the feud (Beyerle,
law considered
The
itself.
against
SZR
26 (1905)
175.
the judicial
proced
in the Greek
and
op. cit. 234), while
to bring the right to the feud under public
control.
This
itwas a means
Roman
conception
to fulfil the duty undertaken
in the peace
law to treat the failure
the Germanic
caused
was
after the judgment
had
to be concluded
in the primitive
period
agreement?which
a breach
exclusion
from the peace
of
of the public peace, with the malfeasor's
as its sanction.
did
Greek
and Roman
the community
law, from their point of departure,
to Greek
Neither
law nor with reference
to go to such lengths.
with reference
not have
rendered?as
can Gernet's
on p.
notion,
expressed
law, however,
un
de
that
the
trait?
formul?
is
'un
says
par
paix
judgment
accepted.
aux r?gles d'une
The
is rather, so to
ment
(italics mine).
joute'
judgment
See also below, note 207.
ment
of the right to go to war.
77 See
Amer. Philol.
Assoc.
Transact.
72 (1941) 426ff.
Wolff,
778Cf. with
de Droit
Etudes
to early Roman
regard
law, F. De Visscher,
to any
other
historical
He
Annali
Giuridica
della Facolt?
1931) 266f., also E. Carrelli,
See also below, note 86.
N.S.2
(1939) 118.
78
listed there in note
op. cit. 427, with more authors
Wolff,
della
R.
cit., be
conform?
118 op.
tiers
speak,
a state
Romain
(Paris
di Bari,
Universit?
31.
THE
ORIGIN
OF
JUDICIAL
LITIGATION
AMONG
THE
GREEKS
51
legal institutions. The sources of the classical law do speak of the judgment
sentencing the defendant to pay a certain sum, and of its enforcement, inmuch
the same fashion as we do nowadays.
This, however, must not deceive us.
The modern student ofGreek law, faced with the task of discovering the histori
cal roots of, and the ideas at work behind, those institutions, cannot content
himself with merely taking these utterances at their face value.
There is, as a matter of fact, evidence to support this statement. Athenian
the
law offered an action?the
?5 (action based on ejectment)?for
as
was
of
such
justifiable self-help, primarily
employed for
self-help
protection
a
of
As
for
the
law
is
the
execution
there
attractive
of Gortyn,
the
judgment.79
suggestion that the sentence of the judge should not be understood to be a request
issued to the defendant to fulfill the plaintiff's demand or surrender the object
held without right, but a statement that the plaintiff possessed the right claimed
and might enforce it by way of self-help.80 In a similar way the sentence of the
Athenian Areopagus has been characterized as a mere statement of the crime,
now had its way.81
that blood-vengeance
originally involving the consequence
as
the second century B.C., the court of the chrematistae in the Ptolemaic
As late
monarchy, in actions involving personal claims, gave its judgments the form of
a pronouncement that an execution for a certain amount ofmoney should take
place.82
even seem to be in a position to point to a direct survival of the ancient

This is revealed by Demos
conception in the legal system of classical Athens.
thenes' oration 55, ifmy interpretation of this speech83 is correct. The speech
was delivered in defense against an action based on the charge that an inundation
detrimental to the plaintiff's estate had been caused by a wall unlawfully main
We
tained on the defendant's land; the wall had obstructed the normal flow of rain
The striking fact that the sum of 1000 drachmas, which represents the
water.
kaladike to be expected in this action, was unalterably fixed by law and inde
pendent of the actual amount of the damage sustained (dike atimetos), in con
nection with a statement made by the speaker in sect. 32,84 warrants the con
clusion that the action was to lead to a sentence which simply authorized the
plaintiff to seize the premises on which the obstacle had been erected, unless he
was paid offwith the legally fixed ransom of 1000 drachmas. We are obviously
faced with a very archaic rule which preserved the primitive stage inwhich the
judicial decision merely concerned the right to act upon an existing liability.
The fact that in the present case only the property, and not the owner, was
no difference as to the principle.
liable makes
w
Rabel, SZR 36 (1915) 340ff.
80Steinwenter
45.
81R.
im griechischen
Die Willenslehre
Recht
(Berlin
1926) 42, 51.
Maschke,
82
op. cit.m?.
Wolff,
83Amer.
64 (1943) 316-324.
Journ.
of Philol.
84 'And
an
seek
who will adjudicate
to them,
also
arbitrator
the premises
they
as will let them have the premises.'
See Wolff, Am. Journ. of Philol.
settlements
as
to why
mediately
this
statement
concern
admits
the lawsuit
of the
in which
inference
the speech
drawn
was
above,
delivered.
although
it does
and
such
cit. 318f
not
im
52
TRADITIO
the same token, Greek courts rendering judgment in controversies con

cerning titles to property or other absolute rights merely stated to whom of the
It has been suggested that the
parties the title or right in dispute belonged.
Greek procedure, like the Roman formulary procedure, was characterized by an
obligatory pecuniary condemnation.85 A pecuniary judgment in the Roman
sense, however, although in perfect agreement with the Greek idea of the personal
By
action,86 would have been incompatible with the nature of the diadikasia, the
The
procedure by which controversies over titles and rights were dealt with.
character of the diadikasia as a procedure in which there was neither plaintiff
nor defendant in the proper sense, but each of two or more claimants strove to
prove that his title or right was better than those of his competitors,87 hardly ad
mitted of any other judgment than a mere statement about the right.88 The
winner who was not in possession of the object was thus authorized to make his
entry into the premises, or seize the object if it was a chattel, and to bring the
in case he met with unjustifiable opposition.89
'action based on ejectment'
was
the law ofAthens, but the principle, ifnot all the details, was
Such at least
common
to all Greek legal systems.90
doubtless
This is confirmed by the sources.91 Inscriptions recording cases of arbitration
between Greek cities, chiefly in land controversies, show that the sentence of the
judges was drafted as a mere statement of the title and boundaries, but never as
an order to the losing city to turii over the territory to the winner or to pay an
amount ofmoney in case this was not done.92
Any possible doubt that these testimonies for international arbitration can
be used as evidence
85
Partsch,
Aus
SZR 43 (1922) 578.
for the form of decisions handed
nachgelassenen
und
kleineren
verstreuten
courts in
down by public
Schriften
(Berlin
1931)
348;
86
correct theory, the summa condemna
to the prevailing
and, in my opinion,
According
of a person
in the 'price of absolution,
liable under
law also originated
tions of the Roman
of the
an obligation,
which
resulted
from non-performance
from enslavement,
originally
144 n. 19, where
the literature
is listed.
Institutes
See Wenger,
obligation.'
87L.
des r?mischen
und Volksrecht
in den ?stlichen Provinzen
Reichsrecht
Mitteis,
Kaiser
See also Gernet,

reichs (Leipzig
op. cit. 127-129.
1891) 501f.
88See
. 1.
.
36 (1915) 342 n. 2; Gernet,
SZR
op. cit. 129
2; cf. also 132
Rabel,
89The
a
as
of
lawful self
'?
the
action
for
the
delictual
function of
77
protection
see also his paper,
38
SZR
in
article
Rabel
his
been
demonstrated
has
by
just
quoted;
help
(1917) 296-317,where he dealt with objections raised by Lipsius, SZR 37 (1916) 1-14. See
furtherPaoli, Studi Albertoni II 314 n.4, 330f.; K?ser, SZR 64 (1944) 191ff.
90The
private
fact that more
seizure
principle.
91
Exception
on the ground
cities
Greek
92 See SIG
by an
advanced
official
monarchy,
systems, such as that of the Ptolemaic
no difference
makes
into the premises,
induction
493 n. 142,
Griech. Privatr.
taken by Weiss,
theory was already
between
with
found in treaties
it is incompatible
certain provisions
for their respective
citizens.
legal protection
regarding mutual
III 1, 3025, Ree. des lnscr. Jur. Gr. nr. 16 p. 342ff.) lines
(3rd ed.) I 471 (SGDI
to Partsch's
that
a
a
a
a
a
a [
a
a
ew' a
]
?
a
a
e
III 1, 3758), line 157: [ a]
(SGDI
. Of the same type is a
a e
e e
rendered by the Argives
judgment
over title to some ships, SGDI
See
III 1, 3277.
tween Melos
and Cimolus
6f. : a
SIG
95,
replaced
as to the
II 599
be
in a dispute
note
also below,
i.f.
THE
ORIGIN
OF
JUDICIAL
LITIGATION
AMONG
THE
GREEKS
53
private law cases is dispelled, not so much by the fact that the procedure em
ployed in international arbitration generally followed the pattern of the private
diadikasia9* as by the direct evidence of several papyri of the Ptolemaic epoch.94
In the dispute over an inheritance which took place in the second century B.C.
in the Thebais the strategosmerely decided : 'He ordered that
at Diospolis Magna
the premises inherited from her mother in accordance
should
hold
Sesenoupis
with the deeds in her possession'
(P.Sammelt. I 4512, lines 83ff.). Very similar
are the tenors of two sentences rendered in 119 and 116 B.C. in the long and bit
ter struggle waged by Hermias against a group of Egyptian priests over a house
which he claimed to have inherited from his father.95 In P.Amh. II30 (Wilcken,
. . that from this evidence it
Chrest. 9),96 a judgment of 169 B.C., we read:
has become clear to us that the house belonged toMarres, the father of Tesenou
phis. We have directed Thembos to leave the house, and she, asking for days
[i.e., a period of grace], declared that she would leave the house within ten days'
(lines 37ff.).
It is true that in most,
and perhaps
all,97 of these cases
the decisions were
93J.
Die
im r?mischen Provinzialprozesse
(Breslau
Partsch,
Schriftformel
earlier
literature.
quotes
94Cf. R.
SZR
55 (1935) 282fMention
also
may be made
Taubenschlag,
1905)
4, who
of the fourth
century inscription of the Clytides of Chios (last edited by K. Latte, SZR 53 [1933]509)
which
see W.
a
is an
of a transfer of landed property

in the form of a judicial
procedure;
ibid. 510-13.
The acquirer
line 10: [ a kirontva t9?l jtjl
comment,
claims,
KartbUauev.
follows:
a, and in line 24 the adjudication
II 161) lines 68f.; P. Tor I (Mitteis,
15 (UPZ
Iff.
It is true
Chrest. 31) col. X
seems to have sought administrative
aid in the recovery of his lost possession
instance
Kunkel's
a kuriv
95P. Par
that Hermias
zur Geschichte
than a judicial
of his title; see E. Sch?nbauer,
establishment
Beitr?ge
des Liegenschaftsrechts
im Altertum
Urk. der Ptolem?er
(Graz 1924) 33ff.; also U. Wilcken,
zeit II p. 45f. Nevertheless
the case is at least very closely
related
to a controversy
over
never arrived
at such a clear distinction
law apparently
the title.
Greek
title
between
rather
as did the Roman

law.
suit for property merely
the ques
concerned
Every
possession
tion who of the parties had the better claim to hold it (see Rabel,
SZR 36.341f. ; also Tauben
II 313f.) and it did not make much
Studi Albertoni
difference
op. cit. 279; Paoli,
schlag,
on a true title or, as in the case of Hermias
this claim was based
whether
(see Sch?nbauer,
and
on royal ordinances
the enjoyment
of a possession
assuring
undisturbedly
In the almost
II 170, presently
UPZ
contemporaneous
length of time.
in the text, the action also resulted
from a forcible ejectment,
but the plaintiff,
op. cit. 34), merely

held for a certain
to be cited
Apollonius,
was perhaps
approached
servation
statement
reason
that the title belonged
The
to him.
clearly
sought a judicial
that he filed his suit with the ordinary
court of the chrematistae,
while Hermias
I suggest
to explain
officials.
this difference
only administrative
by the ob
to be able to prove his title (UPZ
II 170B, line 40 in
that Apollonius
expected
with
connection
pointed
This
sentence,
lines
16ff.) ;Hermias
was
in a
less
favorable
position,
as Sch?nbauer
has
out.
character
also
over titles, in connection

with the form of the
controversy
for the fact (pointed
out by Partsch,
to offer an explanation
Schrift
an arbitration
when
to arrange
that the Roman
called
upon
Senate,
of the Greek
seems
formel
16ff., 25, 45)
between Greek cities
quarreling
see SIG II 679, 683, 685.
over
land, used
the formula
of the interdictum
uti possidetis;
96
. 2.
.
As to this document,
cf. Taubenschlag,
op. cit. 280
1, 282
97There
P.
Amh
II
The
30.
and Wenger
is no agreement
editors
(Arch. f.
regarding
. 1) held
a judgment
2.44
that the text records
of the chrematistae;
this is still
Papyr.
54
TRADITIO
down by officials who may have acted by virtue of their administrative

of
coercion rather than in the capacity of real judges.98 Nevertheless,
the
power
value of these documents for our argument is not impaired by this circumstance,
II 170 we possess a testimony for the fact that even the ordinary
since in UPZ
handed
court of the chrematistae drew up its sentences in the same fashion. This
in 127 B.C.
(preserved in two copies,
complaint, written in Diospolis Magna
P.Tor 3 and P.Par
of
interest.
is
seeks a judicial
14)
particular
Apollonius
decision with the claim that he has been ejected by the defendants from a house
which he had inherited from his ancestors. Accordingly he asks the king and
queen to send his complaint to the chrematistae of Syene 'in order that they, in
case my allegations prove true, render judgment that the described seven ells
of the house belong to me, as they do, and that, on account of the wrong, an
execution should take place forme against them [viz. the defendants] for five
Greek
talents of copper, in accordance with the royal ordinance [concerning matters

I have shown elsewhere99 that the second half
of procedure and enforcement].'
of this request anticipates the wording of the judgment sought by the plaintiff.
We are entitled by this fact, as well as by the sources quoted heretofore, to assume
In view of the general conservatism of the court
the same also for the first half.
of the chrematistae,100we may hold that the document reflects the traditional
In showing side by side the
style of the Greek judgment in property cases.
on trespass101 and the mere
action
based
in
the
personal
praxes-judgment sought
statement of the right sought in the real action, with which the action for trespass
is combined, this enteuxis is highly characteristic.
The consonance of all these sources, distant from each other in place and time,
confirms the conclusion drawn above from the diadikasia and warrants the state
Let it
ment that the principle was acknowledged throughout the Greek world.
im Rechte
der gr?ko-?gyp
Das Prozesszeugnis
maintained
by W. Hellebrand,
tentatively
zur Papyrusforschung
und antiken Rechtsgeschichte
tischen Papyri
18;
(M?nchner
Beitr?ge
4.30
R. Taubenschlag,
Arch. f. Papyr.
decree:
Munich
1934) 18. For an administrative
zur Kenntnis
1; F. Zucker,
Beitr?ge
r?mischen
(Philologus
Aegypten
Suppl.
I am
II p. 46 n. 1 In view of the plural,
n.
of some
judgment
coercion
rather
Gerichtsorganisation
und
im ptolem?ischen
d. Ptol.
Urk.
than with
a mere
administrative
decree.
to do with
the
Administrative
was
by individual
officials, not by
usually
kingdom
applied
in issuing
the officiai might have with him did not participate
which
The Law
I 4512, line 83.?Generally,
cf. Taubenschlag,
by P. Sammelb
in the Ptolemaic
The
boards.
court
der
1911) 104f.; Wilcken,

12; Munich
inclined to the opinion
that we have
concilium
as shown
the decree,
ofGreco-Roman Egypt in theLight of thePapyri (New York 1944) 188n. 1, also his article,
SZR 55 (1935) 278ff.
98This
premises;
of specific
maic
may
explain
see Wilcken,
the
in the sentence
the frequent
of an order to vacate
inclusion
be in line with the order
9. This would
See also P. Ent.
op. cit.
issued by Ptole
of decrees
that seems to have been a characteristic
performance
administrative
officials
Assoc.
72 (1941) 432 n. 46.
99
op. cit. 424.
100
op. cit. 427.
Wolff,
101The five talents must
arate
action
be
in cases
concerning
the penalty
debts;
see Wolff,
for the trespass,
Transact.
since Apollonius
Amer.
reserves
for hybris.
Philol.
a sep
THE
ORIGIN
OF
JUDICIAL
AMONG
LITIGATION
THE
GREEKS
55
It is true that the

be noted especially that the Law of Gortyn is no exception.
first tablet of the Great Insciiption provides for a system of penalties inmoney,
to be inflicted by the judge on him who is found to have unjustly claimed as his
slave a freeman or the slave of another and fails to release the freeman or to
turn over the slave to his master within five days.
Some authorities, however,
who saw in these provisions an analogy to the pecuniary judgment of the Roman
formulary actio in rem,with the same expropriatory effect as far as the opponent
of the actual holder is concerned,102 were mistaken.
The first pronouncement
of the judge, which determines the status of the object of the lawsuit, is not, like
the arbitrium de restituendo of the Roman actio arbitraria, a mere unenforceable
advice, issued to the unlawful possessor, to restore the lawful situation in order
to avoid being sentenced to pay the penalty,103 but a true judgment104 which
entitles the owner of the slave to seize him. Evidence of this is the final sentence
of the section (156-112) which provides for the right of ayetv,103

and this provision
is all the more characteristic as it is in pointed contrast with the prohibition of
self-help before judgment, as laid down in the opening sentences of the inscrip
tion.106 This prohibition has with much probability been considered an innova
tion introduced when the statute embodied in the inscription was enacted.107
Far from disproving our theory that the Greek judicial decision in matters of
property merely stated the right and thus paved the way for its realization by
the use of private force, the inscription not only testifies to the existence of the
principle in the law ofGortyn but also to its being rooted in archaic conceptions.
Originally, then, every litigation had to be initiated with an act of private
force on the part of him who claimed a liability or a piece of property, and the
form in which even in a comparatively advanced period Greek courts drew up
their judgments mirrors the archaic conception that the sentence of the judge
was a statement, set forth by an organ of the community, that such act had been
102F.
B?cheler
and E. Zitelmann,
Das Recht von Gortyn (Rhein. Mus.
40, Suppl.;
f. Philol.
26 (1905) 204 n. 3; J. K?hler
SZR
and E. Ziebarth,
Das
1885) 92; H.
Swoboda,
von Gortyn
zum gemeingriechischen
und seine Beziehungen
Stadtrecht
Rechte
(G?ttingen
Griech. Privatr.
493 n. 142.
1912) 85; Weiss,
103See
Institutes
147ff.
Wenger,
104The
? (I 20) and up?vtv (I 23).
a
terms used are
1051 56 is read
and Zitelmann,
recent
op. cit. 19: [t?]p ? vevucap?vo, by more
by B?cheler
editors
Ree. deslnscr.
Jur.Gr.I
and Zie
p. 358; Kohler
(Dareste,
Haussoullier,
Reinach,
e a e [ ]. Even
barth p. 19) : [ ]
if the latter reading
is correct, I do not think that
Frankfurt
the
a &
is the defeated
In the legal
opponent.
terminology
can be the thing adjudicated

tions the object of vlkSLv
Ziebarth
p.
by er siegen;
too.
Proof
36 translate
it, following R.
of Gortyn I 28) ; in
a a ?
is the parallelism
with
see also
Law
.E.
(in SGDI
of the Gortynian
inscrip
III 2, 4986,Kohler and
.
Rhein. Mus.
63.570
Meister,
f. Philol.
4,
this sense the term should be understood
here,
?
a slave pledged
which
denotes
for a debt
III
second
code of Gortyn,
I 18 p. 393ff., and the
Ree.
(see SGDI
2, 4998, the so-called
as no. 3 by Kohler
and Ziebarth,
edited
op. cit. 34).
inscription
Dareste,
Haussoullier,
e
and Reinach,
sa personne,
'un individu
the a a
op. cit. 450, consider
qui a engag?
comme
d'une
dette.'
garantie
106
Cf. Rabel, SZR 36 (1915) 380; also K?ser, SZR 64 (1944) 205 n. 217.
107
Dareste,
Haussoullier,
Reinach,
op.
cit. 443.
56
TRADITIO
justly undertaken and might be carried through. The idea that the judicial
decision is to establish the plaintiff's right to get something from the defendant,
on behalf of which right he may take authorized steps of enforcement, did not
It is precisely for this reason that it became

yet exist in the most ancient period.
to
for
contrahents
in
their private agreements with the necessity
possible
dispense
a a ? ?
of a judgment, by inserting clauses providing for a praxis
,or the
like.108 Normally a judicial decision was required to remove the barrier erected
by the state for the protection of those who were threatened with force by other
private citizens, except in a limited number of situations where no such protection
was deemed necessary.109 Lipsius'110 assertion that an Athenian creditor might
a a (attachment) without having secured a judgment or being
execute the ? ?
backed by an agreement allowing summary execution has been convincingly
refuted by Rabel.111
Thus our findings are linked with the interpretation suggested for Homer's
trial scene.
In the historical period the primitive stage as represented by this
scene had of course long passed away.
The use of self-help for the institution
of a lawsuit had been restricted or forbidden; at Athens execution on the person
of the debtor had been abolished by Solon, as far as private obligations were
concerned; the mere permission to proceed with the execution had been replaced
by the fixing of an amount ofmoney through the payment of which the debtor
It is not
might avert the execution, which was itself limited by this amount.
our task here to follow the details of this evolution, which took different shapes
and progressed with varying rapidity in different places.

It paved the way for
a new conception of the judicial litigation, but the lines which connect the
procedure of the classical and Hellenistic periods with the early stage are still
clearly visible.
3. The Homeric
Camp
In his narrative of the events that took place at Patroclus' funeral, Homer in
the twenty-third book of the Iliad relates the settlement of disputes which arose
between some of the heroes.
One of these scenes is of interest to us, as its
on
with
the
trial
the
shield will enable us to form an even clearer
comparison
idea of the place which the latter may claim in the history of judicial litigation.
After the termination of the dramatic chariot race Achilles awards the first
the winner.
The second prize, however, a mare, he decides,
prize to Diomedes,
by pity, to give to his friend, Eumelus, although Eumelus had turned

in last of all competitors (verses 536-38).
At once Antilochus, Nestor's
son,
who actually is the second winner, rises in angry protest and claims the horse
for himself. He takes possession of it and challenges anyone who may disagree
to a fight; verses 553f.:
motivated
108
u. Volksr.
Reichsr.
416 n. 3; Wolff,
Mitteis,
Mitteis'
statement
had escaped me).
(where
109
op. cit. 374ff.
Rabel,
Transact.
Amer.
Philol.
Ass.
72 (1941)
110
SZR 37 (1916) 3f.
111
SZR
38 (1917)
298;
cf. Weiss,
Griech.
Privatr.
461.
428
the
of
origin
judicial
'
a
But
the mare
(transi.
Lang,
I will
Leaf,
litigation
?
?yto
os
not yield;
and Myers,
? ?
for her
The
'
greeks
57
? ,
a
?
let what
Iliad
the
among
man
ofHomerus
a
will
the battle
essay
[London
.
at my
hands
1903] 466).
Achilles, acknowledging the justice of Antilochus'

claim, changes his award,
But now
and Eumelus,
recompensed with other gifts, accepts this decision.
Menelaus
jumps to his feet and lays claim to the mare, accusing Antilochus of
having wrested victory from him only through the use of a foul trick. He does
not accept Antilochus' challenge, but calls on the leaders of the Argives to state
the right ( a
)112and then, changing his mind, announces his intention to do
a ? himself by tendering an oath to Antilochus
the
(570-85).
Antilochus,
Thus the
admitting his fault, gives in and turns the mare over to Menelaus.
even magnanimously
returns the horse
incident ends in reconciliation; Menelaus
to Antilochus.
From the standpoint of the history of procedure, it is important to note that
the controversy remains throughout within the limits of self-help. Antilochus
seizes the prize by an act of self-help and at first envisages no other reason why
he should let it go than his defeat in battle.

It is true that his dispute with
is actually settled without a fight. But no doubt a fight would have
Menelaus
resulted, ifAntilochus had refused both to take the oath and to turn the mare
over toMenelaus.113
There is no trace of what we recognized as the most char
acteristic feature of the shield-scene, that is to say, the existence of an authority
superior to the parties, that would interfere and prevent the outbreak of an open
feud by forcing them to submit the case to the decision of an impartial man or
asks
group of men or to other peaceful ways of settlement. When Menelaus
the leaders of the Argives to decide, he does not do so because he considers them
as a superior body vested with the power of judging controversies that might
This ismost clearly shown by the fact that he at once re
arise in their midst.
a ? himself. The crowd, on
verses his attitude and undertakes to do the
its part, is quite inactive; nobody, not even Agamemnon,
tries to step in and
take the matter out of the hands of the contestants.

authority
Agamemnon's
over the men obviously is strictly confined to the military command.
The scene
depicted on the shield is a process of law, the events narrated in the twenty-third
book of the Iliad are not.
II. The
Judicial
Magistrate
in the Pre-Solonian
1. Hesiod's'Bribe-Devouring
Period
Kings'
Aristotle, Politics 3.9.7; 10.1, p. 1285b, lists the judgeship as one of the three
functions which he attributes to the king of the heroic period, the two others
If his statement
being leadership inwar and certain tasks in the field of religion.
112For the
sub II 3.
of this term, see below,
legal implication
113It is
to persecute
to this scene when
the Erinyes
continue
Orestes
analogous
quite
Eumen.
to him (see Aeschyl.
after he has refused to take the oath which
432).
they tendered
is part of the self-help procedure.
too, the oath
There,
58
TRADITIO
were literally true, itwould indeed fit in badly with our previous findings. Not
only does it exclude the existence of such a procedure as we inferred from the
trial scene depicted on the shield of Achilles. What Aristotle has in mind, as
shown by his words, op cit. 3.9.7 : 'They were judges in law-suits' (ras ?kas
),
is actually not a decision on the right to proceed with an unlimited self-help
already begun and only interrupted by an official, but one on the merits of the
? ), with private force at most serving the purpose of enforcing the
case (
other words: a judgment of the same
adjudication made in the judgment?in
as
was
nature and effect
attached, at least in its outward appearance, to the one
known to the philosopher in his own day. The current opinion on the early
evolution of civil procedure would thereby be confirmed in the main: itmatters
little that Aristotle suggests an authoritative
jurisdiction of the kings rather
than mere arbitration. Aristotle did believe only in a gradual passing, in ac
cordance with the constitutional developments, of jurisdiction from the kings
to the magistrates, and later to the popular courts, but was not aware of any
changes in the basic conception and purpose of litigation. This is shown by

his statement on the judicial function of the archons in pre-Solonian Athens,
Constitut. of Ath. 3.5:114 'They also had power to give final judgment in lawsuits
a avToreke?s Kp?veiv),and not as now merely to hold a preliminary trial
(ras
(
poavcucpivew)
But Aristotle had no more first-hand knowledge of the beginnings of judicial

Besides, he was interested in the constitutional aspect,
litigation than we have.
not in the legal nature of whatever kind of jurisdiction in civil matters he sup
posed to have existed in the earlier period. We are, therefore, not bound to
accept his statements any more than we are obliged to believe in similar asser
tions by ancient authors regarding an original undivided jurisdiction exercised
the possession by the Homeric kings of
by the kings of Rome.115 Actually
114
Translation
115Cic. De re
their
by H.
pubi.
unreliability,
SZR
Sch?nbauer,
to the Study
Edition.
As to
1.2.2.1.
Dig.
4.25.2;
10.1.2; Pompon.
4.36.2;
SZR
46 (1926) 369ff. and authors
there; also E.
quoted
Introduction
op. cit. (see note 21) 60ff.; Historical
(1927) 284; Jolowicz,
Law
Festschrift Hanausek
(2nd ed. Cambridge
1939) 180 n. 4. Wenger,
Rackham,
5.2.3.; Dion.
see E. Levy,
47
Loeb
Hal.
of Roman
24f. on the other
8f.; Institutes
the bipartition
of the lawsuit
He considers
hand, does give some credit to these sources.
as an innovation
democratic
about
by the more
brought
that there was a
He
after the establishment
of the republic.
suggests
spirit prevailing
arbitra
'full jurisdiction'
of the king and a custom of seeking private
fusion of the original
mon
the Etruscan
two he believes
to have existed
The
side by side at least under
tion.
archy.
As
to Wengens
opinion,
see my
review
of his Institutes
Law
in Louisiana
Review
5 (1943) 367ff. R. Dull, SZR 56 (1936) Iff.finds the origin of the divided procedure in the
was granted
he believes
authoritative
which
pronouncements
against
right of provocatio,
of Solon's
of the magistrates
consti tu tion', following the example
procedural
by the 'Servian
as Dull
But there never was such an original parallelism
innovations
(Dull pp. 16, 23, 24).
assumes
in criminal procedure
and the provocatio mentioned
between
the provocatio
by some
sources
in connection
for the
latter
with
between
litigation
private
that the provocatio
never
shows
(p. 3) clearly
to the magistrate;
decisive
mento
in rem (Gai.
Inst.
4.16),
is the use
i.e., a formula
DiuTs
parties.
was addressed
own
list of instances
but
to the adversary,
of the legis actio sacra
in the ritual
of provoco
back
into the remote
going
past.
The
occur
THE
ORIGIN
OF
JUDICIAL
LITIGATION
AMONG
THE
GREEKS
59
judicial power has been seriously questioned by modern authors. Here we

need not consider this problem.116 Our task is to determine the character of the
administration of justice exercised by the chiefs in that sphere where its existence
is evidenced beyond doubt, that is to say, in the world of Hesiod.
The result
of this investigation may, on the one hand, be applied to whatever royal dispensa
tion of justice, exceeding mere arbitration, may have existed in the Homeric
On the other, itwill enable us to distinguish the procedure of the shield
period.
scene from the judicial activities of the kings. This will clear the way for a
in the early city-state.
determination of the function of the judicial magistrate
It will become apparent that only the procedure depicted on the shield contained
the elements which eventually developed
of the historical
into the civil procedure
epoch.
It has been observed that Hesiod's complaints over the harm done to the people
7
a
?a
&)
by the 'crooked decisions' of the 'bribe-devouring kings' (
one
or
no
fact: in the Boeotia of his day parties could not,
could
indicate
longer,
refuse to submit their cases to the noblemen wielding judicial power, or reject
a judgment rendered by them.118 A controversy exists, however, as to the
juridical import of this fact. Bonner's original view that it implies the existence
of a compulsory process of law met with the opposition of Latte119 and Stein
wenter,120 who are inclined to attribute the binding effect of the decisions to
the reverence for, or even fear of, the rulers, caused by their actual power,
rather than to a legally established jurisdiction of the princes in private matters.
recently121Bonner has tried to eliminate the disagreement by defining the
type of administration of justice testified to by Hesiod as an 'obligatory arbitra
tion', not based on a legal order but enforced through the pressure of public
opinion which would turn against theman who broke the peace of the community
by resorting to self-help instead of bringing his case before the court.
To appraise the situation it is necessary for us to realize the relative positions
of the judges and the judged. The clue to the question lies in the term themistes
More
rence
in civil procedure
from a condemnation
of absolvere
acquittance
residue
of
the
function
of
an original
as indicating
to be explained
Dull
the
(thus
22), but as a
by
magistrate
of controlled
the primitive
within
system
is not
formulas
pronounced
litigation
to
Rome
in a manner
civil procedure
evolved
very analogous
self-help.?At
apparently
here for Greece.
Cf. also Koschaker,
SZR 37 (1916) 356.
that which
is suggested
116Judicial
in der Ilias
und
Der Staat
of the Homeric
powers
king are denied by A. Fanta,
Mei.
Fournier
85.21.
Rev. histor. 84.30;
Westrup,
(Innsbruck
1882) 58; Br?hier,
Odyssee
774
judicial
. 46, also seems to doubt them. Arbitration by the king is suggested by Lipsius 5;
and Smith
29ff.; Bonner
view will be set forth.
117
and Days
Works
9, 263.
118
Philol.
7 (1912)
Class.
Bonner,
I 46f.
and Smith
Bonner
119
. 2.
Heil.
Recht 39
120
pp. 38ff.
Steinwenter
I 4.
In the following,
17; see also
Smith,
a similar,
Adm.
somewhat
of Just.fr.
Hes.
Bonner and Smith I 48; Class. Philol. 40 (1945) 11.
modified
to Sol.
9;
60
TRADITIO
In Hesiod's
which is several times used in this connection.
fragment 7 the kings
are called themistopoloi. In his description of the good king the same poet says,
Theogony 84-86:
a
o? ??
w?vres
es a
All
him
the folk watch
as he determines
judges we read, Works
Of the bad
a 0
the rules
and Days
'crooked'
pronouncements
Cf. also Horn. Iliad
'
they determine
<k ?e A
They
who
not
by force
caring
'straight'
pronouncements.
the rules.
16.387?.:
a*
ol ?trj elv ayopfj
Right,
through
221 :
e ??KTjs
Through
a5
in the assembly
place determine
of the gods.
for the watch
a$,
?heyovTes.122
the
'crooked'
rules,
who
drive
out
"
is urged by Hesiod, Works and Days 9: ??k-q
Ok?WTas (make the
rules straight through right).
It was, ac
The significance of the term has been elucidated by Ehrenberg.
an
to
order
for a
understood
issued
this
to
denote
author, originally
cording
or
a
case
with
the
of
ability
interpreting the
king, equipped
god
by
particular
divine will because the deity had bestowed on him the sceptre and themistes.m
In the aristocratic period the term, used only in the plural, assumed the broader
connotation of a set of rules governing the life and behavior of the nobility,124
but it retained its old sense when employed with reference to judgments handed
down by the noblemen in dispensing justice among their subjects.125
Ehrenberg's definition of the term places us in a position to determine the
legal character of the justice administered by those chiefs who drew such bitter
Zeus
criticism from Hesiod.

not merely on account
It emanated
of their deeds
from the authority which they possessed

or personal reputation but by virtue of
122
these verses an interpolation
caused
Rechtsidee
(see note 1) 70, considers
Ehrenberg,
Hesiodos
D.
while
and
Hes.
W.
argues
1928)
(Berlin
strongly
Erga
221,
Wilamowitz,
66,
by
is immaterial.
the question
For our purpose
for their authenticity.
123
an oriental
13 suggests
cit.
See
Iliad
9.98f.
6ff.
Ehrenberg
origin
op.
1.238f.; 2.240ff.;
of the royal power.
foundation
of this religious
124
op. cit. lOff.; 17.
125
op. cit. 18.
THE
ORIGIN
OF
JUDICIAL
LITIGATION
THE
AMONG
GREEKS
their position.
This becomes clear when we read such passages
from
Hesiod's
quoted
Theogony, or Homer's Iliad 1.237-239:
>126 vies
a
ev
Ai?s
Tp?s
And
now
control
or,most
the
sons
as the one just
a
a
eipvarai,
of the Achaeans
the actions,126a
'A
re
61
also
who
in their hands,
carry it (viz. the sceptre)
from Zeus,
the ruling powers
they who
keep
significant of all, Odyssey 11.568-571:

a
eV0'
?
?
?
'
as
?
elpovro
evpvTvk?s
a
a
a
.
"A??os
son?
saw?Zeus'
glorious
laying down the law
his bench
of justice.
asking
justice of their lord
I Minos
Amid
They
round
and
a,
, a
eara?res
golden
sceptre
the dead upon
Sitting
,Ai?s ?yXa?v vi?v,
sure
Then127
With
'
'
were
the house
standing?throughout
of Hades.
In dealing with the peasant folk under their sway the chiefs acted as rulers,
not as judges comparable to the judicial authorities of the city-state. A good
prince would of course seek to render decisions that satisfied the common sense
of justice, but always his decision was a command, and not either the award of
an arbitrator or the judgment of a man charged by the community with the
of commonly accepted legal principles.127* Their relation to their

that of a father to the members of his house, and it is quite con
sistent when the poet uses the same terminology in describing the life of the
Cyclopes, who lived each to himself, ruled their own families, and knew no law
governing their dealings with one another, Odyssey 1.114f.:
maintenance
subjects was
a
Each
rules
over
his wife
'a
and
children,
revei
? e/ca
'a
,
and
akkyovaiv.
they do not
care
for one
another.
But Bonner128
We thus accept the view expressed by Latte and Steinwenter.
had reason to reject Steinwenter's129 use of the term staatsrechtliches Imperium
and justly criticized him for insisting 'too rigidly upon the application ofmodern
It was a stateless society in which Hesiod
legal and constitutional standards.'
126viz.
the
sceptre.
See Wolff, Seminar 3 (1945) 97ff.
W.
127Translation
and
and D.
i27aCf.
8.
(Oxford
by L. Bigge-Wither
225ff. 260ff. ; Theog. 434.
Law
Ancient
ed.)
(4th Amer,
Maine,
128Bonner
I 48.
and Smith
129
op. cit. 41.
London
1869)
p.
197?Cf.
also
Hes.
62
TRADITIO
lived, made up of lords of the manor who ruled in the manner of patriarchs over
their peasants, but were themselves not united in a political community.130
We are here faced with a scene entirely different from both the Homeric camp
as reflected in the account of the games held at Patroclus' funeral and the 'city'131
In the former
envisaged by the poet in his description of the shield ofAchilles.
we find individuals, equal to one another, sovereign princes themselves, not
a purely military command, who settle their

disputes independently, always apt to resort to armed force. The latter is a
political organism which has already succeeded in establishing a certain degree
of internal peace and public control of self-help; but itsmembers are free, and
no patriarchal ruler forces his will upon them. The assumption of a steady
progress from unbridled self-help, mitigated only by voluntary arbitration and
other methods of settlement wholly within the power of the parties, through
a stage of semi-arbitration of the kings, to true judicial procedure (with the sev
eral stages represented by Homer, Hesiod, and the materials from Gortyn and
It fails to take into
classical Athens)132 oversimplifies the historical process.
account the fact that different types of social and political organization, which
may well have existed simultaneously,133 are discernible in the sources. The
origin of the historical form of legal procedure must be sought in what we may
call the Homeric
'city'. We shall see that the lines connecting the latter with
the classical city can be traced.
subject
to any authority beyond
2. Gortyn
statement (Constitut. of Ath. 3.5) concerning the power of the
Athenian
to issue judicial decisions on their own
magistrates
pre-Solonian
the
that
unlimited jurisdiction of the office-holders
impression
authority conveys
was a characteristic of the early aristocratic constitution; and such has of course
been the conclusion drawn from it in the literature.134 Our faith in this theory
is shattered, however, when we observe that a certain participation of private
citizens in the administration of justice, or at least the investiture ofmen other
than the governing magistrates with the power to render the final verdict, was
Aristotle's
130Cf.
Journ.
Ehrenberg,
131II. 18.490:
kv ??
Hellen.
Stud.
e n?Xeis.
57 (1937)
155.
I do
that this 'city' was

not, of course,
pretend
the trial scene is evidence
that it was a free commun
like the classical

But
polis.
some sort of political
no objection
Therefore
should be raised
ity enjoying
organization.
on the ground
that Hes. W. and D. 227 also uses the term
there the p?et
, although
the patriarchal
to which he was accustomed.
obviously
envisages
community
132See
49.
Steinwenter
133This
seems to deserve more attention
circumstance
by those who deal with the general
see G. M.
of the character
of Homeric
differ so widely;
society, on which opinions
problem
anything
own theory
Phil.
29 (1934) 193 n. 2. Calhoun's
Class.
Calhoun,
('Classes
Class. Phil.
that in the epic there is no evidence
Homer/
29.192-208,301-16)
of an aristocratic
class distinguished
by birth, is very interesting,
although
too sweeping;
but I am not competent
somewhat
to judge on the matter.
it is compatible
with
the above
position of the king.

134
For
example:
Smith,
Adm.
statements.
of Just.
Calhoun
fr. Hes.
himself
to Sol.
(p. 304) notes
22, 27; Bonner
and
and Masses
in
of the existence
to me
it seems
At
any
rate,
the pre-eminent
Smith
I 283.
THE
ORIGIN
OF
JUDICIAL
LITIGATION
AMONG
THE
GREEKS
63
not confined to democratic states. The Roman bipartition of the lawsuit into
the proceedings in iure and apud iudicem, the origin of which is shrouded in the
mists of pre-bistory, offers an example of a city-state that never was a democracy
in the Athenian sense. But we are in the fortunate position to point to Greek
instances as well.
An outstanding and characteristic specimen may be cited: the inscription re
cording a treaty concluded between 262 and 251 B.C. by Delphi and Pellana,
which in 1917 was edited by Haussoullier.135
Here the following procedure is
laid down for lawsuits between citizens of the two cities: The plaintiff brings his
claim before the governing authority (a
a) of the city where he files his suit,
and a decree acknowledging his claim is issued forthwith ifthe defendant formally
confesses his obligation before the magistrate or neglects to obey the summons.
In case the defendant chooses to plead, the magistrate,
in a second hearing,
selects by lot a committee of eleven or fifteen judges (according to the amount
involved) who are to try the case and to render the decision (frg. I A, lines
1-7).136 The similarity of this procedure with that ofRome has been duly noted
in
by Partsch.137 At both Delphi and Pellana democracy was only moderate
comparison with Athens,138 and there is good reason to assume that the provisions
of the treaty correspond to themunicipal law of each city.139
It is true that the inscription is of a comparatively late date, although the
procedural institutions employed in the treaty may be much older.140 Whatever

their age, it can hardly be doubted that the principle of separating the power to
give the verdict from the office of the ruling magistrate originated at a very early
stage of Greek legal history. The existence of popular courts in Charondas'
seems to follow from Aristotle's
Catana
(Politics 4.10.6, p. 1297a) mention of a
provision in his code for a fine to be inflicted on those who failed to perform their
duty of attendance.141 This smacks of democratic institutions the establishment

of which as early as the seventh century may be doubted.
But even allowing
for the possibility that a later innovation was wrongly attributed to the famous
lawgiver, full evidence of the archaic origin of the principle, as well as of the fact
that it has nothing to do with political democracy, is furnished by the one legal
system on which we are almost as fully informed as we are for classical Athens?
and which, moreover, represents a less advanced stage of legal development than
the latter:142 the law of Gortyn.
The view that in the Cretan city in some
matters the jurisdiction belonged to the governors (kosmoi), while in others the
135Trait?
entre Delphes
et Pellana
(Biblioth.
de
l'?c.
des Hautes
The text is also found in Partsch's review of Haussoullier's

For
see Haussoullier
the date of the inscription,
136
op. cit. 8, 55-59.
Haussoullier,
137
op. cit. 578; Aus nachgelassenen
Partsch,
1931) 348, 352.
138
Haussoullier,
139
Haussoullier,
140
Haussoullier,
141
Cf. Smith,
142
op.
Smith,
op.
cit.
op.
cit. 148f.
?t.
222;
Paris
1917).
book, SZR 43 (1922) 578ff.
170f.
und
kleineren
verstreuten
Schriften
150.
op. cit. 76.

op. cit. 29.
. 4.
cit. 32
(Berlin
64
TRADITIO
dikastai, supposedly officers appointed specifically for the administration of

justice, were charged with the decision, should be revised?in
spite of the fact
that it seems to be widely, if not commonly, held.143
The chief evidence for this theory has been found in the inscription SGDI
III
Lines 3f.
2,4982, an enactment regulating the status of the freedmen at Gortyn.
of the stone provide for the freedman's protection from enslavement, and in line
4 we find the ikvios
(kosmos in charge of affairs of aliens) concerned with
the matter.
Unfortunately the provision is not quite clear, because of a lacuna
forwhich the correct supplement is in doubt. None the less, and whatever we
think of the suggestions that have been made for the restitution of the
text,144the r?le assigned to the magistrate is not that of a deciding judge. He
is directed
Xayaiev, and whatever the meaning of this term may be,145 it
of administrative coercion. For the expression shows
implies only measures
that in any event the kosmos is expected to issue an order, not a judgment, and
nothing indicates that in this particular the statute was in conflict with the first
tablet of the Great Inscription which assigns the decision on the liberty of a
may
person to a dikastes.
All other instances where the kosmos appears in connection with matters falling
within the province of the administration of justice are in accord with this con
53-IX
clusion. This is especially true of Law of Gortyn VIII
1, where those
143
Dareste,
81;
Gortyn
Smith I 87.
144
D.
Recueil
Reinach,
Haussoullier,
op. cit. 25, 28; Steinwenter
Smith,
Comparetti,
cura della
per
pubbl.
Recueil,
read
p. 403,
I 429f.; Kohler
and
Ziebarth,
Stadtrecht
113; Bonner
G?tegedanke
43ff.; Dull,
von
and
e le altre iscrizioni
leggi di Gortyna
dei Lincei
Acc.
1893) p. 73
3; Milan
a
a
a a
lines 3f. as follows:
Le
arcaiche
ant.
Cretesi
(Mon.
.
148, and the editors of the
'
\ [ a ,a
a
,
]
: 'Nul ne pourra
les r?duire en servitude.
R.
in the Recueil
Xaya?ev, translated
de l'affranchi
le reprennent
par force, le cosme des
fait se produit et que les garants
ne le fera pas rendre.'
F. Blass,
III 2, p. 255, suggests
SGDI
this supplement
to
?trangers
e
e . ai
a a
\ [a
'die Scheidung
the lacuna:
zwischen
, and he comments:
]
haben:
weder
die Person
antasten
doch besagt
denn
noch das Geld;
e?{
e?) muss
a< a e =
e e^, zulassen.'
e
von Geld
Ich fasse
In my opinion,
ist Z.6 die Rede.
the
and French
text and interpretation
of the Italian
editors should be preferred.
They main
Si pareil
tain
the common
to stop.
of XayaUv, which
is to cease,
Blass'
that in
meaning
objection
as soon as the
the task assigned
to the kosmos remains
obscure
falls apart,
reading
to be a judge and his function understood
official is no longer considered
in such a fashion
as suggested
here.
The money mentioned
in line 6 is the price paid by the freedman
for
their
the warranters
his manumission;
(nrai) had to pay
of 100 staters
(line 5; here Comparetti's
penalty
e
Blass'
shall
kosmos
to a legal
is preferable
to
that the
3f., then, mean
to rescue the freedman
by force.
the double
amount,
a
supplement
rescue.
Lines
a a ), if they failed to come to his

not interfere with the warranters
who
seek
in addition
This is hardly in conflictwith the prohibition of self-helpas ruled by Law ofGortyn I If.,
which
obviously
Sachs.
Abhandl.
.a
his
'a
supposition
cit. 406f.) is not
is aimed
the person who claims another

as his slave.
only against
Lipsius,
der Wiss.,
a a
Phil.-Hist.
e
Kl. 27ii (1910) 399 n. 2, reads:
\ [a
as to the interpretation
and agrees with Blass
of the inscription.
But
]
that the nrai were a board of officials concerned
with financial matters
(op.
Ges.
The clause ai e [
convincing.
\'e] e (lines
an unwillingness
it is meant
to indicate
of the rtrai to comply
145
note.
See the preceding
4f.) is understandable
only if
with their duty of warranty.
THE
ORIGIN
OF
JUDICIAL
LITIGATION
AMONG
THE
GREEKS
65
entitled to the hand of an heiress already married to another in violation of the

law are directed to appeal to the board of kosmoi. The provision recalls the
epidikasii of the heiress under Athenian law,146which was also the concern of
the archon or polemarch (in the case of a metic family), unless a diadikasia arose
between several claimants, which had to be decided upon by the popular court.
The conclusion that at Gortyn the kosmoi decided in the latter case, too, would
14-17 seems to indicate a jurisdiction of the kosmos in charge of
be rash. XI
affairs of aliens in the matter of adoption, but the passage does not admit of the
inference that it was this official who rendered judgment when a controversy
arose. Nor does any other than an executive activity follow from the badly
mutilated
III 2, 4979.
Ibid. 4985 and I 50ff. of the Great
inscription SGDI
measures of enforcement.
show
the
kosmos
with
In the
concerned
Inscription
latter passage it is possible that only private affairs of the official are envisaged.
Finally, full proof is furnished by the treaty between Lato and Gortyn pre
IV 2 p. 1032f. This instrument provides formutual aid in the
served in SGDI
of
administration
justice, and it is laid down, apparently for all lawsuits, that the
to
choose a certain number of dikastai from among the citizens of
plaintiff has
the other city, while the kosmoi are charged with the execution of judgments.
Nothing is said, at least in the preserved parts of the covenant, about the way in
wrhich suits Avere to be initiated. But the fact that individual courts had to be
established in each particular case calls for the existence of an authority with
which suits could be filed and which supervised the selection of the judges. The
assumption that this authority was the kosmos is confirmed by the analogy of
numerous inscriptions which show that everywhere ths institution of lawsuits
and the execution of judgments were controlled by the same officer,who regularly
was the governing authority of the city.
The inscription SGDI
IV 2 p. 1032f. is of a comparatively late date, the third
Nevertheless
its usefulness for our purpose is not impaired, for a
century B.C.
comparison with the sources just quoted proves that the constitutional founda
tions of Gortyn, and with it the basic ideas on which the organization of the
judiciary rested, had undergone no decisive change since the time of the codifica
tion.147 I think we are entitled to sum up the results of this examination of the
Gortynian sources in the statement that the kosmos controlled the steps to be
taken by the parties in the course of the lawsuit. The decision, however, on
the right to take those steps was reserved to the dikastes. This means that in
the epoch of self-help the kosmos was the organ of the state that saw to it that
self-help was employed by the citizens in the proper way, and who prevented the
use of such private force as was not justifiable on the grounds of a judicial verdict
or a rule of law specifically permitting it. But he did not dispense justice.148
In view of the fact that the Gortynian code deals only with substantive law and
146Cf.
Recueil
p. 475 n. 1.
147The
fact that the courts
for by the treaty are to consist of several

judges,
provided
a
no argument
for the contrary.
, constitutes
speaks of ?
Das Recht von Gortyn 68)
statement
and Zitelmann,
(E?cheler
should
to the Roman
of the suit analogous
of a division
bipartition
while
the codification
always
148Therefore
Zitelmann's
that
there
is no
trace
be revised.
66
TRADITIO
presupposes as known the organization of the judiciary, the absence of any

express statement on the respective competences of the kosmoi and dikastai
need not cause surprise.
This deduction fits inwith our hypothesis on the function of the magistrate in
the Homeric
'city'. It also receives support from the apparent similarity of the
r?les played by the Gortynian kosmos and the Roman praetor. And perhaps the
law goes even further. It is
analogy between the Gortynian and the Reman
were
state-appointed officers like the kosmoi, but it
possible that the dikastai
should not be forgotten that there is no evidence for this. The inscriptions of
the earlier period only refer to the judges without defining their status, and the
To be sure, it does not
treaty between Lato and Gortyn makes us wonder.
prove the contrary, for the method of establishing courts laid down in this
covenant may have been caused by the adoption of the principle to have suits
decided by judges selected from among the citizens of another city. It does,
It is true that it is
III 2, 4994.
however, perhaps shed new light on SGDI
enactment
in
'he to whom they
to
the
refute
that
this
definitely
theory
impossible
turn' (
] ) is a private arbitrator, as he is commonly assumed to
[a
be.149 But I venture to raise the question whether he may be the dikastes, more
, a ? (to state the
so, since his activity is termed
right), while npivew (to decide),
if not ?iayLyv?aKeiv (to distinguish)?the
expression used for arbitration at
If the ques
Athens150?would
appear more appropriate for private arbitration.
tion could be answered in the affirmative, the inscription would indicate a method
The dikastes would

of administering justice very similar to that of Rome,
have his exact counterpart in the iudex in respect to both the manner inwhich
he was appointed and his place within the framework of the judiciary.151
The result of this study of the Gortynian sources is in no way surprising.
The basic principles on which the judicial organization was founded at Gortyn
actually were not fundamentally different from those followed in classical
Athens and many other cities, as known from literary and epigraphical sources.
As a rule at least, the Greek citymagistrate participated in the administration of
justice chiefly in the capacity of a policing officer, not as a judge. Very much
like the Roman praetor, he directed the course of the lawsuit by receiving actions,
arranging the court procedures, supervising or executing the praxis, and taking
care of, and issuing orders pertaining to, incidental matters which did not require
action by the court proper. His r?le is illustrated in an interesting fashion by
the so-called symbola of Stymphalos, IG V 2,357 (third century B.C.), lines 11-14.
Here it is provided that a witness who fails to make his deposition or to swear
before the authority (a
a) that
upon to testify, is automatically
amount involved in the action,
the power of decision in this case
he is ignorant of the facts to which he is called

? a
bound to pay (a
) to the plaintiff the
while the case itself is dismissed.
Obviously
resides with the magistrate, not the court, and
149
op.
Haussoullier,
Reinach,
Dareste,
43f.
op. cit. 30; Steinwenter
160The
term does not occur
in Cretan
161Cf.
Wenger,
Institutes
26,
cit. 400,
430;
Lipsius,
Abhandl.
cit. 405;
inscriptions.
138.
Smith,
THE
ORIGIN
OF
JUDICIAL
AMONG
LITIGATION
THE
GREEKS
67
his decision is an order emanating from his coercive function, not a judgment.
When we recall the original connection of ?troriveivwith the idea of ransom, it
becomes clear that in the last analysis this competence of the magistrate stems
from his ancient power to prohibit or permit steps of execution taken by self
help, although this doctrinal foundation of the provision probably was no longer
known to the authors of the symbola.102
3. Athens
The organization of the judiciary and the functions assigned to the magistrate
of course varied from city to city. Possibly in one place or another he may even
have exercised true judicial functions.153 Our present purpose requires no inquiry
into these details; the less so, since most of the epigraphical materials belong
to a relatively late period. What matters is the fact, evidenced by Gortyn,
that the division of the judiciary into a branch of supervision and coercion and
a branch of decision?the
former belonging to the political authority, the latter
turned over to persons other than the governing officers?was neither a compara
tively late development nor a democratic institution. This conclusion will have
in mind when we now endeavor to determine the function of the

judicial magistrate in the archaic period ofAthens.
The source materials, as well as general considerations, make it advisable to
in the civil
begin with an examination of the part played by the magistrate
to be borne
procedure of the classical period. With the aid of a few sources shedding light
on earlier conditions, and of some arguments drawn from comparative
legal
history and our previous findings, it will then be possible to reach conclusions
concerning the time before Solon.
In the fifth and fourth centuries officials, besides presiding over the popular
courts (dicasteries), participated

in the administration of civil justice in
These were the anakrisis,
ways, both of which will claim our attention.
the preliminary hearing held in preparation
of the proceedings before
a eiv or extrajudicial adjudication
of inheritances
dicastery,154 and the
two
i.e.,
the
and
heiresses.
Just what happened at the anakrisis in the classical period may now be con
Bonner and Smith,155 eliminating some miscon
sidered as more or less known.
current
in
the
earlier
literature,156have shown that it was a summary
ceptions
152See
the provisions
73ff. 94ff.
153in view
for execution
of the late date
by
of the treaty,
officials
such
and
could
the sympolity between Stiris and Medeon, SGDI
be
the prohibition
of self-help,
the m?aning
of the provision
II 1539 (after 181 B.C.),
lines
in
lines 28-34:
e
e6 e
a a
e a [ ]
Tas
a
a
, a [ ]\a
a$} ?s [ ] a
[ ]a e
.
a
a
e
e a \ a\
a
a, a a e
154It
a a conducted
e
in homicide
to the three
cases;
by the ?a
corresponds
I 290.
Bonner
and Smith
155
see also Bonner,
in Athenian
Evidence
Courts
1905) 48ff.
(Chicago
op. cit. I 283-293;
46 (1941)
Philol.
Amer. Philol.
Assoc.
66 (1935) 275f.; Class.
Transact.
and A. P. Dorjahn,
a
182-185.
156
See,
e.g.,
Lipsius,
Att.
Recht
829-844.
68
TRADITIO
hearing held by the magistrate who was to introduce the suit to the dicastery,
with the sole purpose of determining whether the action was admissible.
This
might involve pleading by the parties and production of evidence to a certain
The
extent, but not beyond what was needed for this immediate purpose.
objective of the anakrisis, which should be distinguished clearly from the arbi
tration proceedings (diaita) required by law in a number of actions before the
case could be tried by the court, was not the preparation of a decision, nor was it
meant to provide the parties with a knowledge of the tactical intentions of their
opponents or the evidence prepared by them or to fix them upon certain tactics.
in merely considering the anakrisis 'a survival of the pre-Solonian
However,
trial before a single judge who was empowered to render a final judgment/157
Bonner and Smith failed to uncover its historical roots. Their statement con
tains a grain of truth, but it lays the stress on an expression of the archaic magis
trate's function which became apparent under certain conditions only and could
as such hardly have evolved into the classical anakrisis.
Dorjahn's
attempt158
to explain the preservation of this supposed residue of a once greater power of the
official through its usefulness as a deterrent for sycophants is defeated by the
fact that legal obstacles to actions could easily be detected by reading the law,
while, on the other hand, the anakrisis was not, as he himself emphasizes, a pro
cedure devised to check the evidence or to bring into the open concealed defenses
at the disposal of the defendant.
In endeavoring to determine the origin and legal import of the anakrisis, its
striking resemblance to the Roman proceedings in iure should be noted,159 a
resemblance which has become even more conspicuous since the efforts ofBonner
and Smith clarified its external features.
The anakrisis, it is true, differed from the Roman institution as shaped in the
The presiding officer, possessing no discre
period of the formulary procedure.
tionary power and issuing only a decree on the admissibility (e a
dva?)
of the action but no decree authorizing the court to decide (which would be
comparable to the Roman iussus iudicandi), wielded no imp?rium. Nor do the
parties seem to have reached a mutual understanding comparable to the litis
contestatio. These divergences were due to the different constitutional and legal
foundations on which civil procedure rested in the two cities. At Athens all
claims had to be based on laws, the magistrate having no power to create new
actions on his own authority, and the trial was held before an assembly of citizens
selected by lot, instead of a fellow citizen jointly chosen by the parties.
Even
the obligatory diaita of the fourth century probably was an institution devised
to alleviate the burden of business resting on the popular courts,160 and
merely
157
op. cit. I 283, also p. 7.
108
Philol.
36 (1941) 185.
Class.
159In the earlier
I find
literature
Outlines
II
(1939) 409f.
145.
160
Steinwenter
introduction
Recently,
and
with
60ff.?Koschaker,
of the obligatory
diaita
in Vinogradoff's
hint at this parallel
only a vague
more
des ?t. gr. 52
somewhat
Rev.
detail,
Gernet,
SZR
should
47
(1927)
perhaps
511f.
be
suggests
sought
that
the
reason
in a widespread
for the
distrust
in
THE
ORIGIN
OF
JUDICIAL
AMONG
LITIGATION
THE
GREEKS
69
the diaitetes at least of the classical period had nothing in common with the
Roman iudex.
these differences must not be allowed to obscure the funda
Nevertheless,
mental identity of the anakrisis and the proceedings in iure. Their common
background was the control over the extrajudicial steps taken by the parties prior
to the suit, which originally was the chief function of the official. In the Roman
law it remained visible, though in a modified form, in the magistrate's power to
deny the action or to grant immediate execution in the form of a missio in bona
against a defendant who defaulted in iure or refused to accept a formula which
had found the approval of the praetor.161 In the case of default similar conse
the legalistic character of the
quences followed in the anakrisis.m
However,
Athenian law and the circumstance that the dicasteries were state courts capable
of rendering judgment in default even if the defendant had never declared his
willingness to accept the suit, left no room for the Roman freedom to accept or
reject trial. This resulted in reducing the preparatory stage of the lawsuit to
what was more or less a mere formality. But the purpose of the dike was, as
we have seen, to bring about a decision on the rightfulness of the steps of self
In view of this purpose, the
help undertaken or intended by the claimant.
original importance of the anakrisis is revealed by the very words of such phrases
as
elvai
, or the like.163 They leave no doubt that in
elaay?y^ov
principle the authority entrusted with the decision on this question was the
magistrate who had to introduce the lawsuit to the dicastery?although164
under the law of the fourth century he had inmost of the cases to content himself
with referring this decision also to the dicastery.165
courts.
the popular
Popular
a subject
worth
investigating
if an obligatory
but I doubt
reaction
(some
to the methods
facts were
is doubtless
justice
and Smith
II 298ff.),
to re
anyway
subject
of administering
by Bonner
gathered
was
moreover,
arbitration?which,
one of the parties
so wanted
the dicastery
whenever
it?could
have been
as to the court's
the proper
to dispel any misgivings
to dispense
true justice.
ability
Philol. Wochenschr.
Koschaker
also H. Hommel,
Ztschr.
Against
1928.363; St. G. Huwardas,
examination
by
means
see H. C. Harrell,
49 (1934) 334.
For another
Pub
f. vgl. Rechtswiss.
possible
explanation
lic Arbitration
in Athenian
Law
of Missoury
Studies
11, i ; 1936) 4.
(University
161Cf.
Law Rev. 5 (1943) 370.
Louisiana
The
reader will remember
that an in
Wolff,
to this feature of the Roman
law of procedure
is furnished by the
teresting Greek
parallel
and Pellana;
cf. Partsch,
348.
treaty between
Delphi
Schriften
'
162
.
I 2050 s.v.
PWK
Thalheim,
163See U. E.
Studi
sul processo
attico (Studi di Diritto
ed. P. Cala
Paoli,
Processuale,
1933) 83.
2; Padua
mandrei,
164See
. 2 and authors
II 75
there.
and Smith
Paoli
op. cit. 99, Bonner
Paoli,
quoted
seeks to demonstrate,
the opinion
of philological
pp. 104-116)
against
students,
(especially
a paragraphe
did not have
the effect of splitting
trials
up the suit into two separate
and the other with
before different panels
of judges, one dealing with the exception,
the merits
of the case, but was voted upon
by the court that tried the latter.
incidentally
Some
This would
fit in well with the theory suggested
here with respect to the anakrisis.
that
held
Paoli's
regarding
to be sure.
165Note
that the Roman
doubts
see Wenger,
1918)
31
Institutes
.
2, where
conclusions
were
raised
by Steinwenter,
SZR
54
(1934)
383-385,
exceptio, too, seems to have grown out of the denegatio

actionis;
136 n. 8, also E. Costa,
civile romano
storico del processo
(Rome
Profilo
the literature
is listed.
70
TRADITIO
evidence for all this is the scene in Aeschylus' Eumenides where

Documentary
before
Athena,
establishing the court, questions the Erinyes and Orestes about
their quarrel (400-491).
This is a lively picture of an anakrisis (or prodikasia),
into
the
projected back
mythical period when there were not yet any regular
courts or procedure.
Its close connection with self-help has been demonstrated
in the preceding section of this study.
It shows the respective powers of the
magistrate and the court. The former comes up while an act of self-help is taking
place, restores peace, and determines whether the case involves a possible right
to self-help. The power to decide whether such a right exists belongs to the
court, which is called upon after the parties have promised to abide by whatever
the magistrate may see fit to rule (438, 471L).
This is exactly what we inferred
from the scene on the shield.
Thus, in an epoch when a well-established
judicial system, by requiring written
plaints and peaceful summonses, had long succeeded in eliminating force as a

means of seeking the realization of rights, the anakrisis none the less still reflected
the function of the archaic official, who maintained
the peace of the community
by inhibiting arbitrary acts of self-help and arranging for a judicial control of
its use.
But this had been only one side of his task in the field of law and order. The
right to employ self-help might be beyond doubt, and then it was the duty of
the public authority to lend it its backing.
This too is reflected in an institution
of the classical legal system of Athens; and here the original function of the
magistrate is even more clearly visible, since it resulted in a lawful use of self
help by virtue of a mere provisional permission of the archon. This was the
, a ? , , an act through which the archon, upon request, allowed heirs who
were not descendents, and as such domestic successors, of the deceased166 to take
was also issued for him who
possession of the latter's estate; an 7r^ifc?fetz>-decree
a ? was an
claimed the hand of an heiress as her closest kinsman.
The '?
on
administrative act based
police power, not a judgment.167 The archon only
permitted the grantee to seize property belonging to the inheritance or to pro
claim the woman as his wife, but he did not establish the claimant's right.
Another claimant might still come forward.

In this case a diadikasia would
result which had to be instituted in legally prescribed forms and was decided
by the dicastery.168
A fine illustration of this nature and effect of the ?
a eiv and of its relation
166
Descendente
might
take
possession
of the inheritance
was manifest; see Rabel, SZR 36 (1915) 376.

167Therefore
Lipsius'
expression
: 'denen das Erbe gerichtlich
.
du droit orient. 1 (1937) 125
1, 127,
ination and judgment
by the court,
incorrect
by Isae.
3.43,
to which
he refers
forthwith,
because
their
right
to Demosth.
is
(p. 949 n. 29), used with respect
48.27,
war'
(italics mine).
zugesprochen
Gernet, Arch, d'hist.
a summary exam
a
involved
that the e
suggests
but
this conclusion
(this general
objection
called
is not, in my opinion,
forth
arises against Gernet's
remarks,
also
ibid. 2 [1938]287). Nor is there any foundation for the hypothesis, advanced by Lipsius
581, that
168For
the archon
the details
had
to issue
see L.
the exiSt/ca^cif-decree
of the court.
in the presence
du droit priv? de la R?publique
Histoire
Ath?nienne
Beauchet,
(Paris 1897) I 439ff.III 600ff.;Lipsius 577??.;Thalheim, PWK VI 58 s.v.E
*.
THE
ORIGIN
OF
JUDICIAL
LITIGATION
AMONG
THE
GREEKS
71
to court action is found inDemosthenes'

(48.25-27).
speech against Olympiodorus
Here the speaker narrates how his earlier suit for an inheritance had been cut
short because his then co-claimant and present opponent had been declared in
a et^-decree in favor
default by the court. Thereupon the archon issued an
of the other claimants who thus were enabled to carry offmost of the property.
Subsequently Olympiodorus filed a new action and won it in court (sect. 31).
The sharp distinction made by the speaker between the judgment of the court,
which definitely settled the question of the right, and the decree of the archon,
which merely for the time being removed the legal obstacles normally erected
against private seizure of property, is obvious.169
a eivdeveloped
We reach the conclusion that neither the anakrisis nor the
from an original judicial capacity of the Athenian magistrate, and this inference
is supported by what the inscriptions have taught us about the place occupied
by the magistrate within the framework of the administration of justice in other
Greek cities. From the standpoint of comparative legal history, the functions
The possibility that the
of the Roman praetor point in the same direction.
archon at one time also acted in a judge-like capacity is not excluded, to be sure.
The question towhat extent such was the case, and the nature of this jurisdiction
will be discussed later. For the moment it is sufficient to state that it has
hardly left any trace in the classical administration of justice in civil matters.170
As to this fact, we should not let ourselves be deceived by the expression,
e
a ? . A a ? was of course one of the terms employed to denote the
activity of the judge. But it can be demonstrated that this implication was not
necessary, perhaps not even intended when the term was used for the first time.
Here we are fortunate enough to possess an authentic source which provides
a basis for determining the import of the term in the legal language of the pre
law on unpremeditated homicide,
Solonian epoch. This is the chapter ofDraco's
in which year the statute was re
preserved in an inscription of 409-408 B.C.
a ? , in a strictly technical
enacted.171 The fact that this enactment employs
sense is evident from the pointed antithesis of the
a e of the 'kings' and the
vaL
of the ephetae.
?Layv
Recent editors and expounders, combining suggestions made by U. Koehler172

and H. Sauppe,173 restore the passage which is here pertinent (lines 11-13)
as follows:174
169In
line of thought as the

the title of a buyer of goods sold
the same
confirmed
was the a a
a^
by which
see Arist. Const,
in public
auction;
the archons
of Ath.
47.2.
Partsch, Festschriftf?r Otto Lenel zum f?nfzigj?hrigenDoctorjubil?um (Leipzig 1921) 103,

under
the laws of medieval
of this act to the Friedewirken
out the analogy
has pointed
cities.
German
170The
an immediate
in suits
to make
and of the Forty
power of the Eleven
adjudication
in it.
trifles
Ath.
Const,
may
(Arist.
52.3; 53.1)
originate
concerning
of
171
SIG (3rd ed.) I 111. More editions are listed, and a bibliography is given, by Bonner
and
Smith
Recherches
:Gernet,
I 111 n. 3, who also print the text on p. 112f. Add to their bibliography
en Gr?ce
sur le d?veloppement
et morale
de la pens?e juridique
(Paris
1917) 463f.
172
Hermes 2 (1867) 31.
173Index Scholarum
174
For a translation
p. 7.
1873-1874,
Gottingensium
see below,
note 181 and p. 73.
72
TRADITIO
a a [ ']
a, tfrevyev,]i
[ ]
[ a] [ ] [? t?s
a* a [ ]
a ? ? ros ?a
[ ] e [k?vTis a a a h?s ?
? a a, t?s [?]
a* a *>[ >a .-]
]\
leads
Unfortunately this supplement to line 12, despite its wide acceptance,
into insoluble difficulties of interpretation.175 The activity of the 'kings'?
that is to say, according to the most plausible hypothesis,176 the archon basileus
contrasted with that of the ephetae and is

assisted by the four phylobasileis?is
a ? . The verb cannot merely express that the 'kings' should preside
called
over the sessions of the court,177as this would be contrary to its linguistic mean
the passage
ing178and, besides, leave unexplained the rest of the line. Hence
has been understood to the effect that the 'kings' should determine the nature
of the crime and accordingly designate the court that was to try the case.179
Line 12, however, can hardly have this meaning, although, abstractly speaking,
is not unlikely.180 AiKafeu> a
such a competence of the magistrate
(to judge on the causes of the homicide) would be a very obscure phrase indeed,
not well suited to express the idea. Moreover,

and above all, the second half
? a a) would not occupy its proper place, since it should
of line 12 ( kav??
a in line II.181 Maschke's
follow immediately upon
suggestion182 of an inter
175The
linguistic
earlier
reasons
[?
supplement:
(Dittenberger,
Syll.
top ?ei ?aai]\ev

a a, which
is untenable
for
148 n. 8), need no longer be discussed.
Quite
Poine
(London
1923) 195, who suggests
by Treston,
? a a, and translates:
'And if a man
slays a man
I p.
is the interpretation
given
? a a instead of ?s ?
?
not with intent (to kill), let him be put on trial (<t>ehyeip), and let the "Kings"
judge of the
causes
a person
? accuses
of death,
of slaying without
deliberation
or, if anyone
?
(
a a), let the Ephetae
?
?
the
Treston
which
misunderstands
adjudicate.'
meaning
impossible
to read
as he also unjustly
a
in this passage,
a e and ?iay
denies any difference between
a a
s?
33 [1911] 35):
Ledl's
(Wien. Stud.
[kap tip'?orris?a
supplement
(p. 194).?A.
a a, rests on an obsolete
or t?p??
of ?ov\eveip.
The meaning
of this
]
interpretation
see below, note 185.
term has been elucidated
by Maschke;
176See
and Smith I 117 and the authors
Bonner
I cannot,
by them, p. 116 n. 6.
quoted
an
with
their
of
function
of the phylo
agree
p.
however,
117,
suggestion,
early
judicial
has
basileis.
177Such
is the opinion
of Lipsius
18 and Ledi,
op. cit. 35.
178R.
Die Willenslehre
im griechischen
Recht 47f.
Maschke,
179
22 (1886) 196, Ledi,
Hermes
and Smith I 116.
op. cit. 3, Bonner
Wilamowitz,
180The
sources
as to the principle
do not admit
of a definite
in
conclusion
employed
on the
the case before one court or another when plaintiff and defendant
bringing
disagreed
of the homicide.
qualification
. 1) rather
op. cit. 196
witz,
The
speak
in three
from a number of orations

(see Wilamo
power of the basileus who
discretionary
a a
Ledl's
8.117).
6.42; Pollux
(Antiph.
(op. cit.
that the qualification
offered by the defendant
prac
instances
known
in favor of a wide
the case
pre-examined
2ff.) and Lipsius'
(pp. 26, 132) view
the court is not convincing.
that
tically determined
Gernet, Pens?e
juridique
464, believes
the ephetae
had to make
this decision.
181In their
Tf anyone
or if anyone
translation:
kills a man without
is
premeditation
. . . Bonner
with plotting
he shall be exiled
and Smith
I 113 tacitly
charged
homicide,
,'
shift the clause
to where
it should be according
to their interpretation.
In a similar sense
612 n. 46.
Lipsius
182
op. cit. 48ff.
THE
ORIGIN
OF
JUDICIAL
AMONG
LITIGATION
THE
GREEKS
73
polation inserted in the original text offers no help. Although it is quite possible
that the competence of the ephetae to try unpremeditated homicide was newly
created by Draco,183 along with the distinction between premeditated homicide
*
*a
(
) and unpremeditated homicide (
presuppo
),Maschke's
sition that in the period preceding the innovation the 'kings' alone had possessed
jurisdiction in homicide cases is incompatible with the legal idea expressed by
a ? ,as will be shown below.
But even ifwe could accept Maschke's
theory
of the textual history of the enactment, the latter's usual restoration would gain
It would imply so poor a technique of drafting laws that it appears
nothing.
highly improbable, more especially, since the text of the law may be supposed
to have been revised before it was re-enacted and re-published in 409-408 B.C.
The trouble disappears ifwe read a [ [ >]instead of a [ ]
,as was already
] a ? ??
suggested by several authors.184 I propose the following restoration:
e
a
a
e
a
?
to
t?s ?aaiKkas a [ ] [ ]
be
translated:
a,
? ]\
[ ]
[
'The "kings" shall pronounce responsible for the homicide him who either slew
with his own hands or otherwise caused the death.'
(Line 35 of the inscription
The
be
restored
should
accordingly).
legal conception expressed by ?ovXeveiv
has been clarified by Maschke,185 who defined it as the causing of the death by
means
other than immediate harmful contact. With this the supplement just
suggested for the lacuna in line 12 is in harmony.186
a eiv\
It is true that there is no other text showing an exactly identical use of
a
a
was
in
sentenced
21.18:
obs
?Uas
aUxp?s
(that J
disgraceful suits)
Lys.
as is
a
is similar but not quite the same. But such an employment of
com
we
ourselves
who
the
those
which
found
assumed by
accept
supplement
pelled to reject is certainly quite unique.187 The one suggested here, on the con
183
a Draconian
of an even earlier law.
op. cit. 49, is inclined to assume
expansion
Maschke,
184 .
[ ],
cut[i]o[i>]
1902) 228 proposes:
(Strassburg
Keil,
Anonymus
Argentoratensis
'
612 n. 46 and Maschke,
KT?vei
?
]\e a a; this was justly criticized by Lipsius
[ea a
. 1, reads : cur[(,]o[*>]
. 3. Paoli,
op. cit. 132
[ ] [xepi kpyaaa?evov e ?
\\e a a.
op. cit. 47
is unacceptable
to the supplement
version
suggested
here, but Paoli's
as it omits the article.
render
does not correctly
reasons,
Paoli,
furthermore,
. . ;
'i re giudichino
il reo di omicidio
a e when he translates:
of
gli efeti
e e
su ci? il verdetto.'
De crimine ?
As early as 1886, W. Passow,
(G?t
is tantamount
This
for linguistic
the meaning
pronunzino
e a
a
a
?
( )'} as to this, see Keil,
]\e a
[ ] e [
[ ] [ ]
36; suggested:
tingen)
. 1. Gernet,
a reading
to Passow's.
similar
Pens?e
cit. 228
463, proposes
juridique
.
a
the accentuation
op. cit. 47, 50, also questions
Maschke,
185
48 (1928) 716.
SZR
See also W. Kunkel,
op. cit. 79, 83, 83ff.
186por the
e a a
tls
e
e
ea
e
ea
Laws
cf. Plato,
,?
p. 872A:
wording
.
e
e
e
e
a
when
e
e
a
:
that
cit.
conclusion
Ledl's
872
atrios,
?
?li.)
(op.
olXKos, p.
op.
used
technically,
ciently
supported
only one who

lines 26f. of our
denotes
by
caused
the death
inscription:
ea
of a person
t?[v a
e tls]
, is not
'e e
suffi
atrios
Tetr. 2 :
of Antiph.
closing words
supplement
e
is supposed
the son of the speaker
'e are no less technical,
although
killed another boy by throwing a spear which hit the vic
to have been charged with having
see
and can refer to any cause;
??tios simply means
5.64.
Cf. also Antiph.
tim.
responsible
368f.
Cf. Gernet, Pens?e
also lines 33-35 of our inscription.
juridique
187
. is no
e a kyKkrjparos
be
since it should
a
1.2.7:
parallel,
Cyrop.
Xenoph.
s.v.
a
a
*
as
understood
).
(Liddell-Scott,
(the
oh yap a
rests
on Demosth.
23.57).
The
74
TRADITIO
trary, can claim support from Solon's amnesty

elvai
Sol. 19.3,188provides:189 e
e
?a
law, which, as recorded by Plut.

e
e e
A e
a
.190
What, then, follows from this inscription with regard to the judicial function
a e of the 'kings'
of the magistrate
in the pre-Solonian period? Does the
their
full
which
indicate
would
have been limited
original
jurisdiction,
really
a
the
of
their
sentence
to
to be given by the
verdict
only by
subjection
previous
answer
can only be
of
established
court
the
To
the
my
newly
ephetae?191
mind,
in the negative.
The early history of the Areopagus and the various courts of the ephetae is a
mystery which will never be fully penetrated unless new sources provide us with
clues. The purpose of the present study does not, however, require a discussion
of all the hypotheses advanced with regard to this problem.192 Suffice it to
state that there can be no doubt of the very high antiquity of the Areopagus.
Its descent from an aristocratic council attached to the early king may be
assumed, and the antiquity of its jurisdiction inmatters of homicide is correctly
inferred from the fact that itwas believed to have been instituted in this capacity
by a divine act and to have dispensed justice inmythical cases. We may further
take it for granted that the court of the ephetae in the Palladium, which tried
unpremeditated homicide, was of a more recent date than that of the Areopagus.
Since the conception of unpremeditated homicide at one time emerged from the
it is a
originally undivided homicide delict, which was tried by the Areopagus,
fairly safe assumption that the court in the Palladium

split away from the Areo
was
also
in
Maschke194
seeking the essential difference
pagus.193
right
probably
between the two courts in their methods of taking evidence; the ephetae were
allowed to deviate from the principle of formalized evidence to which the Areo
The question of the identity of the ephetae, as well as
pagus was still bound.
or pre-Draconian
that of their Draconian
origin, is immaterial here.195 At any
188As
in Ancient
of Solon's
law and
original
be true.
189
'They
the ephetae
cide
and Smith 1105.

Political
text, see Bonner
Balogh,
Refugees
1943) 116 n. 224, holds that 'the text is close to the wording
not a free paraphrase
In view of Andoc.
of it.'
1.78, this may
to its possible
original
Greece
(Johannesburg
shall
be restored
to their rights, except those who, from the Areopagus

were condemned
on charges
by the "kings"
or from the Prytaneum,
etc'
190Cf. Andoc.
or from
of homi
as Andocides
text is an even closer parallel,
uses
the term
. The
a
insertion
of rjbetween
and
,
?a
.
as is his translation
of both this
op. cit. 117
suggested
by Balogh,
233, is as unacceptable
text (op. cit. 57, 60, following G. Smith, Class. Philol.
and Plutarch's
16 [1921] 348).
191
Steinwenter
op. cit. 48f.
57; Maschke,
192The most
recent discussion
is the one by Bonner
and Smith I 88ff. 125fT.
193
op. cit. 49.
Maschke,
194
also disposes
of the idea (Gilbert,
op. cit. 50. Maschke's
suggestion
op. cit. [see note 1]
a
instead
1.78.
of
This
a a
a a
491ff.) thatDraco substituted the jurisdiction of the ephetae for that of the Areopagus in
all homicide
matters
tated homicide.
195
Maschke,
Draco.
op.
and
Solon
restored
cit. 49, 50, argues
well
the Areopagus
for the theory
in its function
that
they were
of trying
premedi
first instituted
by
THE
ORIGIN
OF
JUDICIAL
LITIGATION
AMONG
THE
GREEKS
75
rate, the ephetae were established as a variety of the court of the Areopagus,
probably in connection with the introduction of a modernized
procedure as
regards the evidence.196
Such is the background against which an understanding of the
a
of our
be
should
The
for
this
inscription
sought.
starting point
attempt is found in
the controversy between Menelaus
and Antilochus, which is described in the
at first calls upon the leaders of the
Menelaus
twenty-third book of the Iliad.
?
a
a
a
574:
?s
?,but immediately changes his mind
Argives,
. This has struck many as
and declares, 579: el ?'?y'ey?v avr?s
a
strange,
but it ceases to be so, as soon as Menelaus'
words are viewed against the back
He announces his intention, not to be his own
ground of what he is proposing.
to
but
judge,197
employ, through tendering an oath to Antilochus, a formal pro
cedure by which it would become evident on whose side the right was.
The
purpose of the formalized evidence of primitive law, such as duel, oath, or ordeal,
is not the discovery of facts fromwhich a decision on the right can be
derived,
but immediately to make clear the right itself.198 The
a eiv, thus, ismerely a
solemn statement of the outcome of the evidence procedure;
a ? means
to
state the right. Such was still itsmeaning at Gortyn, as is known.199 Normally
this statement would be made by a third person, or a group of persons, acting as
umpires. But there was nothing irregular about its being made by the challeng
ing party himself,200 least of all in the Homeric camp where the leaders were not
subject to any authority that took care of the administration of justice.
a e occurs in Draco's
It is precisely in this sense that
homicide
law.
Maschke has attractively suggested that the sentence of theAreopagus originally
was a mere statement of the fact that the defendant had committed the homicide
with which he was charged, with the effect that the plaintiff might go ahead
and take his blood-vengeance.201
In exactly the same fashion the 'kings', on
the ground of the verdict of the ephetae, pronounced the defendant 'responsible
for the homicide', so that the consequences
laid down in the law automatically
The perfect agreement of this procedure with Maschke's
might take place.
196Bonner
and Smith I 128 believe

that the absence
in Aeschylus'
Eumenides
of the four
at an Athenian
delivered
trial reflects the ancient
homicide
trial before
regularly
speeches
a single magistrate.
is not convincing.
This
197This was
out by Bonner,
Class. Philol.
6 (1911) 31 (cf. Bonner
and Smith I 28).
pointed
His own interpretation,
1make my right in the matter
however:
clear', so that the chiefs
. 8. Latte's
in the audience
Recht 8
view:
may
judge, was
by Latte, Heil.
justly rejected
'er wolle
selber sagen, was rechtens
sei und auch die anderen
als billig anerkennen
m?ssten'
is closer to the real meaning
but still too vague.
198
With
has already been correctly pointed
out
respect to Greek
law, the above principle
Cf. also Gilbert,
Cf. for Germanic
op. cit. 40; see also p. 16 n. 27.
op. cit. 469.
by Latte,
law:H.
Die Entstehung
der Schwurgerichte
(Berlin
Brunner,
1872) 47.
199
.
Rechtsidee
op. cit. 40
Ehrenberg,
op. cit.
99; Latte,
46; Maschke,
5; Steinwenter
Arch, d'hist. du droit orient. 1 (1937) 115.
47f.; Gernet,
200In the
the evidence
to be
had
primitive
conception,
the judge: Latte,
before
law:
op. cit. 32, 40; for Germanic
Entwicklungsproblem,
201
op.
Maschke,
laid
before
Brunner,
not
the opponent,
cit. 48; Beyerle,
op.
passim.
cit. 42.
76
TRADITIO
theory, as well as with the procedure to be inferred from the Iliad and the law
of Gortyn, confirms the supplement suggested above for line 12 of our inscrip
a e of Menelaus
tion.202 There is a difference, of course, inasmuch as the
and of the dikastes of Gortyn follows immediately from the formal evidence,
while the pronouncement of the Athenian
'kings' rests on the verdict of the
concerns
But
this
difference
only the basis of the pronouncement,
ephetae.
not its own legal nature.
law to the 'kings' was iden
It is true that the r?le assigned by the Draconian
cal in name and effect to one of the functions of the Gortynian

judge. This,
however, does not warrant the conclusion that the 'kings' originally possessed
the power to try and judge homicide cases on their own authority and were
deprived of such power only by the establishment of the tribunals of the Areo
a e can be inferred from its
The true import of their
pagus and the ephetae.
contrast with the biayv&vai of the ephetae.203 These two terms were still kept
a e ?Kp?vew, had lost
sharply distinct in a period when the other antithesis,
its importance on account of the change in the evidence system which had taken
place.204 In the legal terminology of the orators, which was rarely, if ever,
confused, hiayiyvkaneiv stands for the activities of an arbitrator, while the ex

a ? and up?veivare reserved for the courts. The reason for this
pressions
clear distinction obviously lies in the different relation of either kind of sentence
The judgment of the dicastery bound the parties and opened
to the execution.
The award of the arbitrator had no effect
the way for an immediate execution.
unless the parties themselves chose to abide by it, and even then?significantly
enforceability depended on its being signed by the magistrate.
enough?its
A a e denotes the issuing of a definite and authoritative statement that an
e is the term for a verdict
execution may or may not take place,
Layiy
the
of
the
substantive
situation
from
law. This exactly
stating
legal
viewpoint
a e of the 'kings' and the ?Layv?vaL of the
is also the relation between the
ephetae.205
law on unpremeditated homicide furnishes conclusive docu

The Draconian
evidence
for
the thesis that the archaic magistrate at Athens no less
mentary
than at Rome was an officer charged with supervising the use of private force
by individuals; that is to say, as far as homicide cases were concerned, the
a ? was a decree by which he merely
His
execution of blood-vengeance.206
202In a
similar
maintained
203Cf.
way as here
the gene tive a
also Demosth.
23.57.
which,
was
understood
But Gilbert
op. cit. 489.
by Gilbert,
in the light of this supposition,
no sense.
makes
204See
80 n. 3 and authors
op. cit. 98; Steinwenter
Ehrenberg,
quoted
by him; also Latte,
. 5.
See also Gernet,
Pens?e
448-451.
op. cit. 40
juridique
205Cf.
on the basis
note 209.?The
of the
below,
pronouncement
(Rechtsgebot)
which,
as approved
from
'finder's' verdict
the
the
issued
officer in archaic
by
Umstand,
presiding
I 203) is a perfect
to the
procedure
(Brunner, Deutsche
Rechtsgeschichte
analogy
See also E. Carrelli,
Annali
della Fac. Giur. della R. Un. di Bari,
.S. 2(1939)
122,
the Roman
addictio.
concerning
206The
of being bought
for in Draco's
banishment,
capable
off, as provided
law, was of
course only an attenuation
of the originally
unlimited
This possibility
right to revenge.
German
a
is incorrectly
denied
und Straftatbest?nden
610 n. 40 and by Gerner, Zur Unterscheidbarkeit

by Lipsius
im attischen Recht
1934) 42f.
(diss. Munich
von Zivil
THE
ORIGIN
OF
JUDICIAL
LITIGATION
AMONG
GREEKS
THE
77
allowed or forbade self-help,207after a court convoked and presided over by him208

had issued a verdict as to the existence or non-existence of a right to use self
Inasmuch as this verdict actually settled the case and therefore substan
help.
if
not formally, implied the contents of the magistrate's decree, the term
tially,
a ? was capable of denoting the activity of the court, too,209 just as it could
also be properly applied when, in a society which knew

disputes than extra-judicial self-help, the parties agreed
of formal evidence rather than of force?as was the
and Antilochus.
between Menelaus
But in the legal
no other way of settling

to seek a decision by way
case in the controversy
terminology of the early
Greek city-state the expression primarily referred to the decree of the official.
a e the old terminology survived right into the classical period.
In
The very primitiveness of this function of the magistrate disposes of any idea
that itmight have been no more than the residue of an original power to conduct
trials and render decisions.
Its antiquity is also evident from the procedures
or inanimate
instituted against unknown murderers
and against animals
objects that had caused the death of a person, which took place at the Prytaneum
207
the nature
and purpose
misunderstands
Ehrenberg
was
a
of the
op. cit. 97, that the consequence
assumes,
This might happen,
but?at
least as long as the opportunity
e ) a werguilt
was not yet a legally protected
(a
paying
the
latter
was
able
to
induce
his
opponent
to waive
his
when
he
procedure
a reconciliation
of the parties.
off the execution
of buying
by
of archaic
of the debtor?only
if
privilege
right to self-help
voluntarily.
from Babylonian,
and
Egyptian,
to abide by the judgment,

such as known
As for the two former systems,
it is significant
only confirm this view.
were made
claim had been
that the promises
by the
only by the plaintiff whose
rejected
see Lautner,
court or who had received
op. cit. (note 56) 39, and for the Egyp
satisfaction;
zum
tian law: P. Eleph.
in K. Sethe and J. Partsch,
dem. 12 (Partsch,
Demotische
Urkunden
Solemn
promises
Germanic
laws,
der Ptolem?erzeit
S?chs.
[Abhandl.
?gyptischen
Ak., Philol.
B?rgschaftsrechte
vorz?glich
10591 recto col. X,
line 15 (ed. Sir
Hist. Kl.
Mus.
1920] 752 ff.) and P.Brit.
32; Leipzig
Eg.
A Family
and B. H.
Herbert
Archive
[Oxford 1934]; cf. E. Seidl
from Siut
Thompson,
Stricker, SZR 57 [1937]303; E. Berneker, FestschriftPaul Koschaker [Weimar1939]III 272?
The Germanic
promise
[pp. 277ff.] are only in part acceptable).
a means
to make
the judgment was precisely
execution
by way of self-help
to the proceedings
It was not made
after the judgment but belonged
led up
which
Berneker's
conclusions
to comply
with
possible.
to the institution
of the lawsuit.
or in immediate
ant was
refusal
Its
resulted
in the loss of his case
for the plaintiff

its effect, as far as the defend
if the sentence went against
him.
to this promise were in the Greek
law
and
for the defendant,

respectively;
to the execution
his subjection
outlawry
was
concerned,
op. cit. (note 41) 87f. 92.

Comparable
Schr?der,
'
a of the shield-scene
or the promises
as the kiri
in Aeschyl.
such agreements
ir?lpap e
See also above,
Eumen.
note 76.
law, the litis contestatio.
438, 471f. and in the Roman
208
or not he took part in the voting
in this connection.
As to
is of no concern
Whether
see Lipsius
and Smith I 99.
this question,
18; Bonner
209This
text of the law
the wording
of Demosth.
23.22, if we read the authentic
explains
See
quoted there (this is denied by Gilbert, op. cit. 486). The strict terminologywas certainly
that
of the
Demosth.
*
a
inscription.
? ?
?
23.28:
the
(cf. also
It was
still
used
a
?? tovs a
law
in Demosth.
of a more
in enactments
a
43.71).
a
Our
inscription
recent
shows
that
period;
*
there
see
\ a a
is no
need of emending the text, as Lipsius 55 n. 6 (followingSchelling, De Solonis legibus68)

suggests.
the use of
where
Athena
Aeschylus
the same
In
sense
a a
a a
Const,
by Aristotle
asks the judges:
a^
obviously
copies
the official
in Solon's
Note
law.
is employed
amnesty
Eumen.
See further Aeschyl.
52.3; 53.1.
.
a
as in verse 585:
Here,
of Ath.
a
style.
also
712,
,
78
TRADITIO
and were conducted by the archon basileus and the 'tribal kings' (phylobasileis)
alone.
The archaic character of this condemnation of animals and objects is
undisputed and beyond doubt.209a The reason for the omission of a court trial
was the absence of a controversy that called for a decision.210 All that had to be
done was to exclude the guilty one from the peace and the cults of the com
a e in the sense of the
The action taken by the 'kings' was a
munity.
Draconian
inscription.211
To sum up the result of this analysis of Draco's
provision we may state:
It shows us once more the basic identity of the principles governing the pre
classical law of procedure in the city with those inferred fromHomer's descrip
tion of the shield of Achilles.
4. Archon and Judicial Assembly
Yet there is still Aristotle's statement, Constitut. of Ath. 3.5: 'They (viz. the
archons) also had power to give final judgment in lawsuits.'212 It certainly
cannot upset our results, as these rest on a perfect consonance of sources and
established facts and receive support from what we were able to observe with
regard to other Greek cities, as well as from comparable conditions at Rome.
The passage, however, serves as a caution against drawing too onesided a picture.
For, poorly done as Aristotle's chapter 3 may be as a whole, we have no right
The pre-Solonian laws

simply to dismiss the quoted words as misinformation.
vesting the power of trial and decision in courts, while confining the magistrate
to the supervision of self-help, are concerned exclusively with homicide, and
they refer to the province of the 'king' (archon basileus) only. But the well
documented history of the popular dicasteries makes no sense unless these were
preceded historically by some sort of jurisdiction vested in the officials alone.
Hence Aristotle's statement should be accepted, and our task consists in deter
mining the legal nature of this authoritative administration of justice and its
a e of the contemporaneous
relation to the
basileus, on the one hand, and
to the post-Solonian organization of the judiciary, on the other.
In what direction we should look to find an answer to this question is revealed
by the fact that Solon did not replace the jurisdiction of the archons by vesting
exclusive judicial power in the popular assembly: he only checked it by granting
by their decisions the right to resort to the
of
ephesis (Arist. Constitut. of Ath. 9.1, Plut. Sol.
popular assembly by way
Just what this ephesis was, has for many years been the theme of a
18.2).
lively controversy213 which revolves around the question whether the ephesis
to every citizen who
209aThe
210Not
felt wronged
was
in recent years
procedure
the religious
of these
character
(1917) 175, suggests.
again
discussed
cases,
as W. W.
211See
e
a e ?'? ?a
Const, of Ath. 57A:
Aristotle,
212Cf. Lex.
e
:a
Anecd.
466.21)
(Bekker,
Seguer.
.
a
e
a a
!</>' e a
213For a brief
on
see J. R. Ralph,
report
existing opinions
61 (1941)
Iff.
SZR
by Dull,
Amer. Journ.
of Phil.
Hyde,
a
ol
*
Ephesis
'
?a
rjs
38
"e
in Athenian
a e a
Litigation
(Diss. U. of Chicago 1936; published in 1941) p. iiif. See also Bonner and Smith 1159 n. 2,
II 232ff.
THE
OF
ORIGIN
LITIGATION
JUDICIAL
THE
AMONG
GREEKS
79
should be characterized as an 'appeal' or as a mere reference of the case to a

superior authority. A detailed discussion of the legal idea expressed by the
term is not within the scope of this study.214 It may, however, be permissible
to observe that the problem seems to be obscured by the fact that scholars have
not sufficiently freed themselves frommodern juridical conceptions.
Those who
defend the theory of an appeal are right in so far as the practical effect of the
It is true that the lawgiver gave the interested
Solonian ephesis is concerned.
a
to
decision
the
of the official and to have his case re
chance
reject
party
examined by a superior authority.215 (The same statement can be made, for
that matter, with reference to the fourth-century ephesis against an award
But Steinwenter216 is correct too in denying that
handed down by a diaitetes.)
the arch on or arbitrator exercised genuine judicial functions; his argument that
the mere filing of the ephesis, and not the actual sentence of the assembly, de
prived the official's decision of its effect has with little justification been criti
cized as 'over-subtle and captious'.217
The solution of our problem should be derived from the political significance
judicial reform, which Aristotle (loc. cit.) lists among the 'most demo
The philosopher here seems to have inmind primarily
cratic' of his measures.
the constitutional importance of the establishment of the assembly as a judicial
body.218 But that Solon's democratic reforms were dictated chiefly by social
considerations is attested by the lawgiver himself and has always been common
knowledge, and so has the fact that he introduced popular judicial control as a
protection of the common man against the danger involved in the concentration
of the administration of justice in the hands of the aristocracy.
the sentence of the archon should be considered, not so much as a
Hence,
judgment delivered by an impartial instance established by the state to dispense
justice, but rather as an authoritative order issued to the commoner by the
of Solon's
The magistrate
functioned by
governing member of the ruling aristocracy.
virtue of his coercive power both when deciding private disputes and when
214A
and Smith II
him, Bonner
in different cases.
results
practical
that the term did not express one legal conception
But this does not justify
the contrary
all these cases.
As a matter
of fact, the identical
terminology makes
covering
the idea to be capable
of definition
by
expect
appear
likely ; only we should not necessarily
inquiry
special
232ff. have established
modern
Athenian
so
categories.
legal
would
the ephesis
their conclusion
Ralph,
terminology.'
thoroughly
acquainted
be desirable.
that
and,
Ralph
led to different
following
the familiar
of the 'fluidity of
argument
op. cit. p. iv, uses
to the fact that a scholar
should be attached
But some weight
as was Partsch
law and
its sources
with Greek
emphatically
insisted on the precision of the Greek legal terminology,Arch. f. Papyr. 6 (1913) 41.
support
e
a
of Partsch's
. See also
contention,
Wolff, Traditio
should
2 (1944)
to point
to such
48f. 52f. (regarding
like
terms
and
as
In
and
kyybr)).
215
Wilamowitz's opinion (Aristotelesund Athen [Berlin 1893]I 60) that Solon transferred
the power to inflict punishment

too far; see Lipsius,
Ber.
goes
Smith II 234 n. 2.
216
op. cit. 71.
217
op.
Ralph,
218
y?p
Gernet,
cit. 7.
?
Rev.
a certain
limit from the magistrates
beyond
Phil.-Hist.
Kl.
50 (1898)
Ges. d. Wiss.
Sachs.
des ?t. gr. 52
.
(1939)
yiyverai
389
1, 407
ea
to the assembly
and
157, Bonner
1, agrees.
80
TRADITIO
In doing so, he may always have been supposed

inflicting punishment.
follow certain acknowledged principles, and after Draco
he was directed
was
a
written laws. But originally this
Draco,
purely moral obligation.
allowing a denunciation (eisangelia) of the magistrate to the Areopagus, open
to
by
by
to
any wronged citizen (Aristotle, Constit. of Ath. 4.4),219 for the first time estab
lished some degree of public control. The gradual extension of this control,
eisangelia to Solon's ephesis, is proof
recognizable in the progress from Draco's
that the purpose of the latter also was the limitation of a coercive rather than a
judicial power of the archon. Even after Solon, the decision of the archon was
a command, not a verdict. Nothing shows this better than Plutarch's
clever
comparison of the ephesis with the Roman provocatio ad populum.220 For surely
this was no 'appeal',221 but a device to prevent the improper use by themagistrate
of his potestas.222
The distinction just made has more than a merely theoretical importance.
If viewed in the light of our previous findings, it illuminates the part the juris
diction of the archons played, in the set-up of pre-democratic Athens and in her
transformation into a democratic state, both from the political and the legal
points of view.
There can be little doubt that the jurisdiction in question existed only with
In the synoikismos by which the
respect to the lower classes of the population.
state of Attica was founded, the aristocracy of the country had formed a com
munity with its center at Athens and presumably under the leadership of the
local king.223 Each of the noble families had under its sway a number of humble
folk over whom they ruled in a patriarchal manner, inmuch the same fashion as
The common people at first were
did the princes in contemporary Boeotia.
the
affected
for
the fact that in the course of the
much
by
change, except
hardly
consolidation of the state, and probably only after the abolishment of the early
monarchy, the governing functions passed from the local chiefs to the officers
It is likely that this resulted in a certain improvement of the
of the community.
condition of the masses, as it involved some protection from the caprice of the
But the constitutional principle was not altered by this. The
aristocrats.
magistrate was still a partiarchal lord who, by issuing authoritative decrees,
exercised the dominion of the ruling class over the masses which had not yet
been received into the political community. The natural bias of the average
in dealing with disputes arising between nobleman and commoner,
magistrate
the deterioration of the economic situation of the lower classes,
with
together
finally brought about the state of things which, after much internal strife and
219This
see
is considered
critics a true feature of the Draconian
by modern
legislation;
. 2.
and Smith I 145, 148; II 233; Ralph,
Bonner
op. cit. 2
220
2.1.
Sol. et Pubi.
Compar.
221
is the opinion
of Ralph,
Such
op. cit. 7.
222See Th.
des r?mischen
Abriss
2nd ed. (Binding's
Mommsen,
Systema
Staatsrechts,
tischesHandbuch der deutschen Rechtswissenschaft 13; Leipzig 1907) 98; also D?ll,SZR
(1936) 5. DifferentlyC. H. Brecht, SZR 59 (1939) 287.
223See
Bonner
and
Smith
I 57ff.
Details
need
not be discussed
here.
56
THE
ORIGIN
OF
LITIGATION
JUDICIAL
AMONG
THE
GREEKS
81
legislation, led
probably a first attempt to solve the problem by the Draconian
to the Solonian constitution.
Quite different was the position of the official with respect to the nobility.
The conditions under which the synoikismos had been effected224made it impos
sible for the king to reign over them by simply issuing orders, and even less
effective in this respect was the magistrate of the aristocratic republic. This
is why the highest antiquity should be assumed for the jurisdiction of theAreo
pagus. This was the way inwhich controversies between members of the ruling
It is true that the Areopagus
class, which made up the state, were dealt with.
jurisdiction only in homicide cases, and apparently there never existed a

public court to try other suits, before the popular dicasteries were established.
But at a time when blood-feud was still customary, homicide was a common way
of settling disputes and the principal cause of controversy among the aristocracy.
This was the one of wThich the community would first feel compelled to take care
by repressing the unrestrained use of private force and establishing trial. Other
causes wrere doubtless rare and may be supposed to have been settled by less
had
Here
the origin of the later diaita should perhaps be
formal procedures.
sought, inasmuch as the king ormagistrate, acting as the guardian of the internal
peace, forced the parties to submit their case to a peer, before he permitted them
to proceed with those acts of self-help which had caused Ms intervention.225
This picture, we must admit, is hypothetical, since no source is available which
would furnish immediate proof. But the hypothesis has a fair claim to prob
It is consistent with all that we have observed heretofore, from the
ability.
in the classical
scene on the shield to the functions of the judicial magistrate
period of Athenian democracy.226
Now the final establishment of the dicasteries as true courts of law also appears
in a new light. According to the current and most likely theory this step was
I am, however, convinced that it could never have been
taken by Clisthenes.227
brought about merely by an increase in the number of epheseis, as is commonly
The reform was in fact a logical consequence of the definite establish
assumed.
ment of democracy, the last step on the road which had led to the full incorpora
tion of the common people in the citizenry. The ancient principle that nobody
but the fellow citizens themselves possessed the authority to decide whether a
224Cf. Bonner
and Smith I 60f.
226Attention
to the fact that the procedure
be called
before the public
arbitrator
may
forms and the prevalence
still characterized
of the classical
of a
by its archaic
period was
see Gernet, Rev. des ?t. gr. 52 (1939) 396,400-404.
formalistic
theory of evidence;
226It
that even the authoritative
of the magistrates-over
may be remarked
jurisdiction
was primarily
a supervision
of self-help, especially
the lower classes
when
of the population
one
The
of the parties
only difference
to a suit was
between
these
a member
cases
and
and the other a commoner.

of the aristocracy
in the
consisted
arising between noblemen
those
status of the common man relieved

the official of the neces
the social and political
a
or
case
to
so that he
refer
the
the
fellow
citizen
to
chosen
by the parties,
community
sity
decide by command.
could, more or less arbitrarily,
227See Bonner
and Smith I 196.
fact that
82
traditio
citizen had a right to take action against another, was at last extended to all?
a century after Solon had initiated the historical process that was to arrive at
this end. Documentary
proof is the law quoted in Demosth.
23.28,228 which,
on account of itsmentioning the heliaia, cannot be earlier than Clisthenes and
a e and biayiyvcoaKeivas Draco's
law
implies the same distinction between
on unpremeditated homicide.
The view expressed above that the roots of the classical civil procedure should
be sought in the shield-scene, but not in such conditions as described by Hesiod,
is confirmed. Down to the classical period the Athenian magistrate was always
a peace officer, charged with the control over self-help, and even in the pre
democratic period acting in a judge-like capacity only when dealing with persons
The ancient idea of
subject to, but not members of, the political community.
his protective function is reflected in the edict traditionally issued by the archon
when taking office,229cf. Aristotle, Constit. of Ath. 56.2: 'Whatever a man held
before his (viz. the archon's) entry into office, he should hold and possess until
the end of the office.'230
III.
Summary and Comparisons
The chief result of this study is the conclusion that judicial litigation came
about, not by way of a gradual consolidation and transformation of voluntary
arbitration into a compulsory trial before a public or publicly authorized judicial
authority, but through the substitution of controlled self-help for uncontrolled
of the internal
self-help. A political authority charged with the maintenance
peace of the community and resting on its recognition by the members of that
community protected individuals?originally
only the victims of an attack who
called for aid?from forcible acts undertaken against them by other individuals.
It provided such protection until and unless the community in its entirety, or
represented by one or several of itsmembers, had passed judgment on the justi
fiability of those acts, or (as is likely at least for the archaic period) until the
victim of an attack himself refused to have his case examined by impartial
judges, thus giving rise to the presumption that the employment of force against
him had been justified from the beginning.
This idea underlay the structure of
Greek procedure wherever there was a self-governing community, from the
Homeric
'city' down to the classical and Hellenistic
228Text
in note 209, supra.
229The edict dates
back to the time before
cf. Lipsius
city-state.230a
the establishment
of the board
of nine
archons;
58.
230
Rabel, SZR 36 (1915) 388, aptly compares the edict with theRoman interdictum uti
possidetis.
230apaoli
Cf. Vinogradoff,
>s theory (Studi
Outlines
Albertoni
II
60.
II 329;
see also Rivista
del Diritto
Commerc.
e del Dir.
Gener. delle Obblig. 33 [1935]36ff.;Studia etDocumenta Hist?ri?? etIuris 2 [1936]77ff.) that

and control
law the conflict between
of self-help by public
under
the Athenian
self-help
character
of the legal system?
is to be explained
by what he terms the 'pluralistic'
authority
head of an olkos, on the one hand, and as
of the citizen as sovereign
position
i.e., a double
an anachronism.
and involves
See Wolff,
of the state, on the other?is
unnecessary
subject
Traditio 2 (1944) 93
. 235.
THE
ORIGIN
OF
JUDICIAL
LITIGATION
AMONG
THE
GREEKS
83
Arbitration, that is to say, the voluntary waiving of self-help and reference

of a case to an umpire with the aim of having it settled peacefully, was a parallel
Just as nowadays,
it might, and doubtless did, occur where
phenomenon.
its proper field of application was a
public control of self-help existed. Bui
stateless society unable to establish a truly reliable machinery for the suppression
of unrestricted self-help.231 This very fact reveals the limited value of voluntary
arbitration in the process of replacing anarchy with law and order. Formal
means of evidence, such as oath, ordeal,222 or battle,233 were, on account of their
religious foundation, capable of being employed in the sphere of pure self-help?
as shown by the controversy between Antilochus and Menelaus
{Iliad 23.539ff.)
?as
well as before arbitrators and courts.234
231Cf. with
to Rome,
E. Seckel
197f.?F.
respect
Leifer, Ztschr.f.
Juncker, Ged.-Schr.f.
50 (1936) 39, believes
that a self-help procedure
served
vgl. Rechtswiss.
by clan-law
regulated
as an intermediate
of justice.
unrestricted
stage between
self-help and state administration
occurs
statement
in a comparison
fea
His
of the Roman
institution
of vindex with certain
tures
of ancient
affair
Irish
the limits of these two

claims validity
beyond
the clan was the only existing
form
period, when
an
was
done by and to individuals
automatically
law, but obviously

thinks that in an early
He
legal systems.
of organized
community,
every
clans.
wrong
on either
in his opinion,
persons wielding
authority
in his alleged
the Irish naidm) would
step in as
original
function,
the immediate
for the individuals
outbreak
of
involved,
prevent
or the
an adjustment
and
viz.
the dispute
means,
try to settle
by peaceful
A war between
abandonment
to the offended clan.
the
of the guilty individual
of their
respective
side (the Roman
vindex
and defenders
claimants
hostilities,
voluntary
clans resulted
if no settlement
Then,
could
be reached.
the place
review of Leifer's
and highly
for a critical
suggestive
interesting
the correctness
Even
Institutes
96 n. 10).
assuming
theory (doubts were voiced by Wenger,
we must
of its results, as far as historical
their interpretation
facts are concerned,
consider
by Leifer as erroneous.
Society was still in the stage of unrestricted
self-help, as no politi
is not
This
cal organization
tain forms were
existed
which
could
observed
customarily
It may well be that cer

its law on the clans.
impose
with their own or their mem
by the clans in dealing
sure that they were forced
to avoid
feuds or to make
bers' controversies,
owing to a desire
or a refusal to do justice on the part of another
Yet
clan.
demands
upon the clan by unjust
the fact remains
were always
for the
taken by the parties
that the decisions
themselves,
over the members
the practice
had no authority
Hence
of the opposite
clan.
intermediaries
at a par with arbitration,

which
indeed frequently
to,
enough may have been resorted
but not a forerunner
in the sense suggested
in this study.
of true judicial
litigation,
A possible
of a just
resort to open feud by the formal proclamation
habit
of defending
cause
to take steps of execution
should not be confused
with a judicial
by self
permission
was
a certain
While
help.
procedure
followed
the two, as can be clearly seen in the elaborate

exists between
analogy
The Interna
when
(see C. Phillipson,
by the Romans
they went to war
tional Law and Custom ofAncient Greece and Rome [London 1911] II 180ff.329ff.),the act
a onesided
affair (it is therefore not quite precise when Cic. De
leg. 2.9, followed by
a statement
as judges).?In
327ff. characterizes
the fetiales
by Arbois
quoting
Phillipson
de Joubainville
op. cit. 41, seems
(Cours de litt?rature celtique VII
[Paris 1895] 384), Leifer,
to approach
the view expressed
which
offer them
here, but fails to draw the conclusions
remains
selves.
232G.
Glotz,
Uordalie
dans
la Gr?ce
primitive
sur Vantiquit? grecque (Paris 1906) 69-97.

233
Solidarit?
Glotz,
234See the
dispute
129
list the evidentiary
(note
between
oath,
(Paris
1904);
Etudes
31) 271-287.
and Antilochus,
Menelaus
Iliad
23.570ff.
action,
along with self-help and community
sociales
et juridiques
Bonner
and
as one of the
Smith
'ways
84
TRADITIO
Once a machinery for the supervision of self-help was devised and effectively
set inmotion, the way that was to lead toward a well-ordered system of law and
It became possible to abolish the principle of mere
procedure was cleared.
vengeance and to build, by limiting the scope of liabilities, a law of obligations.235
The growing power of the state brought about the prohibition of self-help in the
initiation of lawsuits and put limits to its use for the purpose of enforcement, and
From
eventually the state was able to take over the enforcement of judgments.
the beginning the control constituted a deterrent for those who otherwise might
have committed lawless acts, while the danger of being left unprotected by the
public authority will have made parties more prone to settle their disputes or to
The fact that self-help stillmight have its way if the claim
fulfill just demands.
to use it was deemed just by the judges will have caused magistrates,
in the
interest of internal peace, to exert their influence in order to achieve an adjust
ment.
This appears to be the essence of truth in D?lPs
theory236 that in the
and
Roman
law
the
of
Greek
judicial magistrate was in the first
conception
an
to
amicable
adjustment, and only when failing in
negotiate
place supposed
on
an
to
to
of their dispute.237
induce
the
arbitration
agree
this,
parties
and oppose
all three of them to arbitration.
with wrongdoers'
This
view mis
of dealing
to both self-help and arbitra
oath and its relation
takes the legal nature of the evidentiary
and voluntary
tion.
of peaceful
the evidentiary
Arbitration
oath
is a mode
settlement,
action are means
of stating the right, and self-help and community
is a method
of revenge
or enforcement.
235
Rhein. Ztschr.f.
Zivil- u. Prozessrecht
Weiss,
236This
is the main
result of his G?tegedanke;
11 (1921) 27.
to Greece,
as
see Dull
11 Iff. A general
for amicable
settlements
has been noted
several
times; as
society
cf. Steinwenter
also
San
Rechtswiss.
43
(1928)
197,
295,
Nicol?,
Ztschr.f.
vgl.
and Germanic
to Roman
sources, Weiss,
op. cit. 7.
and, pointing
237jj?ll
takes for a legal principle what was in fact a sociological
effect of the legal situa
on many
correct observations,
tion.
His
theory is based
but, as far as the legal principle
archaic
by
preference
for the Greeks,
as suggested
all of these prove no more
is concerned,
than such a function of the magistrate
in the preceding
The situation
section of this study.
becomes
clear as soon as it is realized
and probably
in the early stages of
that even if the parties were free?as
they were at Rome
Greek
law?to
refuse review of the issue by an umpire,
such examination
should be kept
distinct
SZR
sense.
In a similar way as here, E. Sch?nbauer,
in the proper
own view of the function of the
to D?lPs
His
theory.
exception
anachronistic.
is somewhat
however,
from arbitration
52 (1932)
257ff. takes
Roman
magistrate,
failure to appreciate
of the judicial
character
D?lPs
nal
the true r?le of the magistrate,

also constitutes
my
decision,
of the origi
and, consequently,
to his hypothesis
chief objection
on the archaic function of the Roman vindex, SZR 54 (1934) 98-136; ibid. 55 (1935) 9-35.
on the correct assumption

to the civil
that the road from unbridled
self-help
of the historical
procedure
through a stage of controlled
self-help, he assigns
epoch passed
In his opinion,
the task of exercising
the vindex was originally
such control to the vindex.
an organ of the community
as known from the sources only at a
to his position
and reduced
Building
time when mere
aimed
of self-help gave way to the official procedure,
allegedly
supervision
an analogous
and arbitration.
Dull
evolution
for Greek
suggests
law, SZR
two questions:
What
the vindex have
should
theory leaves unanswered
place
at conciliation
55.32f.
This
have
the new
(SZR
con
and why should
set-up of the early Latin
community,
instead of simply charging
to the magistrate,
the vindex with
assigned
offer an explanation
of the fact, acknowledged
Nor
does Dull
by himself
in
that self-help
survived
However,
right into the legis acta'o-proeedure.
in the constitutional
occupied
ciliation
task?
55.9,
25)
been
THE
ORIGIN
OF
JUDICIAL
LITIGATION
AMONG
THE
GREEKS
85
Throughout this paper we have had frequent occasion to compare the Greek
law with other legal systems. Especially, a very close resemblance of the ideas
guiding the growth of the law of procedure in Greece and Rome emerges from
our results*.238 In the face of the analogy which existed between the constitu
tional foundations of the Greek city-state, on the one hand, and those of Rome,
on the other, this may not be surprising. More important from the standpoint
of comparative legal history is the fact that we were able also to point out rela
tionships between the essential features of the most primitive Greek methods of
procedure and those characterizing early litigation in Germanic, French, and

even Babylonian
law. This justifies the conclusion that themethods used by the
in
first
Greeks
their
attempts to get unrestrained self-help under control may be
a
considered to
large extent typical of the ways inwhich any growing political
community seeks to overcome the natural inclination of its members to realize
by force what they consider to be their right, or simply to impose themselves
upon the weaker neighbor.239
As a matter of fact, in looking for further material to give support to this
inference we need not go back to the 'primitive ages'. A process parallel inmany
a number
of detail, which
observations
of valuable
served
presents
too, Dull
in note 231) for a more
See also the critical
attractive
remarks
(as quoted
theory.
. 1.
romano I (Padua
1935) 436
by E. Betti, Diritto
238Cf. also
159. E. Volterra,
too far
op. cit. ( . 64 supra)
229, goes
D?ll,
G?tegedanke
to any parallelism
between
the Attic and the Roman
in objecting
legal systems,
although
this paper,
Leifer
of the latter.
any influence of the former on the evolution
right in denying
force and the power
the habit
satisfaction
of seeking
of
by immediate
to subject
to do so are so strong that the attempt
the right claimed
those accustomed
to a
not lead to an executory
futile.
Then
the road may
decision
proves
judicial
self-help
is of course
239Sometimes
he
of certain acts of self-help which will

to previous
trial, but rather to a formalization
subject
be allowed
of their justification
from the standpoint
to take place without
prior examination
law.
Such seems to be the origin of the duel as practiced
of substantive
by the European
de Moneada,
article:
duelo na vida do direito'
in an interesting
2 [1925] 213-23;
3 [1926] 69-88), has shown how in
de Derecho
Espa?ol
and Portugal
the noblemen's
to
restricted
right to self-help was gradually
Spain
cases and, at the same time, reduced
to a formalized
duel to be fought under super
aristocracy.
(Anuario
medieval
certain
L.
Cabrai
de Historia
of the later Middle

He
the fact that neither as a legal institution
justly emphasizes
as it has survived
nor as a social custom of certain groups?such
to our own day?the
as a proceeding
evidence.
can be characterized
to obtain
It has in fact always
been
a Rechtsgang
aimed at immediate
satisfaction
op. cit. 2.218ff.;
by way of self-help
(Cabrai,
the r?le of
It may be added
that Cabral's
3.69??. 85ff.).
theory of the duel also explains
vision.
Ages
duel
has often to decide

the /honor court' which
nowadays
an opportunity
of previously
thus procuring
examining
on the admissibility
of the duel,
the nature and truth of the charge
brought by the challenger against his opponent. This is a survival ofwhat we found to be
the earliest
purpose
ently widespread
convoked
parties,
for the
of judicial
authority,
i.e., to pass on the right to use self-help
the idea, appar
In addition,
these honor courts also seem to preserve
that only a tribunal
of peers of the
among
peoples,
early Indo-European
force.
with the consent of both of them, can judge on their right to employ
function
of revenge.
The development of the law of the Portuguese nobility, as set forthby Cabrai deMon
As Cabrai
contrast with that of the law of the commoners.
is in significant
eada,
immediate
succeeded
in Portugal
authorities
self-help among
early in replacing
has shown,
commoners
by judicial litigation, confiningbattle to a purely evidentiary functionin the formof ordeal.
86
TRADITIO
respects to the early history of judicial litigation has been taking place under our
own eyes in the field of international relations.
The League of Nations Covenant
devised methods, for the first time on a
world-wide scale, aimed at the prevention of war by going beyond a more or less
platonic pledge to seek settlement by arbitration or resort to the Permanent
Court of International Justice.240 Common forcible action, however, as provided

for by articles 16 and 17 of the Covenant was to be taken only against states
that actually resorted to war in violation of international obligations.
This of
a
to
led
distinction
between
and
lawful
unlawful
and
in the
wars;
necessity
first category, owing to the lack of a League machinery for the enforcement of
awards and decisions, were recognized those waged for the purpose of enforce
ment.241 It is also worth mentioning that the judicial machinery of the League,
or Greece, was, for all practical purposes, set in
like that of early Babylonia
motion at the instance, not of the claimant but of the attacked country or its
friends (article 11 of the Covenant).
It is this last point inwhich we find one of the possible improvements brought
by the Charter of the United Nations of June 26,1945, inasmuch as it has vested
the Security Council with the immediate authority to interfere by its own initia
In the light
tive in situations or disputes endangering the peace of the world.
of comparative legal history, this corresponds somewhat to the progress from the
stage represented by the Homeric community of the shield-scene to that repre
sented by the praetor in the early Roman republic. No prediction of the out
come of the experiment of San Francisco can be ventured.
if it is
However,
to prove a success, it will have to lead to an ever greater extension of the realm
of judicial litigation between states and to effective methods of enforcing judg
ments.
The Security Council, which to a large degree resembles the peace
magistrate of primitive communities, has, like the praetor, every chance to be
come highly instrumental in bringing about this evolution.
An ancient and oft-repeated process is unfolding again, not only as regards its
general tendency, but also, to an astonishing degree, as regards its details and
The failure of the attempt to set up a world peace organiza
successive phases.
240As
rigidly
is well
character,
therefore
were
so
useless
largely rendered
by the distinction,
and disputes
of a political
legal or justiciable
disputes
to involve
the national
interests or honor of a party and
supposed
outside
the scope of a possible
examination
and decision
by an impar
known,
insisted
upon,
which were
considered
these
pledges
between
on the character
decision
of a given controversy
tial authority?the
lying with the party
A full discussion
of this problem
is found in H. Lauterpacht's
The Function
itself.
of Law
in the International
(Oxford 1933).
Community
241This
. . in no case to resort to war
12 par. 1 :
stated in article
principle was expressly
or the judicial
or the report by
until three months after the award by the arbitrator
decision
the Council'
the principle
(which never
See also articles

13 par. 4 and 15 par. 6. Even more
is
(italics mine).
clearly
in article
3 par. 2 of the Draft
stated
of Mutual
Assistance
of 1923
Treaty
: 'provided,
went into force, to be sure).
In the words
that the first
however,
war for the purpose

of enforcement)
does not intend to violate
(i.e., a state waging
or the territorial
the political
of its opponent,
this provision
con
independence
integrity'
in international
law to limit the scope of self-help action.
stitutes a first attempt
Generally
state
as
to the problem,
see Nussbaum,
Michigan
Law
Review
42 (1943)
477.
THE
ORIGIN
OF
JUDICIAL
LITIGATION
AMONG
THE
GREEKS
87
tion after the firstWorld War makes, us realize more clearly the difficulties with
which everywhere the nascent state had to struggle before it achieved a smoothlv
working judicial system. On the other hand, the early history of judicial litiga
tion may provide some guidance for those who are called upon to administer the
new system of international law and order?both
by indicating the direction in
a
as
to
and
caution
against
which
Utopian schemes which
proceed
by serving
would only result in new failure and deener disappointment.
Oklahoma City University,

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THE ORIGIN OF JUDICIAL LITIGATION AMONG THE GREEKS

Author(s): HANS JULIUS WOLFF

indirectly enforced by the public disapproval

(1927) 508, and M.

for the names

that the kings

of the heroic period dispensed justice authoritatively by virtue of their themistes(pp. 4,

op. cit. 16f. 31.

the theory is supposedly confirmed by comparative legal history; particularly,

for it is not lacking. But it would be

of justice by the kings and of an ancient

and abide by the awards.9 We have no reason to assume that a

If the establishment of public adminis

the question of the origin of litigation before tribunals equipped with

private controversies under public control.

The first will

19th annual meeting

be reached here are in substantial agreement with a theory suggested thirty

1. The Shield of Achilles

. 1, 212;D?ll, SZR 55 (1935)

in our source were

op. cit. 55;

Leipzig 1922) 75f.

the folk were

the relationship between

the istor and the elders?

2 [1880] 444ff.; more

op. cit. 219 n.3.

(1890) 231, R. Hirzel,

1930) 398, Hofmeister,

op. cit. 452; W.

cit. 65 n. 6, 414; Ehrenberg,

two of the elders

the result were simply the

translation between or among for ? a is borne out by a considerable number of

winner of the prize.

the two armies

or not the blood-fine

only two alternative

followed in the Homeric

place:47 the people

II 83, 179ff.) but,

op. cit. 32; contra Meister,

are referred to in the source a different group

and Smith I 34 n. 1), all in one way

forms of Germanic procedure at itsmost primitive stage, know of a wager be

der ?brigen Dingleute

from the prize which we assume for Homer.

I believe, however, that the interpretation suggested here, which

theory concerning the function

and Smith 150f.

ward consisting in a portion of the penalty inflictedupon the defeated defendant; H.

II 1 ; 2nd ed. Leipzig 1906) I 204.

of the istor. It justifies the participation of the people in the proceedings.54

too, at least down to the period ofHammurabi,

the defendant who

that our conclusions

the rest of our statements

before the tribunal officially upon request by the plaintiff.57

of order at the popular meeting by restraining

und die Streitbeendigung

p. 71, go too far.

is offered by the early Norwegian