We sometimes forget that the American judicial system as well as common law systems in Great Britain and many former European colonies stem from the system of justice first employed in Ancient Greece, particularly Athens, nearly 3000 years ago.
Along the way our justice system has become complicated and crowded with procedure, rules and bureaucracy to the point of incomprehensibility. Odd as it might seem, a look back at the ancient Athenian judicial system is refreshing because it offers us positive alternatives to our current overburdened procedures:
A larger jury
The Athenian jury pool consisted of 6000 jurors that enlisted to serve in court. The jurors were assigned to specific courts and specific cases with the usual size being 501, the smallest jury pool being 51 and the largest being 1501. The Athenians evolved an astonishingly complicated system to avoid bribery or partiality (described more fully in Aristotle’s Constitution, chapter 61). They wanted to make sure it was impossible for anyone to know who was going to be on the jury until the last minute. Someone looking to bribe the jury would be left with effectively having to choose from among 6000 potential jurors. (You dont devise such a system, of course, unless many people were thinking of cheating - the Greeks were just as prone to cheating as modern day Americans).
Another surprise compared to U.S. judicial system was the absence of any public prosecutor. In fact, in Athens there are no lawyers at all. Think of how happy that would make Shakespeare.
Instead, cases were argued by public citizens. Each made his case in his own voice, and probably his own language. People could hire speechwriters to help them make their case. The greatest of many such speeches have been preserved and come from the 4th century BC.
There was no judge … the jury was everything. Irrespective of a man’s qualifications, no Athenian would allow a single person to be the arbiter of their fate or tell them what was relevant evidence and what was not, or which laws applied. To do so would give too much weight to learning and expertise and encourage corruption and undemocratic prejudice.
Indeed in our own system it is not unheard of that judges are bribed or prone to prejudice.
Instead, the parties in the case cited the relevant laws and precedents and the jury decided the result. The Athennian democrat put very litle faith in experts. All citizens, it was assumed had enough sense to make judgements for themselves, especially en masse.
No case longer than a day
Legal procedure was simple. Each party had the opportunity to present their case, cite relevant law, produce witnesses, rebut their opposition and sum up their case. Each phase in the case was time-limited and monitored by an official using a water clock. No trial lasted more than a single day.
After the parties had spoken, the case went to the jury which received no payment or complicated instructions from a judge. The jury did not deliberate. They just voted by secret ballot. A simple majority decided the issue. If their penalty fell outside the bounds of written law, the winning party could propose a legal penality and the defendant could propose a different penality and the jury could then vote between these two. No creative penalties were thus possible.
Normally this process led both sides to suggest moderate penalties, since the jury would be put off by extreme penalties and choose the moderate (and likely legal) penalty of the other side.
Undoubtedly, Greeks were a litigious society. But they kept their love for the law and litigation within strict democratic and temporal bounds. The system contained a device meant to reduce the degree of frivolous accusations and lawsuits. For instance, if the plaintiff did not win a stated percentage of the juror’s vote, then he paid a considerable fine to the state (public prosecutions) or his opponent (private prosecutions).
This would be in addition to attorneys’ fees and court costs in favor of the opponent currently imposed in our legal system.
Flaws in the Athenian System
Despite it’s simplicity, the Athenian system of justice had its own flaws (and many of our current legal procedures are designed to fix these flaws). Decisions could be quirky and unpredictable since they were unchecked by precedent. Laws were sometimes cited incorrectly. Arguments were sometimes terrible. And speeches unhampered by the rules of evidence could sometimes be fanciful and misleading.
What we can learn
The American legal system and court procedures have been blamed for extensive technicality verging on incomprehensibility. The central role of lawyers and judges in the American legal system gives a substantial advantage to the rich who can afford the extensive costs of hiring lawyers and waiting out long trials.
Additionally, in the U.S. decisions are made by judges on highly technical legal grounds incomprehensible to the ordinary citizen. As a result, there is great criticism of lawyers and judges resulting in a loss of faith in the legal system.
Moreover the absence of a sufficient deterrent results in frivolous lawsuits that have crowded out court calenders. Cases in most jurisdictions takes years.
Today, time spent in jury selection compared to Athens (where jury selection took no time) and wrangling over legal technicalities stretches out still further a process that has no time limit.
Sometimes the plaintiff even dies before his or her case gets to court.
The gain in the scrupulous protection of participants’ rights is not worth the resulting delay. Justice delayed, after all, is often justice denied.
Despite its flaws the Athenian system of justice was simple, speedy, fair, open and easily understood by its citizens. It placed no barriers of legal technicalities or procedure between citizens and their laws, relying instead on the common sense of the ordinary Athenian. Something that cannot be said of the American justice system.