Rules vs. Stories: Weighing the Ancient Athenian Approach to Procedural Justice

Abstract

In his 2006 article," Presumption of Innocence or Presumption of Mercy?: Weighing Two Modes of Justice," James Whitman contrasts the focus on rights for the innocent in the American criminal justice system with the concern for the humane treatment of the guilty in European systems in the inquisitorial tradition. I teach this article in my criminal procedure classes not to debate whether the European approach is better, but because it invites a conversation about what we should value in a criminal justice system and to what extent our system does (or in most cases does not) live up to our values. As Whitman states in his conclusion," The point of comparative law is not to engineer wholesale institutional transplants, but to broaden the mind-to help us escape the conceptual cage of our own tradition." It is in this spirit that I want to examine the classical Athenians' approach to criminal trials. A few words of background may be helpful for those unfamiliar with Athenian law. 3 Participation in the popular court system was largely limited to male citizens. The system was run by amateurs; there was typically no state prosecutor. In what the Athenians called private cases (dikai), the victim (or his family in the case of murder) brought suit. In addition to homicide, private suits included some forms of battery and theft. Public cases (graphai) could be brought by any male citizen acting as a volunteer prosecutor, though in practice prosecutors in public cases tended to be victims or otherwise interested parties. Although the Athenians did not have a distinct legal category of crime, they did have a cultural notion of crime as behavior affecting the community at large." Criminal" behavior could be prosecuted through either a private or public suit, depending not only on the nature of the charges but also in some cases on the prosecutor's goals.