The Origin of Judicial Litigation among the Greeks

Abstract

Students of the history of Greek procedure generally hold that public administration of justice originated in a prehistoric habit of settling disputes between individuals by voluntary waiving self-help and resorting to arbitration. 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 private force and compelled to submit their cases to authorities designated and empowered to try the claims and hand down binding judgments. Litigants are 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 blood-vengeance, and to seek the decision of the princes who by virtue of their social and personal preponderance were predestined to act as arbitrators. After the consolidation of the state, their jurisdiction, according to the prevailing theory, became a legal institution and passed, after the abolishment of the early monarchy, to the aristocratic city magistrates, and later, in the democracies, to the popular courts. As an intermediate stage, the existence of a system of ‘obligatory arbitration’, indirectly enforced by the public disapproval of those not complying with it, has been suggested for the type of society known from Hesiod'sWorks and Days.

Character Evidence in the Courts of Classical Athens

“…Ostwald (1969) suggests that the substitution of nomos for thesmos was a deliberate act of policy by Cleisthenes as part of the establishment of democracy in 507 BC. 94 For instance, Wolff (1946), pp. 82ff.…”

“…); cf. Wolff (1946), p. 38: "Jolowicz compared the Homeric 'istor' to the English jury in its most primitive form, when it was not yet a body of men who decided on the ground of the evidence laid before them, but a group of neighbours who gave their verdict on the ground of their own knowledge of the facts involved... Jolowicz's comparison certainly fits in with Iliad 23.486, where Agamemnon is called upon by Idomeneus and Ajax to act as an umpire familiar with the facts, as he is himself one of the spectators, in their controversy over the result of a chariot race. It is also in complete agreement with the etymological meaning of the term istor, and there can be little doubt that it applies as well to the istor who appears on the shield of Achilles."…”

Oaths and Dispute Settlement in Ancient Greek Law

“…501: 'and each desired to win the case on the word of an istor' (ἄμφω δ´ ἱέσθην ἐπί ἴστορι πεῖραρ ἐλέσθαι) where istor is understood to mean 'arbitrator' . 1 In a pioneering article Wolff (1946) objected that it seemed unlikely that a mere tendency towards arbitration would have been sufficient for successfully suppressing anarchy. If, on the other hand, such a success had been achieved, why should the state have troubled to put its authority…”

Michel Foucault, leser av Oidipous Turannos

“…For øvrig er temaet langt eldre enn Foucault, det har vaert et kjent topos i Homerforsk ningen siden Hans Julius Wolfs studie av den antikke rettens opprinnelse fra 1946. 20 Antilokhos, en ung mann som både av renommé og rang befinner seg lavere på rangstigen enn Menelaos, har med et freidig knep kommet på plassen foran denne i et vognløp. Dette er en de facto utfordring av det etablerte hierarkiet, og Menelaos gjør derfor krav på Anti lokhos' andrepris.…”