If ideal courts in a democracy resolve disputes according to law, then the most democratic courts of the world's first and most democratic state seem far from ideal. Litigants in Athens's popular courts often use arguments that appear prejudicial, based upon character invectives, pleas for pity, and boasts of past civic service. These arguments may show that Athenian courts had more of a political than a judicial role in Athens' participatory democracy. This conclusion has consequences beyond historical debate. On this premise, Richard Posner recently criticized Justice Stephen Breyer's argument that American courts should follow Athenian courts in encouraging democratic participation. Posner argues Athenian courts are a dangerous model because in Athens "[t]he only justice was popular justice." Posner, "Justice Breyer Throws Down the Gauntlet," Yale Law Journal 115 (2006): 1701.
In her book, Lanni argues that "popular justice" does not mean Athenian courts were primarily political. "[T]he primary aim of [popular] courts was to resolve disputes justly, taking into account the circumstance of each case" (176). Athenian popular courts, like modern courts, sought to resolve disputes according to law. However, Athenians valued a jury's discretion to hear and evaluate arguments beyond those necessary to apply statute. Greater jury discretion sacrificed the courts' ability to announce stable rules across cases, but Athenians valued jury discretion more than legal certainty. Athenian "popular justice" is the first documented response to the "fissure between following generalized rules and doing justice in [a] particular case"—a tension that also exists for modern courts (4).
Lanni begins with an excellent, concise introduction to Athenians' social values, political system and courts. She then argues Athenians allowed non-legal arguments in the popular courts because they had "an extremely broad notion of what information was relevant to reaching a just legal verdict" (64). In popular courts, litigants coupled legal arguments with arguments built on "extra-legal evidence" (evidence unnecessary to apply the appropriate statute). Litigants present the same kinds of extra-legal evidence often enough that "jurors [surely] thought them relevant to popular court decision making" in the same way as a relevant law (44). Litigants also used these arguments to appeal to various standards of Athenian justice—the ethics of communal living or the value of punishing a defendant, for example. Jurors decided the relative importance of each argument, having enormous discretion to render a just verdict for each case.
Athenians must have valued jury discretion in the popular courts for two reasons. First, when Athenians created the popular courts, they could have adopted a legalistic model they established for homicide courts a century earlier. Special Athenian homicide courts limited litigants to strictly legal arguments throughout the Classical period. Unlike other crimes, Athenian homicide statutes specify the substantive elements of homicide. Homicide litigants focus more on these elements and present far fewer extra-legal arguments, even when compared to litigants arguing cases in popular courts that involve a homicide. Greater jury discretion in the popular courts must therefore reveal "a conscious reluctance to embrace [homicide courts'] mode of notably stricter legal argumentation" (111).
Second, Athenians retained discretion even though they learned that jury discretion prevents generalized rules that decrease social costs. In the maritime courts that judged trade disputes, Athenians recognized consistent verdicts were "vital to attracting the foreign merchants who dominated maritime trade" and litigants presented more legal arguments (173). Athenians required that maritime disputes concern a written contract, and maritime arguments more often cite contractual language. Lanni concludes that Athenians must have allowed discretion in the popular courts because they perceived social and political benefits that outweighed the costs of the uncertainty discretion created.
Lanni argues convincingly that popular courts aimed for legal justice in each case, sacrificing generalized rules. But her arguments are weaker that in certain courts Athenians consciously abandoned jury discretion. Our only example of a defense speech in homicide courts uses extra-legal arguments throughout. Lanni admits that prosecutors rely more often on legal arguments, so our sources naturally emphasize legal arguments. Maritime litigants do cite their contracts in court, but citations rarely support legal arguments about the substantive requirements of Athenian contract law. Litigants usually cite the contract for an extra-legal reason, such as to show the benefits Athens would have reaped had the contract been fulfilled. Whether Athens contained distinct "pockets of legal formalism" requires more argument (175). Athenians more likely saw jury discretion as a natural outgrowth of the people's political power in a demokratia.
Nevertheless, Lanni shows that Athenian popular courts aimed for justice under the law. Seemingly prejudicial arguments are explained by Athenian preference for jury discretion in seeking justice over safeguards ensuring consistent verdicts. Athenian democracy and "popular justice" may have necessitated rejecting formal legalism, but they did not obviate jurors applying law.
