Annotated Bibliography David Mirhady February 16, 2009

Democratic Rituals: Jury Selection in Athens

1. Victor Bers (2000) "Just rituals. Why the Rigmarole of Fourth-Century Athenian Lawcourts?," in Polis and Politics. Studies in Ancient Greek History Presented to Mogens Herman Hansen on his 60^th Birthday, P. Flensted-Jansen, Th. Heine Nielsen & L. Rubinstein (eds), Copenhagen, 553-562.

2. Alan L. Boegehold, (1960) “Aristotle's Athenaion Politeia 65,2: The "Official Token",” Hesperia, 29.4 : 393-401.

3. Alan L. Boegehold (1963) "Towards a Study of Athenian Voting Procedure," Hesperia 32: 366-374.

4. Alan L. Boegehold (1995) The Lawcourts at Athens: Sites, Buildings, Equipment, Procedure and Testimonia. Princeton. (The Athenian Agora 28).

5. Sterling Dow (1939) "Aristotle, the Kleroteria and the Courts," Harvard Studies in Classical Philology 50: 1-34.

6. Mogens H. Hansen (1979) “How Often Did the Athenian Dicasteria Meet? Greek, Roman, and Byzantine Studies 20: 243-47, (1999) The Athenian Democracy in the Age of Demosthenes. 2nd ed. London.

7. James W. Headlam, Election by Lot at Athens. Cambridge 1890, 1933.

8. John H. Kroll (1972) Athenian Bronze Allotment Plates. Cambridge MA.

9. John H. Kroll (1984) “More Athenian Bronze Allotment Plates,” in Studies Presented to Sterling Dow on his Eightieth Birthday, K. Rigsby (ed.), Durham, NC, 165-71.

10. David C. Mirhady (2006) "Aristotle and the Law Courts," Polis 23.2: 302-318.

11. Peter J. Rhodes, (1993) A Commentary on the Aristotelian Athenaion politeia. Oxford.

12. Peter J. Rhodes (1995) "Judicial Procedures in Fourth-Century Athens: Improvement or Simply Change?," in Die athenische Demokratie im 4. Jahrhundert v. Chr. Vollendung oder Verfall einer Verfassungsform?, W. Eder (ed.), Stuttgart, 303-320.

In a Festschrift for Mogens Hansen, Bers argues that the “rigmarole” of jury selection described in the Aristotelian Constitution of the Athenians 63-66 is best understood as a “ceremony aimed at alleviating the Athenians’ anxiety about the democratic jurors – their general quality, number, and probity” (553), and that “the ordinary man is likely to have felt that it was not an entirely random process that assigned dikastai” (558), i.e., there was a divine element in the lottery. Bers’ paper represents a solid advance on previous accounts, such as the brief discussions by Rhodes (both in his commentary and in the more recent paper), who makes only general comments to the effect that the complexity of the selection process “developed a momentum of its own, and came to be valued and extended on account of its very elaboration” (1995: 310)

In a thoroughgoing discussion on all aspects of the use of the lottery in Athens, Headlam argues that the religious origin of the lottery seems to have been a forgotten element inasmuch as the selection system conceded that the lottery could inadvertently select unqualified jurors. However, Headlam did his research largely before the discovery of the Constitution of the Athenians, so his discussion of the law courts in general is very limited.

Just prior to the Second World War, Dow explained that the kleroterion mentioned in the Constitution of the Athenians was not a sortition room but a sortition machine. The remains of such machines have been found in various locations, including the Athenian agora. In them there are spaces into which the allotment plates of the Athenian judges were placed as part of the sortition process. Dow’s paper offers the now widely accepted view of the sortition process.

In a series of works Boegehold has explained various aspects of the courts. First, he suggested that the official token given to the judges when they entered the court was used to assign their seating (1960). Then he explained the significance of the voting procedure, pointing out that the term for balloting (psephismos) was used primarily not of secret voting but of voting where an accurate count was needed – as opposed to a show of hands or acclamation (1963). Finally, Boegehold published a comprehensive presentation of all the evidence for the law courts in Athens, both literary and archeological, and included with it essays on the evolution of the law courts (1995).

Hansen argues that the Athenian law courts met as many as 150-200 times per year. Sources indicate the number of days when there were assembly meetings and the number of days when important festivals took place. Since the law courts could not meet on those days, Hansen argues that the courts met on all the remaining days.

Kroll assembled the evidence for all the 150 or so surviving bronze allotment plates from Athens. He categorizes them into six groups and argues that they were used over approximately a forty-year period. He also argues that some of the allotment plates were not used for the law courts, since they lack the three-obol seal that suggests the payment for jury service.

Mirhady outlines some of the reasons why Aristotle – and like him presumably the majority of Athenians - felt some confidence in the quality, number and probity of Athens’ courts. He felt that a larger number of decision makers was less susceptible to partisanship and to bribery and represented the greater collective wisdom of the greater number of judges.

Bers sets out a challenge to discover whether there was more than rigmarole to the sortition process in Athens. How much of the complex procedure was necessary in order to ensure that the process was democratic?