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Athenian Law
Μηδίζω! THE WORLD OF ACHAEMENID HELLAS
CHAPTER 6: NOMOS or DATA



ATHENIAN LAW
ATHENIAN LAW UNDER THE AKHAIMENIDS​

The settlement between Athens and King Xerxes that ended Athens’ part in the Persian Conquest was, in legal matters, a light touch. No measures were taken to remove or restrict demokratic governance of the city, or to reinstall some form of tyrannos over the city, and very little alterations to Athens’ laws were put in place, though alterations did occur. The main impact came from Persian oversight over the Athenian institutions of state, including its judicial matters. The Persian Arkhon was installed as the tenth member of the Athenian Arkhontes at this time, serving as the Persian King’s eyes and ears, but this was only the most visible intrusion into Athenian decision making. Over time, Persian soft influence would shape Athenian lawmaking and judicial practice into the more familiar form that would persist throughout the ancient era.​

The Law of the King and the Law of Athenai
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When King Xerxes accepted the surrender of Athens (480 BCE) it was in the sure knowledge that the rest of Hellas was to follow. He would have had very little interest in spending a long time formulating its governance, or on having to mind over the city afterwards. Therefore the package of laws that the King imposed on the city was relatively minimal. The state of Athens was prohibited from carrying out warfare against other Hellenes under the protection of King Xerxes, and it was required to hang over any traitors against the King within the city directly to the Persian garrison at Peiraieus, or to other sanctioned agents of the King. However, these laws were not without their difficulties for Athens. The law referring to the cessation of hostilities against other Persian-aligned Hellenes did not distinguish between the entire body of Athenian citizens and those specifically and particularly resident in Athens proper. In other words, were the Athenian citizens who had gone into exile in Italia to make war upon one of the King’s subjects Athens proper would be punished for it. The already fraught atmosphere between the ‘Exiles’ and the ‘Medizers’ became even more charged. Athens had no means to control the actions of their former citizens. When the Exiles merged with other Italiotes to form the polis of Dikaia (479 BCE), it was not clear whether those non-Athenian citizens of Dikaia would be counted as Athenians for the purposes of Xerxes’ laws, thus adding to Athens’ sense of being left at the mercy of their former comrades. Nor were the Exiles content to live a quiet life, they played an immediate and active role in affairs in Italia. Every time the Exiles declared war Athens held its breath.

Their worst fears would, in fact, come to pass with the expedition of Perikles and Herodotos to Krete against King Xerxes(450-444 BCE). The measures to isolate Athens from the expedition’s impact were swift, the moment news of the expedition reached the city vast swathes of the Exiles were declared atimia, and Athenian citizens were banned from joining the Italiote expedition under pain of atimia or worse. Whether King Xerxes considered these matters sufficient penance, whether he decided that his law did not actually apply in this situation, whether he decided mercy was the better course of action, many authors over many centuries have speculated. What can be said for sure is that Athens was not punished for the Kretan Expedition, and the city breathed a collective sigh of relief. This was taken as precedent that the King would not automatically take actions of Dikaia as implicating Athens, and thus that Athens as referred to in Xerxes’ laws solely referred to the citizens of Athens and Attika. Some of the venom between Athens and Dikaia ebbed away as a result of this legal interpretation. However, Athens experienced anxiety of a different kind when the Persian Phardates cut down two of the Athenians’ sacred olive trees (442 BCE). The lightness of Xerxes’ settlement had also left a void; it was not established whether servants of the Persian King could be subject to Athens’ laws. On many other matters it had been simple to overlook Persians breaking the law, but Phardates’ actions were impossible to ignore. The King Arkhon was bound to arrange a trial for Phardates, and at this point all eyes turned to the Persian Arkhon, at this time one Arsames. Arsames took the extraordinary step of allowing the trial to go ahead, and the Areiopagos then convicted Phardates of the crime he was obviously guilty of. This established the precedent that servants of the Persian King were, at the very least, subject to the sacred law of Athens, though this was not to be tested often.

Some kind of a legal framework had been established, then, by the time of King Kyros III(419-397 BCE). Athens had safely charted a course of safety between multiple threats, avoiding the example of Sparta or of Amphissa. Though many other worrisome incidents would occur under the Akhaimenids the legal spheres of Athens, the King, and their interaction had been successfully advanced, and perhaps more importantly was successfully maintained.​

The Eyes of the King
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The Persian Arkhon was perhaps, after the Persian garrison and their fortress, the most well known facet of Persian rule over Athens to outsiders. His was a most confusing role, at times; depending on the King’s level of interest in Hellas, or even the strength of the satrap in Hellas, he was either reporting primarily to the satrap or to the King personally. What was clear was his overall purpose; to monitor the arkhontes specifically and Athens generally for signs of insurrection, to act as a stabilising hand on a sometimes emotional demokratic polis, to keep an important naval asset to the King in prime condition to render that duty. For Athens the Persian Arkhon was second only to the satrap and the King in prominence but, for the Persian regime in Hellas, he was merely one of dozens of similar observers across the major poleis. There is thus a tendency for Athenian sources to vastly overstate his actual importance in the overall Persian regime. The sources only obliquely reference the fact that he rarely involved himself in matters of Athenian law. That task was primarily given over to the royal observers that monitored the Athenian lawcourts. These observers were to be found both in trials conducted by the Areiopagos and the wider Helaia.

Now, the aforementioned assent to the trial of Phardates by the Persian Arkhon Arsames was a major influence on the course of Athenian law, but despite this rare and important exception we must be clear in stating that these judicial observers were to have far more impact on Athenian legal practice than the Persian arkhon. Almost by accident they constructed a body of judicial precedent in Athenian law, which they did simply by the act of recording legal verdicts and assessing the reasons they deemed most likely for the result. The records of Mithradates in particular are a judicial resource to the present day, covering several major trials between 425-399 BCE. Indeed, Mithradates was himself to have a direct impact on Athenian justice; during the trial of one Kleon(418 BCE) the issue of slave testimony arose. Now it had been Athenian practice up to this point that slaves could only testify under torture. This repulsive practice was one that only rarely arose, but on this occasion it became apparent that this slave was indeed going to be tortured. Mithradates could not, and would not, stomach this torture actually being carried out, and took the extraordinary step of declaring himself the slave’s synegeros, daring the court to engage in his torture. This stretched Athenian legal procedure to breaking point, but it was also an intervention that at least somewhat attempted to use Athenian conceptions of justice. The trial was temporarily halted, itself extraordinary in a system where trials usually only lasted for a single day, often for only a few hours. The end result was that Mithradates, when the trial resumed the next day, was allowed to give the slave’s testimony, and of course the subject of torture was not even raised. This had the effect of destroying the credibility of the law requiring slaves to be tortured in order to give testimony, which was removed two years after the trial of Kleon.

This was only the most extraordinary incident whereby Persian judicial observers impacted on Athenian cases directly. As well as destroying the law requiring slave torture, they also resulted in the general lengthening of most trials for public crimes, encouraged a greater emphasis on evidence-based conclusions, and clamped down on the use of a trial to make claims for unrelated misdeeds and crimes. The Persians retained a reputation in Athens for honesty, but the reason that their observers made such an impact was out of the fear of what the satrap or, most particularly, the Persian king would do if they found the Athenian justice system wanting. Nonetheless, many of these changes were viewed positively, though few of them were liked by all Athenians, and exactly which of these reforms a given Athenian liked was often determined by their social status.

The Matter of Exiles​

The legal issue that caused the most problems for Athens throughout the Akhaimenid period was the matter of the Exiles in Italia. We have already seen how, at first, the actions of the Exiles seemed to hold Athens hostage, and then how in dire emergency the Athenians were prepared to entirely amputate their former comrades from the citizen body. This was not the only time that the Exiles would cause the Athenians problems. Even years after the Persian War was over there was a steady drip of disaffected Athenians that would head to Dikaia for pastures new, or to make their fortune. Was the Athenian state entitled to seize the properties of the existing Exiles, or those who left to join them? The answer was, at first, inconsistent. The Athenian state did seize the property of some of the Exiles, usually those with the most wealth or who were most prominent among the Exiles’ leadership. But that of many others was left alone, perhaps in the hope that many of the Athenians would come back. Despite all the trouble that their fellow citizens were causing at this time the Athenians did want the Exiles to come home. Some of them did after only a few years. The case brought by Thersidamos, a returnee, against those who had seized his property succeeded, seemingly establishing that the Athenian seizure of Exile land would be overturned in some fashion (453 BCE). The Periklean Expedition to Krete changed that overnight, alongside the mass declarations of atimia the Athenians also seized almost all of the remaining Exile property in Attika. Communication between the two communities was non-existent in this time.

However, by the time of King Kyros III many of the original grievances between the two communities had become irrelevant, and there were reasons to approach the matter of reconciliation. Dikaia had become one of the most important poleis in the Hellenic world, but its citizens desired access to those ancient festivals and rites, and though they had become mighty indeed they still sought some kind of recognition, approval even, from the metropolis. They might have had the Dikaian Dionysia, but they wanted to regain access to the Athenian Dionysia. Athens, for its part, still mourned the loss of so many of its best to far away lands, and even as it remained a key naval asset to the Persians it still operated at reduced power compared to its prime. An amnesty was sought by the Exiles, and a return of their citizen rights, and the wounds of the past had sufficiently healed that the Athenians agreed to this in 398 BCE. The Akhaimenid monarchs of this time were relatively disinterested in the affairs of Hellenes, giving the satrap somewhat of a free hand to determine strategic matters for Hellas. The satraps of Kyros III’s time, and those that came afterwards, decided that a reconciliation between the Hellenes of West and East was desirable, and made a policy of encouraging this. This meant that there was no Persian interference with the Dikaia-Athens amnesty at all, indeed there was subtle encouragement. This was to have major repercussions in the time of Amavadatos as satrap, as he used the renewed connection between Athens and Dikaia as justification for his expedition to Italia in 350 BCE, which was the immediate precursor to his revolt against the Persian King the following year.

Athens as Judicial Capital​

We have seen various objections raised and alterations made by the Persians to Athenian justice. However, by the reign of King Ariabignes(397-341 BCE) it can be said that Athenian lawcourts had a high reputation in Hellas, both with fellow Hellenes and with the Persian administration. The fact that Kleisthenes’s reforms had not been overturned, that Athens remained a demokratic polis, gave an impression that the Persians had allowed the natural development of Athens to continue, and that Athens retained genuine freedom of speech. The Areiopagos in particular had a high judicial reputation. Throughout the early Akhaimenid period the Boule and the Areiopagos had competed for control over Athenian executive powers, each quietly blaming the other for the loss of the Persian War. By the reign of King Kyros III, however, the Persian administration had come to favour the Areiopagos, and this favour only increased as the Areiopagos became more respected for its judicial insight and impartiality. This then led Satrap Amavadatos to make Athens the centre of the satrapal judiciary in 354 BCE, directly integrating Athens into the upper level of satrapal administration for the first time. The Areopagos was now able to be called upon to judge cases arising from all different parts of Hellas, particularly when the Persians wished to give an impression that a truly just verdict had been reached. This decision can clearly been seen as a precursor to Amavadatos’ declaration of independence from the Akhaimenids, and directly tied the Athenians into the Amavadatid project. We can summarise Athenian justice in the Akhaimenid period by talking of fear and caution, but the tail end of Akhaimenid rule also showed what was to come afterwards; a return to self confidence, a notion that Athens was not simply a naval base to be kept under thumb but a trusted and favoured ally of their overlord.
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