On the origins of popular court (heliaia) in archaic Athens
Russian Academy of Sciences
Institute of World History
It happens sometimes that a common point of view, while met another time, impels to state a question if it is really true. In a recent book (the first in Russian) on the Athenian popular court, its author, T.V. Kudryavtseva, says that in ancient sources (first of all, Aristotle and Plutarch) there is no doubt that Solon established the heliaia in Athens. Some years ago I also thought so. But, to be strict, the argument is not very firm.
Aristotle says that Solon gave the poorest Athenians (thetes) the right to take part in the court (Ath. pol. 7.3) and that he established the habit of appeal to the popular court (Ath. pol. 9. 1). But nowhere does he say that Solon founded such a court. Moreover, from his evidence we can make an indirect conclusion that the author of the Athenaion politeia considered the heliaia a body in existence already before Solon. Only an existing body can receive new functions and new members.
Plutarch (Sol. 18) is even more definite; he speaks explicitly of a pre-Solonian heliaia. According to him, Solon “raised the importance of the courts”. Surely only importance of an already existing body could be “raised”.
So the tradition, to read in Aristotle and Plutarch the thought of establishment of the heliaia by Solon, is nothing more than a historiographic myth born under the influence of common a priori premises. In the text of the sources such information is absent.
However, again to common opinion, there is a notion of Solon as the “father” of the heliaia in Aristotle’s Politics (1273b36 sqq.). But the expression in the treatise ta dikasteria poiesas ek panton should not obligatorily be interpreted in the sense that Solon established the popular court. Besides, in such a case Aristotle would have contradicted himself: the evidence in his Athenaion politeia runs otherwise, as we have seen. In all other cases there is agreement between the Politics and the Athenaion politeia.
There is a way to escape postulating a contradiction. The expression quoted can also (and with much greater probability) be interpreted in the sense that Solon allowed all citizens to be members of the court; accordingly, earlier the court had existed but included only some part of citizens.
I should emphasize that what I deny is not founding of the heliaia of Solon but the presence of information of this founding in the sources. If Solon ever did some such a thing, no ancient author indicated it. To see in Solon the “father” of Athenian popular court is traditional, but only because each of us has been so taught when being a student.
When enumerating “clear indications in our principal sources on creation of the popular court exactly by Solon”, T.V. Kudryavtseva cites also a passage from the Athenaion politeia according to which Ephialtes in 462 B.C. gave some rights earlier executed by the Areopagus Council “partly to the Council of Five Hundred, partly to the people and the courts (Arist. Ath. pol. 25. 2). Kudryavtseva thinks there is a contraposition here, but there is none. To be strict, there is contraposition here, but along a different line: not between the people (that is the ekklesia) and the courts (that is the heliaia), but between the Council of Five Hundred, on the one hand, and the people and the courts, on the other. In the Greek phrase the adversative construction men – de is posited exactly so. As to the people and the courts, they are connected with the coordinating conjunction kai that is never used in situations of contraposition but only in situations of rapprochement, uniformity, sometimes even sameness. Sj from the passage cited we also cannot conclude responsibly that for Aristotle the Assembly and the court were two distinct bodies.
So if Solon did not created the heliaia but only reformed it to a body consisting of all citizens, what can have been a hypothetical pre-Solonian heliaia? The answer is evident: it included not all citizens. It is possible to make this thesis maximally exact: it did not include thetes, the poorest citizens. Both Aristotle and Plutarch say expressis verbis that Solon admitted thetes to the court.
The situation appears quite the same as with the Assembly (ekklesia), for the latter body was open for thetes also from the time of Solon’s reforms. The analogy is so full that it compels to recall the much-discussed question of whether the bodies were really one and the same in Archaic Athens.
This question of identity or non-identity of the ekklesia and the heliaia is answered by scholars in different ways. I have always been among proponents of the view that the heliaia was initially a judicial session of the Assembly, not a separate body. When citizens gathered to legislate or to elect, they were the Assembly. When they sat to judge, they were the heliaia.
The generally simple level of political and legal development in early Athens does not allow conjecturing some sophisticated systems of various institutions, “branches of power”. Further, an important etymologic argument says that heliaia was in many Greek cities the term exactly for the Assembly. Further yet, in judicial speeches Athenian orators often identify the judges with the citizen body in toto.
If the heliaia had not coincided with the Assembly, then its members would have been among the Athenian officials (archai) and so, first, would have been somehow selected (through election or lot) and, second, would have rendered accounts to the citizens. But all this is manifestly wrong, for the dikastai (judges in the court) did not render any accounts to whosoever (Aristoph. Vesp. 587). They were unaccountable, and this feature makes them similar only to members of the Assembly. The judges weren’t also selected, despite a common opinion. There was no body of 6000 judges selected by lot every year, as I have demonstrated in earlier papers (and in the sources there is no one word about such a procedure). Last, if the court had been an institution separate from the Assembly, the latter (as the supreme power) would have been able to annul verdicts of the former, but this is not the case.
Naturally, even during the Archaic period identity of the Assembly and the court was not absolutely full. To be a judge, one had to satisfy an age qualification (30 years old) and also to swear every year. If an Athenian for one or another reason didn’t swear, he couldn’t be a judge during the year in question. But in general, the Assembly and the court are in our sources interchangeable structures, which can carry out functions of each other.
There is a view (especially defended by M.H. Hansen, and in Russia – by T.V. Kudryavtseva), according to which the heliaia from the very beginning had nothing in common with the ekklesia but was created later. But such a view leads to eclecticism and internal contradictions. To be repeated and emphasized is that in Aristophanes’ Wasps and in judicial speeches of Attic orators judges are identified with the demos. So they were no representatives of the people (as Athenian democracy was not a representative one).
T.V. Kudryavtseva produces any essentially new reasons supporting her opinion. She calls in question the etymologic argument mentioned above, but she offers no alternative solution. So either the word heliaia has no etymology at all (and that would have been very odd), or it is to be derived from helios, but this is surely an etymologia vulgaris.
Examples given by T.V. Kudryavtseva in support of her view that the Assembly could annul verdicts of the court do not work. After the overthrow of the “Thirty Tyrants” in 403 B.C. the people decreed that judicial sentences passed under that regime were not valid. However, as far as we can judge, under the “Thirty” the heliaia didn’t sit at all, and trials were conducted in extra-ordinary order: by the “Thirty” themselves, or by the Council, or otherwise. So, while annulling sentences passed under the oligarchy the Assembly annulled no sentences passed by the heliaia.
As to other cases cited, T.V. Kudryavtseva confuses pardon and amnesty with annulling judicial sentences, but those are quite different legal mechanisms. Or else we would have been compelled to admit that in many modern countries, where presidents can grant pardon and parliaments can grant amnesty, presidents and parliaments have a right to annul sentences passed by a court. But this would have been a rough legal (and political) mistake, as according to the law judicial power is independent from legislative and executive ones. There was no higher instance above the heliaia, no body to appeal against its sentences.
It has a sense to dwell in more detail on the question whether there was annual selection by lot of 6000 dikastai in Classical Athens. The view is quite common, but is it right? I can admit that in any given moment there were circa 6000 judges, but I don’t believe in a strictly fixed number, especially as an annual sortition is mentioned. I have no idea how could such a vast sortition have been conducted.
But the main thing is that no such sortition is evidenced by any ancient author. The procedure of filling courts, as described by the sources is quite different. Every citizen above thirty years could once a year swear at the Ardettus Hill, and then he could come any working-day to the court buildings and take part in a sortition (to be strict, in a series of sortitions). Accordingly, he got or did not get a right to hear a trial as a member of a judicial board.
Permanent controversy between supporters and non-supporters of the “fixed number” theory is always around only three pieces of evidence (as there are no others). A passage in Aristophanes (Vesp. 661 sq.) is especially important as it contains in the sole ancient literary work wholly devoted to the heliaia. But Aristophanes only says that in Attica there are no more (oupo pleius) than 6000 dikastai. The expression itself proves that the figure is approximate and not strict.
The orator Andocides (I. 17) claims that his father Leogoras was at law “in the presence of sixth thousand Athenians” and won the case. Andocides was a very much biased author, and his statements can hardly have any argumentative force. Moreover, in the case in question he was naturally interested in shielding his father. It should be noted that Athenians didn’t gather a court of 6000 judges even for much more significant cases. It would have been extremely strange if they (for what reason?) decided to gather such a huge court for a relatively contemptible case of Leogoras.
With the third text, by Aristotle (Ath. pol. 24. 3), the situation seems more definite. The text runs, “there were six thousand judges”. And surely, if everything told by such a great man as Aristotle is the truth in the highest instance, the question must be closed, once and forever. But things are again more complex than they seem to be. Chapter 24 of the Athenaion politeia is full of figures; some of them are correct but some are unreliable.
For example, the author says that in mid-fifth-century Athens there were 700 “internal” (endemoi) magistrates and 700 “external” ones (hyperorioi, that is in cities of the Athenian Empire). The numbers look strongly exaggerated, especially those relating the “external” officials. And the very coincidence of two numbers is too suspect to be right.
The whole chapter gives an impression of a borrowing from a biased pamphlet on Aristides. So I can repeat that we shouldn’t accept uncritically and without doubt its figures. I should add that in the received text of the Athenaion politeia in general there are serious problems with figures. And in any case we have no objections against rough calculation of members of the heliaia as 6000. But we object against a view that the number was fixed and reached through a total annual sortition.
An official limitation of the number of judges would have contradicted basic principles of Athenian democracy, as it would have meant something similar to a limitation of the number of citizens in the Assembly (an oligarchic, not a democratic feature). The members of the Athenian heliaia were not representatives – they were the citizen body itself in one of its functions.
 A paper delivered at the Fifth International Conference “Diritto romano pubblico e privato: l’esperienza plurisecolare dello sviluppo del diritto europeo” (June 2009, Suzdal – Moscow).
 T.V. Kudryavtseva, Narodnyi sud v demokraticheskikh Afinakh (Popular Court in Democratic Athens) (St. Petersburg, 2008), p. 21, 26. This opinion prevails in scholarly literature as a whole. See one of the latest examples: H.-J. Gehrke, “The Figure of Solon in the Athênaiôn Politeia”, Solon of Athens: New Historical and Philological Approaches (Leiden, 2006), p. 276–289.
 I.E. Surikov, “Nekotorye problemy istorii afinskoy geliei (Some Problems of History of the Athenian Heliaia), Ius antiquum, 16 (2005), p. 8–20; idem, Antichnaya Gretsia: politiki v kontekste epokhi. Arkhaika I rannyaya klassika (Ancient Greece: Politicians in the Context of the Epoch. Archaic and Early Classical Periods) (Moscow 2005), p. 131–132.
 On thetes and other Athenian property classes, and on their highly probable pre-Solonian origin, see: G.E.M. de Ste. Croix, Athenian Democratic Origins and Other Essays (Oxf., 2004), p. 5 ff.; K.A. Raaflaub, “Athenian and Spartan Eunomia, or: What to Do with Solon’s Timocracy?”, Solon of Athens: New Historical and Philological Approaches (Leiden, 2006), p. 406.
 The most detailed argument see: I.E. Surikov, Ostrakizm v Afinakh (Ostracism in Athens) (Moscow, 2006), p. 253 ff.
 M.H. Hansen, The Sovereignty of the People’s Court in Athens in the Fourth Century B.C., and the Public Actions against Unconstitutional Proposals (Odense, 1974); idem, Eisangelia: The Souvereignty of the People’s Court in Athens in the Fourth Century B.C. and the Impeachment of Generals and Politicians (Odense, 1975); idem, The Athenian Ecclesia (Copenhagen, 1983); idem, The Athenian Assembly: In the Age of Demosthenes (Oxf., 1987); idem, The Athenian Ecclesia II (Copenhagen, 1989); idem, “The Political Powers of the People’s Court in Fourth-Century Athens”, The Greek City: From Homer to Alexander (Oxf., 1991), p. 215–243; idem, Die athenische Demokratie im Zeitalter des Demosthenes: Struktur, Prinzipien and Selbstverständnis (B., 1995).
 The most detailed description: Arist. Ath. pol. 63 sqq. In modern literature see a useful reconstruction in: A.L. Boegehold et al., The Lawcourts at Athens: Sites, Buildings, Equipment, Procedure, and Testimonia (The Athenian Agora. Vol. 28) (Princeton, 1995)..
 Or was he not Aristotle? The problem of authorship of the Athenaion politeia is well-known and complicated.