Athenian power and prosperity in the fourth century B.C. was based largely on commerce. The complex litigation arising from commercial activities was heard in special maritime courts, dikai emporikai, the subject of this monograph. Using both ancient and secondary sources, Edward E. Cohen has pieced together the evolution of these courts and has explored their procedure and jurisdiction. He successfully treats the much-discussed problem of why they were termed "monthly," and makes it clear that "supranationality" was a feature of all Hellenic maritime law. He shows conclusively that their jurisdiction was limited ratione rerum, not ratione personarum, because a legally defined "commercial class" did not exist in Athens at this time.
Classicists and lawyers alike will find this a fascinating study. It not only contributes to our understanding of the Athens of Plato, Aristotle, and Demosthenes, but also points out that certain principles of Athenian maritime law are still imbedded in the modern international law of maritime commerce.
Originally published in 1973.
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Ancient Athenian Maritime Courts
By Edward Cohen
PRINCETON UNIVERSITY PRESSCopyright © 1973 Princeton University Press
All rights reserved.
Greek law failed of fruition. It was Roman legal science that could judge "every national law, with the exception of our own, disordered and almost absurd." Influenced by Greek philosophy, responsive to the challenge of vast empire, the Roman jurists developed a unique law of objective and humane magnificence. When in the sixth century A.D. Greek-speaking lawyers at Constantinople codified their law, it was Roman law written in Latin that became the world-influencing Corpus Juris Civilis. The classical legal heritage revived by the Glossators and Commentators of medieval and renaissance Western Europe was Roman. The Byzantine law that took root in Eastern Europe was Roman. The law that lives today even in modern Greece, under the Civil Code of 1940, is Roman, albeit enriched or adulterated by later developments in the Roman civil-law codes of Byzantium and Germany.
In this vast evolution and extension of Roman law, one branch alone preserves ancient Hellenic influence. The principles of Greek maritime commerce, operating during the Roman period through the famed Rhodian Sea Law and continuing in the mercantile legislation of the medieval age, now constitute the germinal cells of the complex modern international law of maritime com merce.
This should not be surprising. The Greeks relied heavily on the sea for transportation and communication. The maintenance of services and supplies depended upon adequate attention to the relationships, mutual and separate, among those using the sea and those making that use possible. This concern, in juridical form, constituted the commercial law codes of the Greek waters.
In Hellenic times Athens was the mercantile giant of the Aegean. Pericles in his funeral address could claim that Athenian greatness made available from everywhere everything, that it was the happy lot of the Athenians to enjoy as their own the goods of other lands no less than those of Attica. The Old Oligarch adds that command of the sea had gathered into Athens "everything desirable whether it be in Sicily or in Italy or in Cyprus or in Egypt or in Lydia or in Pontos or anywhere else.
In the fourth century, imperial power gave way to commercial supremacy, an emporic influence built upon geographical and mercantile reality, assisted by the ever-present political and maritime reality of the Athenian fleet. Her naval stranglehold broken forever in the Great Harbor at Syracuse in 413, Athens nonetheless maintained through most of the fourth century a fleet seldom paralleled by any and excelled by none. Of all peoples she depended most on imported foodstuffs
(Dem. 20.31). In turn she exported silver and agricultural specialties, especially wine and olive oil. The Peiraeus, with its three harbors and central location, was the port of call for much or most of Aegean trade. Her coinage continued its triumphant march around the Mediterranean world. Workshops :Hourished. The world's first private banks developed. A prosperous middle class and a wealthy group of nouveaux riches flaunted and increased their possessions.
In this commercial metropolis of fourth-century Hellas, maritime commerce reached maturity. Here there developed the naval loan [TEXT NOT REPRODUCIBLE IN ASCII] with its special characteristic of required repayment only on successful completion of a journey, and its utilization of ship or cargo as security. And here there developed the dikai emporikai [TEXT NOT REPRODUCIBLE IN ASCII], special commercial maritime courts.
At Athens in the fourth century particular offenses or disputes were handled in various courts clearly delineated and definitely limited in jurisdiction. But distinct from the multitude of separate civil categories stand the dikai emporikai, in procedure quite unique. Concerned only with cases arising from maritime commerce, in certain respects they are the juridical counterparts of the [TEXT NOT REPRODUCIBLE IN ASCII], the administrative officials of the harbor. In contrast to the general rule that "a foreigner has no rights," these courts were open to individuals of varied citizenship. Special provisions were available for assuring a defendant's appearance at the ensuing trial, and uniquely strong measures could be taken to enforce the judgment of the maritime tribunals. The courts were summary in procedure, rendering rapid decisions. In short, the commercial maritime courts of fourth-century Athens were marked by rapidity, supranationality and rigor.
The statement that the commercial maritime courts offered an especially rapid procedure generally is taken to mean that the dikai emporikai were dikai emmenoi [TEXT NOT REPRODUCIBLE IN ASCII] As usually defined, dikai emmenoi are cases in which final adjudication must occur within 30 days of the initiation of the action. To expedite summer trade these cases were heard only during the winter: [TEXT NOT REPRODUCIBLE IN ASCII] (Dem. 33.23). [The complaints for the cases involving maritime merchants are "monthly" from Boedromion until Mounichion, so that attaining their rights they might sail without delay.] Thus Athenian commercial maritime law was in accord with various modern systems that in practice offer procedural time-preference for certain commercial actions.
Delay in The Courts
The Athenian courts otherwise were subject to long delays. The litigation over the "crown," subject of the great speech by Aeschines and the greater by Demosthenes, came to trial some seven years after initiation of prosecution (Aeschines 3.219,254). While the statutory time limitation [TEXT NOT REPRODUCIBLE IN ASCII] appears normally to have been five years (Dem. 36.26-27), the case discussed at Dem. 38 allegedly came into court fourteen years after the relevant agreement had been made. Less spectacularly, Dem. 21 was argued some two years after the offense (§ 13), and Dem. 30 three years after the plaintiff had come of age (§§15-16). The speaker at Dem. 43 (§67) defends the long time that had passed before final adjudication, speaking of [TEXT NOT REPRODUCIBLE IN ASCII] ITL(unavoidable delays). With the exception of the litigation on the crown, however, all these cases are explicable on the basis of non-juridical considerations, e.g. unwillingness to prosecute immediately. The crown litigation is a baffling business, but political considerations certainly predominated.
There are, however, numerous other instances of delay in Athenian courts even after institution of suit. Thus Dem. 39 was delivered in all probability one year after the case originally went to arbitration. The speaker in Dem. 40 mentions an undesired wait of 11 years and a continuing delay. Even early in the fourth century (c. 397) the same situation prevailed: [TEXT NOT REPRODUCIBLE IN ASCII]. [Last year they had my suit quashed by claiming that they were maritime merchants; now the nautodikai have not adjudicated my complaint of the month Gam\lion] ( Lysias 17.5). In public prosecutions the situation was no better: [TEXT NOT REPRODUCIBLE IN ASCII] [I indicted him for "outrage" before the thesmothetes. But with time passing, the indictment being evaded, but still no trials, children have been born to him by my mother] (Dem. 45.4). And in the second speech of Apollodoros against Stephanos, a law is reported at 46.22: [TEXT NOT REPRODUCIBLE IN ASCII]. [Let the archon set hearing dates for inheritances and heiresses every month except Skirophorion.] The citation is significant, for it alludes clearly to the archon's inability to complete the hearing before leaving office, Skirophorion being the final month of the Attic year. A month was not enough to complete a hearing.
The Monthly Suits
In the dikai emmenoi (as defined) a decision supposedly had to be reached before a month's passage. The cases known to have been emmenoi are of great variety, from different areas of the law, and concerned with diverse matters. Thus Aristotle (Ath. Pol. 52.2) terms "emmenoi" the following cases:
[TEXT NOT REPRODUCIBLE IN ASCII] [Dowry] ([TEXT NOT REPRODUCIBLE IN ASCII]) available both in aid of the divorced woman whose husband failed to return the dowry, and the widow deprived by the heirs of her dotal interest.
[TEXT NOT REPRODUCIBLE IN ASCII] [Loan] ([TEXT NOT REPRODUCIBLE IN ASCII]) Only those Satisfied with a return not in excess of 12 percent (cf. Aeschines 3.104) could avail themselves of the expeditious procedure.
[TEXT NOT REPRODUCIBLE IN ASCII] [Capital] ([TEXT NOT REPRODUCIBLE IN ASCII]) suits on loans made to establish a business in the agora.
[TEXT NOT REPRODUCIBLE IN ASCII] [Assault] [TEXT NOT REPRODUCIBLE IN ASCII] a suit for violence done to the person of an individual similar to the [TEXT NOT REPRODUCIBLE IN ASCII] but leading to collection of damages by the plaintiff (see below ).
EPANIKAI Either suits arising from "friendly loans" or cases involving disputes in an [TEXT NOT REPRODUCIBLE IN ASCII] or both.
[TEXT NOT REPRODUCIBLE IN ASCII] suits involving "partnership" disputes or perhaps suits against "corporations."
[TEXT NOT REPRODUCIBLE IN ASCII] a suit involving slaves. Its precise nature is unknown ( see below ).
[TEXT NOT REPRODUCIBLE IN ASCII] a suit involving beasts of burden or draught. It is generally thought to parallel the "slave" suits, but its precise nature is no better known.
[TEXT NOT REPRODUCIBLE IN ASCII] "trierarchic" (naval command) suits. Again their precise nature is unknown.
[TEXT NOT REPRODUCIBLE IN ASCII] banking cases.
He continues (52.3) [TEXT NOT REPRODUCIBLE IN ASCII] [The eisagogeis thus judge these cases, introducing them "monthly," but the apodektai (have jurisdiction over) cases for and against tax farmers, being competent in those up to ten drachmai, and introducing the others into court "monthly."]
Also among the dikai emmenoi were of course the dikai emporikai and the dikai metallikai, the famed "mining cases."
Despite the range of cases subject to emmenoi provisions, modem scholarship has tended to avoid the question of ultimate purpose of the dikai emmenoi-it has been satisfied to note the speedy procedure without ascertaining the reason for the speedy procedure. However, there has been a parallel tendency toward assuming a commercial origin for the monthly suits, despite the clear separation of a number of dikai emmenoi from the commercial category.
The [TEXT NOT REPRODUCIBLE IN ASCII] [action of assault] stands out immediately as a suit belonging not to mercantile but to personal law. Harpocration defines it as a private suit arising from personal injury with variable damages.
However the dike aikeias had not always been emmenos. About 346/5 the Forty had jurisdiction over these suits. Accordingly the case described in Dem. 54 was submitted to public arbitration and was not heard under emmenos provisions. About 355, Dem. 43, also involving a dike aikeias, was handled in the usual way, with required public arbitration and hence no rapid procedure. But by the time Aristotle's Constitution of the Athenians was composed, the dike aikeias, in no way a commercial case, was included among the dikai emmenoi.
The [TEXT NOT REPRODUCIBLE IN ASCII] [dowry action] also has no necessary connection with commerce, and it too may have become emmenos at a late date. The case discussed in Dem. 40 concerns [TEXT NOT REPRODUCIBLE IN ASCII] [dowry] but underwent public arbitration (§§16-17), as did that in Dem. 41 (§12). Hence as late as 347 the [TEXT NOT REPRODUCIBLE IN ASCII] appears not to have been a monthly suit. Its inclusion in the category by the time of Aristotle shows further the ultimate non-commercial nature of the dikai emmenoi.
The [TEXT NOT REPRODUCIBLE IN ASCII] in some fashion concerns slaves. Traditionally it has been connected with the Solonian law holding an individual subject to double damages for harming a slave [TEXT NOT REPRODUCIBLE IN ASCII].
Similarly the [TEXT NOT REPRODUCIBLE IN ASCII] may be connected with damages done by beasts of burden. These cases are thus non-commercial.
The other suits are similarly varied. Tax collections are not necessarily mercantile. Eranikai might refer to "friendly loans" or to associations of individuals. Koinoniai could lead to disputes non-mercantile in nature. It is hard to classify disagreements about trierarchic duties in the category of commercial litigation.
Speculation on Motivation Underlying Monthly Suits
What factor then unites the monthly suits? Why were certain cases singled out for special handling? Surprisingly, aside from a vague feeling of mercantile motivation, no suggestion has been offered for the existence of the dikai emmenoi. There is, of course, no reason to posit a logical grand scheme for the origin and continuation of this summary procedure. In view, however, of the extensive and sharp Athenian delineations of trial procedure and magisterial jurisdiction, it seems reasonable to assume that the cases subject to emmenoi provision were for some reason considered individually or as a group especially suited to summary action.
Our lack of knowledge concerning most of the monthly cases makes it impossible to determine whether the various suits shared procedural similarities other than speed. If, for example, the epobelia was typical of emmenoi dikai, the dike aikeias might well have been placed in the category of monthly suits to discourage sycophancy by subjecting aikeias plaintiffs to the same risks of financial loss as in the public [TEXT NOT REPRODUCIBLE IN ASCII] It is possible then that the dikai emmenoi arose from some specific cause, perhaps mercantile commerce, and that thereafter individual suits were added to the category, as experience showed that the monthly procedure would be beneficial in a particular type of dispute. Hence arose the phenomenon of cases that earlier in the fourth century had not been emmenoi but had become so by the time of Aristotle [TEXT NOT REPRODUCIBLE IN ASCII.] The Athenians with their practical freedom from, or perhaps lack of, philosophical jurisprudence would have needed no Justice Holmes to teach them that "the life of the law has not been logic; it has been experience."
Nonetheless, two factors seem to link the various suits in the dikai emmenoi. One of course is commercial. Certain mercantile cases demand an expedient procedure in a court situation subject to long delays — in some areas business cannot be conducted unless disputes can be resolved with reasonable rapidity. Thus Calhoun notes for the mining cases, "The intent was obviously the speedy settlement of disputes that might hinder or retard the working of the mines, and it shows clearly the importance the state attached to this particular industry."
The state, however, attached importance not only to industries and enterprises but to ethical norms as well. Hence it is possible that certain offenses deemed of exceptional ethical importance were subject to summary procedure. Wrongs involving dowry, loans made between friends without interest, and assaults upon the person might be included in this category.
Rapid procedure claimed the attention even of philosophers and would-be reformers. Plato was against it: he saw extended litigation and repeated consideration as a prerequisite to a clear understanding of the dispute. Xenophon in the Poroi appeals for a swift procedure in maritime commercial disputes: ... [TEXT NOT REPRODUCIBLE IN ASCII.] ... [Prizes should be offered to the harbor magistrate who most justly and quickly resolves disputes] (Poroi,3.3).
The attempt to isolate the teleology of the dikai emmenoi, however, must remain speculative, uncertain, and perhaps unavailing. There are many commercial categories, e.g., sale and hire, that could have utilized a rapid procedure but were not among the monthly suits. In the same way there are moral infractions prior in objectionability to dowry-disputes — murder, for example 51 — that were not subject to the summary procedure.
One conclusion is sure: cases in the monthly category were placed there because some advantage was expected from their admission to summary procedure. From the evidence now available, more cannot be determined.
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Table of Contents
- Frontmatter, pg. i
- Contents, pg. v
- Preface, pg. vii
- Abbreviations, pg. ix
- JURISDICTION OF THE DIKAI EMPORIKAI, pg. 96
- HISTORICAL DEVELOPMENT OF THE DlKAI EMPORIKAl, pg. 158
- Index Locorum, pg. 199
- General Index, pg. 208
- Greek Index, pg. 225