The Rule of Law in Athenian Democracy. Reflections on the Judicial Oath

Abstract

This essay examines the terms of the Judicial Oath sworn by the judges in the Athenian courts during the classical period. There is general agreement that the oath contained four basic clauses: (1) to vote in accordance to the laws and decrees of the Athenian people, (2) to vote about matters pertaining to the charge, (3) to listen to both the accuser(s) and defendant(s) equally, and (4) to vote or judge (dikasein) with one’s most fair judgment (dikaiotatê gnômê). Some scholars believe that the fourth clause gave judges the right to vote according to their con-science and to ignore the law if they found it unjust. The first part of the essay shows that this clause gave judges the right to make decisions solely on the basis of their most just judgment only where the laws gave no clear guidance. It was a default clause invoked only twice in the ex-tant orations; it was never used as justification to ignore the written laws. The second part ad-dresses the view that the courts took political factors into account during trials. Although some trials involved leading politicians, the courts were bound by their oath to decide whether the de-fendant was guilty of the charge brought by the accuser. The only part of a trial where a defen-dant might mention his political achievements or his public largesse was at during the assess-

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