Ignorance before the law in Ancient Athens

Maricar asked:

Under Athenian law, one could not be prosecuted for a crime if it could be shown that the action was done unwillingly, under duress, by threat of force, or from ignorance. If Socrates’ view is correct, how could anyone be responsible for his or her actions? If one acts under the influence of passion or other non-rational motives, is one morally responsible? Can one be “willfully ignorant” of the law?

Answer by Jürgen Lawrenz

Don’t mind me saying that you are under a misapprehension of the nature and purpose of ancient Athenian law. We are all used to our modern conception, which (true enough) goes all the way back to the ancient world — but to the Roman world. And the difference could not be more drastic. Rome was a nation state, later an empire, and emphasised nationhood and citizenship from the very beginning; therefore Roman law was written out in detail and covered the minutiae of public life. It also bred a profession dedicated to its maintenance and interpretation. Now take (nearly) all this away and look at the modest tribal conglomerate of a quarter of a million people, whose constitution was written in verse, which invited other leaders to tinker with it — in the main to restrain vendettas and keep the peace by means of a few dozen regulations and injunctions. Hence the codes on public display at Athens were notoriously broad and papered over mostly the cracks in the social norms and conventions which constituted the “unwritten law” of the state. The latter, however, always had priority over the written law and were considered binding on the citizenry and indeed taught not from the law, but the stories of Homer and the poets.

Consider further that they had no police, no jails, no permanent courts, no justice department, so that law enforcement was in the hands of those who from time to time sat in the assembly. Consider therefore in the Sokrates trial the paradoxical notion that the accused was to stipulate his own punishment! Or that Aristides had a vote in the trial that condemned him to exile. These issues come out very clearly in the majority of law suits that have been preserved for us from that time. In their overwhelming majority these cases revolve around offences against the norms of behaviour expected from a citizen; and in a surprising number of instances, the jury was addressed by accuser or defendant in terms of his ‘honour’, i.e. merit accrued by him, as a make-weight to justify or nullify whatever the allegations were.

So the examples you quote above (duress etc.) are indeed frequently used as mitigating circumstances; but ignorance of the law is almost never mentioned, and in the few cases where it occurs, carried little weight, as a defendant might easily have recourse to moral norms (“Oh! I didn’t know Kleisthenes outlawed clobbering a fellow who tried to seduce my wife; in our demos we’ve done this for generations”. He would probably be let off with a small fine (unless he had too many enemies on the jury)).

This answers incidentally another question lurking behind yours: Why did Aristotle examine 158 law codes of the Greek poleis before writing his Ethics? For precisely this reason — that customs varied much from one to another and his purpose was to extract a normative denominator that might suit all of them in the pursuit of individual happiness and prosperity. Whereas ignorantia juris non excusat was a Roman legal principle reflecting the very different needs of a nation state which had one law code whose custodian was, incidentally, the Popular Assembly — so Mr/Mrs Average would certainly be expected to know as much of it might affect their own lives (or else have recourse to a lawyer!).

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