The Hellenic Birth of the Western Legal System

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As elections, referendums, and by-elections roll by, we go to voting booths, number our choices on a piece of paper, and slide it into a box. To us, it’s an excuse to get a democracy sausage. But where did the skeleton of our democratic legal system originate? The answer is, Athens during the 5th Century BCE.

Foundations

In 507 BCE, Athenian leader Cleisthenes was a pioneer of what we now call democracy. He introduced a system of reforms that he called demokratia. Broken down, the word ‘demos’ means people, and the word ‘kratos’ means power. Those words together mean ‘power of the people’. This conceived the fundamental concept of participatory government based on accountability.

Political leader Pericles radically completed the steps to the first form of democracy by integrating Cleisthenes’ reforms into Athenian society. The most critical reform was Pericles' Citizenship Law (451 BCE). It restricted citizenship to free males with two married Athenian parents. If those criteria were satisfied, he was deemed a citizen of Athens, which included Pericles himself as the ‘first man’ of Athens.[i] It reduced aristocratic power by restricting inter-polis alliances formed through marriage, laying down the foundations of the Athenian democratic legal system.[ii]

Key Athenian Legal Institutions

Pericles transferred the Aerogpagus’ powers to the Dikasteria, the law courts of Athens.[iii] The Dikasteria was administered by a board of magistrates, meaning that no magistrate served alone, thereby distributing judicial power equally. He expanded the membership of the Dikasteria and introduced payment to jurors who served in it, encouraging civic participation analogous to modern jury duty. These democratic values Pericles held were crucial to the development of the concept of procedural fairness within the judicial branch of power.

Citizens over 30 could serve as members in the Ekklesia, the assembly where 6,000 citizens met to vote, debate and pass laws on diplomacy, war and everyday life.[iv] 1 member of the Ekklesia was selected to serve as the judge for each meeting, and their role was to ensure that the assembly’s procedures were abided by.[v] The Ekklesia served as the legislative branch of Athens, exercising powers analogous to those of Parliament. The collective nature of decision-making within the Ekklesia underpins a key constitutional principle: that legal power should derive from a democratically elected body rather than a single autocrat.

Citizens could serve in the Boule, a council of 500 citizens randomly chosen by lottery to implement the Ekklesia’s laws into Athenian society. The Boule was imperative, as it operated in a manner analogous to the modern executive branch in Parliament by managing public property, supervising the collection and expenditure of public funds, building public works, and overseeing the military. This was all heavily intertwined with everyday life, demonstrating the important role citizens played in government and its operations. Additionally, his introduction of payment to the Boule members further indicates that Pericles' values were critical to the development of the first form of a democratic legal system based on public service rather than aristocratic power. 

Moreover, the Strategia was a body of civic and military leaders (Strategoi) who oversaw the Athenian military. The Strategia played a crucial role by calling for assemblies that addressed Athenian foreign policy. They were elected annually by Athenian citizens and monitored by the Ekklesia and the Boule. All Strategos were constitutionally equal. This ensured that no member exercised more power than another, thereby enabling checks and balances among leaders. Members could be fined, ostracised (exiled) or sentenced to death if they fail[vi]ed to administer their duties. As a result, these penalties ensured that the strategia were held accountable by Athenian citizens. This is an important feature of all modern democracies, the rule of law, which ensures that leaders aren’t above the law.

Limitations and Legacy 

Despite the aforementioned democratic reforms, there’s a crucial limitation: the Athenian government did not recognise women, slaves and immigrants as Athenian citizens.[vii] This failure prevented them from participating in Athenian economic, political, and social life, thereby denying them civic participation. It is a notable example of the systemic exclusion of women, slaves and non-citizens from the legal system throughout human history. Therefore, the democratic reforms of Cleisthenes and Pericles must also be criticised for their failure to recognise the paramount role that women, slaves, and immigrants played in Athenian society and, by extension, in the Ancient and Modern world. 

While Ancient Greek democracy is discriminatory by modern standards, it was the springboard for our legal system and right to vote.[viii] It birthed the principle that a government should be by the people, run by the people, and for the people;[ix] illustrating that all governments must first be designed to serve the public.

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References

[i] Thucydides, History of The Peloponnesian War.

[ii]The Greeks - Pericles. (Web Page, 2026) https://www.pbs.org/empires/thegreeks/characters/pericles_p5.html. 

[iii]Athens, Agora, Heliaia - Livius. (Web Page, 2018) https://www.livius.org/articles/place/athens/athens-photos/athens-agora-heliaia/#:~:text=Heliaia%20(Greek:%20%E1%BC%A1%CE%BB%CE%B9%CE%B1%CE%AF%CE%B1):%20the%20supreme%20lawcourt%20of%20classical%20Athens.&text=Established%20in%20the%20first%20half,course%20of%20the%20fifth%20century.

[iv] Aristotle, The Athenian Constitution; Maria Panezi, A Description of the Structure of the Hellenic Republic, the Greek Legal System, and Legal Research (Web Page, November 2021) https://www.nyulawglobal.org/globalex/Greece1.html.

[v] Dave Roos, How People Voted in Ancient Elections (Web Page, 4 November 2022) https://www.history.com/articles/ancient-elections-voting.

[vii]What the ancient Greeks can teach us about democracy. (Web Page, 31 March 2024) https://news.stanford.edu/stories/2024/03/learning-about-democracy-in-ancient-greeheirce.

[viii]International Convernet on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 25; Justice Melissa Perry, Launch of the NSW Chapter of the Hellenic Australian Lawyers Association.' (Closing Address, Federal Court of Australia, 11 November 2016) [9] https://www.fedcourt.gov.au/digital-law-library/judges-speeches/justice-perry/perry-j-20161111#_ftn1.

[ix]Gettysburg Address The Everett Copy (Web Page, 2020) https://presidentlincoln.illinois.gov/exhibits/online-exhibits/gettysburg-address-everett-copy/#:~:text=...%20a%20new%20birth%20of,all%20men%20are%20created%20equal.