oa Fundamina : A Journal of Legal History - Rationality and irrationality in the ancient Greek law of procedure
The paper deals with what today we would call rational and irrational procedural methods in Greek adjudication in archaic times. In Draco's law of homicide dating back to 621-620 B.C., I see the first known move from deciding the outcome of a case by imposing purgatory oaths towards voting by a panel of judges. Although deciding on the proper wording of a purgatory oath demanded a great deal of legal experience on the part of the state authorities, the outcome of the trial depended on the irrational decision of the culprit himself to brave the wrath of the gods if he committed perjury. In Draco's law we find, firstly, the method of imposing contrary oaths (diomosiai) on each litigant (which explains the dikazein of the officials, the basileis). It was therefore not the oaths that were decisive, but the vote of the fifty-one ephetai who decided which oath was the better one. The party who won the case was the one best able to persuade the judges, and in this way, reasoning achieved a new level. This was the origin of the more rational classical Athenian procedural law. In this sense, I restored the text in the much disputed lacuna in IG I3 104.12 from the diomosiai mentioned in Ant. 6.16.
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