Abstract and Keywords
One of the most important decisions a litigant could make was the choice whether to submit his dispute to a private arbitrator or to go to trial. Private arbitration had several advantages because it provided a more flexible procedure and afforded the possibility of compromise solutions aimed at promoting good relations between the parties. By contrast, a trial was an all-or-nothing procedure, which created winners and losers. Nevertheless, there were disadvantages to private arbitration: the arbitrators might be reluctant to vote against a friend, or one of the parties might not agree to arbitration. Because public officials were not involved, documents might be lost. The institution of public arbitrators retained the advantages of private arbitration but avoided several of the disadvantages. Above all, it aimed to promote good relations between the parties and to avoid a bitter fight in court.
Interstate arbitration is identified by the sources as a genuine Greek tradition, attested to be from the Archaic period, that was employed and fostered by other powers, such as the Hellenistic Kings and Republican Rome. It allowed two parties in conflict to solve disputes by resorting to the judgment of a third party agreed upon by both. Its use contributed to the establishing of forms of international law, encouraging the poleis to identify a set of shared principles and rules, at least for territorial disputes, the most common kind of controversy.
Keywords: Athenian law, private arbitration, mediation, public arbitration, Athenian legal procedure, rule of law, Athenian institutions, arbitration, diplomacy, mediation, international disputes, international law
Private Arbitration at Athens
One of the most important decisions an Athenian litigant faced was the choice whether to submit his case to one or more private arbitrators or to bring a formal charge before a magistrate such as the Forty, the Archon, or the thesmothetai. If a litigant could persuade his opponent to submit (epitrepein) the case to one or more private arbitrators (Aeschin. 1.63; Dem. 33.14, 34.18), there were normally two stages in the procedure. The private arbitrators might begin by attempting to reconcile the two litigants (dialattein: Dem. 59.70; Is. 5.32). If the two litigants agreed to the solution proposed by the private arbitrator, they swore an oath to abide by its terms. If the litigants could not be reconciled, the private arbitrator then asked them if they would swear to abide by whatever decision he made (Is. 5.31). If they swore such an oath, the private arbitrator would swear an oath then make a decision, which would be binding on both litigants (Dem. 29.58; Is. 2.31; 5.31). If the arbitrator did not swear the oath, the decision might not be regarded as valid (Dem. 52.30). When more than one arbitrator was selected by the parties, it was normal to appoint an uneven number to avoid deadlocks (e.g., Dem. 59.46–47). Once the arbitrator made the decision, the dispute could not be brought to court. In fact, the law recognized that decisions made in private arbitration were binding as early as the late 5th century bce (Andoc. 1.88).1 We do not know what would have happened if a litigant attempted to submit a case to court for which a private arbitrator had made a decision before about 400 bce. On the other hand, we know that, sometime after 400 bce, the defendant in such a case could bring a paragraphe action and state that plaintiff’s action was inadmissible (ouk eisagogimos) because there had already been a decision by private arbitration (Isoc. 18.11).2
There were several advantages and disadvantages in private arbitration.3 One of the main advantages of private arbitration was that it provided a way for resolving two or more separate disputes at once. By contrast, an Athenian could only resolve one dispute at a time. For instance, in the dispute between Epaenetus and Stephanus, each party made a charge against the other: Stephanus accused Epaenetus of seducing the daughter of Neaira, and Epaenetus brought a public charge against Stephanus for wrongfully detaining him as a seducer (Dem. 59.64–70). The two men agreed to submit their dispute to arbitrators, who persuaded Epaenetus to withdraw his charge and Stephanus to drop his demand for payment of damages in exchange for a contribution by Epaenetus to the girl’s dowry. This kind of compromise solution could never have been reached in a case decided by a court. If both men had persisted in their pursuit of a trial, Epaenetus would have brought the public charge to trial, and Stephanus would have brought a private suit against each surety if Epaenetus refused to pay. An Athenian court did not have the option of taking both charges together and devising such a compromise solution.
There is another example of a compromise solution reached by mediation in the dispute between Phrynion and Stephanus about Neaira (Dem. 59.41–47). This compromise was more complex than the one between Epaenetus and Stephanus and contained specific clauses: first, the woman was to be free with power over herself; second, she should give back to Phrynion all the items that she had had when she left him except the cloaks, the gold jewelry, and the slave girls, which she had bought herself. Third, she should live with each man on alternate days (for a similar arrangement, see Lys. 4.1–2). Fourth, if they should persuade each other to make some other arrangement, that arrangement should be binding. Fifth, the person who kept her was to provide what was appropriate (for her maintenance). Sixth, they should remain friends with each other in the future and not recall past wrongs (μὴ μνησικακεῖν).4 One hastens to add that Apollodorus does not tell us what Neaera thought of this arrangement. Once more, this kind of compromise could never have been imposed by a court, which would have had to vote for one of the two men in each case. This compromise did not just aim to resolve the dispute, but also to promote cooperation between the two men in the future. In fact, several decisions in mediations or arbitrations include a clause requiring that the litigants maintain friendly relations in the future (Isae. 2.32; Dem. 36.15). One finds similar phrases in judgments rendered by foreign judges who resolved disputes by mediation (IG, xii, 61:95, lines 16–18; IKaunos 1, lines 10–11; I.Mylasa 101, lines 42–44; Die Inschriften von Priene no. 197, lines 10–12).
A good private arbitrator or group of arbitrators could craft a decision in which there were no winners or losers. The most elaborate example of a compromise solution is the agreement reached in the mediation between the two groups of Salaminioi in 363/362 bce.5 The Salaminioi from the Seven Tribes and the Salaminioi from Sounion chose five arbitrators (lines 6–8) who proposed a solution that was acceptable to both parties. This dispute was therefore resolved by mediation (lines 2, 81: diellaxan) without the arbitrators making a formal judgment. The settlement was then ratified by a vote the genos (lines 80–85), and an entrenchment clause was added to ensure that the settlement would endure (lines 95–97). This was a complex settlement with several clauses requiring both parties to share priesthoods, to make sacrifices in common, and to hold joint ownership of disputed properties.
A second advantage of private arbitration was that, if both parties cooperated, there could be a speedy resolution of the dispute. In Menander’s Epitrepontes, Syriscus and Daus ask Smiricrines to judge their dispute, Daus presented his case in a few minutes (249–292), Syriscus then presented his case in a short time (293–352), and Smicrines immediately gave his decision (353–354). In the arbitrations reported in the Attic orators, there may have been delays between the initial agreement and the decision of the arbitrators, but it does not appear to have been very long. On the other hand, the interval between the initiation of a private case and the decision in court might have taken several months. A third advantage was that the parties could select people who knew the relevant facts of the case and could provide an informed judgment without having to rely entirely on the statements of the litigants. For instance, when a litigant in a dispute with a neighbour about damage caused by a watercourse wanted to entrust the case to arbitration, one of the reasons he gave was to let men who know the area decide the case (Dem. 55.9).
The main disadvantage of private arbitration was that it required the consent of both parties. If one party refused to enter into arbitration, the other could not force him to do so. There are several examples. When Callias invited Andocides to submit their dispute about the daughter of Epilycus to arbitrators, Andocides refused (Andoc. 1.122–123. Cf. Dem. 47.43–45; Lys. 32.2; Aeschin. 1.62–64). Even if both parties were inclined to have recourse to a private arbitrator or if social pressure encouraged them to resolve their dispute in this way, they might not agree about the issue to be submitted to the private arbitrator. For instance, when Dareius confronted Dionysodorus about the repayment of a maritime loan, Dareius insisted that Dionysodorus pay the principal with the interest owed on the voyage from Egypt to Rhodes and offered to submit the dispute about the interest to be paid for the rest of the voyage to an arbitrator. But according to Dareius, Dionysodorus said that he would submit to arbitration only if the document containing the contract was torn up (Dem. 56.11–18). Because the two parties could not agree on the terms of the arbitration, the case ended up in court. In some cases, one of the parties might just not show up on the day of the arbitration (Dem. 40.16).
Another disadvantage of private arbitration was that the voting was done openly and not by secret ballot. This might create a problem when one of the arbitrators did not wish to offend a friend or relative by deciding for his opponent. This happened when Chrysippus and Lampis agreed to arbitration about a maritime loan. When the case was about to go to trial, friends persuaded the two litigants to submit the dispute to Theodotus, an isoteles or privileged metic (Dem. 34.18). According to Chrysippus, Lampis had previously stated that he had not received any money from Phormio and that Phormio had not placed any goods on the ship as he had promised to Chrysippus. At the hearing for the arbitration he changed his testimony, and Chrysippus claimed that he was able to prove that Lampis was lying (Dem. 34.19–20). According to Chrysippus, when Theodotus saw that Lampis was lying, he did not wish to give a judgment against him because he was a friend of Phormio, whose interests would have been threatened by a judgment against Lampis. Confronted with a difficult choice, he refused to make a decision (Dem. 34.21. Cf. Is. 5.33).
Because the litigants knew the private arbitrators and could learn about their views before their vote, they might also refuse to abide by their decision before they made their decision. This appears to have happened in the case of Demosthenes against Aphobus. Demosthenes was about to bring a private action for mismanaging his estate against Aphobus, but Aphobus convinced him to submit the case to three arbitrators, Archenaus, Dracontides and Phanus (Dem. 29.58). They apparently openly discussed their opinion of the case, and Aphobus learned that, if asked to decide on oath, they would condemn his conduct as guardian. Aphobus therefore refused to allow them to make a judgment.
Yet another drawback was that, because the procedure was informal and not in the hands of officials who could deposit documents in their offices or in the public archive in the Metroon, the documents from a private arbitration could get lost (on the Metroon, see archives, Greek).6 This is alleged to have occurred in an arbitration described in the Demosthenic speech Against Apaturius (Dem. 33.18). The speaker recounts how Parmeno and Apaturius agreed to submit their dispute to arbitration and drew up an agreement that they gave to Phocritus. Apaturius and Parmeno then chose one arbitrator each to sit with Phocritus. This agreement was given to Aristocles, who later claimed that his slave lost the document. There is no way of determining if the document was actually lost, but it is clear that such a situation might occur in private arbitration. Or a document might be forged or tampered with (Isoc. 17.23–31).
The final weakness of private arbitration was that there was no punishment for someone who provided false testimony before a private arbitrator. In the Demosthenic speech Against Phormio, Chrysippus recalls how Lampis lied before a private arbitrator but faced no penalty for doing so. This meant that if one litigant thought that his opponent won a favourable decision from one or more arbitrators, he had no means of appeal (Dem. 34.19).7 In an arbitration, if a litigant thought that a witness was lying, he could of course try to prove this to the arbitrators as Chrysippus did with Lampis (Is. 12.11–12 describes a case in which one side is accused of lying and the arbitrators realized this and voted against them), but if the arbitrators were not convinced by the argument and decided the case on the basis of false evidence, the litigant who lost the case had no means of reversing the judgment, which was binding. If he suspected that an arbitrator might decide against him on the basis of false evidence, his only option was to refuse to allow the arbitrator to make a decision if he had not already sworn to abide by the arbitrator’s decision.
Public Arbitrators at Athens
The institution of public arbitrators around 400 bce was an attempt to combine the advantages of both types of dispute resolution while avoiding the pitfalls of each.8 The public arbitrators were men in their 60th year who had been enrolled as ephebes and had been enrolled in their age group according to their tribe ([Arist.] Ath. Pol. 53.4). Everyone who was in this age group was required to serve as an arbitrator; if he refused, he could lose his rights as citizen. The only valid excuse was service in another office or absence abroad ([Arist.] Ath. Pol. 53.5). When an accuser brought a case before The Forty, these officials assigned the case by lot to one of the arbitrators ([Arist.] Ath. Pol. 53.5). It appears that only cases brought before The Forty would go before public arbitrators. This excluded several types of cases such as inheritance.
Like private arbitrators, public arbitrators started by attempting to mediate and were required to give a decision only when they could not reconcile the parties ([Arist.] Ath. Pol. 53.2). If both parties found the arbitrator’s decision acceptable, it would be binding and the case would be finished ([Arist.] Ath. Pol. 53.2). If one of the litigants was not satisfied with the decision, he could refuse to accept it and have the case sent to a court to be tried by judges selected at random ([Arist.] Ath. Pol. 53.2).9 All the documents presented to the arbitrator (witness statements, the challenges, the laws, etc.) would be placed in a jar (echinos) along with the decision and sealed so that neither litigant could introduce new evidence at the trial in court ([Arist.] Ath. Pol. 53.2; Dem. 52.31). If one party thought that the decision rendered by these judges was made under the influence of perjured testimony, he could try to have the decision overturned by bringing a private action for false testimony (dike pseudomartyrion). Another advantage of public arbitration was that if a witness had agreed to show up at the hearing and give testimony for one of the parties but did not attend, the party to whom he made the promise could bring an action for failing to testify (Dem. 49.19). Finally, if someone thought that a public arbitrator had done him an injustice, he could bring a charge before the entire board of arbitrators. If the arbitrator was convicted, he lost his citizen rights ([Arist.] Ath. Pol53.5; Dem. 21.87, 91). However, the arbitrator convicted by the board could have his case heard in court ([Arist.] Ath. Pol 53.5; Dem. 21.91).
Public arbitration incorporated the advantages of mediation and arbitration into formal private legal procedures without several of the disadvantages of private arbitration. It also gave the arbitrator the chance to question the litigants and elicit all the information he needed to make a decision (Dem. 27.50–51), and it allowed him to meet with the litigants several times before making a decision (Dem. 21.84; Dem. 49.19). The new system attempted to promote co-operation and the reduction of social tensions. The institution of public arbitrators who were tasked first and foremost with reconciling litigants and promoting social harmony provides additional evidence showing that the agonistic view of the Athenian courts is highly questionable.
Interstate Arbitration in the Ancient Greek World
Interstate arbitration was an ancient tradition in relations among Greek poleis. From as early as the 6th century bce, large and small Greek cities used foreign arbitrators to settle their disputes. More than 250 cases, including arbitrations and mediations, are attested down to the 1st century bce. These involved not only cities but also Hellenistic kings and Republican Rome. And its use continued, although in different ways and with different methods, after the consolidation of the Roman Empire.10 Arbitration therefore was a long-lasting practice that affected the relationship among the Greek poleis and between the Greek poleis and the great powers. As an instrument both of law and diplomacy, it can be analysed from different perspectives, most of them already studied in the pioneering essays of Bétant, Sonne, and Bérard and, especially, in the books of Raeder and Tod, which remain the only comprehensive works on the subject.11 The study of interstate arbitration makes a substantial contribution to our understanding not only of international law in the Greek world but also of the ideological and practical mechanisms that regulated relationships among states.12
Interstate arbitration is an instrument of diplomacy that allows two parties in conflict, usually two poleis, to resolve their dispute by entrusting the decision to a third party agreed on by both of them: a private citizen, another city, a king or, from the second century bce, Rome. The arbitrator conducts the trial (krisis) and delivers the verdict; the parties pledge to comply with the agreed procedures and the decision. An arbitration is therefore based on a twofold agreement reached by the parties, who come to an understanding both about the peaceful resolution of the dispute and about the choice of the arbitrator. Every procedure in the process receives its legitimacy and legal form from this agreement. After the basic agreement is reached, procedures are created to deal with a great variety of situations, which differ both in terms of context and in methods. In an attempt to classify types of arbitration, Raeder and Tod proposed a distinction, which soon became canonical, between compromissory arbitration and obligatory arbitration. Compromissory arbitration originates from the free agreement of the parties, without any previous pact, and is based on an agreement (compromissum), which is the outcome of the current situation. Obligatory arbitration enforces an arbitration clause included in a previous pact. These are found in the cases of alliances, treaties about isopoliteia, and agreements about judicial cooperation (symbolon). Such a clause compels the parties to resort to arbitration in case of future conflicts. In the majority of cases the reference to the city acting as arbitrator (polis ekkletos) remains generic, and all the detailed arrangements, if needed, would be decided in the future. Sometimes the parties defined in advance the procedure for the selection of the arbitrator: the treaty between Ephesus and Sardis (about 90 bce) includes one of the most interesting and detailed clauses of this kind.13
There is another category of arbitration, which is not rare and relates to another aspect of recent research. In such cases there is no preliminary agreement, but one of the parties appeals to a higher authority, which is also recognized by the other party, in the expectation that its own requests will be satisfied. The other party is then compelled to take action in response in order to protect its own interests. This happened in the Classical period with Athens and Sparta, in the Hellenistic period with Alexander the Great and his successors but also with poleis like Rhodes, which in certain periods acquired authority and power in the Aegean and in large areas of Asia Minor.14 This also happened later, in a more systematic fashion, with Rome. The procedure followed in all these cases is the usual procedure followed in arbitration. In such cases, even if the initiative rarely came from the external authority, and even if the parties agreed to comply with its decision, their freedom was inevitably restricted. Since the 18th century, many scholars have been reluctant to consider such cases as real arbitrations. Giovannini recently proposed a useful solution to this problem by making a distinction between “arbitrage par consentement mutuel” (arbitration by mutual consent) and “arbitrage imposé” (arbitration externally imposed).15 The second group includes all those cases involving a hegemonic power taking the role of arbitrator. Given their historical significance, these cases cannot be excluded from a study of interstate arbitration. However, the distinction proposed by Giovannini takes account of their (at least partially) different nature and acknowledges the need to analyse each type separately.
These are the modern views about arbitration. But how did the ancient Greeks perceive such situations and distinctions? The ancient sources show that the choice of a powerful arbitrator, whose authority could compel the parties to abide by the verdict, was clearly an option. At the same time, the ancient Greeks appear to be very aware of the fact that certain cases could give rise to disagreements and ambiguities, but they didn’t view this kind of arbitration differently. From the perspective of the polis, verdicts given by another more powerful city, by a king, or by Rome, had the same value as any other arbitration verdict. These verdicts gave legal recognition to a right and could be used as evidence in future arbitrations on the same (or related) matters. However, one of the major difficulties inherent in any arbitration was the enforcement of the verdict. The choice of a powerful arbitrator could guarantee enforcement, at least temporarily.
Any study of interstate arbitration must include an analysis of another, closely related, diplomatic procedure: mediation.16 Mediation was a diplomatic procedure that aimed to resolve a conflict by means of negotiation. Ager rightly argued against too broad a categorization of mediation and distinguishes mediation from other kinds of third-party diplomacy like facilitating solutions or good offices (where a third party encourages disputing states to find some agreement without taking an active role in facilitating a compromise).17 These two instruments are closely connected not only because of the common goal they pursue, but also because mediation is usually an integral part of the arbitration procedure. Interstate arbitrators were usually requested to make an initial attempt to reconcile the parties (in the sources we usually find the terms syllysis or dialysis, or verbs that originate from the same root). Only after a total or partial failure of negotiations, the court proceeded with the judgment. Mediation could be requested by the parties themselves, but most frequently the offer came from outside. Most of these diplomatic efforts ended in failure, but there were significant exceptions. The treaty signed in 196 bce (Milet. I 3 148), which ended the war between Magnesia on the Maeander and Miletus, contains the outcome of a mediation conducted by a joint delegation of Rhodians and envoys sent by other twelve poleis.18 The agreement, inscribed on stone, represents one of the most important documents for the history of Hellenistic Miletus.
The Disputes and the Parties
The most common kind of dispute submitted to arbitration concerned the ownership or the exploitation of a piece of land.19 Even within this category, we can detect different types of situations. In some cases, the dispute concerned a well-identified region, and the only task assigned to the court of arbitration was to recognize the rights to this region for one of the parties; in other cases, a new drawing of boundaries was also required. Sometimes such border areas corresponded to the so-called chorai eremoi, mountain areas used for pasturage or cutting timber. Sometimes it was inhabited and cultivated land, and the conflict involved private properties, which are mentioned in the descriptions of the boundaries provided by the courts. It appears that, in certain cases, disputes between private citizens gave rise to the conflicts. Our sources report boundary violations, exploitation or misappropriation of lands belonging to a neighbouring city, and even removal of the boundary stones (horoi). Sometimes the importance given to a certain region depended on other factors, which were essential (or perceived as such) for a community’s economy, like a stream, a harbour, salt works, a fishing area, or a brick factory.20 In other cases, the dispute concerned a sanctuary (or a group of sanctuaries), which could enhance a city’s reputation, but also bring significant material advantages; another issue in dispute might be the control of highlands and fortresses, which were valuable for the safety of a community.21 More rarely attested are disputes arising from unpaid sums of money or from debts contracted by a polis (a well-known phenomenon in the Hellenistic period), or for different kind of goods, such as a ship and its cargo in the case of the Cretan poleis of Lato and Olous.22 The courts could be required to decide more than one issue at a time.
Some documents provide evidence for extremely complex cases that had a major impact on the life of the communities. They confirm the judgment of Tod: “the Greeks . . . do not seem to have felt it necessary to exclude any specific category of disputes from the number of those which they regarded as susceptible of peaceful decision by an arbitral tribunal.”23
An interstate arbitration usually involved two cities, but we have also cases of disputes between a city and a foreign citizen. The best known and most interesting case of the kind involved the city of Calymnus and a wealthy family of Coan bankers who had lent money to the city and claimed to have never received the full payment for the debt. A Cnidian court ruled in favour of Calymnus (about 300 bce; Tit. Cal. 79).24 However, the sources also indicate other types of disputes, involving private citizens of different communities. The epigraphic evidence reveals the lively involvement of private individuals in interstate disputes related to agricultural and pastural land. Other situations of war, resolved by means of arbitration or mediation, give us a glimpse of disputes among citizens, which were still alive and had to be settled. In all these cases, the trials could not be brought before civic tribunals because they concerned the interests of the private individuals as well as those of their cities, and also because peace and harmony between the two communities depended on the satisfactory resolution of such disputes. The very nature of the dispute brought about the appeal to a polis ekkletos. This is, of course, not the typical situation but it appears likely that in certain cases and in certain serious circumstances, interstate arbitrators had to decide even this difficult kind of case.25
The Preliminary Agreement, the Trial, and the Verdict
The decision made by the parties to settle a dispute in a peaceful manner and their agreement about the identity of the arbitrator were the necessary first steps leading to an arbitration. The next step was the agreement about a series of details, which varied according to the nature of the dispute. Raeder and Tod called this compact a preliminary agreement or compromissum.26 To judge by the small number of surviving preliminary agreements, one can infer that such a compact was not usually intended to be inscribed on stone (or on other durable materials). The evidence for such a compact mostly comes from some allusions found in the ancient historians or from certain phrases in the published verdicts. The details of this compact had the function of providing legitimacy for the work of the arbitral tribunal.
The parties usually defined several crucial points: the task assigned to the ekkletos polis (mediation, arbitration or both); the kind of court they wanted (a large tribunal selected by lot among all the citizens or a small court, more suitable for territorial disputes requiring an inspection of the land and usually selected among the most prominent individuals of the community); and the procedure to be followed, which was different according to the kind of disputes. The most interesting case and the best example of the complexity that such agreements could involve is the arbitration involving the polis of Calymnus and the creditors of Cos discussed above. Such a text represents the first clear evidence for the procedure followed during interstate arbitration.
Once the polis appointed as arbitrator had agreed, the people voted a specific decree and selected the court. If the tribunal did not move and the entire procedure took place within the ekkletos polis, delegations from the two parties arrived at the appointed polis for the trial. Such delegations could be very large and include eminent persons in public life.
When the court had to travel, which often happened in territorial disputes, a board consisting of an equal number of representatives from both parties was appointed to bring the judges from their city and to escort them to the location where the trial would take place. These were the dikastagogoi. They performed their duties following precise instructions, and, once they arrived at the location where the trial would take place, they swore they had carried out their duties correctly.
Once established, the court made the required sacrifices and swore on the victims before starting the trial. After the oath, the proper legal procedure could begin, and the speeches of the parties took place. This step of the procedure was referred to by the technical term dikaiologia and included the hearing of the advocates for the parties, the depositions of the witnesses, and the presentation of documents. If the case did not require the court to change location, the entire procedure took place in the polis ekkletos. In the case of territorial disputes, if an inspection of the land was necessary, such an inspection had priority over the final hearing. It was called a periegesis or ephegesis, and the arbitrators performed it twice, together with the representatives of each party. Once the inspection was over, the court would sit where the final session was to take place, and the verdict would be pronounced. Such places were quite often sanctuaries. As far as we can tell, all these sanctuaries were closely linked with the contested land at the time of the dispute or had been in the historical or mythical past of the region.
At this point of the procedure the dikaiologia, the final debate, took place. Several documents testify that each party would be entitled to two speeches of different length. Indulgent arbitrators, however, could decide not to enforce the time limit and could hear the parties for longer periods. Such patience might be necessary in the case of especially complex disputes that involved many different issues. The so-called advocates of the parties had a prominent role during the debate. They had prepared the whole case and now they had the challenging task of convincing the court with their arguments and rhetorical skills. The advocates were usually citizens of the disputing communities, but sometimes a city could decide to ask (and pay dearly) for the services of foreign people renowned for their forensic skills.
After the debate, the court had to render its verdict, but before pronouncing their decision, the arbitrators usually tried to reconcile the parties. The sources mention some successful mediation and also some failures (as in the verdict by Magnesia on the Maeander in the dispute between Itanos and Hierapytna, I. Cret. III iv 9, lines 29–31). On many other occasions, however, the judges simply did not mention this part of their work in the text of the verdict.
Sometimes, before the verdict, one of the parties might decide to withdraw from the trial. Such an act did not invalidate the procedure, but usually implied the defeat of the party. How did the judges decide? The agreements reached by the parties usually assigned to the ekkletos polis the task of judging isos kai homoios (‘fairly and impartially’). Fairness and impartiality are desirable qualities in an arbitrator, both for conducting the trial and for pronouncing the verdict. Moreover, they should bind themselves to judge according ‘the most just decision’ (the gnome dikaiotate) or “according to the decision I consider the best one” (hos an moi phainetai beltista) (Tit. Cal. 79A, lines 28–29; FD III.1 362, line 41). The use of such concepts marks the difference between the procedures followed in the courts of a polis, judging according to the local law, and an arbitral court, which did not have international recognized and codified nomoi to appeal to for its judgment.27 Yet it is also certain that, at least in the case of territorial disputes, there were some general principles recognized by the Greeks to which interstate arbitrators might follow and which the parties could use to prove their claims. The arbitrators from Magnesia on the Meander listed them in their verdict:
men have proprietary rights over land either because they have received the land themselves from their ancestors, or because they have bought it for money, or because they have won it by the spear, or because they have received it from someone of the mightier. (I. Cret III. iv 9, II. 133–134)
This verdict is dated 112 bce, but such principles originated in the early Classical (or late Archaic period), and the Greeks consistently used the same kind of arguments to justify their claims to a certain territory.28
The verdict was not always the last step of the procedure. If the dispute concerned a piece of land, the arbitrators might be given an additional task: the demarcation of the borders. In these cases, a geometres could participate, a specialist who helped the judges with this technical part of their job.29 As Rousset has observed, marking the boundary by the setting up of boundary stones (horoi) was not a common procedure, even when the verdict included a physical description of the frontier established by the court. In a few cases, the verdict itself refers to this procedure. Both in case of successful mediation and of judgment, the courts delivered to the parties a document stating the outcome of the procedure. Such an act, which was always precisely dated, marked the end of the entire procedure of arbitration. Copies of a decision in an arbitration were often displayed in the great Panhellenic sanctuaries like Delphi and Olympia or in important regional sanctuaries.30
Once the entire procedure ended, the representatives of the parties went home. For the defeated, the hope remained of finding a chance to reverse the decision in the future. The winner was eager to memorialize his victory on stone or in bronze. The inscribed document was certainly the celebration of a glorious moment in the city’s history, but it represented, above all, the visible demonstration of a right officially recognized and established for the future.
Treaty between Ephesus and Sardis (OGI 437). To be consulted with the new edition by Umberto Laffi, Il trattato fra Sardi ed Efeso degli anni 90 a.c. Rome: Fabrizio Serra Editore, 2010.
Treaty between Magnesia on the Maeander and Miletus (Milet I 3 148).
Dispute between the Cretan cities of Lato and Olous (Chaniotis, Verträge, nos 54–56).
Arbitration between Calymnus and Cos (Tit. Cal. 79).
Arbitration between Itanos and Hierapytna (I. Cret. III iv 9).
Arbitration between Halai and Boumelitaia (FD III.1 362).
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(1.) The inserted laws at Andoc. 1.87 are forgeries; see Mirko Canevaro and Edward M. Harris, “The Documents in Andocides’ On the Mysteries,” Classical Quarterly 62, no. 1 (2012): 116–119.
(2.) The law about private arbitrators inserted into the text of Dem. 21.94 is a forgery. See Edward M. Harris in Mirko Canevaro, The Documents in the Attic Orators: Laws and Decrees in the Public Speeches of the Demosthenic Corpus (Oxford: Oxford University Press, 2013), 231–233.
(3.) Edward M. Harris, “Trials, Private Arbitration, and Public Arbitration in Classical Athens or the Background to [Arist.] Ath. Pol. 53, 1–7,” in Athenaion Politeiai tra storia, politica e sociologia: Aristotele e Pseudo-Senofonte (= Quaderni di Erga/Logoi), ed. Cinzia Bearzot, Mirko Canevaro, Tristano Gargiulo, and Elisabetta Poddighe (Milan: LED, 2018), 213–230.
(4.) On the meaning of this term see C. Joyce, “Μὴ μνησικακεῖν and ‘All the Laws’ (Andocides On the Mysteries 81–82): A Reply to E. Carawan,” Antichthon 48 (2014): 1–18.
(6.) James Sickinger, “Literacy, Documents, and Archives in the Ancient Athenian Democracy,” The American Archivist 62, no. 2 (1999): 229–246.
(8.) For the date see D. M. MacDowell, “The Chronology of Athenian Speeches and Legal Innovations in 401–399 B. C.,” in Revue Internationale des Droits de l’Antiquite 18 (1971): 267–273. On public arbitrators in general, see Hansen C. Harrell, Public Arbitration in Athenian Law (Columbia, MO: n.p, 1936).
(9.) One should not call this an “appeal”; see C. Pelloso, “Ἔφεσις εἰς τὸ δικαστήριον: Remarks and Speculations on the Legal Nature,” in Symposion 2015: Vorträge zur griechischen undhellenistischen Rechtsgeschichte, ed. D. Leão and G. Thür (Vienna: Austrian Academy of Sciences, 2016), 33–48.
(10.) Graham E. Burton, “The Resolution of Territorial Disputes in the Provinces of the Roman Empire,” Chiron 30 (2000): 195–215; and Julien Fournier, Entre tutelle romaine et autonomie civique: l’administration judiciaire dans les provinces hellénophones de l’empire romain, 129 av. J.-C–235 ap. J.-C. (Athens: École Française d’Athènes, 2010), 542–543.
(11.) Carolus Bétant, An fuerint apud Graecos judices certi litibus inter civitates componendis (Berlin: Berloni, 1862); Erich Sonne, De arbitris externis quos Graeci adhibuerunt ad lites intestinas et peregrinas componendas, quaestiones epigraphicae (Diss. Inaug., Gottingen, Germany: 1888); Victor Bérard, De arbitrio inter liberas graecorum civitates (Diss. Lutetiae Paris: E. Thorin, 1894); Anton Raeder, L’arbitrage international chez les Hellènes (Kristiania: Haschehoug, 1912); and Marcus N. Tod, International arbitration amongst the Greeks (Oxford: Oxford University Press, 1913).
(12.) Anna Magnetto, “Interstate arbitration as a feature of the Hellenistic polis: between ideology, international law, and civic memory,” in The Polis in the Hellenistic World, ed. Hennig Börm, Nino Luraghi (Stuttgart: Franz Steiner Verlag, 2018), 85–108.
(13.) Umberto Laffi, Il trattato fra Sardi ed Efeso degli anni 90 a.C. (Rome: Fabrizio Serra Editore, 2010).
(14.) Sheila L. Ager, “Rhodes: The Rise and Fall of a Neutral Diplomat,” Historia 40 (1991): 10–41.
(18.) Cf. Sheila L. Ager, Interstate Arbitrations in the Greek World: 337–90 B.C. (Berkeley, CA: Berkeley University Press, 1996): no. 109; for the chronology Michael Wörrle, “Der Friede zwischen Milet und Magnesia: methodische Probleme einer Communis opinio,” Chiron 34 (2004): 45–57.
(19.) Giovanna Daverio Rocchi, Frontiera e confini nella Grecia antica (Rome: L’Erma di Bretschneider, 1988): 69–91; Denis Rousset, “Les frontières des cités grecques: premières réflexions à partir du recueil des documents épigraphiques,” Cahiers du Centre Gustave Glotz5 (1994): 97–126; Kaja Harter-Uibopou, “Streit um Land oder Streit um Grenzen: Überlegungen zur zwischenstaatlichen Schiedsgerichtsbarkeit,” in Öffentlichkeit—Monument—Text: XIV Congressus Internationalis Epigraphiae Graecae et Latinae, 27.–31. Augusti MMXII.Akten,ed. Werner Eck and Peter Funke (Berlin: De Gruyter, 2014), 592–595.
(21.) Jeremy McInerney, “On the Borders: Sacred Land and the Margins of the Community,” in City, Countryside, and the Spatial Organization of Value in Classical Antiquity, ed. Ralph M. Rosen and Ineke Sluiter (Leiden, The Netherlands: Brill, 2006), 46–55; and for the numerous arbitrations involving Delphi, see Denis Rousset, Le territoire de Delphes et la terre d’Apollon (Athens: École Française d’Athènes, 2002).
(22.) Cf. Léopold Migeotte, L’emprunt public dans les cités grecques: recueil des documents et analyse critique (Paris: Éditions du Sphinx-Les Belles Lettres, 1984); and Angelos Chaniotis, Die Verträge zwischen kretischen Poleis in der hellenistischen Zeit (Stuttgart: Franz Steiner Verlag, 1996), 327.
(23.) Marcus N. Tod, International Arbitration amongst the Greeks (Oxford: Oxford University Press, 1913), 69.
(24.) Cf. Anna Magnetto, Gli arbitrati interstatali greci II. Dal 338 al 196 a.C. (Pisa: Scuola Normale Superiore, 1997), no. 14.
(25.) Sources and discussion in Anna Magnetto, “Le clausole giuridiche del trattato fra Hierapytna e Priansos e la presenza di privati cittadini nelle cause di arbitrato interstatale,” Annali dela Scuola Normale Superiore di Pisa 6/1 (2014), 475–503.
(26.) Anton Raeder, L’arbitrage international chez les Hellènes (Kristiania: Haschehoug, 1912), 259–283; and Marcus N. Tod, International arbitration amongst the Greeks (Oxford: Oxford University Press, 1913), 70–82.
(27.) Harris, Trials, Private Arbitration, 101–138.
(28.) Cf. Angelos Chaniotis, “Justifying Territorial Claims in Classical and Hellenistic Greece: The Beginning of International Law,” in The Law and the Courts in Ancient Greece, ed. Edward M. Harris and Lene Rubinstein (London: Duckworth, 2004), 185–213; Jean-Marie Bertrand, “Victory’s Verdict: The Violent Occupation of Territory in Hellenistic Interstate Relations,” in La violence dans les mondes grec et romain, ed. Jean-Marie Bertrand (Paris: Publications de la Sorbonne, 2005), 455–464; and Angelos Chaniotis, “Überzeugungsstrategien in der griechischen Diplomatie: Geschichte als Argument,” in Überzeugungs-strategien, ed. Angelos Chaniotis, Amina Kropp, and Christine Steinhoff (Berlin-Heidelberg: Springer, 2009), 147–165.
(29.) Denis Rousset, “Les frontières des cités grecques: premières réflexions à partir du recueil des documents épigraphiques.” Cahiers du Centre Gustave Glotz5 (1994): 108.
(30.) Klaus Freitag, “Ein Schiedsvertrag zwischen Halos und Thebai aus Delphi,” in Kult—Politik—Ethnos: überregionale Heiligtümer im Spannungsfeld von Kult und Politik, ed. Klaus Freitag, Peter Funke, and Matthias Haake (Stuttgart: Steiner, 2006), 211–237; and Denis Rousset, De Lycie en Cabalide: la convention entre les Lyciens et Termessos près d’Oinanda (Geneva: Droz, 2010), 74–75.