On the Benefits and Costs of Legal Expertise: Adjudication in Ancient Athens

Legal expertise permits detailed laws to be written and enforced, but individuals with expertise may employ their special knowledge to skew decisions in privately beneficial directions. We illustrate this tradeoff in a simple model, which we use to guide our analysis of the legal system in ancient Athens. Rather than accepting the costs of expertise in return for the benefits, as do most modern societies, the Athenians designed a legal system that banned professional legal experts. And this was not because Athenian society was simple: The Athenians employed sophisticated contingent contracts and litigated frequently (to the point that the law courts featured prominently in several famous comedies). Furthermore, the Athenians recognized that forgoing expertise was costly, and where the cost was particularly high, designed institutions that made use of expertise already existing in society, employed knowledgeable individuals who were unable to engage in significant rent seeking, or increased the private returns to collecting publicly beneficial information. Although the Athenian legal system differs in many ways from modern legal systems, it nonetheless functioned very effectively. Investigation of the Athenian system serves to illustrate how important it is for institutional designers to consider legal institutions as a bundle, whose pieces must complement one another. Acknowledgments: For helpful comments, we thank two anonymous referees, Giuseppe Dari-Mattiacci, Valentina Dimitrova-Grajzl, and session participants at the 2011 meetings of the Southern Economic Association. For its generous support, Fleck thanks the Hoover Institution, where he was a 2010-11 W. Glenn Campbell and Rita Ricardo-Campbell National Fellow and the 2010-11 Arch W. Shaw National Fellow. 1 An Athenian trial was entirely in the hands of amateurs. The presiding magistrate was selected by lot, the [judges] . . . were drafted from the whole citizen body, any citizen could be a prosecutor, and the defendant conducted his own case. -Bonner (1969, 60) In Athens, . . . it is the litigants who are represented not simply as initiators but as the primary speakers and who present the court with their own (often tendentious) interpretations of the law. There is no independent judge to offer legal rulings, and the verdict is rendered by majority vote with no formal opportunity to discuss the case. -Todd (2005, 98) A singular feature of the Athenian courts is the complete absence from their working of professionals or experts. -Hansen (1999, 180)