ATHENIAN LAW
(Background for Apology and Crito)

In Athenian law, any citizen could bring a charge against any other citizen, claiming that the actions of the accused were harmful to the city. All they needed to do was make an accusation in writing and bring it to the authorities. Some crimes, including murder and the treatment of one's parents, were considered religious offences and had to be brought to the authority specifically charged with religious offences. Since Socrates was accused of recognizing gods other than those recognized by the city, his was a religious offence.
Once the accusation was made, the case was tried before a jury of citizens. The size of the jury depended on the seriousness of the charges. Socrates’ jury had 501 members. The trial had two parts. In the first, the charges were made by the accuser(s)—no lawyers were used—and the defendant had to answer them. The jury then decided between the two cases and brought a verdict of guilty or not guilty. In order to prevent frivolous cases the accuser was fined if he did not get a fifth of the votes. If the verdict was guilty, the second part of the trial began. Each side proposed a penalty, and the jury voted on which to accept. They could not propose a different penalty: they had to decide between the two proposals.

In modern law, there is a distinction made between questions of law and questions of fact. That is, there are two questions: (1) (Fact) Did the accused do what he/she is accused of doing? and (2) (Law) Is the action really illegal, and is the trial fair? Judges decide on matters of law, juries on matters of fact. Questions of law are usually based on laws enacted by legislating bodies, such as Congress, but there are also legal traditions (common law) and legal precedents of various kinds. In Athenian law, there were laws enacted by the Assembly, but there was a large body of unwritten law, in the form of the citizens' sense of what was appropriate behavior. As a result, the juries did not merely decide on the basis of what the law was, but often on what they thought it should be. This seems to have been the case in Socrates’ trial. An American jury making decisions in this way would very likely be overruled by an appeals court, but in Athens it was perfectly legal.

In 403 B.C.E., to end some very serious political conflict that occurred after their loss of the Peloponnesian War, the Athenians passed a general amnesty. With very few exceptions, nobody could be prosecuted for acts committed before 403. One reason the accusers in Apology are as vague as they are is that any specific action they could accuse Socrates of would have happened before that date. What they were primarily concerned with was Socrates’ association with anti-democratic elements, including Plato’s kinsman Kritias and Alcibiades, who was so morally incompetent that he managed to betray both sides in the Peloponnesian War.

Athenian democracy was different from what we ordinarily think of as democracy. For one thing, the right to participate was restricted to adult male citizens, who were a minority in the city. It was a direct democracy: laws were largely made by the citizens themselves, not by elected representatives as in modern democracies. There was no legal limit on legislative power (such as we have in the Bill of Rights) except a vague law that could punish harshly anyone who proposed “illegal” laws. What counted as illegal laws was up to a jury to decide, assuming someone was accused of proposing one. There was very little in the way of elections. Most political jobs were given out by a combination of rotation and drawing lots. When Socrates was president of the Council, it was because it was his tribe's turn to preside and his lot came up (see Apology, p. 438). Generals and Admirals, however, were elected.

Socrates' main objection to democracy was that it gave power to too many people who had never thought about how to conduct a government and who could easily be persuaded to do anything. For example, during the war, Alcibiades persuaded the Athenians to send a naval expedition to Sicily. Afterward, they realized that most of the voters had no clear idea where Sicily was, why it should be invaded, or even how much it would cost. The expedition was a very expensive failure. Our system of representative government is supposed to prevent that kind of thing happening, because we are to elect representatives who will use good judgment. A look at the advertising in any political campaign will show how easily voters can be manipulated. It was even easier in Athens.
In the Apology, Socrates offers almost no defense on the question of fact. The exception is that he does remind the jurors that he participated in the public worship of the gods. Otherwise, he simply tries to show that his questioning of the citizens was not harmful to the city, but rather did it good. This viewpoint is carried over into Socrates’ proposal of a penalty. The prosecution hoped that he would propose exile, but if he were to do that it would amount to agreeing that he had broken the law. On the other hand, escaping from prison was against the law, which is one reason he was unwilling to do it.

Note: This account is simplified to cover the law as it applies to Socrates' trial.