Matt Simonton
The Hellenistic age saw the development of many novel institutions, among which the use of foreign judges looms large. “Foreign judges”—or, to use the Greeks’ own terminology, dikastai who served as an “external legal panel,” xenikon dikastērion—were men sent from one polis to another in order to resolve intractable internal disputes. Although ill-attested in the literary sources, we know a lot about the details involved in employing foreign judges, largely through the efforts of epigraphers (Robert 1973, Crowther 1994, 2007, Hamon 2012). In this paper, I propose that examining the phenomenon of foreign judges through a New Institutionalist lens helps make sense of its origins. In particular, I argue that the creation of the institution of foreign judges represents the solution to a collective action problem endemic to the average small polis of the Hellenistic world, and that this solution had to come from outside the poleis themselves, namely from the Hellenistic kings.
As multiple scholars have observed, foreign judges were normally called in when numerous controversial cases had arisen between fellow citizens, often involving contracts and debts. In a small Greek polis, the panels of average citizens that made up the usual democratic court system might be considered too partial or too overwhelmed to decide such cases. In a situation that was emblematic of polis life, citizens required a third-party arbiter who could adjudicate between them, but, being jealous of the perquisites of citizenship, they were not willing to endow members of their own community with that kind of unilateral power. The situation was a classic collective action problem: although citizens knew that they would be better off collectively under a system of adjudication than without, individually no one was prepared to yield power for fear that he would be “suckered” by the rest. Plutarch, in a rare literary attestation of foreign judges, well states the problem: “[The Greeks] required another’s justice [allotria dikaiosynē] as they would anything else of life’s necessities that didn’t grow naturally in their own land.” They were hampered, however, by “mutual distrust” (Mor. 493a-b).
Thus, when the solution came, it was from without: from the Hellenistic kings, who had both third-party status and the power to impose their will. Scholars have long recognized the involvement of Hellenistic rulers in sending foreign judges, especially, but not exclusively, in the early stages of the institution (Gauthier 2011, Debord and Fröhlich 2018). From a New Institutionalist perspective, we can see more clearly why the kings’ involvement was necessary to kickstart the institution, given the Greeks’ collective action problem. At the same time, it is unlikely that the kings used the institution as a form of control (Cassayre 2010): everyone’s interests were served by providing the Greek cities with a working legal system and a feeling of self-government. Nonetheless, the origins of foreign judges are an illustration once again of the involvement of (unequal) power in the formation of institutions (Bates 1988, Moe 2005).