The information which we possess about Athenian law, though comparatively fuller, is still fragmentary. The sources from which our knowledge is derived are chiefly the following:—
(1) The Orators,—Antiphon, Andocides, Lysias, Isocrates, Demosthenes, Aeschines, Lycurgus, and others.
(2) Herodotus, Thucydides, Xenophon, Plato, Aristotle, as well as later writers, such as Cicero de Legibus, Plutarch, Aelian, Pausanias.
(3) Lexicographers, such as Harpocration, Pollux, Hesychius, Suidas, and the compiler of the Etymologicum Magnum, many of whom are of uncertain date, and to a great extent based upon one another. Their writings extend altogether over more than eight hundred years, from the second to the tenth century.
(4) The Scholia on Aristophanes, Plato, Demosthenes.
(5) A few inscriptions.
Our knowledge of a subject derived from such various sources and for the most part of uncertain date and origin, is necessarily precarious. No critic can separate the actual laws of Solon from those which passed under his name in later ages. Nor do the Scholiasts and Lexicographers attempt to distinguish how many of these laws were still in force at the time when they wrote, or when they fell into disuse and were to be found in books only. Nor can we hastily assume that enactments which occur in the Laws of Plato were also a part of Athenian law, however probable this may appear.
There are two classes of similarities between Plato's Laws and those of Athens: (i) of institutions (ii) of minor enactments.
(i) The constitution of the Laws in its general character resembles much more nearly the Athenian constitution of Solon's time than that which succeeded it, or the extreme democracy which prevailed in Plato's own day. It was a mean state which he hoped to create, equally unlike a Syracusan tyranny or the mob-government of the Athenian assembly. There are various expedients by which he sought to impart to it the quality of moderation. (1) The whole people were to be educated: they could not be all trained in philosophy, but they were to acquire the simple elements of music, arithmetic, geometry, astronomy; they were also to be subject to military discipline, archontes kai archomenoi. (2) The majority of them were, or had been at some time in their lives, magistrates, and had the experience which is given by office. (3) The persons who held the highest offices were to have a further education, not much inferior to that provided for the guardians in the Republic, though the range of their studies is narrowed to the nature and divisions of virtue: here their philosophy comes to an end. (4) The entire number of the citizens (5040) rarely, if ever, assembled, except for purposes of elections. The whole people were divided into four classes, each having the right to be represented by the same number of members in the Council. The result of such an arrangement would be, as in the constitution of Servius Tullius, to give a disproportionate share of power to the wealthier classes, who may be supposed to be always much fewer in number than the poorer. This tendency was qualified by the complicated system of selection by vote, previous to the final election by lot, of which the object seems to be to hand over to the wealthy few the power of selecting from the many poor, and vice versa. (5) The most important body in the state was the Nocturnal Council, which is borrowed from the Areopagus at Athens, as it existed, or was supposed to have existed, in the days before Ephialtes and the Eumenides of Aeschylus, when its power was undiminished. In some particulars Plato appears to have copied exactly the customs and procedure of the Areopagus: both assemblies sat at night (Telfy). There was a resemblance also in more important matters. Like the Areopagus, the Nocturnal Council was partly composed of magistrates and other state officials, whose term of office had expired. (7) The constitution included several diverse and even opposing elements, such as the Assembly and the Nocturnal Council. (8) There was much less exclusiveness than at Sparta; the citizens were to have an interest in the government of neighbouring states, and to know what was going on in the rest of the world.—All these were moderating influences.
A striking similarity between Athens and the constitution of the Magnesian colony is the use of the lot in the election of judges and other magistrates. That such a mode of election should have been resorted to in any civilized state, or that it should have been transferred by Plato to an ideal or imaginary one, is very singular to us. The most extreme democracy of modern times has never thought of leaving government wholly to chance. It was natural that Socrates should scoff at it, and ask, 'Who would choose a pilot or carpenter or flute-player by lot' (Xen. Mem.)? Yet there were many considerations which made this mode of choice attractive both to the oligarch and to the democrat:—(1) It seemed to recognize that one man was as good as another, and that all the members of the governing body, whether few or many, were on a perfect equality in every sense of the word. (2) To the pious mind it appeared to be a choice made, not by man, but by heaven (compare Laws). (3) It afforded a protection against corruption and intrigue...It must also be remembered that, although elected by lot, the persons so elected were subject to a scrutiny before they entered on their office, and were therefore liable, after election, if disqualified, to be rejected (Laws). They were, moreover, liable to be called to account after the expiration of their office. In the election of councillors Plato introduces a further check: they are not to be chosen directly by lot from all the citizens, but from a select body previously elected by vote. In Plato's state at least, as we may infer from his silence on this point, judges and magistrates performed their duties without pay, which was a guarantee both of their disinterestedness and of their belonging probably to the higher class of citizens (compare Arist. Pol.). Hence we are not surprised that the use of the lot prevailed, not only in the election of the Athenian Council, but also in many oligarchies, and even in Plato's colony. The evil consequences of the lot are to a great extent avoided, if the magistrates so elected do not, like the dicasts at Athens, receive pay from the state.