Kotsiris, Lambros E.

Southern Methodist University

LAMBROS E. KOTSIRIS*An Antitrust Case in AncientGreek LawI. PrologueFor a Greek scholar to speak in the United States about antitrust lawis, as the ancient Greeks would say, "to bring owls to Athens." That isnot my intention. I will try simply to analyze an ancient Greek law casethat, in my humble opinion, could be considered as the first reportedantitrust case, a precedent of the universal jurisprudence and legal culture.Antitrust laws are the traditional instruments to preserve a competitiveeconomy. In modern times the laws developed from the thought thatcompetition is not by nature self-regulated in a self-correcting market,but must be imposed as a duty, as an order. t The antitrust idea is as oldas civilization, yet as contemporary as the human spirit. 2 It arises fromthe negative inclination of human nature under which men in all agessought to advance their own pecuniary interests by taking advantage ofthe necessities of their fellows, using unnumbered and unclassified meth-ods and mechanisms for the accomplishment of their purpose. Hoffmanwrote that antitrust jurisprudence is a kind of "poetry of law in whichsymbols frequently are exchanged for reality; . . . and where ... thetriers of facts are called upon to make judicial findings from the movingshadows of competitive facts." 3 And he further noticed an "evidentiary*Professor at the School of Law, University of Thessaloniki, Greece; Visiting Professorat the School of Law, Southern Methodist University, Dallas, Texas.I. See W. FIKENTSCHER, WETTBEWERB UND RECHTSCHUTZ 13 (1958).2. See C. BEACH, A TREATISE ON THE LAW OF MONOPOLIES AND INDUSTRIAL TRUSTS1 (1898). Loevinger, Antitrust Means Economic Freedom, in I ANTITRUST LAW AND TECH-NIQUES 143 (M. Hoffmann ed. 1963).3. Hoffman, Introduction, in I ANTITRUST LAW AND TECHNIQUES 3 (M. Hoffmann ed.1963).452 THE INTERNATIONAL LAWYERmusic in the phrase 'concert of action' " required for the violation ofarticle 1 of the Sherman Act. 4Poetry and music. It is true that in talking about antitrust we findourselves in the field of art, art not in its cultural sense, but in the Homericsense of "techne," of skill and cunningness. From the beginning of re-corded history we come across legislation and codes, concerned aboutthe exercise of economic power, trying to establish an equitable methodof suppressing combinations for the control of production and prices. 5One such case is a criminal public suit brought before an Athenian He-liastic court against a ring of "grain dealers" who violated laws regulatingthe corn trade. It is given to us by the orator Lysias6 in his famous speech"Against the Grain Dealers."II. The Case Against the Grain DealersA. LAWS AND REGULATIONSIn Athens, freedom of trade and competition was a general rule. It wasnot a rule of law based on a certain economic system but a consequenceof the basic principle that individuals were free to engage in commerce,unless public policy required certain restrictions. At the beginning of thesixth century the great legislator Archon Solon, willing to attack thedepression, proceeded with a so-called "new deal." 7 He cancelled allmortgages on lands and all debts and he forbade debt slavery for thefuture. He devalued the Athenian currency in order to facilitate trade andhe prohibited the export of grain.4. Hoffman, id. at 3.5. See generally Loevinger, supra note 2; Jones, Historical Development of the Law ofBusiness Competition, 35 YALE L. J. 905 (1926).6. Among the orators of the Golden Age, such as Andokides, Isocrates, Isaeos, Lysiasis designated as the "canon of attic grace," R. JEBB, SELECTIONS FROM ATTICA ORATORS,XV (1880); the "master of narration," 0. BUCHLER, DIE UNTERSCHEIDUNG DER REDENDENPERSONEN BEI LYSIAS 14 (1936); and the "norm of the rhetorical art," DIONYSIUS, DELYSIAS ch. 18. On the Lysias stylometry, see K. DOVER, LYSIAS AND THE CORPUS LYSIACUM94 (1968). He was the son of Cephalos, a Syracusan who had settled at Piraeus, the harborof Athens, by invitation of Pericles. Tradition places the birth of Lysias in 458-457 B.C. Hisfamily was prosperous, but by the Athenian Constitution neither his father nor Lysias norhis brothers could become Athenian citizens. They probably received the rank of "privilegedmetics" (isoteles), by which they were exempted from paying a small but humiliating taxon aliens and from being enrolled under the formal protection of a patron. As a residentalien, Lysias had no share in public life. Being isoteles he could write speeches for othersbut he could not deliver them in public himself. Speech writing became his regular profession.He must have died in the year 380 B.C. From Dionysius we learn that his genuine worksnumbered 230, but only 30 have been handed down under his name.7. On the reformations of Solon (translated in LOEB'S CLASSICAL LIBRARY, PLUTARCH'SLIVES 1, at 413 (1914)) PLUTARCH, SOLON, XV-XVI, especially on the Seisachteia (disbur-denment or discharge from all debts), T. NORTH, PLUTARCH'S LIVES OF THE NOBLE GRE-CIANS AND ROMANS 224 (1895).VOL. 22, NO. 2AN ANTITRUST CASE IN ANCIENT GREEK LAW 453Restrictions concerning export and import issues were defined byAristoteles 8 as the most important cases of the state wisdom. In Atticathe problem of the population's supply with grain was especially vital.The small area of the Attic Territory (about forty square miles) in pro-portion to its population (about half a million), and the Attic soil poor ingrain production, 9 left the city largely dependent upon foreign sourcesfor its corn supply. The main regions from which grain was imported wereSicily, Rhodes, Cyprus, and the Hellespont and Euxine lands. 10 The de-velopment of the corn trade and the expectations of large profits openedthe gates to speculators who knew how to corner the market. Mostlyforeign residents (metics) were engaged in the grain business. The im-portation was in the hands of wholesale dealers called emporoi and theretail dealers called sitopoles (grain sellers), or by way of contempt, kapiloi(hucksters).To protect the people from speculative conspiracies and combinationsof the grain importers and grain dealers, all those engaged in the grainbusiness were required to observe complex prohibitive laws and regula-tions. The laws provided that:" No land products, except olive oil, could be exported from Attica.t1" The import of cereals was facilitated by law; no Athenian citizen ormetic was allowed to carry grain from any source to any place exceptAttica 12 or to lend money on grain cargoes not destined to placesinside Attica. 13" Importers were required to sell. They were forbidden by law to storeup more than one-third of every cargo; two-thirds had to be disposedof in the market. 14" To prevent a monopoly of a large stock the law expressly forbadeany grain dealer to buy up more than fifty medimni15 (about 72 bushelsof grain) at a time. 168. RHETORIC, Book 1, 4, 1359b, 22 (translated in R. ROBERTS, RHETORICA (1924)).9. THUCYDIDES, Book 1, 2, (translated in H. DALE, THE HISTORY OF PELOPONNESIANWAR BY THUCYDIDES 2 (1855); PLUTARCH, supra note 7, XXII, I (translated in LOEB'SCLASSICAL LIBRARY, PLUTARCH'S LIVES 1, at 465 (1914)); T. NORTH, supra note 7, at 233.10. DEMOSTHENES, AGAINST LEPTINES XX, 31-33 ("the corn that comes from the BlackSea is equal to the whole amount from all other places of export").11. PLUTARCH, SOLON 24.12. DEMOSTHENES, AGAINST SACRITUS XXXV, 50 (translated in LOEB'S CLASSICAL LI-BRARY, DEMOSTHENES 1, at 311 (1935)); DEMOSTHENES, AGAINST PHORMIO XXXIV, 37(translated in LOEB'S CLASSICAL LIBRARY, DEMOSTHENES 1, at 261 (1935)).13. DEMOSTHENES, XXXV, 50.14. ARISTOTELES, ATHENIENSIUM RESPUBLICA 51, 4 (translated in THE WORKS OF AR-ISTOTLE (W. Ross ed., F. Kenyon trans. (1921)).15. One medimnus (a basket or measure) was about a bushel and a half.16. LYSIAS, AGAINST THE GRAIN DEALERS, XXII, 5.SUMMER 1988454 THE INTERNATIONAL LAWYER" The law forbade the grain dealers to charge more than one obol17above the cost-price for each medimnus. 18" The whole corn business was supervised by officers: the wholesalemarket by ten superintendents of the market, and the retail graintrade by a ten-member Board of Grain Commissioners called sito-phylaces. Their mission 19 was to see that the unground grain wasoffered in the market at a reasonable price, that the millers sold thebarley meal at a price proportionate to that of barley, and that thebakers sold their loaves at a price proportionate to that of wheat andof such weight as the Commissioners prescribed.Through that legislative network the grain was followed from its arrivalat the harbor of Piraeus to the hands of the last consumer.The penalty for violating the laws prohibiting grain monopoly wasdeath, 20 so the grain dealers took a great risk by breaking the law. Thatrisk was greater because of a class of unprincipled informers, called sy-cophants,21 who often brought them to trial hoping either to be boughtoff or to get a large fee if the suit was successfully prosecuted.B. THE FACTSThe winter of the year 388-387 B.C. 22 seemed to be a period of unusualdisturbances in the grain trade. The Hellespont passage, although underthe control of Athenians, was no longer safe, and the Spartans, havingdriven the Athenians from the neighboring island of Aegina, were a dangerfor the grain ships coming to the harbor of Piraeus. These risks in grainimports and the existing freedom of competition pressed the retail graindealers to bid against one another, raising the purchase price of grain andconsequently the price of bread. That winter a grain commissioner namedAnytus advised the grain dealers not to compete with each other and topurchase the grain at a reasonable price since the importers, accordingto the law, were obliged to sell at least two-thirds of their cargo. Heintended the advice to be beneficial to the grain dealers, but mainly tothe consumers.17. An obol (obolus) was an ancient Greek coin valued at one-sixth of a drachma (equiv-alent to U.S. $0.003). See C. ADAMS, LYSIAS: SELECTED SPEECHES 357-58 app. IV, Moneyand Prices at Athens (1905) (a drachma at the time of Lysias would pay a day's wages ofa carpenter or stone cutter and a day's salary of a senator).18. LYSIAS, supra note 16, XXII, 9.19. ARISTOTELES, supra note 14, at 51, 3.20. LYSIAS, supra note 16, XXII, 5, 33; LYCURGUS, AGAINST LEOCRATES 27 (translatedin LYCURGUS, THE SPEECH AGAINST LEOCRATES I I (A. Petrie ed. (1922)).21. LYSIAS, supra note 16, XXII, 1, 5.22. On the most probable time that the speech was delivered (386 B.C.) and prior to itsevents see C. ADAMS, supra note 17, at 213 n. I and accompanying text; LYSIAS (translatedin LOEB's CLASSICAL LIBRARY (1930)).VOL. 22, NO. 2AN ANTITRUST CASE IN ANCIENT GREEK LAW 455Following his advice grain dealers formed a kind of association, a "ring,"and agreed to cease competition. The bidding seemed to be identical, andthe grain prices were effectively down. Instead, of using the low pricesfor the benefit of the people, by passing the grain to them at a fair, legalprofit, however, they bought up large quantities of grain, more than thelaw prescribed. Further, they refused to sell to the people and preferredto store the accumulated grain in their storerooms. Consequently, theywere selling, at a higher than legal profit, only when grain prices rosebecause of rumors of war or rumors fabricated by the grain dealers them-selves, such as loss of ships, capture of vessels, blockade of trading ports,or rupture of the truce. The same practices were repeated in the followingwinter of 387-386 B.C.The combination of the grain dealers was revealed, probably by someimporters, through information given to the Prytanes, the executive com-mittee of the senate (voule, parliament). 23 The case was carried underthe form of impeachment (eisangelia), that entailed immediate summonsof the accused before the senate to answer to the charges made againstthem. When the matter was brought before the senate such furor arosethat some senators, under the influence of the popular indignation, wantedthe accused handed over to the Eleven (constables) for execution withouttrial.This demand was remarkable because the senate at that time had nolegal jurisdiction to inflict the death penalty prescribed for this offense. 24The case had to be tried by a law court. One senator, the speaker, foundsuch a proposition monstrous and persuaded the senate to have the graindealers tried in accordance with the law. His rationale was that if theyhad committed acts deserving of death the jury would be no less ablethan the senate to come to a just decision, while if they were innocentthey ought not to perish without trial. The senate adopted this view.During the preliminary hearing before the senate, the same senatorpressed the case against the accused. In so doing he wanted to clearhimself from any suspicion of abetting them. During this preliminary hear-ing the accused admitted the facts. They tried, however, using a remotiocriminis defense, to pass the guilt on to the grain commissioners (sito-phylaces), the dealers arguing that they followed the commissioners' ad-vice. The senate sustained the charges, and the case was submitted tothe heliastic trial court, presided over by the Thesmothetae.2523. At the time of Lysias, the senate consisted of five hundred members. Cleisthenes (in508 B.c.) moved the senate to consist of five hundred instead of four hundred as was providedby the constitution of Solon. See ARISTOTELES, supra note 14, at 21, 3.24. Id. at 45.25. The six juniors of the Ten Archons were called Thesmothetae and attended to suchcases as did not properly belong to some other Archon-magistrate. See PLUTARCH, supranote 7, at 24, 2; T. NORTH, supra note 7, at 238.SUMMER 1988456 THE INTERNATIONAL LAWYERC. THE SPEECH OF THE PROSECUTORThe same senator appears now in the heliastic court where he deliversthe accusation speech prepared by the great orator 26 Lysias. The speechis clear and logical. The language is as simple as the thought. The speakerdoes not want to appear as a professional prosecutor; hence the speechis free from ornament or rhetorical artifice. The defendants' acknowl-edgment that they had violated the law left for the prosecution the taskof rebutting their contentions that they acted for the public interest underthe direction of the commissioners.The speech is divided into four parts: the preamble, the proposition,the argumentation and the epilogue. In the preamble the speaker narratesbriefly how he was involved in the case and what had occurred at thesenate. In the proposition the speaker calls the whole group of the accusedto the stand, but addresses his question to only one of them, the supposedleader of the unlawful ring. In response to the speaker's question, had heviolated the law buying up grain in excess of the fifty measures (medimni),the defendant acknowledges the accusation arguing that "I bought it upon an order of the commissioners." 27The speaker now proceeds to the argumentation, answering the alle-gations of the defendants. He rejects the contention that they acted onan order with the following arguments:I. Only advice, not an order, was given to the grain dealers and only by onecommissioner named Anytus. The other grain commissioners of the cityknew nothing about it. Actually, in the previous winter when corn was dearand the grain dealers were outbidding each other, this commissioner didadvise them not to compete with each other for the benefit of the people butdid not order them to buy up the grain and store it.28 To strengthen hisargument, the speaker produces Anytus himself as a witness. The advicewas to combine against the importers, keep the wholesale price down, andbuy the grain in common. This "advice" to buy in common is turned by thegrain dealers into an "order" to buy up, to buy from various sources.2. The allegation of the grain dealers that they had the understanding of thecommissioner in the previous year, however true that may be, is irrelevant. 29The defendants are accused of acts of the present year (387-86) and by thesenate of the present year.3. The statement of the defendants that they acted on an order, even if it weretrue, would not justify their unlawful practice, but would amount to anaccusation of the commissioners. 30 In that case, the speaker argues the lawshould apply without distinction to both the violators and those who orderedits infringement.26. See distinctions between oratory, rhetoric and consultantlogographos made by K.DOVER, supra note 6, at 175.27. LYSIAS, supra note 16, XXII, 5.28. Id. at 8, 52-56.29. Id. at 9, 61-63.30. Id. at 10, 65-67.VOL. 22, NO. 2AN ANTITRUST CASE IN ANCIENT GREEK LAW 457The speaker anticipates the defendants' contention based on compen-sation or "resistance" (antistases), namely that they infringed on the lawin good faith in order to keep the prices down and to sell the grain to thepeople at the cheapest price. 3 1 Such a contention cannot be sustained:because the grain dealers were charging six times the legal profit; becauseit is known that the grain dealers avoid contributing to common burdenswhen a special levy is needed, making poverty their pretext; because ofthe impudent rapacity of the grain dealers who trade on the misfortunesof the city.32 The speaker now emphasizes this point: in bad times thegrain dealers store the grain and refuse to sell it so that the people areglad if they can purchase at any price however high, "and thus in timesof peace they become our besiegers." 33Terminating his argumentation the speaker calls for the jury not to showany sympathy or mercy to the defendants and to condemn them because:" An acquittal of the accused who have confessed to breaking the lawwould be an affront to the importers against whom the accused havecombined;34" Lawsuits like this one are fights of the most common interest; 35" Their conviction is needed not only for what they have done but alsoas an example for the future, because in their business many preferto risk their own lives every day than cease to gain illicit profits. 36In a short epilogue the speaker closes his speech by saying that theconviction of the accused is in accordance with justice and the interestof the people. 37The sources do not give any answer to the verdict, but there must belittle doubt that it was conviction.III. EpilogueMuch more than any common resemblance between yesterday andtoday, especially as regards underlying social problems in antitrust anal-ysis, antitrust laws and trials coincide in their basic premise with thesaying of Lysias: this trial is an "agon koinotatos," a fight of utmostcommon interest. Men in the earliest times have been confronted by thesame fundamental problems and have tried to solve them. Viewing thepast in the light of our present experience and knowledge we may seehow far we have come, what has changed, and what straight line moralor legal ideas mankind follows in its way.31. Id. at I1, 72-74.32. Id. at 14, 88-89.33. Id. at 15, 96-98.34. Id. at 17, 114-16.35. Id. at 19, 128-29.36. Id. at 20, 135-36.37. Id. at 22, 155-56.SUMMER 1988

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An Antitrust Case in Ancient Greek Law

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An Antitrust Case in Ancient Greek Law

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