Thucydides and Law

Darien Shanske, University of California Hastings College of the Law, has published Thucydides and Lawfulness, in Thucydides--A Violent Teacher? History and Its Representations (Georg Rechenauer & Vassiliki Pothou eds; 2011). Here is the abstract.

For the classical Athenians, legitimate law is public and yet usually arises from no person in particular, with the rule-proving exception being the laws that emerge from famous (and often mythical) lawgivers such as Solon. This notion of law that is public, yet indeterminately grounded, though commonly encountered in classical literature (e.g., in the Antigone), is hard to grasp. If the laws of Athens are public and controlled by the demos, both ideas that are central elements of Athenian democratic ideology, then how can it be sensible that the laws often, and often in particularly importance instances, are discussed as having an indistinct provenance? Such a paradoxical notion of law would seem to encourage lawlessness, though in fact what we know about Athens indicates the reverse. The Athenian historian Thucydides provides an exemplary demonstration of the nature of the Athenians’ paradoxical approach to the law. This is surprising. For one thing, Thucydides’ account, like that of other elite authors (like Plato or Aristophanes), seems to emphasize the lawlessness of Athens. Furthermore, at various points Thucydides’ narrative suggests that it is a simple thing to predict when laws will hold and when they will not; in particular, they will not hold in moments of extreme distress. It does not matter if they are ancient or unwritten or public. And yet a close reading of Thucydides demonstrates that lawfulness sometimes obtains even under the worst of circumstances, even and especially in Athens. It may have been surprising to Thucydides, as it seemed to have been to other Athenians and Greeks generally, but in a concrete way the Athenian polis was more resilient and more lawful than perhaps any other (and perhaps precisely because of the intensity of the Athenian attachment to its paradoxical notion of law). This point is easily missed, as there is a lack of an explicit explanation or theoretization of this phenomenon in Thucydides or elsewhere. Moreover, the nature of this insight is not such as to give much comfort or guidance to the would-be political reformer, but the strangeness of this approach only makes it more important.

Download the essay from SSRN at the link.