Law in Athens

Paul Gowder, University of Iowa College of Law & Stanford University Department of Political Science, has published Equality and the Rule of Law in Classical Athens. Here is the abstract.

In this paper, I defend three claims.

First, contra some classicists and legal historians, classical Athens during the democratic period substantially satisfied the demands of the rule of law (excepting its treatment of women, noncitizens, and slaves). I show that arguments to the contrary mostly represent an unduly narrow conception of what might count as law in Athens, one that inappropriately excludes common-knowledge social customs.

Second, Athenians saw the rule of law as serving the equality of mass and elite, oligarchs and democrats: there was no contradiction (again contra some classicists) between the democratic power of the masses and the rule of law. This equality consisted in two topoi frequently deployed in the Athenian legal and social discourse. First is the respect topos, according to which the laws represent respect for the democratic polis. To disregard them is to reveal one's lack of respect for the polis and one’s oligarchic character. Second is the strength topos, according to which the laws are the way that the democratic polis exercises its power: weak members of the masses cannot stand up to strong members of the elite alone, they need the backing of the whole community, and that backing is coordinated through the law; to undermine the law is thereby to undermine the political power of the masses.

Third, this connection between equality and the rule of law explains the most striking fact about Athenian legality, to wit, the otherwise puzzling effectiveness of the amnesty enacted for crimes committed under the Thirty Tyrants. The strength topos explains why the democrats in Athens refrained from avenging themselves against the Thirty despite their opportunity to do so: by doing so, they would have undermined the law, and thereby their own equality. The strength topos led the Athenians to take the internal point of view on the law.

The account of the rule of law deployed in this paper is that developed in my Equality Under the (Rule of) Law, also available on SSRN at http://ssrn.com/abstract=1918742. This paper serves the function, in part, of demonstrating the cross-cultural applicability of the conception of the rule of law developed in that paper.

Download the paper from SSRN at the link. 

Representations of Law in Ancient Athens

Adi Parush, Ben-Gurion University of the Negev, has published "The Courtroom as Theater and the Theater as Courtroom in Ancient Athens." It appears in volume 35 of the Israel Law Review (Spring 2001). Here is the abstract.

However, following a seminar I gave dealing with several philosophical-legal aspects of Greek tragedy, and an article I wrote about the relationship between the concept of guilt in Oedipus Tyrannus and the principle of strict liability in modern criminal law, I have found myself in recent years becoming increasingly interested in the unique culture which emerged in Athens during the classical period, particularly in the 5th century BCE. In order to clarify the roots of this unusual love, it is important first of all to emphasize the great significance of confrontation, contest and competition in Athenian culture, the agonal element in the culture of ancient Athens. Naturally, the parties confronting each other in a courtroom today also make an all-out effort to find ways of enlisting the sympathy of the judges who are to determine their fate, and undoubtedly they also try to influence the judges in ways reminiscent of actors in a theater performance, but I think that the theatrical element in the debates taking place in the courtrooms of classical Athens was stronger than that which typifies the debates at our trials, owing to the specific modus operandi of the Athenian legal system. Regarding this point we may thus say that the speech writers served not only as some kind of playwright, responsible for the words spoken by the parties in the courtroom, but also as director orchestrating the performance. Therefore each actor in the tragedy played several roles, and since the actors were all men, they also acted the roles of the women in the plays.

Download the entire article from SSRN here.