Carugati @Ostrom_Workshop and Weingast on Decision-Making in the Athenian Law-Courts

Federica Carugati, Indiana University, Bloomington, Ostrom Workshop, and Department of Political Science, and School of Law, and Barry R. Weingast, Stanford University Department of Political Science, have published Rethinking Mass and Elite: Decision-Making in the Athenian Law-Courts. Here is the abstract.

In the Athenian law-courts, wealthy, educated, and powerful elites fought one another to prevail as leaders and advisors of the masses. Regulated by the masses’ ideals of a good society, elite competition pushed Athens toward stability, prosperity and cultural immortality. Or did it? This article puts pressure on the mass and elite model of Athenian litigation (M&E). According to the M&E model, litigation is a game played by elite litigants and mass audiences; elite litigants seek to win over their opponents as a means to gain honor; and the masses constitute a monolithic body with identical preferences. This model, we suggest, does not adequately explain the dynamics of law- and policy-making in the Athenian courts. Combining findings from two separate bodies of literature in classics and political science, we build a new model of Athenian litigation that modifies the M&E model in two fundamental respects: first, jurors’ preferences are meaningfully pluralistic, therefore litigants (who are not only elites) face uncertainty as to the precise position of the median juror; and second, litigants want to win, but they also have preferences over policy/legal outcomes. Our model identifies the mechanisms that enabled diverse interests to be advanced and negotiated in ways that fostered both stability and innovation in Athenian law- and policy-making.

Download the article from SSRN at the link.

Lanni on Collective Sanctions in Classical Athens

Adriaan Lanni, Harvard Law School, is publishing Collective Sanctions in Classical Athens in Ancient Law, Ancient Society (Dennis Kehoe and Thomas McGinn, eds., University of Michigan Press, 2016) (forthcoming).

This paper examines the use of collective sanctions in classical Athens. Collective sanctions have been interpreted in two very different ways: for some they reflect a distinctively primitive conception of collective guilt and responsibility; for others collective sanctions are an instrumental method of promoting deterrence. The paper argues that the Athenians understood collective sanctions primarily in instrumental terms. While the long pedigree of collective sanctions in Greek literature and culture made these punishments less morally repugnant to the Athenians than they are to moderns, the relatively rare uses of collective sanctions in classical Athens do not support a cultural account. At the same time, modern functional accounts only explain a small subset of Athenian collective punishments. Most functional accounts describe ancient collective liability as a form of indirect, delegated deterrence which encourages group members to monitor, prevent, and punish individual wrongdoers within the group. I argue that while this model applies to one form of collective punishment in Athens — group punishment of boards of magistrates — in most cases Athenian collective sanctions were aimed at direct, rather than indirect, deterrence.

The full text is not available from SSRN.

Law and Ethics in Greek and Roman Law: A New Publication

AIDEL (the Associazione Italiana Diritto e Letteratura) announces the publication of Law and Ethics in Greek and Roman Declaration, volume 10 in the series Law & Literature (DeGruyter). Link to the publisher's description here.

The Ancient Greeks' Ideas of Injustice and Guilt

Carlos Arturo Gómez Pavajeau, Universidad Externado de Colombia, has published Injusto Y Culpabilidad En Los Grandes Filósofos Griegos (Unfair and Guilt in the Great Greek Philosophers), number 91 in Derecho Penal y Criminologia (2010). Here is the abstract.

The period after the obscurantism of the Middle Ages was called, quite rightly, as the Renaissance. This expression refers, no doubt thinking of the great Greek philosophers, however, with regard to criminal law, very little has worked his connections with such thinking, it seems that there only influenced the illustration, with proposals from scratch and no reference to the past. With this contribution I want to prove that this is not entirely true, since, mutatis mutandi keeping some differences, the most important achievements of modern criminal law were explicitly or implicitly contained in the thinking of the great Greek philosophers.

Note that the full text is in Spanish.

The Greek and Roman Laws of Obligations

Helge Dedek, McGill University Faculty of Law, and Martin Schermaier have published Obligation (Greek and Roman), in the Encyclopedia of Ancient History (Roger Bagnall, Kai Brodersen, Craige Champion, Andrew Erskine, and Sabine Huebner eds., Oxford: Wiley & Blackwell, 2011). Here is the abstract.

Justinian’s Institutes defined the concept of obligation as follows: Obligatio est iuris vinculum quo necessitate adstringimur alicuius solvendae rei secundum nostrae civitatis iura (Iustinian Institutiones 3.13.pr): The obligatio is a "legal tie" (iuris vinculum) that binds us to render a performance to another person according to our laws. This definition timelessly expresses the nature of an obligation: a debtor owes a duty to the creditor. The content of such a duty, and exactly how it may or must be performed, are infinitely variable and determined by the event that gives rise to the obligation, not by the concept of obligation itself. When we examine the idea of an obligation, it is possible to distinguish between the debtor’s duty and the debtor’s potential liability. The concept of "duty" expresses that someone (the debtor) owes something to another (the creditor). The concept of "liability" adds that the debtor can be held responsible if he breaches such a legal duty: the creditor can seek the assistance of the courts if he does not receive what was owed to him.

Download the text from SSRN at the link.