Faculty Bibliography
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Adriaan Lanni, The Debate over the Rule of Law in Classical Athens: A Legal Consciousness Approach, in 1 The Cambridge History of Democracy: From Democratic Beginnings to c. 1350 (Eric Robinson & Valentina Arena eds., forthcoming).
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The ancient Athenian democracy provides our first richly documented example of a self-conscious transitional justice policy. This chapter explores the classical Athenians’ complex response to the atrocities committed during the reign of the Thirty Tyrants at the end of the fifth century BCE. Following the return of the democracy, the Athenians carefully balanced retribution and forgiveness: an amnesty protected collaborators from direct prosecution, but in practice private citizens could indirectly sanction even low-level oligarchic sympathizers by raising their collaboration as character evidence in unrelated lawsuits. They also balanced remembering and forgetting: discussion of the civil war in the courts memorialized the atrocities committed during the tyranny but also whitewashed the widespread collaboration by ordinary citizens, falsely depicting the populace as members of the democratic resistance.
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This chapter discusses the practical challenges to scaling up restorative justice in the United States. Existing restorative justice programmes handle only a tiny fraction of the criminal docket. The chapter focuses on two related problems – the need to recruit enough facilitators to handle the increased caseload, and the difficulty of avoiding bureaucratisation and centralisation. It seems unlikely (and probably impossible) for programmes to meet the increased demand without abandoning a volunteer model and becoming dependent on state funding. Yet any shift towards professionalisation would appear to threaten the central premise of restorative justice, which is to return control over conflicts to stakeholders and local communities. I argue that this is a false choice. This chapter argues that recruiting part-time paid facilitators from the local community would improve restorative justice programming by making facilitators more representative and responsive to the local community. Using community-centred public defender services as a model, this chapter also argues that community-based programmes can accept state funding without sacrificing independence, flexibility and local responsiveness. Those designing restorative justice programmes should focus on safeguarding the core restorative justice principles of stakeholder control and informal, flexible and locally responsive processes rather than resisting all forms of professionalisation and institutionalisation.
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Adriaan Lanni, Erin V. Freeborn & Lucas Wilson, Restorative Justice Intersections with the Legal System in Massachusetts: Criminal Diversion to Programs in Prison, in The International Encyclopedia of Restorative Justice (forthcoming).
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Adriaan Lanni, Strafverfahren im antiken Griechenland, in Konfliktlösung in der Antike245 (Nadine Grotkamp & Anna Seelentag, eds., 2021).
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Those seeking to reduce mass incarceration have increasingly pointed to restorative justice—an approach that typically brings those affected by a criminal offense together in an attempt to address the harm caused by the offense rather than to mete out punishment. This Article is an attempt to think seriously about incorporating restorative justice throughout the criminal legal system. For restorative justice proponents, expanding these practices raises a host of questions: Does the opportunity to alleviate mass incarceration justify collaboration with a deeply flawed criminal legal system? Will the threat of criminal prosecution destroy the voluntariness and sincerity that is essential for a successful restorative process? Can restorative justice be successfully used in cases where the victim cannot participate or there is no identifiable victim, as in drug offenses? Will the process be coopted by bureaucratic impulses? Restorative justice skeptics may ask whether applying a restorative approach to the most serious crimes will jeopardize the deterrent value of criminal law and lead to outcomes that are vastly disproportionate. Those both inside and outside the movement will ask whether restorative justice can be implemented in a way that protects defendants’ procedural rights and is racially equitable. I explore the choices and trade-offs that would be involved in expanding restorative justice to significantly reduce incarceration. I argue that restorative justice can be expanded without significant adverse impacts on due process, racial equity, and proportionality. At the same time, vastly expanding restorative justice entails compromising some key features of restorative justice. I suggest that the disadvantages of expansion are significant, but are outweighed by the moral imperative to experiment with alternatives to mass incarceration.
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Adriaan Lanni, From Anthropology to Sociology: New Directions in Ancient Greek Law Research, in Ancient Greek Law in the 21st Century 157 (Paula Perlman ed., 2018).
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Adriaan Lanni (with Joshua Kleinfeld, Laura Appleman, Richard A. Bierschbach, Kenworthey Bilz, Josh Bowers, John Braithwaite, Robert P. Burns, R. A. Duff, Albert W. Dzur, Thomas F. Geraghty, Marah Stith McLeod, Janice Nadler, Anthony O'Rourke, Paul H. Robinson, Jonathan Simon, Jocelyn Simonson, Tom R. Tyler & Ekow N. Yankah), White Paper of Democratic Criminal Justice, 111 Nw. U.L. Rev. 1693 (2017).
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This white paper is the joint product of nineteen professors of criminal law and procedure who share a common conviction: that the path toward a more just, effective, and reasonable criminal system in the United States is to democratize American criminal justice. In the name of the movement to democratize criminal justice, we herein set forth thirty proposals for democratic criminal justice reform.
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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.
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"The classical Athenian 'state' had almost no formal coercive apparatus to ensure order or compliance with law: there was no professional police force or public prosecutor, and nearly every step in the legal process depended on private initiative. And yet Athens was a remarkably peaceful and well-ordered society by both ancient and contemporary standards. Why? Law and Order in Ancient Athens draws on contemporary legal scholarship to explore how order was maintained in Athens. Lanni argues that law and formal legal institutions played a greater role in maintaining order than is generally acknowledged. The legal system did encourage compliance with law, but not through the familiar deterrence mechanism of imposing sanctions for violating statutes. Lanni shows how formal institutions facilitated the operation of informal social control in a society that was too large and diverse to be characterized as a 'face-to-face community' or 'close-knit group'"-- Provided by publisher.
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The volume examines the public/private distinction in the cultures and religions of the ancient Mediterranean, in the formative periods of Greece and Rome and the religions of Judaism, Christianity and Islam.
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Contributors to 'The divine courtroom in comparative perspective' treat one of the most pervasive religious metaphors, that of the divine courtroom, in both its historical and thematic senses. In order to shed light on the various manifestations of the divine courtroom, this volume consists of essays by scholars of the ancient Near East, Hebrew Bible, Second Temple Judaism, early Christianity, Talmud, Islam, medieval Judaism, and classical Greek literature. Contributions to the volume primarily center upon three related facets of the divine courtroom: the role of the divine courtroom in the earthly legal system; the divine courtroom as the site of historical justice; and the divine courtroom as the venue in which God is called to answer for his own unjust acts.
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"The Greek Polis and the Invention of Democracy presents a series of essays that trace the Greeks' path to democracy and examine the connection between the Greek polis as a citizen state and democracy as well as the interaction between democracy and various forms of cultural expression from a comparative historical perspective and with special attention to the place of Greek democracy in political thought and debates about democracy throughout the centuries." --Publisher's website.
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Contemporary common-law jurisdictions employ the doctrine of binding precedent, that is, the requirement that courts follow legal rules announced in prior decisions rendered by courts of equal or higher rank. Classical Athens had no notion of binding precedent, but litigants in the surviving court speeches frequently refer to past court verdicts in making their arguments.
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"I want to focus on the practical implications of Barbara Fried’s challenge to the culture of blame. Can critiques of individual responsibility support efforts to scale back mass incarceration? In my view the most promising approach is not to concentrate, as Fried does, on the morals of our criminals but on the morality of our punishments."
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The Athenian democracy developed striking institutions that, taken together and separately, have long engaged the attention of theorists in law, politics, and history. We will offer a unifying account of the major institutions of the Athenian constitutional order, attempting both to put them in their best light and to provide criteria for evaluating their successes and failures. Our account is that Athenian institutions are best understood as an illustration of precautionary constitutionalism: roughly, the idea that institutions should be designed to safeguard against political risks, limiting the downside and barring worst-case political scenarios, even at the price of limiting the upside potential of the constitutional order. We use this framework to illuminate some of the distinctive features of the Athenian democracy: selection of officials by lot, rotation of office, collegiality, ostracism, and the graphe paranomon (the procedure for overturning an unconstitutional decree). Under some circumstances, precautionary constitutionalism is a useful strategy of institutional design. Under other circumstances, however, precautionary constitutionalism can go wrong in characteristic ways – by perversely exacerbating the very risks it seeks to prevent, by jeopardizing other values and thereby imposing excessive costs, or simply by creating futile precautions that fail the test of incentive-compatibility. We evaluate the precautionary institutions of the Athenian democracy in this light, and suggest that some failed while others succeeded. While selection by lot, rotation, and collegiality proved to be enduring and incentive-compatible institutions, ostracism perversely exacerbated the risks of tyranny and political domination it was intended to prevent, and the graphe paronomon collapsed into futility.
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Contemporary common-law jurisdictions employ the doctrine of binding precedent, that is, the requirement that courts follow legal rules announced in prior decisions rendered by courts of equal or higher rank. Classical Athens had no notion of binding precedent, but litigants in the surviving court speeches frequently refer to past court verdicts in making their arguments.
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Adriaan M. Lanni, Social Sanctions in Classical Athens, in Symposion 2011: Vortrage zur griechischen und hellenistischen Rechtgeschichte 99 (Bernard Legras & Gerhard Thur eds., Verlag der Österreichischen Akademie der Wissenschaften 2013).
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This paper identifies two distinctive features of ancient constitutional design that have largely disappeared from the modern world: constitution-making by single individuals and constitution-making by foreigners. We consider the virtues and vices of these features, and argue that under plausible conditions single founders and outsider founders offer advantages over constitution-making by representative bodies of citizens, even in the modern world. We also discuss the implications of adding single founders and outsider founders to the constitutional toolkit by describing how constitutional legitimacy would work, and how constitutional interpretation would be conducted, under constitutions that display either or both of the distinctive features of ancient constitutional design.
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This Essay explores the role that public legal proceedings played in the classical Athenian democracy of the fifth and fourth centuries B.C.E.
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This article presents our first well-documented example of a self-conscious transitional justice policy - the classical Athenians’ response to atrocities committed during the reign of the Thirty Tyrants - as a case study that can offer insight into the design of modern transitional justice institutions. The Athenians carefully balanced retribution and forgiveness: an amnesty protected collaborators from direct prosecution, but in practice private citizens could indirectly sanction even low-level oligarchic sympathizers by raising their collaboration as character evidence in unrelated lawsuits. They also balanced remembering and forgetting: discussion of the civil war in the courts memorialized the atrocities committed during the tyranny, but also whitewashed the widespread collaboration by ordinary citizens, depicting the majority of the populace as members of the democratic resistance. This case study of Athens’ successful reconciliation offers new insight into contemporary transitional justice debates. The Athenian experience suggests that the current focus on uncovering the truth may be misguided. The Athenian case also counsels that providing an avenue for individual victims to pursue local grievances can help minimize the impunity gap created by the inevitably selective nature of transitional justice.
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This article argues that attention to the expressive function of law suggests that the Athenian laws prohibiting former prostitutes from active political participation may have had a much broader practical impact than previously thought. By changing the social meaning of homosexual pederasty, these laws influenced norms regarding purely private conduct and reached beyond the limited number of politically active citizens likely to be prosecuted under the law. Some appear to have become more careful about courting in public while others adopted a conception of chaste pederasty that would not run afoul of the law. The prostitution laws may also have provoked resistance among a particular subset of elites, the apragmones, contributing to this group's deliberate disengagement from public affairs.
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Ancient Athens was a remarkably peaceful and well-ordered society by both ancient and contemporary standards. Scholars typically attribute Athens' success to internalized norms and purely informal enforcement mechanisms. This article argues that the formal Athenian court system played a vital role in maintaining order by enforcing informal norms. This peculiar approach to norm enforcement compensated for apparent weaknesses in the state system of coercion. It mitigated the effects of under-enforcement in a private prosecution system by encouraging litigants to uncover and punish their opponents' past violations. Court enforcement of extra-statutory norms also permitted the Athenians to enforce a variety of social norms while maintaining the fictions of voluntary devotion to military and public service and of limited state interference in private conduct.
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In the Rhetoric, Aristotle distinguishes between two different means of persuasion: artistic (entechnoi) proofs, which involve rhetorical arguments invented by the speaker, and artless (atechnoi) proofs, which are pieces of documentary evidence that exist independent of the orator's art. He lists five types of artless proofs: laws, witness testimony, contracts, evidence derived through the torture of slaves, and oaths. Aristotle's emphasis on rhetorical rather than artless proofs reflects the distinctive Athenian approach to the presentation of evidence. While most modern trials focus on the introduction of testimony and other forms of evidence, often in a highly fragmented form, Athenian litigants provided a largely uninterrupted narrative of their case, punctuated with the reading of evidence; in an Athenian court the evidence did not make the case but reinforced the claims and rhetorical arguments presented in the litigant's speech. Each litigant was responsible for gathering any evidence he wished to present to the jury at trial. There were two major types of action: private cases, in which the injured party brought suit, and public cases, in which anyone could bring suit. In cases involving an appeal from public arbitration—that is, in most private cases in the fourth century b.c.e.—each party was limited to the documentary evidence that had been presented at the arbitration and stored in a sealed jar for trial. During the trial, litigants generally introduced evidence by calling for the clerk to read the relevant document aloud to the jury. In private cases, and perhaps also in public cases, the reading of evidence did not count against the litigant's allotted speaking time.
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Detailed knowledge of the Athenian legal process is limited to the period from which forensic speeches survive, c.420–320 b.c.e. Athenian litigation followed an adversarial rather than inquisitorial procedure, which is to say that the opposing parties rather than a state official controlled the progress of legal proceedings and the presentation of evidence before a relatively passive decision maker (in this case a jury panel typically numbering between two hundred and five hundred). The trial, in which all evidence was presented orally, was the focal point of the legal process. The most distinctive feature of the Athenian legal system was its pervasive amateurism: with few exceptions litigants represented themselves in court before a jury of laymen who operated without the assistance of a judge or legal expert to instruct them as to the laws.
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Lanni surveys what is known about the law of war in ancient Greece, addressing the law's sources, content, and enforcement mechanisms. She argues that although there was a relatively effective law of war in ancient Greece, it did not encompass humanitarian ideals. Instead, the laws of war focused on protecting sacred objects and observances. Despite the central role played by religion and honor in the Greek laws of war, these laws were indifferent to considerations of mercy and the protection of noncombatants. Lanni next asks what insight the evidence from ancient Greece might give us in the ongoing debate over whether international law can ever truly restrain states. The traditional scholarly account of the Greek law of war would support the realist position. But Lanni argues that the Greek example, which includes instances where Greek states observed international norms that were clearly contrary to their interests, suggests one time and place where international law served as a meaningful check on state behavior.
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The XVth Symposium of the Society for Greek and Hellenistic Legal History, held in Salerno in September 2005, was attended by thirty-three scholars from ten countries. The lectures encompassed issues ranging from private to criminal law, and from public law to legal procedures. The result was three concentrated days, during which the confrontation between different methodologies brought a number of new and interesting perspectives to the debate. The first part of this proceedings volume is dedicated to Magna Graecia, followed chronologically by Archaic and Classical Law, Greek-Roman Law and Byzantine Law.
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In this 2006 book, Adriaan Lanni draws on contemporary legal thinking to present a model of the legal system of classical Athens.
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One of the most striking features of speeches intended for delivery in the Athenian popular courts is the presence of material that would be considered irrelevant or inadmissible in a modern courtroom. The interpretation of this tendency to include information that does not bear on the legal issue in dispute is central to our understanding of the aims and ideals of the Athenian legal system. In recent years, it has been argued that the courts did not attempt to resolve disputes according to established rules and principles equally and impartially applied, but rather served primarily a social or political role. According to this approach, litigation was not aimed chiefly at the final resolution of the dispute or the discovery of truth; rather, the courts provided an arena for the parties to publicly define, contest, and evaluate their social relations to one another and the hierarchies of their society. On this view, the extra legal arguments in surviving court speeches provide evidence that litigants were engaged in a competition for honor and prestige largely unrelated to the statute under which the suit was brought or the incident that ostensibly gave rise to the dispute. This approach to the Athenian legal system has been challenged by scholars who contend that the Athenian courts attempted to implement a rule of law.
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