Tracing the rule of law to classical Athens
Even law schools have tended to steer clear of the subject, notes HLS Assistant Professor Adriaan Lanni in her newly published book, “Law and Justice in the Courts of Classical Athens” (Cambridge University Press). “Most scholars think the Athenians were too primitive for a notion of a ‘rule of law,’” she says.
But Lanni presents a new argument: The Athenians understood the importance of the rule of law and applied it (especially in homicide and maritime cases). But instead of a rigid code of abstract rules, they favored a more amorphous (and hence more flexible) approach in which the circumstances of each case were weighed in light of the community’s sense of justice.
Through careful analysis and historical reconstruction, Lanni explores how this flexible system grew out of and was integral to the democracy of classical Athens. The Athenian legal system was run by laymen, not professionals. There were no policemen—victims were responsible for investigating their cases and bringing them to trial themselves—and the roles of judge, defender and prosecutor were usually filled by laymen as well. Wealthier litigants would often hire speechwriters to press their cases, and it is the hundred or so surviving speeches (typically dated between 430 and 323 B.C.) that serve as the primary basis for what we know of Athenian law.
The speeches, meant to appeal to a general audience rather than those well-versed in the law, were often written in a rambling, narrative style, and sometimes included details that would today be deemed irrelevant or inadmissible. Did the defendant come from a “good family” or was he descended from slaves? Did he have children who would be left destitute if he were punished? Had he committed crimes previously or otherwise shown that he was of “bad moral character”? Such procedures may seem a bit loose to us, but, argues Lanni, they reflect a “belief that a wide variety of contextual information was often relevant to reaching a just decision, [and] a political commitment to maximizing the discretion wielded by popular juries.”
Trials took place in public, near the main shopping district, where crowds gathered to watch the proceedings. Jurors came to their decisions with no instruction from the magistrate, and once a case was decided, no appeals were allowed. Serving on a jury was an important way that Athenian citizens could participate in the democratic governance of their city—so important, in fact, that after death, citizens were sometimes buried with their juror’s tickets, a sign of the seriousness with which Athenians viewed the role.
But the priority that Athenians gave to a democratic system of highly individualized justice had its downsides, as Lanni details. Because they chose not to rely on many established legal principles or precedents, the system was unpredictable. Not only was it hard to know exactly what constituted a punishable offense (which is perhaps why, in his work “Rhetoric,” Aristotle called for specific definitions of crimes like theft and adultery), but it was nearly impossible to predict how a jury would rule. Lanni shows how this both undercut the courts’ authority and led to a society rife with litigation. As she writes, “Thucydides tells us that foreigners called the Athenians philodikoi (‘lovers of litigation’).” And a character in a comedy by Aristophanes “looks at a map of Greece and does not recognize Athens because there are no sitting jurors visible.”
Though the litigiousness of Athenian society might seem to have some echoes in our own, it is the profound differences between Athenian law and ours that fascinate Lanni. Studying a successful system that relied almost exclusively on the knowledge and judgment of laymen offers perspective on our own, ultraprofessionalized legal system. “Athenian justice was no less purposefully democratic than its politics,” Lanni writes. “That it can seem amateurish or alien to us is a measure of the degree to which modern ‘democracies’ have abandoned popular decision-making with hardly a look back.”