Why Study Athenian Law?

Let’s have a break from game theory.  As some of you may know, I have a research program in ancient Athenian law. I’ve published one big article on the subject, have a book chapter forthcoming, have another paper or two or three in the hopper, and draw on it to understand other things on an appallingly regular basis, even when I write about things like constitutional law and jurisprudence.

 

But that might seem like odd behavior. Although I do read Attic Greek*---which is the main qualification for being able to talk about anything Athens without classicists mocking you**---I am no historian. And anyway, legal historians tend to focus on systems of law that are either part of our (American) legal tradition and the common law tradition that led up to it, or that are at least part of the traditions of other countries that we care about, such as the civil law tradition from Rome or the Islamic law tradition. 

 

But Athens?  Athens doesn’t really linger in a legal sense: almost nothing we do can be traced back to them (although I’d be tempted to make a claim for the jury trial and for the adversary process, and Hayek insisted that the Athenian concept of isonomia—legal equality—is the wellspring of the English ideal). Unsurprisingly, there aren’t many American legal academics who work in the area.  I think this is a mistake: we, qua discipline, are leaving knowledge on the table. 

 

So what is this Athenian law nonsense?  Is it just more Kant in Bulgaria? Have all those trees died in vain? (That cliff-hanger gets resolved after the fold.)

 

Here’s my defense of Athenian law.  Even though Athens isn’t really at the heart of our legal tradition, it is at the heart of our political tradition. The democratic self-understanding of the (male, native-born, not-enslaved) Athenians is remarkably similar to ours, not least because ours is in part directly traceable to theirs through the tosses and turns of intellectual history. And a lot of the other things they were concerned about were also concerns of ours. They, for example, were also concerned about keeping those with socioeconomic advantages from turning them into political advantages (although the worry ran less to campaign finance and more to coups).  They, too, were worried about balancing popular sovereignty with good decision-making---a fun exercise is to read Plato together with, say, my friend Jason Brennan.

 

For the legal academic enterprise, there’s a huge advantage to the conjunction of similar ideals and ends with very different institutions. For they give us an idea of the institutional space available with which our ends may be pursued.  Here’s my favorite example (so much so that I published it): in the U.S. and U.K., we go on about “the countermajoritarian problem,” and sometimes suppose that it reveals a tension between full-fledged democracy and the rule of law: we can either have the majority getting what it wants whenever it wants, or we can have a body of constitutional law interpreted by elite judges holding it within bounds. But then we get to Athens, where there was no elite judiciary—the “judge" was a jury of hundreds of totally ordinary citizens, chosen at random, with full and final authority over questions of both law and fact.  Yet the countermajoritarian problem still came up!  What are we to make of that? What was really going on, when the masses in Athens objected to being asked to consider the legality of their own actions, and can we learn from it in understanding our own countermajoritarian worries?

 

Sometimes, the solutions that the Athenians found to our problems may even be better than the ones we contemporaries use. For example, these days, when we try to “promote the rule of law” abroad, typically this means, among other things, finding a developing country that has just finished having a war and shedding a dictator, and loosing armies of lawyers on that country to professionalize their legal system. Yet Athens had a very amateur legal system, and we might think that amateur legal system was particularly functional when it came time to handle their own effort to rebuild the rule of law after a period of chaos and tyranny—in the beginning of the fourth century, after the Thirty Tyrants. I’ve argued as much in a forthcoming book chapter: the mass jury allowed Athens to reconstruct its legal system in substantial part because it gave ordinary citizens a good way to signal their commitment to legal methods of dispute resolution as well as to the particular commitments their democracy had undertaken.  Do we lose this value when we rush to instill professional legal systems in unstable states abroad?  Perhaps we do, perhaps we don’t, but studying Athens allows us to think about the possibility.

 

 

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* Badly.

 

** Legitimately.  Greek is a really wonky language, and there’s lots of indeterminacy in translating from it. But that’s poison for actually using original sources to understand something about the society the source material came from: some translator can produce a perfectly legitimate and sense-making translation of a passage that has multiple admissible meanings, and so it’s easy to get led down primrose paths by taking someone else’s translation too seriously if you can’t consult the original, or if you don’t know enough about how the language and culture works to know when a translation is suspicious enough to make the original worth consulting/when your argument might hinge on a particular word or two. Having said that, don’t let it that deter you from working in the area!  There’s lots of interesting stuff that can be said in a comparative fashion by drawing on the huge secondary literature produced by classicists and such to shed light on modern legal systems.