Pettit - PHIL 1502

Athens and the Rule of Law

Abstract

• Classical Athens is often regarded as an exemplar of the rule of law.

• While it placed importance on law in public life, it fell short of fully realizing this ideal due to inadequate institutional resources.

• Lacked sameness in law interpretation across executive and judicial branches.

Introduction

• Martin Krygier emphasized the significance of the rule of law.

• His works have enhanced understanding of the concept and its political ramifications.

• The paper aims to engage Krygier by defending a historical claim about Athens' shortcomings in establishing a full rule of law.

h and Its Institutions

• Reforms of Callisthenes:

  • Built upon Solon's earlier reforms.

  • Empowered ordinary citizens over rulers, establishing a democracy (power to the demos).

• Democratic Mechanisms:

  • No conventional electoral processes; major roles assigned to lotteries.

  • Yearly selection of representatives through lottery ensured the involvement of all tribes in public life.

• Representation:

  • Executive council (boule) of 500 and a larger judicial panel (dikasteria) of 6000.

  • Only the assembly (ecclesia) excluded from lottery-based selection.

• Limitations of Law:

  • Fewer laws that were difficult to amend post-late fifth century.

  • Legislative changes required multiple steps and consensus from various groups.

Judicial Interpretation and Jury System

• Court Systems:

  • Trials conducted by popular juries of up to 500 members selected by lot.

  • Decisions made on a case-by-case basis with significant interpretive discretion.

• Absence of Precedent:

  • Lack of binding precedents caused varied interpretations based on individuals present in court.

  • The interpretation of law and the possibility of prosecution hinged on a citizen's initiative.

• Impartiality and Equality:

  • The lottery system provided some equity but did not constrain interpretive leeway, risking arbitrary judgments.

The Absence of a Rule of Law in Athens

• Five requirements characterizing the rule of law:

  1. Coherent legal system avoiding contradictory instructions.

  2. General laws free from discrimination.

  3. Non-retrospective laws regarding past actions.

  4. Publicly promulgated laws for common knowledge.

  5. Clear, determinate, and practicable laws enabling uniform interpretation.

• Shortcomings:

  • Athens met the first four but lacked a system for consistent legal interpretation due to the absence of precedent.

  • Citizens often uncertain about legal duties and rights due to variability in judicial interpretations.

• Consequences:

  • Citizens faced the risk of arbitrary power from any court they encountered.

  • The issues with arbitrariness underscore the need for established precedents for consistent guidance in legal matters.

Conclusion

• Athenian law allowed for citizen rights and provided a framework for fairness.

• However, without a fully realized rule of law, citizens lacked a uniform standard for understanding their legal standing.

• The necessity of the rule of law is highlighted as crucial for both governance and citizen rights.