Abstract
Classical Athens is often held up as a model of the rule of law. But while it did give law central and significant role in its public life, it did not have the institutional resources needed to realize the ideal fully. It lacked a way of helping to make the interpretation of law uniform across different executive and particularly judicial sites.
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Notes
Thus Sara Forsdyke (2018, 205) writes: ‘while the rhetoric of the courts in the fourth century often articulated the ideal of the Rule of Law, the Juror’s Oath both reinforced this ideal and acknowledged its impossibility’.
I draw here on various sources: for example (Krygier 1990, 2002, 2016; Waldron 1989, 2016; Tamanaha 2004). Lon Fuller (1971) argues that the sorts of constraints are inherently moral so that, contrary to legal positivism, law is not fixed just by social facts. But Hart's view (1965), expressed in a critique of an early edition of Fuller's book, is more parsimonious: that they need only be seen as conditions required if law is to serve its function in overcoming the problems associated with any regime in which only informal social norms—‘primary rules’—order people’s relations to one another: see Hart (2012) and Pettit (2019).
For a somewhat different reason, Danielle Allen (2000) argues that Athens embodied a rule of judgment—impartial but inevitably ad hoc judgment—rather than a rule of law. Her claim is maintained also by Adriaan Lanni (2006) and supported, albeit in modified form, by Josh Ober (2008); see too Ober (1999). For a different reading see Harris (2006).
My thanks to Ronald Janse for comments on an earlier draft.
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Pettit, P. Athens and the Rule of Law: An Essay in Honour of Martin Krygier. Hague J Rule Law 11, 289–294 (2019). https://doi.org/10.1007/s40803-019-00103-4
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DOI: https://doi.org/10.1007/s40803-019-00103-4