Equality and the Rule of Law in Classical Athens

Abstract

This Article applies lessons from democratic Athens of the fifth and fourth centuries B.C.E. to shed light on contemporary theories about the rule of law, popular constitutionalism, and transitional justice. First, using methods from philosophy and history, it shows that Athens largely satisfied the demands of the rule of law, and, consistent with the philosophical theory that the author has developed elsewhere, the Athenians saw the rule of law as protecting the equality of the democratic masses against individual and collective threats from overweening aristocrats. It then turns to political science methods to account for events in Athens at the end of the fifth century. At that time, there were two short-lived oligarchic coups, the second of which, the notoriously blood-soaked regime of the Thirty Tyrants, was followed by an amnesty protecting those who had collaborated with the regime. This Article explains why the amnesty was obeyed. The success of the amnesty has puzzled generations of historians; here, it is argued that the amnesty was obeyed because Athenian democrats had learned that respecting the rule of law was necessary for their collective self-defense against oligarchic threats. Finally, the article draws lessons from the Athenian experience for contemporary communities, arguing: a) that popular constitutionalism is compatible with the rule of law in contemporary states, and b) that the rule * Associate Professor of Law, University of Iowa College of Law, adjunct associate professor (by courtesy), University of Iowa Department of Political Science. J.D., Harvard; Ph.D., Political Science, Stanford. I am particularly grateful for the assistance of Josiah Ober, both for the individual advice he generously offered, and for the invitation to present this paper and receive feedback from a seminar he ran in March 2012 across the Stanford University Classics and Political Science departments. I also thank Joshua Cohen, Avner Greif, Jim Fearon, Angela Onwauchi-Willig, and participants in the 2012 Big Ten Untenured Faculty Conference at Indiana University Maurer School of Law, and my research assistants, Shawn McCullough and Estiven Rojo. A note on citations: generally, this Article follows Bluebook format. However, the Bluebook does not prescribe a convention for citation of Ancient Greek original sources. I have generally followed the convention used by classicists, and cited to documents by abbreviated forms of author, title, and line number in standard form. Sources for translations are given at the end of this Article, except where specified in the notes. Where my argument depends on close interpretations of original sources, I have endeavored to verify the translations from which I have worked with my own rudimentary Greek. Generally, I have also followed the conventions of historians with respect to the density of citations in factually dense narratives. 2 DEMOCRACY, SOLIDARITY, AND THE RULE OF LAW [21-Aug-13 of law can facilitate post-conflict democratic transitions. 21-Aug-13] DEMOCRACY, SOLIDARITY AND THE RULE OF LAW 3