Isonomia: The dawn of legal equality

Abstract

Democratic Athens was very different from contemporary liberal democracies. Among many other differences, it was dramatically smaller (estimates vary, but for present purposes, there were, say, perhaps 30,000 full-fledged citizens and substantially more noncitizens); it had an underclass of slaves, operated as a direct democracy in which all important decisions were made by the assembled citizenry, and operated mass popular courts. Nonetheless, it managed to have a surprisingly robust version of the rule of law. This chapter serves several purposes. First, it supports the overall argument of this book that the rule of law does not subsist in particular institutional configurations – it can exist in societies as different as the contemporary United States and Athens of 400 bce . Second, it shows that the identification of the rule of law with equality can help us understand an extraordinarily diverse set of societies. For that reason, it supports the factual and normative robustness of the account of the rule of law given in the first four chapters. Third, by abstracting away from contemporary institutional and social facts, it allows us to see some of the abstract dynamics of the rule of law – a point that will be developed in the next chapter. This chapter defends several key claims. First, contrary to the arguments of some classicists and legal historians, classical Athens substantially satisfied the demands of the rule of law throughout the democratic period. Second, Athenians saw further than many contemporary rule of law theorists: they recognized that the rule of law served the equality of mass and elite; and there was no contradiction (again contra some classicists) between the democratic power of the masses and the rule of law. It sets the groundwork for a third claim, developed in the next chapter: this connection between equality and the rule of law explains the most striking fact about Athenian legality: to wit, the otherwise puzzling effectiveness of a postconflict amnesty after a short-lived oligarchic tyranny at the end of the fifth century bce . How was the rule of law implemented in Athens? In this section, I first review the Athenian legal system, then argue for the proposition that it comported fairly well with the rule of law, except for its failures in the domain of generality with respect to women, foreigners, and slaves.