Person: Lanni, Adriaan
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Lanni
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Adriaan
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Lanni, Adriaan
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Publication Precautionary Constitutionalism in Ancient Athens(Cardozo Law Review, 2013) Lanni, Adriaan; Vermeule, CorneliusThe Athenian democracy developed striking institutions that, taken together and separately, have long engaged the attention of theorists in law, politics, and history. We will offer a unifying account of the major institutions of the Athenian constitutional order, attempting both to put them in their best light and to provide criteria for evaluating their successes and failures. Our account is that Athenian institutions are best understood as an illustration of precautionary constitutionalism: roughly, the idea that institutions should be designed to safeguard against political risks, limiting the downside and barring worst-case political scenarios, even at the price of limiting the upside potential of the constitutional order. We use this framework to illuminate some of the distinctive features of the Athenian democracy: selection of officials by lot, rotation of office, collegiality, ostracism, and the graphe paranomon (the procedure for overturning an unconstitutional decree). Under some circumstances, precautionary constitutionalism is a useful strategy of institutional design. Under other circumstances, however, precautionary constitutionalism can go wrong in characteristic ways – by perversely exacerbating the very risks it seeks to prevent, by jeopardizing other values and thereby imposing excessive costs, or simply by creating futile precautions that fail the test of incentive-compatibility. We evaluate the precautionary institutions of the Athenian democracy in this light, and suggest that some failed while others succeeded. While selection by lot, rotation, and collegiality proved to be enduring and incentive-compatible institutions, ostracism perversely exacerbated the risks of tyranny and political domination it was intended to prevent, and the graphe paronomon collapsed into futility.Publication "Verdict Most Just": The Modes of Classical Athenian Justice(2004) Lanni, AdriaanMost comparative lawyers know a great deal about Roman law but almost nothing about the courts of classical Athens. This is no mystery: unlike Roman law, Athenian law produced no jurisprudence and very little legal doctrine, and contributed nothing to the courts of Europe, England, or any other modem legal system. For the most part, Athenians decided legal disputes by empowering juries to apply statutes that were hopelessly broad. Juries could give weight to any sort of fact or plea that a litigant cared to bring before them. To us, this looks like lawlessness. Did the Athenians simply fail to grasp the value of the rule of law as we know it? Were legal disputes fundamentally contests for status decided without any pretence to justice? These are the explanations ancient historians commonly give. In my view, the Athenian legal system was more complex than is generally thought. The Athenians made a conscious decision to reject the rule of law in most cases, and they did so because they thought giving juries unlimited discretion to reach verdicts based on the particular circumstances of each case was the most just way to resolve disputes. But in other cases, such as commercial suits, where the practical importance of more predictable results was high, the Athenians did have rules of admissibility and relevance that limited jury discretion. The Athenian legal system struck a balance between following rules and doing justice that is altogether different from that which may be seen in the pages, for example, of the Federal Reporter. Classical Athens thus provides a valuable case study of a legal system that favored equity and discretion over the strict application of generalized rules. But it managed to do so in a way that did not destroy predictability and legal certainty in the parts of the system where they were necessary.Publication The Expressive Effect of the Athenian Prostitution Laws(University of California Press, 2010) Lanni, AdriaanThis article argues that attention to the expressive function of law suggests that the Athenian laws prohibiting former prostitutes from active political participation may have had a much broader practical impact than previously thought. By changing the social meaning of homosexual pederasty, these laws influenced norms regarding purely private conduct and reached beyond the limited number of politically active citizens likely to be prosecuted under the law. Some appear to have become more careful about courting in public while others adopted a conception of chaste pederasty that would not run afoul of the law. The prostitution laws may also have provoked resistance among a particular subset of elites, the apragmones, contributing to this group's deliberate disengagement from public affairs.Publication Precautionary Constitutionalism in Ancient Athens(Cardozo Law Review, 2013) Lanni, Adriaan; Vermeule, CorneliusThe Athenian democracy developed striking institutions that, taken together and separately, have long engaged the attention of theorists in law, politics, and history. We will offer a unifying account of the major institutions of the Athenian constitutional order, attempting both to put them in their best light and to provide criteria for evaluating their successes and failures. Our account is that Athenian institutions are best understood as an illustration of precautionary constitutionalism: roughly, the idea that institutions should be designed to safeguard against political risks, limiting the downside and barring worst-case political scenarios, even at the price of limiting the upside potential of the constitutional order. We use this framework to illuminate some of the distinctive features of the Athenian democracy: selection of officials by lot, rotation of office, collegiality, ostracism, and the graphe paranomon (the procedure for overturning an unconstitutional decree). Under some circumstances, precautionary constitutionalism is a useful strategy of institutional design. Under other circumstances, however, precautionary constitutionalism can go wrong in characteristic ways – by perversely exacerbating the very risks it seeks to prevent, by jeopardizing other values and thereby imposing excessive costs, or simply by creating futile precautions that fail the test of incentive-compatibility. We evaluate the precautionary institutions of the Athenian democracy in this light, and suggest that some failed while others succeeded. While selection by lot, rotation, and collegiality proved to be enduring and incentive-compatible institutions, ostracism perversely exacerbated the risks of tyranny and political domination it was intended to prevent, and the graphe paronomon collapsed into futility.Publication Transitional Justice in Ancient Athens: A Case Study(University of Pennsylvania Law School, 2010) Lanni, AdriaanThis article presents our first well-documented example of a self-conscious transitional justice policy - the classical Athenians’ response to atrocities committed during the reign of the Thirty Tyrants - as a case study that can offer insight into the design of modern transitional justice institutions. The Athenians carefully balanced retribution and forgiveness: an amnesty protected collaborators from direct prosecution, but in practice private citizens could indirectly sanction even low-level oligarchic sympathizers by raising their collaboration as character evidence in unrelated lawsuits. They also balanced remembering and forgetting: discussion of the civil war in the courts memorialized the atrocities committed during the tyranny, but also whitewashed the widespread collaboration by ordinary citizens, depicting the majority of the populace as members of the democratic resistance. This case study of Athens’ successful reconciliation offers new insight into contemporary transitional justice debates. The Athenian experience suggests that the current focus on uncovering the truth may be misguided. The Athenian case also counsels that providing an avenue for individual victims to pursue local grievances can help minimize the impunity gap created by the inevitably selective nature of transitional justice.Publication Constitutional Design in the Ancient World(Stanford Law School, 2012) Lanni, Adriaan; Vermeule, CorneliusThis paper identifies two distinctive features of ancient constitutional design that have largely disappeared from the modern world: constitution-making by single individuals and constitution-making by foreigners. We consider the virtues and vices of these features, and argue that under plausible conditions single founders and outsider founders offer advantages over constitution-making by representative bodies of citizens, even in the modern world. We also discuss the implications of adding single founders and outsider founders to the constitutional toolkit by describing how constitutional legitimacy would work, and how constitutional interpretation would be conducted, under constitutions that display either or both of the distinctive features of ancient constitutional design.Publication Social Norms in the Ancient Athenian Courts(Oxford University Press (OUP), 2013-08-02) Lanni, AdriaanAncient Athens was a remarkably peaceful and well-ordered society by both ancient and contemporary standards. Scholars typically attribute Athens’ success to internalized norms and purely informal enforcement mechanisms. This article argues that the formal Athenian court system played a vital role in maintaining order by enforcing informal norms. This peculiar approach to norm enforcement compensated for apparent weaknesses in the state system of coercion. It mitigated the effects of under-enforcement in a private prosecution system by encouraging litigants to uncover and punish their opponents’ past violations. Court enforcement of extra-statutory norms also permitted the Athenians to enforce a variety of social norms while maintaining the fictions of voluntary devotion to military and public service and of limited state interference in private conduct.Publication Book Review(Temple University School of Law, 2010) Lanni, AdriaanPublication Book Review(Oxford University Press (OUP), 2008) Lanni, AdriaanPublication The Laws of War in Ancient Greece(University of Illinois Press, 2008) Lanni, AdriaanOne of the earliest and the most famous statements of realism in international law comes from ancient Greece: the Melian dialogue in history of the Peloponnesian War. In 416 B.C.E., the Athenians invaded Melos, a small island in the Aegean that sought to remain neutral and avoid joining the Athenian empire. Thucydides presents an account of the negotiation between the Athenians and the Melian leaders. The Athenians offer the Melians a choice: become a subject of Athens, or resist and be annihilated. The Melians argue, among other things, that justice is on their side. The Athenians dismiss arguments from justice as irrelevant and reply with a statement that many scholars believe represents view: “We both alike know that in human reckoning the question of justice only enters where there is equal power to enforce it, and that the powerful exact what they can, and the weak grant what they must.”