Person:

Lanni, Adriaan

This 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.

Ancient 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.

This Essay explores the role that public legal proceedings played in the classical Athenian democracy of the fifth and fourth centuries B.C.E. The courts in classical Athens enjoyed a larger market share of cultural communicative space than any modem court could hope to achieve: trials were held in the presence of hundreds of jurors and were watched by local and foreign spectators. The publicity surrounding the Athenian courts was vital to the operation of the Athenian democracy in several respects. First, publicity helped to provide accountability for jurors by exposing their decisions to public scrutiny. Second, public legal proceedings promoted truth by inhibiting litigants from making baseless accusations or misstating the law. Third, public trials provided a form of democratic education vital to the functioning of Athens's direct, participatory democracy. Fourth, publicity provided accountability for litigants' out-ofcourt behavior: the courts provided a venue for litigants publicly to shame their opponents for wrongdoing. This informal enforcement of norms was important to maintaining order in Athens because it compensated for systematic under-enforcement due to the absence of state prosecution and enforcement mechanisms. Fifth, the public, participatory nature of the Athenian courts assured that the courts were a site of popular norm elaboration. And finally, publicity helped to ensure that court sessions were a form of democratic practice that fostered a sense of civic identity.

In this way, Athenian public trials exemplified Bentham's notion of publicity by fostering truth, civic education, and, above all, accountability. The Athenian courts also implemented some of the more ambitious goals of public court proceedings envisioned by Curtis and Resnik in Representing Justice by providing a process for participatory norm elaboration and by publicly enacting the democratic ideal of popular sovereignty. At the same time, the public nature of Athenian trials was intimately linked to the unique elements of the Athenian legal system. Examinations of publicity and accountability in modem courts assume a disconnect between government power, which is wielded by expert judges, and the people - a gap that publicity helps to bridge. By contrast, in Athens's wholly amateur, highly participatory system, the popular jury itself fulfilled some of the functions of the modem public, while at the same time being subject to scrutiny from court spectators.

The 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.

This 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.

The 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.

This 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.