6

ANCIENT AND MODERN

CONCEPTIONS OF THE RULE OF LAW
Sara Forsdyke

Well, what if anything can we judges do about this mess? The

answer lies in the shadow of a jurisprudential disagreement that
is not less important by virtue of being unavowed by most judges.
It is the disagreement between the severely positivistic view that
the content of the law is exhausted in clear, explicit, and definite
enactments by or under express delegation from legislatures, and
the natural lawyer’s or legal pragmatist’s view that the practice
of interpretation and the general terms of the Constitution . . .
authorize judges to enrich positive law with the moral values
and practical concerns of civilized society . . . Neither approach
is entirely satisfactory. The first buys political neutrality and a
type of objectivity at the price of substantive injustice, while the
second buys justice in the individual case at the price of consider-
able uncertainty and, not infrequently, judicial wilfulness. It is no
wonder that our legal system oscillates between the approaches.
from the dissent to United States v. Marshall (1990)1

There has been a long-running debate in scholarship between those

who believe that the ancient Athenian democracy valued and strove to
achieve the rule of law (RoL) and those who believe that the Athenians,
while aware of the concept, did not fully embrace it. According to some
scholars in this latter camp, the Athenians even deliberately rejected
the RoL in favour of other values such as revenge or notions of equity.
Standing firmly in the first camp are scholars such as Martin Ostwald,
Edward Harris and Gabriel Herman. Equally adamant on the other
side are the voices of Josiah Ober, David Cohen and Adriaan Lanni.2

1 United States v. Marshall 908 F.2d 1312 (7th Cir. 1990) (en banc), aff’d sub nom.
Chapman v. United States, 500 U.S 453 (1991).
2 Ostwald 1986; Harris 2006; 2013; Herman 2006; Ober 1989; Cohen 1995a; 1995b;
Lanni 2006. Other scholars lining up on either side include on the first side:
Rhodes 2004 (but contrast Rhodes 1995); Meyer-Laurin 2007; Sickinger 2008.
 conceptions of the rule of law 185

Who is right in this debate? How can such dramatically different

positions be held so firmly and be based on a valid reading of the evi-
dence? In this chapter, I will suggest that part of the reason for these
different assessments is that scholars have discrepant understandings
of the meaning of the RoL. I will further suggest that while there is
considerable debate even in modern legal circles regarding the meaning
of the RoL, nevertheless the concept can be broken down into three
components against which the ancient Athenian legal system can be
measured: legal supremacy, legal equality and legal certainty. Using
this analytical frame, I will suggest that the Athenian democracy
achieved legal equality in a remarkably comprehensive way. Yet I
will also demonstrate that its ascription to the other two components
of the modern concept of the RoL, namely legal supremacy and legal
certainty, was somewhat compromised by other social practices and
cultural values.
This conclusion may suggest that the Athenians did not fully ascribe
to the modern concept of the RoL. I will show, however, that – as
suggested in the quotation above – even modern legal systems strike
an uneasy compromise between stricter and looser applications of the
law, and that legal certainty is not fully achieved even in the modern
world. One of the most important conclusions of this chapter will be
to show that the Athenians were remarkably aware of the trade-offs
between competing conceptions of justice, and struck a compromise
that is arguably as sophisticated as any modern system has been able
to achieve.
Before turning to the argument proper, it is important to emphasise
that the question of whether the ancient Athenian democracy achieved
the RoL is not of mere antiquarian interest. Rather, it relates to very
important debates about the value of ancient Athenian democracy
as a model for rethinking democracy in our own times.3 In these
debates, the question of whether the Athenian democracy resulted in
the tyranny of the majority and infringed on the civil liberties of its cit-
izens looms large. A demonstration that the Athenians’ understanding
of the RoL was comparable to the modern one, therefore, contributes
to the view that Athenian democracy was not a form of reckless mob
rule and in fact was fairly effective – not perfect, but effective at least
in ways comparable to modern democracies – at protecting what we
might now call citizen rights.

On the second side: Todd 1993; Christ 1998; Sundahl 2003. Rubinstein (2007)
occupies a middle ground between these two poles.
3 For orientation in these debates, see recently Lane 2015; Cartledge 2016; Ober
2017.
186 sara forsdyke

1 THE MODERN CONCEPT OF RULE OF LAW

Like the word ‘democracy’, the phrase ‘the rule of law’ is used widely
in modern political discourse, yet with little precision. Some scholars
argue that the phrase is virtually useless because it is so widely used with
such different meanings.4 Other scholars have attempted to delineate
the main features of the RoL and specified lists of essential elements.
Some of these lists are quite extensive, and though I have consulted
them, I believe that conceptual clarity is better achieved through a
smaller list of key elements.5 Accordingly, I have boiled down the
various definitions and lists to the following three components:6

1. Legal supremacy: the principle that society should be regulated

through authoritative rules rather than violence.
2. Legal equality: the principle that laws are to be applied equally
to all and that no one – not even a monarch or magistrate – is
above the law.

4 Shklar 1987, with response by Waldron 2002; 2008. For a similar point in refer-
ence to ancient uses of the concept, see Cohen 1995b.
5 Bingham 2010, for example, provides the following definition: ‘that all persons
and authorities within the state, whether public or private, should be bound by
and entitled to the benefit of laws publicly made, taking effect (generally) in the
future and publicly administered in the courts’ (pp. 8, 37). Bingham then lists eight
essential elements of this definition: (1) the law must be accessible and, so far as
possible, intelligible, clear and predictable; (2) questions of legal right and liability
should ordinarily be resolved by application of the law and not the exercise of
discretion; (3) the laws of the land should apply equally to all, save to the extent
that objective differences justify differentiation; (4) ministers and public officers
at all levels must exercise the powers conferred on them in good faith, fairly, for
the purpose for which the powers were conferred, without exceeding the limits of
such powers and not unreasonably; (5) the law must afford adequate protection of
fundamental human rights, including the right to life, the prohibition of torture,
the prohibition of slavery and forced labour, the right to liberty and security, the
right to a fair trial, no punishment without trial, the right to respect for private
and family life; freedom of thought, conscience and religion; freedom of expres-
sion; freedom of assembly and association; the right to marry; (6) means must be
provided for resolving, without prohibitive cost or inordinate delay, bona fide civil
disputes which the parties themselves are unable to resolve; (7) adjudicative proce-
dures provided by the state should be fair [= fair trial]; (8) the rule of law requires
compliance by the state with its obligations in international law as in national law.
6 Although different terminology is used by different scholars, this list of three items
captures the principles in the following discussions of modern concepts of the rule
of law: Dworkin 1986; Hutchinson and Monahan 1987; Fallon 1997; Tamanaha
2004; Maxeiner 2007; Bingham 2010; Nardulli et al. 2013. The Wikipedia website
‘General Principles of EU Law’ has useful links to the various aspects of the RoL
from a modern European perspective. For discussion of the concept of rule of law
in ancient Greece, see Cohen 1995b; Gagarin 2004: 173–4; Sundahl 2003; Harris
2013. Cohen argues that the concept had radically different meanings for oligarchs
and democrats, but observes importantly that both sides held it as a positive ideal.
 conceptions of the rule of law 187

3. Legal certainty: the principle that laws should be clear in

meaning, accessible, and their application consistent and
predictable.7

While the first two elements are fairly straightforward, the third
one  is implicated in central debates in modern legal scholarship
about the meaning of the RoL. For while it is easy to understand
that disputes should be regulated peacefully through the law, or
that all people should be equal before the law, the idea that laws
should be clear in meaning and their application consistent and
predictable enters into the disputed territory of whether general
laws can be absolutely clear in meaning such that they can be
predictably applied to particular situations. Furthermore, even if the
true meaning of the law can be known, the question is raised as to
whether strict application of apparent meaning of the law results in
justice in particular cases.
A separate but related debate that has implications for legal cer-
tainty is the distinction between ‘thin’ and ‘thick’ definitions of the
ROL. ‘Thin’ definitions of the ROL simply require that the law be
followed no matter how repressive it might be. ‘Thick’ definitions,
on the other hand, require that the law ‘afford adequate protection
of fundamental human rights’.8 Another way of conceptualising this
difference is that between formal legality – that is, the idea that law is
a system of rules to be followed without any requirements about the
content of the law – and substantive legality – the idea that law is a
set of rules that ‘capture and enforce moral rights’, in the words of
one proponent of this conception of the law, Ronald Dworkin.9 In
the latter theory, the protection of individual rights is a critical aspect
of the RoL and – as has already been pointed out – the lack of such
protection is a key area in which ancient Greek democracy is thought
to have fallen short of modern standards.
As I shall show in the final part of the chapter, however, this
judgement underestimates the extent to which the ancient Athenian

7 See Gagarin 2004: 173–4 and Harris 2013: 4–10 for similar attempts to determine
the contours of the modern concept. Harris’ criteria overlap with but are not
identical to my own: (1) the law should apply equally to all persons; (2) all officials
are accountable for their actions; (3) law is accessible to all; (4) no punishment
without law. In my view, (1) and (2) amount to the same principle of legal equality.
Number (3) addresses one aspect of legal certainty, and number (4) is another way
of expressing the principle of legal supremacy.
8 Bingham 2010: 66. For a thin definition of the rule of law, see Raz 1979; Tamanaha
2004: 37.
9 Dworkin 1985: 12. For an overview of these two different conceptions of the rule
of law, see Tamanaha 2004: 91–113.
188 sara forsdyke

democracy did in fact protect certain fundamental rights of its citizens.

While it would obviously be anachronistic to claim that the Athenians
recognised natural or human rights in the form that they have been
promulgated by modern liberal theorists, nevertheless I shall argue
that a thick-ish definition of the RoL is appropriate because of the
Athenians’ commitment to certain fundamental freedoms and (what
today we call) rights. Moreover, I shall demonstrate that a similar
debate between legal formalists and substantivists took place in classi-
cal Greece, and that, at least in democratic Athens, the substantivists
prevailed. As we shall see, this preference for a thick-ish understand-
ing of the RoL, moreover, had consequences for Athens’ realisation
of legal certainty, as it also does for modern states. Interestingly,
however, despite much critique in the early to mid- twentieth century
from legal formalists such as A. V. Dicey and F. Hayek, scholars
since then have been more inclined to accept substantive legality as
a feasible system of the RoL despite its tension with the principle of
legal certainty.10
Before turning to these complex issues, however, let us consider the
less controversial first two components of the RoL: legal supremacy
and legal equality. What is remarkable about ancient Greek political
development is that these two crucial elements of the RoL were rec-
ognised and implemented very early on in the evolution of the Greek
city-state. Moreover, these principles were quite widely acknowledged,
if imperfectly realised, in many Greek states, not just fully democratic
ones. Despite these early developments, I shall show that it was only
in Athens in the democratic period (508/7–323 bce) that the principles
of legal supremacy and legal equality came into full force. Indeed, in
the classical period, these principles became firmly associated with
democracy, as opposed to other regime types, and became key ele-
ments of Athenian democratic ideology.

2 LEGAL SUPREMACY AND LEGAL EQUALITY

As early as the archaic period (c. 750–500 bce), several Greek states
took steps towards the achievement of legal supremacy and legal
equality by passing laws affirming the subordination of magistrates to
communally enacted written laws. In contrast to Homer’s and Hesiod’s
depictions of greedy and self-interested kings for whom unwritten
communal norms and religious beliefs served as only a modest restraint
on behaviour, by the seventh century we find communally enacted

10 Tamanaha 2004: 110–13. See, for example, Finnis 1980: 281–4; Weinrib 1987 and
Fuller 1969: 42–4; Nussbaum 1993; Solum 1994; Fallon 1997: 21–4; Smith 2015.
 conceptions of the rule of law 189

written laws enforcing, for example, an orderly rotation of political

office.11 In the law from Dreros on Crete of c. 650 bce, for instance,
the polis and the people (damioi) created a rule requiring magistrates
(kosmoi) to wait ten years between terms in office:

The city has thus decided: when a man has been kosmos, the same
man shall not be kosmos again for ten years. If he does act as
kosmos, whatever judgements he gives, he shall owe double, and
he shall lose his rights to office, as long as he lives, and whatever
he does as kosmos shall be nothing. The swearers shall be the
kosmos [i.e. the body of kosmoi] and the damioi and the twenty
of the city.12

While such ‘constitutional laws’ are a far cry from a comprehensive

subordination of ruling elites to the law, the emergence of written laws
circumscribing the power of magistrates is a first step towards the
principle that society should be regulated by written rules rather than
violence (legal supremacy) and that all men – even ruling elites – are
subject to the law (legal equality). By the sixth century, moreover,
these principles emerge in stronger form at Sparta and in other Greek
poleis, as has recently been discussed by Lynette Mitchell.13
In Sparta during the sixth century bce, for example, the system of
the ephorate was created, and with it the requirement that the kings
obey the laws. The ephors were a group of five magistrates elected by
the Spartan assembly, and seem to serve as a popular counterweight
to the influence of the aristocratic Council of Elders and the two kings.
Most significantly, for our purposes, a new ritual was inaugurated at
this time whereby the kings and ephors swore mutual oaths once a
month. According to our sources, the kings were required to swear
that they would rule according to the established laws of the state,
and the ephors in turn swore that they would preserve the kingship
undisturbed if the kings abided by their oath.14
As Aristotle observed, the creation of the ephorate was a method
of preserving the kingship, not eliminating it, since without such a
reform, the kingship would not have lasted long.15 One might compare
this bargain struck between Spartan kings and ephors to the agreement
between King William III and Parliament in the Glorious Revolution

11 On Homeric society (c. 750–700 bce), see Raaflaub 1997; Balot 2006.
12 Meiggs and Lewis 2, whose translation is adopted here.
13 Mitchell 2013: 119–51.
14 Kennell 2010: 102–9. For the oath of kings to obey the laws, cf. Xenophon, Lac.
Pol.15.7; Plato, Laws 684a1–b2.
15 Politics 1270b17.
190 sara forsdyke

of 1688. When King James II fled, Parliament offered the throne to

King William of the Netherlands on the condition that he agree to
abide by a set of rules, chief among them that his authority was subject
to the law. Modern scholars mark this moment as a key step to the
development of the modern concept of the RoL, but arguably it can
already be traced back to sixth-century Greece.16
It was in Athens, as a result of the reforms of Solon of 594/3 bce,
that the other side of legal equality – namely equal protection of the
laws – was clearly established. Several of Solon’s reforms aimed at
ensuring that all citizens, no matter how lowly their condition, had
access to the benefit of the law, particularly in defending their right to
the liberty and security of their own persons. In order to protect the
poor against seizure and sale into slavery abroad for debt, for example,
Solon not only banned the practice of debt bondage but introduced
the right of appeal to the Assembly of the people against the decisions
of a magistrate. Significantly, such appeals could be made by a third
party, thus enabling even the enslaved to seek redress.17 These meas-
ures provided legal security to Athenian citizens, although it should
be noted, of course, that such protections were denied to non-citizens,
including resident foreigners (metics) and slaves.
It is noteworthy that this right of equal protection of the laws was
achieved well before the establishment of democracy in 508/7 bce.
Moreover, the principle of legal equality is articulated very promi-
nently in Solon’s poetry describing his reforms.

I wrote laws for all, for high and low alike,

Made straight and just.

θεσμοὺς δ’ ὁμοίως τῷ κακῷ τε κἀγαθῷ

εὐθεῖαν εἰς ἕκαστον ἁρμόσας δίκην
ἔγραφα18

Despite this early history of the ideal of legal equality, the clearest
articulations of the principle are found in classical texts where it is
firmly associated with democratic rule.19 Thucydides, for example,
articulates this ideal in his account of the speech that the leading
Athenian statesman Pericles gave at the public funeral held for those
who died fighting in the first year of the Peloponnesian War in 430 bce.

16 Bingham 2010: 23–5; cf. North and Weingast 1989: 816.

17 [Aristot.] Ath. Pol. 9.1.
18 Solon fr. 36.18–20; trans. M. L. West.
19 For a full list of references to this ideal, see Hansen 1999: 84.
 conceptions of the rule of law 191

In this speech, Pericles presents equality before the law as a fundamen-

tal principle of the Athenian democracy.

We have a constitution that does not emulate the laws of our

neighbours, but we ourselves are a model for some, rather than
imitating others. In name, it is called a democracy since it is
governed not for the few, but for the many. In private disputes,
there is equality for all according to the laws (μέτεστι δὲ κατὰ μὲν
τοὺς νόμους πρὸς τὰ ἴδια διάφορα πᾶσι τὸ ἴσον).20

In democratic traditions, equality before the law in a democracy is

often contrasted to the arbitrariness of a tyrannical regime, as in the
following passage from Euripides’ play Suppliants of 423 bce.21

Nothing is more hostile to a state than a tyrant.

For first of all, there are not laws that are common
But he alone has power, controlling the law
himself for himself. And then this – there is no longer equality.
But when the laws have been written down, the weak
and the rich have equal justice (ὅ τ’ ἀσθενὴς
ὁ πλούσιός τε τὴν δίκην ἴσην ἔχει)
and it is possible for the weaker to say the same things
as the prosperous when he is spoken badly of
and the weaker prevails over the great man,
if he has justice on his side.22

In fifth-century texts of the democratic period, such as the one above,

we can perceive clearly what was only implicit in the seventh-century
introduction of written law and Solon’s sixth-century reforms. Indeed,
these texts reveal very explicitly that the Athenian principle of legal
equality entailed both the fact that all citizens – including kings and
magistrates – were subject to the law and also that all citizens had right
to equal protection of the law.
By the classical period, of course, the Solonian provision of the
right of appeal to the popular assembly had been strengthened by
the establishment of separate popular courts in which large panels
of randomly selected citizens determined the outcome of the disputes
brought before them. In addition, the principle of the right to a trial is
clearly firmly in place, as is evident from texts evoking outrage at its

20 Thucydides 2.37.1
21 See also, for example, Aeschines 1.4.
22 Eur. Supp. 429–37.
192 sara forsdyke

occasional violation under the democracy and especially its complete

transgression by non-democratic regimes. For example, the fifth-
century historian Herodotus views it as the distinctive behaviour of
tyrants to not only overturn the ancestral laws, but specifically execute
men without trial.

I am going to tell you the greatest offences [of tyrannical rule]: a

tyrant disrupts ancestral laws, violates women and puts men to
death without trial. The rule of the people, by contrast, first has
the most beautiful name of all – political equality – and second
does none of the things that a tyrant does. The people hold office
in turn by lot, and its rule is held to account, and all matters are
decided collectively.23

Here we see that the principle of a right to a trial is not only con-
trasted to the lawlessness of the tyrant, but also firmly connected
with democratic rule. Similarly, Xenophon makes clear the impor-
tance of this principle through his depiction of its violation in the
trial of the Arginusae generals in 406 bce and during the rule of the
Thirty Tyrants in 404–403 bce.24 The brutality of the rule of the Thirty
Tyrants, along with that of the oligarchy of the Four Hundred in
411, served as the prime example of the lawlessness of such regimes
in democratic traditions. The illegal collective trial of the Arginusae
generals, however, took place under democratic rule and is often cited
as an example of the trampling of individual rights (here the right to
an individual rather than a collective trial) under the democracy. We
will return to this trial at the end of the chapter, but I emphasise here
that the right to a trial was firmly embedded in democratic culture and
its violation apparently so rare that its transgression in this instance
led to considerable comment and outrage.
In wrapping up this consideration of the principles of legal suprem-
acy and legal equality in ancient Athens, it must be acknowledged that
in practice the Athenians, (as is the case with many pre-modern popu-
lations) had a parallel system of justice that operated alongside the
formal legal system.25 In this parallel system, the citizens acted often
spontaneously, yet in highly ritualised and communally sanctioned
ways, to punish particular types of offenders. Sometimes this paral-
lel system operated within or together with the formal system and
sometimes wholly without recourse to formal laws and institutions.

23 Herodotus 3.80.5–6
24 Xenophon, Hellenica 1.7.16–33, 2.3.20–56.
25 Forsdyke 2008; 2015: 144–70 for full discussion.
 conceptions of the rule of law 193

Adulterers and adulteresses, for example, could be publicly shamed

and the perpetrators of these (sometimes quite brutal) humiliations
were not liable for prosecution as long as they used communally
accepted means against communally agreed upon transgressors. In one
particularly extreme case of popular justice, a man called Kallixeinos
was excluded from society so comprehensively that he was unable to
secure the means to live and died of starvation.26
Such extreme instances of popular justice – though apparently rare
– are a reminder the Athenians’ subscription to the RoL was only one
part of a complex set of social practices and values. Paradoxically,
the extreme instance of extra-legal justice just mentioned was exacted
against a person who transgressed one of the cardinal principles of the
Athenian system of the RoL, namely the right to a trial. Indeed, it was
Kallixeinos who proposed that the generals who fought at Arginusae
be tried collectively and not given the opportunity for individual trials.
Another notorious instance of popular justice involved the stoning of a
member of the Council of 500 for proposing that the Athenians betray
Greece by submitting to the invading Persian army. In response, the
rest of the Council and the crowd outside the Council house stoned
the councillor to death and a crowd of women went to his house and
stoned his wife and children.27
These exceptional instances notwithstanding, the existence of modes
of popular justice is a reminder that the Athenians maintained a some-
what flexible attitude to the administration of justice. While many
disputes were settled through formal legal procedures in the popular
courts, there did exist an alternative system of justice for certain
classes of offences. This alternative system somewhat undermines the
Athenians’ full realisation of the principle of legal supremacy. This is
a point to which we will return at the end of the chapter.

3 LEGAL CERTAINTY
So far we have established that the principles of legal supremacy and
legal equality were firmly embedded in the institutional practices and
ideals of the Athenian democracy, the exceptions noted above not-
withstanding. We can now turn to the more controversial category of
legal certainty. As indicated already, scholars debate about the degree
to which legal certainty is possible even in the modern world, given
the difficulties of interpreting the law consistently and the differing
views on the validity of balancing the strict application of the law with

26 Xenophon, Hellenica 1.7.35.

27 Herodotus 9.5.
194 sara forsdyke

broader concerns about moral rights and fairness in particular situa-

tions. It is true that some modern legal theorists are quite confident
that the intent and meaning of a law can be understood and applied
consistently. Passing over the early twentieth-century movement in
legal formalism and its proponents, even more recent legal experts
such as Supreme Court Justice Antonin Scalia, while noting the dif-
ficulties of interpretation, have nevertheless expressed confidence in
the ability of judges to determine the original meaning of a law.

There is plenty of room for disagreement as to what the original

meaning was, and even more as to how that original meaning
applies to the situation before the court. But the originalist at
least knows what he is looking for: the original meaning of the
text. Often – indeed, dare I say usually – that is easy to discern
and simple to apply.28

Similarly, in the civil law traditions of Western Europe, the princi-

ple of legal certainty is not only accepted, but believed to have been
achieved to a fairly high degree. As James Maxeiner states: ‘Legal
indeterminacy may govern Americans, but it is not acceptable to
Europeans. Legal certainty – not legal indeterminacy – is a guiding
principle of European legal systems.’29
It is noteworthy, however, that even Maxeiner, following the
German legal philosopher Gustav Radbruch, notes that there is a con-
flict between justice, public policy and legal certainty and that ‘every
legal system must balance these three competing components’.30
Given that there is a spectrum of particular points at which different
societies balance the good of legal certainty with other considerations
of justice and public policy, it is not surprising to find that the Athenian
democracy also strove to find the right balance.31 Moreover, it is
important to recognise that the Athenians’ struggle to balance these
competing goods results in the somewhat contradictory testimony in

28 Scalia 1997: 45. But see Fallon 1997: 40, who argues that, in practice, Scalia’s
conception of the RoL comprises not just originalism and formalism, as suggested
in the quotation above, but also ‘legal process’ conception and even, arguably, a
‘substantive’ conception.
29 Maxeiner 2007: 543. Cf. pp. 544–5: ‘It is wrong . . . to generalize from American
experiences and to assume that high levels of legal indeterminacy are inevitable.
Other systems can and do perform better . . . [this article] does not contend that
any legal system in Europe has achieved absolute certainty.’
30 Maxeiner 2007: 547.
31 Compare, for example, the debate between Eskridge 1994 and Scalia 1997 about
where to draw the line between a positivist, textualist approach to the law and a
more dynamic and realist approach.
 conceptions of the rule of law 195

our ancient sources, and that these tensions and contradictions in

our sources – while reflecting real tensions and contradictions in the
Athenian legal system – have fuelled current scholarly controversy
about whether the Athenians strove to achieve the RoL. Rather than
arguing that the Athenians adhered to one or the other side of this
necessary equilibrium, a better approach is to show that the Athenians
wrestled with the same problem as modern legal theorists, and indeed
were remarkably sophisticated in their recognition of the need to
balance these values.
Before turning to the consideration of Athenian attitudes towards
legal certainty, it is important to acknowledge a turning point in
Athenian democratic history that has been viewed by many scholars
as tipping the balance towards a stricter application of the RoL.32
According to these scholars, the oligarchic revolutions of 411 and
404/3 bce, and especially the Athenian defeat in the Peloponnesian
War in 403, led to a recalibration of ideas about the relationship of a
community to its laws. The crimes of the oligarchs had demonstrated
the fragility of the principle that rulers were subject to the law and that
all citizens had the right to a trial. On the other side, oligarchs believed
that the rule of the people had led to a politics fed by desires rather
than rational deliberation. As it turned out, the strengthening of the
rule of law was a course of action that suited both sides.
In 410 and again in 403, the restored democracy set about revising
and publishing a new law code.33 In many ways, the actions of the
democrats aimed at strengthening legal certainty, in so far as this
principle requires that the laws be clear in meaning and accessible.
A set of law commissioners (nomothetai) was established whose job
it was to collect, examine, revise and publish the laws. It was at this
time that the distinction between laws and decrees of the Assembly
was made, and a novel procedure was created for ratifying new laws.
According to some scholars, this change equated to a tempering of the
democracy in favour of the RoL, since the popular Assembly was no
longer a source of law, but rather a new board of nomothetai.34
Other scholars observe that this new board was selected from those
who had sworn the jurors’ oath, namely the 6,000 citizens chosen
randomly each year to form the juries of the democratic law-courts.35
According to these scholars, there was little difference in composition
and expertise between the Assembly and the new board of nomothetai,

32 See, especially, Ostwald 1986; Hansen 1999.

33 Key sources include Lysias 30, Andocides 1 and IG I3 104. For recent discussion,
see Shear 2011.
34 Ostwald 1986; Hansen 1999.
35 Ober 1989; Rhodes 1995.
196 sara forsdyke

except that jurors had to be over thirty years of age rather than eight-
een. On this view, then, the people were still in control of the proce-
dure for ratifying the laws, even if this was now a two-step process.
The main difference between the fifth and fourth century, for these
scholars, is that there was an attempt by the democrats to clarify the
laws and make them accessible, as well as to make them more durable
and authoritative by publishing them permanently on stone.
Whichever of the two views outlined above one accepts, it must be
acknowledged that both tend in the same direction. Whether there was
a tempering of democracy through the new two-stage procedure for
ratifying laws, or whether the Athenians simply clarified the laws and
made them more accessible, the reforms of 410–403 would have aimed
at strengthening legal certainty. What is remarkable, nevertheless, is
that despite this apparent pursuit of the ideal of legal certainty, fourth-
century Athenians also recognised that it was an ideal that could never
be realised absolutely, and furthermore that legal certainty had to be
balanced against competing notions of equity or fairness in particular
cases. We can now examine in more detail the evidence for these two
parallel trends – namely the affirmation of the RoL and particularly
the ideal of legal certainty, on the one hand, and the acknowledgement
of the need to balance legal certainty with broader notions of justice,
on the other.
It is remarkable that in the fourth century, both oligarchs and
democrats frequently articulated the idea that the law should govern
and not men, and often appealed to the ideal of the impartial applica-
tion of the law. For example, speakers in the democratic law-courts
frequently claimed to be ‘coming to the aid of the laws’ by prosecuting
a case.36 Some speakers even went so far as to represent the laws in
personified form, a move that Socrates also makes in Plato’s famous
version of Socrates’ explanation of why he accepted the verdict of
the courts condemning him to death.37 Similarly, in the Laws, Plato
personifies the sovereign laws of the imagined colony of Magnesia,
and recommends that citizens be educated to believe that they are the
servants of these Laws.38
In one fourth-century law-court speech, a prosecutor exhorts the
jurors to completely erase himself from their minds, and to imagine
the personified Laws themselves to be prosecuting the defendant.

36 E.g. Aeschines 1.1 For excellent discussions of the rhetoric of the law in classical
Athens, see Johnstone 1999; Wohl 2010.
37 Lysias 1.26; Plato, Crito 50a6–54e.
38 For the conception of the laws in Plato’s Laws, see Cohen 1995a; Piérart 1995.
 conceptions of the rule of law 197

Consider that the laws and Neaira here are engaged in a legal
dispute with one another. And whenever you hear the prosecution,
listen to the laws themselves (τῶν νόμων αὐτῶν ἀκούετε), through
which the city is governed (δι᾿ ὧν οἰκεῖται ἡ πόλις) and according
to which you have sworn to judge (καθ’ οὓς ὀμωμόκατε δικάσειν).
What do the laws command and how have they transgressed
[them]? And whenever you hear the defence, being mindful of the
prosecution made by the laws and the cross-examination of the
things said, and seeing her face, remember this alone, if, being
Neaira, she has done these things.39

In this passage, the speaker encourages the jurors to ‘listen to the

laws themselves’ and thereby elides his own presence and the fact that
human agents are required to interpret and apply the law.40 Through
this clever rhetorical technique, the speaker instrumentalises himself
and the jurors, turning them into mechanical extensions of the laws
themselves. This elision of human agency required to interpret and
apply the laws is further enhanced by the speaker’s assertion that the
city is governed through the laws and by his invocation of the oath
sworn by each of the jurors that they will judge cases ‘according to the
laws’.41 This last reference to the jurors’ oath, as we shall see, obscures
more than it reveals, since a consideration of the full text of the oath
reveals that the Athenians understood that cases could not always be
decided ‘according to the laws’ alone.
Indeed, while many ancient speechwriters made use of the ideal of
the RoL and glossed over the difficulties of interpretation and applica-
tion of the law, other sources, including other courtroom speeches,
reveal that the Athenians understood these difficulties. These latter
sources reveal that the Athenians recognised the need to balance the
ideal of the RoL with judgements about justice and social goods. Let
us turn to these sources next.
Perhaps the best evidence for the Athenians’ acknowledgement of
the limitations of the RoL is the jurors’ oath itself. As already men-
tioned, the requirement that the jurors judge cases ‘according to the
law’ represents only one clause in the oath, albeit the clause that is

39 Pseudo-Demosthenes 59.115.
40 We might compare this elision with that in such aspirational modern state-
ments as  John Adams’ concept of ‘a government of laws not of men’ in the
Massachusetts Constitution of 1780. The phrase ‘the rule of law’ itself contains
this elision of the role of men, and is ubiquitous in the modern world (see above,
nn. 5–6).
41 Pseudo-Demosthenes 59.115
198 sara forsdyke

most often cited in our surviving speeches.42 Although the oath does
not survive in its complete form in any surviving text, scholars agree
on its essential elements.43 Jurors pledged:

1. To vote according to the laws and the decrees of the Athenian

people.
2. To decide to the best of one’s judgement in matters for which
there are no laws.
3. To decide without favour or hostility.
4. To listen to both the accuser and defendant equally.
5. To vote concerning the matters pertaining to the charges.

The key clause for our purposes is the second, in which jurors swore
to decide ‘to the best of one’s judgement (γνώμῃ τῇ δικαιοτάτῃ) in
matters for which there are no laws’.44 A key question is how this
second clause relates to the first one, and whether the requirement to
decide ‘to the best of one’s judgement’ applies only to situations in
which there are no relevant laws, or also to cases in which there were
ambiguities (i.e. a need for interpretation) in the law, and where strict
application of the law could result in injustice or unfairness.45 Scholars
have lined up on each side of this question, although recently there has
been more support for the broader interpretation.46 It is significant,
however,  that even on the narrower interpretation, the Athenians
recognised that it was not always possible to decide ‘according to the
laws’ and that jurors needed also to rely on their own judgement of
justice in the absence of explicit instruction from the law.
Support for the broader interpretation of the clause, moreover, is
found in the philosophical texts of Plato and Aristotle, who not only

42 In Harris’ list (see next note), this clause is mentioned fifty-four times in surviving
speeches.
43 The text has been reconstructed from the various sources by Max Fraenkel 1878:
464. Recent discussions include Scafuro 1997: 50–66; Mirhady 2007; Harris 2013:
101–137. For a complete list of quotations or allusions to the jurors’ oath in law-
court speeches, see Harris 2013: 353–6.
44 The phrase ‘γνώμῃ τῇ δικαιοτάτῃ’ is translated variously, and I adopt the transla-
tion of Cronin 1936: 18. Other translations include: ‘to vote or judge with one’s
most just judgment’ (Harris 2013: 102) and ‘by the most just understanding’
(Mirhady 2007: 49).
45 Debate has arisen in part because the crucial phrase identifying in which circum-
stances the jurors are authorised to use their judgement as to what is most just,
namely ‘where there is no law’, is only attested in two Demosthenic speeches and
a late source that is probably dependent on Demosthenes: Dem. 20.118, 39.40;
Pollux 8.122. For doubts about whether this phrase is genuine, see Mirhady 2007:
52–3.
46 See Scafuro 1997: 51 for a summary of older scholarship, and the view that the
second position is more tenable.
 conceptions of the rule of law 199

acknowledge the need for interpretation of the law, but also provide
evidence that the jurors aimed to strike a balance between the strict
application of the law and considerations of fairness or equity. Some
of these points are made in the context of discussions of the best
form of government, but as we shall see, Aristotle also attests to the
importance of these factors in the operation of the courts in Athens.
Fascinatingly, although both philosophers strongly supported the
ideal of the RoL, each acknowledged the impossibility of its full
realisation.
Let us begin with the political sphere. As we have discussed, it
was difficult to support the idea of oligarchy after the failure of the
regimes of the late fifth century. While Plato and Aristotle dreamed of
a politics in which the virtuous few led the masses (and they even toyed
with the idea of a single supremely virtuous individual who might
guide the state in the interests of the ruled), each ultimately recognised
this as unrealistic since no individual or small group could be trusted
to remain virtuous in a situation of absolute power. The solution that
both hit upon was ultimately that no individuals, but rather the laws
should rule.
Plato states this verdict in no uncertain terms in the Laws:

In those states in which the law is subject to something else and

has no authority, destruction in such a state is at hand, in my
view. In states where law is the master of the rulers, and the rulers
are slaves to the law, I foresee salvation and all the good things
that the Gods give.

ἐν ᾗ μὲν γὰρ ἂν ἀρχόμενος ᾖ καὶ ἄκυρος νόμος, φθορὰν ὁρῶ τῇ

τοιαύτῃ ἑτοίμην οὖσαν· ἐν ᾗ δὲ ἂν δεσπότης τῶν ἀρχόντων, οἱ δὲ
ἄρχοντες δοῦλοι τοῦ νόμου, σωτηρίαν καὶ πάντα ὅσα θεοὶ πόλεσιν
ἔδοσαν ἀγαθὰ γιγνόμενα καθορῶ.47

Aristotle, although reaching the same conclusion as Plato that the

RoL is the best option for a well-run state, was more troubled (at least
than Plato at the time he wrote the Laws late in his life) by the problem
arising from the fact that laws cannot apply themselves to particular
situations and human interpreters are always necessary.
For example, in book III of the Politics, Aristotle discusses ‘whether
it is more advantageous to be ruled by the best men or the best laws’.48
Here he acknowledges the problem with a strong notion of the rule of

47 Plato, Laws 715d2.

48 Aristotle, Politics 1286a8–b5.
200 sara forsdyke

law, namely that ‘the laws enunciate only general principles’ and ‘do
not provide directions for dealing with circumstances as they arise’.49
Plato had wrestled with this problem in his dialogue The Statesman,
written before the Laws. In this work, Plato advocates the rule of a
wise individual in part because

legislation can never issue perfect instructions which precisely

encompass everyone’s best interests and guarantee fair play for
everyone at once. People and situations differ, and human affairs
are characterized by an almost permanent state of instability. It
is therefore impossible to devise, for any given situation, a simple
rule which will apply to everyone for ever . . . [The law] is like a
stubborn stupid person who refuses to allow the slightest devia-
tion from or questioning of his own rules, even if the situation
has in fact changed and it turns out to be better for someone to
contravene these rules.50

Building on Plato’s discussion in the Statesman, Aristotle observes

that the single ruler, rather than the laws, will decide better about
particular cases. Just as in arts such as medicine, practitioners are not
governed by written rules alone, so Aristotle observes, ‘it is clear that
government according to written rules is not the best’.51
After reaching this conclusion midway in his discussion, however,
Aristotle considers a countervailing point, namely that ‘a thing that
does not contain the emotional element is generally superior to a
thing in which it is innate’ and that the laws are free of ‘the emotional
element’ whereas men possess it. After flip-flopping back and forth in
this way, Aristotle ends with a new, but somewhat ambiguous conclu-
sion that while there is need of a human agent compose the laws, once
the laws have been formulated, they should be authoritative in all cases
except ‘where they go astray (ᾗ παρεκβαίνουσιν)’.52 While it is unclear
what precisely Aristotle means by this phrase, it is noteworthy that
the verb that Aristotle uses for the idea of ‘going astray’ (παρεκβαίνω)
has the same root as the noun (παρέκβασις) that Aristotle uses for the
‘deviations’ from the correct constitutions in his classificatory scheme
for constitutions.53 Aristotle distinguishes the deviant forms of con-
stitution (tyranny, oligarchy and democracy) from the correct forms
(kingship, aristocracy and constitutional government) by their failure

49 Aristotle, Politics 1286a10–13.

50 Plato, Statesman 294a; trans. Robin Waterfield.
51 Aristotle, Politics 1286a14.
52 Aristotle, Politics 1286a23–4.
53 I owe this observation to Josiah Ober.
 conceptions of the rule of law 201

to seek the common good (τὸ κοινῇ συμφέρον) and absolute justice
(τὸ ἁπλῶς δίκαιον).54 It seems likely, therefore, that Aristotle is here
envisioning circumstances in which the strict application of the law
does not result in an outcome that is in accord with the common good
and absolute justice.
The idea that the law should not be authoritative in all cases is
strengthened by Aristotle’s subsequent discussion. For, in the next
section of his argument, Aristotle narrows his inquiry to the question
of whether the rule of a single person or the citizens as a whole is
best ‘in matters in which it is impossible for the law either to decide
at all or decide well (ὅσα δὲ μὴ δυνατὸν τὸν νόμον κρίνειν ἢ ὅλως ἢ
εὖ)’.55 With this last phrase, Aristotle expands the category of areas
in which the laws ‘go astray’ to include not just matters in which the
law ‘does not decide well’, but those areas where it ‘cannot decide
at all’. In this statement, it is likely that he is referring again to the
fact – also acknowledged by Plato, as we have seen – that the laws
provide general principles but do not give directions for dealing with
particular circumstances. This impression is strengthened by the fact
that Aristotle goes on to state that currently ‘the citizens assemble to
administer justice (συνιόντες δικάζουσι) and deliberate (βουλεύονται)
and give judgements (κρίνουσιν)’ and ‘all these judgements (κρίσεις)
concern particular cases (περὶ τῶν καθ’ ἕκαστον)’.56
In sum, it is clear that Aristotle concludes that human rulers and
judges are needed not only to formulate the laws, but also to use their
own best judgement in the various circumstances in which the law
does not provide guidance. Therefore, while Aristotle clearly approves
of the RoL, his discussion shows that he recognises its limitations. It
is noteworthy, moreover, that Aristotle’s discussion above is clearly
framed not just in reference to judicial contexts (cf. his use of the
phrases ‘assemble to administer justice’ and ‘rendering judgements’)
but also to politics (cf. his use of the word ‘deliberate’ – βουλεύονται –
a word that is used of debate in the political Assembly and Council).
It is remarkable, therefore, that Aristotle – despite his anti-democratic
tendencies – concludes that the masses judge better than any single
individual in such circumstances. Strikingly, he suggests that this supe-
riority is not just because a multitude of people is harder to corrupt
than a single individual, but also because the cumulative effect of the
good judgements of individual citizens is greater than that of any
single person ‘just as a banquet to which many contribute is better

54 Aristotle, Politics 1279a18, 1289a26.

55 Aristotle, Politics 1286a24–6.
56 Aristotle, Politics 1286a26–8.
202 sara forsdyke

than a single plain dinner’.57 Yet, before we get too carried away and
think that Aristotle has become a democrat, he reminds us at the
end of the discussion that the masses should ‘do nothing apart from
the law except on matters about which the law must of necessity be
deficient (μηδὲν παρὰ τὸν νόμον πράττοντες ἀλλ’ ἢ περὶ ὧν ἐκλείπειν
ἀναγκαῖον αὐτόν)’.58
In advocating the RoL yet acknowledging its limitations in these
passages, Aristotle is thinking of both political and legal contexts,
as we have just seen. Examination of Aristotle’s discussions of the
virtue of justice in his ethical treatises, however, and his discussions
of legal strategies in his treatise on rhetoric, confirms and further
expands his understanding of the limits on the RoL in judicial settings.
Most significantly, in these works he explicitly acknowledges the need
to balance the RoL with notions of equity or fairness (τὸ ἴσον, τὸ
ἐπιεικές). Furthermore, Aristotle’s discussion in the Rhetoric confirms
that the laws were not the only factor determining the outcome of
legal cases in Athens, but one of several factors that juries considered
in determining guilt and punishment.
In his Nicomachean Ethics, for example, Aristotle outlines the virtue
of justice and suggests that it consists not only in what is lawful but
also in what is fair.

In fact, both the man who breaks the law and the man who takes
more than his share are considered unjust. It is clear then that the
just man is both law-abiding and fair. Justice then consists in both
that which is lawful and that which is fair, and the unjust is both
that which is unlawful and that which is unfair.

δοκεῖ δὴ ὅ τε παράνομος ἄδικος εἶναι καὶ ὁ πλεονέκτης καὶ

ἄνισος, ὥστε δῆλον ὅτι καὶ [ὁ] δίκαιος ἔσται ὅ τε νόμιμος
καὶ ὁ ἴσος. τὸ μὲν δίκαιον ἄρα τὸ νόμιμον καὶ τὸ ἴσον, τὸ
δ’ ἄδικον τὸ παράνομον καὶ τὸ ἄνισον.59

Similarly, in the Rhetoric, Aristotle notes that ‘The equitable seems to

be just and equity is justice that goes beyond the written law (τὸ γὰρ
ἐπιεικὲς δοκεῖ δίκαιον εἶναι, ἔστι δὲ ἐπιεικὲς τὸ παρὰ τὸν γεγραμμένον
νόμον δίκαιον).’60
In both of these passages, Aristotle affirms that justice is a broader

57 Aristotle, Politics 1286a30, with recent discussion by Waldron 1995 and Ober
2013.
58 Aristotle, Politics 1286a36.
59 Aristotle, Nichomachean Ethics 1129b.
60 Aristotle, Rhetoric 1.13.13; 1374a.
 conceptions of the rule of law 203

category than the laws alone, and that justice is achieved by con-
sidering fairness or equity alongside or in addition to the laws. The
latter passage above, however, is followed by the claim that it is the
arbitrator rather than the juror who considers equity, and indeed
Aristotle asserts that arbitration was invented precisely so that equity
could be considered.61 Yet when he subsequently considers the argu-
ments that can be made in the law-courts, he suggests that litigants
can use arguments from equity especially when the law does not
support their case. Moreover, he explicitly mentions the jurors’ oath,
thereby confirming that he is thinking of the Athenian law-courts in
his advice to litigants to use arguments about equity. Most striking in
this latter passage is the fact that Aristotle explicitly cites the jurors’
oath as evidence that considerations of equity could trump the law in
certain cases.

For it is evident that, if the written law is counter to our case,

we must have recourse to the common law (τῷ κοινῷ νόμῳ) and
equity (τοῖς ἐπιεικέσιν) as more in accordance with justice; and we
must argue that, when the juror takes his oath to decide to the
best of his judgement (γνώμῃ τῇ ἀρίστῃ), he means that he will
not abide rigorously by the written laws; that equity (τὸ ἐπιεικές)
is ever constant and never changes, even as the common law
(ὁ κοινός), which is based on nature, whereas the written laws
often vary. This is why Antigone in Sophocles justifies herself for
having buried Polyneices contrary to the law of Creon, but not
contrary to unwritten law (οὐ παρὰ τὸν ἄγραφον): ‘For this law is
not of now or yesterday, but is eternal . . .’ . . . For the judge is
like a tester of silver, whose duty is to distinguish spurious from
genuine justice.62

Interestingly, in this passage Aristotle mentions not just equity

but ‘common law’ as elements of justice that go beyond the written
law. Furthermore, he contrasts written law with unwritten law, and
places ‘common law’ and ‘equity’ in the latter category. Finally, and
most significantly, he explicitly takes these additional considerations
– common, unwritten laws about what is equitable – as glosses on the
key phrase in the jurors’ oath that we discussed above. For Aristotle,
therefore, the jurors’ promise ‘to decide to the best of one’s judge-
ment’ does not refer simply ‘to matters for which there are no laws’
but to any considerations that go beyond the written letter of the law,

61 Aristotle, Rhetoric 1.13.19.

62 Aristotle, Rhetoric 1.15.3–7; trans. Freese, slightly adapted.
204 sara forsdyke

including considerations of equity (τὸ ἐπιεικές) and generally agreed-

upon norms (ὁ κοινός νόμος).63
If this conclusion is accepted, then there are clear consequences
for our assessment of the Athenians’ realisation of the ideal of legal
certainty. For if jurors considered factors apart from the written law,
then legal decisions were not the predictable result of the mechanical
application of the law as some ancient sources, and modern legal
positivists, prefer. Legal uncertainty would then be the result, particu-
larly if considerations of equity are brought to the table, since much
would depend on the particular individuals and context, rather than
the laws themselves, in the outcome of a trial. On the other hand, one
may well ask whether generally accepted – albeit unwritten – norms
of behaviour (identified by the Greeks as ‘common’ or ‘natural’ law)
could form a reliable guide to behaviour whereby individuals can
know the norms ‘so that they can abide by [them] and plan their
lives accordingly’.64 It is striking in this regard that lists of unwritten
norms in our sources tend to name a standard set of behaviours,
suggesting generally agreed-upon behaviours that could predictably
result in punishment.65 Similarly, one might note that the instances of
popular justice discussed above involve certain universally condemned
behaviours (adultery, treason) that seem to have predictably triggered
punishments.
It is clear that the Athenians themselves were troubled by the
tension between their recognition of the good of legal certainty and
their desire to preserve some flexibility in the application of the law,
especially in recognition of equity concerns. One reflection of this
unease is the passage of a new law by the restored democracy in
403 bce that forbade the use of unwritten law.66 Nevertheless, some
litigants still appeal to the standard of unwritten law after the passage
of this law, and Aristotle’s own endorsement of such arguments in the

63 The ancient term ‘common law’ is not equivalent to the modern concept of
common law, of course, but is rather equivalent to ‘natural law’, the idea that there
are certain generally accepted norms which are so universally accepted that they
are not necessarily written down in law (although they may be). For the Greeks,
standard elements of common or natural law include the obligations to honour
one’s parents, to return favours to benefactors, to avoid incest and to bury the dead
(as in the example Aristotle cites above). Key ancient sources include: Sophocles,
Antigone 453–7; Isocrates, Panathenaicus 12.168–9; Xenophon, Memorabilia 4.4;
Plato, Laws 636a–c, 838a–d, 841a–b; Demosthenes 10.40; Pseudo-Demosthenes
25.65–6; Rhetorica ad Alexandrum 1421b36. I thank B. W. Frier for drawing my
attention to these passages.
64 A cardinal principle of the modern ideal of legal certainty, according to Maxeiner
2007: 549.
65 See above, n. 63.
66 Andocides 1.87.
 conceptions of the rule of law 205

passage above suggests that they could still influence the outcome of
legal trials.67
Broader consideration of the design of the Athenian system
of justice, furthermore, suggests that little attempt was made to
police  the  boundaries of written law or exclude considerations
of  equity.68 As many have observed, Athenian juries, consisting of
large  numbers of ordinary citizens and no professional lawyers or
judges, seem designed to ensure that fairness, as judged by a group of
peers, rather than formal law was the determining factor in deciding
justice.69
Significantly, even scholars such as Edward Harris, who has argued
strenuously that the Athenians adhered to a fairly rigorous standard
of the RoL, admits in his discussion of the jurors’ oath that there was
‘still . . . room for considerable debate about how to apply the law’
and ‘the question of how to apply the general rules contained in the
laws to particular situations might . . . be not all that straightforward’,
and that ‘an appeal to fairness . . . that is, to other principles implicit
in the laws . . . might take precedence over the law’.70 A key point
of disagreement remains, however, as to how often this occurred.
Strikingly, scholarly debate about ancient Athens echoes modern
disagreements on this point. Harris’ conclusion, for example, recalls
the quotation of Scalia cited above: ‘In most cases, the application of
the law was a simple matter of deductive reasoning once the facts were
established.’71
Summing up this discussion of the evidence of the law-courts, we
might conclude that while the rhetoric of the courts in the fourth
century often articulated the ideal of the RoL, the jurors’ oath both
reinforced this ideal and acknowledged its impossibility. As we have
seen, the oath sanctioned the jurors’ use of their own judgement in the
inevitable situation where either there were no laws, or the applicabil-
ity of a law to a particular circumstance was either unclear (i.e. needed
interpretation) or could result in unfairness. This is not to say that the
jurors ‘could dispense with the law when making decisions’.72 Rather,
the Athenians wisely recognised that the law could never operate on
its own, and that inevitably jurors would need to use their interpreta-
tive skills and moral judgements as to what was just in a particular
circumstance. Moreover, it turns out that even the most adamant

67 See, for example, Lysias 6.10–11; Demosthenes 18.275, 23.70.

68 See also Carugati and Weingast, this volume.
69 For recent discussion, see Lanni 2004; 2006; 2009; 2013.
70 Harris 2013: 137.
71 Harris 2013: 137.
72 See Harris 2013: 103 for this characterisation of one side of the debate.
206 sara forsdyke

supporters of the RoL in ancient Athens, namely philosophers with

aristocratic sympathies such as Plato and Aristotle, recognised these
practical limitations and acknowledged the important role of interpre-
tation, supplementation and judgements of fairness that go beyond
the strict letter of the laws.

4 THE RULE OF LAW AND ATHENIAN

DEMOCRACY
In this chapter, I have demonstrated that the ancient Athenians did in
fact recognise all three aspects of the modern concept of the RoL: legal
supremacy, legal equality and legal certainty. Yet I have also shown
that they acknowledged the practical constraints on the full realisation
of the ideal, and the need for balance against other socially recognised
goods. In the final part of the chapter, I turn to an assessment of the
implications of this interpretation for the question of the success of the
Athenian democracy and its viability as a model for thinking through
the challenges of modern democracy.
As mentioned at the beginning of the chapter, the Athenian democ-
racy has often been compared unfavourably to modern liberal democ-
racies, particularly for its alleged tendency to devolve into ‘mob rule’
and failure to protect individual rights.73 Key illustrations of these
failings are found in the institution of ostracism as well as in a number
of episodes in Athenian history in which the Athenian democracy
is thought to have behaved irrationally and disastrously (the failed
attempt to conquer Sicily in 415–413 bce), brutally (the conquest of
Melos in 415 bce), tyrannically and contrary to its own political and
legal principles (the collective trial of the Arginusae generals in 406
bce and the trial of Socrates in 499 bce). In response, Josiah Ober
has pointed out that the Athenian democracy lasted as a relatively
stable regime for almost two hundred years, with only two brief inter-
ruptions. Moreover, Ober explained this stability through a brilliant
analysis of the ideological underpinnings by which individual and
collective goods were harmonised, particularly by harnessing elite
leadership for democratic ends.74
Ober’s subsequent studies have focused on the knowledge-
optimising effects of Athenian institutional design and the prosperity-
enhancing effects of the Athenians’ democratic institutions.75 Moreover,

73 This critique goes all the way back to the Enlightenment and continues in modern
assessments such as Samons 2004. For orientation in modern critiques of ancient
democracy, see Roberts 1994; Dunn 2005; Cartledge 2016.
74 Ober 1989. See, however, Carugati and Weingast, this volume, for some criticisms.
75 Ober 2008; 2015.
 conceptions of the rule of law 207

Melissa Lane, building on my own study of ostracism, has argued that

this institution is not an example of the irresponsible and tyrannical
rule of the masses, but rather a quite limited and restrained method of
stabilising and preserving democracy.76 The limit of one ostracism per
year, the requirement of a quorum of 6,000 Athenians and the tempo-
rariness of the term of exile all constrained the use of this instrument
and turned it into a largely symbolic expression of popular power. Lane
furthermore emphasises the ways that the Athenians scrutinised office
holders, including councillors and jurors, before and after their terms
of office and in this way promoted accountability and responsibility.
The jurors’ oath is itself evidence of how seriously the Athenians took
their legal responsibilities.
The current chapter contributes to and complements this line of
argument by showing that the Athenians were fully cognizant of the
key elements of the RoL and strove to achieve them within certain
limits. I have argued that the Athenians were in fact very successful
at achieving the principles of legal supremacy and legal equality, and
with the exception of two brief oligarchic interludes, largely adhered
to them. This is a remarkable achievement and deserves emphasis.
In this context, the failure to grant the Arginusae generals individual
trials – that is, give them the full protection of the law – appears to
be an exception which proves the rule. As noted above, our sources
decried this transgression and the instigator of this unlawful condem-
nation, one Kallixeinos, paradoxically became the victim of a harsh
instance of popular justice himself.
The case of Kallixeinos brings up the issue of extra-legal justice
– a topic that has gained relatively little attention in debates about
the RoL in classical Athens. I briefly noted above that the existence
of customary popular modes of justice provides another exception
to the RoL and particularly the principle of legal supremacy. While
it is certainly true that popular justice violates the RoL in the sense
that popular justice did not follow the dictates of written law and
formal legal procedures, nevertheless one of the results of my studies
of this aspect of popular culture was to show that the ‘violence’ of
these episodes was not ‘arbitrary’ but followed communally accepted
(though unwritten) codes of conduct.77 The ritualised nature of these
modes of justice, I suggest, conforms to unwritten rules that were
well known and predictable in the same way as written laws. In
this sense, popular justice was not necessarily in tension with legal
certainty. Nevertheless, victims of popular justice were denied the

76 Lane 2015; Forsdyke 2005.

77 Forsdyke 2008; 2012.
208 sara forsdyke

right to a trial in most instances and therefore it is quite true that

the Athenian adherence to this principle was malleable in such
instances.78
In addition to this acknowledgement of the blending of formal
and informal modes of justice, this study also demonstrates that the
Athenians deliberately set limits on the RoL in ways that further
impacted its achievement of legal certainty. The Athenians were fully
aware of the need for interpretation of the law and particularly the dif-
ficulties of deriving just decisions in particular cases by relying on the
law alone. The jurors’ oath and the passages from Aristotle demon-
strate that the Athenians expected jurors to use their best judgements
about justice in situations where the law was ‘deficient’ in the broadest
sense of the word. The Athenians considered decisions holistically and
in context, and expected their fellow citizens to render judgements in
the law-courts in accordance with an expansive conception of justice
that considered fairness and equity alongside the strict letter of the
law. In sum, the Athenians understood that legal certainty – though
an agreed-upon good – was not realisable in an absolute sense and
furthermore that, even if it were, strict application of the letter of the
law was not always in accord with justice.
This mixed conclusion reflects the compromise that the Athenians
made and explains why there has been such heated debate on the
question of the RoL in Athens. I suggest that the Athenians achieved a
high degree of the RoL, yet also wisely recognised the necessary trade-
offs. In some sense this conclusion is a vindication of the Athenians,
since, as I have suggested throughout this chapter, even modern legal
systems must balance the good of legal certainty with recognition of
the practical and moral limitations on its realisation.
In this latter regard, moreover, it may also be observed that the
Athenians adopted a thick-ish understanding of the RoL in which
certain fundamental protections were afforded. For example, the
Athenians enjoyed personal liberty and security, freedom of speech
and association, as well as equal access to the law, including the right
to a trial.79 While these ‘rights’ are limited compared to modern con-
cepts of human rights, they represent a commitment to freedom and
equality that was sufficient to sustain democratic citizenship.80 It must
be emphasised, of course, that such ‘rights’ were only afforded to citi-

78 In one type of trial, ‘for unjust confinement of a person as an adulterer’, the victim
appears to have had legal redress for the customary practice of detaining, tortur-
ing and extorting ransom from a presumed adulterer. See Pseudo-Demosthenes
59.66 with discussions in references above, n. 77.
79 Hansen 1999: 76–7; Ober 2017.
80 Ober 2017.
 conceptions of the rule of law 209

zens, and hence a better term in this context might be ‘citizen rights’
rather than ‘human rights’.81
Before we rush to condemn the Athenians for allowing broader
norms to influence the outcome of legal cases, we must remember that
recently modern legal theory has moved away from notions of the
RoL as strictly based on rule application and has argued that substan-
tive concerns based on notions such as freedom, equality and fair-
ness are compatible with the RoL.82 Some scholars even suggest that
modern legal practice can learn from the ancients by acknowledging
the complexity of human affairs and allowing room for considerations
of equity.83 While there is certainly a fine line between maintaining
the RoL and allowing for some flexibility in the application of laws
according to context, it seems that both modern and ancient Greek
legal thought and practice recognise the tension and the need for
compromise between these forces.

I would like to thank Bruce Frier, Adriaan Lanni and Nina Mendelson
for helpful guidance in modern legal scholarship. They are, of course,
not responsible for the misunderstandings that remain. This chapter
was presented in various forms at Hull (UK), Michigan, Stanford,
Toronto and Edinburgh and I thank audiences at each of these institu-
tions for valuable feedback.

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