Dr Mirko Canevaro (Chancellor's Fellow, Classics; IASH Fellow): Rule of Law and Constitutionalism in Ancient Athens.
Abstract:
‘There can be no doubt that, at least in principle, the Athenians had a conception of the sovereignty of the law as fundamental to their freedom and public life. But did the Athenians have a conception of the ‘rule of law’ that at least to some extent resembles our modern conceptions? Or, by attributing the slogan the ‘rule of law’ to the Athenians, are we imposing an anachronistic modern idea on the ancient evidence? This paper investigates, in dialogue with scholarship in legal theory and in Greek legal history, the problem of whether, in what ways and to what extent the Athenian state idealised and institutionalised an ideal comparable to modern conceptions of the rule of law. It provides an account of the relevant ancient procedures, of the discursive practices that accompanied them in court, and of wider theoretical reflections on the problem in the ancient evidence. It also studies ancient conceptions and practices in terms of ‘thin definitions’ and ‘thick definitions’ of the rule of law. The paper argues that it would be impossible to see in the Athenian conception any level of adherence to specific modern ‘thick definitions’, quite simply because the moral and community values that were shared and therefore enshrined in the laws were are not the same as those that we embed in thick definition of the rule of law today, and the Greeks did not conceptualize human rights as such, consistently, the way we do. Citizen rights and the rights of free men were enshrined in the legal order, not human rights, in any meaningful sense. This creates, of course, a different understanding of some of the ‘substantive’ aspects of the rule of law. Nevertheless, I argue that there are significant similarities between both the conceptions and the practice of the rule of law, from a procedural as well as, to an extent, from a substantive point of view. I shall also stress that the Athenian conception of the rule of law was uncompromisingly a ‘thick’ one, in which the Athenians included, as fully embedded, a clear understanding of civic equality and freedom, as well as the right to honorable treatment according to community rules of behavior that were enshrined in the laws.’