Conceptions of Law in Classical Athens
This thesis investigates the underlying assumptions Athenians had about their laws: it seeks to ask what Athenians assumed their laws were for, and where they thought those laws got their authority. It neither answers nor seeks to answer the difficult question of how Athenian juries made decisions, but by focussing on Athenian conceptions of their laws it offers a tool for those who would study Athenian litigation and legislating.
These questions are first explored through a study of the responses of the restored democracy to the remnants of the Thirty’s attempts at legislating. The various and inconsistent responses made help to frame jurisprudential questions within the actions of democratic Athens.
The modern jurisprudential theory of interpretativism is used to access Athenian ideas on the principles assumed to underlie Athens’ laws, and the thesis argues that Athenians were equally likely to present arguments which rely on polis expediency as the principle underlying Athens’ laws as they were to present arguments relying on justice as that principle.
The same theoretical framework is used to explore the accepted role of morality as the principle underlying Athens’ laws and the thesis argues that though morality could be used for this purpose, such uses were rare. The thesis then explores Athens’ weak enforcement of laws and weak ideal of obedience to law as law and concludes that the enforcement of morality did not form a large part of Athenians’ assumptions about what their law was supposed to achieve or from where it drew its authority.
How far Athens recognised the authority of law via the authority of the person or body which made that law is then explored. Fourth-century Athenians are shown to have held ambivalent views about democratic law making and law makers, and the thesis concludes that democratic Athens’ respect for its ancient lawgivers came to affect its ability to fully realise its own institutions’ legislative authority.
Finally, the thesis looks at Athenian idealised views of Spartan law to clarify the questions raised in the study of Athenians’ conceptions of their own laws.