Several years ago I argued that the Athenian courts did an excellent job of resolving disputes fairly and quickly, not despite, but because of the absence of procedural and evidentiary rules. What I have tried to show here is that these same courts did not merely resolve disputes, but also played an important role in shaping and enforcing norms. Ironically, the aspects of the Athenian legal system that seem to us the most removed from a “rule of law” may actually have been the most effective in fostering order and compliance with norms. The citation of laws other than the specific law under which the case was brought may have helped foster order through the law's expressive function. For example, the frequent references to hubris in court cases, including discussion of the protection of slaves under the law, may have had a symbolic effect even though cases under the hubris statute were rare, and even though there may have been no hubris cases brought on behalf of slaves. We have also seen that the use of character evidence, including descriptions of an opponent's bad behavior in completely unrelated situations, may have helped foster order by boosting deterrence and compensating for underenforcement in a regime that depended on private initiative. Moreover, the lack of strict legal rules and the jurors’ ad hoc approach toward decision making made it easier for litigants to advocate for changes in the law and for jurors to accommodate shifting norms, thereby bringing the law into line with current community sentiment. And the loose approach to evidence allowed the Athenians to accomplish transitional justice goals within the framework of the ordinary popular courts.

In describing each of the non-Austinian mechanisms for maintaining order in Athens, I have drawn insights from modern legal sociology as a jumping-off point, adapted to the Athenian context and complicated through thick historical description. In some respects, the sociological models appear to be more applicable to Athens than to contemporary legal systems: the unusual publicity surrounding and frequency of Athenian trials make it much more plausible that discussion of unrelated norms in court served a disciplinary role, that statutes would have an expressive effect, and that court arguments and verdicts would play a strong role in shaping norms.

What role did straightforward deterrence play in maintaining order in Athens? That is, did the imposition of penalties in court cases induce compliance with the norms expressed in Athenian statutes? We will see that the Athenians’ reliance on private initiative to enforce the law resulted in sporadic enforcement, particularly with respect to victimless crimes. Moreover, Athenian courts did not predictably and reliably apply the statute under which a given case was brought. This uncertainty regarding prosecution, trial outcomes, and enforcement of judgments must have weakened the deterrent effect of Athenian statutes. At the same time, the Athenians provided special mechanisms to ensure more straightforward enforcement of laws in a few circumstances: selected market and shipping transactions, and offenses that threatened public order, including certain theft-related offenses and threats to the state. In this way, Athens ensured a minimum level of public order and economic security, making it possible for order to be maintained despite a more limited formal coercive apparatus in the rest of the system.

The Underenforcement of Athenian Statutes

Fear of statutory penalties undoubtedly played a role in inducing compliance with statutory norms. Indeed, Athenian court speakers, particularly prosecutors urging a conviction, often suggest that legal penalties deter wrongdoers. But the sporadic and unpredictable enforcement of statutes must have weakened incentives to comply in some situations. Classic deterrence theory typically considers deterrence a function of the certainty of punishment and the severity of the sanction. Modern legal theorists have pointed out that a high risk of conviction has a much stronger effect on deterrence than the severity of the penalty. We will see that the absence of public prosecutors and the reliance in most cases on private initiative for prosecution and enforcement of judgments resulted in underenforcement of statutes, particularly in the case of “victimless” public offenses. By lowering the probability of punishment, the reliance on private initiative reduced deterrence. Moreover, the vagueness of Athenian statutes, absence of binding precedents, and broad notion of relevance meant that while Athenian courts enforced general norms of fairness and good citizenship, they did not reliably and predictably enforce the legal norms expressed in statutes. The broad uncertainty regarding trial outcomes also reduced the deterrent effect of statutes.

The most obvious explanation for Athens’ orderliness in the absence of a strong state may be that informal controls such as social sanctions and internalized norms were much more important than the operation of the law courts. After all, recent research suggests that fear of punishment is not the primary reason contemporary Americans obey the law, and no society could function if all citizens operated as Holmesian “bad men,” restrained only by the likelihood of detection and punishment. It may be tempting to think that informal controls must have been even more potent in a small, relatively homogenous, city-state like Athens. But the power of informal mechanisms, standing alone, is easily overstated.

This chapter explores the four major categories of informal social control in Athens: social sanctions like ridicule and shunning; internalized norms (i.e., compliance based on belief in the norm rather than the fear of getting caught); self-help and private discipline such as revenge killings and private punishment of slaves; and alternative dispute resolution like settlement and arbitration. I argue that these methods, though significant, were less pervasive and effective than one might think. Specifically, I contend that social sanctions may not have been as frequent or as powerful as is commonly supposed, that internalized norms were unlikely to have been the primary factor driving widespread compliance, that self-help and private discipline, though important, were primarily limited to matters involving the household, and that alternative dispute procedures applied only to private disputes and therefore could not promote compliance with public norms. Perhaps most important, I explain how the operation of each of these “informal” mechanisms was dependent in critical respects on the formal legal system.

Throughout, I emphasize the limitations of informal means of social control in Athens not because I believe these mechanisms were unimportant – quite the contrary. Rather, my argument is simply that informal means of control alone cannot explain the enigma of Athens’ orderliness. This book seeks to illuminate the role played by formal legal institutions, a role that has not been fully appreciated and explored. As we will see in Chapters 3–6, to understand how order was maintained in Athens, we will need to examine the various ways in which formal legal institutions interacted with informal mechanisms to foster compliance with norms.

Given that the Athenian courts did not predictably enforce statutes, a traditional Austinian view of law would suggest that Athenian laws played little role in maintaining order. But a law's impact is not limited to the direct effect produced by the sanction or incentive created by a law; law can serve a variety of other roles – symbolic, constitutive, for example – that have profound effects on society. Some scholars working on modern law have tried to describe some of the mechanisms through which a law may strengthen, weaken, or change social norms and thereby indirectly affect individuals’ behavior. To cite a simple example, an antilittering ordinance may have a significant impact even if it is rarely (or never) officially enforced. The law may serve an “expressive function,” communicating that the community disapproves of those who litter, and emboldening individuals to enforce the law informally, thereby changing both the norms and behavior surrounding the disposal of waste. Other modern examples of statutes that have significant symbolic content and may have important independent expressive effects include antidiscrimination laws, drunk driving laws, and hate crime legislation.

In this chapter I argue that Athenian statutes played an important role in fostering compliance with law even though they were not predictably enforced through the courts. I try to show that Athenian statutes had important effects on Athenian social life quite apart from any direct effects of the sanction provided in the law. Drawing on recent research by legal scholars and sociologists on the mechanisms of social influence, I first discuss the theory of the expressive function of law and the benefits of applying these insights to ancient Athens. I also try to identify some features of Athenian life (such as the greater popular participation in government and the judicial process) that may have made the expressive power of laws greater in Athens than it is today in the United States. I then provide case studies of two sets of Athenian statutes whose impact extended well beyond the relatively few cases in which they were enforced through the court system.

In the first case study, I examine the expressive effects of the statute prohibiting hubris (“outrage” or intentionally treating someone with dishonor). This statute was unusual, perhaps unique, in that it protected slaves as well as freepersons. But because slaves did not have standing to bring suits, this law was rarely enforced in court.

Thucydides famously describes how Corcyra and other Greek cities were convulsed by civil wars between oligarchic and democratic factions during the Peloponnesian War, leading to a complete breakdown of civil society. Violence and mistrust spiraled out of control with no end in sight:

Toward the end of the war, Athens experienced a civil war marked by horrific violence: in an eight-month period at the end of the fifth century, an oligarchic coup resulted in the killings of between 5 and 10 percent of the citizenry and the expulsion, by some accounts, of more than half its population. But unlike other Greek states, Athens pulled itself back from the brink. When the oligarchy was overthrown, an amnesty was instituted for all but the top officials in the former regime, and the restored democracy endured without significant internal threat until Athens was conquered by Philip of Macedon in 338 BCE. The Athenian reconciliation was admired throughout Greece for its success in avoiding the cycle of revolution and counterrevolution that afflicted other cities.

This chapter describes how Athens’ legal institutions helped restore order after the civil war. The civil war, the reconciliation agreement, and the rhetorical echoes of these events in Attic oratory have been extensively studied. The goal of this chapter is not to provide a comprehensive account of why the reconciliation succeeded. Rather, I want to present the Athenian reconciliation as a single episode that illustrates the various ways in which the courts maintained order in the absence of a rule of law that we have been exploring in the previous chapters. That is, the Athenian response to civil war demonstrates how Athenian courts fostered order and a peaceful transition, though not through the familiar Austinian mechanism of imposing sanctions for violating statutes.

To a modern, this may not seem surprising. Modern transitional justice mechanisms typically take the form of special war crimes tribunals, truth and reconciliation commissions, and administrative justice procedures that disqualify those involved in the former regime from public office or employment.

This book is motivated by a puzzle. Classical Athens had only a limited formal coercive apparatus to ensure order or compliance with law. There was no professional police force or public prosecutor, and nearly every step in the legal process depended on private initiative. Moreover, Athens did not have a “rule of law” in the sense that the courts did not enforce norms expressed in statutes in a predictable and consistent manner. And yet Athens was a remarkably peaceful and well-ordered society by both ancient and contemporary standards. Why? This book draws on contemporary legal scholarship that understands “law” as the product of the complex interaction between formal and informal norms and institutions to explore how order was maintained in Athens.

Before turning to solutions, it may be helpful to examine each piece of the puzzle. First, what does it mean to say that Athens was a peaceful, well-ordered society? At the most basic level, Athens enjoyed remarkable political stability, particularly by comparison to other Greek city-states and the Roman Republic. Aside from two short-lived oligarchic revolutions near the end of the fifth century, both of which were precipitated by major military defeats, the democracy largely avoided serious civil and political violence and unrest throughout the classical period.

The level of ordinary crime and violence is harder to assess and impossible to quantify, but our evidence suggests that Athens enjoyed “relatively low rates of criminality.” Literary sources indicate that it was not unusual to walk alone or at night in both the city and the countryside without excessive fear of crime. Athenians did not ordinarily carry weapons, and the fights and violence that did occur were generally limited to the use of fists, stones, sticks, and potsherds. Despite the existence of banks for safekeeping, we hear of Athenians keeping significant amounts of money and valuables in their homes. To be sure, there is also evidence of theft, banditry, drunken brawls, and enmity erupting into violence. But the overall picture that emerges is one in which fear of crime and violence did not disrupt everyday activities.

The mechanism for fostering order that I described in the previous chapter – enforcing extralegal norms through formal court processes – focused on norms that were relatively stable and uncontroversial. But what about norms that were unclear or in flux? Arguments in Athenian courts not only reinforced existing norms but also helped shape them. This chapter explores how the courts promoted order by providing a public forum for collective norm contestation and definition. After a general discussion of the features that made the Athenian courts particularly favorable sites for shaping norms, I turn to a number of short case studies in which court speakers debate controversial norms relating to pederasty, interpersonal violence, self-help, and the military and civic responsibilities of private citizens.

The Courts as Sites for Debating and Shaping Norms

In the absence of a formal education system or a religion with moral content, it is unsurprising that the city's political and legal institutions played a central role in shaping as well as reinforcing shared norms of conduct. Several aspects of the Athenian court system made it a particularly effective forum to elaborate public norms. Some of these features – such as publicity and the opportunity for dialogue – also existed in the Assembly, the other formal legal institution that helped shape norms in Athens. While legislative debate in the Assembly produced a more focused discussion and decision regarding a particular norm, we will see that the courts’ ad hoc and incremental approach may have actually given it some advantages over the Assembly as a forum for the elaboration of norms.

Perhaps most important is the sheer volume of debates over norms that took place in the courts. While the Assembly normally met forty times a year, the courts were in session approximately 200 days a year. Moreover, controversies over the norms most critical for maintaining order – those relating to interpersonal relations, violence, business transactions, and the duties of citizenship – were likely to come up more often in the context of the courts than in political assemblies. To take one example, in Chapter 1 we examined the statutes governing the use of violent self-help.