Are we giving Athens too much credit?

[Craig B]

... A system in which anything can be legal or illegal, depending on who has the better lawyer and how the mob opinion goes that day, is not the rule of the law.

I had in mind a famous episode where that doesn't seem to have been the case. The jury was constrained; it was obliged to vote for the punishment suggested by the defence or the prosecution, and no other sanction was available to it.

When Socrates was tried, the prosecution’s suggested punishment was death. Socrates suggested punishment was free meals for life. The court gave him another chance to choose a punishment. Socrates suggested his punishment be a cash fine of one piece of silver. Socrates did not leave the jury a lot of choice. Out of the two choices facing the jury – punishment by death or punishment by payment of one piece of silver, the jury voted overwhelming for death. If Socrates had suggested something more severe, the jury probably would have voted for it.

ghttp://greece.mrdonn.org/athenscourt.html

 

[Belz...]

Are we giving Athens too much credit?

I don't know. They keep exceeding their card limit.

 

[Craig B]

I don't know. They keep exceeding their card limit.

Back to the silver tetradrachm!

 

[Belz...]

Well, I don't know who this "we" is, but personally I've always thought that Greece's contribution to modern society was pretty limited, and almost entirely amounts to secondary influence through the Roman state.

Well the Romans spread the Greek's ideas a lot, but whenever I read about ANY damn subject, the first people to think about it and develop it were Greeks. It's almost a running joke in history.

 

[HansMustermann]

I had in mind a famous episode where that doesn't seem to have been the case. The jury was constrained; it was obliged to vote for the punishment suggested by the defence or the prosecution, and no other sanction was available to it. ghttp://greece.mrdonn.org/athenscourt.html

Not sure why you think that is a counter-point to what I was saying.

First of all, the prosecution was not some DA constrained by laws and rules, but just whatever guy who thought he can stirr them mob against you. In any way he can.

Far from making it not be rule of the mob, it's really how mobs work. They're not telepathic borg hives, but just a bunch of guys following some loud mouth.

Second, it's still not rule of the law, because that guy is not constrained in what punishment he can demand and what for. There was no code of law to say, 'no, having an unpopular political opinion is not a crime' or 'no, you can't demand a death penalty for that, it only deserves a fine.' The very fact that a court can't put a limit on it is the problem.

ETA: and I say "guy" everywhere above, because in Athens it had to be a guy. Women couldn't speak in court at all. If you were a woman and were accused or something, your husband or father would speak for you, or if you had neither, only the accuser would speak. And you could never be the accuser.

 

[Craig B]

Not sure why you think that is a counter-point to what I was saying.

Because you were saying that Athens was not a place where

there are some laws and rules you can know in advance, and you will be tried by those. A system in which anything can be legal or illegal, depending on ... how the mob opinion goes that day, is not the rule of the law.

and my example appears to contradict that to some degree by showing a jury constrained by rules about the punishments it could apply. It would have been illegal for it to have inflicted any other than one of those suggested by the prosecution or the defence, and it obeyed this law, even though the inclination of the jurors would probably have dictated another sanction.

 

[HansMustermann]

Ok, I'll bite: how could you know in advance what is not illegal for you to do, or what punishment will the prosecutor demand? Otherwise, the fact that the jury can't change whatever arbitrary thing some guy pulled out of the ass on the spot, is not really making it the rule of the law.

 

[Craig B]

Ok, I'll bite: how could you know in advance what is not illegal for you to do, or what punishment will the prosecutor demand? Otherwise, the fact that the jury can't change whatever arbitrary thing some guy pulled out of the ass on the spot, is not really making it the rule of the law.

But it couldn't change it, vote as it might. That may not of course be a full rule of law, but the jury was not a mob, even when it perpetrated miscarriages of justice. We have seen these in the UK as well.

I have to say that I have a strong aversion to the Roman state. Athens was destroyed from without, after insanely enfeebling itself through nearly three decades of war. But Rome produced the destroyers of its res publica from its own belly, as Agrippina the Younger conceived Nero.

 

[HansMustermann]

Just to make it clear, when I talk about the rule of the law, I'm talking about the formalist interpretation of what that means. Which requires the law to be prospective, well-known, and have characteristics of generality, equality, and certainty.

The Athenian system lacked at the very least the aspects of:

- prospective: there were no set of rules for the future, as such. Except, duly noted, for how juries should work. But other than that, is there anything saying you're not doing anything wrong by speaking in favour of peace with Sparta? Or even by being the prosecutor in a trial? No, there was no such thing. Even starting a trial within the legal framework could get you then tried for it and executed, as those who accused those admirals discovered the hard way.

For most practical purpose, their law was fundamentally retroactive. They sought to decide if what had been done was ok to do, rather than tell you whether it's ok to do something in the future.

- well known: there were no rules for anyone to know, other than how juries should work. It could not be well known whether you must risk more ships to rescue survivors in a storm, and in fact even retroactively they flipped between it being wrong and being right. Pretty much whatever you contemplated doing, there was no way to be well known whether it's ok or not. In fact, there was nothing to know until the jury voted on that.

- certainty: ditto

 

[HansMustermann]

But it couldn't change it, vote as it might. That may not of course be a full rule of law, but the jury was not a mob, even when it perpetrated miscarriages of justice. We have seen these in the UK as well.

Also the point is that those were not miscarriages of justice. It was their normal justice.

In the UK you can at least know in advance that you can't give a guy 20 years in prison for speaking in favour of staying in the EU. In Athens you couldn't know that. If the prosecution demanded exile for life, and they were good at sophistry, that was that. It wasn't a miscarriage of justice, it was their idea of justice.

 

[Craig B]

... In the UK you can at least know in advance that you can't give a guy 20 years in prison for speaking in favour of staying in the EU. In Athens you couldn't know that.

You probably still can't, the way things are going there EU-wise.

 

[HansMustermann]

Look, joking about the EU is good and fine, but let's put it like this: if you were considering expressing an opinion either pro or against going to war with Iran tomorrow, could you know before the fact whether it's legal to do so or not?

[ ] Yes
[ ] No
[ ] Maybe

What I'm saying is that in ancient Athens, you could not know whether it's ok or not to do that. Again, at least one politician got chucked out of his own country for wanting peace with Sparta.

Arguably for most stuff they didn't even have a notion of something being legal or illegal. "Pious" was the closest. Those courts determined retroactively if something was wrong to do or not, in the absence of some law that says it was illegal or not.

 

[ddt]

Because you were saying that Athens was not a place where and my example appears to contradict that to some degree by showing a jury constrained by rules about the punishments it could apply. It would have been illegal for it to have inflicted any other than one of those suggested by the prosecution or the defence, and it obeyed this law, even though the inclination of the jurors would probably have dictated another sanction.

There's a distinct difference between the point Hans is making and your example. Your example is an example of procedure, while Hans points to the list of crimes and possible sentences. They're typically contained in different law books nowadays, for instance, in Germany:
- the Strafgesetzbuch lists the crimes and the possible sanctions against them;
- the Strafprozessordnung details how a criminal trial is to be conducted.
And frankly, you need both for the rule of law to be functional. And nulla poena sine lege is a very fundamental legal principle.

I have to say that I have a strong aversion to the Roman state. Athens was destroyed from without, after insanely enfeebling itself through nearly three decades of war. But Rome produced the destroyers of its res publica from its own belly, as Agrippina the Younger conceived Nero.

The Roman Res Publica's destruction started with Marius' army reforms and Sulla's proscriptions. Caesar gave the death blow. Augustus just pretended there was still a republic.

 

[Craig B]

... The Roman Res Publica's destruction started with Marius' army reforms and Sulla's proscriptions. Caesar gave the death blow. Augustus just pretended there was still a republic.

Yes it was drowned in what

was a minor river even during Roman times (“parvi Rubiconis ad undas” as Lucan said, roughly translated "to the waves of [the] tiny Rubicon")

(wiki) But deep enough to annihilate a great republic.

 

[HansMustermann]

Well... kind of. A few things need remembering;

1. Sparta was a Monarchy, but it also practised democracy, and over time power shifted from the hereditary kings to the democratically elected ephors.
2. Taras (as the colony was called) was founded by exiles from Sparta.
3. While Taras was founded as a monarchy, in about 466 BC it became a democracy.

That is, of course, true, but for the topic of who did the Roman Republic get the republic idea from, I drew the line at the year when said republic was born, namely 509 BC. Taras becoming a democracy in 466 BC is too late to play any role in the spread of democracy ideas to Rome, which had to be prior to 509 BC.

Sparta's ephors are a more productive thing to look into IMHO, although even then it's still debatable as to how much they influenced the birth of the Roman Republic. The Spartan kings would continue to have more power than even the Roman kings ever had, all the way to the Persian wars, which are 499 BC to 449 BC. E.g., apparently until 480 BC or so, the Spartan kings could declare war without consulting the ephors, while in Rome no king could have done that without having the curiate assembly vote on it and then having it ratified by the Senate.

Add to that the fact that Rome's assemblies and Senate are attributed to Romulus himself, i.e., 8'th century BC, and I'm seriously not convinced that their democratic ideas came from any Greeks. And at any rate, as you seem to agree, not from Athens.

 

[DuvalHMFIC]

This is a silly concept. Everyone knows that democracy was given to us by the Ancient Aliens. That guy with the crazy hair on the history channel said so.

 

[ddt]

As I may have mentioned before, Athens had a peculiar system in which pretty much everyone could sue everyone for criminal stuff.

This was a peculiarity that the Roman system had too. There was no such office as the public prosecutor, and not the clear distinction between criminal law and civil law as we understand it today. If someone had committed a crime, it was also incumbent on an aggrieved party - the victim or their family - to sue the perpetrator.

Now I'm not saying that the Roman system were perfect, but they had been working on at least a good start towards the rule of law for quite some time, at the time when the above absurdities were happening in Athens.

There is a reason why our current legal system derives from Roman law.

 

[HansMustermann]

That much is true. However, that line was just the introduction, not the whole case against Athens' system And be that as it may, for most of what we'd call a criminal case, the prosecutor was still limited by laws and precedents. That's why I said that the Roman system was not perfect, but they had at least started on the whole rule of the law thing.

 

[Loss Leader]

This was a peculiarity that the Roman system had too. There was no such office as the public prosecutor, and not the clear distinction between criminal law and civil law as we understand it today. If someone had committed a crime, it was also incumbent on an aggrieved party - the victim or their family - to sue the perpetrator.

It was hardly a peculiarity. The office of public prosecutor was more or less invented by the Dutch and imported to Manhattan in the 17th century where it took hold. It was then exported back out to the rest of the world.

 

[gumboot]

Augustus just pretended there was still a republic.

The very notion of a shift from "Republic" to "Empire" is really a modern framing of history that doesn't accurately or usefully describe the reality. Even the terms "Republic" and "Empire" are totally wrong, as both co-existed simultaneously for the entire duration - indeed you cannot have one without the other.