1.2 The division of powers in the Athenian Democracy
The tripartite division of powers into executive, legislative and judicial, which has prevailed in constitutional forms since the time of the Enlightenment is typically attributed to Montesqieu (L’ Esprit de Lois). It was conceived as a response to many centuries of authoritarian monarchies where one person held all powers concentrated in his (and occasionally her) hands, and all authority stemmed from his divine right to rule. And yet, this was not the first time in history when separation of powers with all the concomitant checks and balances was implemented. One could hardly think it possible to have a democratic constitution without separation of powers, checks and balances. The Athenian Democracy implemented even more rigorously separation of powers and had far more frequent and effective checks and balances than any modern democracy. This was the response to two centuries of tyrannical regimes, essentially dictatorships where one individual had seized power and held onto it, throughout the Greek world. In Athens itself half a century had gone by under the rule of the Peisistratids, which was preserved in the collective memory of the Athenian people for centuries as a situation that was to be avoided at all costs. Some of the extreme measures to which the Athenian state went from time to time, which to us may seem strange and perhaps outright unjust, like an ostracism, where a distinguished citizen was sent to exile for a decade for no other reason than the fear of his fellow citizens that he was getting too popular and too powerful, make sense only within this frame of mind, as reactions and precautions taken by the Athenian people to ensure that no person in future would ever be able to concentrate all powers of the state in his own hands.4
Kleisthenes introduced the democratic constitution in Athens only a few years after the fall of Hippias, the last tyrant of Athens. Its introduction could have been a gut reaction to the tyranny of the Peisistratids, and ironically the establishment of the first democratic constitution in history may owe its existence to a cruel dictator like Hippias. He was in exile at the time when democracy was established, plotting with the enemies of the city for his return to power, and in the Persian campaign against Athens, which culminated in the battle of Marathon in 490, he was following the Persian forces as an advisor, hoping to regain power once the city had been subdued. The Athenian victory at Marathon, and subsequent Greek victories in the Persian wars, not only dashed the hopes of the Peisistratids for a return to power, but also helped consolidate the Democratic Constitution. Kleisthenes insightfully determined that the new polity could only be successful if the old centers of power were diluted and integrated into the new Constitution under more egalitarian organizational structures designed in such a manner that no one group or individual could ever amass enough power in their hands to take over the state.
Kleisthenes did not abolish that bastion of old aristocratic power, the Areopagos Council, nor did he replace the old structural units of the citizen body, the four ancient Ionic tribes,5 the genos or the phratry with its subgroups. He simply added elements like the Boule of the 500, the members of which were appointed by lot, or organizational structures, like the tribes and demes, in effect bypassing, but not abolishing the older structures which most Athenians held dear. The result was an organizational structure that is not dissimilar to modern democracies. There was a well-defined executive consisting of hundreds of magistrates, which oversaw the day to day running of the city, two councils, one conservative and august, which was stripped of most of its powers after the reforms of Ephialtes in 462, the other more representative of the people (δημοτικόν) with broader powers, and a popular assembly which in theory was the overall source of authority in the polis (κυριώτατος δῆμος). However, unlike modern representative republics, this was a direct democracy, where the only limitation to the powers of the people were the laws which the people had voted, as these were vetted (mostly in the 4th century) and applied by the popular law-courts (δικαστήρια).
The development of the popular law-courts seems to have been a gradual process. The laws of Solon gave citizens dissatisfied with the decisions of magistrates the right to appeal to the assembly (Heliaia).6 However, it seems that as time went by the number of appeals was so large that the assembly could not hear them all, and it became necessary to spit into heliastic courts perhaps initially of 500 people, but then still smaller sections. Each one of them was a random selection of citizens chosen by lot, and, in this respect, it represented the entire citizen body. This is how the Athenians invented the jury system. D.M. MacDowell offers a very elegant answer to the critically important question of how these courts became the primary feature of the Athenian justice system. He suggests that Solon initially allowed appeals to the Assembly as a measure to limit the extensive authority of the magistrates of the aristocratic state and give ordinary citizens a last-resort measure against their power abuses. We can tell that much because in many Soloneal laws the hearing before the Heliaia is envisaged as an appeal process. Solon did not envisage the popular law courts system as we see it in the classical period, but this was the natural development from the system he created. As appeals cost nothing, dissatisfied litigants kept appealing more and more frequently. With the establishment of the democracy the dikasteria acquired new significance and came to be seen as a central, and indispensable feature of the new constitution.
1.3 The question on the rule of law in the Athenian Democracy
When Pindar subverted the phrase “νόμος ὁ πάντων βασιλεὺς θνατῶν τε καὶ ἀθανάτων”7 he took a core concept of Greek political thought and gave it new meaning. However, the author of one of the Platonic letters quoting Pindar takes it literally as an assertion of the superiority of the law, when he explains that Lycurgus put the law above the power of the Spartan kings through the institution of the gerousia and the ephors. In the same spirit Herodotos has the dethroned Spartan king Demaratos tell Xerxes that the law is the true king of the Spartans:
Ἐλεύθεροι γὰρ ἐόντες οὐ πάντα ἐλεύθεροί εἰσι· ἔπεστι γάρ σφι δεσπότης νόμος, τὸν ὑποδειμαίνουσι πολλῷ ἔτι μᾶλλον ἢ οἱ σοὶ σέ· ποιεῦσι γῶν τὰ ἂν ἐκεῖνος ἀνώγῃ· ἀνώγει δὲ τὠυτὸ αἰεί.8
Although they are free, they are not free in everything. The law is their Lord, and they fear it much more than your men fear you. Thus, they obey everything it commands, and it always gives the same command.
In a similar spirit Athenian politicians in funeral speeches, philosophers in their works, and orators before the courts frequently repeat the topic of the superiority of the law in the Greek world, the civilizing benefits that come with this for the city and the individual, as well as the adverse consequences when the rule of law breaks down.9 The Greeks invented the rule of law as a political concept and identified it with freedom from authoritarian rulers outside or inside the polis, with civilization, order, and a balancing force against the rule of nature where the strong vanquish the weak.
Adriaan Lanni sees a paradox in this core belief of the Greek city-states in the rule of law, because, she argues, the Greeks never achieved the rule of law.10 Lanni is siding with a number of scholars, including David Cohen, Robin Osborne, Moshe Berent, Matthew Christ, Joshia Ober and Virginia Hunter, who have argued that Athenian courts did not reach their verdicts on the basis of the law, but rather made ad hoc decisions on the basis of much broader criteria, political, cultural, social or emotional.11 This line of thought has been based upon the argument that Athenian legal procedure did not enforce rules of relevance, and as a consequence much attention was paid to matters beyond the law and the facts of the case such as the character of the litigants, their political beliefs, or other extra-judicial factors. Second, there was no consistency in the application of the law or the verdicts issued by Athenian courts. Third, there was no coercive force in the hands of the state and citizens had to take matters in their hands, prosecute oppone...
