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Control of the Laws in the Ancient Democracy at Athens

Edwin Carawan

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The definitive book on judicial review in Athens from the 5th through the 4th centuries BCE.

The power of the court to overturn a law or decree—called judicial review—is a critical feature of modern democracies. Contemporary American judges, for example, determine what is consistent with the Constitution, though this practice is often criticized for giving unelected officials the power to strike down laws enacted by the people's representatives. This principle was actually developed more than two thousand years ago in the ancient democracy at Athens. In Control of the Laws in the Ancient…

The definitive book on judicial review in Athens from the 5th through the 4th centuries BCE.

The power of the court to overturn a law or decree—called judicial review—is a critical feature of modern democracies. Contemporary American judges, for example, determine what is consistent with the Constitution, though this practice is often criticized for giving unelected officials the power to strike down laws enacted by the people's representatives. This principle was actually developed more than two thousand years ago in the ancient democracy at Athens. In Control of the Laws in the Ancient Democracy at Athens, Edwin Carawan reassesses the accumulated evidence to construct a new model of how Athenians made law in the time of Plato and Aristotle, while examining how the courts controlled that process.

Athenian juries, Carawan explains, were manned by many hundreds of ordinary citizens rather than a judicial elite. Nonetheless, in the 1890s, American apologists found vindication for judicial review in the ancient precedent. They believed that Athenian judges decided the fate of laws and decrees legalistically, focusing on fundamental text, because the speeches that survive from antiquity often involve close scrutiny of statutes attributed to lawgivers such as Solon, much as a modern appellate judge might resort to the wording of the Framers. Carawan argues that inscriptions, speeches, and fragments of lost histories make clear that text-based constitutionalism was not so compelling as the ethos of the community.

Carawan explores how the judicial review process changed over time. From the restoration of democracy down to its last decades, the Athenians made significant reforms in their method of legislation, first to expedite a cumbersome process, then to revive the more rigorous safeguards. Jury selection adapted accordingly: the procedure was recast to better represent the polis, and packing the court was thwarted by a complicated lottery. But even as the system evolved, the debate remained much the same: laws and decrees were measured by a standard crafted in the image of the people.

Offering a comprehensive account of the ancient origins of an important political institution through philological methods, rhetorical analysis of ancient arguments, and comparisons between models of judicial review in ancient Greece and the modern United States, Control of the Laws in the Ancient Democracy at Athens is an innovative study of ancient Greek law and democracy.

Reviews

Reviews

The book has been nicely produced by JHU Press, and, at its best, has the merit of drawing our attention to major issues of constitutional law and the history of institutions as the basic contexts to understanding the political culture of Athenian democracy. 

Carawan's detailed analysis of judicial review in ancient Athens demonstrates the unstable interaction between citizens and the law when the lawmakers are also the judges. Carawan helpfully compares the Athenian paradigm with the separation of powers in the US Constitution, which establishes the independent judiciary upon which democracy ultimately depends.

The status of law and its relation to politics is an old problem that lies at the heart of Athenian democracy. Thanks to Edwin Carawan, who brings to bear his customary clarity, thoroughness, and resourceful imagination, we are now much further along in understanding what the Athenians were up to.

The Athenians had a unique method of determining whether a law was constitutional—a procedure that is central to understanding their democracy, as well as our own. Carawan offers an important new interpretation of this fascinating aspect of Athenian society.

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Book Details

Publication Date
Status
Available
Trim Size
6
x
9
Pages
328
ISBN
9781421439495
Illustration Description
4 b&w illus.
Table of Contents

Abbreviations and Conventions
Introduction: The People and the Law—Demos and Nomos
Part I. Legislative Procedure and Court Control
Chapter 1. Making Law and Mending the Constitution
Chapter 2. Judges and

Abbreviations and Conventions
Introduction: The People and the Law—Demos and Nomos
Part I. Legislative Procedure and Court Control
Chapter 1. Making Law and Mending the Constitution
Chapter 2. Judges and Lawmakers
Chapter 3. "Unlawful Acts" (Paranoma) and the Case of the Arginousai Generals
Part II. The Constitutional Window
Chapter 4. Privileged Characters: Aristokrates' Shield for Charidemos
Chapter 5. Outrage: The Case against Androtion
Chapter 6. Overthrowing the Court: The Case against Timokrates' Surety Law
Chapter 7. Breaking the Bargain: The Case against Leptines' Law
Part III. The Crown Case and Its Antecedents
Chapter 8. The Aftermath of Chaironeia
Chapter 9. The Crown Case Comes to Trial
Conclusion: Law's Measure
Notes
Bibliography
Index

Author Bio
Edwin Carawan
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Edwin Carawan

Edwin Carawan is professor emeritus of classics at Missouri State University. He is the author of Rhetoric and the Law of Draco and The Athenian Amnesty and Reconstructing the Law.