The Athenian Republic: Democracy or the Rule of Law?

193 Pages·1987·251.913 MB·English

by  Raphael Sealey

THE ATHENIAN REPUBLIC
Also by Raphael Sealey
A History of the Greek City States ca. 700-338 B.C.
Essays in Greek Politics
THE
ATHENIAN
REPUBLIC
Democracy or the Rule of Law?
RAPHAEL SEALEY
The Pennsylvania State University Press
University Park and London
Library of Congress Cataloging-in-Publication Data
Sealey, Raphael.
The Athenian Republk
Bibliography: p.
Includes index.
1. Rule of law-Greece-Athens. 2. Courts-Greece
Athens. 3. Athens (Greece)-Constitutionallaw.
I. Title.
LAW 340.5'3'85 86-9512
ISBN 0-271-00443-6
Copyright © 1987 The Pennsylvania State University
All rights reserved
To
Dorte-Freyja Sealey
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Contents
Preface ix
1 Continuity in Athenian Society 1
2 Athenian Citizens 5
3 The Sources of Law 32
4 The Sanction 53
5 Demokratia 91
6 Toward a History of the Constitution 107
Appendix to Chapter 6: Axones and Kyrbeis 140
7 Athens and the Rule of Law 146
Notes 149
Index 178
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Preface
In undertaking this study I have drawn on more kindnesses done
me by more people than I can specify. The immediate impulse to
write came from re-reading H. S. Maine's Ancient Law, which was
first recommended to me long ago by the late Idris Deane Jones. It
will be readily apparent that I have drawn extensively on studies
published by the late H. J. Wolff, and by E. Ruschenbusch and
M. H. Hansen. Even though I have disagreed with each of them on
some points, my debts to them are far greater than my doubts.
Private discussion with D. Cohen has brought me pleasure and
profit. I have had singularly considerate treatment from Mr. Philip
Winsor of the Pennsylvania State University Press and from his
two readers.
Choosing a title for the book proved to be unexpectedly difficult.
English has no word precisely equivalent to Rechtsstaat. "The
Athenian polity" was considered, but the word is archaic and af
fected. "Republic" is better, even though somewhat comprehensive.
It excludes the arbitrary rule of a despot. Besides it resounds
across European centuries from res publica to rzeczpospolita.
Many of the ideas presented here were developed in more polemi
cal form in the following articles: "Probouleusis and the sovereign
assembly," CSCA. 2 (1968): 247-69; "The origins of demokratia,"
CSCA. 6 (1973): 253-95; "The Athenian concept of law," CJ. 77
(1981-82): 289-302; "The Athenian courts for homicide," CPo 78
(1983): 275-96; "On lawful concubinage in Athens," CA. 3 (1984):
111-33; and "How citizenship and the city began in Athens,"
AJAR. (forthcoming). I thank the editors of those journals for pub
lishing my arguments in the first place and for agreeing to my
renewed use of them.
I am also indebted to the Superior Court of Alameda County for
showing me how bad Californian law is. So I decided to expound a