Social Norms in the Courts of Ancient Athens
By Adriaan Lanni
Journal of Legal Analysis, Vol.1:2 (2009)
Abstract: Ancient Athens was a remarkably peaceful and well-ordered society by both ancient and contemporary standards. Scholars typically attribute Athens’ success to internalized norms and purely informal enforcement mechanisms. This article argues that the formal Athenian court system played a vital role in maintaining order by enforcing informal norms. This peculiar approach to norm enforcement compensated for apparent weaknesses in the state system of coercion. It mitigated the effects of under-enforcement in a private prosecution system by encouraging litigants to uncover and punish their opponents’ past violations. Court enforcement of extra-statutory norms also permitted the Athenians to enforce a variety of social norms while maintaining the fictions of voluntary devotion to military and public service and of limited state interference in private conduct.
Introduction: Informal norms have lately been celebrated as an important adjunct to formal law in regulating behavior. There is a rich academic literature examining the relationship between social norms and informal sanctions (such as gossip or private dispute resolution) on the one hand, and formal legal rules and institutions on the other. Scholars have explored these issues in various social settings: the international diamond trade, the cotton industry, the Tokyo tuna market, the champagne fairs of the early Middle Ages, cattle ranching in California, and the world of Japanese sumo wrestling. Each of these studies attempts to delineate one approach to the enforcement of norms, and to explore how and how well this arrangement operated within its social context.
This Article aims to add ancient Athens to the list. The Athenian case is particularly interesting for two reasons. While much of the norms literature focuses on the choice between informal and formal norms and institutions, in Athens informal norms were enforced through the formal court system. As we will see, the formal enforcement of putatively informal norms had a number of interesting consequences, such as veiling some of the highly coercive aspects of Athenian society.
Second, the Athenian rejection of the rule of law in its court proceedings paradoxically promoted public order and compliance with both norms and laws. In classical Athens, there was no professional police force to investigate crime or to arrest and detain offenders. And there was no state prosecutor charged with bringing charges in the interests of the public . Every step in the legal process, from the summons to the enforcement of judgments, depended on private initiative.
As a result, the prosecution of crime and other violations of law was irregular, turning not on the seriousness or visibility of the infraction, but on the ability of the victim to bring charges or the willingness of personal or political enemies of the defendant to step in and serve as volunteer prosecutors. Once in court, the law under which a case was brought played a surprisingly small role in litigants’ arguments and jurors’ decisions. Litigants regularly boasted of their services to the state and their honorable treatment of their neighbors, friends, and family, and attacked their opponents for everything from draft-dodging to sexual deviance. Many classical scholars contend that informal norms often trumped law in a process that bears little relation to the modern notion of the rule of law.
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