Law and Order in Ancient Athens by Adriaan Lanni (review)

This important book offers an answer to a very difficult question: How did the Athenians secure a peaceful social order, despite the fact that they did not reliably enforce their laws? One would think that, if their laws were not vigorously enforced, individual Athenians would have increasingly engaged in antisocial behavior, and that Athens would thus eventually have become a failed state. But that clearly did not happen. Why not?

Adriaan Lanni explores three dynamics that contributed to this seemingly paradoxical outcome. First, she demonstrates (chapter 3) that a law can affect the behavior of individuals even if it is not enforced. This is the so-called expressive effect of law. The Athenians’ law against hubris, for example, criminalized acts of hubris against slaves. It is unlikely that anybody actually would have been prosecuted for treating a slave in such a manner. But Lanni argues that the promulgation of the law against hubris nevertheless contributed to the Athenians’ relatively mild public treatment of slaves: hubristic behavior of any sort was considered by so many people to be such a threat to democratic governance that it was in everybody’s interest to exhibit in public complete compliance with all aspects of the hubris law.

Second, Lanni demonstrates (chapter 4) that jurors in the law courts took into consideration both litigants’ adherence to and defiance of extra-statutory norms when considering guilt or innocence. Imagine, for example, that Prosecutor is prosecuting Defendant on some matter concerning inheritance. In the trial Prosecutor might note that Defendant is rude to his neighbors and was sexually promiscuous as a youth. Defendant, on the other hand, might note that he has given a lot of his own money to help the state stage dramatic performances and that Prosecutor is a coward in battle. Lanni argues that since every Athenian knew that there was a decent chance that he would have to defend himself (or prosecute others) in court sometime about something, every Athenian had an incentive to behave publically in a manner that was consistent with contemporary social norms: if he did not, it could be held against him in court.

Third, Lanni demonstrates (chapter 5) that jury trials provided opportunities for Athenian citizens to publicize their current view of the normative underpinnings of old laws. Euphiletus, for example, famously argued (Lysias 1) that he justifiably killed Eratosthenes because he caught Eratosthenes in the act of committing adultery with his wife. And there was, in fact, an old law that permitted this type of homicide. But the nature of Euphiletus’ arguments demonstrates that many Athenians, and thus the jurors in this case, might no longer be comfortable with it: they would perhaps prefer men to engage in nonlethal forms of self-help in such situations. We do not know what the trial’s verdict was. But Lanni argues that whatever it was, it would have compelled men to think twice before they killed an adulterer, despite the fact that it would be formally legal for them to do so. And thus the behavior of individuals would be changed without changing the law.

There is much to admire about this book. Lanni does a very good job analyzing the tremendous power of the law courts to enforce social norms, not just statutes: the arguments are cogent, honestly presented, and deeply engaged with a vast amount of scholarship, both on ancient Athens and modern law. This reviewer was particularly intrigued, however, with Lanni’s discussion of the expressive effect of law. If we want to understand the nature of the rule of law, we must appreciate (inter alia) the fact that laws can affect behavior without being enforced.¹ I thus strongly believe that scholars should follow Lanni’s lead and further explore the operation of that seemingly paradoxical dynamic in ancient Athens.