Democracy, Solidarity, and the Rule of Law: Lessons from Athens

Abstract

This Article applies lessons from democratic Athens of the fifth and fourth centuries B.C.E. to shed light on contemporary theories about the rule of law, popular constitutionalism, and transitional justice. First, using methods from philosophy and history, it shows that Athens largely satisfied the demands of the rule of law, and, consistent with the philosophical theory that the author has developed elsewhere, the Athenians saw the rule of law as protecting the equality of the democratic masses against individual and collective threats from overweening aristocrats. It then turns to political science methods to account for events in Athens at the end of the fifth century. At that time, there were two short-lived oligarchic coups, the second of which, the notoriously blood-soaked regime of the Thirty Tyrants, was followed by an amnesty protecting those who had collaborated with the regime. This Article explains why the amnesty was obeyed. The success of the amnesty has puzzled generations of historians; here, it is argued that the amnesty was obeyed because Athenian democrats had learned that respecting the rule of law was necessary for their collective self-defense against oligarchic threats. Finally, the article draws lessons from the Athenian experience for contemporary communities, arguing: a) that popular constitutionalism is compatible with the rule of law in contemporary states, and b) that the rule