Language and Rule of Law in Classical Athens

Abstract

Concern about the quality of laws did not begin in the Modern Age, nor was the Enlightenment the only period in which reflection on legislation flourished. As a matter of fact, the topic of legislative quality can be traced back long ago in the history of western (legal) culture and, most notably, to classical Athens. From 403 BC onwards, following the fall of the so-called Thirty Tyrants, a great codification was carried out which resulted in the first legal system—as this notion is understood nowadays, i.e. the first legal system that included rules of recognition, change and adjudication, and consisted of written laws produced through a specific procedure known as nomothesia . The few pieces of legislation kept and a number of forensic speeches demonstrate that, under the nomothesia model, a comprehensive ideal of good laws was developed which would become the object of the science of legislation many centuries later. Actually, it can be contended that this ideal already comprised the bulk of the enlightened conception of legislation, with a focus on the prevalence of written over unwritten laws; on the generality of laws, as well as the chief requirement of the publication of legislation; on the principle of normative hierarchy upon the distinction between nomoi and psephismata; on the demand for clarity of legislative texts (Athenians were well aware of the problems potentially arising from vague language); on the non-retroactivity of legislation; and on the institutionalization of dedicated mechanisms to prevent legislative inconsistencies or antinomies. All these features, along with a strong judicial review, were conceived in pursuance of one ultimate goal, namely to make the rule of law viz. the nomos basileos come true.