Ancient and Modern Conceptions of the Rule of Law

Sara Forsdyke (University of Michigan)

Abstract: The goal of this paper is to explore the ways that the ancient Greeks conceptualized the Rule of Law (RoL) and to determine in what ways it is similar or different from modern conceptions of the RoL. Although the meaning of the RoL is notoriously difficult to pin down, I will begin by identifying some key components of modern theories of the rule of law, including the concepts of Legal Supremacy, Legal Equality and Legal Certainty (see Dworkin 1986, Hutchinson and Monahan 1987, Tamanaha 2004, Maxeiner 2007, Bingham 2010 and Nardulli et al., 2013). My thesis is that the Greeks ascribed to a notion of the ROL that captures some aspects of all three parts of modern concept of the rule of law. I shall argue that the Greek, and especially classical Athenian, concept of the ROL maps almost perfectly onto the ideal of Legal Equality, and that, although the Athenians recognized the principles of Legal Supremacy and Legal Certainty, nevertheless the impact of these latter principles was somewhat dampened by several other firmly held ideals. In particular, the Greeks adhered to a concept of justice that embraced not just the written laws, but also a notion of equity or fairness in the specific circumstances of a case. The practice of contextualized justice undermined Legal Certainty, one of the three aspects of most modern concepts of the rule of law. Nevertheless, I shall conclude by noting that modern ROL theory has moved away from notions of ROL as strictly based on rule application and has argued that substantive concerns based on notions such as freedom, equality and fairness are compatible with ROL (Tamanaha 2004, 110-113). While there is certainly a fine line between upholding Legal Certainty and allowing for some flexibility in the application of laws according to context, it seems that both modern and ancient Greek legal thought recognize both the tension and the need for compromise between these ideals.