5 - Legal Insecurity in Athens

Summary

the past few chapters have described some aspects of the athenian judicial system as a sign of tension between contradictory goals. The Athenians' idealization of the homicide courts reveals their ambivalence about the broad conception of relevance employed in the popular courts, and in particular their unease over the potential misuse of character evidence. In this chapter I explore another disadvantage of the popular courts, a defect inherent in any system favoring flexible justice: the unlikelihood that there will be even a rough consistency and predictability in judgments. Whereas much recent scholarship emphasizes the positive role played by the popular courts in fostering social stability and cohesiveness in Athens, this chapter assesses the social and economic costs associated with the Athenians' discretionary system of justice.

Legal consistency is the notion that like cases should be treated alike. Predictability is the ideal that the law is sufficiently certain to permit citizens to confidently conform their conduct to the law in most situations. These are two basic, closely related prerequisites of what lawyers today call the “rule of law.” Of course, even modern legal systems do not provide near-perfect consistency or predictability. Determining whether two cases are so alike that the decision in the first case should control the second is far from a straightforward process. In today's common law legal cultures, this task of comparing past cases to insure consistency is generally undertaken only with respect to legal, not factual, determinations.