BRIBERY IN CLASSICAL ATHENS Kellam ... - Historia Antigua

Conover Bribery in Classical Athens Conclusion
for the Assembly to do in each and every case. Indeed, it is political work that nowadays
is performed not by judges or jurors, but by legislators in crafting the law. Whereas the
rule of law presupposes that law defines the contours of a sphere of legitimate action—
what is legal should be legitimate—law in Athens was used in the case of bribery as an
arena for contesting the very boundaries of that sphere.
The Athenian approach incorporated informal discussion of political values into
formal judicial process and thereby avoided a crucial vulnerability in the rule of law: its
inability to adapt quickly to changing notions of legitimacy. 8 Under the rule of law,
precisely because law-making is ideally distinct from adjudication, there can be
considerable distance between what is legal and what society considers legitimate. By
contrast, in Athens this distance between legitimacy and law in action was effectively
minimized, as with each subsequent bribery trial a potentially new, emerging conception
of what did or did not constitute a ‘harm’ to the community—hence bribery—could be
forwarded and, if it accorded with popular notions of what was good for the city,
legitimated. 9
Examining bribery in Classical Athens can arguably provide a valuable corrective
to contemporary public policy approaches to bribery. Even if we look upon the Athenian
case and ultimately throw up our hands, calling Athens too ‘different’ to be of real
comparative use, the view from Athens offers us at least a vision of a different way to
8 So, Warren (2004: 330-1) critiques modern conceptions of bribery on the grounds that they are
essentially normatively static: comparative studies simply posit some set of ‘background norms’ against
which the workings of law, politics, and the market should operate. In reality, however, this background is
dynamically contested and in constant flux. What is essential for our investigation here is that, likewise,
what was considered ‘socially legitimate’ at Athens was not normatively static, but was in fact constituted
through the political practices of Athenian citizens.
9 It should be noted that this is not a blanket criticism about the potential efficacy of the rule of law; rather,
it is an observation that one reason law and legitimacy can diverge so significantly is precisely because
there is little formal recourse within the law to allow it to evolve lock-step with shifting public norms.
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