BMCR 2020.03.33

Creating a constitution: law, democracy, and growth in ancient Athens

Federica Carugati, Creating a constitution: law, democracy, and growth in ancient Athens. . Princeton: Princeton University Press, 2019. xii, 239 p.. ISBN 9780691198712 $39.95.

The author’s announced purpose, prompted by preoccupation with the 2008 constitution of Myanmar (1-2), is to “combine tools and methodologies from institutional analysis, political economy, and history (2)” “to provide a theoretically rigorous and empirically new account of constitutional emergence and endurance” and “to connect the study of constitutions to the study of the conditions that foster political and economic development (5).” Ancient Athens is to serve as the main example. To address “gaps in the historical record” for Athens, the author will “support the existing ancient evidence with a model of decision-making (11).” According to the author, “despite the absence of a written document, the Athenian constitution laid out both substantive rights and procedural rules for making rules (8, n. 16).”

Chapter 1, “Athens before the Crisis,” covers the period from the archaic age, beginning with the lawgivers, to the Sicilian Expedition in 415-413, leading up to the collapse of the fifth-century democracy. In the author’s view, “Solon produced a new, extensive law code,” which, though it “restructured Athens’ political and legal systems, as well as its economy, . . . failed to foster long-term stability . . . Athens fell prey to tyranny (25).” After the tyrants, “the ‘Athenian Revolution’ . . . paved the way for Cleisthenes’ reforms” which “randomized tribal affiliation (26).” Observing that, in the sixth and fifth centuries, “the Athenians created a stable set of participatory institutions,” the author then asks, “Why did this complex and highly developed institutional structure collapse (33)?” The answer: “absence of reliable constraints on the decision-making power of the Assembly (36).”

Chapter 2, “Constitution and Consensus,” argues that, based on “the consensus on Solonian legality, the Athenians passed a series of reforms that made up a self-enforcing constitution (40).” The author promises a new reading of the ancient sources (42) up to the restoration of the democracy in 403. This reading is centered on the use of patrios politeia by the contending parties. The “self-enforcing constitution,” according to the author, included limiting the power of the ecclesia by introducing nomothesia (64-66), making both the demos and the oligarchs better off (66-69), and providing enforcement mechanisms through the graphē paranomōn and other measures (69-71).

“The task of reconstructing Athenian law and policy in the fourth century from the primary sources is problematic (77),” in the author’s admission. And so Chapter 3, “Stability and Innovation in Athenian Policy,” proposes to “build a model of decision-making in the law-courts (78)” using “a variation on the median voter theorem (79).” According to this theorem, “competition for office will lead candidates [in this case, litigants] to propose the median voter’s [in this case, juror’s] ideal policy (90).” The median juror comes into play after the council has put an item on the assembly’s agenda and a member of the assembly has brought an indictment for illegal proposals (94), at which point the matter goes to the court (95). The model proposes to show how litigants would proceed if they cared about policy or honor (101).

Chapter 4, “The Institutional Foundations of Prosperity,” asks whether the evidence is “consistent with the model’s predictions (108).” In the first half of the fourth century, instead of increasing the “already burdensome level of taxation” on the elite, according to the author, the Athenians intensified their exploitation of the silver mines and the harbor (111) and incentivized trade by lowering transaction costs (119). The “paucity of the evidence” for this period, the author notes, “makes it extremely hard to quantify the impact of such measures on Athenian public finances (123).” Even after the Social War, the author observes, precise numbers for the port “are hard to come by (132).” After Chaeronea, the picture still is not clear. As the author puts it: “a complete account of Athenian public revenues under Lycurgus is beyond the available evidence (138).” Still, the Athenians “extended forms of institutional access to key categories of noncitizen actors in order to incentivize their economic activity . . . foreigners, metics, and even slaves (139).” Thus “a bargain enshrined in and protected by the constitution” fostered “both political stability and economic development (139).”

In Chapter 5, “The Paths Not Taken,” the author proposes that, “in the absence of the constitution, Athens’ development would have lagged in the fourth century (140).” The method used here is to compare Athens with classical Syracuse and late republican Rome, both of which suffered from “civil conflict,” the one city characterized by “boom and bust,” the other by “a probable decline in prosperity and an increase in inequality (140).” Athens was different, according to the author, because “the new Athenian constitution paid a great deal of attention to these institutions”—“institutions protecting property rights, investment, . . . checks on predatory behavior . . . institutions fostering political stability . . . and the accumulation of human capital (157).” The author suggests that “an oligarchic Athens would have fared about 60% as well as democratic Athens did (171-172).”

In the Conclusion, the author summarizes: “the process of constitution building in Athens featured a series of steps . . . the elaboration of a collective consensus on the principles of a new constitutional order . . . making the consensus self-enforcing through institutional reforms (173),” and using “the new constitution as a framework to negotiate the competing demands of social order and growth (174).” The author returns to the starting point of the book in offering prescriptions for contemporary Myanmar and closes with a caution that we should not “discount the evidence from the premodern world (178).”

Appendices on the geography of Piraeus and its history along with a bibliography and an index round out the book.

The argument attempted in this book is difficult to make because of the lack of evidence to which the author frequently alludes. Where evidence is lacking, the chance of retrojection is increased. In this situation, as P.J. Rhodes has pointed out, “history is more likely to be useful to us in our own world if we do not study it with too much attention to our own world and thereby risk finding what we want to find rather than what is there.”[1] The four items featured in this book as well as in the title—constitution (complete with “framers,” 73), law, democracy, and growth—all are drawn from attention to our own world and especially to contemporary Myanmar. As a result, some readers familiar with modern discussions of these four items may not find in the book what they expect.

Some readers may expect “constitution,” for example, to be used in somewhat the way people use it today, but the author uses it to designate something different. Leaving this consideration aside, the author might find the beginnings of an answer to what seems to be the book’s main question—how stable constitutional structures, as moderns may speak of them, emerge and endure (though not as a result of “creating”)—in Edward McWhinney’s Constitution-making: Principles, Process, Practice (Toronto 1981). Again, the classical Greeks doubtless had some sense of law but perhaps not “a notion of legality” (173 and elsewhere), though the assumption that they did have such a notion seems to be central to the author’s position. If they did have it, they don’t seem to have left much evidence for it; while the author does not suggest a Greek equivalent, nomimotēs, perhaps the most likely candidate, apparently does not occur in literature until Iamblichus, roughly half a millennium after the classical period. The related question, whether Solon actually produced a law code, remains at least open.[2] Further, there were many kinds of democracy in classical Greece, as Aristotle—a fourth-century contemporary witness—points out; it would be useful to know what kind or kinds the author intends in using ‘democracy’.

Economic growth (a sizable increase in output per capita over time), even if it occurred, as some scholars of ancient Greece have argued that it did,[3] probably did not occur as a continuous economic expansion from the early fourth century to the triumph of Macedon, with no booms and busts; even in modern times, governments and central banks have not been able to avoid business cycles entirely. Nor could economic policy have been conceived, or planned for, or managed as it might be today by people who did not have the advantage of twentieth-century mathematical economics with national accounts and central statistical bureaus of the modern type, with their large staffs of highly trained economists; even with the data collection systems and analytic institutions on which modern economic policy rests, policy failures occur, and the ancient Athenians did not have these systems or institutions. Understanding the economic contribution of the port or the mines to the overall economy would be aided by an industrial classification system and empirical research on interindustry flows, and the Athenian regime probably did not have interindustry figures for port services in the Piraeus or for mining at Laurion, since they lacked the researchers equipped with computers to gather and analyze them. Whether transaction costs were lowered would depend on the way the port was organized for make or buy decisions, as suggested by the modern theory of transaction costs;[4] here, if the author’s thesis is that the Athenians actually deliberated and chose to lower transaction costs as their counterparts might do it today, it would be useful to offer a Greek equivalent for ‘transaction cost’ and to sharpen the sense of ‘transaction cost’.

In summary, this book suggests questions worthy of consideration; but as the narrative makes clear, additional evidence might strengthen the argument.

Notes

[1] P.J. Rhodes 2009. Review of J. Ober, Democracy and Knowledge: Innovation and Learning in Classical Athens. Polis26, 167.

[2] K.-J. Hölkeskamp 2005. “What’s in a Code? Solon’s Laws between Complexity, Compilation and Contingency.” Hermes 133, 280-293.

[3] A. Bresson 2015. The Making of the Greek Economy: Institutions, Markets, and Growth in the City-states. Princeton: Princeton University Press.

[4] The two seminal papers, both by Nobel laureates (1991 and 2009), are R.H. Coase 1937. “The Nature of the Firm.” Economica 4, 16, 386-405; and O.E. Williamson 1981. “The Economics of Organization: The Transaction Cost Approach.” American Journal of Sociology 87, 3, 548-577.