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Published online by Cambridge University Press: 18 December 2013
Thucydides is the author of the most harrowing account of societal breakdown in antiquity. Brian Leiter has recently made the provocative claim that Thucydides’ analysis of such breakdowns indicates that morality is of little import in guiding behavior, including legal behavior. Yet Thucydides also narrates events, particularly in Athens, that indicate that something resembling morality can continue to guide action, including legal action, even at the worst of times. Thucydides provides tantalizing clues as to why he narrates events that only sometimes follow the path predicted by Leiter. In particular, Thucydides (accurately) portrays the law that suffuses Athenian life and saves Athens itself as, for the most part, informal and infused with moral concerns. Leiter's reading of Thucydides therefore not only is limited but misses implicit arguments that challenge Leiter's broader argument for a particular form of legal realism.
1. See, e.g., Fuller, Lon, Positivism and Fidelity to Law: A Reply to Professor Hart, 71 Harv. L. Rev. 630, 637 (1957)CrossRefGoogle Scholar; Finnis, John, On Hart's Ways: Law As Reason and As Fact, 52 Am. J. Juris. 25, 40–42 (2007)CrossRefGoogle Scholar.
2. See, e.g., Roberts, Jennifer, The Creation of a Legacy: A Manufactured Crisis in Eighteenth Century Thought, in Athenian Political Thought and the Reconstruction of American Democracy 81 (Euben, J. Peteret al. eds., 1994)Google Scholar.
3. For a long list of thinkers who have described Thucydides as a realist, particularly a political realist, see Hoekstra, Kinch, Thucydides and the Bellicose Beginnings of Modern Political Theory, in Thucydides and the Modern World: Reception, Reinterpretation and Influence from the Renaissance to Today (Harloe, Katherine & Morley, Neville eds., 2011)Google Scholar; Richard Ned Lebow, The Tragic Vision of Politics (2003), at 112 n.63. Lebow himself partially disagrees with this characterization of Thucydides as a realist. Id. at 113–114. For similar summaries of the traditional reading of Thucydides—and nuanced qualifications—see also Gregory Crane, Thucydides and the Ancient Simplicity 55, 69 (1998) (Thucydides is a “realist,” but his text also records the limits of realism); and Forde, Steven, Varieties of Realism: Thucydides and Machiavelli, 54 J. Pol. 372 (1992)CrossRefGoogle Scholar (Thucydides’ text warns of the perils of realism, especially as to domestic politics). Of course, there are many kinds of realism other than political realism. In this paper I also discuss legal realism. By “legal realism,” I mean the perspective on law developed by Brian Leiter (which he traces back to the American legal realists, such as Karl Llewellyn). There is also “philosophical realism,” which relates to a body of arguments relating to the independent existence of the external world. See Alexander Miller, Realism, in The Stanford Encyclopedia of Philosophy (2012), available at http://plato.stanford.edu/archives/spr2012/entries/realism/.
4. See, e.g., M.I. Finley, Thucydides the Moralist, in Aspects of Antiquity 58–59 (1977).
5. Leiter, Brian, In Praise of Realism (and Against “Nonsense” Jurisprudence), 100 Geo. L.J. 865 (2012)Google Scholar.
6. Id. at 872 (quoting Nietzsche).
7. See, e.g., Darien Shanske, Thucydides and the Philosophical Origins of History (2007), at 142–145; and sources supra note 3.
8. Indeed, the relationship is genealogical. See Shanske, Darien, Note, Four Theses Preliminary to an Appeal to Equity, 57 Stan. L. Rev. 2053 (2005)Google Scholar.
9. Leiter observes, aptly, that Dworkin does not provide motivation for his emphasizing the import of theoretical disagreements as manifested in the written opinions of contemporary judges (versus the enormous agreement that judges manifest). Leiter, Brian, Explaining Theoretical Disagreement, 76 U. Chi. L. Rev. 1215, 1220 (2009)Google Scholar. However, I think a charitable way of interpreting Dworkin, one suggested by this paper, is that the theoretical disagreements he is focused on are precisely about those shared norms that are vitally important when the ordinary machinery of law, which Leiter emphasizes, breaks down. Leiter briefly acknowledges such a possible response and summarily dismisses it. See id. at 1228 n.58.
10. J.G.A., Pocock, The Machiavellian Moment (1975), at 66–80.
11. Josiah Ober, Democracy and Knowledge (2008), at 37–38.
12. Id. at 68.
13. See, e.g., Lanni, Adriaan, Social Norms in the Courts of Ancient Athens, 1 J. Legal Analysis 691–736 (2009)CrossRefGoogle Scholar. Lanni's argument, in brief, is that Athens's relatively few legal institutions (including few laws) were able to maintain successful order because they were enforced through the openness of an Athenian legal process that considered a much broader and more comprehensive set of informal norms. One can object that because the Athenian legal system did not seem to rely on exclusionary reasons, then this means the system was not legal or was somehow deficient or borderline. But this seems question-begging, as an account of law that omits Athens seems seriously limited. Cf. Hadfield, Gillian K. & Weingast, Barry, What Is law? A Coordination Model of the Characteristics of Legal Order *3 (U. S. Cal. Law & Econ. Working Paper Series, Paper No. 123, 2010)Google Scholar, available at http://law.bepress.com/usclwps-lewps/art123 (“We clearly need a model of ‘law’ that recognizes medieval Iceland's decentralized enforcement of distinctively legal rules as a legal system: it accomplishes everything, and perhaps more, than a system that relies on centralized enforcement can accomplish.”).
14. See, e.g., Lanni, supra note 13 (Athenian stability in part maintained by prevalence of extensive informal norms that could be formally enforced); Ober, supra note 11, at 245–254 (Athenian stability in part explained by expansion of legal access); David Cohen, Law, Violence and Community in Classical Athens (1995), at 6, 186–195 (stability of Athens in part explained by channeling of elite feuding before the demos so that the demos could control the elites); Josiah Ober, Mass and Elite in Democratic Athens (1989), at 17–20, 304–309 (Athenian stability in part explained by complex balancing of mass and elite through, for instance, litigation).
15. Joseph Raz, Practical Reason and Norms (1990), at 36–40, 191–192. The consensus should not be overstated, but I think it is significant and it includes (roughly) thinkers as diverse as Finnis and Leiter. See, e.g., John Finnis, Natural Law and Natural Rights (1980), at 269; Brian Leiter, Legal Realism, Hard Positivism and the Limits of Conceptual Analysis, in Naturalizing Jurisprudence 121 (2007). For a good summary of the debate, see Gur, Noam, Legal Directives in the Realm of Practical Reason: A Challenge to the Pre-Emption Thesis, 52 Am. J. Juris. 159 (2007)CrossRefGoogle Scholar. Note that Gur himself, though a critic of a simple account of exclusionary reasons, “proceeds on the assumption that authoritative law makes a certain difference in terms of practical reason.” Id. at 165; see also Dworkin, Ronald, Thirty Years On, 115 Harv. L. Rev. 1655, 1672 (2002)CrossRefGoogle Scholar (another critic of Raz but maintaining that some laws are treated as “trumps,” even as the background reasons for these laws remain relevant and can occasionally undermine these trumps).
16. Or perhaps, and this is a significant perhaps, I should say that practical reason should not disappear from ordinary domestic legal reasoning. This argumentative structure is similar to the much more abstract argument made by Gur on the basis of what he labels “rather unusual” cases. Gur, supra note 15, at 171. Gur retrojects the limitations of exclusionary reasons that he finds in his unusual hypotheticals, while I suggest that it is possible to limn the limits of exclusionary reasons through the nonhypothetical—and very important—cases of the role of law at moments of social breakdown.
17. Indeed, I am sympathetic to a stronger argument that one finds in the work of David Luban. For Luban, practical judgment is to be found all over the workings of an ordinary legal system and ought never to be abandoned. See, e.g., Luban, David, Misplaced Fidelity, 90 Tex. L. Rev. 673, 687–688 (2012)Google Scholar (reviewing W. Bradley Wendell, Lawyers and Fidelity to Law (2010)). Nevertheless, for my purposes here vis-à-vis Leiter, what is crucial is that Thucydides’ narrative is a particularly potent argument for the importance of practical reasoning in moments of crisis, and this is all that is required to cast doubt on Leiter's impressing of Thucydides into service.
18. Hadfield & Weingast, supra note 13, at *4–5, 18, 21.
19. Id. at *18. Or we might consider the matter using Scott Shapiro's vocabulary. In brief, and omitting qualifications not relevant here, “the law . . . is a planning organization whose aim is to solve those moral problems that cannot be solved, or solved as well, through alternative forms of social ordering.” Scott J. Shapiro, Legality (2011), at 225. Accordingly, Shapiro criticizes Dworkin for advocating an interpretive practice that would unsettle the very moral questions that the social plan that is law was meant to resolve. Id. at 311. And yet Shapiro assumes that we collectively have the capacity to settle such questions in the first place. See, e.g., id. at 163, 181. But how does this settlement arise and how is it maintained?
20. Douglass C. North, John Joseph Wallis & Barry R. Weingast, Violence and Social Orders: A Conceptual Framework for Interpreting Recorded Human History (2009), at 154–166.
21. Id. at 150.
22. See Herman, Gabriel, Reciprocity, Altruism, and the Prisoner's Dilemma, in Reciprocity in Ancient Greece 199 (Gill, Christopheret al. eds., 1998)Google Scholar.
23. Thucydides, History of the Peloponnesian War, 2.37.2–3, 2.40.2 (quotations from Thucydides are all Crawley translations unless otherwise indicated). See The Landmark Thucydides (Richard Crawley trans., Robert B. Strassler ed., 1996). Ober's recent account of the extraordinary internal functioning of the Athenian democracy could thus be read as a long footnote supporting Pericles’ argument. See generally Ober, Democracy And Knowlege, supra note 11.
24. Indeed, earlier in his text (i.e., before the account of Corcya), Thucydides does famously illustrate—implicitly—the surprising lawfulness of the Athenians. No sooner does Pericles praise the lawfulness of the Athenians than Athens is struck by the Great Plague. At least initially at least some Athenians behave with the kind of attention to the weak that Pericles has led the readers of Thucydides to expect. Thucydides, supra note 23, at 2.51.4–5. Yet in the face of the unrelenting horror of the plague, lawlessness [anomia] did set in (id. at 2.53), which indicates, on the contrary, that the Periclean vision was rather limited. And yet, despite the vivid account of Athenian anomie postplague, the Athenian polis clearly did more than survive, remaining a formidable opponent for decades. See Shanske, Thucydides, supra note 7, at 51–52, 142.
25. By “nonlegal” here I am just tentatively staying within Razian nomenclature. The norm I eventually consider, equity/epieikeia, is “nonlegal” in being specifically nonexclusive.
26. Nietzsche, Friedrich, What I Owe to the Ancients (Sec. 2), in Twilight of the Idols (Hollingdale, R.J. trans., 1968)Google Scholar.
27. Leiter, In Praise of Realism, supra note 5, at 869.
28. Id. at 870.
29. Id. at 871.
30. Or so Thucydides tells us in the introduction to the dialogue. Thucydides, supra note 23, at 5.84. Earlier in the history, Thucydides recounts an Athenian expedition against Melos in 426 bc (id. at 3.91), which complicates the question as to whether and when the Melians were simply neutral even within Thucydides’ own narrative. There is (ambiguous) external evidence as to the status of Melos as well. One thing is certain, and that is that Thucydides the author does not choose to dwell on whether the Melians had in fact provoked the Athenians. Simon Hornblower, 3 A Commentary on Thucydides (2008), at 233.
31. Thucydides, supra note 23, at 5.86.1.
32. See Shanske, Note, Four Theses, supra note 8.
33. Thucydides, supra note 23, at 5.89.
34. Id. at 5.94.
35. Id. at 5.116.4.
36. Leiter, In Praise of Realism, supra note 5, at 872.
37. Id. at 871–872.
38. And neither collectivity is “simple.” As for the Melians, those who participate in the dialogue are in fact Melian oligarchs who had internal political reasons to be extraordinarily obstinate (Thucydides, supra note 23, at 5.84). As for the Athenians, as noted briefly below, these Athenian realists are not engaging in a discussion with fellow citizens, which suggests a certain internal/external split in Athenian values.
39. The relation to tragedy here is significant. Whatever else may also be true of Athenian tragedies, they required an extraordinary commitment of public resources and dealt (at least partially) with the same fraught contemporary political issues that preoccupy Athenians in Thucydides’ History. Griffith, Mark, Introduction, in Why Athens? A Reappraisal of Tragic Politics 2–3 (Carter, D.M. ed., 2011)Google Scholar; Wilson, Peter, The Glue of Democracy? Tragedy, Structure and Finance, in Why Athens? A Reappraisal of Tragic Politics 19, 32–33 (Carter, D.M. ed., 2011)CrossRefGoogle Scholar. In particular, Athenian tragedy reflects the great import that Athenian democratic ideology gave to free speech [parrhēsia]; the speeches in Thucydides, and especially the Melian dialogue, reflect a similar sensibility. And explicitly so, as Thucydides has one of his Athenian orators (Cleon) attack the Athenian democracy because of its love of speeches. See Thucydides, supra note 23, at 3.38; further discussion of Cleon infra; and Burian, Peter, Athenian Tragedy as Democratic Discourse, in Why Athens? A Reappraisal of Tragic Politics 99, 106–107 (Carter, D.M. ed., 2011)Google Scholar.
40. W. Robert Connor, Thucydides (1984), at 155–156.
41. Reflecting the complexity inherent in reading Thucydides, the text also seems quite critical of the Melians. The Athenians do not just come to Melos bent on destruction; the Athenians engage in a dialogue to demonstrate why brute force should not be necessary. Cf. Morrison, James V., Historical Lessons in the Melian Episode, 130 Transactions Am. Philological Ass'n 119 (2000)CrossRefGoogle Scholar. The dialogue also does not reflect particularly well on the Spartans, who do not in fact come to the aid of their colonists, the Melians. Hornblower, supra note 30, at 221–223 (2008). This could be interpreted as yet another way in which appeals to morality went unheeded, but it is not clear that Spartan unwillingness to act according to their own professed values was not foolishly shortsighted. See Hornblower.
42. See e.g., Shanske, Thucydides, supra note 7, at 142–145; see also Lebow, supra note 3; Crane, supra note 3; and Forde, supra note 3. It is also quite plausible to claim that Nietzsche himself was not arguing that Thucydides was a political realist in this way—that is, Nietzsche was drawn to a Thucydides who can portray the horror of civil war at Corcyra and the necessary countervailing danger of unifying political rhetoric and yet, confronting these tragic options without illusion, he “stands his ground” (unlike Plato). Zumbrunnen, John, Courage in the Face of Reality, 35 Polity 237, 260–263 (2002)CrossRefGoogle Scholar. Nietzsche's repeated skepticism of German nationalism, and in particular Bismarck's “realpolitik,” is particularly supportive of a more nuanced view. See, e.g., Friedrich Nietzsche, The Gay Science §357; Friedrich Nietzsche, Beyond Good & Evil §241.
43. Thucydides, supra note 23, at 2.2.3.
44. Id. at 1.23.6.
45. Additional details of the story make the situation even richer, because the Thebans are invited into Plataea by one faction in the city and are urged to join this faction in wiping out their domestic enemies. This would have been an early version of the Corcyrean civil war (discussed infra). The Thebans refuse to do this (unlike the Athenians at Corcyra, who are at least complicit) and instead try to offer friendly terms to the entire city; it is this hesitation that gives the mass of the Plataeans the opportunity to organize their counterattack. Peaceful gestures can also be dangerous.
46. See Shanske, Thucydides, supra note 7, at 138–145.
47. Though this Thucydides might be an ally to Nietzsche if Nietzsche is interpreted somewhat differently. Thus, for instance, this realist Thucydides does not, unlike Plato, “flee into the ideal”; he lays out an inescapably messy reality, but this reality includes causally effective moral discourse. See id. at 138–142. See also Zumbrunnen, supra note 42.
48. See Finley, supra note 4, at 57 (“No people have elevated talk and debate into a way of life as did the ancient Greeks.”).
49. See, e.g., the discussion of the Melian dialogue above and the Mytilenian debate below. Leiter is thus correct that for Thucydides, the speeches are an aid to viewing the world correctly but incorrect that Thucydides indicates that the moral concerns articulated in some of the speeches are all to be systematically discounted. See generally Shanske, Thucydides, supra note 7, at 157–158.
50. Thucydides, supra note 23, at 3.40.
51. Id. at 3.48.
52. I am indebted to Kinch Hoekstra for this point; he suggests that perhaps Diodotus is a kind of “inverse realist.”
53. On the preeminent, and complex, role of Pericles, see Shanske, Thucydides, supra note 7, at 41–68.
54. Cf. id. at 153.
55. Leiter, In Praise of Realism, supra note 5, at 878–884.
56. Ronald Dworkin, Law's Empire (1986), at 3–15; Leiter, Explaining, supra note 9, at 1216–1217.
57. See, e.g., Dworkin, Law's Empire, supra note 56, at 225–227 (virtue of integrity should guide judges), 250–254 (a judge must take into account local priority as to legal doctrines).
58. See, e.g., Joseph Raz, Authority and Interpretation, in Between Authority and Interpretation 113–114 (2009). Raz interprets the gap between him and Dworkin (and Finnis) as “not great,” noting that in many ways the dispute is over which kinds of legal statements are “prevalent”; Raz believes that in particular, theorists like Dworkin cannot account for the “detached” legal statements that are essential to law as an institution. Id. at 106–108, 113–114. Raz's dispute with Dworkin is, at best, merely related to Leiter's critique of Dworkin. That said, Raz seems to accept the idea that his difference with Dworkin can be interpreted as being about different ways of approaching law, and it seems to me that Leiter's dispute with Dworkin can be similarly analyzed.
59. Leiter, In Praise of Realism, supra note 5, at 893:
By the same token, opposition to Moralism is not opposition to entrepreneurial advocacy for a normative vision, to moral polemics, and skillful rhetoric: people change their moral views, to be sure, but they do so, as Humeans and Nietzscheans claim, because their passions and emotions are suitably engaged and aroused, not because they follow through the conclusions of discursive reasoning, since such reasoning can establish the truth of no moral position.
60. Brian Leiter, Rethinking Legal Realism, in Naturalizing Jurisprudence 53 (2007).
61. Knobe, Joshua & Leiter, Brian, The Case for Nietzschean Moral Psychology, in Nietzsche and Morality 83, 87 (Leiter, Brian & Sinhababu, Neil eds., 2007)Google Scholar.
62. I think this account of the dispute is particularly felicitous given the more unified philosophical whole into which Dworkin recently explicitly embedded his legal philosophy, a move he correctly traces to Aristotle. Ronald Dworkin, Justice for Hedgehogs (2011), at 184–186, 405–407.
63. It also helps clarify the stakes in connection with Leiter's general approach to legal philosophy. As Mark Greenberg recently argues, merely embracing some form of the legal indeterminacy thesis is not enough to justify Leiter's dismissal of Dworkin. Greenberg, Mark, Implications of Indeterminacy: Naturalism in Epistemology and the Philosophy of Law II, 30 Law & Phil. 453, 465–468 (2011)CrossRefGoogle Scholar. That is, it is a relatively trivial objection to the Dworkinian argument that the law should be justified in a particular way (i.e., with political morality) to counter that what the law is is in fact sometimes indeterminate. Indeterminacy still leaves important work to be done. Leiter's position is much stronger, however, if his rejection of Dworkin is based not so much on indeterminacy but on the argument that the building blocks of Dworkin's approach—moral principles—are causally inert.
64. Cf. Leiter, In Praise of Realism, supra note 5, at 870: “Thucydides . . . puts into the speakers’ mouths their true, amoral motives, reflecting Thucydides’ realistic view of human nature and human affairs in contrast with the idealistic fantasies of a Socrates or Plato.” After this passage, Leiter immediately cites Nietzsche (see Nietzsche, Twilight of the Idols, supra note 26).
65. Knobe & Leiter, supra note 61, at 90.
66. It should be noted that at least many of our current genetic theories (as I understand them) suggest (at least tentatively) that significant variations are possible within a species based on environment, even before birth. Eccleston, Alexet al., Epigenetics, 447 Nature 395 (2007)CrossRefGoogle Scholar (“Epigenetics is typically defined as the study of heritable changes in gene expression that are not due to changes in DNA sequence. Diverse biological properties can be affected by epigenetic mechanisms.”). Furthermore, Aristotle was quite aware that there are natural characteristics of human beings. See, e.g., Aristotle, Nicomachean Ethics bk. 1, ch. 13, 1102a18–26. Thus the pragmatic question discussed by Aristotle is how we should deal with those of our characteristics that can be changed, and modern science seems to leave a fairly wide range of such characteristics, including changes that may be made in heritable characteristics into the next generation.
67. Leiter, In Praise of Realism, supra note 5, at 884–889 (Leiter is particularly convincing in noting an implicit status quo bias in Dworkin and Rawls).
68. Id. at 871 n.22.
69. And indeed, and famously, at the beginning of Thucydides’ History, the Athenians are characterized as those “born into the world to take no rest [hesuchia] themselves and to give none to others.” Thucydides, supra note 23, at 1.70. Of course, this is a polemical context, as this is how adversaries, the Corinthians, are characterizing the Athenians, but the restless energy of the Athenians is a commonplace in Thucydides and our other sources. More generally, there are many passages in which Thucydides appears to privilege physis [nature] over nomos [custom]. And in so doing, he was engaging in a central intellectual debate of the time. See, e.g., Lebow, Richard Ned, Thucydides the Constructivist, 95 Am. Pol. Sci. Rev. 547, 553 (2001)CrossRefGoogle Scholar.
70. Or, put back into the language of the nomos-physis debate, “Thucydides believes that behavior is the result of a complex interaction between [nomos and physis]. If human nature could not be harnessed for constructive ends, civilization would never have developed.” Id. at 554.
71. The notion that the Greeks did not have “morality” but “ethics” goes back at least to Hegel. See, e.g., G.W.F. Hegel, Phenomenology of Spirit §§596–600.
72. We might also focus on the role of other norms in Thucydides—most obviously dike [justice]. Dike is a more central term in Thucydides than epieikeia from the first word of the first speech (that of the Corcyreans; Thucydides, supra note 23, at 1.32). And from this first speech, dike is a term very much in contention. Cf. Jonathan Price, Thucydides and Internal War (2001), at 82–103. Indeed, dike is explicitly at issue in both the Mytilenian debate and the Melian dialogue. See, e.g., Thucydides, supra note 23, at 3.38.1, 3.44.1, 5.86, and 5.89. On the one hand, therefore, I am discussing epieikeia only as an example that proves the larger point. On the other hand, the choice of epieikeia is deliberate since, as will become clear, it is a norm whose content, loose as it is, is particularly significant as to Leiter's argument and contemporary jurisprudence generally. Epieikeia is just the kind of norm that should not be motivating action, especially legal action.
73. See also Thucydides, supra note 23, at 3.40.2; 3.48.2.
74. See generally Shanske, Note, Four Theses, supra note 8, at 2056–2057; and Shanske, Thucydides, supra note 7, at 109–115; see also Crane, supra note 3, at 241 (“When Thucydides’ Athenians reject [the Melians’ argument for restraint], they are not simply pursuing a path of least resistance, mouthing self-evident platitudes of power politics. They are brushing aside an appeal to an established posture of the great.”); cf. Finley, supra note 4, at 58–59; Martin Ostwald, ANAΓKH in Thucydides 61 (1988) (“Thucydides’ system of moral values shows no perceptible divergence from conventional Greek morality.”).
75. Sophocles, Oedipus at Colonus, l. 1127.
76. Gorgias, B6 DK.
77. Democritus, B252 DK.
78. Aristotle, Nicomachean Ethics, supra note 66, bk. 5, ch. 10. It is a hard question to what extent Aristotle's use of epieikeia is revisionary; I think the better argument is that he is refining and reforming a norm that most Athenians would have recognized. For the view that Aristotle is pursuing a more revisionist approach, see Danielle Allen, The World of Prometheus (2000), at 187–188. Allen argues that a somewhat different set of norms contributed to Athenian stability; see, e.g., id. at 141, 179, 241. To the extent this is so, I would argue that Thucydides’ earlier use of epieikeia is a reference to this web of norms.
79. See Herman, supra note 22 (finding a forbearance norm throughout Athenian courtroom speeches and even in Thucydides). Aristotle emphasizes this aspect of epieikeia in his account of it in Aristotle, Rhetoric bk. 1, ch.13. Aside from lenity, epieikeia, per its root, also indicates what is reasonable, an implication that we also find in our sources. See generally Shanske, Note, Four Theses, supra note 8.
80. See, e.g., Aristotle, Nicomachean Ethics, supra note 66, at bk. 8, ch.1, 1155a24–27; Aristotle, Politics bk. 5, chs. 2–7 (extended discussion of the variety and causes of civil conflict). Cohen, supra note 14, at 25–33. And there is evidence that Aristotle was aware of Thucydides’ famous account of civil war. Hornblower, Simon, The Fourth-Century Reception of Thucydides, 115 J. Hellenic Stud. 55–56, 62 (1995)CrossRefGoogle Scholar.
81. See also Shanske, Darien, Thucydides and Lawfulness, in Thucydides—A Violent Teacher? History and Its Representations 199 (Rechenauer, Georg & Pothou, Vassiliki eds., 2011)Google Scholar.
83. Thucydides, supra note 23, at 3.82.3.
85. Thucydides, supra note 23, at 3.70.
86. Id. at 3.83.1. Translation mine, following Crane, supra note 3; and Martha C. Nussbaum, The Fragility of Goodness (1986), at 404–405.
87. Price, supra note 72, at 59–67.
88. See, e.g., James Boyd White, When Words Lose Their Meaning 83 (1984). In particular, this was the position advocated by the Athenian orator Diodotus in the Mytilenian debate, which debate precedes the account of the civil war—this debate and the Plataean debate that follows are generally seen as forming a sort of tragic triptych with the account of civil war in Corcyra (Athenian tragedies were generally performed as a series of three plays; the Oresteia is the only surviving example and is a cycle of plays that certainly dramatizes “blowback”).
89. Thucydides, supra note 23, at 3.82.6. Rhodes, P.J., Thucydides and Athenian History, in Brill's Companion to Thucydides 524 (Rengakos, Antonios & Tsakmakis, Antonis eds., 2006)Google Scholar.
91. Thucydides, supra note 23, at 8.54, 8.92.
92. Id. at 8.91.
93. Id. at 8.92–93.
94. Id. at 8.93.2. The Anaceum has been placed at the center of the city, meaning that the democratic forces were at that point quite close to the oligarchic stronghold. Landmark Thucydides, supra note 23, at 535, 537.
95. The verb is literally “to dialogue.” Thucydides, supra note 23, at 8.93.2.
96. There is a thorny issue here as to the relationship between describing certain people as having epieikeia, particularly better-born people, and the abstract noun epieikeia. There is a similar issue in Aristotle. See, e.g., Aristotle, Nicomachean Ethics, supra note 66, bk. 5, ch. 10; bk. 9, ch. 6; Shanske, Note, Four Theses, supra note 8, at 2081. This is not the place for a survey of the relationship between these two uses, but observe here the specific internal analytic relationship. What is being asked of the men of epieikeia is specifically not to strike first at their enemies and to trust, just the kind of reciprocity that more abstract descriptions of epieikeia revolve around.
97. Hesuchia is an important word in Thucydides and Greek tragedy. See, e.g., Shanske, Thucydides, supra note 7, at 48–49. It is hesuchia that the Athenians were born to deny themselves and others. Thucydides, supra note 23, at 1.70. Thus the oligarchs are asking the Athenian demos not just to listen but to act out of the very character that built their empire. And they do.
99. On the surprising non–civil war of 411 bc, see Andrew Wolpert, Remembering Defeat: Civil War and Civic Memory in Ancient Athens (2002), at xi.
100. Thucydides, supra note 23, at 8.86.
101. Id.
102. Id. at 8.75.1.
103. Cf. Josiah Ober, Athenian Legacies (2005), at 62–68.
104. As Lanni argues, this was in part surely because the free-flowing nature of Athenian legal practice allowed a litigant to mention past events before a mass jury but the deliberation-less decisions without written opinion allowed the basis of the final legal decision to remain opaque. Lanni, Adriaan, Transitional Justice in Ancient Athens: A Case Study, 32 U. Pa. J. Int'l L. 551 (2010)Google Scholar.
105. See Shanske, Thucydides, supra note 7, at 105–118.
106. Neither Thucydides nor anyone else suggests that it was only epieikeia that preserves Athens. However, I think both Thucydides and Aristotle, perhaps against their other judgments, do attribute a lot of import to the particular ways that the Athenians relate to each other as citizens, and this reciprocal relationship, civic friendship in Aristotelian terms, is surely bound with the communal norm of epieikeia. See, e.g., Thucydides, supra note 23, at 2.40, 2.41 (Pericles on special nature of the Athenians, even individually); Aristotle, Nicomachean Ethics, supra note 66, bk. 8, chs. 10–11 (Aristotle's somewhat surprising observation that democracy is especially conducive to friendship); see also Ober, Josiah, Aristotle's Natural Democracy, in Aristotle's Politics: Critical Essays 223, 234–235 (Kraut, Richard & Skultety, Steven eds., 2005)Google Scholar (arguing that the stability of Athens is a puzzle for Aristotle at least in part solved by the inclusiveness of Athenian citizenship); and the sources in note 14supra.
107. Cf. Lebow, Thucydides, supra note 69, at 559 (“Thucydides’ history suggests that interest and justice are inextricably connected and mutually constitutive. . . . Materialist interpretations of Thucydides, which overwhelmingly are realist, offer a superficial and one-sided portrayal.”).
108. Jules Coleman, The Architecture of Jurisprudence, 115 Yale L.J. 2, 43, 52 (2011):
For both Dworkin and Raz, one must approach the nature of law by addressing a problem in first-order political philosophy: the justification of coercion in Dworkin's case, the conditions of legitimate authority in Raz's. . . . [E]xclusive legal positivism is the conclusion of an argument that relies on the premise that law and morality are necessarily connected in a distinctive way. Here, the idea is that the place of law is in general determined by morality, and that specifically its place is to serve morality. Necessarily, law is an instrument in the service of morality.
110. See Leslie Green, The Authority of the State (1998), at 265 (“Civility . . . prescribe[s] . . . self-restraint. It commends a willingness to deliberate about the character of injustice before disobeying and condemns those forms of rigorism which will tolerate nothing but perfection in human institutions.”); Green, Leslie, Positivism and the Inseparability of Law and Morals, 83 N.Y.U. L. Rev. 1035, 1057–1058 (2008)Google Scholar (“The vice internal to law is, unsurprisingly, legalism.”); see also Richard Kraut, Aristotle: Political Philosophy (2002), at 166–168 (“One of the most appealing features of Aristotle's investigation of justice is his recognition that the very stuff of justice—law and proportionality—can sometimes lead us astray.”); Shanske, Darien, Revitalizing Aristotle's Doctrine of Equity, 4 L. Culture & Human. 352 (2008)CrossRefGoogle Scholar.
111. See Shanske, Revitalizing, supra note 110, at 372–373.
112. See Luban, supra note 17.
113. See Shanske, Thucydides, supra note 7, at 33–37.
114. Following Aristotle, Nicomachean Ethics, supra note 66, bk. 5, ch. 5, 1132b20–1133a6; Aristotle, Politics, supra note 80, at bk. 2, ch. 2, 1261a31–33. See also Jill Frank, Democracy of Distinction (2005), at 85–111; Gabriel Danzig, The Political Character of Aristotelian Reciprocity, 95 Classical Philology 399 (2000); see also Dworkin, Law's Empire, supra note 56, at 198–216 (emphasizing role of reciprocity in arriving at the importance of the virtue of integrity for our political community); Finnis, supra note 15, at 272–274 (virtue of reciprocity is what undergirds the Rule of Law).
