The physis and nomos controversy first emerged in ancient Greek thought. This article explores Castoriadis' reactivation of the issues concerned; in particular, his radicalization of Aristotle's conception of physis and nomos. It suggests that nomos appears as multifaceted in his work. However, three key variations may be identified: empirical nomos, normative nomos and generic nomos. Empirical nomos signifies the human creation of laws. It challenges the notion, long held in western philosophy, that Being = being determined. Although all laws are (...) by humans created and thus in one sense autonomous, Castoriadis further distinguishes normatively between those societies which embrace their self-creating and self-transformative capacity and those which obscure it. Normative nomos, then, refers to the autonomous or heteronomous institution of society. The third sense of nomos refers to the creation of form. In this generic sense, it is argued that the debate shifts from the human to the non-human realm; that nomos also manifests itself in the realm of physis. (shrink)

The master narrative of a profound crisis in traditional faith leading to a hardening of authority and religious persecution in late fifth-century Athens has a long scholarly history, one that maintains a persistent presence in current research. This paper proposes to reexamine some aspects of religious authority in late fifth-century Athens through one case-study: the trial of Andocides in 400 BCE. Instead of proposing a new reconstruction of the events that led to this trial, it will compare and contrast the (...) rival rhetorics of authority deployed by Andocides in De mysteriis and Ps.-Lysias in In Andocidem and attempt to locate them in their respective social and cultural contexts. (shrink)

In this paper I revisit nature as a source of normativity for law in the later Hellenistic period, that is beyond the opposition of law and nature in the early classical period, Plato’s and Aristotle’s naturalism, or the early Stoics’ conception of the common law. I will focus on the first century BCE, when the expression ‘natural law’ gained prominence, reconstructing its origins in the interaction between Hellenistic philosophers and the Roman elite, including jurists. I argue that for the jurists (...) the Stoic doctrine of law in nature offered a theoretical underpinning for their unique practice of dispute resolution, whereas for the Stoics this Roman practice offered an unexpected opportunity to instrumentalise their conception of law. (shrink)

Existing attempts to understand the relationship between violence and stability within Classical Athens are undermined by their failure to compare democracies with oligarchies. The exclusionary policies of oligarchies created a fragile political equilibrium that required considerable regulation if oligarchic regimes were to survive. By contrast, the inclusiveness of democracies largely defused the danger that disputes would lead to regime collapse. Citizens of democracies faced fewer incentives to police their behavior, resulting in higher levels of public disorder and violence; this violence, (...) however, was at the same time less likely to escalate into deadly force and stasis. The distinctive cultures of democracies and oligarchies were determined in part by considerations of basic political order. (shrink)

A reading of Solon's elegy to eunomia through Castoriadis's seminal theory of autonomy as the explicit and reflective self-institution of society can elucidate the question of what constitutes sound governance. Solon proposes that the dignified realm of mortal life is the ethos of citizenship in a political state. Accordingly, this regime, which relies on intrinsic justification, needs to be understood in ethico-political terms. Its inherent ordinance is the rule of justice - the reciprocity of equitable proportion governing relations among citizens. (...) It is the responsibility of these citizens to safeguard the governing reciprocity, and when they neglect it, the entire state suffers the dire consequences of hubris. The political order that best observes and promulgates the rule of justice is good governance, which functions both as self-limitation and as a balancing measure by arranging the contest of civic forces into a fitting harmony. (shrink)

Alcmaeon, a philosopher-cum-doctor from Croton, offers the earliest known definition of health and disease. The aim of this paper is to examine the formulation of his medical theory in terms of political organization, namely the polarity between one-man rule and egalitarianism , by taking into account contemporary philosophical and medical texts, as well as the historical context. The paper is divided into four sections. I first overview the compendium in which this medical theory is reported, trace the doxographical layers, and (...) analyse the terminology employed . I then focus on the key aspects of this medical theory, including the constitution of the body, the interaction of opposites, and the aetiology of disease . I suggest that Alcmaeon's notion of equality can be understood in various ways, and discuss the possible interpretations in the light of early Greek philosophy and medicine. The most likely interpretations are that there exists a kind of equilibrium between pairs .. (shrink)

Any attempt to apply Aristotelian political categories to the principles of modern constitutionalism is undoubtedly at risk of anachronism. This paper acknowledges non-trivial differences between the Ancient Greek politeia, as theorised by Aristotle, and the modern constitution. It nonetheless argues that the central principles of the modern liberal constitution can be elucidated within the explanatory frame of the Aristotelian concept of the politeia as a political determination of institutional structures and competences oriented by an interpretation of the public good. The (...) paper is divided in three sections. Section 1 outlines Aristotle’s account of the politeia. Section 2 considers some central principles of modern constitutionalism. Section 3 then examines these principles under an Aristotelian lens. The conclusion sketches a potential objection, implicit in the paper’s arguments, to a recent proposal for a ‘neo-Aristotelian’ normative constitutional theory. (shrink)

This paper explores how gender can operate as a disguise for class in an examination of the self-sacrifice of the Maiden in Euripides' Children of Herakles. In Part I, I discuss the role of human sacrifice in terms of its radical potential to transform society and the role of class struggle in Athens. In Part II, I argue that the representation of women was intimately connected with the social and political life of the polis. In a discussion of iconography, the (...) theater industry and audience I argue that female characters became one of the means by which different groups promoted partisan interests based on class and social status. In Part III, I show how the Maiden solicits the competing interests of the theater audience. After discussing the centrality and marginality of the Maiden's character, I draw upon the funeral oration as a comparative model with which to understand the quite different role of self-sacrifice in tragedy. In addition to representing and mystifying the interests of elite, lower class and marginal groups, the play glorifies a subordinate character whose contradictory social status embodies the social position of other “marginal” members of Athenian society. The play stages a model for taking political action to transform the social system and for commemorating the tragic costs of such undertakings. (shrink)

According to several fourth-century Athenian sources, the Spartans were a boorish and uneducated people, who were either hostile toward the written word or simply illiterate. Building upon such Athenian claims of Spartan illiteracy, modern scholars have repeatedly portrayed Sparta as a backward state whose supposedly secretive and reactionary oligarchic political system led to an extremely low level of literacy on the part of the common Spartiate. This article reassesses both ancient and modern constructions of Spartan illiteracy and examines the ideological (...) underpinnings of Athenian attacks on the ostensibly unlettered Lacedaemonians. Beginning with a close analysis of the available archaeological and literary evidence on Spartan public applications of literacy, it argues that the written word played a central role in the operation of the Spartan state, which utilized a variety of documents and required routine acts of literacy on the part of Spartiate commanders and ocials. Both the broad eligibility for the ephorate and the Lacedaemonians' chronic oliganthropia demonstrate that not all of the important public functionaries whose duties customarily involved reading and writing were members of the Spartan elite. The fact that Spartan office-holders acquired their literacy skills from a compulsory and comprehensive system of public education, which promoted the creation of a collective identity, further argues in favor of a literacy that was more broadly based than previous scholars have concluded. The article then accounts for these representations of Spartan illiteracy by locating them in the context of the changing relationship between orality and literacy in fifth- and fourth-century Athens. It argues that as the written word played an increasingly important role in Athenian democratic practice and ideology, it began to performtwo interconnected functions: as a signicant component in Athenian self-denition and as a key indicator of cultural and political dierence between Athens and its Peloponnesian enemies. (shrink)

This article starts from the observation that in classical Athens the discovery of democracy as a normative model of politics has been from the beginning not only a political and a legal but at the same time a philosophical enterprise. Reflections on the concept of criminal law and on the meaning of punishment can greatly benefit from reflections on Athenian democracy as a germ for our contemporary debate on criminal justice in a democracy. Three main characteristics of the Athenian model (...) will be analysed: the self-instituting capacity of a democracy based on participatory and reflective citizenship, political power as the capacity of citizens for co-operating and co-acting with others, and the crime of hubris as one of the key issues in Athenian criminal law. These analyses will lead to the conclusion that one of the key issues of a democratic legal order lies in its capacity of recognizing the fragility of the human condition and of developing workable and effective standards of justice in that context. A relational conception of criminal law and punishment, based on proportionality, reflexivity, mutual respect and responsibility fits best with a democracy under the rule of law. (shrink)

A board of ¿law-guardians¿, or nomophulakes, has long been associated with the Athenian regime of Demetrius of Phalerum (317-307 bc). The duties of Demetrius¿ officials have been surmised from an entry on nomophulakes in the Atthis of Philochorus (FGrHist 328 F64), which lists their central functions as the supervision of ma-gistrates and the prevention of illegal resolutions by the assembly and council. This understanding of the fourth-century nomophulakes stands in contradiction to the explicit testimony of Pollux (8.102), who asserts that (...) Demetrius changed the name of the hendeka, the eleven Athenian gaolers, to nomophulakes. A case is made here for the acceptance of Pollux, a case based on textual grounds and on comparison with other reforms associated with Demetrius. It is further argued that Philochorus¿ description applies ¿ as the sole excerpter of the Atthis to give a temporal context, the Lexicon Cantabrigiense, indeed states ¿ to nomophulakes created in the aftermath of Areopagite reform in the mid-fifth century, and that Demetrius¿ officials were linked to these early nomophulakes through their inheritance of different aspects of nomophulakia associated with the early Areopagus. (shrink)

The claim of liberal constitutionalism is that a text-like object or a ‘diplomatically abstract’ set of principles can work a deflection of disagreements within a pluralist polity. But this project assumes both that pluralism remains amenable to reason and that reason is a capacity independent of the profound differences of meaning, value, and forms of life that shape those disagreements. Neither assumption is correct. Differences in norms, values, and forms of life inevitably undergird and structure differences in meaning, perception, and (...) interpretation. Consequently, a constitution (even when written and accompanied by judicial review) will necessarily unfold in an ongoing process of political cooperation and contestation. Legitimacy can arise only from the practice of democracy itself – that is, self-governance under conditions that realistically accord equal recognition and respect to all participants. Law is not some abstract entity or prior fixation, special and above. It is not, as Michelman once said, ‘an autonomous force’ that provides ‘an external untouchable rule of the game’. It is just another social institution or performative practice that does (or does not) reflect our democratic nomos. To be committed, as a strong democrat, to the rule of law is to be committed to the idea that we make the rules by which we govern ourselves. Equal voice, equal power, and equal law are just self-government. They are internal to – that is, constitutive of – the game. They are not untouchable; indeed, they are being manhandled every day. But they nevertheless describe a democratic constitution that fully legitimates itself in its performance. (shrink)

Philosophy & Social Criticism, Volume 48, Issue 5, Page 655-673, June 2022. The standard account of the relation between democracy and the rule of law focuses on law’s liberty-enhancing role in constraining official action. This is a faint echo of the complex, constitutive relation between the two. The Greeks used one word – isonomia – to describe both. If democracy is the system in which people have an equal say in determining the rules that govern social life, then the rule (...) of law is simultaneously before, after, concurrent and synonymous with democracy: It contributes to the formation of citizens with the capacity for self-governance, serves as the instrument through which democratic decisions are implemented, functions as one of the central social practices that constitute citizens as equals and addresses the question of how to ensure that government by the people operates for the people. The rule of law has many independently valuable qualities, including impartiality and predictability. But, to valorise the rule of law for its own sake is to fetishize authority. The fundamental values of the rule of law are as the instrument of democratic self-governance and the expression of the equal dignity of all persons. Democracy thus entails the rule of law, but both implicate the yet more comprehensive ideal of equality. Core rule-of-law values require political norms and conditions of equality, generality and comprehensiveness. In a modern, differentiated society, however, the constitutive relation between democracy and the rule of law is fractured and law becomes the agent of authority. Courts in the modern constitutional state have contributed to the decline of rule-of-law values, supporting role specialization through judge-made immunity doctrines that protect officials at all levels. The crisis of police violence against minorities is a symptom of this breakdown. Greater accountability can ameliorate the problem. But an effective solution requires the fair and equal distribution of political power. (shrink)