Judicial Review by the People Themselves: Democracy and the Rule of Law in Ancient Athens

Federica Carugati, Randall Calvert and Barry R Weingast

The Journal of Law, Economics, and Organization, 2023, vol. 39, issue 1, 1-26

Abstract: Modern democratic constitutions mediate the tension between democracy and the rule of law through institutions that check unrestrained popular rule with expert judicial bodies. This paper considers the alternative arrangement that existed in ancient Athens, where checks on popular rule coexisted with strong popular control. Judicial review in Athens, however, raised two additional threats to democracy and the rule of law: unpredictability and partisanship. We combine a formal model with historical exegesis to show how the strategic incentives of Athenian institutional design, along with a strong societal consensus on the value of constitutional democracy, were necessary ingredients for dispelling both threats. In Athens, institutions responsive to citizens’ demands existed alongside a robust rule of law. This case study provides empirical evidence allowing us to reflect on the feasibility of extensive democratic input to the process of constitutional review. [JEL: H11—structure, scope, and performance of government; K40—legal procedure, the legal system, and illegal behavior (general)]

Date: 2023
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