The Rule of Law (RoL) is an honoured principle of modern democracies; whether it is an apt description of ancient Athens is much debated. No one has contributed more to this controversy than H. This volume recasts some of his recent essays and frames them with an introduction defining RoL in modern terms and a closing chapter on its failure in the late-fifth century b.c. For the defining features, H. draws upon a work of great authority, T. Bingham's The Rule of Law (2010). Crucial is the rule that all are equal before the law and, for that to be a reality, the law must be accessible to all, as Bingham put it, ‘so far as possible intelligible, clear and predictable’. That perspective provides the focus for much of this book: in H.'s view, the statutes at Athens gave a clarity and consistency to the workings of justice that seem largely comparable to our own standard.

This collection builds the case for a modern-sounding legal system, one that relied on substantive rules and official enforcement. It is a polemic in the best sense; for it campaigns, chapter by chapter, against an influential body of work that stresses the differences between modern and ancient justice. The range of this postmodern perspective is well represented by D. Cohen, S. Forsdyke and A. Lanni: at Athens the court was an arena for feuding groups to settle the score; self-help and informal justice sometimes pre-empted judicial proceedings; at trial the decisive terms were open to interpretation, the outcome unpredictable. Most of the essays reprised in the present volume were originally written in rebuttal to those authors and others on the same side, but here they are almost never named in the main text – even where H. carries on at length against ‘one scholar’ or another. In the preface H. explains that he has adopted this style of reference to ‘concentrate on … positive contributions’, but in a work of this kind it often seems oddly dismissive, as though assuming a conclusiveness that the debate does not warrant.

In Chapters 1–2, H. argues that Athens was not a ‘stateless’ community, that officers bore the burden of enforcement, and that the courts were not an arena for feuding groups. A large body of law for coinage, trade and storage, and other fixtures of marketing and empire was enforced by officers; in sum ‘officials and bodies like the Council of 500 and the Areopagus played the primary role in policing Athens’ (p. 58). But, in my view, H. overvalues this official policing at the expense of citizen initiative. After all, the state may monopolise the use of force without deploying its officers against every infraction. And the sheer bulk of administrative laws may be misleading: by the same standard one could argue that Athens was a hierocratic state because a preponderance of statutes had to do with religious obligations. In Chapter 2 H. draws upon G. Herman's picture of a culture in which self-restraint is more valued than retaliation, and there is much to be said for Herman's description. But H. sometimes seems to be splitting hairs, insisting, for instance, that Demosthenes' quarrel with Meidias and his kin does not qualify as a ‘feud’. Athenian litigants are often unabashedly vindictive, and even Herman acknowledges that a Greek was honour-bound to respond to repeated insults (‘tit for two tats’). For us, retaliation undermines RoL; for the Athenians, a citizen responding at last to a series of injuries may pose as the defender of rules and values that everyone shares.

The main chapters (3–8) build the case for clarity: much of Athenian law is ‘substantive’ because it imposes specific duties on designated parties; the judicial oath allows for discretion only where the law is not specific; key terms such as hybris were subject to interpretation because of the law's ‘open texture’, a construction adapted from H.L.A. Hart's The Concept of Law (1961). In Chapter 4 H. shows that Athenian laws defined some terms restrictively, such as the minimum for ‘first fruits’. But here again the differences are more striking: at Athens it is hard to find a categorical definition, one that settles the meaning of a difficult term, such as ‘assault’ which modern codes sometimes have to define. For instance (p. 170), H. cites Hyperides (Ath. 16) for a clause defining the offspring of contractual marriage as legitimate heirs (gnêsioi). But that ‘definition’ seems incidental, not prescriptive: it does not define a contested term in the way that modern codes may try to define ‘marriage’ (for better or worse). Indeed, as Hyperides says in that passage, everyone knows what ‘marriage’ means for the offspring.

Hart treated ‘open texture’ as a feature of the common law and he focused on adjustable values such as ‘fair rate’ or ‘due care’, as calculated by precedent. H. follows suit by arguing at length for effective precedents in Athenian law, and he finds, indeed, a strong consistency in the known verdicts. But again the differences may be more important than the broad similarity: what H. treats as ‘precedent’ is not the sort of guide that modern judges find in their predecessors' decisions; after all, at Athens, there was no record of judges' reasoning. In each instance the value of a decisive term, such as hybris or asebeia, had to be drawn from common understanding.

The final chapter departs from the construction of RoL at Athens to confront its signal failure, as though prompted by Bingham's last chapters analysing the ‘War on Terror’. At Athens, H. makes Cleon singularly responsible for the breakdown of RoL in the last decades of the fifth century. And, with that distinction, H. faults ‘some scholars’ for lack of diachronic perspective. But, to be fair, the better part of this book proceeds within the same synchronic blinders (e.g. regarding the Areopagus as a police force).

H. makes a strong defence of RoL at Athens against the postmodern critique, but his polemics are often marred by careless reference or misplaced certainty. Thus to illustrate how legal decisions should focus on ‘substantive issues’, he claims, ‘no one would argue that when the Senate voted whether to impeach President Clinton, it did not consider whether his misconduct with Monica Lewinski fit the description “high crimes and misdemeanors”’ (p. 181). Of course the grounds on which the U.S. House voted to impeach were perjury and obstruction; what H. seems to mean is that the Senate decided not to convict the president for lying about the liaison because it did not amount to high crime. Such disparity is not quite what Hart meant by ‘open texture’, nor is it much help with ‘substantive issues’ at Athens. In the suit against Meidias for sabotaging Demosthenes' choregia and punching him at the Dionysia (Dem. 21), H. has concluded that hybris was the offence at issue and the case is closed. But D. MacDowell (Demosthenes Against Meidias [1990]) argued forcefully that the issue at trial, as specified in the law, was ‘wrongdoing in regard to the festival’: for Demosthenes anticipates (25–35) the objection that he should not have prosecuted in the public's behalf when his case is all about his own injury, for which there are proper remedies such as the suit for hybris. But most perplexing is the case of the Arginousai generals: H. insists that there was a certain statute providing that no citizen be put to death without trial, and the ad hoc procedure violated that positive law (pp. 243, 342); he cites an old article of mine (GRBS 25 [1984], 111–21) as though it leads to that conclusion – it does not. The nomos that was violated was not contained in prescriptive text but a deeper constraint that everyone must know.