Thucydides and Law: A Response to Leiter

24 Pages Posted: 19 Apr 2012 Last revised: 28 Jan 2017

See all articles by Darien Shanske

Darien Shanske

University of California, Davis - School of Law

Date Written: April 19, 2012

Abstract

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, which 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 is therefore not only limited, but misses implicit arguments that challenge Leiter’s broader argument for a particular form of legal realism.

Keywords: Thucydides, Brian Leiter, Legal Realism, Jurisprudence, Dworkin, Epieikeia

Suggested Citation

Shanske, Darien, Thucydides and Law: A Response to Leiter (April 19, 2012). 19 Legal Theory 282 (2013). Available at SSRN: https://ssrn.com/abstract=2042804 or http://dx.doi.org/10.2139/ssrn.2042804

Darien Shanske (Contact Author)

University of California, Davis - School of Law ( email )

400 Mrak Hall Dr
Davis, CA CA 95616-5201

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