Thursday, April 24, 2008

Sundahl on The Lawgiver and Legislative Intent in Classical Athens

The Ancient Roots of Originalism: The Lawgiver and Legislative Intent in Classical Athens is a new paper by Mark Sundahl, Cleveland State University - Cleveland-Marshall College of Law. The title is unfortunate, since it implies that contemporary constitutional originalism had its roots in Athens and seems to portend a presentist approach to ancient history. This is reinforced in the abstract. But don't be dissuaded. In the paper itself, the author understandably adds a few paragraphs about why contemporary legal scholars might want to care about this history, and then the body of the article focuses appropriately on legislative intent in Athens. Here's the abstract:
This Article explores the ancient roots of the originalist approach to constitutional interpretation by examining the use of legislative intent in the courtroom speeches of fourth-century Athens. Athenian litigants faced many of the same problems of statutory interpretation that continue to challenge the justices of the Supreme Court, and just as modern originalists argue that the intent of the Founding Fathers should guide constitutional interpretation in order to guard against judicial activism, the Athenians frequently made use of legislative intent in an effort to prevent Athenian juries from adopting an interpretation of a law that strayed too far from the intent of the lawgiver.
The data collected in this study show that Athenian litigants used legislative intent frequently as a tool of statutory interpretation, but that they also used the intent of the lawgiver in unexpected ways in a variety of different arguments. The study also reveals certain inherent problems in the use of legislative intent that have yet to be solved by modern jurists, such as the difficulty in determining the true intent of the legislator. In the end, however, this Article provides new evidence that the use of legislative intent, despite its inherent weaknesses, ultimately contributed to the consistent and reasonable interpretation of law in Athens - for even when intent is difficult to determine with certainty, the very exercise of manufacturing an intent that is consistent with the character and principles of the wise lawgiver (or the Founding Fathers) promises to prevent interpretations that stray from the traditional understanding of the law.

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