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39 J. L. Econ. & Org. 1 (2023)

handle is hein.journals/jleo39 and id is 1 raw text is: JLE0 V39, N1 1 Judicial Review by the People Themselves: Democracy and the Rule of Law in Ancient Athens Federica Carugati* King's College London, UK Randall Calvert Washington University in St. Louis, USA Barry R. Weingast Stanford University, USA Modern democratic constitutions mediate the tension between democracy and the rule of law through institutions that check unrestrained popular rule with ex- pert 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 consen- sus 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 evi- dence allowing us to reflect on the feasibility of extensive democratic input to the process of constitutional review. [JEL: H11-structure, scope, and perform- ance of government; K40-legal procedure, the legal system, and illegal behavior (general)] 1. Introduction Political theory often grapples with the tension between democracy understood as a system of government where the ultimate sovereignty lies with the people and the rule of law where the people's power is con- strained by a body of laws.1 This issue dates back at least to the ancient Greeks, who produced both the world's first democracies and the first written law codes aimed explicitly at curtailing the rulers' power. Contemporary democratic nations differ in the ways in which they have *Department of Political Economy, King's College London, Bush House, North East Wing, 30 Aldwych, London, WC2B 4BG, UK. E-mail: federica. carugati@kcl.ac. uk. 1. These definitions of democracy and rule of law are deliberately shallow to capture the central tension between the two concepts. The Journal of Law, Economics, and Organization, Vol. 39, No. 1 https://doi.org/10.1093/jleo/ewab033 Advance Access Publication December 2, 2021 © The Author(s) 2021. Published by Oxford University Press on behalf of Yale University. All rights reserved. For permissions, please email: journals.permissions@oup.com