2016 Book Recommendations–Hofstadter on American Politics, Lanni on Ancient Athens

—Tom Ginsburg, University of Chicago

Richard Hofstadter. The paranoid style in American politics and other essays. Harvard University Press, 1996 (1964). P. 346. ISBN: 978-0674654617

On the eve of our momentous presidential election, I decided to re-read Richard Hofstadter’s brilliant 1964 essay (and later book), The Paranoid Style in American Politics. The trenchant analysis is so spot-on that it is worth quoting at length: “American politics has often been an arena for angry minds. In recent years we have seen angry minds at work mainly among extreme right-wingers, who have now demonstrated in the Goldwater movement how much political leverage can be got out of the animosities and passions of a small minority. But behind this I believe there is a style of mind that is far from new and that is not necessarily right-wing. I call it the paranoid style simply because no other word adequately evokes the sense of heated exaggeration, suspiciousness, and conspiratorial fantasy that I have in mind…. The paranoid style is an old and recurrent phenomenon in our public life which has been frequently linked with movements of suspicious discontent.”

Motivated proximately by anticommunism, Hofstadter documented various social and political movements back to our founding, from conspiracy theories about the illuminati, through anti-Masonic and anti-Catholic movements in the 19th century, to the hysteria of McCarthyism. It is somewhat of a relief that the Republic has weathered many such storms. To be sure, these movements destroyed many lives along the way, and have left residues of bigotry that linger on. But the country as a whole has endured.

It is natural to wonder if this time is indeed different.

The paranoid personality—with its thin-skinned bullying, propensity to demonize, and inattention to actual facts—is in the normal course of events a political irritation, a force to be resisted and endured. But it is truly unprecedented to have a person so perfectly embodying the paranoid style to be elevated to the highest office of the land. A sore test for our political institutions lies ahead, and while I am confident that they will meet the challenge, I am less convinced about the survival of our political culture. In such times, it is important to celebrate the virtues of the scholar: careful weighing of the evidence, analytical rigor, and good judgement. Not to mention a lot of patience.

Adriaan Lanni’s Law and Order in Ancient Athens is a good example of these scholarly virtues. In recent years, there has been renewed academic attention to the legal system of the ancient Greeks, and Lanni draws on recent law review literature to examine the role of the legal system in producing social order. In Lanni’s account, Greek juries were relatively unconstrained by legal norms announced in advance, instead regularly relying on extralegal considerations such as reputation as well as litigant behavior in prior unrelated legal cases. While this approach doesn’t fit our conventional definitions of the rule of law, it did mean that juries were able to tailor justice to individual conditions, facilitating the evolution of norms over time. The use of reputation also provided incentives for people to conform to broader rules of social order, including unrelated legal norms. In this way, adjudication helped promote order indirectly, beyond the specific laws that were at issue in any given case. Statutory law, in her account, played a largely expressive role, as there was relatively little public enforcement. Taken altogether, the system as a whole conformed to the Greek ideology of a relatively limited state.

Lanni’s account brings together classical scholarship, in which she seems exceptionally well versed, with contemporary legal theory, making the Greeks relevant for us today. The book’s final chapter is on transitional justice after the civil war of 404 B.C.E. Lanni recounts how, during the brief rule of the Thirty Tyrants, some five to ten percent of the citizenry was killed and many more were exiled. After democracy was restored, the main persecutors were exiled rather than killed, and Athens faced the challenge of how to deal with lower-level collaborators. The Athenians produced an amnesty that immunized the collaborators from direct prosecution. Democracy makes a virtue of political forgiveness.

However, because of the structure of the Athenian legal system, the deal could not prevent juries in subsequent lawsuits from considering the actions of the collaborators as character evidence. This meant that while there was forgiveness at the political level, nothing was forgotten at the personal level. The collaborators had to be on their best behavior.

Lanni frames her account in terms of the modern debates over transitional justice, but it also speaks to a political moment of intense polarization. Like the Greeks, our own democracy tends to forgive political crimes. After the George W. Bush administration, the incoming Obama administration made the decision not to prosecute those who had ordered or engaged in torture. (Perhaps that forbearance will prove wise, as low level bureaucratic controls put into place by the very same institutions become a critical line of resistance in our new era of tough talking leaders.) Certainly, the de facto amnesty offered a generous model of reciprocity in action. The personal and political were aligned.

In one of the many low points of our recent electoral campaign, our President-elect threatened to prosecute his opponent, the kind of move that threatens to undermine not only democracy but the rule of law. Let us hope he learns a historical lesson from the ancient Greeks. Hofstadter, though, suggests this may be unlikely: “We are all sufferers from history, but the paranoid is a double sufferer, since he is afflicted not only by the real world, with the rest of us, but by his fantasies as well.”

Suggested Citation: Tom Ginsburg, 2016 Book Recommendations–Hofstadter on American Politics, Lanni on Ancient Athens, Int’l J. Const. L. Blog, Dec. 27, 2016, at: http://www.iconnectblog.com/2016/12/2016-book-recommendations-tom-ginsburgs-choices