This article was published in the
Autumn 1996 issue of Formulations
formerly a publication of the Free Nation Foundation,
now published by the Libertarian
The Athenian Constitution:
Government by Jury and
by Roderick T. Long
table of contents of archives) (to
start of essay)
Athens: A Neglected Model
Origins of the Athenian Constitution
The Legislative Branch
The Judicial Branch
--The Jury Courts
--The Legislative Courts
The Executive Branch
Athenian Democracy and Its Critics
What Can We Learn From Athens?
(to outline) (to
top of page)
"Each single one of our citizens,
in all the manifold aspects of life,
is able to show himself the rightful
lord and owner of his own person,
and do this, moreover, with exceptional
grace and exceptional versatility."
-- Perikles (c. 495-429 BC)
Athens: A Neglected Model
Those engaged in the project of designing
a constitution for a new libertarian nation can learn from the example
of previous free or semi-free nations. In previous issues of Formulations
we have accordingly surveyed sample constitutions ranging from the
medięval Icelandic system of competing assemblies to the U. S. Articles
of Confederation. One example that is not often considered when libertarians
discuss constitutional design is ancient Athens.
In a way this is not surprising.
Athens in the fifth and fourth centuries BC is famous for being the purest,
most extreme form of democracy in human history. Most libertarians get
understandably nervous at the thought of unlimited majority rule. Moreover,
the leading thinkers of the classical liberal tradition, from Montesquieu
and Madison to Isabel Paterson, learned their Greek history from upper-class
writers like Thucydides and Xenophon, Plato and Aristotle, Polybius and
Plutarch, and absorbed from them their bias against the democratic institutions
of Athens. (The anti-Athenian bias in Alexander Hamilton's capsule history
of the Peloponnesian War in the Federalist Papers is so extreme
as to be ludicrous;1 and Madison is not much better.)
Nevertheless, the Athenian constitution
deserves our consideration. In its heyday, Athens was the freest nation
in the world. The Athenian definition of "liberty" was, in private matters,
"living as one pleases," and in public matters, "ruling and being ruled
in turn." By and large Athens lived up to these ideals. The Athenian statesman
Perikles, in a famous funeral oration, boasted that in Athens no one even
got sour looks from his neighbors if he chose to live his own life in his
own way — an exaggeration, no doubt, but one with which Athens' critics
agreed, charging that Athens was, in Plato's words, a supermarket where
everyone could pick his own constitution, as if each person were living
under a different regime of his own choosing. Unlike most Greek states,
Athens exercised no control over education; to the consternation of the
philosophers, who favored the Spartan system of compulsory state indoctrination,
parents could arrange to have their children taught what and as they pleased.
Moreover, the Athenians prided themselves on being as strict with their
public officials as they were lenient toward their neighbors; according
to Perikles, "we are free and tolerant in our private lives; but in public
affairs we keep to the law." (Thucydides, II. 37.)
Athens was especially famous for
its intellectual freedom. This freedom had its limits, of course; unpopular
thinkers, for example, were sometimes prosecuted for departing from religious
orthodoxy (Sokrates being the most famous case). Still, Athenian freedom
of thought and speech was robust enough to attract controversial thinkers
and teachers from all over Greece. The Ionian cosmologist Anaxagoras had
admittedly been run out of Athens for the crime of claiming that the sun
was a giant burning rock rather than a god; but Plato tells us that Anaxagoras'
treatise was nonetheless readily available in the public marketplace for
one drakhma per copy. Athenian playwrights like Aristophanes mercilessly
lampooned the political leaders of the day, apparently with impunity. Philosophers
freely taught courses, and published tracts, on the evils of democracy.
The orator Demosthenes noted, in a remark later applied mutatis mutandis
to the United States and the Soviet Union, that the crucial difference
between Athens and Sparta was that one was free to praise the Spartan constitution
in Athens, but not vice versa.
The execution of Sokrates, for undermining
traditional values through his persistent questioning, was an unspeakable
crime, but we must remember that someone like Sokrates would have been
silenced much earlier in any other Greek state; and even in Athens it took
the intense paranoia caused by a recent and bitter civil war to bring the
lifelong gadfly at last to trial (where he lost by a slim margin only —
280 to 221 votes).
The Athenian cultural scene was one
of intense intellectual ferment, one that laid the foundations for Western
art, literature, and science for the next two and a half millennia; and
Athenian curiosity, and enthusiasm for intellectual discussion and debate,
were a byword. Even four centuries later, the apostle Luke could still
say, with a slight sniff of disapproval, that the Athenians "spent their
time in nothing else, but either to tell, or to hear some new thing."
Nor was Athenian freedom confined
to the marketplace of ideas. A commercial empire, Athens encouraged trade
(unlike its rival, Sparta, where commerce and even money were banned).
Its economic policies would hardly count as laissez-faire by libertarian
standards, but they were liberal enough to attract merchants from all over
the Mediterranean world. By Greek standards, Athens was a sparkling metropolis;
the historian Thucydides remarked caustically that future generations,
seeing the glorious ruins of majestic Athenian buildings, would overrate
Athens' importance (and underrate Sparta's, since the Spartans put their
money into instruments of conquest rather than into luxurious living).
Athenian Magistrates, upon entering office, had to take a vow that no Athenian
citizen's land would be confiscated or redistributed.
The Athenian semi-free market unleashed
an unprecedented flood of productive energy that transformed Greek civilization.
The Korinthians, allies to Sparta and enemies of Athens, grumbled:
"An Athenian is always an innovator,
quick to form a resolution and quick at carrying it out. ... if their enterprise
is successful, they regard that success as nothing compared to what they
will do next. Suppose they fail in some undertaking; they make good the
loss immediately by setting their hopes in some other direction. Of them
alone it may be said that they possess a thing almost as soon as they have
begun to desire it, so quickly with them does action follow upon decision.
... seldom enjoying their possessions because they are always adding to
them. Their view of a holiday is to do what needs doing; they prefer hardship
and activity to peace and quiet. In a word, they are by nature incapable
of either living a quiet life themselves or of allowing anyone else to
(Thucydides, I. 70.)
Above all, oppressive oligarchies like
Korinth and Sparta feared Athens' tendency to export democratic ideals,
awakening democratic and revolutionary aspirations in the common people
throughout Greece. When Perikles called Athens "a school for all Greece,"
it may sound like idle patriotic piety to us, but to Athens' oligarchic
neighbors it meant something definite and worrisome. The Athenian empire,
which the oligarchs constantly denounced as tyrannical, seems to have been
in many ways a liberatory force, and one welcomed by the democratic elements
in the areas where it held sway (cf. Forrest (1975)) — which is not
to say that Athens never abused its imperial power!
We cannot forget, of course, that
the benefits of the Athenian constitution were restricted to free adult
males. Women and slaves were largely excluded. But this flaw is one that
Athens shared with its neighbors. That women and slaves were oppressed
in Athens is nothing remarkable; what is remarkable is the amount of freedom
available to Athenian males who were not slaves.
How did Athens achieve such a free
and prosperous society? What system of government made this possible? We
call Athens a democracy, and think we know what we mean. After all, we
all live under the same system, don't we?
But to the Athenians, democracy (demo-kratia,
"rule by the people") meant something quite specific, and importantly different
from the political system of any nation today. Athenians would have guffawed
at the notion of calling the United States, for example, a democracy; by
their standards it would have been a moderate oligarchy. What, then, was
Athens' democratic constitution, and how can we learn from it?
(to top of page)
Origins of the Athenian Constitution
To begin with, Athens did not have
a constitution inconstitutionf a written document. Rather, to speak of
the Athenian constitution is to speak of the way the Athenian polity was
constituted, i.e., what the structure of the political system was.
(This was the original meaning of "constitutionconstitution