This article was published in the Autumn 1996 issue of Formulations
formerly a publication of the Free Nation Foundation,
now published by the Libertarian Nation Foundation

The Athenian Constitution:
Government by Jury and Referendum

by Roderick T. Long

 
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Outline
Athens: A Neglected Model
Origins of the Athenian Constitution
The Legislative Branch
--The Council
--The Assembly
The Judicial Branch
--Arbitration
--The Jury Courts
--The Areopagos
--The Legislative Courts
The Executive Branch
--Magistrates
--Law Enforcement
Ostracism
Athenian Democracy and Its Critics
--Ancient Critics
--Modern Critics
What Can We Learn From Athens?
Notes
Ancient Sources
Modern Sources
 
 

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"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 do so."

(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?

 
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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

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