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 in the sense of 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 "constitution" in any case; only through
etymological drift did a constitution come to be thought of as a written
blueprint for a political structure, rather than as an instance of that
The Athenian constitution originated
in class warfare. The three basic socioeconomic classes of Athenian society
were the "Horsemen," the "Yokemen," and the "Menials." The Horsemen were
the richest class; they got their name, originally, from the fact that
they could afford to own horses. At one time the Horsemen had been the
aristocratic class, and Greek names with hippos, "horse," in them
(e.g., Hippias, Hipparchus, Pheidippides) continued to have an aristocratic
flavor to them, just as last names beginning with "Von" or "De" do today;
but as trade brought socioeconomic mobility, a fair number of nouveaux
riches found their way into the Horsemen class. (In early times the
top stratum of the Horsemen was distinguished as a separate class, the
"500-measure-men," based on the amount of grain their estates could produce;
but this distinction became lost as its political significance faded, and
I shall ignore it.) Composing the middle class were the Yokemen, deriving
their name from the fact that they could afford a yoke of oxen. Unlike
the independently wealthy Horsemen, the Yokemen had to work for a living,
usually as merchants or farmers; the Greeks used oxen rather than horses
for plowing, so horses were a luxury in peacetime, while an ox paid for
itself in farm work and so was a more easily affordable possession. In
the poorest class were the Menials, those who worked for hire rather than
being self-employed like the Yokemen.
This socioecomonic division translated,
at least roughly, into a military division. The Horsemen had horses, so
they naturally supplied the ranks of the cavalry. The Yokemen, of moderate
means, could afford heavy armor and weapons, and so made up the infantry.
(In ancient times, soldiers were generally expected to provide their own
equipment.) The Menials could not afford any military equipment, and so
generally served as rowers in the navy.
The three classes contributed to
the rise of the democracy in two ways. First, members of the ruling class
(the Horsemen) often found it useful to grant political rights to the lower
orders — first to the Yokemen, then eventually to the Menials — in order
to win popular support in their intestine struggles for power with other
members of the ruling class. Kleisthenes, the traditional founder of
the Athenian democracy in 508, was simply the last in a long line of glad-handing
aristocrats doling out political largess to the masses in exchange for
their backing him against his aristocratic rivals; he shot himself and
his entire class in the foot by finally giving the lower orders a few powers
too many, thus making them rather than the Horsemen the effective masters
of the state and so changing the rules of the game forever. (For a spirited
analysis, see Forrest (1975).) Second, because Athens was predominantly
a naval power, it depended more highly on its rowers than on its cavalry
and infantry, and this gave the Menials crucial leverage against the Horsemen
Thus, Athenian democracy was born.
But how did it work?
(to top of page)
The Legislative Branch
In the Athenian state, as in any
other, we can distinguish legislative, judicial, and executive functions.
The Athenian legislative branch consisted of two bodies, a Council of 500
and an Assembly of 6000. At first glance, this system resembles the American
bicameral legislature, with a small, select upper house and a larger, more
popular lower house. But this appearance is deceptive.
To begin with, neither the Council
nor the Assembly consisted of elected representatives. The members of the
Council were selected not by election but by sortition — i.e., by
lot. In other words, the 500 Councillors were selected randomly from
the (male) citizen population. (And no Councillor could serve more than
The practice of selecting government
officials randomly (and the Athenians developed some fairly sophisticated
mechanical gadgets to ensure that the selection really was random, and
to make cheating extremely difficult) is one of the most distinctive features
of the Athenian constitution. We think of electoral politics as the hallmark
of democracy; but elections were almost unknown at Athens, because they
were considered paradigmatically anti-democratic. Proposals to replace
sortition with election were always condemned as moves in the direction
Why? Well, as the Athenians saw it,
under an electoral system no one can obtain political office unless he
is already famous: this gives prominent politicians an unfair advantage
over the average person. Elections, they thought, favor those wealthy enough
to bribe the voters, powerful enough to intimidate the voters, flashy enough
to impress the voters, or clever enough to deceive the voters. The most
influential political leaders were usually Horsemen anyway, thanks to their
social prominence and the political following they could obtain by dispensing
largesse among the masses. (One politician, Kimon, won the loyalty of the
poor by leaving his fields and orchards unfenced, inviting anyone who was
hungry to take whatever he needed.) If seats on the Council had been filled
by popular vote, the Horsemen would have disproportionately dominated it
— just as, today, Congress is dominated by those who can afford expensive
campaigns, either through their own resources or through wealthy cronies.
Or, to take a similar example, in the United States women have had the
vote for over half a century, and yet, despite being a majority of the
population, they represent only a tiny minority of elected officials. Obviously,
the persistence of male dominance in the economic and social sphere has
translated into women mostly voting for male candidates. The Athenians
guessed, probably rightly, that the analogous prestige of the upper classes
would lead to commoners mostly voting for aristocrats.
That is why the Athenians saw elections
as an oligarchical rather than a democratic phenomenon. Above all, the
Athenians feared the prospect of government officials forming a privileged
class with separate interests of their own. Through reliance on sortition,
random selection by lot, the Council could be guaranteed to represent a
fair cross-section of the Athenian people — a kind of proportional representation,
as it were. Random selection ensured that those selected would be representatives
of the people as a whole, whereas selection by vote made those selected
into mere representatives of the majority.
The Council's duties were modest.
It exercised some judicial and executive functions, but its main job was
to prepare business for the Assembly (which met less often). The Council
was convened by its President — a post that rotated among the membership.
And I do mean rotated: "every fourth adult male Athenian citizen could
say, 'I have been for twenty-four hours President of Athens' — but no Athenian
citizen could ever boast of having been so for more than twenty-four
hours." (Hansen (1991), p. 314.)
(to outline) (to
top of page)
Athenians did not trust their representatives;
they gave them as little power as possible. While the Council was in charge
of day-to-day business, all really important issues were decided not by
representatives but by the people themselves (or as many as chose to show
up) in the Assembly, of which every adult male citizen was a member. The
Council could prepare legislation to be voted on in the Assembly, but the
Assembly was not bound by the Council's agenda.
The Athenians would have agreed wholeheartedly
with Karl Hess' critique of representative democracy:
"In politics a person is not a
citizen if the person's only function is to vote. Voters choose people
who, in turn, act like citizens. They argue. They establish the forms within
which people live their lives. They make politics. The people who merely
vote for them merely make politicians. People who argue for their positions
in a town meeting are acting like citizens. People who simply drop scraps
of paper in a box or pull a lever are not acting like citizens; they are
acting like consumers, picking between prepackaged political items. They
had nothing to do with the items. All they can do is pick what is. They
cannot actively participate in making what should be."
(Hess (1995), p. 10.)
We should not infer that everyone in
the Assembly was equally active, however. As in any group, there were some
people who spoke all the time, some who spoke once in a while, and some
who never spoke but simply voted yea or nay. Those who spoke all the time
were called Rhetors, "speakers," and references to Athenian "politicians"
or "political leaders" almost always refer to this group of self-appointed
leaders who generally held no official position in the government. These
Rhetors were prominent citizens who had gained a popular following; they
would rise in the Assembly to propose a new statute or course of action,
or to speak for or against someone else's proposal. The job was not risk-free;
no one could be made to answer for how they had voted in the Assembly,
but politicians could be prosecuted for making an unconstitutional proposal,
or for deceiving the people with false promises. (Imagine what our own
political system would look like if politicians could be prosecuted for
The meeting area for the Assembly
seated 6000, whereas the number of those eligible to attend has been estimated
at anywhere from 20,000 to 60,000. Obviously, not everyone could realistically
hope to participate. (If the Athenians were reinstituting their system
today, they might solve this problem through telecommunications technology
and electronic voting — though they would have a healthy paranoia about
the dangers of electronic vote-tampering.) One had to arrive early to be
sure of a seat. But we should not picture the entire population of Athens
battering on the gates of the Assembly, trying to get in and exercise their
political rights. Athens was a large nation, comprising not only the city
of Athens proper but the entire plain of Attika, and not all the citizens
would have felt like trudging all the way in from the countryside before
dawn to vote on trade agreements with some dinky island in the Aegean,
or whatnot. (If the issue concerned going to war with Sparta or something
of that sort, no doubt there was more interest.) In the early days of the
Assembly, often not enough people showed up, and guards had to be sent
to round up citizens in the marketplace in order to ensure a quorum for
the Assembly. After pay was instituted for participating in the Assembly,
this problem vanished! (Most state offices in Athens came with a salary,
so that less affluent citizens could afford to participate without financial
sacrifice; this was yet another stratagem to prevent the rich from dominating
the political process.) It's unlikely, then, that very many citizens who
strongly wanted to participate in the Assembly were barred from doing so.
The ideological complexion of the
Assembly might vary somewhat from session to session, depending on what
else was going on. For example, Athens was a naval power, and preferred
to fight its battles at sea rather than on land; during wartime, then,
the fleet was more likely than the army to be away, and so Menials would
then be under-represented in the Assembly in comparison with Horsemen and
Yokemen. The absence of the rowers could thus give the Assembly a temporary
oligarchic bias. Apart from the closing years of the Peloponnesian War,
however, this does not seem to have been a major problem.
In the fifth century, the Assembly
had complete power to pass or repeal legislation. In the fourth century,
however, it was decided (by the Assembly itself) to limit this power in
order to ensure greater constitutional stability (something that had been
sorely lacking during the crisis-fraught closing years of the fifth century).
A distinction was drawn between two kinds of legislative acts: decrees,
and laws proper. A law, in the strict sense, had to be general in scope
and open-ended in duration; anything else was a decree. So, for example,
"everyone must wear polka dots from now on" would be a law, whereas "everyone
must wear polka dots for the next five weeks" and "Demosthenes must wear
polka dots from now on" would be decrees. In any conflict between a law
and a decree, the law was taken to have precedence, regardless of which
was passed first (just as, in the United States, constitutional law always
overrides statute law — at least in theory!). The Assembly retained the
power to pass and repeal decrees, but in order to make a change in the
laws the Assembly now had to go through the Legislative Courts (about which
(to top of page)
The Judicial Branch
In Athens, most disputes were settled
through arbitration rather than in the Jury Courts. There were two kinds
of arbitration: public and private. In private arbitration, the two parties
to the dispute would select a mutually agreeable third person or persons
to decide the case; the results of private arbitration were recognized
in the law as binding and final, and no appeal was permitted (unless malfeasance
could be shown on the part of the arbitrator). Alternatively, the contending
parties could bring their dispute to a state-appointed public Arbitrator.
(The board of public Arbitrators consisted of all male citizens in their
sixtieth year.) Because the disputants had no choice about which Arbitrator
was assigned to them, and might end up with a dud, it was thought only
fair in the case of public arbitration (unlike private arbitration) to
allow the Arbitrator's decision to be appealed to the Jury Courts. The
choice between private arbitrators, public Arbitrators, and Jury Courts
introduced a salutary competitive element into the Athenian judicial system.
(to outline) (to top of page)
The Jury Courts
The Jury Courts were also staffed
by sortition, picked daily from a pool of 6000 volunteers (a favorite number
with the Athenians, apparently). Juries were large, ranging from several
hundred to several thousand depending on the seriousness of the charge
to be considered; typical numbers were 401, 501, and 1001. The numbers
were large in order to ensure a representative sample of the Athenian population
(arguably an improvement over the current U. S. system), and uneven in
order to avoid ties (though sometimes they used even-numbered juries, in
which case a tie was interpreted as acquittal). Jurors were paid, once
again to ensure an adequate representation of the poor on juries. There
was no judge to restrict the jury's power. No Athenian juror was ever subjected
to compulsory empanelment, voir-dire, or sequestration, nor was any Magistrate
empowered to decide what evidence the jury could or could not be allowed
to see. Jurors, like voters in the Assembly (and unlike Rhetors and Magistrates)
were not accountable for their decisions.
Potential jurors swore the following
oath: "I will cast my vote in accordance with the laws and decrees passed
by the Assembly and Council. On any point where the law is silent I will
give judgment in accordance with my sense of what is most just, without
favor or enmity. I will vote only on the matters raised in the charge,
and I will listen impartially to accusers and defenders alike." However,
jurors could not be penalized for their vote — unless it could be shown
that they had accepted bribes; but the practice of selecting juries randomly
on the morning of the trial made bribery difficult, and the sheer size
of juries limited the effectiveness of bribery in any case.
Many ancient observers considered
that the Jury Courts, rather than the Council or Assembly, were the true
governing powers in Athens. For one thing, the Jury Courts had the power
of judicial review. The opportunity to exercise this power came when a
politicians was prosecuted for having proposed an unconstitutional law
or decree in the Assembly. A politician could be prosecuted whether his
proposal had passed or not; but if it had indeed been enacted into law,
and the proposer was found guilty, the law was automatically repealed.
The juries made frequent use of this power: "The Supreme Court of the United
States has had the power to test and overthrow Congressional Acts since
1803. In the period 1803-1986 that power was used 135 times: our sources
show that at Athens that figure was nearly reached in two decades, let
alone two centuries." (Hansen (1991), p. 209.) Thus, a few hundred ordinary
citizens could strike down, as unconstitutional, legislation enacted by
an Assembly of 6000 people. The notion that Athenian democracy meant the
unrestrained tyranny of the majority is clearly a myth. (The Athenian system
also allowed for a second kind of judicial review, to be discussed below.)
There were no lawyers in an Athenian
courtroom. The plaintiff and defendant each had to conduct their own case,
though they could hire someone to help them write their courtroom speeches.
(Only in rare cases was a third party allowed to speak on a disputant's
behalf.) Prosecutors could be prosecuted for bringing a frivolous charge
(defined as one that could not win over even a substantial minority of
the jurors). There was also no distinction between crimes and torts; all
trials were treated as civil suits, with the victim (or, in murder cases,
the victim's family) rather than a public prosecutor directing the prosecution's
case. The closest equivalent to a crime/tort distinction was that between
private prosecutions, where the aggrieved party was an individual citizen,
and public prosecutions, where the aggrieved party was the city as a whole.
Even in the latter case, though, the charge had to be initiated and argued
by a private citizen on behalf of the city, so it was really more like
what we would call a class-action suit.
Trials were swift, lasting no longer
than a day. (Trials today can be criticized for excessive length, but to
my mind the Athenian alternative goes too far in the opposite direction
— as in fact Sokrates complained at his trial.) If the jury found the defendant
guilty, the next phase of the trial concerned sentencing. Some crimes had
penalties predetermined by law, but in most cases the choice was left up
to the jury, thus avoiding the modern problem of having jury verdicts unduly
influenced by the jury's expectation of the likely severity of the penalty.
The procedure worked as follows:
The prosecutor would propose a penalty, and the defendant would then respond
with a counter-proposal, obviously of a lighter penalty. The jury would
then choose between the two penalties. (Having the jury come up with a
penalty of its own would have required discussion and debate impracticable
under the circumstances, given the size of the jury.) Prosecutors were
prevented from proposing excessively harsh penalties by the fear that this
would make the jury more likely to choose the defendant's milder proposal;
defendants were likewise prevented from proposing excessively mild penalties
by the fear that this would make the jury more likely to choose the prosecutor's
harsher proposal. This was an ingenious way of ensuring moderation in punishments.
(Giving juries the power to decide both verdict and sentence also avoided
the modern problem of sentences that defy the jury's intentions, as in
the recent case of the jurors who found the survivors of the Waco massacre
not guilty of all but a handful of minor counts, only to learn with dismay
that those few counts would send the Branch Davidians to prison for many
The most common penalty was a fine.
(In addition, the loser paid the winner's court costs.) The severest penalties
were enslavement and capital punishment (the latter being inflicted in
a number of ways ranging from poison to crucifixion). Intermediate penalties
were exile and "dishonor." "Dishonor" is sometimes described by modern
scholars as loss of citizenship, but it was actually much more severe;
it meant exclusion from the political, economic, and religious life of
Athenian society: dishonored citizens, unlike exiles, were allowed to continue
residing in the city, but could not vote, hold office, serve on juries,
set foot in the marketplace, or bring a case before a courtroom. (This
last prohibition meant they were effectively outside the protection of
the laws.) Imprisonment was unknown as a penalty. Athenian prisons were
only temporary holding cells; thus Athens was spared the staggering expense
of housing and feeding criminals for years on end. Any criminal too dangerous
to be allowed on the streets was either executed or exiled.
Libertarians today are conflicted
on the issue of jury rights. On the one hand, libertarians generally favor
the jury's right to nullify laws, as a check on legislative abuse of power.
On the other hand, many libertarians of late have jumped on the conservative
bandwagon of imposing limits on the amount of money juries can award in
a civil suit. I myself referred to excessive jury awards as a "pressing
problem" at the first FNF Forum:
"In recent years, absurdly high
awards for damages have demonstrated the risks of a jury system, and the
attractions of adjudication by experts. Yet juries remain an essential
bulwark against state tyranny, a role government-approved experts are ill-suited
to play. Competition among judicial systems would allow whichever mix of
trial-by-jury and trial-by-experts best satisfied the needs of the public."
("The Rationale of a Virtual-Canton
Constitution," Proceedings of a Forum on the Subject of Constitutions,
I still endorse the point about the
value of competition, but over the past few years I have become convinced
that the excessive-damages issue has been overstated. The notorious examples
of abuse appear to be exceptional, and even many of those do not stand
up to close scrutiny. (For example, everyone knows about the woman who
sued McDonalds because she spilled some coffee and burned herself; but
how many know that McDonalds had received and ignored thousands of complaints
about unusually hot coffee (185°, enough to cause serious damage at
even a second's exposure) prior to her case, or that her coffee was so
hot that it burned through three layers of skin, so that the woman required
skin grafts and remains permanently disfigured in the genital area?) In
many cases, the "excessive awards" are swallowed up by the government,
and the victim never sees a penny of it. Placing a cap on awards because
of a handful of abuses seems like exactly the sort of favoritism toward
the rich that the Athenians were above all concerned to prevent. I admit
to some nervousness about this conclusion, in the light of such recent
anti-libertarian trends as cigarette smokers suing tobacco companies and
gunshot victims suing arms manufacturers; but I would prefer to address
this problem through legislation defining product liability so as to exclude
liability for defects that are common knowledge (e.g., the addictive and
carcinogenic properties of tobacco) or for "defects" inherent in the proper
as-advertised good working order of the product (e.g., the fact that you
can injure or kill people by shooting a gun at them), rather than through
putting caps on jury awards.
The rule of evidence is a particularly
delicate issue for libertarians. On the one hand, the idea of a dangerous
criminal getting off on a technicality is distasteful. On the other hand,
giving law enforcement officials carte blanche to violate the law goes
against everything we stand for. Yet the judge's power to rule on the admissibility
of evidence is being increasingly abused, and may be a luxury we can no
longer afford. Two recent examples of this:
1) During the O. J. Simpson trial,
the jury was allowed to learn that the police detective who found the main
evidence against Simpson had lied about using racial epithets — but they
were not allowed to learn that he was a virulent racist who had bragged
on tape about planting evidence and beating up minorities. I did not follow
the Simpson case closely enough to have any opinion as to what verdict
the jury should have reached (I may be the only person in America without
such an opinion!), but it seems to me that when the main evidence against
a black defendant depends on the testimony of a man who says all blacks
should be killed, and who admits having planted evidence in the past, that
is clearly relevant to the defense's case, and something the jury
ought to be told — but the judge decided to exclude the tape.
2) Several years ago in Massachusetts
a Christian Science family was prosecuted for having relied on Christian
Science treatment rather than medical care for an ill child who subsequently
died. That sort of case raises complicated legal, moral, scientific, and
religious issues which I won't address now. What concerns me at present
is the fact that there was a Massachusetts statute on the books which specifically
exempted Christian Scientists from the requirement that parents provide
their children with medical care, and the jury was not allowed to know
about that statute; the judge refused to permit the defense lawyers to
inform the jury about it. (Testimony defending the reliability of Christian
Science healing was also excluded.) The jurors were "instructed" that they
had to find the defendants guilty, and they did so, tearfully and reluctantly;
they were furious afterward, when they learned the truth. When the law
itself can be excluded as inadmissible evidence, clearly the judge's
power to exclude evidence has gone too far.
To my mind, the most attractive solution
to the problem of admissibility is one suggested by Eric Klien and Mike
Oliver in the Constitution of Oceania: "The jury may not at any time be
removed from the courtroom during a trial to prevent them from hearing
evidence. ... The judge has no power to strike any evidence from the record.
It is expected that juries are reasoning Adults who are as competent as
the judge to decide who is lying and who is not. Evidence uncovered by
an illegal search WILL be allowed in Court. Unlike corrupt countries that
allow both the criminal and the arresting officer to go free when an illegal
search is made, Oceania will prosecute both."
This is very much in the spirit of the
Athenian jury system.
The Athenians would have been horrified
at the extent to which our government today has encroached upon the jury's
authority with voir-dire, rules of evidence, and the like. The 19th-century
libertarian theorist Lysander Spooner, a hero of today's jury-rights movement,
in his famous Essay on the Trial by Jury defended the idea of jury
sovereignty in terms quite similar to the thinking of the Athenian democrats:
"To secure this right of the people
to judge of their own liberties against the government, the jurors are
taken ... from the body of the people, by lot, or by some process
that precludes any previous knowledge, choice, or selection of them, on
the part of the government.
This is done to prevent the government's
constituting a jury of its own partisans and friends; in other words, to
prevent the government's packing a jury, with a view to maintain
its own laws, and accomplish its own purposes.
It is supposed that, if twelve men
be taken, by lot, from the mass of the people, without the possibility
of any previous knowledge, choice, or selection of them, on the part of
the government, the jury will be a fair epitome of 'the country' at large,
and not merely of the party or faction that sustain the measures of the
government; that substantially all classes of opinions, prevailing among
the people, will be represented in the jury; and especially that the opponents
of the government ... will be represented there, as well as its friends
.... A trial by such a tribunal is, therefore, in effect, 'a trial by the
But all this 'trial by the country'
would be no trial at all 'by the country,' but only a trial by the government,
if the government could either declare who may, and who may not, be jurors,
or could dictate to the jury anything whatever, either of law or evidence,
that is of the essence of the trial.
If the government may decide who
may, and who may not, be jurors, it will of course select only its partisans,
and those friendly to its measures."
(Spooner, pp. 122-123.)
(And of course Spooner's argument for
selecting jurors by lot applies mutatis mutandis to the selection
The Athenian court system did not
operate according to precedent. No jury was bound by the decisions of previous
juries in previous cases. This is a striking difference between Athenian
law and more familiar systems like Roman law or the English common law.
Whether this was a good or bad thing is hard to say. On the down side,
the refusal to rely on precedents deprived the Athenian legal process of
the valuable attribute of predictability. Reduction of uncertainty is ordinarily
a virtue in any legal system. Moreover, case law, evolving in response
to the needs of day-to-day life, can serve as a useful check against an
arrogant and unrestrained legislature; and case law can also serve as a
storehouse for the accumulated wisdom of many generations of judges. On
the positive side, the jury's freedom to decide cases according to their
common sense rather than adhere to judicial precedent ensured that people
would be judged according to the well-understood and widely-accepted customs
and moral sense of the average citizen, rather than according to the arcane
criteria of a jurisprudential elite. (My impression is that case law is
preferable so long as it retains a strong competitive element, and becomes
a maze of impenetrable jargon only when that element is removed.)
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The Jury Courts formed the core of
Athens' judicial branch; but another court, the Areopagos, was also highly
respected. The Areopagos, so called because it met on the Hill of Ares,
was a survival from an earlier period; before the establishment of democracy,
the Areopagos had been the old aristocratic senate, the most powerful body
in Athens. Democratic reforms transferred most of the Areopagos' powers
to the Council or the Assembly, transforming the Areopagos into a court
with fairly limited jurisdiction (whose extent appears to have fluctuated
over the years).
These reforms also changed the Areopagos'
composition from a body of hereditary nobles to a board consisting of former
Magistrates. The Areopagites held office for life, an extremely unusual
provision by Athenian standards — but since the Areopagites were drawn
from the Magistrates, who in turn were chosen by lot, the Areopagos, like
the Jury Courts, could be expected to represent a fair cross-section of
the Athenian population, while the fact that all Areopagites had served
as Magistrates guaranteed that they would have more political experience
than the average jury. The Areopagos seems to have enjoyed a kind of mystique,
and its decisions were highly respected.
During the Roman period, after Athens
had ceased to be a democracy, the Areopagos recovered many of its old aristocratic
powers, and became once more the supreme power in Athens. That is why,
in the first century AD, the apostle Paul was brought before the Areopagos
("Mars' hill"), rather than the Council or Assembly, to explain his doctrine.
(Acts 17: 15-23.)
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The Legislative Courts
At the beginning of the fourth century,
after a decade of unprecedented constitutional crisis, the Athenians decided
to add a stabilizing factor: the Legislative Courts. Each year, the Assembly
conducted a review of all the existing laws (in the narrow sense, excluding
decrees), voting each one up or down. If a law was approved, it was retained
without change. But if it was disapproved, the Assembly could not simply
abolish it as they could with decrees; the Athenians did not want to run
the risk that the Assembly might be pressured or intimidated into abolishing
Athens' democratic institutions, as they had in 411. If the Assembly wanted
a law revised or repealed, they had to convene a Legislative Court.
Cases before the Legislative Courts
were conducted like regular jury trials, except that it was the law, rather
than an individual, that stood accused. Those favoring repeal acted as
prosecutors, those opposing repeal argued the defense. Instead of choosing
between penalty and counter-penalty, the jurors (called "Legislators,"
but drawn by lot from the same pool of volunteers as the ordinary Jury
Courts) chose between the existing law and the proposed revision. The Legislative
Courts thus acted as a second forum for judicial review.
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The Executive Branch
The remainder of government business
was conducted by a host of commissioners, functionaries, and and minor
officials, known collectively as the Magistrates. These too were generally
chosen by lot, and restricted to a one-year term; an important exception
was the Board of Generals, who were elected by popular vote (this was one
office the Athenians could not afford to fill with inexperienced people
chosen at random) and could be re-elected indefinitely (term limits for
a successful General in the middle of a war didn't make sense).
Contemporary critics regarded the
practice of appointing Magistrates by lot as sheer lunacy. Most of these
critics were oligarchs who shuddered at the thought of offices being filled
from the ranks of the rabble, but at least one critic, the anonymous author
of the fourth-century treatise Dissoi Logoi, attacked sortition
on democratic grounds: Since oligarchs are a minority of the population,
elections will keep them out of office, whereas sortition could easily
place such people in positions of power, thus imperilling the city's democratic
institutions. Most Athenians, however, were inclined to view elections
as more likely than sortition to bring oligarchs to power, given
the influence that wealth can have on elections.
In any case, there were safeguards
against the danger that the lot would bring too many knaves and fools to
"It was not 'the rulers of the
city' who were chosen by lot, but officials charged with limited routine
duties, for which little more than 'a sense of decency and fair play' was
required. Furthermore, it must be remembered that a magistrate had to pass
a preliminary examination, which was, it is true, usually formal, but gave
his enemies an opportunity for raking up his past; was liable to be deposed
by a vote of the assembly taken ten times a year; and after his year was
subject to a scrutiny in which his accounts were audited and any citizen
could charge him with inefficiency or abuse of authority."
(Jones (1957), p. 48.)
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top of page)
Law enforcement was not one of the
services offered by the Athenian state. Athens had no actual police force;
the nearest equivalent was a few hundred guards — slaves owned by the state
— but their main task was keeping order at public meetings. The notion
of an elite enforcement corps, with broader authority than the average
citizen, would have been anathema to the Athenians. "No classical state
ever established a sufficient governmental machinery by which to secure
the appearance of a defendant in court or the execution of a judgment in
private suits. Reliance on self-help was therefore compulsory ...." (Finley
(1994), p. 107.) Victims had to rely on friends and relatives to enforce
judicial decisions; if these lacked sufficient force, it might be necessary
to appeal to a powerful patron, though the role of patronage in law enforcement
never reached the level of formalization that we find in, for example,
medięval Iceland. (Still, in light of this recourse to private law
enforcement, it's debatable whether Athens really counts as a state.)
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The Athenians did not take their
democracy for granted. They were all too conscious of the exceptional and
fragile nature of their political system, and they built in as many safeguards
as they could devise against the growth of an oligarchic elite. This fear
was not idle; they saw that those few political leaders who were not appointed
by lot — the Generals and the Rhetors — came overwhelmingly from the wealthier
classes. Clearly, social prominence and economic patronage, combined with
the eloquence and persuasiveness available to those who could afford to
pay teachers of rhetoric, could provide a path to political power for the
rich. The Athenians knew the early history of their city, when tyrants
won power by posing as champions of the people, and they were determined
not to let it happen again.
One of the safeguards they adopted
was formal ostracism. This allowed the Athenian people as a whole to vote
for the expulsion from the city of any citizen they chose, for a period
of ten years. Unlike exile, ostracism was not a penalty for a crime; also
unlike exile, it was applied only to the prominent and powerful — those
that the people feared might be positioning themselves for a coup. The
procedure was that someone would propose to hold an ostracism, the Assembly
would vote on it, and if the proposal won then an ostracism would be scheduled.
On the day of the ostracism, every adult male citizen could turn in a ticket
(literally a potsherd, ostrakon, whence the name) inscribed with
the name of the person they thought Athens could best do without, and the
person whose name got the most votes had to leave the city for ten years.
A famous anecdote about the Athenian
statesman Aristeides, popularly known as "Aristeides the Just," is that
one day when Athens was holding an ostracism, an illiterate farmer came
up to him, not knowing who he was, and asked him for help in inscribing
his ostracism ticket. Aristeides agreed to help, and asked whose name the
farmer wanted to inscribe. "Aristeides!" the farmer said. When asked what
he had against Aristeides, the farmer replied that he was sick of hearing
Aristeides called "Aristeides the Just" all the time. So Aristeides duly
inscribed his own name on the ticket, and in fact was ostracized. (It would
be particularly poignant if his ostracism had carried by one vote, but
it seems not. The whole story is usually assumed to be apocryphal; however,
Hansen points out: "oddly enough, there does survive one ostrakon on
which the name Aristeides was started in a shaky hand and crossed out and
begun again in a firm, legible one." (Hansen (1991), p. 312.))
This anecdote is often appealed to
(e.g., by Isabel Paterson) as evidence that people were ostracized for
frivolous reasons; but I think this fails to see the farmer's point. The
farmer was not simply being cantankerous, envious, or malicious; when a
prominent politician gets a name like "the Just" or "the Great" popularly
attached to his name, thus being treated with the kind of reverence and
deference more appropriate to a king than to a fellow-citizen, from the
Athenian point of view this is a danger sign that the individual is getting
too powerful and poses a danger to his nation's freedom. The formal ostracism
was a kind of pre-emptive strike.
Ostracism was fairly common in the
fifth century, but seems to have been abandoned in the fourth, when prosecution
for unconstitutional proposals became the more common way of curbing the
power of politicians. This is arguably preferable, in fact, since it requires
charging the accused person with a definite infraction and proving him
guilty, and so seems less arbitrary and more in accordance with the traditional
Athenian respect for the rule of law.
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Athenian Democracy and Its Critics
Not all Athenians had a high opinion
of their constitution. Thucydides, for example, blamed the loss of the
Athenian Empire on incompetent leadership, entering the Peloponnesian War
rashly and then waging it in an erratic and irresponsible fashion. This
in turn he thought was the inevitable result of allowing the ignorant masses
to outvote the educated and respectable citizens. For a long time modern
historians accepted this judgment, blaming Athenian democracy both for
starting the war and for losing it. But recent historical research has
shown that these charges are largely unfounded; I won't take the space
to go into details here, but check the bibliography entries for Forrest
and Kagan. Recall, too, that if it was under democracy that the Athenians
lost their empire, it was also under democracy that they won it — not once
Another common charge in antiquity
— found in Plato's Republic, for example — was that democracy leads
to tyranny. All Greeks knew of examples where ambitious men had won dictatorial
powers by posing as champions of the poor. The opponents of democracy reasoned
that this should be all the more easy in democratic states, because the
poor — the natural supporters of such a champion — have more clout and
so can bring their champion to power more easily.
But a study of history does not seem
it bear this theory out. It is certainly true that in non-democratic
societies, unscrupulous politicians have often exploited democratic aspirations
on the part of the poor in order to gain power for themselves; think of
Julius Cęsar, or in more recent times Juan Perón. But this
is far less common in a genuine democracy, precisely because the poor have
access to established constitutional means for redressing their grievances
and so have less need of such a champion. And the two brief coups that
occurred in the history of the Athenian democracy were both carried off
by avowed oligarchs who made no pretense of democratic sympathies.
One charge brought by some of the
more extreme critics of Athenian democracy, like Plato in the Republic,
or the anonymous author called the "Old Oligarch," was that under democracy
there was too much freedom. People made their own choices and lived as
they pleased, without being directed and supervised by the state; and they
showed insufficient deference to their social superiors. Of course, the
fact that Athenian democracy attracted this sort of comment is precisely
why libertarians should take it seriously as a model!
Critics of democracy regarded politics
as the rightful domain of an educated elite, a domain in which the lower
orders had no business meddling. Indeed, "minding one's own business" became
an oligarchic code phrase for depriving the lower class of political rights,
prompting Perikles to snap in response:
"Here [in Athens] each individual
is interested not only in his own affairs but in the affairs of the state
as well: even those who are mostly occupied with their own business are
extremely well-informed on general politics — this is a peculiarity of
ours: we do not say that a man who takes no interest in politics is a man
who minds his own business; we say that he has no business here at all."
(Thucydides, II. 40.)
This retort has sometimes been misread
as an endorsement of collectivism and compulsory political participation;
in fact it is simply a rejection of the notion that slavish deference to
one's class superiors is an appropriate attitude for a free citizen.
Plato's main criticism of the Athenian
system was that, in politics as in every other field of endeavor, decisions
should be made by experts rather than by voting. We do not decide how to
treat a disease, or build a house, or solve a mathematical problem, by
putting the matter to a vote or picking people at random; instead we appeal
to those who have knowledge, and accept their decision, ignoring everybody
else's. Why, he asked, should we not behave likewise in politics, giving
supreme power to a handful of experts while denying any voice in the matter
to the ignorant masses?
The obvious response, of course,
is to ask, first, how these experts are to be recognized and identified,
and second, even if their expertise is genuine, how they are to be trusted
to rule in the common interest rather than exclusively in their own. Athenians
had a skeptical attitude toward professional politicians:
"They went on the basis that, given
the chance, every one of them would have his hand in the till and make
a profit out of political activity, and they took every possible means
to limit the chances. ... Athenian leaders were called to account more
than any other such group in history: to be a rhetor or a general
was to choose a perilous career that could easily lead to condemnation
and execution — if you failed to flee into exile in time."
(Hansen (1991), p. 310.)
Plato has Sokrates remark in his defense
speech that if he had been a politician rather than a philosopher he would
have been executed a lot earlier, since no Athenian politician who opposes
the will of the people can expect to escape with his life. (Plato means
this as a complaint against Athens; from our perspective it may look more
Plato would have agreed that politicians
are generally untrustworthy, but he would have blamed this on the fact
that they had been improperly brought up. This was another quarrel that
Plato and other critics had with democracy: the absence of public education.
The teaching of children was left up to their parents to arrange; Plato
was convinced that if this power were taken away from the arbitrary and
ill-informed decisions of parents and transferred instead to the state,
so that future leaders could be subjected from birth to a rigorous program
of moral training and indoctrination, the problem of untrustworthy politicians
would be solved.
Plato seems to have seen few limits
to the capacity of human nature to be shaped and molded. Not all of his
students agreed. Aristotle, for example, though also an advocate of public
education, favored a narrower scope for it than Plato had, and made more
modest claims on its behalf. To justify his skepticism Aristotle pointed
to the example of Sparta, on whose education system Plato's was largely
modeled; the Spartans, he noted, behaved with inflexible virtue and iron
discipline when they were being observed by their peers, but once they
traveled outside of Sparta they were notorious for being the most corrupt
crooks in Greece.
Most critics of democracy were less
extreme than Plato. They did not generally advocate giving absolute power
to an elite and disenfranchising the common people utterly. Instead, they
advocated a system which has come to be known as a constitutional republic.
Even Plato eventually came around, in his later years, to this model.
The function of a constitutional
republic is to balance the interests of the wealthy minority against the
interests of the less affluent majority, so that neither side can run roughshod
over the other's rights. Xenophon, for example, argued that since it is
agreed that it is wrong for the rich to oppress the poor, it should also
be agreed that it is wrong for the poor to oppress the rich. Aristotle
made the same point from the opposite angle: since it is agreed that it
is wrong for the poor to oppress the rich, it should also be agreed that
it is wrong for the rich to oppress the poor. (Perhaps they were addressing
different audiences?) In addition to being more just, such a system was
also likely to be more stable, since the interests of the two classes most
able to overthrow the constitution (the rich, powerful because of their
wealth, and the poor, powerful because of their numbers) would both be
How would such a constitutional republic
be structured? There were different proposals, but many of the moderate
critics of democracy converged on a model called the Mixed Constitution.
(Some Athenians called it the "ancestral constitution," on the basis of
a certain similarity to the precepts of the early Athenian lawgiver Solon.)
Thucydides and Aristotle favored this system, for example, as did such
later Aristoteleans as the historian Polybius, who looked to the Roman
Republic as a successful example; and the Mixed Constitution has continued
to cast its spell well into the modern era, influencing such figures as
Machiavelli, Montesquieu, and Madison.
The idea behind the Mixed Constitution
was to combine elements of democracy with elements of oligarchy, the theory
being that this was the best way to achieve the goal of balancing the interests
of the many against the interests of the few. Different versions of the
Mixed Constitution were proposed, but the following four points are fairly
1. Abolish sortition in favor
of election by vote.
As we've seen, election was regarded
as a move away from genuine democracy because it favored the wealthy and
prominent over the average citizen. The moderates condemned selection by
lot as foolish, since it gave more qualified candidates no advantage over
less qualified ones, and they hoped that an electoral system would bring
a "better class of people" into office.
2. Abolish pay for government
officials and jurors.
Advocates of the Mixed Constitution
saw government salaries as favoring the poor over the rich and the middle
class, since poor people would be disproportionately attracted to them
— especially the very poorest, the marginal, unemployable, disreputable
3. Deprive the Menial class of
all political rights.
This is in the same spirit as point
2. The theory was that political sense and political virtue were the product
of education and experience, and so required leisure. Those who engaged
in manual labor did not have the time to develop the political skills necessary
for an informed vote. In addition, servile laborers — i.e., those who worked
for hire rather than being self-employed — were regarded as being dependent
on their employers and thus too analogous to slaves to qualify as complete
citizens. Finally, it was thought that the poverty of the Menials made
them potential traitors to the regime, since it would be easier to bribe
them; the city would be more stable if political rights were reserved to
those who had a financial stake, a kind of investment, in the preservation
of the constitution.
4. Give both the Horsemen and
the Yokemen the right to vote, but ensure that only Horsemen hold office.
There were two possible ways of doing
this. The most obvious would be to simply exclude Yokemen from office by
legal fiat. A subtler way would be to rely on step 1, using the social
prominence and economic patronage of the Horsemen to guarantee that offices
would nearly always go to them anyway, even if Yokemen remained technically
eligible as well.
The reason for reserving governmental
offices for the Horsemen class was the usual one that political wisdom
requires education, which requires leisure, which requires wealth. Why,
then, allow Yokemen the vote? Why not let the Horsemen monopolize all political
rights? Because the Mixed Constitution is intended to be a combination
of oligarchy and democracy, not a pure triumph for oligarchy. To exclude
the respectable middle class — the Yokemen — from all political rights
would be unjust, as well as threatening the stability of the regime by
giving the armed infantry (drawn predominantly from the Yokemen) an incentive
In addition, Aristotle advanced a
subtler reason for not disenfranchising the Yokemen. He agreed that the
more prosperous citizens were likely to be wiser; but, unlike Plato, he
thought that a large number of individually unimpressive people might,
by pooling their collective experience, turn out to be wiser than a single
wise individual. (A modern confirmation of this is that, e.g., if people
who have no idea how tall Mount Everest is are nevertheless asked to guess,
any individual guess is likely to be wildly wrong, but as the sample increases,
the average of all the guesses converges with astonishing accuracy on the
How well founded were these four
proposals? Not very. If sortition brought such useless people to power,
how was Athens able to dominate Greece? Complaints about the inefficiency
of the lot seem to be rather exaggerated. And many of these complaints
missed the point anyway:
"... how absurd it is, says Sokrates,
to pick the magistrates by lot when you would not pick a helmsman, or whatever,
in that way. [Sokrates' fallacy] resides in the unstated premise that the
magistrates have the same power to steer the ship of state as a helmsman
has to steer his ship. But the Athenians chose their magistrates by lot
precisely to ensure that they should not be steersmen of the state:
one of the purposes of the lot was to diminish the powers of the magistrates.
The lot was based on the idea not that all men were equally expert, but
that all men were expert enough at what they were chosen for, and that
by the use of the lot magistracies would cease to be attractive as weapons
in the struggle for power."
(Hansen (1991), p. 236.)
Nor is there any evidence to suppose
that the poor were over-represented in political offices or on juries.
Jurors in particular were drawn largely from older, retired citizens, who
had the necessary leisure to serve all day as jurors, and many were drawn
to the job for its psychic rewards — put bluntly, an opportunity to wield
power — rather than for the modest wages. As for the proposal to exclude
the poorer classes from some or all political rights, the notion that wisdom
and virtue are correlated with wealth and education is a dubious one that
history does not seem to support; and Aristotle's suggestion that manual
laborers are on a par with mental defectives is such an obvious product
of class bias that it is difficult to take seriously. Moreover, the idea
that the poor are the most likely to turn traitor is particularly ludicrous,
given that Athens' most famous traitors — men like Alcibiades and Hippias
— came from the aristocratic class. Indeed, one could argue that the poor
were the class least likely to be tempted to betray their country,
as they had the most to lose if the democratic constitution were overturned.
These theorists were right to favor
the notion of a constitutional republic, where neither the rich minority
nor the poor majority could gain the upper hand and play the role of tyrant.
Their mistake lay in thinking that the Mixed Constitution, a combination
of democracy and oligarchy, was the best way to implement the republican
ideal. On the contrary, the Athenian democracy was a constitutional
republic already. Thucydides has one spokesman for democracy, a Sicilian
Rhetor with the suspiciously apposite democratic name of Athenagoras, point
out that demokratia — rule by the people — means empowering the
people as a whole, not just the majority:
"There are people who will say
that democracy is neither an intelligent nor a fair system, and that those
who have the money are also the best rulers. But I say, first, that what
is meant by the demos, or people, is the whole State, whereas an
oligarchy is only a section of the State; and I say next that though the
rich are the best people for looking after money, the best counselors are
the intelligent, and that it is the many who are best at listening to the
different arguments and judging between them. And all alike, whether taken
all together or as separate classes, have equal rights in a democracy."
(Thucydides, VI. 39.)
The Athenian playwright Euripides likewise
describes the democratic ideal not as domination by the majority but as
equality before the law:
"Your start was wrong, seeking
a master here.
This city is free, and ruled by
no one man.
The people reign, in annual succession.
They do not yield the power to the
The poor man has an equal share
in it. ...
People of small resources and the
Both have the same recourse to justice.
A man of means, if badly spoken
Will have no better standing than
And if the little man is right,
Against the great. This is the call
'What man has good advice to give
And wishes to make it known?' He
Gains glory; the reluctant hold
For the city, what can be more fair
than that? ...
But when one man is king, he finds
And if he thinks that any of the
Are wise, he fears for his despotic
And kills them. How can a city become
If someone takes away, cuts off
Like ears of corn in a spring field?
To build a fortune, if your work
The despot's welfare, not your family's?"
(Euripides, The Suppliant Women
The advocates of the Mixed Constitution,
on the other hand, saw democracy as rule by the poor majority. Since they
knew that oligarchy was rule by the rich minority, it was not unnatural
for them to conclude that the best way to balance the interests of both
factions was to design the constitution so as to embody a mixture of democratic
and oligarchic elements. Their error lay in seeing a symmetry between democracy
and oligarchy that did not exist.
Why was this an error? Because severing
the official link between wealth and political power did not deprive
the wealthy of all their power, but only of some of it. The riches of the
upper class still provided them with a great deal of influence, even under
democracy. As I have argued elsewhere:
"The city-states of the ancient
world ... had surprisingly weak and decentralized governments, with nothing
we would recognize as a police force. ... Yet these city-states were class
societies, with a powerful and effective ruling class. Where did the power
of the ruling class come from, if not from a powerful state?
The historian M. I. Finley has studied
this question, and come to the conclusion that the ruling classes maintained
their power through the device of patronage .... In effect, the
wealthy classes kept control by buying off the poor. Each wealthy family
had a large following of commoners who served their patrons' interests
(e.g., supporting aristocratic policies in the public assembly)
in exchange for the family's largess."
("Can We Escape the Ruling Class?,"
in Formulations, Vol. II, No. 1 (Autumn 1994); cf. Finley (1994).)
The Athenian democrats were well aware
of the dangers from patronage. They could have attempted to meet this problem
by simply abolishing inequalities of wealth and redistributing the oligarchs'
riches to the masses. Indeed, the upper class was fond of accusing the
democrats of planning to do this. But in fact the Athenian democrats were
far too committed to the ideals of individual rights and the rule of law
to contemplate such a measure. Rather than eliminating economic inequality
itself, they sought to combat its effects. That is why they relied
on sortition rather than election — so that the rich could not use patronage
to buy their way into office. Likewise, all the Athenian experiments (mild
by today's standards) with welfare statism were attempts to fight patronage
by providing the poor with a source of revenue that would not make them
dependent on their class opponents.
Athens' democratic institutions weakened
the effects of patronage, and so largely prevented the rich from oppressing
the poor. But they did not do away with the effects of patronage entirely,
and so the poor were not thereby empowered to oppress the rich. The result
was a balance between the interests of the two classes, just as the advocates
of the Mixed Constitution recommended. Those advocates did not recognize
Athens as an instance of their ideal of a constitutional republic, because
they did not sufficiently appreciate the power of patronage. Their favored
remedy, the Mixed Constitution, tilts the scales of power decisively in
favor of the rich once the power of patronage is taken into account — the
Roman Republic being an obvious case in point.2 Because
they underestimated the political clout that wealth brings, their recommended
system of checks and balances overcompensates for the power of the poor
and undercompensates for the power of the rich.
(to top of page)
Athens has its modern critics also.
One common criticism of the Athenian system of direct democracy is that
such a high level of participation requires a great deal of leisure, and
that the citizens enjoyed this leisure only because they could rely on
the unpaid labor of women and slaves. Thus, it is claimed, the Athenian
political system inherently requires involuntary servitude as its economic
base. By contrast, in a representative system, the level of participation
demanded is lower, and so citizens do not have to spend all their time
discussing politics; they can work for a living, and so do not have to
depend on exploiting the labor of a large class without political rights.
I think this objection is mistaken.
It is certainly true that in Athens, as in other Greek states, women and
slaves were excluded from the benefits of democratic rights. But this was
not essential to the system. The amount of leisure that the Athenian system
required has been grossly exaggerated. Most Athenians worked for a living.
The heaviest labor was performed not only by slaves but also by Menials,
who were generally too poor to own slaves; to the Menials, the notion of
Athenians as a bunch of leisured gentlemen relying on the labor of slaves
would have seemed a bad joke. The Yokemen did ordinarily have slaves, but
they themselves worked too, as farmers or tradesmen, often right alongside
their slaves. The only class of which the "leisure" stereotype is at all
true is the Horsemen, and they were a minority of the Athenian population.
There was no significant conflict between political participation and earning
a living. Serving as a Councillor or Magistrate was a temporary position;
the Assembly met infrequently, and most people attended only occasionally
anyway; and the judiciary was manned primarily by retirees. So the Athenian
system would not have been noticeably hampered if slavery and sexual inequality
had been banished.
One prominent modern critic (modern
in the sense of post-Renaissance) of Athenian democracy was James Madison,
father of the U. S. Constitution. In the Federalist Papers, he wrote:
"... a pure democracy, by which
I mean a society consisting of a small number of citizens, who assemble
and administer the government in person, can admit of no cure for the mischiefs
of faction. A common passion or interest will, in almost every case, be
felt by a majority of the whole ... and there is nothing to check the inducements
to sacrifice the weaker party or an obnoxious individual. Hence it is that
such democracies have ever been spectacles of turbulence and contention;
have ever been found incompatible with personal security or the rights
of property; and have in general been as short in their lives as they have
been violent in their deaths. ... "
But this image of Athenian democracy
is not a realistic one. Property rights and personal security were as secure
in Athens as anywhere else, if not more so; and the constitution was a
relatively stable one by Greek standards. The Athenian democracy is generally
regarded as beginning in 508, with the reforms of Kleisthenes, and ending
in 338, when Athens like the rest of Greece fell under the yoke of the
Macedonian Empire. During that period — over a century and a half — all
the political convulsions that Athenian critics like to point to were crammed
into a single decade at the end of the fifth century: the Crisis Years
of 413-403. These years saw the destruction of most of Athens' fighting
force during the Sicilian expedition; an oligarchic coup and democratic
counter-coup; the mass trial of the Arginusai Generals; Athens' defeat
and occupation by Sparta; the installation of the bloodthirsty dictatorship
of the Thirty; and a violent civil war which restored the democracy. It
was in the wake of this crisis period that Sokrates was sentenced to death
by a harrowed and paranoid jury in 399. Athens has been indicted on the
basis of a quite short and atypical period of its history (cf. Finley (1969),
p. 72.). Nor did the Athenian democracy die in political convulsion; it
rebuilt itself from the ashes and flourished for another three quarters
of a century, before finally succumbing not to domestic turmoil but to
an outside threat that swallowed up all of Greece.
In any case, it is risky to judge
Athens on the basis of notorious incidents like the Arginusai mass trial
or the execution of Sokrates. As one scholar points out:
"Excesses and illegalities are
all too common in the history of peoples and governments roused to anger
by sorrow, tension, and passion. In despotisms they rouse little attention
and are not long remembered, for arbitrary and excessive behavior is their
normal pattern of life. In constitutional, moderate, lawful states, however,
they are seized upon as outrages and never forgotten, precisely because
they stand out so sharply as contrary to what is usual."
(Kagan (1987), p. 374.)
So it was in Athens.
Madison perpetuates the stereotype
of Athens as an unruly mob, gripped by irrational whims:
"In all very numerous assemblies,
of whatever characters composed, passion never fails to wrest the scepter
from reason. Had every Athenian citizen been a Socrates, every Athenian
assembly would still have been a mob."
O Fortunate Athens, that by amazing
luck or the favor of the gods was able to gain ascendancy over half the
Greek world, to defy first the Persian and then the Spartan war machine,
and finally, after being conquered, to rise again to a level of power and
prestige almost equal to what it had lost — all under the guidance of passion
rather than reason!
Madison's suggested cure for the
alleged evils of democracy draws heavily on the tradition of the Mixed
"A republic, by which I mean a
government in which the scheme of representation takes place, opens a different
prospect and promises the cure for which we are seeking. ... the delegation
of the government ... to a small number of citizens elected by the rest
[serves] to refine and enlarge the public views by passing them through
the medium of a chosen body of citizens, whose wisdom may best discern
the true interest of their country and whose patriotism and love of justice
will be least likely to sacrifice it to temporary or partial considerations.
Under such a regulation it may well happen that the public voice, pronounced
by the representatives of the people, will be more consonant to the public
good than if pronounced by the people themselves, convened for that purpose."
Of course, Madison realizes that this
is not the only possible outcome:
"On the other hand, the effect
may be inverted. Men of factious tempers, of local prejudices, or of sinister
designs, may, by intrigue, by corruption, or by other means, first obtain
the suffrages, and then betray the interests of the people."
But Madison argues that this problem
can be avoided if the republic is sufficiently large. (In this respect
he is departing from the traditional republican position, which held that
a republican system could avoid collapsing into oligarchy only if the republic
were fairly small in territory and population.)
"...as each representative will
be chosen by a greater number of citizens in the large than in the small
republic, it will be more difficult for unworthy candidates to practise
with success the vicious arts by which elections are too often carried
.... The smaller the society, the fewer probably will be the distinct parties
and interests composing it; the fewer the distinct parties and interests,
the more frequently will a majority be found of the same party; and the
smaller the number of individuals composing a majority, and the smaller
the compass within which they are placed, the more easily will they concert
and execute their plans of oppression. Extend the sphere and you take in
a greater variety of parties and interests; you make it less probable that
a majority of the whole will have a common motive to invade the rights
of other citizens; or if such a common motive exists, it will be more difficult
for all who feel it to discover their own strength and to act in unison
with each other. ... A rage for paper money, for an abolition of debts,
for an equal division of property, or for any other improper or wicked
project, will be less apt to pervade the whole body of the Union than a
particular member of it ...."
This idea of Madison's was a brilliant
one. Unfortunately, experience has shown it to be mistaken. As I wrote
in the premiere issue of Formulations:
"Such was the intent of the Framers
of the U.S. Constitution .... the broad base of representation was expected
to ensure that no special interest could succeed in manipulating the government.
... As we have since learned all too well, the experiment eventually proved
to be a failure. Madison and his colleagues could not foresee the logrolling
process whereby ... special interests ('factions') that were intended to
hold one another in perpetual check instead made concessions to one another's
ambitions in exchange for like concessions to their own."
("Virtual Cantons: A New Path to
Freedom?," Formulations, Vol. I, No. 1 (Autumn 1993).)
The large size of the American republic
only made things worse, as the widely dispersed majority were distant from
their representatives and unable to concentrate their voice.
The last modern critic of Athenian
democracy that I shall consider is Isabel Paterson, whose 1943 book The
God of the Machine (published the same year as Rose Wilder Lane's The
Discovery of Freedom, Ayn Rand's The Fountainhead, and Albert
Jay Nock's Memoirs of a Superfluous Man) remains one of the classics
of 20th century libertarian thought. Paterson is obsessed with the importance
of political structure — an obsession I share. To quote my first Formulations
article once more:
"What would the constitution of
a free nation look like? In trying to answer that question we immediately
think in terms of a Bill of Rights, restrictions on governmental power,
and so forth. And any constitution worth having would certainly include
those things. But if a constitution is to be more than a wish list, it
must also specify the political structure necessary to ensure that
these freedoms are not eroded or ignored. Consider the old Soviet Constitution,
which guaranteed all sorts of fine-sounding freedoms for its citizens —
but which in practice proved only a empty promise, since its interpretation
and enforcement lay in the hands of an unfettered monolithic centralized
Framing a constitution is an exercise
in public-choice economics; politicians react to incentives, and so the
political incentive structure must be designed in such a way that those
in authority cannot profit by the aggrandizement of state power."
This is a lesson I first learned from
Paterson. It is also central to Madison's way of thinking. Where Paterson
goes wrong, I think, is that she, like Madison, fails to recognize the
political structure that existed in democratic Athens.
Paterson condemns Athens for a lack
of checks and balances. As she sees it, Athenian democracy represents pure
majority will, without any countervailing power to offset it: "dislocated
mass," Paterson calls it. But this is a mistake. I will admit that I would
be more comfortable with the Athenian system if proposals in the Assembly
and verdicts in the Jury Courts had required a supermajority rather than
a bare majority in order to be enacted. But all the same, the power of
the majority could hardly be described as unchecked.
For one thing, the Athenian judiciary
had the power, as we've seen, to strike down unconstitutional legislation.
For another, the wealth of the rich minority enabled them to exert a serious
influence to balance against the will of the less affluent majority. Paterson
fails to recognize patronage as playing a role in the constitutional structure,
as she often fails to see structure that is informal and not codified into
law. (This is why she wrongly rejects anarchism as incompatible with political
structure; but that's another story.)
Pursuing this no-structure critique,
she also faults Athens for not attaching representation to regional bases,
something she sees as crucial for stability. Here she is simply misinformed;
members of the Athenian Council represented not a mass aggregate of citizens,
but regional districts called demes.
Paterson also complains that the
Athenians had no notion of individual rights — that nothing, in principle,
was beyond the scope of the democratic government's authority. She grants
that Athenian law left a wide area of freedom to the individual, but she
insists that this was a matter of custom, not something regarded as a right.
This charge is difficult to assess; the Athenians did not have a written
constitution, and so had nothing like a Bill of Rights. But — Paterson
to the contrary notwithstanding — they did generally think that there was
a moral standard beyond custom, to which custom had to answer in order
to be legitimate. The Athenian playwright Sophokles expresses the common
"— You knew the order not to do
— I knew, of course I knew. The
word was plain.
— And still you dared to overstep
—For me it was not Zeus who made
Nor did that Justice who lives with
the gods below
mark out such laws to hold among
Nor did I think your orders were
that you, a mortal man, could over-run
the gods' unwritten and unfailing
Not now, not yesterday's, they always
and no one knows their origin in
(Sophokles, Antigone 447-456.)
A similar point is made by Perikles:
"... in public affairs we keep
to the law. This is because it commands our deep respect. We give our obedience
to those whom we put in positions of authority, and we obey the laws themselves,
especially those which are for the protection of the oppressed, and those
unwritten laws which it is an acknowledged shame to break."
(Thucydides, II. 37.)
Moreover, as Hansen (1989) has shown,
the Athenian democrats operated with a firm distinction between the public
sphere, which was the legitimate province of state action, and the private
sphere, which was not the state's business. It was the Athenian philosophers,
largely oligarchic in their sympathies, or at least in favor of a Mixed
Constitution — and deeply alienated from their own society, for a mix of
good and bad reasons — who denied the public/private distinction; but the
Athenian democrats had a different outlook.
Like other anti-Athenian theorists
we have looked at, Paterson has an enormous admiration for the Roman Republic.
(Indeed, despite my great admiration for her book as a whole, I must say
I find her pro-Roman bias so pronounced as to be extremely tiresome!) She
sees the contrast between Athens and Rome as one of arbitrary rule versus
respect for law. She is uncomfortably aware, however, that Roman law was
generally more brutal and oppressive than its Athenian counterpart; but
she dismisses this as irrelevant:
"To sentimentalize Roman law and
gloss over its harsh and faulty aspects is to miss the point. Its solid
virtue was its mere existence, since at worst it proved preferable to the
unpredictable will of either king or people. In their ordinary conduct
the Athenians were probably more humane, or easygoing, than the Romans;
but the quality of Roman law was that it was dependable."
(Paterson (1993), Ch. 3.)
But this ideal of dependability and
predictability was not a Roman monopoly; Kleon, one of the most prominent
leaders of the Athenian democrats, made precisely the same point:
"And this is the very worst thing
— to pass measures and then not abide by them. We should realize that a
city is better off with bad laws, so long as they remain fixed, than with
good laws that are being constantly altered ...."
(Thucydides, III. 37.)
Stability of the law was an Athenian
ideal no less than a Roman one.
It is true that Rome probably did
have greater reverence for the strict and exact letter of the law than
Athens did. But this legalistic attitude is not necessarily to Rome's credit.
For example: at one point Rome had a law saying that it was illegal to
execute a virgin. Presumably the intent of the law was to protect virgins;
but the result was that, in order to abide by the letter of the law while
evading its spirit, executioners were legally authorized to rape virgins
before killing them. It is very difficult to imagine the Athenians standing
for this sort of thing.
Paterson does think Athens was lacking
in the rule of law:
"Though the anecdote may have been
invented as a joke which related that an Athenian voted for the banishment
of Aristides because he was tired of hearing Aristides called The Just,
the thing was not impossible by the democratic system. In Roman law a man
must be charged with a specified act having known penalties, and convicted
on something more positive than opinion, to incur sentence. He could not
be guilty for no cause."
(Paterson (1993), Ch. 3.)
But this contrast is unfounded. The
Athenians were as committed to the rule of law as the Romans were. The
ostracism example is a rather bad one, because ostracism was the only
case in which an Athenian citizen could be exiled for no crime, and
it was used very infrequently. (And of course, as we've seen, Paterson
misses the point of the Aristeides anecdote.) In the pages of Thucydides
one finds that it is the Athenian democrats above all else who are the
most likely to praise the idea of respect for law. And it is odd that Paterson
so roundly condemns the Athenian practice of ostracism, when she praises
the Romans' habit, during the Imperial period, of assassinating their Emperors
(about a third of all Roman Emperors died by assassination) as a useful
constitutional adaptation, akin to a letting a fuse blow to protect a circuit
in event of a short. Surely the Greek ostrakon, whatever its faults,
was a more civilized response to the threat posed by powerful individuals
than the Roman dagger.
We should also not be too quick to
agree with Paterson that the content of the law is relatively unimportant
so long as the law is stable and its enforcement predictable. It is useful
to remind ourselves of what some of the laws were under Paterson's beloved
Roman Republic. The common people were forbidden to assemble in large numbers
except on official state business; magistrates could impose penalties on
any citizen, without due process or the right of appeal; military discipline
was arbitrary and brutal; and male heads of households were authorized
to put their wives and grown children to death if they so pleased. Roman
women were mere adjuncts of men, and were not even allowed to have names.3
On just about any comparison between Athens and Rome, Athens comes out
(to outline) (to
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What Can We Learn From Athens?
Today we call the United States a
democracy. But the Athenians would have called it an oligarchy — or at
best a Mixed Constitution. They would have seen our reliance on an electoral
system as reinforcing the power of a wealthy, privileged elite whose manipulation
of the media and restrictions on ballot access ensure continued success
at the polls. The notion that America is run by majority rule is one the
Athenians would have found ludicrous; they would have seen that America
is run by a tiny minority consisting of public officials and the wealthy
interests that support them.
Libertarians are fond of echoing
the conservatives' dictum that America's founders wanted a republic, not
a democracy. What we mean when we say this is that they wanted a system
in which neither the majority nor the minority could run roughshod over
the other, rather than a system that simply empowers the majority. To that
extent, they were right. But for the founding fathers, or many of them,
this translated into a preference for a constitution based more on the
Roman model than on the Athenian; and this last preference may well have
been the fatal error that opened the door to an American Leviathan.
What does the Athenian constitution
have to teach us? Which successful features of Athenian law could be usefully
borrowed by those seeking to establish a free nation? Here, I think, are
some of the lessons that we can learn from that free-nation experiment
of two and a half millennia ago:
1. Take the dangers of patronage
far more seriously than libertarians are accustomed to doing, and try to
devise methods of circumventing its influence.
2. Select a substantial number of
government officials by lot in order to break the power of special interests
and make the government more representative of the governed. (Just consider:
under the Athenian system there would already be libertarians in
3. Impose strict term limits on public
4. Make sure the salaries for public
office are high enough to ensure that those who are not independently wealthy
can afford to serve. (Out of understandable frustration at the cupidity
of our rulers, many libertarians have suggested that public officials should
be paid little or nothing. It's an attractive idea, but I think the Athenians
were right in regarding it as a dangerous mistake.)
5. At the end of each term, subject
officials to a public review of their conduct in office.
6. Make it a prosecutable offense
for legislators to pass unconstitutional laws or to win votes through deception.
7. Increase the scope of citizen
8. Increase the sovereignty of juries
by eliminating compulsory empanelment, voir-dire, rules of evidence, and
the like. (Though I resist, on egalitarian grounds, the Athenian idea of
making juries not legally accountable for their decisions, unless such
an exemption is agreed to by both parties to the dispute. Also, a right
of appeal would be nice.)
9. Give juries the power of judicial
review. (This goes one step beyond the power, already advocated by many
libertarians, to nullify the application of a law in a particular case,
to the power to actually strike down the law and in effect repeal it for
everybody. But an exemption should be made for laws that are, e.g., basic
constitutional guarantees of rights.)
10. Make juries extremely large,
so that they will be more representative.
11. Treat all cases as civil cases,
with the victim rather than the state directing the prosecution.
12. Replace criminal cases with class-action
13. Let juries decide between alternate
penalties suggested by prosecutor and defendant.
14. Offer exile (temporary or permanent)
as a cost-effective alternative to imprisonment.
15. Foster competition among systems
of dispute adjudication.
16. Shift the focus of law enforcement
from governmental police to self-help.
It seems appropriate to give the
last word to Perikles, the most articulate and inspiring defender of the
"Let me say that our system of
government does not copy the institutions of our neighbors. ... Our constitution
is called a democracy because power is in the hands not of a minority but
of the whole people. ... everyone is equal before the law ... what counts
is not membership of a particular class, but the actual ability which the
man possesses. No one, so long as he has it in him to be of service to
the state, is kept in political obscurity because of poverty. And, just
as our political life is free and open, so is our day-to-day life in our
relations with each other. We do not get into a state with our next-door
neighbour if he enjoys himself in his own way, nor do we give him the kind
of black looks which, though they do no real harm, still do hurt people's
feelings. We are free and tolerant in our private lives; but in public
affairs we keep to the law. ...
When our work is over, we are in
a position to enjoy all kinds of recreation for our spirits. ... in our
own homes we find a beauty and a good taste which delight us everyday and
which drive away our cares. ...
Our city is open to the world, and
we have no periodical deportations in order to prevent people observing
or finding out secrets which might be of military advantage to the enemy.
... The Spartans, from their earliest boyhood, are submitted to the most
laborious training in courage; we pass our lives without all these restrictions,
and yet are just as ready to face the same dangers as they are. ... There
are certain advantages, I think, in our way of meeting danger voluntarily,
with an easy mind, instead of with a laborious training, with natural rather
than state-induced courage. ...
We regard wealth as something to
be properly used, rather than as something to boast about. As for poverty,
no one need be ashamed to admit it: the real shame is in not taking practical
measures to escape from it. ... We Athenians, in our own persons, take
our decisions on policy or submit them to proper discussions ....
Taking everything together then,
I declare that our city is an education to Greece, and I declare that in
my opinion 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.
... Mighty indeed are the marks and monuments of our empire which we have
left. Future ages will wonder at us, as the present age wonders at us now.
What I would prefer is that you should
fix your eyes every day on the greatness of Athens as she really is, and
should fall in love with her. ... Make up your minds that happiness depends
on being free ...."
(Thucydides, II. 37-43.) D
(to outline) (to
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1 "The celebrated Pericles,
in compliance with the resentment of a prostitute, at the expense of much
of the blood and treasure of his countrymen, attacked, vanquished, and
destroyed the city of the Samnians. The same man, stimulated by
private pique against the Megarensians, another nation of Greece,
or to avoid a prosecution with which he was threatened as an accomplice
in a supposed theft of the statuary of Phidias, or to get rid of the accusations
prepared to be brought against him for dissipating the funds of the state
in the purchase of popularity, or from a combination of all these causes,
was the primitive author of that famous and fatal war, distinguished in
the Grecian annals by the name of the Peloponnesian war; which,
after various vicissitudes, intermissions, and renewals, terminated in
the ruin of the Athenian commonwealth."
(Alexander Hamilton, Federalist
Here Hamilton relies not even on
the moderately biased account of Thucydides, but the centuries-after-the-fact
gossip and speculations of the Platonist historian Plutarch. For a more
balanced assessment of the origins of the Peloponnesian War, one that shows
Perikles' policy to have been primarily a defensive rather than an aggressive
one, see Kagan (1969).
2 The only version of a Mixed
Constitution for which much can be said is the old Icelandic constitution,
with Chieftains being analogous to Horsemen with the right to hold political
office, heads of households being analogous to Yokemen with the right to
choose such officers but not to become them, and everybody else being analogous
to Menials entirely dependent on the good will of the other two classes.
If the Icelandic constitution was more favorable to freedom than the Roman
one, it is only because it had less centralization of power. (And if Iceland
was a more anarchistic version of Rome, perhaps what lovers of freedom
need is a more anarchistic version of Athens.)
3 Roman men had names like
our own — a first name peculiar to oneself, and a last name representing
one's family. (Sometimes a nickname, either of the individual or of the
family, was added as a third name.) But women had only a last name — their
father's family name — but no personal name. So, for example, if a man
was named Marcus Sempronius, his son might be named Gaius Sempronius or
Lucius Sempronius or Titus Sempronius, but his daughter would simply be
named Sempronia (the feminine version of Sempronius). If he had several
daughters, they would all be named Sempronia. Parents told their
daughters apart by numbering them; for example, the fourth daughter
of Marcus Sempronius would be named Sempronia Four. The position of Athenian
women was nothing to brag about, but at least Greek women were regarded
as having enough of an independent identity to be worthy of having names.
(Nor were their husbands authorized to execute them.)
(to top of page)
Anonymous. Dissoi Logoi.
Aristotle. Constitution of the
Euripides. The Suppliant Women.
(quotations from the U. of Chicago edition)
Livy. History of Rome from its
Luke. Acts of the Apostles.
"Old Oligarch." Constitution
of the Athenians.
Plato. Apology of Sokrates.
Plutarch. Parallel Lives.
Sophokles. Antigone. (quotations
from the U. of Chicago edition)
Thucydides. History of the Peloponnesian
War. (quotations from Penguin edition)
Xenophon. Constitution of the
---. Recollections of Sokrates.
---. Resources of Athens.
(to top of page)
Boardman, John; Griffin, Jasper;
and Murray, Oswyn, eds. 1986. The Oxford History of the Classical World.
Oxford University Press, Oxford.
Finley, M. I. 1969. Aspects of
Antiquity: Discoveries and Controversies. Viking Press, New York.
--- . 1994. Politics in the Ancient
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Forrest, W. G. 1975. The Emergence
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Hamilton, Alexander; Madison, James;
and Jay, John. The Federalist Papers. Penguin, New York.
Hammond, N. G. L., & Scullard,
H. H., eds. 1970. The Oxford Classical Dictionary. 2nd ed. Oxford
University Press, Oxford.
Hansen, Mogens H. 1989. "Was Athens
a Democracy?" Historisk-Filosofiske Meddelelser, Vol. 59.
---. 1991. The Athenian Democracy
in the Age of Demosthenes: Structure, Principles and Ideology. Basil
Hess, Karl. 1995. Community Technology.
Loompanics Unlimited, Port Townsend. [first edition 1979]
Jones, A. H. M. 1957. Athenian
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Kagan, Donald. 1969. The Outbreak
of the Peloponnesian War. Cornell University Press, Ithaca.
---. 1974. The Archidamian War.
Cornell University Press, Ithaca.
---. 1981. The Peace of Nicias
and the Sicilian Expedition. Cornell University Press, Ithaca.
---. 1987. The Fall of the Athenian
Empire. Cornell University Press, Ithaca.
Lang, Mabel. 1987. The Athenian
Citizen. American School of Classical Studies at Athens, Princeton.
MacDowell, Douglas M. 1978. The
Law in Classical Athens. Cornell University Press, Ithaca.
Miller, Fred D. 1995. Nature,
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Parker, Meg. 1973. Socrates and
Athens. Bristol Classical Press, Bristol.
Paterson, Isabel. 1993. The God
of the Machine. 2nd ed. Transaction Publishing, New Brunswick. [1st
Spooner, Lysander. 1992. The Lysander
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table of contents of archives) (to
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