Participation and Rights in Athenian Democracy: A Habermasian Approach

Abstract

This article analyzes the actual interaction of private and public immunities in ancient Athens, and argues that ancient democracy echoed to a greater extent than traditionally assumed the general dynamics and normative foundations of deliberative democracy. Without denying the important differences that distinguish ancient democratic Athens from modern democracy, I analyze the Athenian situation in light of Habermas's theory of deliberation, and argue that civic and individual liberties in Athens were democracy-enabling because they undergirded the exercise of collective political power. In Athens, the considerable respect accorded to the rule of law (as distinct from majority rule), legitimated private autonomy and created the circumstances that made collective self-government possible. Thus, this article contradicts the dichotomous approach to liberty held by some of the most prominent critics of Athens such as Isaiah Berlin and Benjamin Constant.

Notes

1. Constant, however, did recognize that Athenians enjoyed many liberties that resembled those of the moderns. Nevertheless, he believed that the “modernity” of Athens applied only to its social life not to its political order. For this argument, see Nadia Urbinati, Mill on Democracy (Chicago, IL: Chicago University Press, 2002).

2. Morgen Hansen, “The Ancient Athenian and the Modern Liberal View of Liberty as a Democratic Ideal,” in Demokratia, ed. Josiah Ober and Charles Hendrick (Princeton, NJ: Princeton University Press, 1996), 91–105; Morgen Hansen, The Athenian Democracy in the Age of Demosthenes (London: University of Oklahoma Press, 1999); Josiah Ober, “Quasi-Rights: Participatory Citizenship and Negative Liberties in Democratic Athens,” Social Philosophy & Policy 17 (2000): 27–61.

3. I will be referring throughout to Athenian democracy in the fifth and fourth centuries. It can be said that he Athenian democracy started with the reforms of Solon around 590 BC and ended with the victory of the Macedonians over Athens in 322 BC. However, there were in this period two moments of oligarchic rule: the regime of the Four Hundred (411–10) and the Tyranny of the Thirty (404–403). I will be ignoring these non-democratic moments.

4. Martin Ostwald, From Popular Sovereignty to the Sovereignty of Law (Los Angeles, CA: University of California Press, 1986); Stephen Todd, The Shape of Athenian Law (Oxford: Oxford University Press, 1993).

5. Walter Jones, Law and Legal Theory of the Greeks (Oxford: Clarendon Press, 1956), 90.

6. Jon Elster, “Accountability in Athenian Politics,” in Democracy, Accountability, and Representation, ed. Bernard Manin et al.(Cambridge: Cambridge University Press, 1999), 261.

7. Hansen, The Athenian Democracy in the Age of Demosthenes, 175.

8. Ostwald, From Popular Sovereignty to the Sovereignty of Law. The emphasis on the rule of law was greater before 462 and after 403, that is, before Ephialtes’ democratic reforms and after the restoration of democracy (after the Tyranny of the Thirty).

9. Jones, Law and Legal Theory, 90

10. This principle was not recognized for thieves and other minor criminals who were put to death without trial, reflecting the fact that Athenians considered these wrongdoers among the lowest elements in society. However, this guarantee could be overridden if at least 6,000 votes were counted in favor of not recognizing it. Corporal punishment was allowed, and even mandated, to render a slave's testimony in court legally valid.

11. Corporal punishment was allowed, and even mandated, to render a slave's testimony in court legally valid.

12. For a more detailed list of these prerogatives, see Ober, “Quasi-Rights,” Hansen, “The Ancient Athenian,” and Todd, The Shape of Athenian Law.

13. Demosthenes against Meidias, ed. and trans. Douglas MacDowell (New York: Oxford University Press, 1990), 44–45.

14. Meidias had physically attacked Demosthenes in the theater of Dionysos while Demosthenes was serving as chorus producer.

15. Ostwald, From Popular Sovereignty to the Sovereignty of Law.

16. Hansen, “The Ancient Athenian,” 99.

17. Katherine Pettus, Felony Disenfranchisement in America: Historical Origins, Institutional Racism, and Modern Consequences (New York: LFB Scholarly Publishing, 2005), 25.

18. The Graphe was used to invalidate laws and decrees until 403/2, when it was limited to decrees. For laws, the “Graphe Nomon Me Epitedeion Theinai” was instituted. The main difference between the two was that jurors spent a whole day considering a law, while they could spend a couple of hours considering a decree. This attests, again, to the great importance that Athenians attached to laws.

19. Ober, “Quasi-Rights,” 30–33.

20. Josiah Ober, Athenian Legacies: Essays on the Politics of Going on Together (Princeton, NJ:  Princeton University Press, 2005), 130, 131.

21. Elster, “Accountability in Athenian Politics,” 262.

22. This should not be interpreted to mean that the Assembly was turned into a secondary organ of government. It still retained important functions such as foreign policy and taxation, besides the already mentioned.

23. David Cohen, Law, Sexuality, and Society: The Enforcement of Morals in Classical Athens (Cambridge: Cambridge University Press, 1991), 228.

24. Ibid.

25. The controlling institutions through which this regulation should be enforced are discussed in The Politics 1209b10, in the framework of a discussion of offices of government, when Aristotle wonders: “should there be one person to keep order in the market-place and another somewhere else or should there be a single person to keep order everywhere . . . for example should there be one officer for the whole subject of the maintenance of order, or a separate order for children and another for women?”

26. Cohen, Law, Sexuality, and Society, 235. Note, however, that reliance on external censorial mechanisms is not so evident in The Laws; but it is present in some parts of the Republic, i.e., the censorship of the poets.

27. See Plato, The Laws, especially section 842a: “Let this law, whether it ought to be called one law or two, be laid down concerning sexual matters and all the erotic things: it regulates our mingling with one another caused by such desires both when we act correctly and when we act incorrectly.”

28. Cohen, Law, Sexuality, and Society, 220, 221.

29. Robert Wallace, “Law, Freedom and the Concept of Citizens’ Rights,” in Ober and Hendrick, Demokratia. Wallace makes an argument that in Athens legislation pertaining to socially undesirable private conduct was premised on an intention to suppress the dangers of outer invasion and treason. He claims: “Ancient cities could not afford to take chances if one of its residents posed a threat to the community. If just one disloyal person opened a city gate during the night, all could die in their beds” (110).

30. There is an important exception to this. Athenians were prohibited from marrying non-citizens on pain of atimia (disenfranchisement). Atimia meant that the citizen lost his timē, or honor, because his status as a citizen consisted in his right to go to the assembly and vote, to serve on a jury, worship at the temple, bring any type of civil or criminal prosecution, fight in the army, appear in public places, or receive any of the material benefits of citizenship such as grain distributions. Some of these rights were also obligations to the polity, and included the obligation to marry a female citizen, or asta. A male citizen could be atimos if he married a female alien after 451/450. See Pettus, Felony Disenfranchisement in America for a full description of this important exception.

31. Robert Connor, “Civil Society, Dionysiac Festival, and the Athenian Democracy,” in Ober and Hendrick, Demokratia. Conor develops the argument that several types of private associations in Athens, in which the habit of shared decision-making is likely to have prevailed, contributed to a lively civil society antedating and facilitating Cleisthenes reforms.

32. Jones, Law and Legal Theory, 158, 171, 218.

33. Conor, “Civil Society, Dionysiac Festival, and the Athenian Democracy,” 279.

34. Ober, “Quasi-Rights,” 30.

35. Ibid., 52.

36. Many poor women in Athens had to leave the private sphere to work; see Aristotle's Politics, sec. 1300a4.

37. Ober, “Quasi-Rights,” 47

38. Hansen, “The Ancient Athenian.”

39. Xenophon: “The Constitutions of the Athenians,” in Aristotle and Xenophon on Democracy and Oligarchy, ed. and trans. J. M. Moore (Berkeley, CA: University of California Press, 1986), 39.

40. Demosthenes, Third Philippic, in Demosthenes’ Orations, ed. John Warrington (London: J. M. Dent & Sons, 1954), 190.

41. Ober, “Quasi-Rights,” 46.

42. Cicero, On the Commonwealth (New York: Macmillan, 1985), 31.

43. Marquis de Condorcet, “On the Influence of the American Revolution on Europe,” in Condorcet: Selected Writings, ed. John Baker (Indianapolis, IN: Bobbs-Merrill, 1976), 39.

44. H. L. A. Hart, “Are There Any Natural Rights?” The Philosophical Review 64 (1955): 175–91.

45. Jurgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (Cambridge: Polity Press, 1996); Jurgen Habermas, “Three Normative Models of Democracy,” in The Inclusion of the Other, ed. Ciaran Cronin et al. (Cambridge, MA: MIT Press, 1998), 239–53.

46. Habermas, “Three Normative Models of Democracy,” 46.

47. Habermas, Between Facts and Norms; James Bohman, ed., Deliberative Democracy: Essays on Reasons and Politics (Cambridge, MA: MIT Press, 1997).

48. Habermas, Between Facts and Norms, 130.

49. David Estlund, “Beyond Fairness and Deliberation,” in Bohman, Deliberative Theories of Democracy, 173–205; Joshua Cohen, “Deliberation and Democratic Legitimacy,” in Bohman, Deliberative Theories of Democracy, 67–93; John Ralws, Political Liberalism (New York: Columbia University Press, 1993).

50. Jon Stuart Mill cited after Moses Finley, Democracy Ancient and Modern (New Brunswick, NJ: Rutgers University Press, 1972), 32.

51. Michael Rosenfeld, “Law as Discourse: Bridging the Gap between Democracy and Rights,” Harvard Law Review 108 (1995): 1165.

52. Thucydides, The Third Phillipic, 146.

53. Wallace argues that the liberality and voluntariness that characterized public involvement in democratic Athens could nevertheless be temporarily interrupted due to safety considerations of the gravest kind (i.e., an invasion), but usually only under those circumstances.