The Death of Legal Positivism and Civic Rights in Fourth-Century Athens
Throughout the fourth century BC, the Greek city-state of Athens underwent severe judicial reform that abandoned historic judicial and democratic principles and critically restructured legal procedure, judicial review, and fundamental civic rights.
To fully comprehend the changes sustained by the Athenian justice system after the late-fourth-century campaigns of Philip II of Macedon, one must understand the foundational structure of the law prior to Macedonian rule. In seventh-century BC Athens, the dominant aristocracy was propped up by a system of oral law, in which the legal code was upheld and passed down through oral tradition. This flimsy system of agraphoi nomoi,[1] or unwritten laws, was often manipulated or exploited by those in power, whose corruption left Athenian society marred by legal inconsistency and a mutilated, bare-bones judiciary.[2] In the early sixth century, as vigilantism overtook the impotent justice system, the people of Athens commissioned Draco, an aristocratic legislator, to draft a codex of laws which were inscribed on wooden tablets known as axones[3] and displayed publicly.[4] As a result, the populace was empowered to finally access and understand the rules that governed them. Not only did this act wholly restructure Athenian judiciary institutions, but it also established a foundational connection between the common citizen and the implementation of justice.
In the centuries that followed, as noted by classicist Edward Harris, faith in the rule of law became a cornerstone of the Athenian cultural identity that permeated all aspects of society.[5] Specifically, with the rejection of the agraphoi nomoi system, this reverence for the law was built upon the literal inscriptions of the Constitution, rather than questions of morality, rights, or offenses. This legal distinction is heavily explored in Western legal theory, particularly by legal philosopher H. L. A. Hart; Hart’s doctrine splits law into the subsets of primary and secondary rules; primary rules contend that “human beings are required to do or abstain from certain actions,” while secondary rules consist of codified, institutional justice and its implementation.[6]
Classicist Christopher Carey evokes Hart in his investigation of Athenian justice, reclassifying primary and secondary rules under monikers of substantive and procedural law, respectfully.[7] Carey suggests that the Athenian judiciary was mainly focused on legal procedure, rather than moral speculation about certain crimes and civic obligations.
This philosophy can be characterized as an ancient variant of legal positivism, in which the laws are, as legal philosopher John Gardner wrote, “normatively inert,” or an unwavering standard of posited commands, rather than fluctuating moral and political ideals.[8] The first-century Roman statesman Cicero (who was specifically educated in Athens) offers an equivalent definition from an ancient perspective, stating bluntly that “laws order what must be done and forbid what must not be done.”[9]
The straightforward logic of Athenian positivism produced one of the first Western justice systems rooted in non-discriminatory, egalitarian principles, therefore allowing democratic rights to thrive. This conclusion is affirmed by Athenian playwright Euripides in his 423 BC play Suppliants, where he insists that “when the laws are written down, rich and weak alike have equal justice.”[10] Here Euripides discloses why Athenian faith in the rule of law was so prominent: Athenian citizens believed that their civic rights depended upon a strict and consistent inscribed legal system (i.e. legal positivism).
One example of Athenian positivism’s bolstering effect on equal rights was the written statute of the nomos ep'andri, which stated that no law could apply discriminatorily to any singular man, and instead had to apply to the entire Athenian citizenry or anyone within Athenian borders (as evidenced by the common introduction “if anyone…” that prefixed a great many written laws, thus addressing the entire population).[11] Furthermore, surviving written records of legal deliberations reflect an obsessive devotion to existing legal precedents. Across a myriad of cases, arguers debating many different crimes and laws repeatedly evoke important historical decisions, proving that notions of rigid, unvarying interpretation of law were upheld with dogmatic zeal (or, at the very least, were widely perceived to be the fairest way of administering justice).[12]
By the fourth century BC, Athens had doubled down on its positivist legal system with grand-scale empowerment of the judiciary and complex specialization of certain law courts. Perhaps the most crucial reform occurred when the ekklesia,[13] or popular assembly, was stripped of its once-unchecked political authority, providing citizen jurors, peoples’ courts, and boards of law-makers oversight over new legislation as it pertained to the laws and constitution.
This aggressive reform cemented the Athenian judiciary as a crucial cheque on policymaking, a role spearheaded by the boards of nomothetai,[14] or law-makers.[15] Although previously filled by a singular powerful nomothete, the nomothetai of the fourth century BC was something of a grand jury elected by lot from the broader pool of dikastes, or citizen jurors. Historical analysis of the usage of jury-specific vocabulary to depict their procedures and the restriction that no original legislation could be submitted by a member of the nomothetai confirm that this institution was something of a chief jury responsible for an ancient variant of judicial review.[16] This review process was mainly implemented via the graphe paranomon,[17] or “suit against [bills] contrary to the laws,” a process by which a citizen could challenge the constitutionality or legality of decrees and legislation before the nomothetai, allowing them to revoke or overturn such policies. Through specific historical examples of nomothetai cases, the importance of strict adherence to the Athenian legal code is heavily expressed. Although proper judicial procedure was usually followed, one contrary example is cited by Demosthenes in a speech denouncing rushed legislation. In around 354/3 BC, a man named Diodorus submitted a graphe nomon me epitedeion theinai, or a “public suit for proposing an inexpedient law,” which is yet another variant of ancient judicial review.[18] The allegation of Diodorus, written by Demosthenes, insists that the Law of Timocrates was submitted to the nomothetai for review prematurely, without undergoing the proper voting process by the ekklesia.[19] Here is further proof of the importance of hyper-specific judicial procedure within the Athenian state. The nomothetai in particular secured itself as the central pillar of Athenian positivism through their careful attention to the literal meaning of the laws.
However, with the rise of Macedon in the late fourth century, this meticulous, literal practice of the Athenian Constitution was quickly replaced by forceful, illegal manipulations of the laws. Evidence suggests that in 334 Alexander the Great sent instructions across Greece directing various recipient city-states to elect nomographoi, or “law drafters” who would edit and rewrite laws to force a change of regime.[20] This practice was recycled by the various claimants to Alexander’s succession years later. Many Classical scholars concede that these Macedonian-endorsed nomographoi effectively represent the same position as the traditional Athenian nomothete. it is therefore likely that when Macedonian ruler Cassander appointed the Macedonian-allied Demetrius of Phalerum as the lawgiver of Athens in 317, the political power of his appointed position was adapted from the office of nomothete.[21] In a reversion to the old, less-evolved Athenian justice system, the evidence suggests that the previous court of nomothetai was abolished. One 320 law that redistributed the powers of city magistrates to marketplace officials would have been constitutionally mandated for review by the nomothetai, but this crucial step is entirely absent from the lawmaking process, suggesting that the court was purely reformed out of existence.[22] Meanwhile, Demetrius of Phalerum’s illegal regime was, ironically, justified through the same textualist rhetoric that dominated judicial practice for centuries. Demetrius characterized himself as the next in a long line of legal reformers, attaching himself to the likes of Draco and appealing to the patrios politeta, or “ancestral constitution,” despite reshaping the Athenian legal system nearly beyond recognition.[23] As the moral whims of Demetrius of Phalerum manipulated the distorted remnants of Athenian law, any semblance of legal positivism was erased, as was the complex judicial system that had evolved around it.
Yet, the erasure of positivism was accompanied by the abuse of civic rights –– particularly the right to participate in the judiciary. At the ground level of Athenian justice were the citizen jurors, who would convene by the hundreds in one massive judicial assembly known as the diskasterion. The very cornerstone of the Athenian notion of democratic justice was that citizens of equal standing were entrusted with judgment and sentencing. However, under Macedonian rule, the already exclusive title of citizenship was further restricted by a two thousand drachma buy-in, thus depriving the smaller courts and juries of the dikastes of numbers and the voices of disadvantaged citizens.[24] Such constraints were approved not by public debate in the ekklesia, but instead by an exclusive jury behind closed doors. They left the juries and lawcourts drained of numbers and transformed into oligarchical, deeply undemocratic institutions that disregarded the will of the people.
Another example of the Hellenistic Age relegation of democratic justice can be observed through the resurgence of the Areopagos council, an aristocratic judiciary council deriving its origins from the pre-classical age.[25] Before Draco’s inscription of the laws, the Areopagos council reigned supreme as the sole governing institution of Athens, possessing unregulated control over all administrative and judicial matters.[26] However, as the Athenian judiciary evolved and democratic principles took root, the council’s authority was reduced to overseeing homicide trials, and little else. Although any surviving Classical literature about the Areopagos contains nothing but praise and reverence toward the council’s decision-making, its role as an unelected institution of elites became a cause for concern against a fourth-century backdrop of collapsing democracy. Although this council certainly represented the virtuous ancestors of old, it later began to symbolize the tyrannical oral law system it had once practiced and implemented. At the onset of the Hellenistic Age, amidst the threat of Macedonian rule overthrowing all democratic systems, a return of the non-positivist, discriminatory justice system seemed terrifyingly imminent, and the Areopagos seemed to be the most likely vehicle for reinstating it.
Immediately after Philip II of Macedon’s decisive victory in the Battle of Chaeronia in 338 BC, the Areopagos took decisive action, sentencing all Athenian deserters to death.[27] This episode is a key example of the fourth-century council reclaiming its long-absent independent jurisdiction, and foregoing the typical legislative procedure for prosecution. By 336, the Athenian mood was one of panicked frenzy, as (a perhaps rightful) paranoia about the safety of Athenian democracy ran rampant. In response, a law reinforcing democratic institutions and criminalizing tyranny was proposed by an Athenian citizen named Eurakates.[28] One distinctly notable aspect of this legislation was the insistence that “it shall not be permitted for the councillors of the Council of the Areopagos, if the People or the democracy at Athens have been overthrown, to go up to the Areopagos or to sit in session or to deliberate about anything.” This provision reveals a distinct discomfort amongst Athenian democratic systems about the sudden resurgence of the Areopagos, one that would be soon vindicated when, under the authority of Demetrius of Phaleron, the historic democratic criminal punishment court of the Eleven was usurped and entirely replaced by a massively expanded Areopagos council.[29] After a lapse of centuries, the oligarchical institution of the Areopagos once more was empowered to interpret and implement legal codes as they pleased. Although a written standard of criminal law was still in place, any democratic influence on the implementation of such laws had been eradicated. From a Macedonian (and Demetrian) standpoint, the Areopagos’s role as a distinctly non-democratic institution arguably offered both historical ties to the legal history of Athens and a judiciary less beholden to the public will and easier to influence.
In sum, although the early fourth century saw the emergence of the Athenian legal system as a comprehensive institution of justice, based on a strict, literal interpretation of the laws and the presence of the common citizens as the deciding voices, the Macedonian rule, and the government of Demetrius of Phalerum, in particular, saw the eradication of these fundamental legal systems, under the guise of succeeding traditional legal reform campaigns. At the onset of the Hellenistic Age, the old legal positivism of Athens was overthrown for the convenience of a new regime’s unconstitutional will, vindicating the very fears of Athenian citizens which compelled them to observe strict legal literalism in the first place.
Notes
[1] From the Greek “ἄγραφοι νόμοι”
[2] Frederick Danesbury Smith, Athenian Political Commissions (1920) (Whitefish, MT: Kessinger Publishing, 2010).
[3] From the Greek “ἄξονες”
[4] Aristotle, "Part 5, Section 41," in The Athenian Constitution (Scotts Valley, CA: CreateSpace Independent Publishing Platform, 2018). Holland, Leicester B. "Axones." American Journal of Archaeology 45, no. 3 (1941): 346-62.
[5] Edward M. Harris, The Rule of Law in Action in Democratic Athens (Oxford, UK: Oxford University Press, 2013).
[6] H. L. A. Hart, The Concept of Law, 3rd ed. (Oxford, UK: Oxford University Press, 2012).
[7] Christopher Carey, "The Shape of Athenian Laws," The Classical Quarterly 48 (1998).
[8] John Gardner, "2. Legal Positivism: 5½ Myths," in Law as a Leap of Faith: Essays on Law in General (Oxford, UK: Oxford University Press, 2012).
[9] Marcus Tullius Cicero, De Legibus, trans. Johann Friedrich Wagner (n.p.: Legare Street Press, 2022)
[10] Euripides, The Suppliants, trans. E. P. Coleridge (New York: Random House, 1938).
[11] Demosthenes, "Speech 23 Chapter 86," in Demosthenes, Speeches 23-26, ed. Michael Gagarin (Austin, TX: University of Texas Press, 2018).
[12] Edward M. Harris, "What Are the Laws of Athens About? Substance and Procedure in Athenian Statutes," DIKE: Rivista di storia del diritto greco ed ellenistico, 2009/2010. 13
[13] From the Greek “ἐκκλησία”
[14] From the Greek “νομοθέται”
[15] Lambert, Stephen D. Inscribed Athenian Laws and Decrees in the Age of Demosthenes: Historical Essays. Vol. 9 of Brill Studies in Greek and Roman Epigraphy. Leiden, NL: Brill Academic Publishers, 2017.
[16] Rhodes, P. J. "Sessions of Nomothetai in Fourth-Century Athens." The Classical Quarterly 53, no. 1 (2003): 124-29.
[17] From the Greek “γραφή παρανόμων”
[18] P.J. Rhodes. "Graphe Nomon Me Epitedeion Theinai." In The Encyclopedia of Ancient History. 2012.
[19] Demosthenes, Demosthenes: Against Meidias. Against Androtion. Against Aristocrates. Against Timocrates. Against Aristogeiton, trans. J. H. Vince, Loeb Classical Library 299 (Cambridge, MA: Harvard University Press, 1935), III.
[20] Mirko Canevaro, "The Twilight of Nomothesia: Legislation in Early Hellenistic Athens (322-301)," Dike, no. 14 (2011).
[21] Alice Bencivenni, "Progetti di riforme costituzionali nelle epigrafi greche dei secoli IV-II a.C" [Constitutional reform projects in the Greek epigraphs of the 4th-2nd centuries BC], Lo scarabeo editrice, 2003. S. Dow and A. H. Travis, "Demetrius of Phaleron and his Lawgiving," Hesperia 12 (1943)
[22] IG II² 380
[23] Socrates, On the Sign of Socrates, trans. Frank Cole Babbitt (Cambridge, MA: Harvard University Press, 1928).
[24] Ferguson, William Scott. Hellenistic Athens: An Historical Essay. Bloomington, IN: American Historical Review, 1912.
[25] The Council derived its name from the Areopagus, or the “Hill of Ares,” upon which they convened.
[24] Gertrude Smith, "The Jurisdiction of the Areopagus," Classical Philology 22 (January 1927): 61
[26] Lycurgus, "52," in Minor Attic Orators, revised ed. (Cambridge, MA: Harvard University Press, 1954), II 28 For apparent reasons, this law is known as the Law of Eurakates
[27] Robert W. Wallace, The Areopagos Council, to 307 B.C (Baltimore, MD: Johns Hopkins University Press, 1989)
[28] For apparent reasons, this law is known as the Law of Eurakates
[29] Robert W. Wallace, The Areopagos Council, to 307 B.C (Baltimore, MD: Johns Hopkins University Press, 1989)