Trust and Commitment: How Athens Rebuilt the Rule of Law
Chapter 16
Trust and Commitment: How Athens Rebuilt the Rule of Law
Paul Gowder
Indeed men too often take upon themselves in the prosecution of their revenge to set the example of doing away with those general laws to which all alike can look for salvation in adversity, instead of allowing them to subsist against the day of danger when their aid may be required.
Introduction
Much literature about democratic transitional justice focuses on the content of post-conflict law, particularly the tension between reconciliation and accountability; that is, when a democracy takes power from a dictatorship that has violated human rights, should the leaders of the previous regime be prosecuted, or should they be granted amnesty? Let us call questions like that, collectively, “the substance question.”
Once a democracy has arrived at an answer to the substance question, however, it will sooner or later be faced with a second question: should it stick to its first answer? If it has publicly and legally committed to some treatment of its previous leaders, may it change its mind?
The citizens of a transitional democracy may decide that they were originally mistaken. Perhaps their original choice caused too much political unrest, or circumstances may have changed. For example, their original choice may have been made in order to mollify some powerful interest group. But the balance of power has shifted, and that group no longer threatens the democracy; the demos is only now freely able to pursue its conception of justice.2 Should it? Let us call this “the commitment question.”
In answering the commitment question, the demos must consider not only issues of abstract political morality—must a democracy keep its promises?—but also structural issues. Should the demos create institutions, such as courts and constitutions, to reinforce its transitional commitments? If the demos breaks or keeps those commitments, what effect will that choice have on the success of its democratic political institutions? Call this “the structure question.”
This chapter is a call to pay more attention to the structure and commitment questions. It will argue that transitional democracies have reasons to stick to their transitional commitments, regardless of their substance.3 And they have reasons to prospectively build structures that allow them to do so.4 In consequence, we should understand the rule of law as an element of transitional justice, independent of the substantive choices transitional democracies make about how to handle the past.5
This chapter is divided into three sections. The first is narrative: I tell the story of one of the first transitional justice problems in recorded history: the reconciliation and amnesty within the Athenian democracy after the brief but infamously brutal regime of the Thirty Tyrants (403 BCE). The second is analytic: I give an account of how the Athenians learned from their prior experience in successfully maintaining their transitional commitments and rebuilding the political community. The final section generalizes to make some theoretical claims about the relationship between public and visible mass commitment to the rule of law and the success of transitional democracies, and from there to the role of courts, civil society, and truth commissions.
Before beginning, a word of disclaimer. Necessarily, this chapter is tentative and partially speculative. It’s almost certainly wrong in more ways than it’s right. In the space of a single chapter, I cannot do anything even remotely approaching full justice to the political complexities of the one case I examine, let alone the greater universe of transitional justice circumstances. Nor can I give a strategic account that captures the multiple and shifting interests necessarily reduced, here, to the binary of “mass democrats” and “elite oligarchs.” The object is not to declare “this is what made the Athenian amnesty successful, and this is what contemporary democracies must do,” but to explore new territory with a plausible but tentative hypothesis, and, in doing so, encourage future scholars to map it more closely.
Transitional Justice in the Golden Age of Athens: A Chronology6
In the late fifth century BCE, two oligarchies, known to history as the Four Hundred and the Thirty Tyrants, overthrew the Athenian democracy and were overthrown in turn. Those oligarchies, the events leading up to them, and the way the restored democracy handled the fallout, are the subjects of this section.
As the end of the fourth century neared, Athens was mired in the Peloponnesian War against Sparta. By the standards of the time, Athens was a democracy: although citizenship was a hereditary status, held by around 10 or 20 percent of the residents, and women, foreigners, and slaves held inferior legal status and no direct say in politics,7 political rights were distributed largely without reference to socioeconomics class, and three mass institutions—the jury, the council, and the assembly—ruled the city.8
In 415 BCE, the assembly decided to invade Syracuse, a powerful city on Sicily. The expedition was probably hopeless on its own, but internal politics made matters worse. Just before the invasion began, the citizens discovered that a number of hermai—statues of the god Hermes—had been mutilated. At the same time, it was alleged that some citizens had privately parodied an important religious ceremony, the Eleusian mysteries. Both were believed to associated with an oligarchic plot against the democracy.
Faced with these events, the legal system utterly broke down. Andocides (not, admittedly, a disinterested source) recounts that those making denunciations were given a financial reward; unsurprisingly, some 300 citizens ended up being denounced. At least some of those denunciations were false, and one Diocleides was ultimately executed for making false accusations. Before the hysteria died down, a number of citizens were executed or went into exile as a result of the denunciations, others were summarily thrown into prison on suspicion, and at one point the council called the whole city to arms and considered torturing citizens in order to extract more names. Alcibiades, one of the generals of the upcoming expedition, fell under suspicion. His opponents waited until he had set sail, and then accused him in abstensia. Upon being recalled from the invasion as a result, he turned traitor, joining up with the Spartans.
In 413 BCE, the entire Sicilian expedition was destroyed. The loss of men, money, and ships was devastating. The “allies” (client states) went into revolt. Athens seemed doomed.
Somehow, Athens survived to continue the war for a few more years. Meanwhile, Alcibiades and others conspired to overthrow the democracy. They followed a two-pronged strategy. First, they tried to persuade the Athenians that the Persians would give them a much-needed alliance if they installed an oligarchy. Second, they called on clubs of the rich and powerful within the city, the hetaireiai (who had widely been believed to be behind the sacrileges of the herms/mysteries), to carry out acts of violence and intimidation in order to support an oligarchic coup. Thucydides reports that the terror campaign was successful: the democrats were unable to resist the oligarchs because they were too afraid to speak against them or organize their own collective action. (I will suggest below that some of this is attributable to failures of the rule of law.)
In 411 BCE, the democracy voted itself out of existence, turning over power to the Four Hundred, the first of two Athenian oligarchies. The Four Hundred ruled relatively mildly—Thucydides reports that they killed “not many” people—but were not strategically sustainable. The lower classes controlled the bulk of (what was left of) Athenian military might, the navy at Samos. Consequently, within a few months, the oligarchy collapsed and the democrats regained control of Athens, thus facing their first problem of transitional justice. Their choice was legal accountability: they convicted a number of oligarchs for their crimes during the regime. Moreover, in order to build a more solid legal basis for deterring and punishing future oligarchs, they enacted the decree of Demophantus, which allowed anyone to kill with impunity any person who attempted to overthrow the democracy or took office in an oligarchy.9
The war continued. In 406 BCE, Athens won its last major victory, the naval battle of Arginusae. Unfortunately, a storm prevented them from rescuing the sailors from their disabled ships afterward. Outraged by the mischance, the people of Athens again crashed their legal system, executing the (victorious!) generals en masse by diktat of the assembly. The hysteria and disregard for law reached such a fever pitch that one citizen, who tried to put a stop to the illegal proceeding, was himself threatened with execution.10
Predictably, after killing its generals Athens lost the war. In 405 BCE, Lysander obliterated the Athenian fleet at the battle of Aegospotami, and in 404, under siege and starving, Athens capitulated. Among the terms imposed by the Spartans was the rule of another oligarchy, the Thirty Tyrants.
According to Xenophon, the Thirty began with a popular move, persecuting some alleged sycophants—reputedly frivolous litigants who used the Athenian courts to extort money from their opponents. (Classicists debate whether sycophancy actually occurred.) But the Thirty quickly expanded their violence, executing numerous citizens and expropriating an immense amount of property.
A rebellion arose and began to win battlefield victories against the Thirty. Sparta sent troops to reinforce the Thirty, but the commander of the relief troops grew tired of the conflict and imposed a peace on the warring factions. The Thirty were forced to step down, but the Athenian people were forced to grant an amnesty to their collaborators, forbidding the restored democracy (for the most part) from prosecuting them for any crimes except murder, and forbidding individuals from taking revenge outside the legal system. The solution to Athenian democracy’s second problem of transitional justice within a decade was imposed on it from the outside.
Shortly thereafter, Athens comprehensively revised its legal system. A new court procedure, parahraphe, was created, allowing a citizen to immediately challenge a lawsuit alleged to violate the amnesty. Athens also prohibited laws targeted against individuals as well as the enforcement by magistrates of unwritten laws. Finally, a distinction was created between laws, which were to be difficult to amend, and decrees of the assembly, making it clear that the former were to supersede the latter—in effect constitutionalizing the existing legal system, and, with the help of the long-standing procedure of graphe paranomon, creating a system of judicial review to challenge unconstitutional decrees. The overall effect of these changes was to entrench the existing laws and shift power from the assembly to the juries.
The amnesty held. Those who collaborated with the oligarchs were not legally punished for their crimes, and the council summarily executed the only citizen whom history records as attempting extra-legal revenge. Having successfully reintegrated the oligarchic opposition into the community and reformed its legal system, Athens swiftly rebuilt, and, within a few years, transformed from a crippled and conquered city into a major power once again.
What Changed in Athens?
After the Four Hundred fell, the democrats prosecuted the oligarchs for their misdeeds. After the much more brutal regime of the Thirty, the democrats observed an amnesty, even though that amnesty, while imposed by Spartan military might, wasn’t propped up by it.11
The obvious explanatory hypothesis is that Athens learned. Their behavior after the Four Hundred led to continued class conflict, impeded the war effort, and brought on a second oligarchy eight years after the first. Their behavior after the Thirty, by contrast, contributed (along with other changed circumstances) to a speedy return to military significance after a devastating defeat, and to no further oligarchies.
But that believable hypothesis is also ambiguous. Did Athens learn only to refrain from punishment and revenge, or also about the importance of keeping their legal commitments?
Suppose the Athenians learned that in an unstable external political environment, it’s better to give an amnesty to one’s former rulers than to prosecute them?12 This seems like a good lesson for them to have learned, since Athenian class conflict, carried out in part through legal prosecutions, probably contributed to their military defeat: the affair of the hermai/mysteries helped turn the Sicilian expedition into a disaster, and then the trial of the generals decapitated the army just in time to lose the war altogether.13 Moreover, there is reason to believe that the upper classes wanted to topple the democracy in part because they were unhappy about the way they were treated by the legal system: consider that the Thirty started off by eliminating alleged frivolous litigants who targeted the rich, and that a letter attributed to Plato claims that their rule was a result of general dissatisfaction with the laws.14 Consequently, the democrats after the Thirty had good reason to pursue an amnesty strategy rather than a retribution strategy, in order to reintegrate their socioeconomic elites into the community, gaining the benefits of their resources and talents against external competitors as well as giving them less reason to plot against the polis. There is strong evidence on the side of those who have argued that
Athens learned that it could not go on without reconciling the rich and powerful to the democracy.15
However, that version of the hypothesis is incomplete. An unreliable amnesty would not have achieved the democrats’ ends. If the elites had reason to fear that the restored democracy would disregard its promises and punish them for their crimes, they still would have had reason to plot for a future oligarchy. If the democracy did, in fact, continue to eat its own elites, it would have again deprived itself of their services in international conflict. Consequently, in order to have learned the right answer to the substance question, it also must have learned the right answer to the structure and commitment questions. In the jargon of political science, the Athenians must have learned to credibly commit to the amnesty: to enforce it in support of their long-run interests even in the face of a short-run desire by aggrieved democrats to the contrary.16
Moreover, in order to successfully fight off future oligarchic threats, the democrats of Athens must have learned to trust one another. The elite, like all elites, were more powerful than members of the mass on a one-to-one basis; they had the capacity to do things like bribe or intimidate assemblies and juries. They also had greater capacity to coordinate their own actions to magnify their individual power, due to their smaller population, and preexisting organizational capacity in the form of the hetaireiai