In his 1819 essay “The Liberty of the Ancients Compared With That of the Moderns,” Benjamin Constant argued that the ancient Greco-Roman conception of liberty was primarily concerned with the freedom to participate in the collective decisions of the state, not the freedom to live one’s own life free of state interference.  But as I’ve noted previously, Constant made an exception for Athens:

There was in antiquity a republic where the enslavement of individual existence to the collective body was not as complete as I have described it. This republic was the most famous of all: you will guess that I am speaking of Athens. … 

Athens …  allowed to its citizens an infinitely greater individual liberty than Sparta or Rome.¹

What was the Athenian political system, and how favorable or unfavorable was it to personal liberty?

We call Athens a democracy; they called themselves one.  But the Athenian system differed from that of present-day democracies in a number of ways.  It’s customary to describe Athenian democracy as a pure majoritarian system, with no checks on majority tyranny – a description that naturally tends to make libertarians nervous.

But Athens was never a pure majoritarian system.  Of course its major deviation from majoritarianism was to its discredit:  women, slaves, and resident aliens were excluded from the franchise, leaving a self-interested minority in charge.  But another of its deviations from majoritarianism was much more laudable:  Athenian courts had the power of judicial review.  First, it was possible to prosecute a member of the Assembly for introducing an unconstitutional proposal.  If the prosecution won, then the proposal, if it had been passed into law, was automatically repealed.  In addition, there were nomothetic (legislative) courts in which a law could be prosecuted; arguments were made in prosecution and in defense, and if the jurors found for the prosecution, the law was, again, repealed.  In the words of classical historian M. H. Hansen:

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.²

One recent scholar, Melissa Schwartzberg, has challenged the interpretation of this Athenian practice as a precursor of judicial review, on the grounds that “the modern defense of judicial review necessarily rests on the expertise of the judges,” whereas those empowered to strike down legislation in Athens were ordinary citizens, drawn from the same pool as regular jurors.³  But judicial expertise is not the only ground on which judicial review is defended today; the chance to revisit a possibly hasty legislative decision in the light of experience and perhaps new arguments seems a good enough reason.

Another constraint on majority tyranny was the requirement that, except in the case of ostracism (about which more in an upcoming essay), “[n]o law shall be directed against an individual without applying to all citizens alike.”⁴

In addition to its legal structure, Athenian democracy had an ideology that was, at least in principle, broadly favorable to liberty.  The orator Lysias (c. 445-c. 380 BCE) described the founders of the Athenian democracy as holding that it is “the way of wild beasts to be held subject to one another by force, but the duty of men to delimit justice by law [and] convince by reason.”⁵

Nor did democratic ideology confine freedom to the freedom of political participation, the “liberty of the ancients.”   Thucydides (c. 460-c. 400 BCE), in his History of the Peloponnesian War, has the Athenian statesman Pericles (c. 495-429 BCE) declare:

The freedom which we enjoy in our government extends also to our ordinary life. There, far from exercising a jealous surveillance over each other, we do not feel called upon to be angry with our neighbour for doing what he likes. …

We throw open our city to the world, and never by alien acts exclude foreigners from any opportunity of learning or observing, although the eyes of an enemy may occasionally profit by our liberality; trusting less in system and policy than to the native spirit of our citizens; while in education, where our [Spartan] rivals from their very cradles by a painful discipline seek after manliness, at Athens we live exactly as we please, and yet are just as ready to encounter every legitimate danger.⁶

Aristotle (384-322 BCE) agrees, though with disapproval, that according to the democratic conception, “freedom and equality consists in every one’s doing what they please,” so that “every one may live as he likes.”⁷  Plato, another critic of Athenian democracy, laments that there is “no compulsion to rule in this city, even if you are qualified to rule, or to be ruled if you do not want to be; or to be at war when the others are at war, or to keep the peace when the others are keeping the peace,” so that democracy constitutes not so much a single political system as a “supermarket of constitutions” where each person can “pick out whatever pleases him”⁸ – thus making Athens sound rather like the “panarchist” ideal defended by some modern libertarians.⁹  And at least in the eyes of the “Old Oligarch” – the anonymous anti-democratic author of the Constitution of the Athenians formerly but mistakenly attributed to Xenophon – this freedom extended to noncitizens and even slaves:

Now among the slaves and metics [= resident aliens] at Athens there is the greatest uncontrolled wantonness; you can’t hit them there, and a slave will not stand aside for you. I shall point out why this is their native practice: if it were customary for a slave (or metic or freedman) to be struck by one who is free, you would often hit an Athenian citizen by mistake on the assumption that he was a slave. For the people there are no better dressed than the slaves and metics, nor are they any more handsome.¹⁰

Now it’s pretty safe to say that these descriptions of Athenian freedom are exaggerated; both the system’s defenders and its foes had motives for overstating the extent of individual autonomy.  The Old Oligarch’s pronouncements on the supposed freedom of slaves are especially dubious, reminding one of the tiresome 19^th-century complaints that Victorian-era women had more rights than men.¹¹  Likewise, when Athenians boast of Athens’ freedom of speech – as in Demosthenes’ (384-322 BCE) famous remark that people were permitted to praise the Spartan system in Athens, but not vice versa¹² – we have to recall that on the other hand Socrates (c. 470-399 BCE) was executed for his teachings, and that other thinkers who challenged traditional religious beliefs (such as Anaxagoras, who taught that the sun, moon, and stars were physical objects rather than gods, or Diagoras, who appears to have denied the existence of gods altogether) had to flee the city to avoid a similar fate. 

All the same, a genuine reality does underlie the exaggeration; Athens had more freedom than other Greek cities, including enough intellectual freedom to attract thinkers and scholars to its gates from all over the Mediterranean world.  (And even Socrates managed to spend a long career unmolested for his views until fairly late; and his conviction for impiety was somewhat atypical, coming during a rather paranoid period at the end of a major crisis period for Athens, in the wake of military defeat and occupation, followed by a brief but nasty dictatorship [in which some of Socrates’ students were involved] and a bitter civil war to overthrow it.)  Athenian playwrights like Aristophanes lampooned the city’s political leaders upon the public stage,¹³ assailed Athenian foreign policy,¹⁴ and satirized the gods too.¹⁵ Athenian commitment to being free to live as one pleases may have had its limits, but the idea was there, and it was implemented to an impressive extent.

1. Benjamin Constant, “The Liberty of Ancients Compared with that of Moderns,” (1819).

2. Mogens Herman Hansen, The Athenian Democracy in the Age of Demosthenes: Structure, Principles and Ideology (Oxford:  Basil Blackwell, 1991), p. 209; cf. Adriaan Lanni, “Judicial Review and the Athenian ‘Constitution’,” Harvard Public Law Working Paper No. 10-21 (19 February 2010).

3. Melissa Schwartzberg, “Was the Graphe Paranomon a Form of Judicial Review?,” p. 1051; Cardozo Law Review 34 (2013), pp. 1049-1062.

4. Quoted in Andocides, On the Mysteries 87; in K. J. Maidment, trans., Minor Attic Oratrs, vol. 1 (Cambridge MA:  Loeb Classical Library, 1968).

5. Lysias, Funeral Oration 2.19; W. R. M. Lamb, trans., Lysias (Cambridge MA: Loeb Classical Library, 1930).

6. Thucydides, History of the Peloponnesian War, trans. Richard Crawley (London:  Longmans Green, 1874), II.6.

   Concerning the various speeches reported in his History, Thucydides notes that “some I heard myself, others I got from various quarters,” and “it was in all cases difficult to carry them word for word in one’s memory.” Consequently, he explains, it has been his policy a) “to make the speakers say what was in my opinion demanded of them by the various occasions,” while at the same time b) “adhering as closely as possible to the general sense of what they really said.” (I.1) Scholars disagree as to the relative weights to be assigned to (a) and (b) in determining how to interpret the speeches.

7. Aristotle, Politics: A Treatise on Government, trans. William Ellis (London:  J. M. Dent & Sons, 1912), V.9.

8. Plato, Republic 557d-e; trans. C. D. C. Reeve (Indianapolis: Hackett, 2004).

9. Paul-Émile de Puydt, “Panarchie,” Revue Trimestrielle (Brussels,July 1860); cf. Aviezer Tucker, “The Best States:  Beyond the Territorial Fallacy” (Utopian Studies, Winter 1999).

10. Pseudo-Xenophon, Constitution of the Athenians 11; in Xenophon, Scripta Minora, trans. E. C. Marchant and G. W. Bowersock (Cambridge MA:  Loeb Classical library, 1925).

11. For 19^th-century complaints about female domination, see, e.g., Herbert Spencer, “From Freedom to Bondage,” in Thomas Mackay, ed., A Plea for Liberty: An Argument Against Socialism and Socialistic Legislation (London: John Murray, 1891), and still more egregiously, Ernest Belfort Bax, “The Woman Question” (Justice, 27 July 1895); “The Everlasting Female Again!” (Justice, 30 November 1895); “Mr. Belfort Bax Replies to his Feminist Critics” (New Age, 8 August 1908); The Legal Subjection of Men (London: New Age Press, 1908).

    This, recall, was in an era when most professions were closed to women, and when married women could not hold property, had no rights to their children, and could be raped by their husbands with legal impunity.

12. Against Leptines 106; in Demosthenes, Orations, vol. 1, trans. J. H. Vince (Cambridge MA: Loeb Classical Library, 1926).

13. See, e.g., his Hippeis (Knights or Horsemen) and Wasps.

14. See, e.g., his Acharnians and Lysistrata.

15. See, e.g., his Birds.