Ancient Greece’s Legacy for Liberty: Public Choice in Athens

But the Greek city that specialized the most intensively in legal stratagems to discourage abuse of power – and did so with rather more subtlety than Locri – was Athens.

We tend to associate democracy with elections. The Athenians, by contrast, saw elections as an anti-democratic device. This is partly because, as we saw in the previous installment, they were suspicious of representation in general, preferring direct referendum (albeit with results subject to judicial review). Athenian democrats would have agreed with libertarian activist Karl Hess’s defense of direct democracy:

(For those concerned with majoritarian tyranny, recall once more that provisions of the democratic Assembly could be struck down by judicial review.)

The benefits of Athenian direct democracy are often thought to have been crucially dependent on the institution of slavery. Benjamin Constant, for example, in his 1819 essay “The Liberty of the Ancients Compared With That of the Moderns,” writes: “Without the slave population of Athens, 20,000 Athenians could never have spent every day at the public square in discussions.”⁴ But it’s a mistake to suppose that “20,000 Athenians” really were spending “every day at the public square in discussions.” Most Athenian citizens worked for a living, as farmers, merchants, or craftsmen; those who owned slaves usually worked alongside them, apart from the very wealthy. (There’s a reason that most of the people Socrates chats with in the marketplace, in Plato’s dialogues, are aristocrats.) As for the democratic Assembly, this did not meet every day, but varied between weekly and monthly sessions; moreover, it needed only 6000 for a quorum, and sometimes had trouble reaching that figure. While the Athenian system was marred by its reliance on slavery (as well as on male supremacy), there’s no reason to suppose that such reliance was essential to the system’s virtues.⁵

We’ve seen that the Athenians sought to avoid devices of representation wherever possible. But when representation was necessary, Athenians preferred to select representatives by lot, via the method of “sortition.” This is how we pick juries today, but the Athenians filled most other offices by the same means. They reasoned that elections tend to be won by those who are wealthy and prominent – in other words, by members of the upper classes. Sortition, by contrast, ensures that those selected will be a representative cross‐​sample of the population. The danger that sortition might bring exceptionally stupid, crazy, or malicious people to power was alleviated by the fact that officials so chosen generally exercised power collectively rather than individually, at least in important matters, and so the perverse judgments of outliers would be swamped.

Sortition, as I’ve noted, was the method by which most offices were filled, including the upper house of the legislature – though not those offices that required special expertise, such as that of general, which were filled by election instead. The fact that generals like Pericles and Kleon were often able to translate their positions into sweeping political power suggests that democratic worries about the oligarchic tendencies of elections were well‐​founded.

The anti‐​democratic factions in Athens tended to favour what is called the “mixed constitution,” a blend of democracy and aristocracy; advocates of this position included Thucydides, Plato (in the Laws), and Aristotle, while later writers such as Polybius and Cicero saw the Roman Republic as at least in part an exemplification of this ideal. Some typical features of the mixed‐​constitution program were: to replace sortition with election; disenfranchise the lower classes completely; make only the upper classes eligible for office (though middle‐​class voters would be allowed to choose among upper‐​class candidates; and eliminate pay for government offices to ensure that only the independently wealthy could afford to occupy them.

The argument for these mixed‐​constitution measures was the need to balance the power of the rich against the power of the poor, rather than giving either party absolute power over the other. But the democratic reply was that the Athenian system already constituted such a balance, since the official legal power of the poor majority was offset by the rich minority’s capacity to exercise influence through patronage and cronyism. The aristocrat Kimon, for example, used to open up his fields for the poor to help themselves, as a way of winning their support for his proposals in the popular assembly.⁶

Democratic worries about the ability of the rich to translate their wealth into political power were likewise embodied in the institution of ostracism, whereby an individual could be voted into temporary exile with no charges or opportunity for defense. Libertarians like Isabel Paterson point with horror to the fact that at least one citizen explained that he voted to ostracize the statesman Aristeides because he was sick of hearing him called “Aristeides the Just.”⁷ But while ostracism is admittedly a suboptimal tool for addressing abuses of power, the point of the anecdote is that when a politician acquires a nickname like “the Just,” his capacity for mischief is enhanced. (In any case, the use of ostracism seems to have gradually declined in favor of the judicially more responsible institution of prosecutions for unconstitutional proposals.)

Juries, as I noted in the previous installment of this series, were extremely large by our standards, ranging from hundreds to thousands of members. This was partly to ensure proportional representation, and partly to prevent jurors from being bribed or intimidated. (It’s easier to pay off or threaten twelve people than five hundred.) A complicated machinery (literally machinery) to ensure random – and last‐​minute – assignment of jurors to cases was designed to made jury tampering still more difficult. Juries were also typically odd‐​numbered, to prevent ties.

Juries were paid out of public funds, a measure that some Athenians criticized as a form of public welfare to make jurors (often drawn from the ranks of the retired and elderly, an aspect satirized in Aristophanes’ Wasps)⁸ dependent on and supportive of the state. Defenders of the practice replied that if juries were unpaid, only the rich would be able to afford to serve on them, thus biasing court decisions in favor of the upper classes. Both arguments have a point.

Given the size of juries and the brevity of trials (the latter in part a financial consideration, given the former), deliberation over penalties was impractical; yet there were no judges to determine penalties instead. The Athenian solution, in the event of a guilty verdict, was for the prosecutor and the defendant each to propose a penalty, and the jury would then choose between the two penalties. This policy gave the litigants an incentive to avoid proposing excessively harsh or lax penalties; while the defendant would of course propose a laxer penalty than would the prosecutor, too lax a proposed penalty would risk leading the jury to pick the prosecutor’s harsher penalty, while too harsh a penalty from the prosecutor would risk the reverse.

The Athenian legal system in general seems to have been designed on the assumption that people would try to abuse the system, and thus with a keen eye to providing incentives to counteract this tendency. Prosecutors who failed to win over a fifth of the jurors were fined – a technique to discourage frivolous lawsuits. Many offices had strict term limits, and officials were subjected to a thorough audit at both the beginning and the end of their terms. Those who accused a neighbor of theft were allowed to search the neighbor’s house for the stolen item, but had to do so naked to avoid being able to plant evidence. A wealthy person chosen for the “honor” of funding a public festival was allowed to shift the burden to someone even wealthier; the means of determining comparative wealth was for me, say, to challenge you to exchange all of your wealth for all of mine, on the assumption that if you refused, you thereby acknowledge that you’re wealthier.

The philosopher Xenophon was an advocate for still more legal stratagems to incentivize desired behavior on the part of the powerful; “supposing prizes were offered to the magistrates in charge of the market for equitable and speedy settlements of points in dispute to enable any one so wishing to proceed on his voyage without hindrance,” he wrote, “the result would be that far more traders would trade with us and with greater satisfaction.”⁹

Even slaves benefited to some extent (though of course not terribly greatly) from the incentive structure of Athenian law. A slave could escape abusive treatment by resorting to a special place of sanctuary – but could then leave the sanctuary only if he found a new buyer. That’s admittedly not much as checks and balances go, but the option does introduce a slight competitive element into the slave system and thus a slight incentive for masters to treat their slaves less cruelly.

For more details on the workings of the Athenian legal system, see my articles “The Athenian Constitution: Government by Jury and Referendum”¹⁰ and “Civil Society in Ancient Greece: The Case of Athens,”¹¹ as well as David Friedman’s draft chapter “Athenian Law: The Work of a Mad Economist.”¹² Let me add, however, that I would no longer endorse the excessively rosy picture of Athenian foreign policy that I paint in the first article.