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

Nevertheless, much of the burden of Athenian taxation fell not on citizens but on the so‐​called “allied” cities in what had begun in the wake of the Greco‐​Persian wars as a defensive alliance among nominal equals, the “Delian League,” but had subsequently evolved into a naval empire headed by Athens.

The means by which this transformation occurred are instructive: members of the League initially had the option of contributing either money or warships to the alliance. Most member cities found it more convenient to contribute money; the Athenians, by contrast, craftily made sure to contribute warships, and also moved the treasury from Delos (the original headquarters of the League, hence the name) to Athens for “safekeeping.” Consequently, the allies soon discovered that the League’s fleet consisted primarily of Athenian warships under Athenian command, and that their own financial contributions were now simply tribute paid to the Athenian hegemony.

All the same, a surprisingly high number of what we today consider “public services” in Athens were provided by private, voluntary means rather than by governmental force. This is true to a great extent, moreover, of precisely those services for which even many libertarians consider monopoly state provision essential: namely police and courts.

Apart from a body of publicly owned slaves charged with keeping order at public meetings (and, if need be, rounding up citizens in the marketplace to ensure a quorum in the Assembly), Athens had no police force. (The same was true of many ancient societies, including the Roman Republic, though not the Roman Empire.) In Athens, investigating crimes was a task left to private citizens, as was the job of getting a defendant to show up at his trial. Given Athens’ lack of any claim to a monopoly of force, it’s debatable whether it even counts as a state by standard definitions.

The courts themselves were publicly funded, but the state nonetheless absented itself from many central aspects of judicial procedure. For example, Athens had no public prosecutor and no criminal law; if you accused your neighbor of a crime, it was your job to prosecute him yourself. And that didn’t mean hiring a lawyer to present your case for you; private experts could be hired to help you prepare your case, but the actual presentation had to be made by the complainant personally. (The same was true for the defendant.)

Athenian law did draw a distinction, similar to today’s civil/​criminal distinction, between adjudication of offenses against an individual and adjudication of offenses against the community as a whole; but the latter were treated like class‐​action suits, brought by private individuals rather than by a state employee. Hence every trial had to be initiated as a response to grievances actually raised by citizens, rather than being the imposition of some bureaucrat’s project.

The Athenian legal system’s aversion to attorneys in the trial process presumably stems from the same source as its reliance on direct rather than indirect democracy: a suspicion of representation as such, and of the principal‐​agent problems it brings in its wake. Notably, the absence both of lawyers in the courtroom and of elected representatives in the Assembly encouraged the development among the general citizenry of skill in argumentation, and thus plausibly helped to foster a culture of rational public justification that fueled the fuller development of philosophy.

Athenian courts also had no judges; no official was empowered to reject potential jurors, to determine what evidence they could hear, or to dictate to them any particular interpretation of the law.

In his Essay on the Trial by Jury, the 19^th-century libertarian legal theorist Lysander Spooner argued that such judicial powers were in any case contrary to the proper function of a jury trial. A jury, Spooner reasoned, is supposed to be “a fair epitome of ‘the country’ at large, and not merely of the party or faction that sustain the measures of the government.” In short, a trial by jury should be as far as possible a “trial by the country,” meaning that a truly representative jury can be expected to “agree to no conviction except such as substantially the whole country would agree to, if they were present.” But this requires that “substantially all classes of opinions, prevailing among the people, will be represented in the jury; and especially that the opponents of the government … will be represented there, as well as its friends.” Thus a trial would be “no trial at all ‘by the country,’ but only a trial by the government, if the government could either declare who may, and who may not, be jurors, or could dictate to the jury anything whatever, either of law or evidence,” since “[i]f the government may decide who may, and who may not, be jurors, it will of course select only its partisans, and those friendly to its measures.”¹

Concerns about the state’s ability to control the composition of juries are especially pressing today, given recent studies showing that in many American courts, prosecutors reject black jurors three times as often as non‐​black ones, particularly in death penalty cases (where black jurors are perceived as being more reluctant than others to impose capital punishment).²

The Athenian democrats would have strongly agreed with Spooner’s argument against allowing government judges or government prosecutors to reject potential jurors in order to secure a particular verdict or penalty. Moreover, the large size of Athenian juries (typically 201 or 501, but in some cases 1001 or even more) also made their representative character more certain, leaving less to chance than the 12‐​member juries that Spooner was envisioning.

In any cases, citizens were encouraged to make use of arbitration before resorting to the courts. There were two kinds of arbitrators, public and private. As I’ve written elsewhere:

Another area of life that Athens left open to private, voluntary choice was education. Unlike Athens’ archrival Sparta, where children of both sexes were subjected to a rigorous state‐​imposed curriculum from age seven onward, Athens left it up to parents to arrange for the tutoring of their children – much to the dismay of philosophers like Plato, who called for state control of education.⁴ Yet few would complain that Athens, the intellectual center of Greece, was under‐​educated in comparison with rival cities.

Higher education in Athens was pioneered by the “sophists” – a term which has a negative connotation today (largely thanks to hostile critics such as Aristophanes and Plato) but strictly just referred to any professional providers of instruction to adults. Such instruction included advice on public speaking and argumentation in the Assembly and the lawcourts, as well as “self‐​help” advice generally, but also training in subjects ranging from mathematics and natural science to moral philosophy and linguistics. Many sophists were foreigners, attracted to Athens by the relative intellectual freedom it offered.

While the sophists charged fees for their instruction, wealthy patrons would also host salons where guests could hear sophists lecture and debate, free of charge. (One such salon is portrayed in Plato’s dialogue Protagoras.)⁵ And Socrates, of course (who did not regard himself as a sophist – though to judge by Aristophanes’ comedy The Clouds,⁶ not everybody agreed) generally offered his educational services without charge. Hence private provision of higher education took both for‐​profit and charitable forms – but in each case without state involvement.

In education as in law, then, Athenians relied heavily – and largely successfully – on the private sector for services that today we are too ready to assume must require the involvement of the state.