Originally published in Spanish. “¿Por qué la ley?” Tsevan Rabtan. Las cuatro esquinas del mundo.
When I was fourteen a friend of my father gave me a book as a gift. He did it because he always saw me reading, not because he disliked me. It was called -the book, not mi father’s friend- Goat Song, and had been written by Frank Yerby, a best-seller author half white, half black, who ended up living in Spain. I read it in one sitting and I liked it a lot. It spoke of things I had no idea about, and to top it all it was packed full of sex, war, passion and exotic places.
Because of that novel, set during the Peloponnesus war, I learnt of the Battle of Arginusae and the posterior trial. I lost the book a few years later, but that trial became one of the bricks that supported my gradually more pronounced individualism, based on fear to the threat of the tribe constituted in assembly and on the disgust for their actions.
In 406 B.C., after decades of war and acts of violence between (basically) Athens and Sparta, the former was basically in a desperate situation. The Athenian Alcibiades, reinstated a few years before thanks to some victories, had been finally deposed due to a defeat of which he was probably not responsible. Sparta, well-oiled with Persian gold and under the leadership of Lysander, had developed a comparable and event superior naval force than that of the rival city. In this year, an obscure Spartan navarch called Calicratidas tried to take Lesbos. To prevent it, the Athenians sent Conon as commander of a squadron. He wasn’t very lucky and had to seek refuge with part of his ships to Mytilene, one of the cities in the island. He was able to send a ship to Athens asking for help before being besieged.
Athens had just suffered an oligarchical dictatorship (that of the four hundred), broken by the Athenian fleet itself constituted in assembly in Samos. This mutiny restored democracy. Please note: the Athenian democracy, which excluded slaves, foreigners and women.
On reception of the request for help Athens got mobilized and scraping resources from where there were almost none left it managed to create a haphazard fleet. Lacking enough citizens, slaves and metics (that if, foreigners) were enlisted. To those, the strategos (generals) assigned to lead them promised the citizenship at their return. All was unusual in that operation, including that the command was shared between eight people and the tactic that would later be used, considering the inexperience of the crews. Astonishingly, in the Arginusae islands the fleet achieved a major victory. Calicratidas had to flee with his remaining ships and, at that moment, the Athenian commanders faced a dilemma. Conon was already surrounded by fifty Spartan triremes. A swift attack on this fleet could result on even greater losses for the Lacedaemonians by preventing them from joining forces with the remnants of the one just defeated. Nevertheless, some twenty Athenian ships had been sunk or damaged and their crews were at risk of death. Stopping to rescue them implied losing the opportunity. One of the strategos, Erasinides, proposed abandoning those crews to their own luck and take advantage of the situation. Nevertheless an intermediate option won: two trierarchs or ship captains, Thrasibulus and Theramenes would rescue the survivors using a part of the fleet, some fifty ships, while the rest attacked the Spartans surrounding Mytilene. The plan failed due a strong storm and most of the crew members of the sunk ships died, being impossible to recover their bodies for proper funeral honors.
The trierarchs leading the rescue mission were important characters. Theramenes was one of the leading figures in the oligarch party. The case of Thrasibulus was more complex: it isn’t clear which his implication in the coup of the “four hundred” was, but his later role seemed to position him with the democrats. He was a brilliant general, in that moment in disgrace due to supporting the return of Alcibiades. In any case, after the events I will later relate, he was one of those who opposed to the “thirty tyrants”, the dictatorship that emerged after the final defeat of Athens in the Peloponnesus war, and was later vindicated as a statesman.
To know what happened later, there are basically two historical resources: the Hellenica by Xenophon (see chapter VII of book I) and the Bibliotheca Historica by Diodorus Siculus (book XIII, chapter 101, sections 1 to 7). It is often said that the Xenophon version is unreliable due to carelessness and a critical position with respect to the Athenian democracy, while Diodorus’ would be more objective. Nevertheless Diodorus writes three centuries after the events, while Xenophon is contemporary; and the narration of Xenophon is ample and detailed. Also, Senophon was a disciple of Socrates and, like Plato, his critical position can be seen as a response to the drift in the Athenian democracy reflected in the events described in this text and to the posterior conviction of their master. It isn’t that important since the differences, although significant, do not affect the portion of the trial that interests me the most. I will follow the narration of Xenophon, mentioning in which parts it is different to that of Diodorus.
Before that, it is required to remind how Athens was organized politically. The Boule, or council of the five hundred, was the day-to-day government. It was selected by random draw from a pool of volunteers, fifty from each of the ten tribes established by the Athenian constitution. Their appointment lasted for a year and, in each of the ten months of the Athenian calendar, the fifty citizens of each tribe constituted the prytany, a kind of council inside the council; at the same time, among the prytaneis every day a president was selected, the epistates, who also presided over the Assembly. One of the essential functions of the Boule was to decide on the agenda. A citizen who wanted a law to be passed or some decision to be made had to propose it to the Boule, who decided not only whether it would be considered but also the procedure for its debate and voting, if needed. The Assembly gathered all the male citizens, thousands of them (a quorum of six thousand was required) and had competence over affairs of the highest importance, such as defining the administrative structure, set the taxes, decide the international policy and appoint the city magistrates.
Let’s go back to the Arginusae. News from the victory arrived before the fleet returned, and so did those about the death of so many from the shipwrecks. These are the names of the eight strategos: Aristocrates, Aristogenes, Diomedonte, Erasinides, Lysias, Pericles the Young, Protomachus and Thrasyllus. Diodorus states that the strategos had sent to the Boule a letter reporting the events and blaming the deaths on Thrasibulus and Theramenes. These, who had the support of the oligarchic party and were terrific speakers, would have anticipated and convinced the Assembly of their innocence. As a result of this trial, the Assembly would have deposed the strategos and recalled them to account for their actions. Two of them, Aristogenes and Protomachus would have disobeyed and left for exile, afraid of a potential punishment. It must be remembered that the fleet was a political factor, since as already mentioned, not long ago it has constitute itself in assembly and discussed the decisions coming out of the Assembly of the city. And this fleet in particular was formed in a great deal by slaves and metics who had been promised citizenship. That is, it was possible that there was a clash of legitimacies: on one side the Athenian citizens and the oligarchic factions; and in the other, the more populist parties and leaders, some of whom were strategos of the victorious fleet.
In the narration of Xenophon this prior trial to the trierarchs is not mentioned. What it says is that indeed the strategos were deposed and recalled, that two of them did not obey and that, when reporting to the Boule, one of them, Erasinides, the one who had supported the most abandoning the shipwreck survivors, was fined and arrested for stealing public funds. Nevertheless, when the strategos reported the sequence of the battle, one of the council members, Timocrates, demanded that it was the Assembly who debated the question of the responsibility for the death of the shipwreck survivors. The consequence was the arrest of all the present strategos and a call for Assembly, without defining the procedure for the trial. That was the first illegality. In the Assembly, the supporters of Theramenes and Thrasibulus exaggerated about the behavior of the generals and requested their trial and conviction. The strategos took the floor to reply, but the legal procedure was broken a second time, since it established that they should have the same time as their accusers but were only allowed to speak briefly. They alleged that they had entrusted the rescue to Theramenes and Thrasibulus and that not even them could be held responsible of any crime, since the storm had prevented them from doing it. One of them stated that his ship had also sunk and that had narrowly escaped death. The strategos had the assistance of pilots and sailors that supported their version and it seemed that the trial was leaning in their favor, but night fell and since raised hands could not be counted for the voting, the Assembly was suspended, referring the decision to the council.
The next day the crime took place. It was the celebration of the Apaturia, in which new males were welcomed into citizenship. The absence of so many citizens, manipulated by the enemies of the strategos, sparked the fire. Xenophon reports that black-cladded men shaved their heads and, as if they were relatives of the decease marched to the place where the Boule was meeting. There they convinced Callixenus, one of their members, to persuade the council to propose to the Assembly a trial without accusation nor defense since they had happened during the previous Assembly, and that pronounced the innocence or guilt of the six strategos as a single block.
The procedure was totally ilegal. To start with, because each stratego should have been tried separately according to the law; and because he should have had the chance to plead and prove what could have been used in his own defense. The people, however, were enraged and manipulated, and behave as a mob. The first issue to vote was whether to use the procedure proposed by the Boule. In that moment appeared a pretended survivor of the shipwrecks, who said to have been saved by climbing into a barrel of flour and been tasked by other dying victims to accuse the strategos that had abandoned to those so distinguished in the defense of the homeland. The atmosphere that Xenophon describes is one of confusion, excitement and manipulation. Despite this, a few tried that the law was followed. Euriptolemus accused Callixenus of breaking the laws, and the response was terrible. Xenophon writes:
But the majority kept crying out that it was monstrous if the people were to be hindered by any stray individual from doing what seemed to them right.
This is, symbolically, a foundational moment in the politic history of Humanity. I will later elaborate on this idea.
To prevent the accusation of illegality, one of the present called Liciscus, proposed that also those opposing the procedure were subject to trial, and these, fearful, retired their objections. When the vote was about to take place some pritaneis, conscious of how the legal procedure was being twisted, stated their doubts and again Callixenus demanded that the opposing pritaneis were judged with the strategos. All of them gave in, but one. It was the turn of Socrates, the philosopher, to be epistates and risking his own life stated that he wouldn’t vote anything that was not legal.
It didn’t matter. The wave of indignation was unstoppable, and the Assembly passed the proposed procedure. Despite being a summary trial Euriptolemus tried again to prevent the vote, delivering a speech that mixed the flattery to the fury that surrounded him and the logic of the law. He reminded norms about severe offenses with their corresponding penalties that required a separate trial, in which the day was split in three parts: the first one to decide which procedure should be used, a second for the accusation and a third for the defense. He asked which the problem in doing so was; what was the cause of such urgency that made them look like allies of the Lacedaemonians who looked for revenge on those who had defeated them. He reminded that following the procedure would not prevent them from punishing those found guilty, but that by judging all the strategos as a group they risked sentencing an innocent. He stated:
What a travesty of justice it would be if in the case of a man like Aristarchus [one of the four hundred] who first tried to destroy the democracy and then betrayed Oenoe to our enemy the Thebans, you granted him a day for his defence, consulting his wishes, and conceded to him all the other benefits of the law; whereas now you are proposing to deprive of these same privileges your own generals, who in every way conformed to your views and defeated your enemies. Do not you, of all men, I implore you, men of Athens, act thus. Why, these laws are your own, to them, beyond all else you owe your greatness.
His speech, continued with references to the events, seemed to convince the present and Euriptolemus suggested the Assembly to vote whether to judge each strategos separately, following one of the cited procedures, or if according to the proposal from the Boule they should be judged right there collectively. After a vote by raised hands, Euriptolemus proposal was approved, but one of the present sweared that the vote was illegal and it was repeated. In the second voting the council’s proposal was approved.
That was the end. Then some ballot boxes were brought in and the Assembly, by tribes, voted against the strategos. All six of them were executed.
Soon the Athenians repented and the instigators had to flee for fear of being judged in the same way. Years later, after the defeat of the “thirty tyrants”, Callixenus returned to Athens. Xenophon reports that he starved to death, hated by everybody.
There is something terrible and symbolic in this story. The paradigm of democratic state of the antiquity confronted to the ruleless fury of an enraged multitude that claims to have a right to decide above the law.
The Athenian democracy (not that of any other city-state) is not a model of what we call now democracy. There is no separation between what is public and what is private. The state is not organized to protect the individual liberty. This, if it exists, is a reflection of the laws of a society that reward the virtue of the citizen in public matters. The private ends of the individual are subordinated to the public ends and the exercise of an active civic virtue. Liberty as we understand it does not exist in Athens. This modern conception that later will inspire the republicanism and some kind of liberal model will still require two thousand years to manifest itself, in Machiavelli and in Hobbes.
Nevertheless the subordination of the citizen to the law is based in something original. The law restricts the liberty, but also the tyranny, because is a result of an agreement between equals, consequence of a new power that the Athenians fell in love with: the power of the word. This viewpoint is echoed in the speech delivered by Pericles in the famous funeral prayer that can be read in the immortal pages of Tucidides.
This subordination that the Greeks were so proud of has a vulnerability: the Word and the democratic consensus take place in an specific environment that in the case of Athens comprises all the demos. It is a place that can produce aberrations:
But the majority kept crying out that it was monstrous if the people were to be hindered by any stray individual from doing what seemed to them right.
I said before that these words symbolize, in my opinion, a foundational moment in political history: the tension between democracy and law or, in other words, between false democracy and true democracy (this is, of course, of my own making).
Many important Greek thinkers rejected the democratic system. For them, the Athenian democracy was the paradigm of what a democracy was. Their criticisms are so pointed that have been valid since over twenty centuries ago in all discussions over the subject. The cautions and warnings about corruption and tyranny that are generated by a democracy without checks and balances made many people support irrational forms of political control that are just ways to maintain oligarchic castes; but in other cases, are used to shape proper democratic processes.
When Marsilius of Padua and Machiavelli reinstate the discussion about democratic government, they set the field of play. A naïve viewpoint of the world considers that the citizen is so only as long as he takes part in a collective entity with its own and higher goals. A more pessimistic view considers political process as a tool for agreement, the place where particular interests can be defended in a peaceful way. The first vision emphasizes direct democracy. The people is not only the source of all legitimacy but, due to being sovereign, is omnipotent. Evil is not possible, since democracy always looks after the common good. The second vision warns about the issue of a tyrannical majority and emphasizes the value of the transitory agreement, of the lesser evil. The first vision is childish; the second is mature.
Of course this few outlines were gradually replaced by much more elaborated viewpoints and systems, but they still echoed in them. In some sense, the “optimist” position got overtones of critical pessimism, while explaining brilliantly that the checks and balances could be an insidious way of subjugating the disadvantaged, who have a lower capacity to organize themselves. At the same time, the most cynical and pessimistic viewpoint of the political process, with the successes of the liberal state, created a story of representative democracy that minimized the internal contradictions and the spurious uses of the political process. All this made the debate richer, but there, in the bottom, in the dark shadows of oversimplifications and first causes, still lied the starting point: the ideal of the common good confronted with the self-sufficient individual scared of the leviathan.
Oddly, by focusing on this point that I have presented so summarized, this discussion left in the background something that is in my opinion essential and that, despite the number of words that you have already read to reach this point, is the core of what I want to explain. That core is ¿why the law?
This is a thermodynamic blog. In a piece that seems to be recalling the dawn of time I won’t avoid a metaphor based on dissipative structures as a way to create order. The democratic ideal without rules, or with ad hoc rules, is chaotic because it doesn’t create stable structures. A society without stable structures is a society in permanent risk of dissolution. Those related to the almighty Assembly believe that its existence is enough. That is a notable error. It’s impossible to express satisfactorily the algebraic result of adding up the opinions of the citizens, if there is no orderly mechanism for debate and decision-making, and for changing previous decisions that should remain untouched in the meantime. That orderly mechanism is the law. The law, in particular the written law, is what creates a dissipative structure able to stay, mutate and innovate. As a summary: there is no democratic will that can be expressed if there aren’t previous and stable rules for expressing that will. What is called direct democracy is just brute force.
The law is something else: it is a brake. With its abstract time limits and its ordered procedures, it alters the timing of the political process, always subject to the volubility, to the daydreaming, to the immediate responses. That the discussion is restricted to comply with such formalities imposes that, in the first place, ideas have to be put in written form and slowly, the need that an expert is consulted. Second, it requires that discussions are subject to temporal restrictions. In the third place, it is conservative in maintaining the building while there is no legal change. It’s true that it can be full of “pirate nests”, but since is subject to scrutiny due to the confrontation between factions it is possible to change it without the upset of those who want to go back to the initial state, pristine, when nothing existed and everything had to be invented. In the fourth place, it weakens the majority and reinforces the minorities, by allowing changes and evolution as the tide of public passions and opinion moves. This is the most counterintuitive point: the law becomes a self-imposed limit to the collective will, a framework designed for what we colloquially know as “counting up to ten”. It is the equivalent of the oligarchic counterbalance, but in this case this oligarchy is formal and aristocratic: an aristocracy of ideas, a sum of what we know and what we learn that is accumulated generation after generation and error after error.
Of course I’m talking about the democratic law. The laws of an autocrat are a golem, they seem to be laws but are hollow inside.
When the Athenians demand in the Assembly the right to do whatever the people please, without any limit whatsoever, the Athenians stop being a democratic assembly and become a transitory tyranny, subject to the imposition of the hasty argument and the tribal strength. The citizen dissolves when the assembly votes without restriction, since the citizen is so because he can take part in a regulated political process, with rights and obligations.
The appeal to the people as source of all legitimacy is true, as long as we keep in mind that “political people” is also a legal definition.
In days in which, once again in that kind of eternal return to the identical infancy, there are appeals to “the people” or “the nation” as source of legitimacy, it must be remembered why we carry with the burden that some think is a dead weight; which is its function. If we believe that we have a right to live, to liberty and the search of happiness, we must admit that we also must have the right to search unhappiness. That is what “search” means; being architects of out patch in the world. Raw democracy appeals to something simple and immediate, the decision of the majority, but we have learnt that the majority is able to support and promote immoral acts as defined by posterior majorities. Why limit the decisions of a current majority with rules of procedure and laws? To prevent that they destroy buildings constructed more slowly, with errors, full of traps, weaknesses and dead areas, but productive and with benefits.
As Euriptolemus said, why such a hurry?
Laws are made by men. The democratic laws are made by citizens. Dispersed and accumulated, with lacks and mediocrities, they create a web that traps whe visionary. To change then he can do one of two things: work from the inside or tear down the building. If he works from inside and manages the change against the enormous inertia already built up, his work would be added and will last, increasing the heritage. If he plunges blindly into the unknown and tears down the building, he will have to start from scratch and convince that constituent majority that his is an indestructible building; but the foundations would be placed on sand
Unluckily, there are others that also want to tear down the building formed by the legal institutions. Prophets and demagogues that take advantage of a sentiment just too human: the enthusiasm for simple solutions and manifest destinies. Like plagues of locusts, they appear from time to time and promise an immediate paradise. Their merchandise is the cut of the Gordian knot and their breeding ground the anodyne mediocrity of the already known solutions. Confronted with the series of articles, guarantees, appeals and terms, the “man that was needed” takes a stroll through the square and says: “Shall it be expropriated”.
There is only one voice of God in the human institutions. It is the law. Without it, the people are mute and only the mob speaks.
