Death to Tyrants! (21 page)

There were three primary stages in the
nomothesia
procedure that ended with the ratification of Eukrates's law.
²³
In the first stage, Eukrates wrote his
proposed legislation on white boards that were then placed in front of the statues of the Eponymous Heroes (in the southwest corner of the agora). As noted by Demosthenes (24.36; cf. 20.94) the purpose of that practice was to inform the citizens of the possible legislation before the matter was discussed in a more formal setting. Subsequent, informal, conversations would allow individuals to consider both the spirit and letter of Eukrates's law: to discuss the tyrannical threat and how the law might counter it. The Athenians thus formulated and sharpened the arguments that would be employed in the subsequent stages.

In the second stage, Eukrates's proposal to change existing law on
katalusis tou dēmou
(overthrow of the
dēmos
) was discussed in the assembly on at least two different occasions. The first discussion considered the question of whether or not to proceed with the
nomothesia
process (Dem. 3.10–13; Dem. 20.94). Since Eukrates's law was eventually ratified, the
dēmos
obviously considered his proposal worthy of further discussion.
²⁴
At the second meeting of the assembly, the
dēmos
determined the number of
nomothetai
(law commissioners: those who ultimately ratified Eukrates's legislative proposal), their pay, and, likely, when they would meet.
²⁵

In the third stage, Eukrates prosecuted and five men defended the current law (again, on
katalusis tou dēmou
) before the panel of
nomothetai
. It is not known how many
nomothetai
sat in judgment, but, given the importance of Eukrates's law, it was likely over one thousand. After hearing the arguments on both sides, a majority of
nomothetai
voted by a show of hands in favor of Eukrates's proposal and it became law on the spot (Dem. 24.33).

It is thus clear that, as a result of the
nomothesia
process, discussion of both the letter and the spirit of Eukrates's law would have permeated Athenian political discourse.
²⁶
It is not a stretch to assume, then, that much of the important content of that discourse was common knowledge. The exact content of that discourse is obviously unknown. It is reasonable to suppose, however,
that two major issues—corresponding to the two basic sections of the law—dominated: (1) tyrant killing (lines 7–11), in particular the relationship between the law of Eukrates and the decree of Demophantos; and (2) the activities of the Areopagos (lines 11–22). Thus the following comments offer informed speculation on what the Athenians might have said about those two issues during the lengthy
nomothesia
procedure.

TYRANT KILLING

Since the law of Eukrates explicitly echoes language found in the oath of Demophantos, we can assume that there was a considerable amount of public discussion about that oath (and decree) during the
nomothesia
procedure that ultimately ratified Eukrates's law. What did the Athenians talk about? Fortunately, two fourth-century speeches contain some analysis of that decree and oath: Lykourgos's
Against Leokrates
, 124–27 (330 BCE) and Demosthenes's
Against Leptines
, 159–62 (355 BCE).

Lykourgos delivered his speech
Against Leokrates
in order to persuade an Athenian jury to convict a certain Leokrates for treason (
prodosia
). The alleged treasonous act was leaving Athens immediately after the Athenian defeat at the battle at Chaironeia. Leokrates first sailed to Rhodes. Two years later, he moved to Megara, where he lived for six years working as a grain merchant. Then, finally, after eight years abroad, he returned to Athens. Lykourgos subsequently indicted him.

Lykourgos faced a significant obstacle in his effort to gain a conviction: Leokrates likely did not break a law that existed at the time that he left Athens.
²⁷
Lykourgos countered this difficulty by suggesting to the jurors that no applicable law existed at that time because previous lawmakers could not even have imagined that an Athenian would commit such a crime. If they had experienced such traitorous activity—the logic goes—they certainly would have criminalized it. Thus Lykourgos had to argue that the jurists should condemn Leokrates based upon what their ancestors would have done—that there was an implied precedent. Consequently, much of the speech attempts to demonstrate the existence of that precedent.

Lykourgos read five inscriptions to the jury, each of which recorded a death sentence against a traitor, in an attempt to demonstrate that the jurors' ancestors would have executed Leokrates. The first inscription recorded the Athenians' action taken against Phrynichos, a prominent figure of the Four Hundred (411).
²⁸
After his burial, the Athenians dug up his
body, convicted him of treason, and removed his bones from Attic soil; they even executed and denied burial to the two men who defended him in his posthumous trial (112–14). The second inscription authorized the Athenians to melt down a statue of Hipparchos, the first Athenian ostracized (487 BCE), and to turn it into a pillar on which to inscribe the names of traitors (117). The third inscription recorded a decree of the
dēmos
that condemned to death any Athenian who moved to then (i.e., post-413) Spartan-occupied Dekeleia (an Attic deme) during the Peloponnesian War (121). The fourth inscription recorded the fact that, before the battle of Salamis (480), the
bouleutai
killed with their bare hands an Athenian who merely attempted to speak treasonously (122). And the last inscription Lykourgos read recorded the decree of Demophantos.

Lykourgos explained to the jurors that, after the coup of the Four Hundred, their ancestors sufficiently understood the method utilized by defectors and thus crafted an adequate solution to it (124–25).
²⁹
First, they established by decree and oath that anyone who kills a man who aims at tyranny or
katalusis tou dēmou
shall be
hosios
(blameless). The orator explained that their ancestors wanted all citizens to live in such a way as to avoid any suspicion of subversive activity. To put it another way, they realized that, if widespread commitment to killing defectors were common knowledge, men would be deterred from even appearing to act undemocratically. Second, after swearing the oath, they inscribed its text on a stele and placed it in the Bouleuterion to be a reminder of what one's attitude toward traitors should be. Lykourgos concludes his discussion of the decree of Demophantos with the following exhortation.

You have memorials (
hypomnēmata
), you have examples (
paradeigmata
) of the punishments they meted out, embodied in the decrees concerning criminals. You have sworn in the decree of Demophantos to kill the man who betrays his country, whether by word or deed, hand or vote. I say “you”; for you must not think that, as heirs to the riches bequeathed by your ancestors, you can yet renounce your share in their oaths or in the pledge your fathers gave as a security to the gods, thereby enjoying the prosperity of their city. (127)

Josiah Ober's essay “Historical Legacies: Moral Authority and the Useable Past” presents some useful concepts with which one might more fully appreciate the persuasive force of Lykourgos's exhortation.
³⁰
As implied by the title, the essay examines how one might borrow positive moral authority (of the
past) in order to persuade an individual or individuals to perform a particular act. Ober focuses on three types of appeals to past action. He calls the first use “record of past judgments.” This is basically an appeal to someone's reputation: if some individual is known to have been correct and fair many times and on many issues in the past, one might cite his or her assessment on the given topic (i.e., borrow his or her authority) in order to bolster one's own argument. For example, one might cite former chairman of the Federal Reserve Paul Volcker's assessment of America's struggling economy in order to convince another person of the validity of one's own assessment on the subject (“my opinion is similar to Paul Volcker's”).
³¹
He calls the second use “precedent.” This is an appeal to a past action or decision and its consequences in order to bolster one's own argument about something else that, although perhaps somewhat different, is analogous in some important way. For example, the supporters of the modern gay rights movement might co-opt the powerful logic behind the civil rights movement of decades ago. But it is the third use, called “action as exemplum and legacy gift,” that is directly relevant here.

The effectiveness of a citation of a past “action as an exemplum and legacy gift” results from the belief that certain actions committed by members of a previous generation have given the present generation something of considerable value. The present generation thus possesses that valuable possession as a legacy gift. Consequently, out of respect, the members of the present generation feel compelled to act in a certain way (to imitate) in response: to deem the past action as an exemplum and to commit to pass on the legacy (i.e., the valuable possession) to future generations. One who wishes to persuade members of the present generation to act in a certain way thus might appeal to the moral authority of those past actions to bolster his or her argument.

It is clear that, in his efforts to persuade the jurors to convict Leokrates of treason, Lykourgos sought to borrow the moral authority of the “Demophantos moment.” Their forefathers' oath was an “action as exemplum”—Lykourgos called it a
paradeigma
. The resulting freedom and prosperity of 330 BCE (i.e., the “riches”) was the legacy gift. Thus Lykourgos encouraged
the jurors to live up to that ideal and to pass on the legacy gift to future generations by killing Leokrates. And Lykourgos made the whole concept very concrete by telling the jurist “you took the oath.” Now it is almost certain that none of the jurists swore Demophantos's oath: most, if not all, were not even born yet. His point, again, was that, since the jurists were heirs to riches (i.e., the legacy) secured by the oath to kill defectors, they too must kill defectors (i.e., act like their ancestors did or swore to do) to secure the legacy for future generations.

The second more-or-less contemporary reference to the decree of Demophantos is found in Demosthenes's speech
Against Leptines
(159–62). Demosthenes delivered that speech in order to persuade a panel of jurists to repeal a law earlier proposed by Leptines that revoked all earlier grants of
ateleia
(exemption from public burdens)—except for descendants of Harmodios and Aristogeiton—and forbade such grants from being made in the future. Demosthenes objected to the law on the grounds that honoring important benefactors with
ateleia
contributed to state security; should that practice be taken away or somehow diminished, all Athenians would suffer.

Demosthenes referred to the decree of Demophantos in order to bolster his argument that the prerogative to grant future grants of
ateleia
should not be abrogated. He notes that, according to the decree of Demophantos, future tyrant killers are to be treated like the descendants of Harmodios and Aristogeiton and thus receive a grant of
ateleia
. Thus, should Leptines's law stand, the Athenians could not observe their oaths: a future tyrant killer would not be treated “like the descendants of Harmodios and Aristogeiton” (as stated in the decree of Demophantos). He then raises the possibility that some people might not be troubled with the de facto annulment of the decree of Demophantos since, in their opinion, the need for tyrant killers has long passed. Demosthenes rejects that view on the general grounds that one cannot predict the future and thus must be prepared for all possibilities. He cites the history of Syracuse as an example: although that city was once powerful and democratically governed, its citizens nevertheless fell to a tyrant (Dionysos I). Thus Demosthenes asserts that the Athenians must keep the decree of Demophantos fully valid in order to prevent such an event from happening in Athens.

The persuasive force of Demosthenes's reference to the decree of Demophantos—and the necessity to keep it valid—hinged on what Ober (2005b) calls the prudential force of historical citation. The reasoning is quite simple: if something worked in the past, all things being equal, it likely will work in the present. Demosthenes assumed, that is, that the relevant sociopolitical conditions inside the Athens of 355 had not changed from the time of the promulgation of the decree of Demophantos (410). Thus the Athenians of 355 must both assume that someone might attempt to become tyrant of Athens
and retain the decree of Demophantos so that such threats may be adequately dealt with.

One might reasonably suppose that public discussion about the decree of Demophantos that took place pursuant to the proposal of Eukrates's tyrant-killing law echoed the themes articulated by Lykourgos and Demosthenes in their respective speeches. That is, in the
ekklesia
, in the agora, during the trial in front of the
nomothetai
, and elsewhere the Athenians repeatedly heard it professed (inter alia) that (1) they owe it to their ancestors to stay true to Demophantos's oath; (2) since tyrant killing (as codified in Demophantos's decree) worked in the past, it will work in the present too. Consequently, one might conclude that the commitments to killing tyrants—defending the democracy—were widespread and credible and that such commitment was common knowledge. And that commitment would have been particularly emphatic since it was codified in law.

The generation of common knowledge of widespread credible commitments to killing tyrants (i.e., enforcing the law of Eukrates) greatly increased the likelihood that the Athenians would be able to mobilize in defense of their democracy: should the democracy be overthrown, an individual might rationally choose to “go first” and thereby set in motion a revolutionary bandwagon. Yet, as discussed in the previous section, the tyrannical threat confronting the Athenians in 337/6 was subtle and slow moving; the democracy might not be overthrown in a single, spectacular event (like the assembly at Kolonos in 411, for example). The concern, again, was subversion by evolution rather than subversion by revolution. There had to be, then, a way for the people to know that the democracy was, in fact, overthrown. Thus the second provision of Eukrates's law.