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.
THE AREOPAGOS
The council of the Areopagos was composed entirely of ex-archons. At the end of their year in office, each of the nine archons underwent his euthynai wherein both his financial accounts and (potentially) his behavior in office were publically examined. If an archon successfully passed that examination, he was subjected to another scrutiny conducted by the current members of the Areopagos. If the archon passed that second examination, he was admitted to the council of the Areopagos, where he served for the rest of his life. Thus the number of Areopagites serving at any given time varied. But it likely averaged 150 members.
For over a century prior to the promulgation of the law of Eukrates, the Areopagos’s powers were quite limited. The epochal year was 462/1. Before that year (at least from 594), the council wielded considerable powers in its somewhat nebulous role as the “guardian of the regime (politeia)” (Ath. Pol. 25.2). The details are not certain, but the council likely could overturn decisions made by both magistrates and the citizen assembly. After 462/1, as a result of the reforms of Ephialtes, the council was stripped of such broad authority. It became, primarily, a court for premeditated homicide trials.32
Within the years immediately preceding the promulgation of the law of Eukrates, the Areopagos’s powers were greatly augmented. Perhaps most significantly, the Areopagos was authorized to participate in the new procedure of apophasis, a procedure that adjudicated crimes against the state. An apophasis could originate by a decree of the dēmos or—quite importantly—on the initiative of the Areopagos itself. Either way, the Areopagos would conduct a preliminary inquiry into the alleged crime and then report both its findings and its recommendation to the assembly. If the Areopagos recommended acquittal, no further action was taken. If the Areopagos recommended a guilty verdict, however, the assembly subsequently decided whether or not to refer the matter to the courts. If the matter was referred to the courts, the court pronounced the final verdict.33
Demosthenes’s account (18.132–133) of the Areopagites’ involvement in the case against Antiphon nicely demonstrates the use of the apophasis procedure within the larger context of the Macedonian threat. Antiphon, an Athenian recently deprived of his citizenship, allegedly promised Philip that he would burn down Athens’s dockyards. Before he could do so, however, Demosthenes found him hiding in the Piraeus and brought him before the ekklesia for a trial. The dēmos (i.e., the ekklesia) acquitted him. But the council of the Areopagos, “having become aware of the matter and seeing your [i.e., the dēmos’s] inopportune ignorance,” arrested him and brought him into court for another trial. This time he was convicted and executed.34
Although the matter has been debated, there is reason to believe that a decree authored by Demosthenes after the battle of Chaironeia gave the Areopagos even more power (i.e., in addition to their role in apophasis). In a speech titled “Against Demosthenes,” Deinarchos wrote (62), “And yet in the past, Demosthenes, you proposed that the council of the Areopagos should be given absolute authority to punish (κυρίαν εἶναι κολάσαι) anyone who offended against the laws, in accordance with the ancestral laws.” That is, no doubt, a vague assertion. But it is quite possible that, per Demosthenes’s decr
ee, the council was given the power to adjudicate criminal cases without appeal. As suggested by Mogens Hansen, henceforth a prosecutor could choose to try his case in front of the Areopagos instead of the other dikasteria.35
Given the increase in its powers, it is not at all surprising to discover that the Areopagos played a rather large and proactive role in Athenian politics during the years immediately preceding the promulgation of the law of Eukrates. Their action against Antiphon has already been mentioned. In addition, they vetoed Aischines’s appointment as Athens’s advocate (syndikos) to the Amphictyonic Council and secured, instead, the appointment of the obviously more pro-democratic Hypereides (Dem. 18.134); they imprisoned the general Proxenos, likely for military procrastination in 346; they had Charinos expelled for treasonous activity that benefited Macedon; after Chaironeia they relieved Charidemos of his position as general in charge of defense of the city and gave it to Phokion (Plut. Phok. 16.1–3). And most notoriously, they ordered the execution of those who attempted to leave the city after the battle of Chaironeia (Lykourg. Leok. 52, 53; Aischin. 3.252).
One should interpret the singling out of the Areopagos in Eukrates’s law in light of that council’s increased powers and proactive presence in Athenian politics. As noted at the beginning of this chapter, the second provision of Eukrates’s law focused on the Areopagites’ actions “while the dēmos or the democracy at Athens has been overthrown.” Specifically, each councilor is prohibited from climbing up the hill of Ares, joining others in a meeting of the council, and deliberating about anything whatsoever. If an Areopagite committed any of those acts, both he and his genos would be atimos. This provision is, again, in peculiar contrast to the decree of Demophantos, the model for Eukrates’s legislation: it generically forbade all magistrates (thus including the Areopagites) from executing any of their duties during a coup. Why did Eukrates single out the council of the Areopagos is his tyrant-killing law?
Robert Wallace (1989: 180–83) has nicely summarized and critiqued three answers to that important question. According to the first answer, the intention behind the provision was to prevent the Areopagites from willingly cooperating in a pro-Macedonian coup. The reasoning in support of that conclusion consists of three steps: first, Philip sponsored oligarchic, or “tyrannical,” coups elsewhere (e.g., in Euboia, see chapter 2); second, some Athenians might have suspected that the Areopagites were Macedonian sympathizers since, as noted above, the council, after the battle of Chaironeia, overrode the appointment of the overtly anti-Macedonian Charidemos to the generalship and chose Phokion—a man willing to work with the Macedonians both before and after Chaironeia—in his place; third, Eukrates was apparently ardently anti-Macedonian: according to Lucian (Dem. Enc. 31), the only evidence on Eukrates other than his law, he (along with other prominent anti-Macedonians) was executed on Antipater’s orders after Athens lost the Lamian War (322).
The weakness of the first answer is that the totality of the evidence clearly indicates that the Areopagites were anti-Macedonian and thus would have had no desire to participate in a pro-Macedonian coup. Indeed, the only possible indication of any pro-Macedonian tendencies would be their aforementioned effort to appoint Phokion as general. But Wallace has demonstrated that Phokion was a pragmatic democratic patriot, not a Macedonian sympathizer: a man clearly more suited to deal with Philip than the fiery and overtly anti-Macedonian Charidemos. And, as Wallace points out, the dēmos itself elected Phokion as general in 338, before the battle of Chaironeia. The Areopagites’ post-Chaironeia support of Phokion was thus grounded in prudence, not ideology.
According to the second answer, the Athenians promulgated the law of Eukrates in response to the stipulation that, upon joining the Korinthian League, a polis’s regime (politeia) must not be changed ([Dem.]. 17.10). The apparent intention behind the law was thus to prevent the Areopagos council from participating in a coup that altered the regime in place in Athens at the time that the Athenians swore the oath for the Korinthian League. Like the crowning of prominent Macedonians, the law was part of the “politics of loyalty to Philip.”36
The weakness of the second answer is that it suggests the possibility of Areopagite participation (or acquiescence) in a coup that was both anti-democratic and anti-Macedonian. It is hard to envision a faction to whose members such a coup would appeal. Indeed, the available evidence suggests that Athenian anti-democrats in this period were (to various degrees) “pro-Macedonian.” And even if there were an anti-democratic faction that was not initially pro-Macedonian, its members almost certainly would have to become pro-Macedonian after a coup: the survival of their new regime would almost certainly require outside support—support only Philip could reliably give. In short, overthrowing the Athenian democracy implied support for Macedon.
The third answer does not necessarily situate the law within a specifically Macedonian context. Instead, the promulgation of Eukrates’s law, according this interpretation, represents an attack on Demosthenes by his political enemies, men who were concerned with the aforementioned decree he authored that gave the Areopagos the authority to adjudicate cases.37 The critique of this position is rather straightforward: a much better response would be to repeal Demosthenes’s decree since doing so would both limit the power of the Areopagos and hurt Demosthenes politically.
After rejecting each of the three aforementioned positions, Wallace presented his own explanation for the singling out of the Areopagos council in Eukrates’s law. He suggests that Eukrates was motivated by a general concern over the council’s recent activities. One possible concern—one for which he admits there is no evidence—could have been the council’s conspicuous support for the creation of the new and very powerful office called the Controller of the Finances. The dēmos, he suggests, might have been afraid lest the council collaborate with the holder of that office and thus wield extraordinary executive authority. Wallace also suggests that the people might have concluded that the council’s order to execute the citizens who fled after the battle of Chaironeia, although apparently legal (Lykourg. Leok. 52), was undemocratic. Wallace thus concludes rather generally, “Eukrates’ measure may be regarded as a restatement of Athens’s commitment to its democratic government, and a warning to the Areopagos insofar as any future actions by it might threaten that government.”
The basic weakness in Wallace’s position is that there is no real reason to suppose that the Areopagos council threatened the Athenian democracy. The previous comments have already both noted that the council was staunchly anti-Macedonian and suggested that, were the Athenian democracy overthrown, the new regime would almost certainly be required to be pro-Macedonian. And there is an abundance of evidence demonstrating that the Athenians held the council in high regard.38 Within that general understanding, both of Wallace’s points may be countered. First, there is no evidence for collusion between the council of the Areopagos and the new office of the Controller of the Finances. There is no evidence that there was not such a fear, of course. But surely one is not required to prove a negative in order to refute speculation. Second, although some democrats—indeed, maybe a majority—might have thought that the Areopagites went overboard in ordering the execution of those who fled Athens after Chaironeia, that council was nonetheless punishing individuals for not protecting the democracy.
Cynthia Schwenk (following Homer Thompson) advanced an explanation of the Areopagos provision not discussed by Wallace.39 Noting the greater prestige enjoyed by the council at the time, she suggests that the law was promulgated in order to prevent the council from unwillingly granting legitimacy to a nondemocratic regime. This is certainly a reasonable interpretation. And one may strengthen it by noting that, since the Areopagites served for life, the council could not be stacked (e.g., by Philip) with new members in a superficially democratic manner.40 Consequently, the convening of that council demonstrated political continuity—and thus political legitimacy—in a way that no other organ of government could.
This chap
ter advocates a new interpretation of the Areopagos provision, one that complements Schwenk and Thompson’s. The interpretation is based on this simple observation: the Athenians would have interpreted the Areopagites’ failure to convene as a sign that—at least according to the Areopagites—the democracy had been overthrown or was severely threatened. The democrats, already committed to “killing tyrants,” would then mobilize to defend their regime. Is it reasonable to conclude that that was (one of) Eukrates’s intention?
Two complementary points suggest that the law of Eukrates established the Areopagos council as a “signaling institution.” To begin with, doing so would be consistent with Athenian understanding of the Areopagos’s primary function. It will be recalled, for example, that the Athenians in Eukrates’s day believed that the Areopagos council originally was established to serve as “the guardian of the politeia” (e.g., Ath. Pol. 25.2; cf. 8.4). Also relevant is the fact that, shortly before the promulgation of Eukrates’s law, the dēmos gave the Areopagos the authority to be on the lookout for crimes against the state (apophasis). And finally, the council of the Areopagos was already empowered by the decree of Teisamenos (Andok. Myst. 83–84) to ensure that the magistrates enforced Athens’s laws; and it will be recalled that one aspect of the 337/6 tyrannical threat was the gradual erosion of the rule of law.41
The second complementary point is that the Areopagos council would be an effective “signaling institution.” As we have seen, the case against Antiphon demonstrated the council’s willingness to be on the lookout against pro-Macedonian activity. (And note, again, what Demosthenes wrote about the council: “having become aware of the matter and seeing your inopportune ignorance.”) In addition, meetings of the council were conspicuous, in full view of everybody in the agora, the busiest place in Athens; thus news of the failure of the council to meet would disseminate rapidly.42 Also significant is the fact that the council could not quickly be stacked and then controlled: as mentioned above, all of its members were ex-archons. And finally, only one member’s refusal to attend a meeting of the council might convince other members that they, too, should refuse to attend, lest they be charged with breaking Eukrates’s law. The operative dynamic, that is, would be like the revolutionary bandwagon discussed by Timur Kuran. Unlike rebellion against a regime, however, one would not require a particularly low revolutionary threshold to “go first” (here, not attend a meeting of the council) since there likely was no punishment for incorrectly concluding that the democracy had been overthrown.43
Death to Tyrants! Page 16