Conclusion

i

As mentioned at the beginning of this chapter, there are mainly two theories about the achievement of the law reform. One believes that the reform was a triumph of the rule of law over populism, while the other explains it from the perspective of political struggle,

87 _{Andoc. On the Mysteries, 83- 4. Many details of the procedure are still in dispute, for example, it is not}

sure what material was used to draw up these legal texts, where they were displayed, and whether their display was temporary or permanent. For these technical issues, see Robertson 1990; Sickinger 2004.

88

Dem. 24. 42. Ostwald 1986: 522-3; Robertson 1990: 45; Carawan 2002: 19-21; Andoc. On the Mysteries

87. The translation of Loeb here is misleading; see MacDowell 1962: 128.

89 _{The archive centre was once the Athenian Bouleuterion. Hansen 1990: 71; Sickinger 2004: 101- 2.} 90_{Ath. Pol. 41.2. Rhodes 1981: 483, 488.}

considering the reform a successful manipulation of the laws by the democracy to its own advantage. It is noteworthy that, though having different views on the law reform, both the theories challenge the traditional negative view of Athenian politics in some ways. The Athenian constitutional government as argued in the explanation of the rule of law differs from the tradition view of Athens as a disordered society. The theory of political struggle suggests that Athenian democracy was a cunning master of political manoeuvre rather than a mob of common people as it used to be labelled.

The theory of the rule of law argues that the law reform created a legal system independent to some extent of the Athenian partisan politics. The theory gains strong support from both the Athenian legal texts and the stability of Athenian legal order after the reform. The laws quoted in Andocides’ speech attest the independence of law from the demos or the assembly.91 All the laws had authority over the decrees of the Assembly and the council, and the authority of law came not from the Assembly or the demos, but from the fact that it had been a law in the past or because of the legislation of the council and the elected legislators. The laws had to be written down, so the possibility of the laws being distorted or abused has lessened. It was now more difficult to use the laws against particular political enemies due to their equal appliance to all citizens. Perhaps most importantly, the designs mentioned above for constitutional independence were not only a temporary arrangement; they were observed throughout the fourth century B.C.

The theory of the rule of law gives an explanation for the constitutional stability of Athens since 403, but has problems in its tendency to play down the role of the democracy. The theory tends to emphasise that the function of the rule of law was to

constrain the ruthlessness of the democracy, ignoring the fact that the rule of law was fulfilled and maintained under the direct democracy. Considering the extent of civil participation in Athenian politics, it is hard to believe that the democracy or the demos had nothing positive to do with the establishment of the lawful order.

The theory of political struggle, on the other hand, believes that the democracy successfully exploited the laws to justify its political authority and to control its oligarchic citizens. The theory has the advantage of taking into account the reality of Athenian politics. It correctly pointed out that the Athenian laws were part of democratic politics rather than an independent authority. As we have seen, the democracy was the architect of the law reform, and in most cases the demos participated intensively in the legislative and judicial activities of the laws. Besides, the law reform was, in a sense, competition for the legitimacy of political power. The democracy was overthrown twice by the oligarchs with the pretext of law revision in the reform. There is good reason to believe that the demos, having learnt from its experience, would take particular care of the laws after its hard-won victory in the competition, to make sure that the laws would not contradict again what it thought were its essential interests.

ii

However, the theory of political struggle may miss some important aspects of the law reform. Its instrumental way of thinking that the democracy used the laws mainly as a partisan means tends to deny the intrinsic connection between the democracy and the laws. In fact, there is a possibility that the demos made the laws following its political belief rather than cost-benefit analysis. There should be a conceptual distinction about

the relationship between Athenian democracy and its laws. The laws were democratic in two senses; they promoted demotic interests, or they reflected democratic values. It is the second function of the laws that we might overlook when seeing the law reform from the perspective of political struggle.

Some intrinsic connections between democratic values and the laws may be argued as follows. The democratic belief that all citizens were equal members of the community can be found in one of the important results of the law reform that all laws should be applied to all citizens equally.92 It is also reflected in the principle that all magistrates ruled only by the laws, which means that no citizen should have arbitrary power over others even when he was in charge of the government. There is more evidence for another democratic value of participation. As the democracy restored in 403, Athens went back to the participatory way of life. Ruling officials did not have arbitrary power, but were demanded to rule by the laws. Citizens discussed and decided lawful issues as well as other public affairs. The collection of laws in the state archive and display of legal drafts in public places improved public access to the laws to an unprecedented level. In a sense, the outcome of the law reform embodied the important democratic value that to be a citizen of Athens was to participate in its public affairs.93

iii.

Another important aspect of the law reform that is often neglected by scholars is the demos’ ability to learn and adapt their view of politics. Both the perspective of the rule of law and that of power struggle tend to presume that the Athenian demos was a pursuer

92 _{E.g. Thuc. 2.37.} 93 _{E.g. Thuc. 2.40.}

of self-interests even at the expense of common interest or the interest of others. However, the distinction between demotic and other interests are dynamic rather than static. As shown in the history of Athens at the end of the fifth century B.C., the policies of the second restored democracy regarding the laws and other political issues in 403 was much more generous than the first restored democracy in 410, a difference that suggests a dramatic change in the Athenian demos’ understanding of self-interest in relation to other political groups and the whole community.

The last stage of law reform was obviously dominated by the concern of rebuilding the Athenian community in terms of ethnicity. Athens was defined principally as the exclusive community of Athenians and their offspring. The laws in force were claimed to be the laws of Athenian common ancestors. Athenian oligarchs were not expelled from the community because of their plot against the democracy or other serious crimes while the foreigners could not join the community even when they had sacrificed their lives for the cause of democracy.

This is a great change. Compared with previous stages of law reform, we found that the democracy after 403 continued with the reconciliatory spirit of Patrodeides’ decree in 405 rather than returned to the tyrannical mode of Demophantus’ law in 410. It is of course an exaggeration to claim that the democracy after 403 transformed itself from a partisan regime to an ideal constitutional government, whose only concern was the common good of the whole community. However, we can at least argue that the democracy had learnt to put its partisan interests into the broader context of the whole community. The demos and the democrats, though the predominant part of the Athenian community, were still

less than the whole community which also contained many oligarchic citizens. A

flourishing Athens relied on the cooperation of both the democrats and the non-democrats. The democracy would have realized this lesson to its own cost. As we have seen, after all its military and political disasters in the past years, the democracy tried hard to strike a balance between democratic interests and communal harmony, taking into account the non-democratic elements of the community.

In other words, we may say that the democracy after 403 learned the political art of compromise. Some results of the law reform could be interpreted from this perspective. As we have seen in this chapter, ‘the ancestral laws’ were the dominant principle of Athenian political order. To alleviate suspicion on all sides, the ancestral laws which would be valid thereafter should be clear and certain. Therefore, the Athenians announced that only the laws enacted in specific times would be valid and that all the valid laws must be written down. A state Archive at Metroon collected all the valid laws and other documents for public reference. The predictability of the future to all citizens was further strengthened by the magistrates’ duty to apply only the written laws, the general appliance of the laws, and the laws’ superiority over the decrees of the Assembly and the council. Furthermore, the legislative procedure in the Teisamenus’ decree could be considered a compromise of the democrats and the oligarchs. Since the superiority of law to decree had been established, the legislative power would be the most fiercely competed target. Monopoly of the legislative power by any particular political group would not be an likely solution. This decree provided an acceptable arrangement by dividing the legislative process into two stages and distributing the legislative power among three institutions. The assembly now lost all its legislative power. Of the three

legislative institutions, only the council was appointed by the democratic method of lottery, the other two groups of legislators being elected either by the council or by the demes. The election of legislators did resemble the procedure of oligarchic coups in 411/10 and 404/3. However, while the Four Hundred and the Thirty had become tyrannical by grasping the complete executive and legislative powers at the same time, the two legislative groups elected by the Teisamenus’ decree had only part of the legislative power respectively, and held no executive power at all. Their power was further limited because they were ad hoc rather than standing committees.