University of Sydney
Faculty of Arts and Social Sciences
School of Philosophical and Historical Inquiry
Human Rights and Fundamental Freedoms in Athenian Oratory
A thesis submitted to fulfil the requirements for the degree of Master of Philosophy
Lucian Tan
SID: 309 251 974
2021
Human Rights and Fundamental Freedoms in Athenian Oratory Statement of Originality: This is to certify that to the best of my knowledge, the content of this thesis is my own work. This thesis has not been submitted for any degree or other purposes.
I certify that the intellectual content of this thesis is the product of my own work and that all the assistance received in preparing this thesis and sources have been acknowledged.
Lucian Tan 22 February 2021
Acknowledgements: This thesis would not have been possible without the incredible guidance and support of my supervisor, Professor Julia Kindt, to whom I will be eternally grateful for not just supporting this thesis, but also for inspiring me to pursue ancient history in the first instance. I would also like to acknowledge Dr. Eleanor Cowan, whose advice on the later stages of this work was invaluable. Finally, I wish to express my gratitude to my family, friends and colleagues for all they’ve done to support me and for their encouragement.
i Human Rights and Fundamental Freedoms in Athenian Oratory Abstract
Human rights and fundamental freedoms are entitlements thought to be inherent to humans, shared equally by all and thought to exist beyond the authority of any human institution or structure. They are critical part of modern social and political discourse, describing the basic social conditions needed for human dignity, appealing to a shared understanding of both what it means to be a human, and what humanity ought to aspire to. However, the extent to which the language and discourse of human rights, fundamental freedoms and human dignity was utilised in Classical Athens remains unclear. The focus for human rights scholarship has been on modern formulations of human rights, while scholarship on Classical Athens has focussed attention primarily on human institutions and structures such as Athenian citizenship, to the exclusion of concepts of shared humanity and fundamental freedoms. This thesis applies modern human rights theory to Classical Athenian oratory to identify rights claims justified by language that describes such rights as inherent to the human condition and fundamental to human society. The language used in oratory is an important component of public discourse in Classical Athens, particularly in the way it sought to persuade listeners. Six rights and freedoms which invoke human rights justifications are identified: free and equal speech; personal security; self-defence, treatment according to law; fulfilment of oath and promised action; and possession of property. These rights and freedoms are shown to represent both discrete fundamental entitlements, but also a collective ideal of human freedom and equality. Human dignity in Athenian oratory is presented as life within a human society that enables each individual to live their best life, and the orators cast Athens as the benchmark in this regard. As such, these human rights were framed communally, so that the rights held by individuals worked to support the polis, rather than as a limit on state power. The framing of human dignity as a social structure rather than an individual endowment is also shown to raise issues in relation to entrenching the discrimination within the polis, which this thesis touches upon but which ultimately warrants further exploration.
ii Human Rights and Fundamental Freedoms in Athenian Oratory Table of Contents
Introduction ...... 1 Source Material ...... 7
1 Human Rights Frameworks and Thresholds ...... 11 1.1 Human Rights Purposes ...... 11 1.2 Inherency, Equality and Inalienability ...... 14 1.3 Enforcement ...... 17 1.4 Conclusion ...... 18
2 Human Rights Claims in Classical Athenian Oratory ...... 20 2.1 Free and Frank Speech ...... 20 2.2 Protection from Assaults and Homicide ...... 28 2.3 Self-Defence ...... 42 2.4 Rule of Law and Access to Fair Trial ...... 47 2.5 Claiming Promised Action ...... 67 2.6 Possession and Use of Property ...... 77 2.7 Conclusion ...... 90
3 Human Dignity in Classical Athenian Oratory ...... 91 3.1 Familiarities: Freedom and Equality...... 92 3.2 Divergences: Individual Rights for Community Benefit ...... 98
Conclusion: Limited Human Dignity and Systemic Inequity ...... 106
Bibliography ...... 110 Translations Used ...... 110 Secondary Sources ...... 111
iii Human Rights and Fundamental Freedoms in Athenian Oratory Introduction
Introduction
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness.”1
By the simple fact that we are humans, we are said to hold fundamental rights and freedoms thought to describe a shared understanding of what is necessary for all humans to live lives of dignity. These are beliefs which have become deeply embedded into modern political and social life. Systems of government and social organisation have been shaped and constructed around human rights, including a detailed international framework governing global, regional and domestic politics. They have driven and shaped social and political activism, strengthening existing movements and birthing others and have even changed social narratives, shaping the way in which people interact with each other by setting standards for how we engage with our fellow humans respectfully and appropriately.2
It is tempting to see human rights as a distinctly modern construct. One need only look at the clearly discriminatory practices throughout history to reach such a conclusion. After all, it is the discourse of human rights that underpins modern statements which reject historic practices such as slavery and systematic disempowerment of whole groups of people such as women, people of colour or LGBTQI+ individuals. Our recognition of the fundamental dignity of humanity and the formal institutional recognition of human rights and fundamental freedoms are often used as indicia of the upwards trajectory of humankind as part of an enlightenment narrative, an orthodox view that has treated modern formulations of human rights as the benchmark for the recognition of human rights.3 This narrative implies existence of human rights is a by-product of the formal political, legal and quasi-legal institutions in modern society, such as international treaties and modern liberal democracy.4
1 Declaration of Independence (US 1776). https://www.archives.gov/founding-docs/declaration- transcript (accessed 15 February 2021). 2 Chris Brown, "Universal Human Rights? An Analysis of the ‘Human-Rights Culture’ and Its Critics," in Universal Human Rights?, ed. Robert G. Patman (Basingstoke: Macmillan, 2000), 31-32; Derrick Darby, "Unnatural Rights," Canadian Journal of Philosophy 31, no. 1 (2003): 33; Michael Freeman, Human Rights: An Interdisciplinary Approach (Cambridge: Polity Press, 2002), 32-36, 51; Johannes Morsink, The Universal Delaration of Human Rights: Origins, Drafting and Intent (Philadelphia: University of Pennsylvania Press, 1999), xi-xii, 20; Ukri Soirila, "Humanity," in Concepts for International Law: Contributions to Disciplinary Thought, ed. Jean d’Aspremont and Sahib Singh (Cheltenham: Edward Elgar Publishing, 2019), 363. 3 Eva Brems, Human Rights: Universality and Diversity (The Hague: Martinus Nijhoff Publishers, 2001), 7, 15; Lin Chun, "Human Rights and Democracy: The Case for Decoupling," International Journal of Human Rights 5, no. 3 (2001): 21-22; Freeman, Human Rights, 15; Makau Mutua, Human Rights: A Political and Cultural Critique (Philadelphia: University of Pennsylvania Press, 2002), 15; Kirsten Sellars, The Rise and Rise of Human Rights (Stroud: Sutton Publishing Ltd, 2002). 4 Blair Campbell, "Constitutionalism, Rights and Religion: The Athenian Example," History of Political Thought 7, no. 2 (1986): 239; Jack Donnelly, "The Relative Universality of Human Rights," Human Rights Quarterly 29, no. 2 (2007): 284-85; Emilie Hafner-Burton, Making Human Rights a Reality (New Jersey: Princeton University Press, 2013), 45-46.
1 Human Rights and Fundamental Freedoms in Athenian Oratory Introduction
In such a view, historical analysis is at best as mere curiosity. Historic forms of human rights and fundamental freedoms are presented as a primitive form in a linear evolutionary process towards modern human rights frameworks. However, that underestimates the significant social force of human rights as an idea that sits outside of those specific structures. What then do we really mean when we speak of human rights? Put simply, human rights and fundamental freedoms are entitlements thought to be inherent to all humans, shared equally by all and thought to exist beyond the authority of any human institution or structure. On one hand, this could be interpreted to refer to the formal rights and freedoms outlined in foundational documents such as the Universal Declaration of Human Rights (hereafter, UDHR). On the other hand, human rights are also more than a collection of designated entitlements or rights, being greater than the sum of their parts. These rights and freedoms are entitlements so basic they are essential to any kind of human existence, so they collectively articulate a minimum standard for human dignity in two ways. They first describe a threshold below which life is not human, and then a second threshold below which life is not good. These basic standards are in addition to the specific entitlements of the rights themselves. As Benn puts it:
“Human rights, in short, are statements of basic needs or interests. They are politically significant as grounds of protest and justification for reforming policies. They differ from appeals to benevolence and charity in that they invoke ideals like justice and equality. A man with a right has no reason to be grateful to benefactors; he has grounds for grievance when it is intolerable that a human being should fall – not in the way that cruelty to an animal is not to be tolerated, but rather that human deprivations affront some ideal conception of what a human life ought to be like, a conception of human excellence.”5
Human rights then are a layered concept, taking on a social and discursive role – the language of human rights is a guideline for individual and state behaviour in accordance with universal ethical standards.6 In contrast to the orthodox view that human rights are a uniquely modern construct, some human rights scholarship has seen human rights as principally a symbolic and discursive construct, able to be identified in beliefs of the shared, fundamental dignity of humanity across throughout major civilizations, religions and philosophies.7 This view argues human rights and fundamental freedoms could be identified in different human societies by shared theoretical frameworks that were not tied to specific entitlements or freedoms – that is to say, entitlements designated as human rights or fundamental freedoms were culturally specific, reflecting the unique understandings of that society as to what makes up human dignity.8 Instead of a single universal discourse of
5 Stanley I. Benn, "Rights," in The Encyclopedia of Philosophy, ed. Paul Edwards (New York: Macmillan Company & The Free Press, 1967), 198-99. See also Freeman, Human Rights, 65-68. 6 Jean H. Quatert, Advocating Dignity: Human Rights Mobilizations in Global Politics (Philadelphia: University of Pennsylvania Press, 2009), 4. In modern international law, human rights as discourse has seen varied usage including limitations on conduct during war, aggregation of entitlements of individuals to limit state power, establishment of a human community, to exclude enemies and found a common project; and common interests that transcend biology. Soirila, "Humanity," 368-69. 7 See further Arvind Sharma, Are Human Rights Western? A Contribution to the Dialogue of Civilizations (New Delhi: Oxford University Press, 2006). 8 Adamantia Pollis and Peter Schwab, "Human Rights: A Western Construct with Limited Applicability," in Human Rights: Cultural and Ideological Perspectives, ed. Adamantia Pollis and Peter
2 Human Rights and Fundamental Freedoms in Athenian Oratory Introduction human rights that gradually emerged into the modern human rights framework, such approaches conceptualise varied and different articulations of human rights discourses, shaped and constructed by their contexts.9
For the historian, applying a comparative framework and lens of human rights theory can assist in developing a greater understanding of the historical peculiarities of past societies and the way in which they saw humanity and the conditions of human existence.10 That is the approach of this thesis, which applies modern human rights theory to Classical Athenian oratory to better understand the use of human rights and fundamental freedoms in two ways. First, it looks to identify whether there were any claims that could potentially be recognised as human rights or fundamental freedoms. Did the Athenian orators seek to claim fundamental freedoms in a way that made reference to their humanity in their efforts to persuade their audiences? Secondly, what did these rights as expressed in Athenian oratory collectively represent in terms of views on human dignity? Did Athenian orators seek to invoke such ideals as a persuasive tactic, and if so, what were the conditions of Athenian human dignity?
The focus on oratory in this thesis is not arbitrary. Oratory forms a significant part of the social and political discourse of Classical Athens that we have available as evidence. It is also a unique form of discourse, which is seen to be much closer to general social beliefs of Athens. Oratory was by necessity designed to appeal to common views of what was fair, just or correct. Speeches were delivered to audiences made up of a cross-section of the community (in contrast to panels of technical or legal experts). Therefore, orators had an interest in engaging with the views of the community as a whole in order to persuade listeners. Winning the votes of a jury or the Assembly required support from a majority of the voting audience, and display pieces were used to showcase the skill of the orator and attracting additional clients.
Of course, those audiences were not homogenous.11 As a whole, Athenian oratory may provide a number of contradictory views. Legal and political speeches were delivered in primarily adversarial contests, which meant decisions were an arbitration of two argued positions, rather than the mediation of a conflict to reach a 'good' result. Arguments advanced may therefore not be truthful assertions or pure reflections, but rather reflect a
Schwab (New York: Praeger, 1979), 15. See also Brems, Human Rights; Stephen James, Universal Human Rights: Origins and Development (New York: LFB Scholarly Publishing, 2007); Paul Lauren, The Evolution of International Human Rights (Philadelphia: University of Pennsylvania Press, 2003); Bertrand Ramcharan, "The Universality of Human Rights," International Commission of Jurists Review 58-59 (1997); Richard Rorty, "Human Rights, Rationality and Sentimentality," in Truth and Progress: Philosophical Papers (Cambridge: Cambridge University Press, 1998); Wolfgang Schmale, Human Rights and Cultural Diversity (Goldbach: Keip Publishing, 1993). 9 Samuel Moyn, "Plural Cosmopolitanisms and the Origins of Human Rights," in The Meanings of Rights: The Philosophy and Social Theory of Human Rights, ed. Costas Douzinas and C. A. Gearty (Cambridge: Cambridge University Press, 2014), 198-99; Soirila, "Humanity," 362. 10 For example, Bauman takes this approach in seeking to understand human rights in Ancient Rome. This thesis draws on that approach. Richard A. Bauman, Human Rights in Ancient Rome (London: Routledge, 2000), 2-7. 11 Josiah Ober, "Quasi-Rights: Participatory Citizenship and Negative Liberties in Democratic Athens," Social Philosophy and Policy 17, no. 1 (2000): 31.
3 Human Rights and Fundamental Freedoms in Athenian Oratory Introduction specific angle to enable a litigant victory over their opponent.12 Nevertheless, contradictions are useful for highlighting how ideas in Athenian oratory were not always settled or consistent, and such there was potential for multiple viewpoints. As Ober notes, “public oratory, especially in assembly and lawcourt provided fora in which elite speakers were judged by a mass audience”, such that speeches can be seen as “a site for negotiation over values, interests and aspirations by ordinary and elite Athenians”.13 Essentially, “the orators told audiences what they wanted to hear”, at least according to the views of the speaker.14 The presentation and framing of rights and freedoms by the orators is therefore of specific interest in how these rights could be deployed to persuade listeners and win out in a contest against competing ideas.
Some existing Classical scholarship has engaged with human rights through analysis of the historical development of singular rights based on modern human rights.15 Typically this kind of analysis seeks to undertake a content-matching exercise, drawing out direct parallels between modern rights and allegedly equivalent Athenian concepts. The danger in such an approach is the implication that the modern right is the ‘true’ expression, and Athenian parallels represent more primitive or rudimentary forms. These approaches may not be able to account for historical peculiarities, beyond seeing them as a shortfall vis a vis modern human rights. Rarely are the human rights and fundamental freedoms analysed by these scholars conceptualised in the context of a broader framework of fundamental entitlements and how these together may articulate Classical Athenian ideas around human existence.
Additionally, where human rights or related ideas have been explored, there has been a preference for analysis through ancient philosophy.16 Philosophy presents a very different
12 Marius Lavency, "The Written Plea of the Logographer," in The Attic Orators, ed. Edwin Carawan (Oxford: Oxford University Press, 2007), 13; Stephen Todd, The Shape of Athenian Law (Oxford: Oxford University Press, 1993), 36; Stephen Usher, Greek Oratory: Tradition and Originality (Oxford: Oxford University Press, 1999), 22-26. 13 Josiah Ober, "Ability and Education: The Power of Persuasion," in The Attic Orators, ed. Edwin Carawan (Oxford: Oxford University Press, 2007), 272. 14 Peter Liddel, Civic Obligation and Individual Liberty in Classical Athens (Oxford: Oxford University Press, 2007), 89. 15 There is a particularly strong trend for this approach in relation to rights such as free speech, freedom or the rule of law, all of which are in modern contexts seen to be particularly fundamental freedoms. For example: Konstantinos A. Kapparis, Athenian Law and Society (New York: Routledge, 2019), Chapter 1; Martin Ostwald, "Shares and Rights: "Citizenship" Greek Style and American Style," in Dēmokratia: A Conversation on Democracies, Ancient and Modern, ed. Josiah Ober and Charles Hedrick (Princeton: Princeton University Press, 1996); Keith Werhan, "The Classical Athenian Ancestry of American Freedom of Speech," The Supreme Court Review, no. 1 (2008); Ellen Meiksins Wood, "Demos Versus "We, the People": Freedom and Democracy Ancient and Modern," in Demokratia: A Conversation on Democracies, Ancient and Modern, ed. Josiah Ober and Charles Hedrick (Princeton: Princeton University Press, 1996). 16 For example, Baldry’s analysis of the unity of mankind in Greek thought is almost exclusively based on the works of philosophers, analysed chronologically. H. C. Baldry, The Unity of Mankind in Greek Thought (Cambridge: Cambridge University Press, 1965). A similar approach is taken by Saxonhouse in their analysis of free speech in Athens. Arlene W. Saxonhouse, Free Speech and Democracy in Ancient Athens (New York: Cambridge University Press, 2006). The prominence of Greek philosophy is also recognised in human rights scholarship – for example, see David Boucher, Political Theories of International Rights (New York: Oxford University Press, 1998), 32-36; Brown, "Universal Human
4 Human Rights and Fundamental Freedoms in Athenian Oratory Introduction lens from oratory, as it does not seek to appeal to general social attitudes or beliefs, but instead occupies a space separate from historical or empirical reality to construct ideal societies, systems and structures as if starting from a blank slate.17 Moreover, Classical Athenian philosophy was very rarely reflective of popular thought or belief.18 The preference for philosophic analysis fits within the broader narrative of human rights as a product of modern enlightenment. Focusing on the views of specific philosophers, which were acknowledged to be marginalised by wider Athenian society, allows for a view that any ancient thought around human rights was contained to specific thinkers and not widely understood.
This thesis takes a different approach on each ground. Firstly, this thesis applies a theoretical framework to assess rights claims and their justifications within the sources, instead of seeking parallels in the substance of a right.19 The analysis is concerned with whether, regardless of content, there are rights claims or ideas justified in a manner analogous to modern human rights, namely through linkages to inherency, equality and inalienability. It ultimately doesn’t matter whether the content of the right is a parallel to a modern human right, what matters is the way in which Athenian oratory connected rights to human status and ideal human existence. Secondly, the focus on oratory also diverges from existing scholarship and the focus on philosophy. This thesis presents a complementary inquiry into issues of human rights, fundamental freedom and human dignity through a discourse more widely embedded into the everyday social and political life of Classical Athens.
Existing Classical and human rights scholarship has also rejected outright the existence of human rights and fundamental freedoms. These views are briefly mentioned here, noting this thesis as a whole presents a direct challenge to such approaches. Firstly, the existence or importance of human rights is denied through the reference to repugnant or contradictory action.20 It is widely noted Athenian democracy was a system that entrenched and built upon power imbalances in which women, non-citizens and slaves were second class at best and the subject of significant oppression at worst. Athens, for all its talk of equality and participation, remained a deeply patriarchal society of slaveowner citizens. Take for example, in relation to the status of women in Classical Athens:
Rights?," 35-36; James, Universal Human Rights, 9; Lauren, Evolution, 12; Sharma, Are Human Rights Western?, 43; Soirila, "Humanity," 362. 17 For example, in Plato’s Laws, Cleinias suggests to the Athenian Stranger that they should proceed “as bricklayers do…we can gather our materials in no particular order…we work at our convenience and spend part of the time preparing our material, part of the time fitting it together”, which the Athenian agrees will yield “the most realistic way to conduct our review of legislation”. Pl. Laws 858b-c 18 Campbell, "Constitutionalism," 269; E. R. Dodds, "The Religion of the Ordinary Man in Classical Greece," in The Ancient Concept of Progress and Other Essays on Greek Literature and Belief, ed. E. R. Dodds (Oxford: Oxford University Press, 1973), 143; Kenneth Dover, Greek Popular Morality in the Time of Plato and Aristotle (Oxford: Basil Blackwell, 1974), 22-46. 19 An approach which is similar to this thesis is adopted by Josiah Ober in identifying how participatory democracy in Athens led to the development of ‘negative liberties, which limited coercion and were preconditions for personal autonomy and liberty. Ober, "Quasi-Rights." 20 For example, Donnelly, "Relative Universality," 286; Amartya Sen, "Rights, Laws and Language," Oxford Journal of Legal Studies 31, no. 3 (2011): 450-51.
5 Human Rights and Fundamental Freedoms in Athenian Oratory Introduction
“…the ancient Greeks came to conceptualize the notion of natural norms, but not that of universal human rights. The failure to think inclusively, as a matter of principle, set the stage for a selective limitation of individual entitlements. One cannot even begin to make a compelling argument in favor of women’s equality without the explicit, or even implicit, claim to the access of all human beings to freedom and parity – including the equally shared liberty to participate in ruling and being ruled. The actual existence of slavery, the exclusion of women from political activity, be it office or advice or vote, their legal minority: these positive facts, largely unchallenged in classical antiquity, presuppose and concur to ratify the idea that human beings insofar as they happen to be dissimilar, can also be held unequal.”21
However, just because there were norms, conventions and institutions we would consider intuitively to run contrary to the existence of human rights does not necessarily mean the belief in or ideas behind such fundamental rights claims was also not present. Even in the absence of practical implementation, discourses and ideas around human rights have independent rhetorical force.22 This thesis is concerned primarily with the way in which human rights and fundamental freedoms were expressed as part of the discourse of Athenian oratory. This is an ideal, which means there is a potential gap between what Athenian oratory presented, and the actual practices of Athenian society. While not a central focus of this thesis, the gap between practice and promise is to some degree unavoidable, and so matters of practical implementation of such rights are also considered briefly throughout.
Secondly, a related school of thought posits the clear discrimination and stratification between classes suggests the rights enjoyed by Athenians were civic or legal rights (i.e. rights which accrued from social institutions and the law, contained to Athens), not human rights (i.e. rights which accrued on the basis of humanity, rather than any one institution).23 This thesis will show while class and citizenship remained important elements in discourse, and indeed to some extent did undermine the application of a general human justification for rights, there were still rights that, as framed in Athenian oratory, did invoke shared principles of humanity alongside reference to class structures.
The focus on citizenship and the role of civic structures is also seen in the third approach to rejecting human rights in Classical Athens. It is argued the Athenian polis had near unlimited power to act in the communal interest and intervene in the lives of individuals.24 Even if entitlements were thought to be fundamental and justified on the basis of humanity, they were so weak as to be meaningless because they could be abrogated at the discretion of the
21 Guila Sissa, "Gendered Politics, or the Self Praise of the Andres Agathoi," in A Companion to Greek and Roman Political Thought, ed. Ryan K. Balot (New York: Wiley, 2009), 146. 22 Brown, "Universal Human Rights?," 32; Robin Osborne, "Law in Action in Classical Athens," The Journal of Hellenic Studies 105 (1985): 42-43; Sellars, Rise and Rise, x; Soirila, "Humanity," 368-69. 23 Baldry, Unity of Mankind, 33; Cynthia Patterson, "Athenian Citizenship Law," in The Cambridge Companion to Ancient Greek Law, ed. Michael Gagarin and David Cohen (New York: Cambridge University Press, 2005), 267-68; Susan Ford Wiltshire, Greece, Rome and the Bill of Rights (Norman: University of Oklahoma Press, 1992), 104. 24 Campbell, "Constitutionalism," 239; Robert W. Wallace, "Law, Freedom and the Concept of Citizens' Rights," in Dēmokratia: A Conversation on Democracies, Ancient and Modern, ed. Josiah Ober and Charles Hedrick (Princeton: Princeton University Press, 1996), 107-08.
6 Human Rights and Fundamental Freedoms in Athenian Oratory Introduction polis. However, this thesis will show such a conclusion is the result of a misapprehension that human rights are necessarily individual entitlements that push back on government interference. This is a distinctly modern construction of human rights. Instead, this thesis argues that in Athenian oratory, the conception of human dignity was founded on community interest and communal good, to the extent that human rights and community interest were seen to be in direct alignment.
The structure of this thesis is as follows. Chapter 1 establishes thresholds for identifying human rights to be applied to the source material, specifically in relation to a right’s purpose, its justification as inherent and equal, and its inalienability through authority drawn from non- institutional sources. Chapter 2 applies these thresholds to Athenian oratory to outline six key entitlements and show they are justified in in line with thresholds for human rights and fundamental freedoms. Conflicting statements in oratory and in contradictory social practices are also touched on for each right. Chapter 3 assesses these rights collectively to draw out elements of Athenian human dignity. Some are similar, such as the emphasis on human ideals of freedom and equality. Some are different, such as the emphasis of human dignity and ideal human life as a communal rather than individual good. The thesis concludes with a brief consideration of some of the divergence between the ideals of human rights and freedoms claimed by orators on one hand, and their quasi-exclusive enjoyment by citizen males on the other, as a potential ground for further investigation.
Before proceeding with the body of the thesis, the remainder of the Introduction will make brief additional comments about the source material.
Source Material
Surviving Athenian oratory falls into a number of different genres. The greatest proportion are forensic speeches, relating to court cases and legal proceedings. Forensic oratory is uniquely placed to sit at the intersection of general moral belief and formalised structures and institutions, namely the law. The language and framing used by orators is a negotiation of these competing normative frameworks. In most cultures and communities, the law is a central institution of rules regulating social interaction, and so legal discourses can provide commentary on what social relations and beliefs, conflict resolution and the role of the state.25
The focus on social elements of the law is heightened in Athenian forensic oratory, which operated in a legal system less concerned with technical legal argumentation around statutory interpretation or precedent than with an integrated social consideration of conflicts.
25 J. A. Crook, "Legal History and General History," Bulletin of the Institute of Classical Studies 41 (1996); Koen De Feyter, "Law Meets Sociology in Human Rights," Development and Society 40, no. 1 (2001): 54; Samuel Donnelly, "Reflecting on the Rule of Law: Its Reciprocal Relation with Rights, Legitimacy and Other Concepts and Institutions," The Annals of the American Academy of Political and Social Science 603 (2006): 41; Jose Marina, "Genealogy of Morality and Law," Ethical Theory and Moral Practice 3, no. 3 (2000): 310; Julie Novkov, "Legal Archaeology," Political Research Quarterly 64, no. 2 (2011): 358-59; Josiah Ober, "Law and Political Theory," in The Cambridge Companion to Ancient Greek Law, ed. Michael Gagarin and David Cohen (New York: Cambridge University Press, 2005), 394; Joseph Raz, "Legal Rights," Oxford Journal of Legal Studies 4, no. 1 (1984): 6-7; Todd, The Shape of Athenian Law, 10, 36.
7 Human Rights and Fundamental Freedoms in Athenian Oratory Introduction
The core Athenian jurisprudential challenge is to ask not ‘what is the law and how should it be applied?’, but ‘what is justice?’, a question involving both social and divine dimensions.26 In this view, the law is an institution more readily connected to general social attitudes and norms (in contrast to modern systems).27 Jurors were frequently urged to consider and decide on factors such as community welfare, individual standing and character, and broader socio-political impact in addition to the law itself, based purely on the cases before them.28 They were essentially making a determination as to what was socially acceptable action and what was not (and any subsequent reparations or punitive justice to follow), rather than an assessment of whether or not a legal code had been broken.29 This blended form of decision making represents an arena in which rights and entitlements were likely to be in dispute, and so where one might expect to see claims to fundamental rights and freedoms.
Moreover, in a legal system where the principal actors are private individuals, the court room was a significant arena for political rivals to attack and undermine each other through the application of the law – the personal, the social and the political were all deeply intertwined within the Athenian court system.30 This demonstrates the purpose of forensic oratory was to present a blended argument based on selective use of law together with appeal to behavioural codes and social mores in line which what would best support their case. For the historian, these speeches represent a unique form of social discourse that present ideas and attitudes through the lens of persuasion and contest between actual Athenians, their everyday concerns and their prevailing moral culture.31
Deliberative oratory and other political works form the second largest body of work from the Athenian orators and are equally enlightening. Political speeches sought to persuade the assembly or a broader audience to take or not take a particular course of action. These speeches were also delivered in a contest of ideas – for example, Demosthenes
26 David Cohen, Law, Violence and Community in Classical Athens (Cambridge: Cambridge University Press, 1995), 190-92; Ober, "Law and Political Theory," 394. 27 David Cohen, "Greek Law: Problems and Methods," Zeitschrift der Savigny-Stiftung 119 (1989): 101. 28 Todd, The Shape of Athenian Law, 67-68; Cohen, Law, Violence and Community in Classical Athens, 61, 87-88; Harvey Yunis, "The Rhetoric of Law in Fourth-Century Athens," in The Cambridge Companion to Ancient Greek Law, ed. Michael Gagarin and David Cohen (New York: Cambridge University Press, 2005), 196. This also is reflected in the concerns relating to all involved in the trial process such as witnesses. Their standing is also frequently remarked on and carries similar importance. S. C. Humphreys, "Social Relations on Stage: Witnesses in Classical Athens," in The Attic Orators, ed. Edwin Carawan (Oxford: Oxford University Press, 2007), 158-59. 29 Danielle Allen, The World of Prometheus: The Politics of Punishing in Democratic Athens (Princeton: Princeton University Press, 2000), 172; Christopher Carey, "Legal Space in Classical Athens," Greece & Rome 41, no. 2 (1994): 176-78; Lavency, "The Written Plea of the Logographer," 17. This extends to the statutes and laws themselves, which are seen less as a collection of external checks and balances than the collective wisdom of the people. Josiah Ober, "Ability and Education: The Power of Persuasion," ibid., ed. Edwin Carawan, 282. See for example Dem. 23.22-62 as an instance of treatment of statute as reflective of established community standards. 30 Dover, Greek Popular Morality, 13-14, 53-58; Humphreys, "Social Relations on Stage," 150-52; Ober, "Law and Political Theory," 394, 408; Todd, The Shape of Athenian Law, 67-68, 153-55, 58. 31 Note that this may not be truly representative of the ordinary person, given that only the relatively well-off would have been able to afford the services of a speechwriter. The Shape of Athenian Law, 8.
8 Human Rights and Fundamental Freedoms in Athenian Oratory Introduction characterises his deliberative speeches as a contest of patriotism when debating policy before the people.32 In this way, similar to forensic oratory, deliberative oratory sought to play on the intuitions of their audiences. The appeals of the orators in political oratory can at least be inferred as a reflection of what the orator felt would be likely to be persuasive to general Athenian society, even if they were not ultimately successful.
However, where forensic oratory deals with single cases or disputes, political oratory often deploys moral statements or value judgements on a macro-social scale. They also often have as their focus the nature of civic obligation and the relationship of the individual to the polis and to the community of their peers.33 In these statements we can identify claims to human rights and fundamental values. Exhortations are made in relation to the direction of the polis community at large, and even at times to a wider audience of multiple poleis or an unspecified general public. Deliberative oratory then provides a unique insight into the types of appeals felt to be persuasive to not just Athenians, just also to wider audiences that were likely to include other Greek poleis and even non-Greeks. This wider lens is particularly important when considering human rights in the context of an underlying standard of entitlements shared between all of humanity and an idealised human dignity.
Finally, in smaller numbers we have epidictic oratory and other related publications that may not have been delivered as speeches (e.g. show pieces or rhetorical exercises). Although there are more limited examples, these works are also important part of the discourse of oratory and its representation of what orators considered to be underlying social norms, attitudes and beliefs. These speeches were most commonly delivered as set pieces with clear genre conventions.34 Epideictic oratory principally seeks to invoke either praise or blame in relation to a specific subject such as the polis or a specific individual. For example, funeral orations (the most common example) seek to praise the dead for their service in war, and through them to laud the values, culture and society of Athens. In the works of Isocrates we also have orations concerned with famous figures, where the aim of the speaker is to describe them and their life, and explain why they are worthy of praise.35 While epideictic oratory does not attach to a particular decision to be made, or a desirable outcome, what such oratory aims to do is invite agreement from the audience with the assessment made by the speaker. While this limits their direct application to the individualised conflict and contest of ideas found in forensic and political oratory, they instead reflect a self-conception of the Athenian polis. The tropes used in this type of oratory represent a heightened version of core social conventions, including moral convictions.36 There was also a sense these speeches were educative and affirming of established social norms.37
Taken together, the development and expression or otherwise of human rights and fundamental freedoms in all the different forms of oratory is a fertile area for further investigation as to how human dignity and ideal human existence was presented in different types of Athenian social discourse beyond philosophy. Where relevant, supporting sources
32 Dem. 18.320. 33 Liddel, Civic Obligation and Individual Liberty, 86-87. 34 Usher, Greek Oratory, 350. 35 See for example Isoc. 9 (Evagoras), 10 (Helen), 11 (Busiris). 36 Liddel, Civic Obligation and Individual Liberty, 87. 37 This is particularly true of Isocrates, whose speeches explicitly highlight the educative function of his form of oratory as a recurrent theme. Usher, Greek Oratory, 297-98.
9 Human Rights and Fundamental Freedoms in Athenian Oratory Introduction across drama, history and even philosophy are also mentioned to compare and contrast against the articulation of human rights within oratory. Before turning to the substance of such rights, the following chapter first considers the appropriate thresholds for the identification of human rights within oratory.
10 Human Rights and Fundamental Freedoms in Athenian Oratory Chapter 1
1 Human Rights Frameworks and Thresholds
As noted in the Introduction, this thesis diverges from previous scholarship by focussing on how entitlements claimed in Athens were justified, rather than their content, to determine whether or not they were framed in a manner recognisable as a human right or fundamental freedom. A necessary first step this thesis then is development of thresholds through which we can identify and assess which rights expressed in oratory may have been justified in a manner analogous to human rights. That is the work of this chapter, which draws on modern human rights theory to outline thresholds and indicators for human rights and fundamental freedoms.
The application of modern theoretical frameworks is not without risk, however, and requires caution. Any attempt to draw ancient analogues to modern conceptions carries a risk of anachronism. As Carey notes, this is “a familiar problem for those studying any aspect of the past…[it] is both familiar and alien to us. It converges and diverges from our own experience. The problem for the scholar is the familiar one of negotiating distance.”1 In using a human rights lens to further our understanding of Athenian social norms and beliefs, it is important to acknowledge the necessary differences in context, such that direct analogy may be inappropriate.2 A focus too heavily weighted on applying strictly modern standards would be anachronistic and unhelpful. However, a conceptual framework may be transhistorical and independent of content, provided it retains the ability to acknowledge the interplay of cultural and social forces resulting in a context specific manifestation.3
With such limitations in mind, this chapter which touches on three thresholds that can be used to identify human rights in Athenian oratory. First, the purposes and functions of human rights are considered. Second, thresholds around justification are explored, noting such rights by their nature are inherent to the human condition and to be held equally by all. Third, the question of enforceability is considered, noting practical or actual enforcement is not required for human rights and fundamental freedoms.
1.1 Human Rights Purposes
The first threshold relates to content and purpose. As a collective category, human rights have a shared purpose or focus, which is to articulate basic needs or interests that ought to be guaranteed to meet an acceptable conception of what a society considers human life ought to be like at a minimum.4 Here I follow the approach of Bauman in categorising these
1 Carey, "Legal Space," 184. 2 For example, even though Athens had a democratic system, its fundamental conception of participatory democracy was far removed from modern constitutional democracy and associated concepts such as liberty. While there were some similarities in the way in which both celebrate equality and freedom, there are key differences in prioritization and beliefs around which elements were central or instrumental to the existence of such concepts. Matt Edge, "Athens and the Spectrum of Liberty," History of Political Thought 30, no. 1 (2009): 40-42. 3 David Cohen, "Crime, Punishment and the Rule of Law in Classical Athens," in The Cambridge Companion to Ancient Greek Law, ed. Michael Gagarin and David Cohen (New York: Cambridge University Press, 2005), 212-13; Edge, "Athens and the Spectrum of Liberty," 42-43. 4 Brown, "Universal Human Rights?," 45-46; Freeman, Human Rights, 65-66; Lauren, Evolution, 9.
11 Human Rights and Fundamental Freedoms in Athenian Oratory Chapter 1 purposes. Taking the UDHR as the definitive statement of modern human rights, he explains that modern human rights can be loosely grouped as:
i. The right to life, liberty, security of person, equality before the law, fair trial, asylum, and freedom from torture and inhuman punishment; ii. The right to privacy, reputation, opinions, religion, mobility and nationality; iii. The right to marry, own property, take part in government, choose one’s occupation, receive an education.5
Bauman argues the core of human rights lies in the first category, which he summarises as limitations on brutality driven assaults.6 The second (entitlements to take positive action) and third (participation in social institutions) are in Bauman’s view less central to human rights. Ober takes a similar view in his analysis of ‘negative liberties’ or limitations on the freedom of other individuals and governments to interfere with individuals (which he distinguishes from human rights).7 On this point, I differ from both Bauman and Ober, making no claim as to the primacy of one group over another in identifying potential human rights in Athenian oratory. Instead, any of the purposes outlined above should be sufficient to indicate a human right has been claimed.
To a certain degree, the divisions above are artificial and there may be significant overlap. The categorisation of purposes is not to segregate rights, but rather to provide key indicators for what would generally form part of the core purpose of any human right to “safeguard liberties, promote social wellbeing and ensure mutual tolerance and respect as necessary ingredients for human dignity”.8 A few brief comments to further outline what each of these purposes is, and how they might be identified in rights and freedoms.
The first purpose of human rights to limit on brutality involves two components. The first is designation of conduct or a class of conduct as unacceptable. The second is an active prohibition restraining the ability to engage in such conduct. Most commonly, this protection describes physical protection of people from conduct that would otherwise be seen as excessively brutal or rarely justified. Take for example Article 8 of the UDHR:
“No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”9
Both components are clear here: the article describes the class of conduct, and then establishes a prohibition on such conduct. Importantly, the prohibition is expressed not as a direct restraint on individuals, but as a positive right to be free from such actions. The restraint is implied. Protective rights can also be more expansive than simply physical interreference, and indeed restrain any class of action felt to offend and undermine a fundamental conception of human dignity. The purpose of protective rights is to both set standards for individual or interpersonal interaction. These restraints are also intended to
5 Bauman, Human Rights in Ancient Rome, 2-3. 6 Ibid., 3-6. 7 Ober, "Quasi-Rights," 29-31. 8 Quatert, Advocating Dignity, 4. 9 Article 8, Universal Declaration of Human Rights (UN, 1945). http://www.un.org/en/universal- declaration-human-rights/ (accessed 15 February 2021).
12 Human Rights and Fundamental Freedoms in Athenian Oratory Chapter 1 operate simultaneously on a macro-social level, such that governments or institutions can have their actions restrained by the rights of individuals, as a curb on unlimited authority.10
The second purpose of human rights is to provide guarantees for positive action. These are rights that describe an action, and then provide direct authority for that action to be undertaken. Traditionally, such rights are claimed as entitlements or endowments for individuals in their capacity as humans. Take for example Article 19 of the UDHR:
“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers”11
The rights claim here is fairly straightforward, providing an entitlement to take specified action, held on an individual capacity. Conceptually, there is a similarity with the protective purpose of human rights limiting brutality outlined above. In the same way that the right to be free from brutality restrained engagement in specified conduct, rights to undertake designated action also restrain others. If an individual is endowed with the authority to undertake the specified action, there is also an implication that none may interfere with that authorised action.
The third purpose of human rights is to establish an entitlement to participation and access to social goods and institutions. Put another way, human rights may also express entitlements to what individuals need to be part of functioning human society. These rights are not just conceptual in nature, but can be used to compel the provision of such social structures. For example, Article 26 (1) of the UDHR states:
“Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit.”12
This right involves two claims. The first is that as a part of any human society, education must be provided, in the form described by the article. The second is that access to education is to be guaranteed. Although this is a right that requires action from specific institutions, it is expressed as a general human right to baseline standards that all societies should adhere to. Importantly, these rights imply not just the existence of such social institutions, but also the ability to access and enjoy those institutions. The element of access as part of these rights claims has the effect of restraining interfering action, to complement the positive entitlement for the provision of the designated social service or institution.
At the end of this section then, human rights can be first identified through the purpose they are thought to have. Human rights need to be justified as an entitlement by proscribing or
10 Brown, "Universal Human Rights?," 35-36; Freeman, Human Rights, 3, 19-20, 25-26; Hafner- Burton, Making Human Rights, 52; Mutua, Human Rights, 10-11. 11 Article 19, Universal Declaration of Human Rights (UN, 1945). http://www.un.org/en/universal- declaration-human-rights/ (accessed 15 February 2021). 12 Article 26, Universal Declaration of Human Rights (UN, 1945). http://www.un.org/en/universal- declaration-human-rights/ (accessed 15 February 2021).
13 Human Rights and Fundamental Freedoms in Athenian Oratory Chapter 1 promoting certain behaviours and action, or by requiring provision of services as a condition of human society. Importantly, the purposes of these rights characterise them as special entitlements which enable the rights to be defended against interference or violation. There is still likely to be significant overlap between rights whose justification places them amongst human rights, and rights that are claimed as civic, legal or citizen rights. Accordingly, there needs to be an additional element that sets a human right apart from a non-human right, in cases where the purposes align. These thresholds are considered next.
1.2 Inherency, Equality and Inalienability
It is not just the justified purpose, but the conditions under which the right is said to arise that set human rights and fundamental freedoms apart. Modern constructions of human rights are again useful to provide a general sense of these thresholds. For example, the United Nations states that:
“Human rights are rights inherent to all human beings, regardless of race, sex, nationality, ethnicity, language, religion or any other status… Everyone is entitled to these rights, without discrimination.”13
There are a couple of elements here. First, human rights are granted by mere virtue of one’s existence as a human being – in other words, they are rights which are said to be inherent. This is explicitly mentioned in the quote above, expressing the view that human rights are entitlements which accrue as a result of the human condition. Second, human rights are entitlements that apply equally to all humans, irrespective of any discriminating features, examples of which are provided by the quote above. The listing of these features extends the quality of inherency to show not only that human rights are given on the basis of humanity, but that their possession and enjoyment also requires no further qualification beyond human status. Accordingly, human rights must be thought to be held equally by all humans. This reflects a broader understanding that human rights are founded on the view that humans are united in a baseline community to which all are members.
The two elements expressed in the quote above imply a third component of inalienability. If human rights are inherent, then these rights must be enduring. If rights are to be shared by all within the human community, then the mere fact that two people are in different societies, or are different by virtue of some other feature is insufficient to deny the existence of that right. In turn, this means that as a matter of principle, a particular nation, for example, cannot seek to deny human rights. That would lead to an inequality with someone from another country. Human rights must be able to subsist regardless of competing external forces, including social institutions and therefore be drawn from beyond the remit of human institutions. Notwithstanding any other overlaid institutional forces, human rights are inalterable facts of nature, and therefore they are rights that do not need to be earned and cannot be lost.
The need for human rights to be inherent, equal and inalienable means that the source of authority for human rights must be a form of moral authority represented in underlying social
13 United Nations. ‘Human Rights.’ http://www.un.org/en/sections/issues-depth/human-rights/ (accessed 15 February 2021).
14 Human Rights and Fundamental Freedoms in Athenian Oratory Chapter 1 belief, norms and values shared across cultures and communities.14 This requires the rejection of human institutional sources of authority for human rights such as legal or political systems. Human rights must necessarily be founded on non-institutional forms of social legitimacy, else they would be the grant of an institution, and not the grant of the human condition.15 As Raz notes:
“People who believe in fundamental human rights usually believe that these rights do not derive from social practices which recognise and implement them even where such practices exist.”16
That is not to say that we cannot draw on institutional sources as an indication of the foundation for legitimacy. For example, modern human rights frameworks draw on the UDHR, as noted above. While this is very much a document created by human institutions, it does not purport to create human rights, but rather reaffirm rights already believed to be in existence by virtue of their content. The preamble to the UDHR begins with an acknowledgement that signatories agree to “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”, and explicitly notes that the document merely sets out the fundamental freedoms to be protected, but that the UDHR does not create these rights.17 We can adopt the same approach to other institutions, such as political or legal systems, provided there remains a link to the authority of a fundamental principle. In this way, we get a dual authority, both institutional and fundamental for human rights.
Indeed, Athenian institutions are said to operate to a significant degree to reaffirm and recognise existing principles, rather than to create rights in and of themselves. Most prominently in Athenian forensic oratory, the link between the content of Athenian law and the protection of pre-existing, socially agreed moral belief is made frequently.18 For example, Demosthenes states:
“For there are two objects, men of Athens, for which all laws are framed—to deter any man from doing what is wrong, and, by punishing the transgressor, to make the rest better men; and it will be shown that both these objects will be secured by the punishment of the defendant.”.19
δυοῖν γὰρ ὄντοιν, ὦ ἄνδρες Ἀθηναῖοι, ὧν ἕνεκα πάντες τίθενται οἱ νόμοι, τοῦ τε μηδένα μηδὲν ὃ μὴ δίκαιόν ἐστι ποιεῖν, καὶ τοῦ τοὺς παραβαίνοντας ταῦτα κολαζομένους βελτίους τοὺς ἄλλους ποιεῖν, ἀμφοτέροις τούτοις οὗτος ἔνοχος ὢν φανήσεται.
14 Howard Berman, "Teaching Human Rights Law," Journal of Legal Education 35, no. 3 (1985): 432; Boucher, Political Theories, 33. 15 Freeman, Human Rights, 11; Raz, "Legal Rights," 2. 16 "Legal Rights," 2. 17 This is true not only of the UDHR, but also of a range of other foundational human rights documents. De Feyter, "Law Meets Sociology," 57; Freeman, Human Rights, 42. 18 Dover, Greek Popular Morality, 75-81, 245-48, 54-59; Victor Ehrenberg, The People of Aristophanes: A Sociology of Old Attic Comedy, 2nd ed. (Oxford: Basil Blackwell, 1951), 22-50. 19 Dem. 25.17
15 Human Rights and Fundamental Freedoms in Athenian Oratory Chapter 1
The operative element here is the standard of dikaios, which the law enforces rather than establishes. The law is merely the tool of deterrence and education, but the standard of what counts as right or wrong is something which precedes the law. Indeed, the very etymology of nomos, the most common term which refers to the laws, suggests that the laws served to capture existing custom, tradition or principles, rather than having a completely separate rival source of authority.20 This demonstrates that in the Athenian conception, the role of institutions such as the law was to implement specific underlying values. The rights at dispute in forensic oratory can therefore be either legal, fundamental, or perhaps both. That is not to say that there could not be specific rights created or designated by Athenian law. Rather, it is simply to state that as a general proposition the mere acknowledgement of a right within the law does not automatically mean that its authority is generated from the law.
Even beyond institutional empowerment and recognition of fundamental principles, these values can also be invoked directly. Principles such as justice, good order, safety and stability could all be claimed as necessary for proper human existence. In Athenian oratory and discourse, these principles were claimed by both proponents and opponents of democracy, representing elements seen as either central to the polis as a political organism, or popular and attractive political slogans (or both).21 These principles are therefore reflective of fundamental authority for rights claims which rely on them. We can assume that a right is founded on such moral authority should it make reference to such principles in justifying its existence. We can see this more broadly in the modern formulation of human rights, which invokes human rights as linked to the foundation of justice and freedom.22
So far, legitimacy for human rights has focussed on underlying moral principles, which is the framework adopted by modern human rights frameworks. However, Classical Athens recognised a related but distinct form of fundamental or underlying authority in divinity. There was a general belief that divine forces established traditions, and indeed continued in some manner to be involved and oversee the respect for such traditions in Classical Athens.23 In many cases, there was significant overlap between fundamental principles outlined above and the divine. Many important abstract concepts and principle were personified and treated as deities in their own right.24 For example, dike is also commonly personified as a daughter of Zeus.25 Linguistically, nomos also covered divine law and order, and although dike and
20 Isaeus. 6.49: “Such are the solemn and pious terms in which you gave legal expression to the importance which you attach to piety towards these goddesses and all the other deities” ταυτὶ τὰ γράμματα, ὦ ἄνδρες, ὑμεῖς, οὕτω σεμνὰ καὶ εὐσεβῆ ἐνομοθετήσατε, περὶ πολλοῦ ποιούμενοι καὶ πρὸς ταύτας1 καὶ πρὸς τοὺς ἄλλους θεοὺς εὐσεβεῖν. See also Todd, The Shape of Athenian Law, 63. 21 Kurt A. Raaflaub, "Democracy, Oiligarchy and the Concept of the 'Free Citizen' in Late Fifth Century Athens," Political Theory 11, no. 4 (1983): 520. 22 Preamble, Universal Declaration of Human Rights (UN, 1945). https://www.un.org/en/universal- declaration-human-rights/ (accessed 15 February 2021). 23 Dover, Greek Popular Morality, 75-81, 254-59; Gabriel Herman, Morality and Behaviour in Democratic Athens: A Social History (Cambridge: Cambridge University Press, 2006), 18. 24 Alan H. Sommerstein and Isabelle J. Torrance, Oath and Swearing in Ancient Greece (Berlin: De Gruyter, 2014), 114-15. 25 This is a general tradition that begins with Hesiod and continues into Classical Athens: Hes. WD 256-262, 279-285; Ar. Cl. 920f; Dem. 25.11. Similarly, the fundamental assessment of justice, fairness and equality in the archaic period was the realm of the justice of Zeus. Ober, "Law and Political Theory," 399.
16 Human Rights and Fundamental Freedoms in Athenian Oratory Chapter 1 dikaios principally refers to concepts around justice, it was also used to refer to a natural (and therefore divinely ordained) order, which represented an ideal existence.26 This demonstrates the close interrelation between the secular and the sacred. Adding a divine layer could also strengthen legitimacy drawn from the other foundations outlined above. The invocation of the gods conferred additional authority that was functionally not open to challenge. This is reflected in the overlay of many claims being justified both because they are dikaios, speaking to a moral or value assessment, and also because they are hosios, which conveys divine fiat and was a common trope in oratory.27 This reflects a broader spiritual overlay present in institutions like the law which could be said to be continuing to uphold pre-existing divine standards.28 Indeed, tradition and other institutions could have authority originally from divinity transfer over time to generate a new form of institutional authority, where the divine has essentially imprinted onto human structures.29
Inherency and equality, and through them, inalienability, are the defining characteristics of the justification for human rights. Inherency and equality are questions around the framing of right or freedom, and the basis on which they were thought to be held. Inalienability is a question of foundation and authority, which must rely on a non-institutional basis to be truly enduring. In the following chapter, each of these elements will be applied, alongside the identified purposes in the section above, to assess whether relevant Athenian rights claims approach human rights. Before proceeding however, this chapter considers a further threshold posited by some scholars in relation to enforcement.
1.3 Enforcement
For many modern rights theorists, in addition to thresholds of legitimacy, a bona fide right is predicated on its ability to be enforced. In part, the focus on enforcement for rights frameworks speaks to their function to regulate behaviour and manage disputes. This is a vexing question for modern human rights theory, particularly because so much of the human rights framework is based in international principles, without a single unified source of practical authority.30
However, when we consider human rights in their social or symbolic function, the need for practical enforcement is diminished. The baseline minimum need not be actual enforcement, but failing actual enforcement, a vindication that a particular right ought to be protected, irrespective of the actual prospects of enforcement is sufficient. As Nagel states:
“The existence of moral rights does not depend on their political recognition or enforcement but rather on the moral question of whether there is a decisive justification for including these forms of inviolability in the status of every member of
26 Richard Garner, Law and Society in Classical Athens (London: Croom Helm, 1987), 4-9; Dover, Greek Popular Morality, 184-85. 27 For example, see Lys. 22.24, Dem. 19.70, 47.82. 28 Campbell, "Constitutionalism," 247; Dover, Greek Popular Morality, 252-53. 29 Campbell, "Constitutionalism," 247. 30 Brown, "Universal Human Rights?," 40; Freeman, Human Rights, 95-97.
17 Human Rights and Fundamental Freedoms in Athenian Oratory Chapter 1
the moral community. The reality of moral rights is purely normative rather than institutional – though of course institutions may be designed to enforce them”.31
That is to say, it is sufficient for there to be a recognition that a right ought to be enforced to clear the requisite bar for an enforcement mechanism. Moreover, human rights have long seen their greatest use where there has been a lack of practical enforcement. In the modern context, human rights are often set up as a fallback position – these are the rights any person can turn to in the face of overwhelming disadvantage or oppression.32 Perhaps somewhat counterintuitively, human rights have the greatest power and moral force in circumstances where such rights are not being enforced, but where they ought to be.33
We can identify such appeals for enforcement through inferences from the authority and legitimacy of the right in terms of fundamental principles, as outlined in the previous section. If it is true that a human right exists on the basis of a shared fundamental principle, it also follows that violation of the right would be wrongful action. In the event of such a wrong, the fundamental principle provides the moral basis for the claim for enforcement. Specifically in the case of Classical Athens, the presence of the divine also adds an additional layer to enforcement as it strengthens the authority of fundamental moral principles. The divine also could play an active role in exacting punishment. For example, Demosthenes says to “leave the undetected sinner to the gods.”34 In turn, this shows the significant overlap in foundation between fundamental norm, institutional character and divine sanction. Divine sanction and authority did not replace, but instead enhanced institutional authority, and vice versa.
Therefore, on the question of enforcement, there does need to be as a baseline an exhortation that enforcement is part of the entitlement being claimed, but that enforcement need not necessarily be practically forthcoming or even possible for the human right to exist. What matters is the sense that one ought to be able to press the claim that the human right represents, and suggest that the morally correct course of action is to ensure the protection and observance of that right.
1.4 Conclusion
This chapter has provided three key elements for a claim to be considered a human right. First, human rights and fundamental freedoms have as their purpose the safeguarding of fundamental human dignity, either by describing limitations on brutality and legitimate protection, empowering individuals to undertake specific actions without interference, or outlining social institutions or systems to which individuals are entitled to as part of any functioning human society. Second, the right or freedom must be thought to arise as a feature inherent to humans, and as a result apply to humans equally. As part of that, human rights must be linked to a fundamental principle or divine authority so that their legitimacy is
31 Thomas Nagel, "Personal Rights and Public Space," in Concealment and Exposure & Other Essays (Oxford: Oxford University Press, 2002), 33. 32 Donnelly, "Reflecting on the Rule of Law," 50-51; Freeman, Human Rights, 62; Sharma, Are Human Rights Western?, 4. 33 Boucher, Political Theories, 382-83; Freeman, Human Rights, 3, 51, 62; Raz, "Legal Rights," 2; Sellars, Rise and Rise, xiii. 34 ὃς γὰρ ἂν ὑμᾶς λάθῃ, τοῦτον ἀφίετε τοῖς θεοῖς κολάζειν. Dem. 19.71.
18 Human Rights and Fundamental Freedoms in Athenian Oratory Chapter 1 not wholly contingent on human institutions. Third, human rights do not require practical enforcement to be bona fide; instead, the threshold for enforcement is that there is an expectation that enforcement ought to occur as a matter of principle.
The following chapter uses this framework and analytic approach to both identify rights claims in the source material and assess how they may have been justified in a manner that is akin to human rights claims.
19 Human Rights and Fundamental Freedoms in Athenian Oratory Chapter 2
2 Human Rights Claims in Classical Athenian Oratory
The previous chapter established thresholds for identification of human rights, and this chapter applies these thresholds to entitlements are expressed in Athenian oratory to show potential links to a human rights logic or justification. Six entitlements are examined. The first three, relating to speech, physical protection and life, and self-defence and retaliation are rights that principally attach to individuals in their personal capacity, serving to authorise individuals to undertake specified action and accordingly restrain interference from others. The final three, relating to treatment according to law, claims to promised action and possession and use of property are rights that describe an entitlement of individuals to institutions or social systems considered necessary for the functioning of any human society.
Throughout each section, the source material will be analysed and connected to the theoretical frameworks around human rights outlined in the previous chapter. Each section below is dedicated to a specific right, and asks the following questions: (1) what does the entitlement entail, and does it fall within the scope of human rights purposes?; (2) how are these rights justified in oratory, setting aside their practical implementation – are standards of inherency and equality evoked, and are the rights legitimised with fundamental authority?; and (3) are there competing, non-human rights justifications advanced, either explicitly or implied through the way in which orators described the use of the rights? In answering these questions, this chapter will show that when the orators invoke or rely on each of the following rights, to differing degrees, they invoke humanity as part of their justification.
2.1 Free and Frank Speech
The right to free speech is one of the most commonly identified in connection with Athens when one speaks of fundamental rights. In Classical Athens, the right to speak operated much as it did in modern conceptions of the right, namely that individuals ought to be able to freely express themselves. Two key terms relate to free speech in Athens – parrhesia and isegoria.
The first, parrhesia, captures more closely the general capacity for individuals to express themselves in any context, in the terms that they choose, having also been translated as ‘frank speech’.1 In terms of the authorised action itself, parrhesia is similar to modern freedom of speech in generally protecting the ability to express oneself without restraint. However, it is also notable parrhesia was broader than simple authorised action, but also served to describe the function of unfettered speech as well. The exercise of the power to speak frankly and without reservation or restraint represented an underlying belief that such speech was truthful. In turn, expression of one’s true beliefs was to the benefit of the community as a whole, by avoiding double dealing and potential confusion.2 Accordingly, parrhesia was associated with political purposes by framing it as a right which ensured that the polis was able to receive frank and fearless advice from the people. This is reflected by the standard use of parrhesia in oratory to describe the character of speech inherent to the arenas in which the polis considered advice and counsel, namely the Assembly and the
1 Aeschin. 2.70; Dem. 8.24, 9.3. 2 Saxonhouse, Free Speech and Democracy, 86-87, 91.
20 Human Rights and Fundamental Freedoms in Athenian Oratory Chapter 2 courts.3 The absence of free speech, caused by a lack of respect for truthful opinions, reinforces this function as it was implied that such a violation of free speech resulted in poor advice that was not to the advantage of the polis.4 Free speech described by parrhesia was also about the capacity to voice true opinions, even if they were critical or unpopular.5 The freedom of speech to express one’s true beliefs was also reflected in sources outside of oratory. For example, in Euripides’ Suppliant Women, it is noted that freedom of speech is characterised by the capacity for individuals to provide whatever advice they so choose to the governance of the polis, or even to remain silent.6
That is not to say that the right to free speech was seen as purely political – it also characterised an entitlement generally within society. Isocrates characterises the freedom of speech as one which operated not only in specific political arenas, but also in the private lives of individuals, explaining that a key contributor to education is “freedom of speech and the privilege which is openly granted to friends to rebuke and to enemies to attack each other’s faults”.7 Elsewhere, Demosthenes also remarks that Athens is characterised by free speech for all, explicitly including aliens and slaves – the exercise of this right is simply that all may speak their mind with liberty.8 The focus of parrhesia was therefore as an individual entitlement generally, and not necessarily in connection with political rights.9 The emphasis in parrhesia is on the positive capability to express oneself that is to be protected, not so much a limitation or restraint on other external forces from intruding into and censoring speech.10 However, implied in the positive entitlement to act is a corresponding limitation on others doing things that would prevent the exercise of that right.
The second term, isegoria, refers to ‘equal rights of speech’, and it is in that spirit of a restraint on interference with speech that it gains prominence. Isegoria in its core definition described less the actual action of speaking freely or the content of speech, but rather ensuring that the opportunity to speak was provided to all.11 For example, Aeschines argues that the intent of the institution of an equality of free speech is to remove barriers to participation:
“He does not exclude from the platform the man whose ancestors have not held a general's office, nor even the man who earns his daily bread by working at a trade;
3 Dem 4.1, 8.24, 15.1; Lyc. 1.12. 4 Dem. 9.4; Isoc. 6.3-4. 5 Kurt A. Raaflaub, The Discovery of Freedom in Ancient Greece (Chicago: University of Chicago Press, 2004), 222-25. 6 Eur. Sup. 437-442. 7 ἔτι δ᾽ ἡ παρρησία καὶ τὸ φανερῶς ἐξεῖναι τοῖς τε φίλοις ἐπιπλῆξαι καὶ τοῖς ἐχθροῖς ἐπιθέσθαι ταῖς ἀλλήλων ἁμαρτίαις. Isoc. 2.3 8 Dem. 9.3. This was also acknowledged by those who saw parrhesia as an undesirable thing for its invitation to flout propriety and good sense. See for example Isoc. 7.20 9 Raaflaub, Discovery of Freedom, 96. 10 Werhan, "Classical Athenian Ancestry," 298. 11 Yoshio Nakategawa, "Isegoria in Herodotus," Historia: Zeitschrift für Alte Geschichte 37, no. 3 (1988): 274; Raaflaub, "Democracy," 222; Saxonhouse, Free Speech and Democracy, 94; Todd, The Shape of Athenian Law, 311-12.
21 Human Rights and Fundamental Freedoms in Athenian Oratory Chapter 2
nay, these men he most heartily welcomes, and for this reason he repeats again and again the invitation, “Who wishes to address the assembly?””12
καὶ οὐκ ἀπελαύνει ἀπὸ τοῦ βήματος, εἴ τις μὴ προγόνων ἐστὶν ἐστρατηγηκότων,1 οὐδέ γε εἰ τέχνην τινὰ ἐργάζεται ἐπικουρῶν τῇ ἀναγκαίᾳ τροφῇ, ἀλλὰ τούτους καὶ μάλιστα ἀσπάζεται, καὶ διὰ τοῦτο πολλάκις ἐπερωτᾷ, τίς ἀγορεύειν βούλεται.
This was a goal closely linked to democracy and the continuance of democratic institutions – as Saxonhouse puts it, “the Athenian freedom of speech [as represented by isegoria] is the affirmation of equality of participation and self rule”.13 In some cases, this created a tension between parrhesia and isegoria, such that the risk of a license to speak may have the unintended consequence of diminishing equality between speakers.14 Indeed, oratory shows that even if individuals had the right to speak equally, it did not mean that their audiences would give them an equal hearing. For example, it was noted that Apollodorus was shouted down and unable to speak after the speech in Demosthenes 36.15 Similarly, orators were alive to the fact that their audience could interject, and so did address them directly to implore them to hear cases in silence.16 Interjection can be seen as the audience’s use of parrhesia, and their right to express themselves truthfully and frankly.17 This implies that where conflicts arose, the exercise of parrhesia was able to override the principle of iseogria.
Nevertheless, the terms could also be seen in alignment, with isegoria essentially adding context to how parrhesia ought to be actioned. In this way, isegoria was the procedural entitlement to how speech was delivered, while parrhesia was the substantive entitlement as to what can be said.18 It is the balance of these two which constitutes the Athenian concept of free speech, in which form and content of speech was characterised by freedom and discretion, and the formal exercise of that speech was one determined by equality.
Taken together then, this is a right that oratory presents as falling within two human rights purposes. First, it is a description of a capacity for an individual to undertake specified action, namely frank and fearless speech. This character of speech is seen to be valued in and of itself as an important endowment for individuals to be able to live and express themselves as they please. The second purpose, and one which the sources have dwelled on further, is the function of free speech to enable participation in broader society. The invocation of free speech in oratory tends towards the instrumental, rather than being an end in and of itself. The ability to speak was one which was closely linked to the proper functioning of the state and democratic institutions as both equal and truthful speech were necessary for good political advice, and for accurate decisions from the courts. Insofar as it was an entitlement, it was to be used for the sake of the polis and the community.19 As we have seen above, even in the day-to-day application of free speech there is an instrumental
12 Aeschin. 1.27 13 Saxonhouse, Free Speech and Democracy, 24. 14 Raaflaub, Discovery of Freedom, 223. 15 This outcome is related at Dem. 45.6. 16 Dem. 24.155. 17 Werhan, "Classical Athenian Ancestry," 336. 18 Raaflaub, Discovery of Freedom, 225; Werhan, "Classical Athenian Ancestry," 319. 19 Saxonhouse, Free Speech and Democracy, 96; Werhan, "Classical Athenian Ancestry," 319, 40; Wiltshire, Greece, Rome and the Bill of Rights, 112.
22 Human Rights and Fundamental Freedoms in Athenian Oratory Chapter 2 character, being described as a mechanism through which individuals improve each other through critique. In this way, free speech in the Athenian conception is more closely felt to be a right that an individual holds and exercises not just for their own sake, but perhaps more importantly for their fellows and their community.
Let us turn then to questions of inherency and equality. Prima facie, the formulation of many of the rights in oratory outlined above suggests that free speech is not thought to be inherently held as a feature of humanity, nor is it held equally by all people. Instead, the right is tied to the function of the speaker in the political or legal process. Additionally, it is linked directly to a privilege or favour, rather than an underlying entitlement. For example, Lycurgus notes that it is the city that makes a specific grant of freedom to speakers.20 A similar expression is found in Demosthenes 18, where the complaint is not that the city has granted speech to Philip’s hired servants, but that speech was permitted to them on equal terms.21 Perhaps clearest is the statement in Demosthenes 51, which argues that:
“And then, as if they were not members of a free state, in which because of this fact anyone who chooses has the right to speak, but as if they possessed this right as a sort of sacred prerogative of their own, if any man speaks in your midst in defence of what is right, they feel themselves grossly wronged, and say that he is an impudent fellow.”22
εἶθ᾽ ὥσπερ οὐχὶ πολιτείας κοινῆς μετέχοντες καὶ διὰ ταῦτα τῷ βουλομένῳ λέγειν ἐξόν, ἀλλ᾽ ἱερωσύνην ἰδίαν αὐτοί τινα ταύτην ἔχοντες, ἐὰν ὑπὲρ τῶν δικαίων ἐν ὑμῖν τις εἴπῃ, δεινὰ πάσχουσιν καὶ θρασὺν εἶναί φασιν.
This passage not only ties the existence of the right to free speech as one that is possessed through the state, and particularly by membership of the state, but also explicitly rules out the individual possession of the right to free speech as outside of the state. The grant of freedom implies that the right to speak freely is at its core a license to act for the specified purposes of undertaking one‘s role as a speaker in the context of both forensic and political oratory. Moreover, it suggests that as a grant by the city, the right to free speech is a mere favour from an institution that is not required and can be more easily abrogated if there are competing interests. These examples have shown that even where free speech is assumed as a standard part of Athenian life, it is something that is presented as a feature of citizenship, not humanity, and therefore a right not held equally.
This view that speech was a civic right was especially prominent in cases where the right to free speech has been denied or lost. There are a range of examples across Attic Oratory that highlight this civic dimension:
20 "And yet the blame for this is yours, gentlemen; for you have granted this freedom to speakers appearing before you, although you have, in the council of the Areopagus, the finest model in Greece“ τούτων δ᾽ αἴτιοι ὑμεῖς ἐστε, ὦ ἄνδρες: τὴν γὰρ ἐξουσίαν ταύτην δεδώκατε τοῖς ἐνθάδ᾽ εἰσιοῦσι, καὶ ταῦτα κάλλιστον ἔχοντες τῶν Ἑλλήνων παράδειγμα τὸ ἐν Ἀρείῳ πάγῳ συνέδριον Lyc. 1.12. 21 “Public speaking was my only privilege: and that you permitted to Philip's hired servants on the same terms as to me.” αὐτὸ γὰρ τὸ δημηγορεῖν πρῶτον, οὗ μόνου μετεῖχον ἐγώ, ἐξ ἴσου προὐτίθεθ᾽ ὑμεῖς τοῖς παρ᾽ ἐκείνου μισθαρνοῦσι καὶ ἐμοί. Dem. 18.236. 22 Dem. 51.19.
23 Human Rights and Fundamental Freedoms in Athenian Oratory Chapter 2
• Dinarchus 2 notes there is a legal prohibition that means a debtor is prohibited from speaking in public.23 • Aeschines 1 outlines a number of scenarios in which individuals are barred from their right to speak in public, treating these as exceptional cases designated by the law.24 • Demosthenes 21 notes that Strato has lost his right to speak in addition to his citizen rights as a result of legal proceedings brought by Meidias.25 • Demosthenes 25 explains that Aristogeiton has lost his rights of speech due to judicial punishment.26
More generally, we have the expression that the loss of civic rights overall was characterised by the loss of the right to speak in the city or in public.27 In each case, the loss of speech rights was marked by an exclusion of a citizen to the outgroup of non-citizen, a particularly significant move given their prior status as a citizen and therefore enjoyment of free speech. Insofar as it affirms the relative importance of the speech right as noted above, such a conclusion can only be drawn if it is an accepted premise that citizenship status itself is critically important. Such a reading would suggest that the right to free speech does not meet the requisite level of inherency and inalienability that is typical of a human right.
However, each of the examples outlined above is primarily concerned with free speech as a political institution, not so much the ability to express oneself generally. The exclusion is not so much from the right to speak, but from the platform for that speech to be heard such as the Assembly or the courts. Furthermore, the civic basis for free speech is not a uniform position, and other expressions of the right to speech in oratory may come closer to standards of inherency. In spite of examples of citizenship providing the right to speech, there are examples in which the shared vector of humanity is the only reasonable explanation for the existence of the right. For example, Demosthenes makes an explicit statement that Athens considered it necessary that even metics and slaves have freedom to speak, in accordance with the general character of Athenian society, which relies on free and frank speech.28 This specifically relates to free speech as an individual entitlement to express oneself in frank terms without inhibition. The explicit expansion to non-citizen groups reinforces the broader scope of rights to speak as extensive beyond the citizen class. Isocrates also draws a link to fundamental humanity for speech rights claiming that speech, eloquence and persuasion is the unique feature of man compared to other living creatures, enabling humanity to achieve civilisation and dominion.29 Implied in this claim is the view that free speech was an important right to protect as it was a prerequisite for human society and civilisation.
Additionally, we can infer a more general right to free speech in examining the way in which Athenian oratory saw the right to free speech amongst others who were outside of the Athenian polis. Following the end of the Peloponnesian War, the rise of Macedon was seen
23 Din. 2.13. 24 Aeschin. 1.19-21, 1.28-30, 1.40. 25 Dem 21.95. 26 Dem. 25.28. 27 Aeschin. 1.19-20; Dem. 21.95, 45.79, 58.68. 28 Dem. 9.3-4. 29 Isoc. 3.5-8, 3.48-49.
24 Human Rights and Fundamental Freedoms in Athenian Oratory Chapter 2 as an existential threat by many in Athens, becoming the subject of significant political oratory that sought to reinforce the need for resistance, often through reference to rights claims that were considered fundamental. One of the key objections to Macedonian rule was that liberty of speech is not allowed.30 Notably, this objection was extended not just to Athens, but to all poleis, with the claim that it was an outrage that the Thebans are deprived “even of their freedom of speech” by the Macedonians.31 Such statements demonstrate that there was a generalised expectation that liberty of speech within each polis was to be protected. Violation was an unacceptable breach of what is essentially a rights claim, albeit expressed implicitly. Importantly, the reference to the right of Thebes to a freedom of speech moves the rights claim away from a feature of a specific citizenry such as that of Athens. Instead, the right to speech, as granted to Thebans, is treated as a common entitlement between communities.
The inter-polis applicability of the right may suggest that such rights, even if not features of a specific polis or people, may be treated as a special entitlement of the Greeks in contrast to Barbarians. This contextual implication is heavily supported by the overall tenor of the anti- Macedonian speeches in which such laments for the sufferings of poleis such as Thebes are found. Demosthenes in particular emphasises Philip’s lack of Greekness as a key reason for opposition, which implies that the denial of such rights was of concern due to the commonality between Greek poleis specifically.32 Even if the actual enjoyment of the right, or its enforcement was not present beyond Athens, the Athenian approach was treated as the benchmark in a shared moral structure to which all poleis ought to aspire to. In other speeches, it is noted that the democratic system is particularly powerful and in alignment with nobility and justice because freedom of speech in inherent, which therefore enables the truth to always come out.33 This implies that the justification for the existence of the right is one that is fundamental, and decoupled from polis specific structures such as legal or political frameworks.
We might therefore say that when oratory referenced the right to speech, in some cases there was a sense of inherency and equality, although this was more closely attached to the general capability of speaking, rather than the equal exercise of the right to speech in all circumstances. What then of inalienability? We have already seen the concept that the city might make free speech a grant, which implies that the basis of authority was institutional, not fundamental. However, particularly in forensic oratory, the abrogation of rights of free and equal speech are not treated as simply a matter of civic institutions, but rather of as a fundamental principle of justice. For example, Demosthenes claims that freedom of speech is directly under attack from Meidias’ actions that pervert the course of justice.34 At no point is it established what the causative impact of Meidias’ actions will be on the general right to free speech. Instead, what is implied by Demosthenes is that justice and the right to free speech are connected and concurrent, travelling together. The sources extend similar logic
30 Dem. 3.32. 31 Demad. 1.13. 32 For example: Dem. 3.24, where Phillip’s potential rule is seen as unjust because it would be akin to a Barbarian having dominion over Greeks, something that was seen as deeply wrong. See also Dem. 5-6, 9. The language here about the shared interest of the Greeks is not just used in the context of Phillip, but also in the broader context of external threats: see further Dem. 14-15. 33 Dem. 60.26. 34 Dem. 21.124-125.
25 Human Rights and Fundamental Freedoms in Athenian Oratory Chapter 2 for a speech right that is held both individually and communally – for example, it is claimed that Aristogiton ‘sold for 20 minae the right of free speech in the cause of justice’.35 This claim points to the fact that it is not the singly held right of another individual that has been violated, but the very concept of the right at large.
Conceptually speaking, we can resolve the apparent contradiction between a civic grant of free speech and a fundamental grounding for the right in concepts such as justice and freedom if we read the operation of institutions such as the law or political systems as primarily shaping and implementing a pre-existing right. Returning once more to the formulation in Lycurgus that the city grants freedom to speakers, applying this logic allows for a reading that the city is not directly granting a new right, but rather recognising and choosing to enable a pre-existing right, (acknowledging that such a reading relies on implication of meaning rather than an explicit formulation).36 Consider also the limitations of the expression in oratory when the right is denied, outlined above. The laws which disbar individuals from public speech as a punishment are also described as being developed by Solon in the context that the majority of individuals do not avail themselves of their right to speak, such that it was not an excessively harsh penalty.37 This argument considers the Solonic law about speech as a question of curtailing an existing capability held generally, not creating a right which was then limited within the citizenship class. Implied in this view of Solonic legislation then is the belief that the right itself is one which sat outside and preceded institutional forces. Similarly, laws banning speech for those who were atimos, or laws banning insults in the agora are predicated on the assumption that they are creating exemptions or exceptional cases to a generalised right, which indicates that the right was fundamental, and that the laws served to alter a pre-existing entitlement. This would also enable a reconsideration of the previous examples around the loss of the right to speak in specific circumstances. It would be more appropriate to describe those as evidence of the law shaping an existing right to free speech, rather than granting it.
We are left with an ambiguous picture of freedom of speech in oratory. On the one hand, its purposes relate to individual entitlements in support of the community in a fashion that is said to be inherent to humanity. This is supported by its importance as a right far beyond the Athenian polis. However, there were also contradictory statements, which treat the existence of rights to free speech as endowments from human institutions as part of citizenship, political and legal process.
This divergence becomes clearer if we look to the practical application of speech rights for groups outside the citizen male class. This section concludes with a brief mention of how free speech in practice sharpened class differences and concentrated this right in citizen men. Women, foreigners and slaves were all excluded from access to the arenas in which speech was said to be most critical and most fundamental. They had an extremely limited civic and legal personality, only able to make public representations or speech with the sponsorship or support of citizen men. We see this where women are only able to express
35 τὴν ὑπὲρ τῶν δικαίων παρρησίαν ἀποδόμενος εἴκοσι μνῶν. Din. 2.1. 36 Lyc 1.12. 37 Dem. 22.30.
26 Human Rights and Fundamental Freedoms in Athenian Oratory Chapter 2 their views and make claims to defend their interests through their citizen male kin.38 We see this in the case of foreigners and metics, who cannot themselves deliver speeches on public matters, but instead have to rely on a citizen to do so on their behalf – for example, accused of sacrilege, Callias could not himself speak in his defence, but had to rely on the support of a close friend with a long personal history of friendship.39 The situation is more severe for slaves, for whom it was seen that public speech was not an important feature that needed protection. Indeed, Demosthenes 37 includes the complaint that in relying on slave testimony (adduced through torture), the fate a citizen rests on the body of a slave.40 In such a view, never mind free speech, slave voices created no speech in essence – evidence, even if ‘spoken’ is evidence of the body when it comes to slaves. Clear limits were therefore expressed as to how the right ought to be exercised, which included an assumption that only citizen males would have full and equal access to the institutional settings where speech was considered most powerful, namely Assembly and the lawcourts which were limited to male citizens. Even if all humans had the entitlement to speak, it did not imply an equal entitlement to be heard by one’s peers or community.
While the political dimension of free speech is clearly exclusionary, we don’t have the same level of evidence for speech as an individual right used socially within the narratives contained in oratory. We know that by and large in their day-to-day lives, male metics and foreigners were able to operate on a general parity with citizen men, and there is no suggestion that such men ought not to be able to express themselves. In contrast, when we consider women, we can see a distinct devaluation of their personal speech in Attic oratory – they do not have active roles in speeches, and rarely is direct speech used to give us a sense of what kind of circumstances they would be able to intervene. However, we do have some limited material that shows women exercising some degree of free speech and expression in a personal capacity. For example, Lysias 31 provides an example of direct speech attributed to the wife of the deceased where she admonishes Diogeiton for his conduct as a guardian.41 This speech is said to have carried with it such force and eloquence that it rendered all the men present dumbstruck.42 While on its face, it would suggest that there was an equal respect for the speech of women in this example, there are a couple of points to draw out. First, the speech delivered by the woman is not her automatic right, but rather a grant made at her request by the friends of Diodotus and the parties involved.43 Second, the force of this testimony is useless unless filtered through the men involved. Her speech must be quoted, and the witness testimony of her words can only be provided by the men present.44 On slaves, oratory does not provide significant evidence of their use of speech in the day-to-day, but based on their treatment in relation to public speech, but it seems unlikely that they would have enjoyed the same level of frank or free
38 For example in cases on inheritance, women could only ‘speak’ via their male relatives or guardians to express their views. Isaeus 7, 11; Lys. 32. 39 Lys. 5. See also Isaeus. Fr. 18. 40 Dem. 37.41. 41 Lys. 32.13. 42 Lys. 31.18. 43 Lys. 31.11. 44 See for example: Dem. 47.57-58; Lys. 31.18. In essence, the direct speech is a literary construct of the male orator.
27 Human Rights and Fundamental Freedoms in Athenian Oratory Chapter 2 speech given the power of their masters. Certainly such speech was unlikely to be rendered as an entitlement.
In sum, free speech was clearly presented by oratory as an important entitlement with strong connections to civic function and citizenship status. On the one hand, a significant portion of oratory has couched this right as a grant of citizenship, something that is borne out of the specific status of citizen men. Certainly, this is the way in which it was experienced practically, with all other classes suffering comparative levels of disempowerment. However, examples have also been highlighted that couch the right to free speech (particularly in terms of expressing one’s views freely and without inhibition) as a fundamental right which saw application across cultures and classes to imply that it could potentially be considered a human right. At best then, one could say that the conflicting presentation in Attic oratory of the right to freely speak sometimes taps into several of the core concepts behind human rights claims, but importantly limits the exercise of the right along vectors other than one’s humanity. Where it is claimed in terms of humanity, the right is closely associated with the fundamental character of the Athenian polis, where respect for the right to free speech was seen as both unique and a marker of exceptionalism.
2.2 Protection from Assaults and Homicide
In Demosthenes 21, Demosthenes is prosecuting Meidias for punching him in the face. This is presented not just as an attack on him as an individual, but a violation of the general entitlement that all people in Athens should be able live their lives without fear or attack:
“The instant this court rises, each of you will walk home, one quicker, another more leisurely, not anxious, not glancing behind him, not fearing whether he is going to run up against a friend or an enemy, a big man or a little one, a strong man or a weak one, or anything of that sort. And why? Because in his heart he knows, and is confident, and has learned to trust the State that no one shall seize or insult or strike him. That sense of security, then, with which you walk the streets – will you not guarantee it to me before you set off home?”45
αὐτίκα δὴ μάλα, ἐπειδὰν ἀναστῇ τὸ δικαστήριον, εἷς ἕκαστος ὑμῶν, ὁ μὲν θᾶττον ἴσως, ὁ δὲ σχολαίτερον, οἴκαδ᾽ ἄπεισιν οὐδὲν φροντίζων οὐδὲ μεταστρεφόμενος οὐδὲ φοβούμενος, οὔτ᾽ εἰ φίλος οὔτ᾽ εἰ μὴ φίλος αὑτῷ συντεύξεταί τις, οὐδέ γ᾽ εἰ μέγας ἢ μικρός, ἢ ἰσχυρὸς ἢ ἀσθενής, οὐδὲ τῶν τοιούτων οὐδέν. τί δήποτε; ὅτι τῇ ψυχῇ τοῦτ᾽ οἶδε καὶ θαρρεῖ καὶ πεπίστευκε τῇ πολιτείᾳ, μηδέν᾽ ἕλξειν μηδ᾽ ὑβριεῖν μηδὲ τυπτήσειν. εἶτ᾽ ἐφ᾽ ἧς ἀδείας αὐτοὶ πορεύεσθε, ταύτην οὐ βεβαιώσαντες ἐμοὶ βαδιεῖσθε;
The central aspect of the suit from Demosthenes is that as an individual, he has an entitlement to be free from physical assault. Meidias’ attack has violated this entitlement, which justifies both the suit and punishment. However, as the passage above shows, in making this claim, Demosthenes extends that entitlement to his audience of peers, asserting that each of them has been guaranteed the same bodily security against physical assault.
45 Dem. 21.221-22.
28 Human Rights and Fundamental Freedoms in Athenian Oratory Chapter 2
Right off the bat, this is a clear link to the human rights purpose to limit brutality by securing baseline standards of treatment.
Cases generally adopt the position that physical injury caused by another person was objectionable.46 At the conceptual level, an assault constitutes a violation of a person’s rights when it was the first blow, in contrast to retaliatory action.47 Moreover, the right to be free from physical assault can also be seen in the accounts where individuals who have been assaulted have called on bystanders to assist them.48 The immediate assistance rendered by bystanders is indicative of a view that when another person is the victim of assault, they are suffering a wrong which requires assistance and requires alleviation. This therefore implies that there is an underlying right to be free from physical interference, which ought to be respected.
Physical protection could also extend to other forms of ‘attack’ on the body, such as restraint. Imprisonment was a form of corporal punishment also seen as unacceptable (unless imposed by the laws).49 Additionally, there a sense protection extended not just to the physical body, but also to private space such as the home, and an invasion of which was seen as a violation analogous (and often concurrent with) to an assault of an individual.50 The strength of such protections were that it was argued even under the Thirty, no man was at risk of unlawful arrest if concealed within his own home.51
The entitlement to be protected from physical assault is one made throughout oratory and is also expressed as a sliding scale. At the lowest end of the spectrum are verbal assaults on character, then moving up to physical assault, then serious wounding and at the highest end of the spectrum, homicide. Demosthenes 54 draws out this scale as a pattern of escalation:
“…there are actions for evil-speaking; and I am told that these are instituted for this purpose—that men may not be led on, by using abusive language back and forth, to deal blows to one another. Again, there are actions for battery; and these, I hear, exist for this reason—that a man, finding himself the weaker party, may not defend himself with a stone or anything of that sort, but may await legal redress. Again, there are public prosecutions for wounding, to the end that wounds may not lead to murder. The least of these evils, namely abusive language, has, I think, been provided for to prevent the last and most grievous, that murder may not ensue, and that men be not led on step by step from vilification to blows, from blows to wounds, and from wounds to murder, but that in the laws its own penalty should be provided for each of these acts, and that the decision should not be left to the passion or the will of the person concerned.”52
46 Lys. 3-4. In each case, there is acknowledgement that mutual physical violence has occurred, but that the aspect of a ‘brawl’ or reciprocal violence lessens the culpability. It does not, however, remove the opprobrium under the law, merely the type and extent of the charge. 47 Dem. 47.40, 47.47, 54.28, 54.33. 48 Dem. 53.17. 49 Antiph. 5.17-18; Dem. 24.146. 50 Dem. 22.52-54, 24.197, 47.52-53. 51 Dem. 24.164. 52 Dem. 54.17-19. See also Isoc. 20.2-3; Todd, The Shape of Athenian Law, 268-69.
29 Human Rights and Fundamental Freedoms in Athenian Oratory Chapter 2
…εἰσὶ κακηγορίας δίκαι: φασὶ τοίνυν ταύτας διὰ τοῦτο γίγνεσθαι, ἵνα μὴ λοιδορούμενοι τύπτειν ἀλλήλους προάγωνται. πάλιν αἰκείας εἰσί: καὶ ταύτας ἀκούω διὰ τοῦτ᾽ εἶναι τὰς δίκας, ἵνα μηδείς, ὅταν ἥττων ᾖ, λίθῳ μηδὲ τῶν τοιούτων ἀμύνηται μηδενί, ἀλλὰ τὴν ἐκ τοῦ νόμου δίκην ἀναμένῃ. τραύματος πάλιν εἰσὶν γραφαὶ τοῦ μὴ τιτρωσκομένων τινῶν φόνους γίγνεσθαι. τὸ φαυλότατον, οἶμαι, τὸ τῆς λοιδορίας, πρὸ τοῦ τελευταίου καὶ δεινοτάτου προεώραται, τοῦ μὴ φόνον γίγνεσθαι, μηδὲ κατὰ μικρὸν ὑπάγεσθαι ἐκ μὲν λοιδορίας εἰς πληγάς, ἐκ δὲ πληγῶν εἰς τραύματα, ἐκ δὲ τραυμάτων εἰς θάνατον, ἀλλ᾽ ἐν τοῖς νόμοις εἶναι τούτων ἑκάστου τὴν δίκην, μὴ τῇ τοῦ προστυχόντος ὀργῇ μηδὲ βουλήσει ταῦτα κρίνεσθαι.
This sliding scale that is outlined is differentiated by the circumstances of the interference and reflects the relevant seriousness of the interference. However, the central concern of the protection, at all levels, is the potential (in the case of verbal assaults) or actual impact on the safety of the physical body, and ultimately one’s life. This pattern of escalation is not often made in the explicit manner that Demosthenes 54 outlines above. Instead, this hierarchy is made implicit in the way that orators described instances where protection was particularly needed. To some extent there was an acknowledgement that in general day to day life, there were bound to be some low-level physical assaults, particularly where individuals had an existing relationship of enmity.53 However, this did not imply that no violation had occurred, as such assaults legitimated retaliatory action, outlined further in the following section on the right to self-defence.
The right to protection in oratory was more likely to be invoked at length when the facts involved brutal treatment which were seen to cause significant injury. For example, the assault of the nurse as related in Demosthenes 47 is particularly vivid with detail as to the kind of violation that was seen to be outrageous:
“But although my wife spoke in this way, they not only did not desist, but when the nurse took the cup which was set by her and from which she had been drinking, and put it in her bosom to prevent these men from taking it, when she saw that they were in the house, Theophemus and Evergus, this brother of his, observing her, treated her so roughly in taking the cup from her that her arms and wrists were covered with blood, as they wrenched her arms and pulled her this way and that in taking the cup from her, and she had lacerations on her throat, where they strangled her, and her breast was black and blue. And they pushed their brutality to such extremes, that they did not stop throttling and beating the old woman, until they had taken the cup from her bosom.”54
ταῦτα δὲ λεγούσης τῆς γυναικὸς οὐχ ὅπως ἐπέσχον, ἀλλὰ καὶ τῆς τιτθῆς τὸ κυμβίον λαβούσης παρακείμενον αὐτῇ, ἐξ οὗ ἔπινεν, καὶ ἐνθεμένης εἰς τὸν κόλπον, ἵνα μὴ οὗτοι λάβοιεν, ἐπειδὴ εἶδεν ἔνδον ὄντας αὐτούς, κατιδόντες αὐτὴν οὕτω διέθεσαν ἀφαιρούμενοι τὸ κυμβίον Θεόφημος καὶ Εὔεργος ἁδελφὸς αὐτοῦ οὑτοσί, ὥστε ὕφαιμοι μὲν οἱ βραχίονες καὶ οἱ καρποὶ τῶν χειρῶν αὐτῆς ἐγένοντο ἀποστρεφομένης τὼ χεῖρε καὶ ἑλκομένης ὑπὸ τούτων ἀφαιρουμένων τὸ κυμβίον, ἀμυχὰς δ᾽ ἐν τῷ τραχήλῳ εἶχεν ἀγχομένη, πελιὸν δὲ τὸ στῆθος. εἰς τοῦτο δ᾽ ἦλθον πονηρίας ὥστε,
53 Cohen, Law, Violence and Community in Classical Athens, 130. 54 Dem. 47.58-59.
30 Human Rights and Fundamental Freedoms in Athenian Oratory Chapter 2
ἕως ἀφείλοντο τὸ κυμβίον ἐκ τοῦ κόλπου αὐτῆς, οὐκ ἐπαύσαντο ἄγχοντες καὶ τύπτοντες τὴν γραῦν.
While no right is directly claimed, the reference to brutality and the surrounding narrative around the outrages committed by these men heavily implies that in this instance, the rights of the nurse had been violated. The same can be seen in Demosthenes 54, where the assault on Ariston by Conon is presented as particularly egregious because of how brutal it has been, such that Ariston has been left near death.55 The operative element in these cases above links to brutal treatment as particularly serious, given that major injuries had a significant potential to lead to death. Another indicator of the severity of physical assault is the protection against hubris, which “refers to the propensity for and the act of deliberately seeking to disrespect or dishonor another person through outrageous speech (gross verbal insult) or action (physical violence)”.56 Although it could encapsulate insulting actions that were non-physical, the focus in oratory is the context in which physical assault happens. When combined with a physical assault, hubris was seen as amongst the most significant classes of interference that was prohibited which did not result in death, and emotive language is often used in conjunction with claims that hubris has been suffered, referring to it as an outrage and in other similar terms.57
This language is often invoked in situations which involve either serious harm (such as being beaten near to death, in Demosthenes 54) or circumstances in which issues of honour and public disgrace were involved (such as being struck in public during a festival, in Demosthenes 21). It is further claimed that hubris was such an objectionable action that there ought to be no excuse or immunity that would make such actions valid or permitted.58 While identified within the sources as a special protection, its treatment aligns with the broader approach to the protection of the individual. At its core, the violation that is described in most cases of hubris is a violation of the principles of freedom and democratic respect, made manifest through actions such as physical assault.59 The erosion of such principles meant that even if the physical assault was at a low level, it represented a cavalier disregard for others, which heightened the risk of serious injury that may lead to death.
At the highest end of the spectrum of protections from physical assault is the protection of an individual’s life, which reflects the belief that people ought not to be killed as the most serious and fundamental protection. For instance, Aeschines states:
“For if no one of you would willingly defile himself with justifiable bloodshed, surely he would guard against that which was unjustifiable, such as robbing a man of life or
55 Dem. 54.8-9, 54.13. 56 Ober, "Quasi-Rights," 47. It was also used in reference to sexual violence such as the rape of women or children. Cohen, Law, Violence and Community in Classical Athens, 144-45. 57 Dem. 21.46, Hyp. Fr. B.37.1; Isoc. 20.15, 20.216. Lysias argues that the proclivity for hubris is a matter of moral character derived from one’s position, such that it is characteristic of the young, the strong and the wealthy: Lys. 24.15-18. 58 Dem. 54.21. 59 Kapparis, Athenian Law and Society, 223.
31 Human Rights and Fundamental Freedoms in Athenian Oratory Chapter 2
property or civil rights—such acts as have caused some men to kill themselves, others to be put to death by decree of the state.”60
εἰ γὰρ μηδεὶς ἂν ὑμῶν ἑαυτὸν ἀναπλῆσαι φόνου δικαίου βούλοιτο, ἦ που ἀδίκου γε φυλάξαιτ᾽ ἄν, τὴν ψυχὴν ἢ τὴν οὐσίαν ἢ τὴν ἐπιτιμίαν τινὸς ἀφελόμενος, ἐξ ὧν αὑτοὺς ἀνηρήκασί τινες, οἱ δὲ καὶ δημοσίᾳ ἐτελεύτησαν.
This is presented as a common-sense position in Athenian society, drawing upon the ritual and religious aspects that the life of a human was significant.61 This formulation of ‘robbing’ someone of their life is placed alongside civil rights, which demonstrates that life was seen as a special entitlement of any man, the breach of which was seen as ‘unjustifiable’. Of course, there are exceptions to these protections – for example, Demosthenes quotes a statute which states that:
“If a man kill another unintentionally in an athletic contest, or overcoming him in a fight on the highway, or unwittingly in battle, or in intercourse with his wife, or mother, or sister, or daughter, or concubine kept for procreation of legitimate children, he shall not go into exile as a manslayer on that account.”62
ἐάν τις ἀποκτείνῃ ἐν ἄθλοις ἄκων, ἢ ἐν ὁδῷ καθελὼν ἢ ἐν πολέμῳ ἀγνοήσας, ἢ ἐπὶ δ άμαρτι ἢ ἐπὶ μητρὶ ἢ ἐπ᾽ ἀδελφῇ ἢ ἐπὶ θυγατρί, ἢ ἐπὶ παλλακῇ ἣν ἂν ἐπ᾽ ἐλευθέροις π αισὶν ἔχῃ, τούτων ἕνεκα μὴ φεύγειν κτείναντα
The limited and closed list of exceptions provided here, particularly linked by the use of lethal force in defensive or responsive settings (i.e. fights, battle, catching an adulterer) highlights how as a general position the importance of life as an entitlement of individuals was well recognised by Athenians. The following section explores the right to take defensive action as a human right in and of itself in further detail below.
Having surveyed some of the claims to be entitled to be protected from physical assault, how could we describe the purpose of the right? First, as we have noted, there is a prima facie purpose which is to limit brutality of actions between individuals to protect each individual. The ability for man to live without fear of peril is described as the core of human happiness.63 In particular, the protection of the person is designed to ensure that the powerful do not act in an excessive manner, impliedly ensuring that all are equal. This draws forth the second implication, which is that the protection of the specific individual from the powerful is a community wide principle that provides assurances to the community at large, and allays fears of assault. The protection against physical assaults such as hubris are established to ensure that individuals can go about their business without fear for their safety. This is the very argument that is raised in Demosthenes 21 in prosecuting the hubris of Meidias, quoted at the start of this section. The effect of this is a more stable, secure and harmonious
60 Aeschin. 2.88. See also Isoc. 18.16; Lys. 3-4. 61 Antiph. 2.2.9, 4.1.2-3, Kapparis, Athenian Law and Society, 31. 62 Dem. 23.53. Lys. 1 is a case which is concerned with such a circumstance of the death of an adulterer where the speaker invokes the protection of this law. 63 Antiph. 6.1; Isoc. 8.18, 27-35; Dem. 21.221-22.
32 Human Rights and Fundamental Freedoms in Athenian Oratory Chapter 2 community. By securing the safety of the individual and their body, the overall health of the community is also safeguarded.
This purpose of the right is further reinforced in regards to the right to life. Any human death was seen to have implications around the pollution of the community and the impact of blood-guilt. When any person, regardless of status, was killed, miasma was thought to attach to the killer, as well as anyone who failed to ensure that the killer was brought to justice.64 Such pollution was therefore a concern for the whole community because the spread of contamination could invite the wrath of the dead or of the divine.65 The protection of the right to life, and through that, the limitation of pollution, reflects the view that an individual was protected both for their own behalf, and as a feature instrumental in supporting civic society. Additionally, if we accept the view expressed in Demosthenes 54 that physical assaults operate on a spectrum, the community concerns around death and miasma could extend to any form of physical injury or assault.
Let us turn then to the question of inherency and equality, which do show some variation between the sliding scale of protections for individuals. The source material naturally focusses on the protections for citizens, as expected. Problematically however, the protection of citizens is frequently a claim made alongside an exclusion of non-citizens. For example, Demosthenes 21 highlights the need for the law to protect the person of the average Athenian, and claims that the laws have made the safety of the citizen the paramount consideration.66 However, the protection is more widely afforded to all those who were free (i.e. not slaves). This extended to any regardless of gender or geographic location. For example, Demosthenes’ claim that Aeschines has assaulted a free woman of Olynthus by tearing at her dress and whipping her is treated as a serious charge of violation of the protection entitled to any individual.67 This was an incident said to be so infamous that it was talked about in Arcadia, Thessaly and “everywhere”, which again reinforces the view that this was an outrage that violated the standards not just of Athens, but of the wider world.68 In the same vein, speaker of Demosthenes 22 asserts that if indeed he was a patricide, no living man would have wanted to be associated with him, and no community would have been willing to take him in.69 Dinarchus accuses Demosthenes of an act of hubris by enabling sexual violence against the women and children of Thebes:
“It was you [the Athenians] who killed Menon the miller, because he kept a free boy from Pellene in his mill. You punished with death Themistius of Aphidna, because he assaulted the Rhodian lyre-player at the Eleusinian festival, and Euthymachus, because he put the Olynthian girl in a brothel. But through this traitor children and women, the wives of the Thebans, were distributed among the tents of the barbarians, a neighbouring and allied city has been torn up from the midst of Greece
64 Christine Plastow, Homicide in the Attic Orators (New York: Routledge, 2020), 50. 65 Margaret Visser, "Vengeance and Pollution in Classical Athens," Journal of the History of Ideas 45, no. 2 (1984): 195-96; Plastow, Homicide in the Attic Orators, 52-53. In oratory, see for example Antiph. 2.1.3, 2.2.11, 5.81-83. 66 Dem. 21.57, 179. 67 The accusation is in Dem. 19.197-198, and the response in Aeschin. 2.4-5, 2.154-157. 68 Dem. 19.198. 69 Dem. 22.1-2.
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and the site of Thebes is being ploughed and sown, the city of men who shared with you the war against Philip.”70
ὑμεῖς Μένωνα μὲν τὸν μυλωθρὸν ἀπεκτείνατε, διότι παῖδ᾽ ἐλεύθερον ἐκ Πελλήνης ἔσχεν ἐν τῷ μυλῶνι1: Θεμίστιον δὲ τὸν Ἀφιδναῖον, διότι τὴν Ῥοδίαν κιθαρίστριαν ὕβρισεν Ἐλευσινίοις, θανάτῳ ἐζημιώσατε, Εὐθύμαχον δέ, διότι τὴν Ὀλυνθίαν παιδίσκην ἔστησεν ἐπ᾽ οἰκήματος. διὰ δὲ τοῦτον τὸν προδότην παῖδες καὶ γυναῖκες αἱ Θηβαίων ἐπὶ τὰς σκηνὰς τῶν βαρβάρων διενεμήθησαν, πόλις ἀστυγείτων καὶ σύμμαχος ἐκ μέσης τῆς Ἑλλάδος ἀνήρπασται, ἀροῦται καὶ σπείρεται τὸ Θηβαίων ἄστυ τῶν κοινωνησάντων ὑμῖν τοῦ πρὸς Φίλιππον πολέμου.
Implied in this argument is that Demosthenes has violated their physical personage, by exposing them to sexual violence, drawn out further with the direct comparison to punishments for others who had also committed sexual violence. These examples that apply the standard of protection of the body beyond the Athenian polis and include people from other regions reflect a general understanding that ‘the body of the free was virtually sacrosanct’, highlighted by the comparison with the chains and fetters that represented slavery.71 Accordingly, citizens were seen to be protected from capital punishment and exile, not to an absolute extent, but certainly to a greater extent than non-citizens.72 Serious physical altercations were conclusively ended by claiming the privilege of free status, which suggests that conceptually, physical protection was the preserve of non-slaves.73
There was also a protection of bodily integrity from torture as a method of evidence extraction for people generally, which was only acceptable for slaves.74 In Isocrates 17, the statement of the facts of the case notes that a slave was unfairly withheld from torture because Pasion falsely claimed the slave was a freedman.75 This demonstrates how in the case of protection of the body from state sanctioned torture, class could in fact be determinative. Oratory posits that torture provided the most truthful evidence possible, and yet the free remained immune from such actions.76 This speaks to the strength of the protection against physical interference for the free, such that the truth in a dispute before the courts is to be of lesser regard than the violation of the body of the free. This cements the right as one reserved for a class of people, rather than for humanity generally. There are
70 Din. 1.23-24. 71 Virginia Hunter, "The Prison of Athens: A Comparative Perspective," Phoenix 51, no. 3/4 (1997): 319. 72 Dover, Greek Popular Morality, 203. 73 Dem 59.37-40; Isaeus. Fr. 18; Lys. 23. See also Dem. 53.16, which recounts an attempt by the speaker’s opponents to induce him to attack a free boy under the impression that he was a slave – the implication is that it was non-slave status that protected against assault. 74 Dem. 29.14; Isoc. 17.14, 21.4; Garner, Law and Society in Classical Athens, 42. 75 Isoc. 17.14. See also Dem. 29.14, 49.55; Lys. 23.9. This is also reflected in the very matter of fact way in which torture is contemplated as a standard form of court procedure and the rules of evidence, such as in Lys. 1.16-18. 76 Isaeus. 8.12: “You Athenians hold the opinion that both in public and in private matters examination under torture is the most searching test” ὑμεῖς μὲν τοίνυν καὶ ἰδίᾳ καὶ δημοσίᾳ βάσανον ἀκριβέστατον ἔλεγχον νομίζετε. See also Dem. 30.37, 47.8; Lys. 7.34-37.
34 Human Rights and Fundamental Freedoms in Athenian Oratory Chapter 2 also direct comparisons made in which torture is said to be appropriate and a lesser imposition vis a vis the potential loss of civic rights and exile of a citizen in a trial.77
This is further reinforced when we look to the weakness, and in some cases, the complete absence of the protection of the slaves from physical assault. In private, slave masters could essentially act with impunity to physically punish their slaves. The use of private torture as a disciplinary tool is frequently threatened in oratory. For example, the threats made in Lysias 1 in relation to the handmaid that had colluded with the speaker’s wife to facilitate Eratosthenes adulterous actions rest on the commonplace acceptance that violence was permissible against slaves.78
Moreover, physical punishment was not only possible, but expected when it came to slaves. Demosthenes argues that where the free are inviolate, slaves answer for all offences with their bodies:
“If, gentlemen of the jury, you will turn over in your minds the question what is the difference between being a slave and being a free man, you will find that the biggest difference is that the body of a slave is made responsible for all his misdeeds, whereas corporal punishment is the last penalty to inflict on a free man.”79
καὶ μὴν εἰ θέλετε σκέψασθαι παρ᾽ ὑμῖν αὐτοῖς, ὦ ἄνδρες δικασταί, τί δοῦλον ἢ ἐλεύθερον εἶναι διαφέρει, τοῦτο μέγιστον ἂν εὕροιτε, ὅτι τοῖς μὲν δούλοις τὸ σῶμα τῶν ἀδικημάτων ἁπάντων ὑπεύθυνόν ἐστιν, τοῖς δ᾽ ἐλευθέροις ὕστατον τοῦτο προσήκει κολάζειν.
This is reflected in legislation and decrees. For example, the punishment for refusing to take silver that is declared valid was fixed by the Coinage Decree as a fine and denouncement by phasis for the free, while for slaves were subject to fifty strokes of the lash.80 Notably, once one was free, protections kicked in and one’s former status was no bar to insisting on an entitlement to physical protection. Inscriptions at Delphi in relation to slaves manumitted to the service of Apollo explain that the freedom of such former slaves was one that created obligations on any passer-by to protect that person should their freedom be at risk.81 This demonstrates that protection from interference was seen as inherent to not the human condition but to the status of non-slave. However, it does again indicate a general application across cultures and societies, in which the obligations to protect it were not limited to a polis or a people, but to any person more generally.
77 Lys. 4.13. 78 Lys. 1.16-18. See also Dem. 40.14-15, 48.16-18. The majority of evidence on the actual types of punishment inflicted on slaves comes from comedy, which includes general physical blows, as well as whipping and chaining slaves as punishment. These are broadly understood to be exaggerated in terms of their presentation or extent, but reflective of Athenian practice and attitudes about permissible corporal punishment on slaves. Virginia Hunter, Policing Athens: Social Control in the Attic Lawsuits, 420-320 B.C. (Princeton: Princeton University Press, 1994), 165-68. 79 Dem. 24.167. See also Dem. 22.55. 80 Hunter, Policing Athens, 156-57. 81 Deborah Kamen, "Sale for the Purpose of Freedom: Slave-Prostitutes and Manumission in Ancient Greece," The Classical Journal 109, no. 3 (2014): 288-89.
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So far, we have considered evidence that presents a narrow, status-based view of physical protection. However, we can contrast this with more expansive statements around rights to bodily protection, which do move the right closer to an expression of inherency and equality. Hubris is a critical case study of the expansive protection provided. The law quoted by Aeschines highlights the strength of the protection and its application regardless of class or status:
“If any Athenian shall outrage a free-born child, the parent or guardian of the child shall prosecute him before the Thesmothetae, and shall demand a specific penalty. If the court condemn the accused to death, he shall be delivered to the constables and be put to death the same day. If he be condemned to pay a fine, and be unable to pay the fine immediately, he must pay within eleven days after the trial, and he shall remain in prison until payment is made. The same action shall hold against those who abuse persons of slaves”82
ἄν τις Ἀθηναίων ἐλεύθερον παῖδα ὑβρίσῃ, γραφέσθω ὁ κύριος τοῦ παιδὸς πρὸς τοὺς θεσμοθέτας, τίμημα ἐπιγραψάμενος. οὗ δ᾽ ἂν1 τὸ δικαστήριον καταψηφίσηται, παραδοθεὶς τοῖς ἕνδεκα τεθνάτω αὐθημερόν. ἐὰν δὲ εἰς ἀργύριον καταψηφισθῇ, ἀποτεισάτω ἐν ἕνδεκα ἡμέραις μετὰ τὴν δίκην, ἐὰν μὴ παραχρῆμα δύνηται ἀποτίνειν: ἕως δὲ τοῦ ἀποτεῖσαι εἱρχθήτω. ἔνοχοι δὲ ἔστασαν ταῖσδε ταῖς αἰτίαις καὶ οἱ εἰς τὰ οἰκετικὰ σώματα ἐξαμαρτάνοντες.
This passage, while focussing on the protection for the free, still explicitly extends the protection provided to slaves. This requires an acknowledgement that slaves had a body that was capable of being wrongly abused – implicit in that is a concession which contradicts the statements outlined above in relation to slaves and the very weak protections over their personage. It is also worth noting that this was not seen as a value neutral action by the Athenians. The extensive protection afforded to slaves was said to reflect the character of humanity and demonstrate that the men of Greece are mild and humane.83 This is language that invokes a view that the protection was shared on the basis of humanity, extending beyond the polis. In this way the right subsists in all people, but the Greeks have set the benchmark in the actualisation of the right into practice. Aeschines likewise claims that he would not consider his life worth living if the jury were persuaded that he would assault not just a free woman, but indeed assault any creature.84 While undoubtedly an exaggeration for dramatic effect, this sentiment still speaks to a view that there was some sort of physical integrity that ought to be afforded to all people. The same implication emerges from comparison with non-Athenians. For example, Isocrates remarks that the punishment of slaves by the Hellenes is nowhere near as cruel as the treatment by the Barbarians of the Hellenes.85 While a rhetorical exaggeration for his purpose, this argument relies on an implied baseline for what acceptable conduct in relation to slaves is, which presumably was a protection from severe or brutal treatment.
It is also worth recognising that there are contradictory justifications for the expansiveness of hubris and its protections, namely that the protection of slaves was indicia of the gravity of
82 Aeschin. 1.16. See also Hyp. fr.B.37.1, Dem. 21.46. 83 Dem. 21.46-49. 84 Aeschin. 2.5. 85 Isoc. 4.123.
36 Human Rights and Fundamental Freedoms in Athenian Oratory Chapter 2 the charge and an additional factor to deter individuals from taking such actions against their fellow citizens, rather than necessarily to protect the slave.86 The content of hubris also presents challenges, as the proscribed behaviour is described as treating free men as slaves.87 Such an approach sits oddly with the claims that even slaves could be protected from hubris – this would require some level of treatment that was beyond that which slaves normally experience. It also sits uneasily with the fact that some of the physical assaults that constitute hubris against free people, are also seen to be permissible and standard infringements of slave rights.88 However, even if this is the case, it assumes that there is some shared baseline for all, including slaves, that is capable of being violated and that ought not to be.
The inherent nature of the right to physical protection is clearest at the high end of the spectrum, namely protections for life. At its most fundamental, it was noted that a love of life is inborn and natural in all men.89 The orators also note that the early lawgivers determined that murder should be sanctioned on the basis of the impact to the community at large, not on the status of the victim as either free or slave.90 Slaves could not be killed, even by their masters. If a master killed his slave, this could generate blood guilt, which would need to be addressed like any other form of blood-guilt.91 Notably, such considerations did not attach to any other form of property, including animals.92 The broader hierarchy of physical protection can be seen in the different courts which dealt with different forms of homicide. Intentional citizen murders were considered by the Areopagus, which was considered the pre-eminent court in Athens; in contrast involuntary murder of a citizen, murder of a foreigner or murder of a slave were all considered equivalent, and considered by the Palladion.93 Nonetheless, the differential status does not shift the baseline position that individuals as a general rule could not be justifiably killed.
Slaves were seen as unique then, and it seems safe to assume that this difference was on a basis of shared existence as a human being which meant that blood-guilt was likely to arise. This is a telling concession as to the shared nature of slaves amongst the human community, as blood guilt only arose from the death of a fellow human. Just like with hubris, there are practical reasons for ensuring this protection was extensive. The need to limit miasma is commonly referred to as a justification for the prohibition on murder for anyone, even slaves.94 Practically speaking, it was also considered to be a shared concern across communities, not just Athens. For example, the importance of a binding release in relation to
86 Aeschin. 1.17. 87 Dover, Greek Popular Morality, 284. 88 For example, whipping the free was to reduce them to slave status, which was an act of hubris Lys. fr. 17.2-5. 89 Dem. 60.1. This is also expressed through the general statements that grief at the loss of life is an understandable human emotion and response – on this see: Hyp. 6.42-43; Lys. 2.71-73. 90 Lyc. 1.65-66; Isoc 12.181. 91 Antiph. 5.47; A. R. W. Harrison, The Law of Athens, 2nd ed., 2 vols., vol. 1 (London: Bristol Classical Press, 1998), 171; Todd, The Shape of Athenian Law, 185, 90; Visser, "Vengeance and Pollution," 193-94. 92 Yvon Garlan, Slavery in Ancient Greece (Ithaca: Cornell University Press, 1988), 44. 93 Raphael Sealey, The Athenian Republic: Democracy or the Rule of Law? (University Park: Pennsylvania State University Press, 1987), 70. 94 Antiph. 6.4-5; Cohen, "Crime, Punishment," 227.
37 Human Rights and Fundamental Freedoms in Athenian Oratory Chapter 2 pollution arising from death was positioned as a concern for all men, regardless of class or geographic limitation.95 The inference that we can draw then is if Athens considered pollution caused by death a universal concern, that would logically be due to the expansive view that individuals ought not be killed (i.e. that they have a right to life).
From the expansive statements on hubris and life, we also have an opportunity to reconsider assault more generally. We can read an implicit reflection in the sources the idea that the average Athenian would see physical assault of anyone as a violation of their rights, such that there was an expectation that assistance would be rendered in the moment. In Lysias 3, the speaker argues that Simon sought to seduce a slave boy with force and in a manner that amounted to ill treatment of the boy.96 When the slave boy cried out, bystanders, which presumably included citizens, were said to have leapt to his defence, creating the physical altercation at the heart of the case.97 Such actions rely on the natural assumption that if one is accosted, there is a generalised ability to call for help that is founded on the violation of a right to physical protection or autonomy. As Vlassopoulos argues, it is likely that in a city such as Athens the sheer size of the population meant that when one was merely in public it would not always be immediately clear if an individual was or was not a slave. As such, individuals were more likely to act moderately, and to provide in practice the same level of respect for the physical space of slaves they were not acquainted with, simply because one would not wish to risk assaulting a free person.98 This is reflected in the examples involving the disputes over slave girls and slave boys – in each of those cases, when accosted or assaulted in the street citizen bystanders chose to render assistance, largely on the basis that they could not know at a glance the status of a person and so defaulted to the protection of a person from physical assault.99
If then we can suggest that some protections of assault from external parties and murder were equally applicable regardless of class, are they granted through the law or through something more fundamental to provide the necessary character of inalienability? The formulations we have seen above may at first glance suggest the former, as they are contained in specific statutes to which the orators make direct reference. More general statements about the function of the law also suggest that it generates these rights – it is claimed that the purpose of the law to protect persons from assault and interference.100 This would suggest that physical protections were a grant at law, rather than a fundamental entitlement.
95 Dem. 37.59, 38.21-22, 43.57-58. 96 Lys. 3.5. 97 Lys. 3.15-17. There are other examples in which individuals called out for help and aid was provided by bystanders, regardless of the status of the person being assaulted. See for example: Dem. 47.36-40; Lys. 23.9. 98 Kostas Vlassopoulos, "Free Spaces: Identity, Experience and Democracy in Classical Athens," The Classical Quarterly 57, no. 1 (2007): 37-38, 42, 46-47. 37-38, 42, 46-47. 99 Notably, this was not a legal compulsion as we do not have evidence of so called ‘Good Samaritan’ laws requiring bystanders to render assistance in Athens. Hunter posits that the inclusion of such laws in Plato’s Laws indicates that this was likely a prevailing public sentiment. Hunter, Policing Athens, 139. 100 Aeschin. 1.4; Isoc. 20.1.
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However, we can alternately see that such rights are enforced by legal frameworks and systems, but that the law merely recognises what are considered pre-existing rights arising from moral frameworks and divine authority.101 For instance, in Demosthenes 54, it is noted that the function of the law is primarily to outline the actions and penalties that can be taken in the event that the right to physical protection is violated.102 Similar expressions are found in Demosthenes 21 and Isocrates 20.103 This implies that the role of the law was to implement a pre-existing moral standard that one’s body and person ought to be free from interference. It is also reflected in the view that as a matter of justice, one was entitled to be protected from being physically assaulted in an unprovoked manner, and that violation of such a right was an affront not to a human institution, but to fundamental social and moral standards of acceptability.104
Additionally, the right to life provides us with clear non-institutional legitimacy. Human life is often associated with the divine, and at times treated as a sacred or religious concern.105 For example, Antiphon’s Third Tetralogy argues that “…he who illegally kills one of us, who were deemed by the god to deserve life, is guilty of impiety against the gods as well as breaking the laws of man”.106 Such expressions speak to a dual layering of the relevant source of legitimacy into both the divine element involved in the protection of life, but also the potential for action following the violation of such rights through mechanisms to enforce piety, whether those are legal or moral. Even when the victim has died, there was an expectation that one act in fairness and justice to them by seeking out their killer and ensuring that the appropriate punishment was served on them.107 This is part and parcel of the concept of blood-guilt or the pollution of miasma which arose following homicide. This pollution was seen to be an affront to the divine such as the Erinyes, or to the supernatural such as vengeful spirits.108 The gods are also invoked in regard to the exceptions to homicide, which in turn implies that as a general proposition homicide was divinely prohibited. Demosthenes argues that the acquittal of Orestes by the gods indicates that there must be justifiable homicide as the gods could not provide an unjust verdict.109 We can transmit this justification for homicide to all forms of assault – as noted at the start of this section, all physical assaults were seen in a continuum which ended in homicide.110 The prohibition on lesser forms of assault is in effect a prohibition on precursors to homicide, such that we may be able to extend the justification and legitimacy from the divine. This principles-based foundation implies that the right to physical protection is one that precedes human institutions, and is in fact an essential feature of human existence as sanctioned in the divine order.
101 Cohen, "Crime, Punishment," 217-18; Kapparis, Athenian Law and Society, 36. 102 Dem. 54.16, 54.19. 103 Dem. 21.20, Isoc. 20.1-2. 104 This occurs through the use of emotive language around outrage and brutality in oratory associated with physical assault, which provides the character of the right as one that was more fundamental in terms of one’s human status and the protections that ought to be afforded in such a case. See for example Aeschin. 2.4-5, 154-157; Dem. 21.46-49, 21.227, 47.59, 54.8-10. 105 Antiph. 4.1.2-3. 106 Antiph. 4.1.2. 107 Antiph. 2.3.10, 5.10. 108 Plastow, Homicide in the Attic Orators, 52-53. 109 Dem. 23.74. 110 Dem. 54.17-19; Isoc. 20.2-3; Todd, The Shape of Athenian Law, 268-69.
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This section has focussed on the theoretical possession of rights to be protected from assault along different groups, and to an extent it has noted that there were significant shortfalls in the protection of slaves. To conclude this section, we consider the protections that were actually afforded to slaves and women to show that their framing was done in a way that further compounded the impression that protections against assault were more critical for free men.
Where the assault of slaves is decried, it is at the hands of an external party. Notably, although this is framed as the protection of the person of the slave, the principal consideration remains with the rights of the master, and the insult to them. For example, the physical assault of a slave is considered to be paradigmatic of a potential escalation into hubris against the master. In Demosthenes 54, it is noted that the sons of Conon abused and outraged the body slaves of Ariston by treating them brutally and physically assaulting them. While objectionable, this action was treated primarily as an annoyance, in that the general only rebuked the assaulters, and even then for the impact on Ariston not the slaves themselves.111 This example is provided by the speaker not to complain directly about treatment of the slaves, but rather as indicia of the true wrong to come, namely the serious physical assault of a free man. The focus is therefore on the risk to the master, rather than on the physical protection of the slave, as hubris was arguably not just about the physical effect of the actions, but also about the impact in the overall currency of honour between citizen men.112 Nevertheless, the slave was still the one principally at risk, and so to a degree they did have a right to physical protection from others, albeit that the right was conceptually contingent on their relationship to their master.
The primacy of the master as the lens through which Athens viewed the physical protection of slaves is also evident in the institution of public slave torture for evidence in court. Torture of a slave for evidence itself was not simply a procedure that could be undertake unilaterally. Instead, a challenge needed to be issued and accepted to permit a slave to be tortured, under an agreement that indicated the time, place and method for torture.113 The challenge aspect suggests that there were limitations around how a slave could be physically interfered with. However, it is important to recognise that the sources are vague on why a slave was refused torture, because the speeches available only outline where challenges are refused.114 Instead, there is a It seems likely that the concern for the slave was a concern around the utility of their valuable property, although this remains largely a point of conjecture and speculation.115
111 Dem. 54.4-5. 112 Cohen, Law, Violence and Community in Classical Athens, 123, 61-62; Stephen Todd, "Lady Chatterley’s Lover and the Attic Orators: Social Composition of the Athenian Jury," in The Attic Orators, ed. Edwin Carawan (Oxford: Oxford University Press, 2007), 388. 113 Dem. 45.16, 59.124; Hunter, Policing Athens, 71, 91-92; David C. Mirhady, "Torture and Rhetoric in Athens," in The Attic Orators, ed. Edwin Carawan (Oxford: Oxford University Press, 2007), 248-51; Todd, The Shape of Athenian Law, 96. 114 Mirhady suggests that this is because slave testimony through torture was considered to be conclusive and therefore an alternative to litigation akin to an out of court settlement or arbitration. Mirhady, "Torture and Rhetoric in Athens," 251-55. See also Hunter, Policing Athens, 93. 115 Humphreys, "Social Relations on Stage," 165; Hunter, Policing Athens, 91.
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The same framing of the protection of women in terms of the effect on the citizen male is also evident. While not described in terms of ownership, the same logical flow applies to women under the control of citizen men. An impingement on their rights was taken to be actionable because it impacted the man, and they were reliant on that man to take up that cause of action. The case the case of Lysias 3, the threats and intimidation to the women involved were couched in terms of the honour that was gained and lost by the speaker, not in terms of the effect on those women:
“Hearing that the boy was at my house, he came there at night in a drunken state, broke down the doors, and entered the women's rooms: within were my sister and my nieces, whose lives have been so well-ordered that they are ashamed to be seen even by their kinsmen.”116
ἡγοῦμαι ταῦθ᾽ ὑμῖν προσήκειν ἀκοῦσαι. πυθόμενος γὰρ ὅτι τὸ μειράκιον ἦν παρ᾽ ἐμοί, ἐλθὼν ἐπὶ τὴν οἰκίαν τὴν ἐμὴν νύκτωρ μεθύων, ἐκκόψας τὰς θύρας εἰσῆλθεν εἰς τὴν γυναικωνῖτιν, ἔνδον οὐσῶν τῆς τε ἀδελφῆς τῆς ἐμῆς καὶ τῶν ἀδελφιδῶν, αἳ οὕτω κοσμίως βεβιώκασιν ὥστε καὶ ὑπὸ τῶν οἰκείων ὁρώμεναι αἰσχύνεσθαι.
Similarly, the effect of sexual violence against women was framed in terms of the impact of the citizen male. For example, Lysias argues the penalty for adultery is rightly greater than for sexual violence because it involves the breakdown of the family unit, which principally had implications for the status and succession of the man:
“Thus the lawgiver, sirs, considered that those who use force deserve a lesser penalty than those who use persuasion; for the latter he condemned to death, whereas for the former he doubled the damages, considering that those who achieve their ends by force are hated by the persons forced; while those who used persuasion corrupted thereby their victims’ souls, thus making the wives of others more closely attached to themselves than to their husbands, and got the whole house into their hands, and caused uncertainty as to whose the children really were, the husband’s or the adulterer’s” 117
οὕτως, ὦ ἄνδρες, τοὺς βιαζομένους ἐλάττονος ζημίας ἀξίους ἡγήσατο εἶναι ἢ τοὺς πείθοντας: τῶν μὲν γὰρ θάνατον κατέγνω, τοῖς δὲ διπλῆν ἐποίησε τὴν βλάβην, ἡγούμενος τοὺς μὲν διαπραττομένους βίᾳ ὑπὸ τῶν βιασθέντων μισεῖσθαι, τοὺς δὲ πείσαντας οὕτως αὐτῶν τὰς ψυχὰς διαφθείρειν, ὥστ᾽ οἰκειοτέρας αὑτοῖς ποιεῖν τὰς ἀλλοτρίας γυναῖκας ἢ τοῖς ἀνδράσι, καὶ πᾶσαν ἐπ᾽ ἐκείνοις τὴν οἰκίαν γεγονέναι, καὶ τοὺς παῖδας ἀδήλους εἶναι ὁποτέρων τυγχάνουσιν ὄντες, τῶν ἀνδρῶν ἢ τῶν μοιχῶν.
The view expressed in the passage above is supported by the actions available to those who had been wronged. There were a wide range of actions open for prosecution of adultery, while sexual violence was more limited to a suit for violence only.118 This shows that the principal concerns involved in the sexual assault of women are principally in relation to the status and concerns of the archetypal citizen male. An adulterer is said to have committed hubris against the woman, but to the extent that the wife has suffered hubris against her, the
116 Lys. 3.6. 117 Lys. 1.32-33. 118 Kapparis, Athenian Law and Society, 228.
41 Human Rights and Fundamental Freedoms in Athenian Oratory Chapter 2 fact remains that the effect passed onto her husband, who was then empowered to act.119 That the woman may have physically suffered in assault by force is of less concern than her disposition towards her husband. In fact, the suffering the woman causes the oikos may implicitly authorise their direct physical suffering. It is noted that women who are adulterers are not to attend sacrifices or such, and if caught doing so they were able to be outraged and assaulted in any manner shy of death.120
However, there are also contrasting value statements that acknowledge the protection of the person of one’s wives and children was a critical concern in its own right, particularly in relation to warfare and the risk of the destruction of the polis. This was a shared concern that was not just Athenian, but presented as a common concern of the Greeks against external forces such as Macedon.121 Moreover, freedwomen who were not closely associated with men in their presence in oratory are presented in a fashion no different to citizen men when they have been outraged and assaulted. For example, Zorbia, assaulted by Aristogeiton after lending him some money, was described in a sympathetic manner highlighting the violation of her right to personal protection, and one that was heightened by the fact that she was a benefactor.122
This section has shown that when orators spoke about personal security, the right to life, and by extension, the right to personal protection to avoid escalation to death, there was no consistent picture. In some cases, these were protections specifically held by non-slaves, and the priority of protection favoured citizen men. However, in other cases, and particularly in relation to the right to life, protections were expansive, and justified in a manner that cast life (and by extension, any assaults that may endanger it) as a fundamental and inherent entitlement for all individuals. Indeed, it is the link to the potential for the loss of life, and by extension, the connection to underlying humanity that the orators invoke in order to strengthen the argument made that any form of physical assault or interference is a critical concern. The orators are also clear that such rights, while protecting individuals, are of a critical importance because of the way in which they enable and support an ordered and safe society.
2.3 Self-Defence
The right to be free from physical interference is focussed on pre-emptive prohibition and on recourse in the case of violation. However, the core of that right also provides an avenue of self-help and a license to act in self-defence, which is expressed as an entitlement in its own right. Self-defence is widely recognised as a principle justifying action that would otherwise be impermissible, in service of the protection of the individual or of another right.123 For instance, Demosthenes 21 relates the story of Euaeon, who killed another in retaliation at a
119 Lys. 1.4, 1.17, 1.25. 120 Dem. 59.85-86. 121 Dem. 18.215. It was also a general statement that the safety of one’s wife and children provided men with a reason to live. Dem. 50.62. 122 Dem. 25.56-57. 123 Antiph. 4.2.2; Dem 12.10; Lys. 8-9.
42 Human Rights and Fundamental Freedoms in Athenian Oratory Chapter 2 public banquet. He argues that such action was understandable, notwithstanding that Demosthenes himself has not taken such direct retaliation:
“And I consider that I was prudent, or rather happily inspired, when I submitted at the time and was not impelled to any irremediable action [i.e. the killing of the aggressor]; though I fully sympathize with Euaeon and anyone else who, when provoked, takes the law into his own hands.
My views were, I think, shared at that trial by many of the jury; for I am told that he was only condemned by a single vote, and yet he had no recourse to tears or supplications and made no effort, small or great, to win the favour of his judges. Let us assume, then, that the judges who condemned him did so, not because he retaliated, but because he did it in such a way as to kill the aggressor, while the judges who acquitted him allowed even this licence of revenge to a man who had suffered an outrage on his person.”124
ἐγὼ δ᾽ ὑπ᾽ ἐχθροῦ, νήφοντος, ἕωθεν, ὕβρει καὶ οὐκ οἴνῳ τοῦτο ποιοῦντος, ἐναντίον πολλῶν καὶ ξένων καὶ πολιτῶν ὑβριζόμην, καὶ ταῦτ᾽ ἐν ἱερῷ καὶ οἷ πολλή μοι ἦν ἀνάγκη βαδίζειν χορηγοῦντι. καὶ ἐμαυτὸν μέν γ᾽, ὦ ἄνδρες Ἀθηναῖοι, σωφρόνως, μᾶλλον δ᾽ εὐτυχῶς οἶμαι βεβουλεῦσθαι, ἀνασχόμενον τότε καὶ οὐδὲν ἀνήκεστον ἐξαχθέντα πρᾶξαι: τῷ δ᾽ Εὐαίωνι καὶ πᾶσιν, εἴ τις αὑτῷ βεβοήθηκεν ἀτιμαζόμενος, πολλὴν συγγνώμην ἔχω.
δοκοῦσι δέ μοι καὶ τῶν δικασάντων τότε πολλοί: ἀκούω γὰρ αὐτὸν ἔγωγε μιᾷ μόνον ἁλῶναι ψήφῳ, καὶ ταῦτ᾽ οὔτε κλαύσαντ᾽ οὔτε δεηθέντα τῶν δικαστῶν οὐδενός, οὔτε φιλάνθρωπον οὔτε μικρὸν οὔτε μέγ᾽ οὐδ᾽ ὁτιοῦν πρὸς τοὺς δικαστὰς ποιήσαντα. θῶμεν τοίνυν οὑτωσί, τοὺς μὲν καταγνόντας αὐτοῦ μὴ ὅτι ἠμύνατο, διὰ τοῦτο καταψηφίσασθαι, ἀλλ᾽ ὅτι τοῦτον τὸν τρόπον ὥστε καὶ ἀποκτεῖναι, τοὺς δ᾽ ἀπογνόντας καὶ ταύτην τὴν ὑπερβολὴν τῆς τιμωρίας τῷ γε τὸ σῶμ᾽ ὑβρισμένῳ δεδωκέναι.
In this case, the difference between the judgements rendered does not call into question that retaliation was an entitlement that Euaeon could rely on – instead, it was the extent of the defensive action which was at issue. That is, the right to self-defence is a natural right that flows from a right to physical protection explored in the previous section. Demosthenes’ claim is that he would have been entitled to defend himself and cause physical injury to Meidias for far less egregious an assault, but that he has shown a character of restraint by opting to not rely on this entitlement.
In what circumstances then might self-defence be made manifest? In its basic formulation, self-defence was a right which arose in circumstances demanding an immediate defensive response. For example, Demosthenes quotes a law which provides an exception for lethal force:
124 Note the preference for certain types of retaliatory action, suggesting a hierarchy of the protective right that enables the response. Dem 21.71-75.
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“If any man while violently and illegally seizing another shall be slain straightaway in self-defence, there shall be no penalty for his death”125
καὶ ἐὰν φέροντα ἢ ἄγοντα βίᾳ ἀδίκως εὐθὺς ἀμυνόμενος κτείνῃ, νηποινεὶ τεθνάναι.
Demosthenes goes on to note this specific exception attaches legitimacy to the immediacy of the response, in contrast with premeditated action.126 The dividing line between assault and self-defence is clear – the first blow, unprovoked, is an assault that violates an individual’s right to personal protection, while the second is a legitimate defence of the same right, even if it violates the physical protection of the other person. Similarly, the speakers in Lysias 3 and 4, and Antiphon in the Third Tetralogy note they were within their rights to beat off their attackers.127 Additionally, the passage above shows that the right to self-defence was robust, and could potentially cover cases where the retaliation was considered disproportionate or excessive.128 These claims even extended into circumstances that were not strictly defence: evidence of elements such as the victim’s provocation, or acting in hot blood were often raised as reasons that justified the use of force.129
Defensive actions did not always have to be a direct defence of one’s personal space or body, but could also be undertaken on behalf of others. We can see this in some of the other exceptions to the prohibition on killing. As noted in the previous section, Athenian law provided for exceptions where death arose from accidental circumstances in an athletic contest, during a fight on the highway, unwittingly in battle, or if an adulterer was killed when caught in flagrante.130 Demosthenes goes on to explain the rationale for such exceptions, which highlight defence on behalf of others:
“Again, “if in battle unwittingly”—the man who so slays is free of bloodguiltiness. Good: If I have destroyed a man supposing him to be one of the enemy, I deserve, not to stand trial, but to be forgiven. “Or in intercourse with his wife, or mother, or sister, or daughter, or concubine kept for the procreation of legitimate children.” He lets the man who slays one so treating any of these women go scot-free; and that acquittal, men of Athens, is the most righteous of all. Why? Because in the defence of those for whose sake we fight our enemies, to save them from indignity and licentiousness, he permitted us to slay even our friends, if they insult them and defile them in defiance of law. Men are not our friends and our foes by natural generation: they are made such by their own actions; and the law gives us freedom to chastise as enemies those whose acts are hostile.”131
πάλιν ‘ἂν ἐν πολέμῳ’ φησὶν ‘ἀγνοήσας,’ καὶ τοῦτον εἶναι καθαρόν. καλῶς: εἰ γὰρ ἐγώ τινα τῶν ἐναντίων οἰηθεὶς εἶναι διέφθειρα, οὐ δίκην ὑπέχειν, ἀλλὰ συγγνώμης τυχεῖν δίκαιός εἰμι. ‘ἢ ἐπὶ δάμαρτι’ φησὶν ‘ἢ ἐπὶ μητρὶ ἢ ἐπ᾽ ἀδελφῇ ἢ θυγατρί, ἢ ἐπὶ παλλακῇ
125 Dem, 23.60. 126 Dem. 23.60. 127 Antiph. 4.2.2; Lys. 3.8-9, 4.5-6. 128 Other sources note that self-defence could be successfully used in such a fashion. See further Antiphon 4.2.2; Dem 21.71-75. 129 Dem. 21.41. 130 Dem. 23.53; Lys. 1.30-31. 131 Dem. 23.55-56.
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ἣν ἂν ἐπ᾽ ἐλευθέροις παισὶν ἔχῃ,’ καὶ τὸν ἐπὶ τούτων τῳ κτείναντ᾽ ἀθῷον ποιεῖ, πάντων γ᾽ ὀρθότατ᾽, ὦ ἄνδρες Ἀθηναῖοι, τοῦτον ἀφιείς. τί δήποτε; ὅτι ὑπὲρ ὧν τοῖς πολεμίοις μαχόμεθα, ἵνα μὴ πάσχωσιν ὑβριστικὸν μηδ᾽ ἀσελγὲς μηδέν, ὑπὲρ τούτων καὶ τοὺς φιλίους, ἐὰν παρὰ τὸν νόμον εἰς αὐτοὺς ὑβρίζωσι καὶ διαφθείρωσιν, ἔδωκεν ἀποκτεῖναι. ἐπειδὴ γὰρ οὐ γένος ἐστὶν φιλίων καὶ πολεμίων, ἀλλὰ τὰ πραττόμεν᾽ ἐξεργάζεται τούτων ἑκάτερον, τοὺς ἐχθρὰ ποιοῦντας ἐν ἐχθροῦ μέρει κολάζειν ἀπέδωκεν ὁ νόμος.
Setting aside the circumstances of the Athletic contest, the remaining exceptions explained by Demosthenes arise in circumstances where individuals are acting on behalf of another. Therefore, as a right, self-defence is intrinsically linked to the guaranteeing personal protection. In terms of identifying a human rights purpose, self-defence can be said to also work to limit brutality and establish parameters of acceptable action.
What then of the question of inherency and equality between individuals? The argument here is fairly straightforward. In the same way that freedom from physical assault is described as a feature of humanity, so too are actions necessary to defend it. However, that is not to say that such rights were unqualified. As already noted, rights to retaliation like self- defence necessarily require the abrogation of another’s rights to be protected from physical interference.
On inalienability and the source of authority for the right to take defensive action, there are strong legal and institutional bases. For example, the law cited in Demosthenes 23.53 and at issue in Lysias 1 relating to permissible homicide of adulterers might suggest that it is the law which grants the right to respond to a threat or attack with violence. Demosthenes 23 makes this point explicitly in a discussion of where assault is considered to be culpable:
“Observe, gentlemen, that this is a universal distinction: it does not apply only to questions of homicide. “If a man strike another, giving the first blow,” says the law. The implication is that he is not guilty, if the blow was defensive.”132
ὁρᾶτε γὰρ ὡς ἐπὶ πάντων, οὐκ ἐπὶ τῶν φονικῶν μόνον, οὕτω τοῦτ᾽ ἔχει. ‘ἄν τις τύπτῃ τινά’ φησὶν ‘ἄρχων χειρῶν ἀδίκων,’ ὡς, εἴ γ᾽ ἠμύνατο, οὐκ ἀδικεῖ.
However, taking into account the fundamental nature of the right to be protected, we can perhaps invite an alternate, and more consistent, reading of the evidence that points a right of self-defence as being recognised by law, but to predate it. This is supported by other instances in oratory. On speaking on another protection for self-defence in the same speech, Demosthenes remarks that:
“Heaven and Earth! Is it not monstrous, is it not manifestly contrary to law — I do not mean merely to the statute law but to the unwritten law of our common humanity — that I should not be permitted to defend myself against one who violently seizes my goods as though I were an enemy?”133
132 Dem. 23.50. 133 Dem. 23.61.
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εἶτ᾽ οὐ δεινόν, ὦ γῆ καὶ θεοί, καὶ φανερῶς παράνομον, οὐ μόνον παρὰ τὸν γεγραμμένον νόμον, ἀλλὰ καὶ παρὰ τὸν κοινὸν ἁπάντων ἀνθρώπων, τὸν ἄγοντ᾽ ἢ φέροντα βίᾳ τἄμ᾽ ἐν πολεμίου μοίρᾳ μὴ ἐξεῖναί μοι ἀμύνεσθαι
This passage makes an explicit claim that one is entitled to defend themselves and their person, with direct reference to a law that sits outside of and with greater force than human institutions. Secondly, it also shows that the principle on which the right is founded is one that is common to all on the basis of humanity. This is a clear statement that the right to self- defence is one that is fundamental to all humans equally. It is also worth noting that such a framing for self-defence also reinforces that the protection of the person and the right to be free from physical interference outlined in the previous section is a right that is equally fundamental.
Returning to the first quote from Demosthenes 23, we can interpret the place of the law as simply describing and reaffirming the way fights and assaults ought to be interpreted to separate illegitimate aggression and legitimate defence. We can also apply this interpretation to the passage from Demosthenes 21 in the passage on Euaeon, which notes the jury were not making a determination according to specified laws, but rather using the law as the mechanism to implement the operation of the relevant social norms that establish whether or not certain actions are legitimately self-defence. Although not explicit, the fundamental nature of the ability to defend one’s self is strongly suggestive that the underlying right is also one that is fundamental and not linked to legal or other frameworks, and rather subsists inherently.
The foundational link between the right to self-defence and fundamental principles rather than institutional enforcement can further be seen through mapping self-defence onto metrics of value and laudability. For example, Evagoras is seen as particularly laudable because he exercises restraint and only acts in self-defence.134 By holding Evagoras, a non- Greek, as an exemplar, Isocrates establishes a shared metric in which self-defence is an acceptable license to act in manner that would otherwise not be acceptable. The differential standards are also reflected practically, through the existence of the Delphinium as a special court for testing of justified killings, including self-defence.135 While not rights claims, these value statements do point to a general understanding that self-defence was an acceptable method of action on the basis of shared fundamental principles. It is even suggested that the right to self-defence is semi-inviolate – a contract that restricts the ability for one to defend oneself is said to be manifestly absurd.136 This again speaks to the priority of the right through its justification and foundational basis in social norms and principles. Indeed, the scope of such an authorisation was also moral in nature, and in those terms, the description explicitly applies the same standard to those outside Athens. For instance, the speaker in Lysias 1 notes that the crime of adultery was one that required the same requital, and authorised the same defensive response, regardless of whether an oligarchy or a democracy as “all men abominate this outrage”.137
134 Isoc. 9.28. 135 Sealey, Athenian Republic, 73. 136 Dem. 17.21. 137 Lys. 1.2-3.
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However, the practical application of the right again points to a differential metric. Not all individuals enjoyed the right to self-defence in the same way. For many, self-defence was expressed as a correlate duty for stronger parties to take active steps to protect as noted above. In particular, this relates to women, where there was a right for a woman to claim that certain men owed her protection, both generally, and in specified circumstances.138 Men had both an entitlement and a duty to defend women from physical and sexual assaults, as well as adultery. We might explain this in relation to the way the harm that was suffered was not focussed on what happened to the woman, as noted at the end of the section above. Instead it is more accurate to speak of a view of adultery as an attack on the oikos, and therefore, the responsibility of the head of the family (i.e. the man) to rectify.139
In the same way, as a right contingent on an unjustified interference with the right of personal protection, slaves were unable to access the right practically in the face of assaults by their masters, who could act with impunity as noted above. In any case, it seems unlikely that slaves were able to undertake any form of personal self-defence – it was up to their masters to defend them from external attacks, either in the moment or by seeking recourse through the courts.140
Ultimately, the right to self-defence in oratory forms a rights claim to undertake action that is inextricably linked with the broader right to protection from assault. Importantly, this was a rights claim that was seen to be natural and inherent as a matter of both justification and of logic. It is an expression of the way in which the individual had primacy in protection other rights that were legitimately held. However, much like the other individual entitlements, the practical enjoyment of such rights showed a skew in the way in which different social sectors could enjoy those rights, highlighting the tension between the broad, generalised authorising statements around self-defence, and the much more limited way in which it was concentrated in the hands of citizen men.
2.4 Rule of Law and Access to Fair Trial
Athens considered that a large part of the ongoing stability and power of their polis was as a result of their approach to and reverence for the law. This section explores how the importance of the law was translated into entitlements to equal treatment under the law and access to legal process. These are concepts similar to modern legal theories around the rule of law, which asserts that all members of a society are subject to the law equally. Even governments and authorities must operate within the system of the law and may not arbitrarily contravene it, and that as a result individuals are protected from interference in their lives or punishment unless such is done within the remit of the law, and that the law itself was a system which did not arbitrarily discriminate.141 In addition to the general status of the law, the rule of law also describes the equal ability to access the law and its dispute recognition mechanisms.142 While it is a concept that applies to specific legal systems, the concept has also been translated into modern human rights. For instance, Article 7 of the
138 Dover, Greek Popular Morality, 98, 209-10. 98, 209-210. See also Lys. 3.6. 139 Todd, The Shape of Athenian Law, 277. 140 Garlan, Slavery in Ancient Greece, 44-45. 141 Catriona Cook et al., Laying Down the Law, 7th ed. (Sydney: LexisNexis Butterworths, 2009), 24. 142 Kapparis, Athenian Law and Society, 23.
47 Human Rights and Fundamental Freedoms in Athenian Oratory Chapter 2
UDHR states that “All are equal before the law and are entitled without any discrimination to equal protection of the law.”143 This conceptualises the law not just as a set of statutes or regulations, but rather as a complete system involving substantive rules, processes and principles which together give it an institutional form to which individuals can claim entitlement. Classical scholarship has shown that parallels can be drawn to the way in which Athens saw the role and function of the law as a social institution. Before considering thresholds of inherency and equality, it is worth highlighting some of these functions, including where they may align with and diverge from modern approaches to the rule of law.
At its most simple, the rule of law in Athens was recognised as just that – that it is not any office holder or institution that is the principal source of authority and regulation, but that it is the laws that function as rulers. Take for instance the assertion from Demosthenes that:
“And this is only reasonable; for just as they [the archons] believe that private citizens ought to obey them when they are rulers, so when they in their turn descend to the rank of private citizens, they ought to submit to the laws, which are the real rulers of the State”144
ὥσπερ γάρ, ὅταν ἄρχωσι, τοὺς ἰδιώτας οἴονται δεῖν αὑτοῖς πειθαρχεῖν, ὡσαύτως, ὅταν αὐτοὶ ἰδιῶται γένωνται πάλιν, τοῖς τῆς πόλεως ἄρχουσι νόμοις δικαίως ἂν ἀκολουθοῖεν.
This short passage shows that in the Athenian view, their society was one in which the law had primacy over regulation, rather than authority being held by any private individual over another. This is a view reflected in other speeches as well, tied to the specific Athenian democratic constitution.145 This is analogous to the core of modern rule of law theories. Beyond this simple statement, the rule of law concept also has specific elements in Athens which were treated as essential features or manifestations of the underlying principle – two in particular are explored in oratory. The first deals with the nature of the law as an institution which must on its face apply to all, and apply to all equally. Andocides asserts that the equality before the law is a fundamental character of the institution of the law:
“Now you decided that the laws were to be revised and afterwards inscribed in no circumstances were magistrates to enforce a law which had not been inscribed: that no decree, whether of the Council or the Assembly, was to override a law: that no law might be directed against an individual without applying to all citizens alike...”
ὅπου οὖν ἔδοξεν ὑμῖν δοκιμάσαι μὲν τοὺς νόμους, δοκιμάσαντας δὲ ἀναγράψαι, ἀγράφῳ δὲ νόμῳ τὰς ἀρχὰς μὴ χρῆσθαι μηδὲ περὶ ἑνός, ψήφισμα δὲ μηδὲν μήτε βουλῆς μήτε δήμου νόμου κυριώτερον εἶναι, μηδ᾽ ἐπ᾽ ἀνδρὶ νόμον ἐξεῖναι4 τιθέναι ἐὰν μὴ τὸν αὐτὸν ἐπὶ πᾶσιν Ἀθηναίοις…146
143 Article 7, Universal Declaration of Human Rights (UN, 1945) http://www.un.org/en/universal- declaration-human-rights/ (accessed 15 February 2021). 144 Dem. 26.5. 145 Aeschin. 3.6; Dem. 19.297. This is a principle also reflected in Pericles Funeral Oration: Thuc. 2.37. See also Cohen, "Crime, Punishment," 56-57. 146 Andoc. 1.89. See similar laws at Dem. 24.18, 24.59, 46.12-13.
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This expresses a practical measure for how Athens saw the concept of the rule of law and how they believed the law ought to be made. It not only describes the character of the law, but also reflects the principle that polis officials (and by extension, the apparatus of the polis as a whole) cannot undertake any official action that is not empowered by the law.147 The general principle implied is that all are equally constrained by the law and limited to actions within it. The decision of the Assembly cited by Andocides is also reflected in general statements around the operation of the law. Demosthenes cites a law which requires that any statute to be proposed not be directed to an individual and apply to all Athenians equally and opines:
“The statute just read is not, like the others, taken from the Laws of Homicide, but it is just as good—as good as ever law was. The man who introduced it was of opinion that, as every citizen has an equal share in civil rights, so everybody should have an equal share in the laws; and therefore he moved that it should not be lawful to propose a law affecting any individual, unless the same applied to all Athenians.”.148
ἔστι μὲν οὐκέτι τῶν φονικῶν ὅδ᾽ ὁ νῦν ἀνεγνωσμένος νόμος, ὦ ἄνδρες δικασταί, οὐδ᾽ ὁτιοῦν δ᾽ ἧττον ἔχει καλῶς, εἴπερ καὶ ἄλλος τις. ὥσπερ γὰρ τῆς ἄλλης πολιτείας ἴσον μέτεστιν ἑκάστῳ, οὕτως ᾤετο δεῖν καὶ τῶν νόμων ἴσον μετέχειν πάντας ὁ θεὶς αὐτόν, καὶ διὰ ταῦτ᾽ ἔγραψεν ‘μηδὲ νόμον ἐπ᾽ ἀνδρὶ ἐξεῖναι θεῖναι, ἐὰν μὴ τὸν αὐτὸν ἐφ᾽ ἅπασιν Ἀθηναίοις.
This is similar to the point made by Andocides, but it also adds further explanation and justification for the rule of law principle. This passage connects the rule of the law and its character of equality with a general belief that at the polis level, the entitlement to be treated equally and have the same rights is a functional equivalence with the equal shares that individuals had within those communities.149 In this way, the rule of law in Athens required the legal system to consist of general principles equally applied.150 Moreover, the concept of equality before the law, or the law’s binding nature of society equally, was crafted expansively and not just limited to citizen men. For example, there are several cases and claims in which freedmen and women are said to be entitled to the operation and protection of the laws, notwithstanding that the individual they were claiming against was a citizen male.151
Importantly, this was not just a concept in abstract for what the law as a system ought to be, but was treated as an entitlement which could be claimed by individuals in relation to specific cases. Hyperides expresses the concept through a series of rhetorical questions:
“Personally, gentlemen of the jury, as I was just saying to those seated beside me, what surprises me is this. Is it really true that Demosthenes, unlike any other man in Athens, is exempt from the laws which enforce an agreement made by a person against his own interest? Is he unaffected by the people’s decrees, which you have
147 See also similar sentiments that the polis restrained itself in Dem. 59.88. 148 Dem. 23.86. 149 Jeff Miller, "Democratic Characterisations of Democracy: Liberty's Relationship to Equality and Speech in Classical Athens," History of Political Thought 22, no. 3 (2001): 408-10. 150 Dem. 25.16-17, 51.11. 151 For example, see Dem. 19.56-57, 36; 43.3; Lys. 5, 32.
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sworn to observe in voting, decrees which were proposed, not by any of his enemies, but by Demosthenes himself, and which the people carried on his motion, almost as though he deliberately sought to destroy himself…”152
ἀλλ᾽ ἐγώ, ὦ ἄνδρες δικασταί, ὅπερ καὶ πρὸς τοὺς παρακαθημένους ἀρτίως ἔλεγον, θαυμάζω τουτὶ τὸ πρᾶγμα, εἰ δὴ νὴ Δία κατὰ Δημοσθένους μόνου τῶν ἐν τῇ πόλει μήτε οἱ νόμοι ἰσχύουσιν, οἱ κελεύοντες κύρια εἶναι ὅσα ἄν τις αὐτὸς καθ᾽ αὑτοῦ διάθηται, μήτε τὰ ψηφίσματα τοῦ δήμου, καθ᾽ ἃ ὑμεῖς μὲν ὀμωμόκατε τὴν ψῆφον οἴσειν, ἔγραψεν δὲ αὐτὰ οὐδεὶς τῶν ἐχθρῶν τῶν Δημοσθένους, ἀλλ᾽ αὐτὸς οὗτος, ἐψηφίσατο δὲ ὁ δῆμος τούτου κελεύοντος καὶ μόνον οὐχ ἑκουσίως αὑτὸν ἀπολλύοντος
These questions rest on the implication that the law does not allow for individuals to be given an arbitrary or personal exception to the law. The right being claimed by the speaker is to have their opponent treated in the same way as them (i.e. according to law). Similar points in other speeches:
• Demosthenes 18 defends Ctesiphon’s motion honouring him in similar terms, stating that he received no special advantage and rather that he enjoyed the same rights and the same conditions as anyone else under the law.153 • Demosthenes 21 engages in attacks on Meidias that point to the fact that he thinks himself above the law, which is a position antithetical to the very principles of the operation of Athenian law.154 • Demosthenes 24 makes a more general claim that Athens is to be lauded ensuring even meritorious and famous men alike are subject to the law.155 • Demosthenes 51 argues that the wealth of an individual should not allow them to escape punishment, as poor and rich alike ought to be treated the same by the laws.156 • Demosthenes 57 requests that the jury demonstrate for all men that whatever the age of a pleader, old or young, the court will have no prejudice and decide in accordance with justice.157 • Lysias 22 notes that even resident aliens were bound by the law and required to submit to its operation as a condition of their residence in Athens, extending the claim to equality beyond an equality between citizens.158
These examples reinforce the function of the law as an equalising force to which all were entitled. Within these statements is the implied claim that as an individual, the speaker is entitled to have their opponents subject to the law, just as any other person in their society would be. In this way, the rule of law determines that not only do the laws themselves need
152 Hyp. 5.fr. 1, col. 1. 153 Dem. 18.117. 154 Dem. 21.66. 155 Dem. 24.136. 156 Dem. 51.11. 157 Dem. 58.61. 158 Lys. 22.5.
50 Human Rights and Fundamental Freedoms in Athenian Oratory Chapter 2 to be made up of consistent and equal rules, those rules must also be applied to all and not just select individuals.159
The equal application of the rule of law leads to the second component identified in Attic oratory, which is that punishment should not be done without a trial before a jury, who were to apply and judge cases in accordance with the law and judicial principles.160 This is the most frequently asserted right which invokes the rule of law, being especially prominent in forensic oratory. Athenian oratory takes the general concept that none are above the law, and then in applying it to specific cases argues that all individuals have a right to be judged under the law and to have their peers also subject to the processes of the law, without exception. This is a right that is claimed when orators attack their opponents for seeking to undermine legal processes:
• Aeschines 3 admonishes Demosthenes for purportedly seeking to pre-empt the decision of the jury, and as such, go before the laws rather than follow them.161 • Isaeus 6 and 9 both admonish the protestations and actions made by opponents that are said to deny the right of the jury to decide.162 • Demosthenes 23 argues that the decree of Aristocrates which would grant Charidemus inviolability is particularly repugnant not just because it provides special protections for an individual, but really because it circumvents the legal process by predetermining guilt and enabling extrajudicial punishment.163 • Demosthenes 24 argues that the law of Timocrates was unjust in the way in which it deprived the courts of their ability to determine and impose justice.164 • Lysias 22 notes that it would be monstrous for the death penalty to be inflicted outside the scope of the law, such that any defendants “ought not to perish without a trial”.165 • Lysias 27 concedes that even in cases where individuals are executed without trial or defence (which are framed as exceptional cases), such instances were violations of the fundamental principle and those accused should not have perished unjudged.166
In each of the examples above, the right claimed is the right to a trial, namely the deliberative process of the jury, before reaching a conclusion in relation to guilt, culpability, and ultimately punishment. The right is also expressed in general statements that legal judgement must come before punishment as a matter of principle. It could also extend to non-court settings, such as deme meetings – the speaker of Demosthenes 57 highlights that as part of the injustice he has suffered, he was not allowed to mount a defence or put the accuser to proof at such a meeting.167 Practically, the operation of the law follows these
159 Aeschin. 1.87-89; Dem. 23.86, 35.45. 160 Aeschin. 2.77, 3.235; Andoc. 1.87; Antiph. 3.2.6, 3.3.7; Dem. 23.24-25, 24.118, 39.46; Isoc. 7.67, 20.11. 161 Aeschin. 3.23. 162 Isae. 6.4, 9.3. 163 Dem. 23.27, 23.32, 23.36, 23.216-219. 164 Dem. 24.2, 24.78. 165 Lys. 22.2. 166 Lys. 27.8. 167 Dem. 57.13.
51 Human Rights and Fundamental Freedoms in Athenian Oratory Chapter 2 general principles, and is said to typified through the application of fair trial procedures within the Athenian legal system.168 As Isocrates argues:
“I beg you, then, neither to credit nor to discredit what has been said to you until you have heard to the end what I also have to say, bearing it in mind that there would have been no need of granting the accused the right of making a defence has it been possible to reach a just verdict from the arguments of the accuser”.169
δέομαι οὖν ὑμῶν μήτε πιστεύειν πω μήτ᾽ ἀπιστεῖν τοῖς εἰρημένοις, πρὶν ἂν διὰ τέλους ἀκούσητε καὶ τὰ παρ᾽ ἡμῶν, ἐνθυμουμένους ὅτι οὐδὲν ἂν ἔδει δίδοσθαι τοῖς φεύγουσιν ἀπολογίαν, εἴπερ οἷόν τ᾽ ἦν ἐκ τῶν τοῦ διώκοντος λόγων ἐψηφίσθαι τὰ δίκαια
This expression implies that a central component of treatment according to law was the ability to plead one’s case and to be judged fairly and impartially by one’s peers. This also includes a protection that a jury is required to listen to both sides of the case fairly and impartially. Decisions are not to be made prior to hearing both sides, which is an entitlement claimed by defence speakers in particular who spoke second.170 This was supported through practical measures such as the water-clock, a device less related to absolute timing of the speeches than it was to ensure that both speakers were provided the same time to ensure neither was at an unfair advantage.171 Other measures, such as secret voting and fixed procedures also contributed to the fair trial process.172 This focus on the primacy of judgement is also reflected in statements that as a general principle it is held that only the guilty, as determined by the process of the law ought to be punished, and correspondingly that those found innocent ought not to be punished.173 Implied here is that it is not just the law, but the process of the law which makes punishment legitimate. Accordingly, the right to be able to access such processes is the one which preoccupies Athenian oratory.
Thus far, the idea that society ought to be governed by laws that treat all equally and provide all with a shared avenue for redress is one that is remarkably similar in expression of principle to modern human rights. However, when we look more closely at the way in which the law was put into practice, divergences begin to appear. In Athenian practice, the right to be treated equally before the law still involved a degree of flexibility. Athenian systems emphasised that the actualisation of justice required not just equal standing, but also a consideration of the differences between each case such as the relative status of the parties,
168 Andoc. 4.38; Hyp. 1.fr.i, 1.fr.4.11-12; Yunis, "Rhetoric of Law," 193. 169 Isoc. 15.17. Similarly, Demosthenes argues that the terms of the judicial oath sworn by the dikasts reflects the general expectation that the administration of the law involves impartial hearing of both sides. Dem. 18.2. There are also claims that individuals are entitled to plead their cases. Dem. 54.2 170 Aeschon. 2.1-3, 3.197, 3.201; Dem. 18.6-7, 24.149-151. 171 Todd, The Shape of Athenian Law, 67-68. 172 Kapparis, Athenian Law and Society, 45. 173 Andoc. 1.33; Antiphon. 3.3.10; Dem. 19.258, 21.169, 21.225; Lys. 3.4, 4.20, 6.3. At times, this is related to principles established through the mythic past and the actions of the gods – for example, the link to the determinations of Demeter and Kore in Lys. 6.3. In other cases, the construct of the law is said to be shaped by humans but enforced through divinity: ‘upholding at Heaven’s behest the laws which you had decreed’, Lys. 6.29
52 Human Rights and Fundamental Freedoms in Athenian Oratory Chapter 2 in order of justice to be delivered.174 The ability for an individual litigant to select the cause of action most appropriate for their case typifies this, and is noted as a fundamental principle of the Athenian legal system:
“Moreover you should grasp this fact, that Solon, who framed these and most of our other laws, was a very different kind of legislator from the defendant, and provided not one, but many modes of procedure for those who wish to obtain redress for various wrongs. For he knew, I think, that for all the citizens to be equally clever, or bold, or moderate folk, was impossible. If, then, he was going to frame the laws to satisfy the moderate man's claim to redress, many rascals, he reflected, would get off scot-free, but if he framed them in the interests of the bold and the clever speakers, the plain citizen would not be able to obtain redress in the same way as they would.
But he thought that no one should be debarred from obtaining redress in whatever way he can best do so. How then will this be ensured? By granting many modes of legal procedure to the injured parties. Take a case of theft. Are you a strong man, confident in yourself? Arrest the thief; only you are risking a thousand drachmas. Are you rather weak? Guide the Archons to him, and they will do the rest. Are you afraid even to do this? Bring a written indictment. Do you distrust yourself, and are you a poor man, unable to find the thousand drachmas? Sue him for theft before a public arbitrator, and you will risk nothing. In the same way for impiety you can arrest, or indict, or sue before the Eumolpidae, or give information to the King-Archon. And in the same way, or nearly so, for every other offence.”175
καὶ μὴν κἀκεῖνό γε δεῖ μαθεῖν ὑμᾶς, ὅτι τοὺς νόμους ὁ τιθεὶς τούτους Σόλων καὶ τῶν ἄλλων τοὺς πολλούς, οὐδὲν ὅμοιος ὢν τούτῳ νομοθέτης, οὐχ ἑνὶ ἔδωκε τρόπῳ περὶ τῶν ἀδικημάτων ἑκάστων λαμβάνειν δίκην τοῖς βουλομένοις παρὰ τῶν ἀδικούντων, ἀλλὰ πολλαχῶς. ᾔδει γάρ, οἶμαι, τοῦθ᾽ ὅτι τοὺς ἐν τῇ πόλει γενέσθαι πάντας ὁμοίως ἢ δεινοὺς ἢ θρασεῖς ἢ μετρίους οὐκ ἂν εἴη. εἰ μὲν οὖν, ὡς τοῖς μετρίοις δίκην ἐξαρκέσει λαβεῖν, οὕτω τοὺς νόμους θήσει, μετ᾽ ἀδείας ἔσεσθαι πολλοὺς πονηροὺς ἡγεῖτο: εἰ δ᾽ ὡς τοῖς θρασέσιν καὶ δυνατοῖς λέγειν, τοὺς ἰδιώτας οὐ δυνήσεσθαι τὸν αὐτὸν τούτοις τρόπον λαμβάνειν δίκην.
δεῖν δ᾽ ᾤετο μηδέν᾽ ἀποστερεῖσθαι τοῦ δίκης τυχεῖν, ὡς ἕκαστος δύναται. πῶς οὖν ἔσται τοῦτο; ἐὰν πολλὰς ὁδοὺς δῷ διὰ τῶν νόμων ἐπὶ τοὺς ἠδικηκότας οἷον τῆς κλοπῆς. ἔρρωσαι καὶ σαυτῷ πιστεύεις: ἄπαγε: ἐν χιλίαις δ᾽ ὁ κίνδυνος. ἀσθενέστερος εἶ: τοῖς ἄρχουσιν ἐφηγοῦ: τοῦτο ποιήσουσιν ἐκεῖνοι. φοβεῖ καὶ τοῦτο: γράφου. καταμέμφει σεαυτὸν καὶ πένης ὢν οὐκ ἂν ἔχοις χιλίας ἐκτεῖσαι: δικάζου κλοπῆς πρὸς διαιτητὴν καὶ οὐ κινδυνεύσεις. οὐδέτερον βούλει τούτων: γράφου. κατοκνεῖς καὶ τοῦτο: ἐφηγοῦ. τούτων οὐδέν ἐστι ταὐτό. τῆς ἀσεβείας κατὰ ταὔτ᾽ ἔστ᾽ ἀπάγειν, γράφεσθαι, δικάζεσθαι πρὸς Εὐμολπίδας, φαίνειν πρὸς τὸν βασιλέα. περὶ τῶν ἄλλων ἁπάντων τὸν αὐτὸν τρόπον σχεδόν.
Prima facie this entails a difference in the way in which the law might render judgements between cases. From a modern perspective, this may appear to run contrary to concepts of
174 Dover, Greek Popular Morality, 256, 73. 175 Dem. 22.25-27.
53 Human Rights and Fundamental Freedoms in Athenian Oratory Chapter 2 equality before the law, which rests on the principle that like cases lead to like outcomes.176 The choice of procedure in Athenian law means that the available punishment may be widely varied, even if the acts in question are the same.177 This is the exact situation in Demosthenes 54, in which the speaker from the outset notes that he could have brought more serious charges, and that by bringing a dike he is running little risk and limiting the scope of punishment.178 One person accused of assaulting another could face the death penalty, while another who has done the same action may only risk a fine, and this is all down to the selection of action by the prosecuting individual and their personal choices, far from a consistent or systematic principle.
Moreover, there are more directly contradictory statements that suggest the law is nothing more than a guideline rather than primary in regulating the community and it is suggested that a departure from the law and its application is in fact required. In some cases, the absence of a specific law is not seen as a barrier to a judicial decision being handed down, even if made on other metrics.179 For example, Lysias argues that Athenian courts can choose to acquit those who appear to be guilty if they show service to the polis, and that accordingly one may also be guilty even if there is no relevant law.180 He further suggests that the defendant in the case, Nicomachus, was wrong to have displayed a law that led to the execution of Cleophon.181 This implies that the law ought to have been applied unevenly in order to achieve a good outcome. In a similar fashion, Demosthenes argues that a case which has justice and humanity on its side should prevail, even if the law is not in favour of that speaker.182 Demosthenes also claims that an honest defence may include admitting that certain acts were undertaken, but that the defendant could still prove that they were done to the benefit of the polis.183 These sentiments are noteworthy because they imply a direct contradiction to the rule of law by suggesting that the law ought not to be respected or applied equally to all, an extreme version of equitable adjustment. Classical scholarship has at times suggested that the rule of law in Athens was illusory, given the expected consideration of extra-legal factors by juries and the significant potential for inconsistency, which, in effect, undermine the primacy of the law.184 However, as Wolff states:
“Athenian material and procedural law certainly bore little similarity to a rationally conceived system as we understand it. But it is a mistake to think that it was nothing
176 Fernando Lusa Bordin, "Analogy," in Concepts for International Law: Contributions to Disciplinary Thought, ed. Jean d’Aspremont and Sahib Singh (Cheltenham: Edward Elgar Publishing, 2019), 34; Kapparis, Athenian Law and Society, 49-50. 177 Todd, The Shape of Athenian Law, 160. 178 Dem. 54.1, 54.24. 179 Lys. 31.27-28. 180 Lys. 30.1. See also Dem. 25.76. 181 Lys. 30.12-13. 182 Dem. 44.8. See also: Dem. 25.76, where it is admitted that in some cases judged decided against law in favour of goodwill and compassion for modest and respectable lives; Dem. 38.20, where it is suggests that in some cases character and indulgence has more weight than the strong or correct argument; or Dem. 44.8, where it is said that a case should carry the day even if it is against the laws if it is in accordance with justice and generosity. 183 Dem. 19.203. 184 Cohen, Law, Violence and Community in Classical Athens, 183-86, 90-92; Osborne, "Law in Action," 40-58; Todd, The Shape of Athenian Law, 299.
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more than a simple collection of individual laws standing more or less in isolation, which, moreover, might be ignored by the courts if the laws seemed unjust in relation to the case at hand”185
Although Athenian oratory might not have relied on the rule of law as a concept in the modern sense, they still saw the primacy of the law as a fundamental entitlement in a distinct Athenian characterisation. We might better describe Athenian rule of law as principally an entitlement to participate in the legal system, and an entitlement to have others also judged under the same system. In this way, the primacy of the law is a primacy of legal process, not that the substantive law contained in statutes. This is reflected in the emphasis placed on the trial and jury process in oratory as outlined above. Even where the claim to treatment under the law was about equal treatment and the removal or avoidance of special privileges for individuals, the special privilege is about being able to circumvent legal processes or be excused from defending oneself at trial. It is important here to move past the modern assumption that the rule of law is that the substantive law is what provides the principal framework of rules, supported by due process and equal access, and instead reverse that. This reflects the character of Athenian law as they understood it, noted in the introduction, that the processes of the law are less about statutory interpretation or legislative implementation, but about whether the actions done were right or wrong, and whether the accused is good or bad and in combination, deserving of punishment.186 Nevertheless, direct disobedience to the law is not a feature of such pleading. Instead, the framing provided by the orators is one that seeks to “configure the facts in such a way that jurors could in good conscience apply the law” that is cited in favour of the speaker.187 This reflects the orthodox view of the Athenian legal system as a whole as one which, for a number of reasons, prioritises matters of procedure over matters of substance.188
The rule of law as primarily a procedural form reflects an entitlement to equal access to the systems and processes of the law. However, the ability to have all access the law was not defended and supported in oratory as a conceptual good in and of itself. The overall operation of the system and the rights to it were conceived by the orators as a bulwark against civil strife, and accordingly to ensure the overall smooth and proper functioning of civil society. Laws were seen to determine the interpersonal relations of those within the polis, and the relationship of those individuals to the polis itself.189 The regulation of those
185 Hans Julius Wolff, "Demosthenes as Advocate: The Functions and Methods of Legal Consultants in Classical Athens," in The Attic Orators, ed. Edwin Carawan (Oxford: Oxford University Press, 2007), 94-95. 186 Cohen, Law, Violence and Community in Classical Athens, 190-92; Ober, "Law and Political Theory," 394. 187 Wolff, "Demosthenes as Advocate," 107. 107. In part this effort is done through the art of the orators as speechwriters, who used narrative and character evidence to represent the litigant as in accordance with not just the right side of the case, but also “as part of a just and harmonious pattern disrupted by the adversary”. S. C. Humphreys, "Social Relations on Stage: Witnesses in Classical Athens," ibid., 202. 188 Todd, The Shape of Athenian Law, 64-73. 189 Dem. 24.192. See also Dem 25.16 which treats the law as a covenant between all individuals and the polis which determines how day to day life ought to be regulated.
55 Human Rights and Fundamental Freedoms in Athenian Oratory Chapter 2 relationships was done in order to maintain stability. For example, Demosthenes claims in an attack on Aristogeiton’s attempt to exercise rights to which he was not entitled that:
“…if, acting on this principle, the citizen rejected at the ballot or at the election should put himself on an equality with the chosen citizen; if, in a word, neither young nor old should do his duty, but each man, banishing all discipline from life, should regard his own wish as law, as authority, as all in all—if, I say, we should act like this, could the government continue to be carried on? What? Would the laws be any longer valid? What violence, insolence and lawlessness there would be throughout the city every day! What scurrility instead of our present decency of language and behaviour!
Why need one repeat that order is everywhere maintained by the laws and by obedience to the laws? You yourselves have the sole right of judging our case, though every Athenian was in the ballot and all, I am sure, wanted to be allotted to this court. Why is this? Because by lot you were chosen and then assigned to this case. Those are the instructions of the law. And then will you, who owe your presence here to the laws, allow a man, who flouts the laws by word and deed, to escape from your grasp? Will none of you show anger or bitterness at this shameless ruffian's defiance of the laws?”190
εἰ ταῦτα διανοηθεὶς ὁ μὴ λαχὼν τῷ λαχόντι καὶ ὁ μὴ χειροτονηθεὶς τῷ χειροτονηθέντι ἐξ ἴσου ζητοίη εἶναι καὶ τῶν αὐτῶν μετέχειν, καὶ ὅλως μὴ νέος, μὴ πρεσβύτερος τὰ προσήκοντα πράττοι, ἀλλὰ πᾶν τὸ τεταγμένον ἐξελάσας ἕκαστος ἐκ τοῦ βίου, τὴν ἑαυτοῦ βούλησιν νόμον, ἀρχήν, πάνθ᾽ ὑπολαμβάνοι: εἰ ταῦτα ποιοῖμεν, ἔστι τὴν πόλιν οἰκεῖσθαι; τί δέ; τοὺς νόμους κυρίους εἶναι; πόσην δ᾽ ἂν οἴεσθε βίαν καὶ ὕβριν καὶ παρανομίαν ἐν ἁπάσῃ τῇ πόλει καθ᾽ ἑκάστην τὴν ἡμέραν γίγνεσθαι καὶ βλασφημίαν ἀντὶ τῆς νῦν εὐφημίας καὶ τάξεως;
καὶ τί δεῖ λέγειν ὅτι τοῖς νόμοις ἅπαντα κοσμεῖται καὶ τῷ τούτοις πείθεσθαι; ἀλλ᾽ ὑμεῖς αὐτοὶ πάντων ἄρτι κληρουμένων Ἀθηναίων, καὶ πάντων εὖ οἶδ᾽ ὅτι βουλομένων εἰς τοῦτο λαχεῖν τὸ δικαστήριον, μόνοι δικάζεθ᾽ ἡμῖν. διὰ τί; ὅτι ἐλάχετε, εἶτ᾽ ἀπεκληρώθητε: ταῦτα δ᾽ οἱ νόμοι λέγουσιν. εἶθ᾽ ὑμεῖς αὐτοὶ κατὰ τοὺς νόμους εἰσεληλυθότες τὸν παρὰ τοὺς νόμους λέγειν ἢ πράττειν τι βιαζόμενον λαβόντες ἀφήσετε; καὶ οὐδεὶς ὑμῶν χολὴν οὐδ᾽ ὀργὴν ἔχων φανήσεται ἐφ᾽ οἷς ὁ βδελυρὸς καὶ ἀναιδὴς ἄνθρωπος βιάζεται τοὺς νόμους;
The contrasts drawn in this passage are between a state of lawlessness and anarchy because of the breakdown of the rule of law with legality and stability. Implied in that breakdown is the violation of other rights, such as that of personal safety, that were also seen to be fundamental. Similar sentiments are also found in other orators, expressing the view that the primacy of the law and its even application was a bulwark against disorder:191 The function of the legal system, and the right and obligation to use the legal system as the dispute resolution mechanism channels what otherwise would be interpersonal violence into a system which gave equal footing to those in conflict, and reduced the risk of significant escalations of violence.192 Therefore, the value in the regulation of the law was the way in
190 Dem. 25.26-27. 191 Aeschin. 1.5; Andoc. 4.19; Dem. 22.39, 25.21, 35.54; Thuc. 2.37.3 192 Kapparis, Athenian Law and Society, 215.
56 Human Rights and Fundamental Freedoms in Athenian Oratory Chapter 2 which it provided certainty, in line with established expected standards of behaviour within society. The orators note it is not the laws themselves that can actually stop wrongs, but that the best they can do is provide some form of redress.193 The law provided the framework within which private disputes were regulated, and its equal application to all ensured that individuals were able to with certainty understand what their options were.
It also speaks to a protective function of the rule of law and the court in Athens, which is conceived of as a critical safeguard for those who may be weaker or less privileged to be able to assert their rights on equal footing.194 The rule of law was seen to be an important safeguard against the excesses of individuals who might grow too powerful and then be able to use their power at the expense of others.195 In much the same fashion, Demosthenes links the effect of an individual being above the law due to their wealth as a distortion of the entire community’s equal and just rights.196 The equalising function of the law served to limit the scope of action of individuals, which was assumed to therefore be a safeguard against brutality. Individuals were less likely to engage in outrage if their victims had a right to pursue them regardless of any other power disparity such as renown or wealth.
To link back to the human rights purposes outlined in the previous chapter, we can see that the rule of law in the first instance operated as a social institution and an entitlement to have and access the structure of the law. The structure of the law also implied a protective function which limited the likelihood of brutality and arbitrary action by ensuring that individuals had the right to demand that their peers engage with them through the systems and regulatory frameworks established by the law.
The examples provided from Athenian oratory, while clearly articulating the expansive scope of rights to the rule of law, also problematically focus on the Athenian experience. This presents a challenge in rendering the right to the rule of law as one which is inherent to humanity. In the Athenian conception, the concept of equality before the law was an extension of the guiding democratic principle that all have an equal share in the constitution and administration of the polis.197 The sources explicitly provide for a link between Athenian democracy and the rule of law, and in the inverse, contrast it with the lack of the rule of law under oligarchy.198 The first question is therefore one of geographic application. Characterisations of this kind are closely linked to democratic political systems, given the virtues of such systems were the purported safeguards against arbitrary power seen in tyrannies and oligarchies. As Aeschines notes:
193 “For nothing prevents even innocent persons from being ill-treated by the stronger” κακῶς μὲν γὰρ παθεῖν ὑπὸ τῶν κρειττόνων οὐδὲν κωλύει καὶ τοὺς μηδὲν ἐξημαρτηκότας Isoc. 10.47. Similarly, it is noted that the laws in and of themselves are of no assistance to a victim in the moment, but rather that they gain force through judgement of the jury. Dem. 21.224. 194 Isaeus. 9.35. 195 Kapparis, Athenian Law and Society, 60. 196 Dem 21.112. This theme is also returned to in the same speech, where the breach of the rule of law principle is said to harm the liberties and freedom of speech of individuals. Dem 21.124-125. 197 Dem. 24.59. 198 In linking to democracy, see for example Dem. 24.5, 25.11. In contrasts to oligarchy, see Aeschin. 1.5, Dem 24.75-76.
57 Human Rights and Fundamental Freedoms in Athenian Oratory Chapter 2
“It is acknowledged, namely, that there are in the world three forms of government, autocracy, oligarchy, and democracy: autocracies and oligarchies are administered according to the tempers of their lords, but democratic states according to established laws. And be assured, follow citizens, that in a democracy it is the laws that guard the person of the citizen and the constitution of the state, whereas the despot and the oligarch find their protection in suspicion and armed guards.”199
ὁμολογοῦνται γὰρ τρεῖς εἶναι πολιτεῖαι παρὰ πᾶσιν ἀνθρώποις, τυραννὶς καὶ ὀλιγαρχία καὶ δημοκρατία: διοικοῦνται δ᾽ αἱ μὲν τυραννίδες καὶ ὀλιγαρχίαι τοῖς τρόποις τῶν ἐφεστηκότων, αἱ δὲ πόλεις αἱ δημοκρατούμεναι τοῖς νόμοις τοῖς κειμένοις. εὖ δ᾽ ἴστε, ὦ ἄνδρες Ἀθηναῖοι, ὅτι τὰ μὲν τῶν δημοκρατουμένων σώματα καὶ τὴν πολιτείαν οἱ νόμοι σῴζουσι, τὰ δὲ τῶν τυράννων καὶ ὀλιγαρχικῶν ἀπιστία καὶ ἡ μετὰ τῶν ὅπλων φρουρά.
In the example above, claims made around the rule of law were described as a feature of Athenian political and legal systems. The existence and primacy of the laws as a system was also claimed to be the source of prosperity, liberty and popular government in Athens.200 This is also supported by the historical narratives around the reforms of Solon and Cleisthenes noted above, which see the rule of law as the product of deliberate choices made by Athens in regard to their constitution. Other statements around the history of the Athenian system also point to Athenian exceptionalism, with speakers lauding Athens for being the first to make use of the laws and the practice of justice.201 Of the range of government systems, democracy was seen as founded on the law, the jury and abeyance to procedure.202 This is also implied in the contrast between the Thirty and the pro-democrats who succeeded them – indeed, the despotic character of the rule of the Thirty that was so reviled was centered upon their choice to undermine the due process of the law and to arrest and execute without trials or other due process.203 More generally, the period under the Thirty was said to be a time in which the laws were not recognized, which led to a rule of injustice.204 Hyperides contrasts the primacy of the law (impliedly under the Greeks) with despotism (impliedly under Macedon) and concludes the ultimate difference these systems makes is the impact on the relative happiness of the citizenry.205
However, this distinction can be interpreted alternatively as a failure of implementation, rather than as a special feature of democracy. Athenian exceptionalism is simply to have selected a form of government which is the best at achieving the shared protection of the fundamental rights claim. For instance, it is claimed that a successful government will prevent outrages against the people, fairly attribute honours and preserve the rights of all:
199 Aeschin. 1.4-5. Similar sentiments are also expressed at Aeschin. 3.6. This is also tied to exhortations that a jury vote not with personal feeling, but in accordance with law (i.e. they serve merely to enforce the law). Lys. 15.3-4, 15.9. 200 Dem. 24.5, 24.155; Kapparis, Athenian Law and Society, 314. 201 Isoc. 12.124. 202 Lyc. 1.3-4. 203 Aeschin. 2.77, 3.235; Dem. 22.52; Lys. 13.78-79. 204 Aeschin. 3.190, Lys. 12.21, 12.82, Xen. Hell. 2.3.21, 2.3.43, 2.4.1. 205 Hyp. 6.25.
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“…knowing that all governments – oligarchies as well as the others – have the longest life when they best serve the masses. You will be a wise leader of the people if you do not allow the multitude to either do or suffer outrage, but to see to it that the best among them shall have honours, while the rest shall suffer no impairment of their rights; for these are the first and most important elements of good government.”206
γιγνώσκων ὅτι καὶ τῶν ὀλιγαρχιῶν καὶ τῶν ἄλλων πολιτειῶν αὗται πλεῖτον χρόνον διαμένουσιν, αἵ τινες ἂν ἄριστα τὸ πλῆθος θεραπεύωσιν. καλῶς δὲ δημαγωγήσεις, ἔαν μήθ᾽ ὑβρίζειν τὸν ὄχλον ἐᾷς μήθ᾽ ὑβριζόμενον περιορᾷς, ἀλλὰ σκοπῇς ὅπως οἱ βέλτιστοι μὲν τὰς τιμὰς ἕξουσιν, οἱ δ᾽ ἄλλοι μηδὲν ἀδικήσονται: ταῦτα γὰρ στοιχεῖα πρῶτα καὶ μέγιστα χρηστῆς πολιτείας ἐστίν.
This formulation is repeated throughout oratory with more specific elements called out – for example, the good city will ensure that the masses get their just rights in trials and a due share of privileges ‘common to all’.207 On a more conceptual level, Demosthenes explicitly notes that all men are subject to both nature and law, as a universal system:
“The whole life of men, Athenians, whether they dwell in a large state or a small one, is governed by nature and by the laws. Of these, nature is something irregular and incalculable, and peculiar to each individual; but the laws are something universal, definite, and the same for all.”208
ἅπας ὁ τῶν ἀνθρώπων βίος, ὦ ἄνδρες Ἀθηναῖοι, κἂν μεγάλην πόλιν οἰκῶσι κἂν μικράν, φύσει καὶ νόμοις διοικεῖται. τούτων δ᾽ ἡ μὲν φύσις ἐστὶν ἄτακτον καὶ κατ᾽ ἄνδρ᾽ ἴδιον τοῦ ἔχοντος, οἱ δὲ νόμοι κοινὸν καὶ τεταγμένον καὶ ταὐτὸ πᾶσιν.
These passages highlight that the governance of the laws, and the stability and security for individuals that follows is a feature which ought to be present as a matter of course in a good human society. Athens also presented itself as the leading force when it came to the development and application of a robust legal system characterised by the rule of law, noting at several points that other communities sought to emulate Athens and model their approach to law on Athens.209 Likewise, it is treated as an unfortunate reality that many do not get to enjoy these rights because they live under Barbarians or tyrannical systems.210 In more modest terms, it is generally expressed that the best lawgivers ensure that their cities are the best ordered.211 While an admission that the practical benefit of the rule of law may not be felt by all, such formulations actually strengthen the view that the right to the primacy of law ought to be accessible to all individuals, not simply those who happened to live in democratic poleis.
206 Isoc. 2.16. 207 Isoc. 15.309. Lys. 19.2-3 invokes similar language, and then references the concept of impartial trial as a given based on such shares. Dem. 24.193 frames the principle as a general purpose for any legal system in any community. 208 Dem. 25.15. 209 Aeschin. 1.117-118, 1.122, Dem. 24.210. 210 Isoc. 4.39-40; Hyp. 6.25. 211 Dem. 26.25-26.
59 Human Rights and Fundamental Freedoms in Athenian Oratory Chapter 2
Critics or opponents of the radical democratic model of Athens, or even critics of the court system themselves did not seek to deny the rule of law as a fundamental principle, but instead based their arguments on implementation concerns.212 Notably, both pro-and anti- democratic ideology was united in the view that the law ought to operate as a safeguard and mechanism for the resolution of disputes. The difference in political ideology was not about the goal, but the method by which the law could best be enabled to undertake its important safeguarding function.213 Indeed, in some examples even where social systems were explicitly not democratic, the reference to the same principles of the rule of law are present as legitimating authority. Democratic terms relating to the rule of law like isonomia are by the oligarchs of Thebes to justify their government.214 During the rule of the Thirty, it is asserted that they justified their use of the death penalty as having a person condemned in accordance with the law.215 There are also examples from other poleis invoked as positive applications of the rule of law, from which Athens itself ought to draw on or emulate.216
Attic oratory does not include many examples of cases from outside Athens, but where they do, similar principles emerge. In Isocrates 19, one of the few cases we have from outside of Athens, it is noted that because the incident in question occurred in Aegina, it is the law of Aegina that should apply.217 This might imply a limitation to the law of Aegina. However, this can still be read consistently with a general principle of the rule of law was one that was shared and comparable even between poleis. That is, the standards expressed in relation to equality before the law are a baseline standard from which the specifics of different legal systems must be founded in order to be legitimate. This reading is strengthened by the rest of the argumentation in Isocrates 19, which makes reference to the same principles in materially the same language.218
It is also strengthened when Athenian actions to protect the laws and constitutions of other poleis are treated as laudable action. For example, Demosthenes recounts the commendation of the Byzantines following the restoration of their constitution and laws following the siege of Philip.219 This was presented as an example of Athenian protection of the fundamental existence of another polis, but it did not invoke the concept of installing Athenian laws – instead, it was the restoration of existing Byzantine laws (and implied in this, their primacy in social regulation) that was seen to be most laudable. Demosthenes goes on to claim that such actions won Athens acclaim from the whole world and all of mankind, indicating that the primacy of the laws and their protection was indeed a shared fundamental
212 Isocrates argues institutions such as jury pay and the broader culture of the court have allowed it to be twisted by sycophantic orators to create injustice: Isoc. 2.50, 7.54, 8.129-130, 15.20-23. 213 Cohen, Law, Violence and Community in Classical Athens, 34; "Crime, Punishment," 233; Raaflaub, Discovery of Freedom, 95. 214 Thuc. 3.62.3. 215 Xen. Hell. 2.3.54. This formulation is consistent with the standard form phrasing used for such punishments in democratic settings. Hunter, "The Prison of Athens," 299. The use of rule of law principles by the Thirty is also seen in oratory that criticises them, noting that the Thirty claimed to purge the unjust and lead the people to virtue and justice, but in fact did the opposite. Lys. 12.5-8. 216 Aeschin. 1.180-181. 217 Isoc. 19.12-13. 218 Namely that accordance with law and justice is the relevant metric. Isoc. 19.16. 219 Dem. 18.90-91.
60 Human Rights and Fundamental Freedoms in Athenian Oratory Chapter 2 value.220 More generally, it was an abrogation of commonly recognised principles and typical of violence and cruelty that Philip had overthrown constitutions as part of his conquest.221 This is therefore an example of how such rights can at once be said to have generalist application (i.e. as an operative and guiding principle) and yet still retain a society specific formulation (i.e. in the application of specific laws which may differ from place to place).
Similarly, there is an explicit statement in Lysias 1 that “every city makes its laws in order that on any matter which perplexes us we may resort to them and inquire what we have to do”.222 Pan-Hellenic standards are also invoked where the argument is that the rule of law is under threat, with the logic that a failure to uphold the rule of law will have reputational impacts for Athens as a whole, or vice versa in that upholding the rule of law will set an exemplar for others and enhance Athenian standing.223 These examples show that at the very least in the mind of the Athenians, their approach to the rule of law was mapped onto a shared understanding of what human society ought to look like that went beyond the bounds of any one polis.
At this point, we can comfortably conclude that in Attic oratory, there was seen to be a shared principle around the rule of law, and that it was a principle which extended beyond the Athenian polis as part of a general expected standard for any society and government. However, a further question arises as to the source of this principle and whether it is derived specifically from the structure of each polis or from something deeper which implies a human right rather than not a civic right. The source material is not so clear. There are accounts in which the ability to punish or to acquit (i.e. to use or apply the law) is granted at law.224 Both Andocides and Demosthenes rely on other statues as evidence for why future laws must apply to all equally and cannot single out individuals.225 However, in the discussion above about the cross-community expansiveness of the rule of law concept, we have the implication that while the practices and principles may be determined from institutional sources and derive their force from them, they are not created by those institutions. These implications are ultimately expressions of an underlying view that individuals as members of a society were entitled to access the protection of the law and legal system. The underlying entitlement does not protect or prescribe a manner of access, merely that access exists.
Additionally, the claim to a right to be subject to the law is something that must exist outside of such structures, as it is such claims that enhance and reinforce the legitimacy of that legal system. The very character of the right is not presented as a product of institutions, but rather as a necessary component of their existence. Moreover, the nature of the rights claim to treatment under the law is not value agnostic and closely intertwined with moral considerations and metrics which sit outside and precede the law. For instance, in calling upon the right to be treated according to law, speakers invoked fairness metrics, claiming a specific entitlement to fair judgement from the jury in accordance with the laws.226 This is
220 Dem. 18.93-94. 221 Dem. 18.181-182. 222 πάσας τὰς πόλεις διὰ τοῦτο τοὺς νόμους τίθεσθαι, ἵνα περὶ ὧν ἂν πραγμάτων ἀπορῶμεν, παρὰ τούτους ἐλθόντες σκεψώμεθα ὅ τι ἡμῖν ποιητέον ἐστίν. Lys. 1.35. 223 For example, Isoc. 12.124; Lys. 6.7, 6.54, 14.13. 224 Demad. 1.1. 225 Andoc. 1.87-89; Dem. 23.86. 226 Andoc. 1.1, 9-10; Hyp. 1.fr.4.11-12, Isaeus. 2.47, 6.65, 11.6.
61 Human Rights and Fundamental Freedoms in Athenian Oratory Chapter 2 true more broadly, in which the protections and procedures outlined above are said to enable and guarantee fairness, which will ensure that decisions are themselves just.227 Ultimately, claims around the rule of law and the primacy of justice invoke not merely court procedures, but procedures of fair trials.
Similarly, the foundational moral claim is also made to concepts such as ‘justice’. ‘Justice for the offender’ is a shorthand expression for rights claims to treatment by the law, and in particular to fair hearings and presumption of innocence. For example, it is noted that a laudable aspect of Draco’s homicide law is that retained a claim to justice for an alleged offender.228 It was also claimed that an unjust trial was equivalent to an unjust punishment.229 In the same vein, false oratory was said to remove the security from an unjust death or punishment.230 Each of these statements connect justice as a necessary component of the protection and the right to be claimed. It is not that death or punishment were themselves objectionable, but it is the fact that they would be unjust that renders them objectionable. Indeed, the very action of enforcement is linked to the actualisation of justice, where legal enforcement is equivocated with the “power to do justice to wrongdoers”.231 Demosthenes notes that it is the jury’s duty to side with those who appeal with justice on their side.232 Juries are similarly exhorted to avenge on behalf of both the laws and justice.233 This is also reflected in the oaths sworn by jurors, in which jurors undertake to judge in accordance with the laws, and in the absence of laws, in accordance with principles of justice.234 This extends the connection between justice principles and the very operation of institutions that can be said to be responsible for the rule of law. Similarly, at the inter-poleis level, the operation and primacy of the law as a system in and of itself is linked to the existence of justice. For example, Hyperides contrasts Macedonian arrogance and rule with the power of justice.235
Additionally, there are examples that at the broadest level, the law (including entitlements to assert its primacy over all and rights around access to the systems of the law) was conceived of as a defining feature of humanity in a natural or divine order, being described as the human mechanism to honour good and punish evil, in direct opposition to the way of beasts.236 In terms of natural order, oratory includes claims in which legal systems were thought to coincide with the birth of humanity.237 Fair trial principles are said to be the entitlement of humans, on the basis that they have been endowed with the same nature by fortune, implying that it is on a human basis that one has such rights.238 Indeed, the criticality
227 Aeschin. 2.24 Andoc. 4.38; Dem. 23.76; Hyp. 1.fr.1; Dover, Greek Popular Morality, 270. 228 Dem. 20.158. 229 Demad. 1.62. 230 Isoc. 15.18-19. 231 Lys. 14.11. 232 Dem. 21.177. 233 Antiph. 1.3, 1.24, 2.1.10-11; Isaeus. 1.26, 35; Lys. 13.1, 13.48, 13.92. 234 Aeschin. 2.232-233; Andoc. 1.31; Dem 18.2, 19.219-220, 23.101, 24.148-151; Lyc. 1.79. 235 Hyp. 6.20. 236 Dem. 25.20; Lys. 2.19. 237 “…ever since mankind and the criminal law first came into being…” …ὅτι ἀφ᾽ οὗ γεγόνασιν ἄνθρωποι καὶ κρίσεις γίγνονται... Dem. 19.215. 238 Dem. 23.72.
62 Human Rights and Fundamental Freedoms in Athenian Oratory Chapter 2 of the trial process to the protection of the individual was recognised with the Prytaneum, which conducted trials over objects – as Demosthenes argues:
“Well, if it is not righteous to deny a trial even to a lifeless and senseless thing, the object of so grave an accusation, assuredly it is impious and outrageous that a man who may possibly be not guilty, and who in any case,—and I will assume him to be guilty,—is a human being endowed by fortune with the same nature as ourselves, should be made an outcast on such a charge without a hearing and without a verdict.”239
εἰ τοίνυν τῶν ἀψύχων καὶ μὴ μετεχόντων τοῦ φρονεῖν οὐδέν ἐσθ᾽ ὅσιον, τοιαύτην ἔχον αἰτίαν, ἐᾶν ἄκριτον, ἦ που τόν γ᾽ ἀδικοῦντα μὲν οὐδέν, ἐὰν τύχῃ, θήσω δ᾽ ἀδικοῦντα, ἀλλ᾽ ἄνθρωπόν γ᾽ ὄντα καὶ μετειληφότα τῇ τύχῃ τῆς αὐτῆς ἡμῖν φύσεως, ἀνόσιον καὶ δεινὸν ἄνευ λόγου καὶ ψήφου ποιεῖν ἔκδοτον ἐπ᾽ αἰτίᾳ τοιαύτῃ.
Notice here that rights to fair trial were incredibly expansive – it was acknowledged that while trial for an object might appear to be odd, it was indicative of the importance of all humans, united by the shared nature endowed by fortune, to be afforded fair trials. Additionally, this was not just seen as an important preserve for the individual, but also extended to the community. It was acknowledged that maintenance of the law through fair trial and just decision making would benefit not just citizen men, but all within the city including aliens, women and children.240 The implication here is that the rights and protections afforded by the law were shared regardless of class, and therefore were based on humanity.
Other formulations also attribute the concept of the law as a system as the gift of the gods.241 In this way, legal systems and their primacy in social regulation were presented as extensions of an overall divine system of law that governed everything.242 As an extension of that principle we see the claim that ensuring fair trial was observed set an example to the whole world and mankind generally, in accordance with divine will:
“And now I would mention the advice that Diocles son of Zacorus the officiating priest, and our grandfather, gave you when you were deliberating on the measures to be taken with a Megarian who had committed impiety. Others urged that he be put to death at once, unjudged; he counselled you to judge him in the interest of mankind, so that the rest of the world, having heard and seen, might be more sober-minded, and in the interest of the gods he bade each of you, before entering the court, judge first at home and in his own heart what should be the fate of the impious.”243
βούλομαι τοίνυν εἰπεῖν ἃ Διοκλῆς ὁ Ζακόρου τοῦ ἱεροφάντου, πάππος δὲ ἡμέτερος, συνεβούλευσε βουλευομένοις ὑμῖν ὅ τι δεῖ χρῆσθαι Μεγαρεῖ ἀνδρὶ ἠσεβηκότι.
239 Dem. 23.76. 240 Dem. 25.101. 241 Dem. 25.16. 242 For example, see Dem. 26.27: “…since the whole round world, the heavenly bodies and what we call the seasons are plainly, if we can trust our senses, controlled by law and order.” ἐπεὶ καὶ τὸν ὅλον κόσμον καὶ τὰ θεῖα καὶ τὰς καλουμένας ὥρας νόμος καὶ τάξις, εἰ χρὴ τοῖς ὁρωμένοις πιστεύειν, διοικεῖν φαίνεται. 243 Lys. 6.54.
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κελευόντων γὰρ ἑτέρων ἄκριτον παραχρῆμα ἀποκτεῖναι, παρῄνεσε κρῖναι τῶν ἀνθρώπων ἕνεκα, ἵνα ἀκούσαντες καὶ ἰδόντες σωφρονέστεροι οἱ ἄλλοι ὦσι, τῶν δὲ θεῶν ἕνεκα οἴκοθεν ἕκαστον, ἃ δεῖ τὸν ἀσεβοῦντα παθεῖν, αὐτὸν παρ᾽ ἑαυτῷ κεκρικότα εἰς τὸ δικαστήριον εἰσιέναι.
Other claims identify a divine sanction or favour for ‘fair treatment by the law’.244 The administration of justice and the fairness of the vote provided by the jury is also linked to the divine, in which the gods and divine spirits are said to know him who casts an unrighteous vote.245 Most notably, justice as a concept is also personified into the divine and invoked in oratory, when urging juries to commit to the principles of fair trial:
“You must magnify the Goddess of Order who loves what is right and preserves every city and every land; and before you cast your votes, each juryman must reflect that he is being watched by hallowed and inexorable Justice, who, as Orpheus, that prophet of our most sacred mysteries, tells us, sits beside the throne of Zeus and oversees all the works of men. Each must keep watch and ward lest he shame that goddess, from whom everyone that is chosen by lot derives his name of juror, because he has this day received a sacred trust from the laws, from the constitution, from the fatherland,—the duty of guarding all that is fair and right and beneficial in our city.”246
τὴν τὰ δίκαι᾽ ἀγαπῶσαν Εὐνομίαν περὶ πλείστου ποιησαμένους, ἣ πάσας καὶ πόλεις καὶ χώρας σῴζει: καὶ τὴν ἀπαραίτητον καὶ σεμνὴν Δίκην, ἣν ὁ τὰς ἁγιωτάτας ἡμῖν τελετὰς καταδείξας Ὀρφεὺς παρὰ τὸν τοῦ Διὸς θρόνον φησὶ καθημένην πάντα τὰ τῶν ἀνθρώπων ἐφορᾶν, εἰς αὑτὸν ἕκαστον νομίσαντα βλέπειν οὕτω ψηφίζεσθαι, φυλαττόμενον καὶ προορώμενον μὴ καταισχῦναι ταύτην, ἧς ἐπώνυμός ἐστιν ὑμῶν ἕκαστος ὁ ἀεὶ δικάζειν λαχών, πάντα τὰ ἐν τῇ πόλει καλὰ καὶ δίκαια καὶ συμφέροντα φυλάττων καὶ ταύτην τὴν ἡμέραν παρακαταθήκην ἔνορκον εἰληφὼς παρὰ τῶν νόμων καὶ τῆς πολιτείας καὶ τῆς πατρίδος.
This passage layers a number of foundations for the authority of the rule of law, invoking both institutions such as the law itself; moral principles, such as fairness; and divinity, such as the appeal to Justice personified as a god at the feet of Zeus. This formulation also reinforces that such principles attaching to the rule of law and fair trial apply not just to Athens, but to all human societies, and that adherence to such principles is for the purpose of maintaining civil society. The connection to the divine is not mere authorisation, but is instead an implicit link to a divine order.247 Indeed, the breach of the sanctity of the judicial system and judicial decision making was seen to both be antithetical to not only Athenian political systems, but also as impious and monstrous action, invoking a divine layer of
244 Dem. 29.1; Lyc. 1.93. 245 Dem. 19.239. 246 Dem. 25.11. 247 Mortal law is considered in some sources to be an extension and reflection of a divine schema of law that operated concurrently. Baldry, Unity of Mankind, 26-27; Dover, Greek Popular Morality, 247- 56; Garner, Law and Society in Classical Athens, 9; Herman, Morality and Behaviour, 18. The same logic is also extended to political institutions. Campbell, "Constitutionalism," 244-47.
64 Human Rights and Fundamental Freedoms in Athenian Oratory Chapter 2 authority.248 The whole system of the law, as noted above, is taken to partially implement principles of justice that have as their origin mythic or divine lawgivers.249
The ancient and time-tested nature of established legal processes and institutions were also linked with divine sanction in a fashion that implied due process was also empowered by the divine. The establishment of the Areopagus as related in the Oresteia is essentially divinely sanctioned reform of interpersonal relations such that the process of the law were said to take precedence over the claim to exact personal vengeance, and that this was in accordance with divine will.250 This formulation is about the existence of a legal system, rather than a specific law or laws. Even the practice and process of law, which we have seen are central to the entitlement described by the rule of law take on divine aspects and authority. The decision of the jury has both secular aspects (in satisfying justice) and spiritual aspects (in satisfying piety), such that abeyance to the rule of law increases standing amongst both gods and mankind.251 This link is particularly drawn out for the Athenian legal system, whose procedural protections described in the rule of law concept as seen by the orators included the application of both statute and unwritten, fundamental principles drawn from mythic or even divine lawgivers.252
The very right itself is therefore seen as fundamental to human society, in that the law ought to deliver for all. More importantly, the law is seen to be the precondition for human happiness and a stable and prosperous human society. Lysias puts it neatly:
“If men are to be happy, the voice of law, and not a ruler's threats, must reign supreme; if they are free, no groundless charge, but only proof of guilt, must cause them apprehension; nor must the safety of our citizens depend on those who slander them and truckle to their masters but on the force of law alone.”253
φέρει γὰρ πᾶσαν εὐδαιμονίαν ... ἄνευ τῆς αὐτονομίας. οὐ γὰρ ἀνδρὸς ἀπειλήν, ἀλλὰ νόμου φωνὴν κυριεύειν δεῖ τῶν εὐδαιμόνων, οὐδ᾽ αἰτίαν φοβερὰν εἶναι τοῖς ἐλευθέροις, ἀλλ᾽ ἔλεγχον, οὐδ᾽ ἐπὶ τοῖς κολακεύουσιν τοὺς δυνάστας καὶ διαβάλλουσιν τοὺς πολίτας τὸ τῶν πολιτῶν ἀσφαλές, ἀλλ᾽ ἐπὶ τῇ τῶν νόμων πίστει γενέσθαι.
This quote shows that the concept of the law and its primacy is one that was necessary to secure the happiness of mankind. Implied also is that the law secured not just individual happiness in a vacuum, but as part of a societal structure by directly contrasting the rule of the law against the rule of a ruler. It therefore clear that the legal system as a whole, and the
248 “…and I take it that everybody will agree that to invalidate judicial decisions is monstrous, impious and subversive of popular government”. …ὡς δὲ τὰ δεδικασμέν᾽ ἄκυρα ποιεῖν καὶ δεινὸν καὶ ἀνόσιόν ἐστι καὶ δήμου κατάλυσις, πάντας ἂν οἶμαι ὁμολογῆσαι. Dem. 24.152. 249 Wolff, "Demosthenes as Advocate," 95. 250 Cohen, Law, Violence and Community in Classical Athens, 3; Sommerstein and Torrance, Oaths and Swearing, 286-87; Wiltshire, Greece, Rome and the Bill of Rights, 156-57. 251 Lys. 13.3, 13.92, 13.97. 252 Wolff, "Demosthenes as Advocate," 95. 253 Hyp. 6.25. Demosthenes quotes Solon to make a similar point that the rule of law and its primacy over disputes between individuals would ensure a stable social structure that mitigated against strife and disorder. Dem. 19.255.
65 Human Rights and Fundamental Freedoms in Athenian Oratory Chapter 2 right to its operation and involvement in its operation was cast as a human right. The preceding discussion has focussed on the rule of law in its conceptual sense, which is how we can conclude that it aligns closely with human rights justifications. However, that is simply the theoretical expression of the rule of law, and it is worth considering some of the practical implementation of such ideals.
The substantive quality of the law, although it is said to be one of equality, essentially served to entrench inequities by providing legal authority to special protections for citizens. Under the sanction of the law, citizens are protected against exile, prison and execution without trial.254They may choose to exile themselves rather than face the court in certain circumstances.255 Another key example of this is in homicide cases, where the relevant court was determined by the status of the victim: the Areopagus heard cases of intentional homicide for citizens; the Palladion for unintentional homicide of a citizen, or the death of a metic or a slave; the Delphinion for a death caused in self-defence; and the Prytaneion for death caused by an animal or an inanimate object.256 The status of the individuals in question for cases of homicide could determine the type of protection that the law provided, which includes who has the relevant standing to bring a particular case and seek redress.257 However, it is still worth noting that even though there was distinction for slaves in a way that disempowered them, they were still treated as separate from general property or from animals at law, which is in part a reflection on their humanity.258
In the same fashion, the ability to utilise the law, to take matters to court or to directly invoke the protections of the law was clearly restricted, and one’s choice of remedy was determined in part by your age, your class, your gender and your overall standing in society.259 Citizens enjoyed standing before the court as a right, which included their ability to choose the procedure.260 Those who were not citizen males were to some extent reliant on their cases being brought forward by a citizen male.261 This is not merely a practical question around access to institutions, such as not having the requisite education or financial circumstances, but is in fact an active bar to participation. In a similar fashion it is noted that a loss of civic standing and the concurrent rights would also entail a loss of the right to a fair hearing.262 That is not to say that these limitations are a necessary contradiction in the human rights nature of the rule of law. At its core, the entitlement is that the system of law ought to apply to all, and indeed it does. It just so happens that the system of law itself is one which in substantive effect is discriminatory and does not apply equally to all.
254 Andoc. 4.3 255 Specifically, in response to an action brought under dike phonon. Antiph. 5.13 256 Dem. 23.65-79. 257 Todd, The Shape of Athenian Law, 169. 258 Harrison, The Law of Athens, 1, 163. 259 Cohen, "Crime, Punishment," 221. 260 Sealey, Athenian Republic, 54-55. 261 In effect, women, children and slaves had no legal personality, so their ability to access the law was contingent on the citizen male responsible for them. Hunter, Policing Athens, 90. Metics were able to participate directly in private suits, but were still reliant on citizens in relation to public suits. Todd, The Shape of Athenian Law, 196. In Attic oratory, citizen males brought cases on behalf of or against: women: Isaeus. 3, 7; metics: Dem. 33, 36; Hyp. 3, Lys. 5; slaves: Aeschin. 1.61, Dem. 53.20. 262 Dem. 18.12.
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Taken together, the presentation of the right to access the law and treatment according to it presents a strong case for a fundamental human right in the view of the orators. This is a right that is more about the shape and structure of social institutions, in that it provides a non-exclusive system of redress. As noted in this section, the central element of the rule of law in the Athenian conception was that the process and the access to the system was the critical element to which people were entitled, rather than to necessarily achieve the same outcome in analogous cases. Therefore, it may be more accurate to speak of a rule of legal dispute and judgement, rather than a rule of substantive law as modern societies are more familiar with. This is still a limitation on brutality, but the framing in Attic oratory emphasises the primary purpose of the right is to guarantee the existence of and access to the law as an institution. The rhetoric in Athenian oratory foregrounds the impacts on the rule of law not just a discrete right, but one which is important and persuasive because of the link to fundamental human society. While not a right based in one’s status as a human per se, by logical necessity, the primacy of law in any human society is still presented as an entitlement that is functionally inherent to individuals as members of that society. Nevertheless, there are limitations in the application of this right. Although all within society are subject to the law, they are not subject in the same ways on account of their status within other social structures. Similarly, rights to access the law and have issues judged according to due process was shared across class structures, but the method through which that process was applied necessarily differentiated between different classes.
2.5 Claiming Promised Action
The archetypal form of a claim for promised action is a right arising under a contract. By the terms agreed by all parties, each will have obligations toward the other. A failure to act accordingly and meet the terms of that contract can generate a right for the non-defaulting party to demand the defaulting party deliver on the contract, or provide some form of equivalent restitution. From the outset, this is a right that is case specific. The nature of the obligation to be delivered and the restitution is determined by the terms of the promise made. This would immediately suggest that the right is not a human rights claim, falling short of a right that is inherent and shared equally on the basis of humanity.
However, this section outlines instances where the general concept of making good on promised action is presented as an entitlement in Attic oratory. As such the relevant human right is less the ability to claim the specific action that is promised, but the right to a system in which that which has been promised must be delivered, regardless of its subject. Specific claims and the rights they generate are most appropriately seen as case specific applications of the underlying, fundamental right. However, given the case specific nature of many claims for promised action, a significant portion of the evidence relating to the fundamental nature of the underlying right is drawn from implication in the sources.
Therefore, it is important to assess first what kinds of claims to promised action are made in oratory. It is far beyond the scope of this thesis to provide a comprehensive account, so what follows is a summary of major forms of promised action. The most prominent method through which individuals claim promised action is through undertakings made by oath, on a very wide range of potential subjects. Oaths included commercial transactions, interpersonal agreements, and could be even sworn on behalf of whole communities like poleis as a tool
67 Human Rights and Fundamental Freedoms in Athenian Oratory Chapter 2 of state relations.263 Typically, oaths involved three components: (1) a declaration, which was either an assertion of a fact, or a promise as to future action; (2) the invocation of a greater power to witness and guarantee the declaration; and (3) calling down of a conditional curse to take effect if the assertion is false or the promise broken.264 Take for example a quote in Demosthenes 54:
“This oath I was at that time ready to take, and now, to convince you and those who stand gathered about, I swear by all the gods and goddesses that I have in very truth suffered at the hands of Conon this wrong for which I am suing him; that I was beaten by him, and that my lip was cut open so that it had to be sewn up, and that it is because of gross maltreatment that I am prosecuting him. If I swear truly, may many blessings be mine, and may I never again suffer such an outrage; but, if I am forsworn, may I perish utterly, I and all I possess or ever may possess. But I am not forsworn; no, not though Conon should say so till he bursts.”265
ταῦτ᾽ ἐγὼ καὶ τότ᾽ ἠθέλησ᾽ ὀμόσαι, καὶ νῦν ὀμνύω τοὺς θεοὺς καὶ τὰς θεὰς ἅπαντας καὶ πάσας ὑμῶν ἕνεκ᾽, ὦ ἄνδρες δικασταί, καὶ τῶν περιεστηκότων, ἦ μὴν παθὼν ὑπὸ Κόνωνος ταῦθ᾽ ὧν δικάζομαι, καὶ λαβὼν πληγάς, καὶ τὸ χεῖλος διακοπεὶς οὕτως ὥστε καὶ ῥαφῆναι, καὶ ὑβρισθεὶς τὴν δίκην διώκειν. καὶ εἰ μὲν εὐορκῶ, πολλά μοι ἀγαθὰ γένοιτο καὶ μηδέποτ᾽ αὖθις τοιοῦτο μηδὲν πάθοιμι, εἰ δ᾽ ἐπιορκῶ, ἐξώλης ἀπολοίμην αὐτὸς καὶ εἴ τί μοι ἔστιν ἢ μέλλει ἔσεσθαι.
From the example above, we have the three elements, even if not presented chronologically. The oath begins with an invocation of the gods, then proceeds to make the statement which is to be guaranteed. It then concludes with a separate clause that describes the effects of the oath being true or false, which includes an element of self-curse. It is the combined invocation of divine witness and guarantee and the explicit invocation of punishment in the event of breach that was felt in Athens to set oath apart from other promises by providing for a greater guarantee of certainty and consequences. Oaths could still be considered to be bona fide even if they did not explicitly spell out each component, but instead implied them through standard form, such as the invocation of a self-curse, or the reference to a divinity in connection to a declaration of fact or promise.266 Indeed, informal and shorthand oaths which invoked gods and implied a link to their witnessing of a promise or statement are especially common in conversational contexts.267 For the purposes of this thesis, we are concerned primarily with oaths for future or promised action, rather than oaths which were to certify past facts.
The operation of an oath was much like a formal contract in modern society – the undertaking is said to enable an individual to claim that the party making the promise must make good on it. Oaths were therefore not bound by content, and could impose any number of conditions. In addition to cases with direct failure to deliver on promissory oaths, oaths are also incredibly common in cases involving perjury, which relied not on the fact that one had
263 Dover, Greek Popular Morality, 248-52. 264 Sommerstein and Torrance, Oaths and Swearing, 1-2. 265 Dem. 54.41. 266 Sommerstein and Torrance, Oaths and Swearing, 4-5, 76. 267 Ibid., 318.
68 Human Rights and Fundamental Freedoms in Athenian Oratory Chapter 2 lied to the court, but instead that one had failed to live up to promises around truth.268 They could also be made to restrain particular action, such as where a pro-oligarchy informer refused to divulge the names of democrats to the Thirty on account of the oaths which they had sworn, essentially fulfilling the promise to the other parties.269
Importantly, oath and promise could enable deviation from other generalised rules. When struck at the appropriate level, oaths could override the general operation of the law, such as when amnesties were provided under oath.270 A prominent example is the amnesty following the fall of the Thirty, which was guaranteed by oath. The same logic applies to the oaths sworn after the fall of the Four Hundred, which released individuals from any previous oaths sworn against the Athenian people.271 The importance of honouring these oaths are emphasised heavily, through appeals that honouring oaths of such a nature are a function of democratic spirit and necessary for democracy as a system.272 Another example of oath shaping the application of law is the judicial oath sworn by the dikastes prior to hearing cases (noted in the preceding section). This enjoined dikastes to hear cases impartially and to base their decisions on the law and on principles of justice, or risk destruction.273 Orators frequently note that the judicial oath is intended to be binding and call upon it in support for their case.274 This shows that oath could not only create agreed exceptions for specific circumstances, but could indeed shape the application of the law as a system altogether. For example, oaths sworn in relation to homicide trials include an obligation for the parties to tell the truth to the court, or else invoke destruction on them and their families.275 There are limited uses of oaths in the regulation of interpersonal relationships, notably when oath is used to end a feud and reconcile parties previously at odds.276 While not as prominent, the same is said of promised action that is not in oath form, such as commercial contracts or other agreements between individuals – in these cases, it is held that the agreement does not permit anything to have greater effect than its terms.277
More generally, there was an assumption that free men who had undertaken oaths were bound to perform in a particular fashion.278 This binding was not a mere guideline, but an obligation that was able to compel an individual to even act in a manner that would be contrary to their own interests.279 The purpose of such promises was to set terms not only for the relevant performance, but also for recourse in the event that the promise was not met.280 The concept of liability assumes that where specific performance is not possible or desirable,
268 Dem. 29, 33, 52, 54; Lys. 32. 269 Lys. 13.21. 270 Lys. 13.88. 271 Arist. Ath. Pol. 1310a7-10. 272 Dem. 40.46; Lys. 25.23, 25.27-28 273 Aeschin. 2.232-233; Andoc. 1.31; Dem 18.2, 19.219-220, 23.101, 24.148-151; Lyc. 1.79. 274 Aeschin. 3.6, 198, Andoc. 1.9-10, 1.31, Dem 18.1-2, 19.1, 21.24, 21.177, 57.17; Hyp. 1.fr.i; Isaeus 2.47, 6.65, 11.6; Lys. 10.32, 25.35. 275 Aeschin. 2.87; Antiph. 5.11-12; Dem. 23.67-68, 47.70-73, 59.10. 276 Dem. 48; Isaeus 2.31-33, 5.31. These are cases in which the reconciliation follows or is related to formal adjudications processes such as litigation or out of court arbitration. 277 Dem. 35.39. 278 Antiph. 6.25; Dem. 48.9-10. 279 Dem. 48.27-30. 280 Aeschin. 1.161.
69 Human Rights and Fundamental Freedoms in Athenian Oratory Chapter 2 the party which has been wronged has an entitlement to exact some form of payment or satisfaction which is equivalent to the specific performance.
Oath not only has effect in institutional settings and interpersonal relations within Athenian society, but also has inter-polis application, being used as the principal part of regulation of international disputes by treaty.281 The breach of the agreed peace between Athens and Philip of Macedon is a longstanding preoccupation of Demosthenes’ political oratory, and it is frequently remarked upon that Philip ought to fulfil the terms of this agreement. More generally, wars are triggered by the violation of oath, coupled with the express recognition that the oaths were designed to protect freedom.282 The outcome of war could also interact with the operation of oath. For example, it is claimed that Thebes holds Platea and Thespiae “contrary to their oaths”.283 Oaths could also specify required action on a polis scale. For example, the Amphyctionic oath enjoined those who swore it to raze the city of any who were found to be cultivating the designated sacred grounds.284
It could be suggested that claimed entitlements around promised action are restricted to formal oaths, where the obligation has been shown to be strong and explicitly expressed. However, there is also evidence of other forms of agreement or promise which were equally seen to be claimable and bind parties. For example, it is notable that the many cases involving significant financial and trading agreements rarely invoke oath as the foundation for those agreements.285 Nevertheless, these agreements are still seen to be binding. For example, Hyperides 3 is a case in which the speaker seeks to argues against the fulfilment of a promise made under an agreement of sale. Importantly, Hyperides treats it as a given that the general principle is that all are obligated to make good on promises and ordinarily failure to do so would lend justice to redress, but argues the case on the basis that the promise was not one which was made in good faith, and therefore should be treated as a general exception to the fundamental principle.286 Lysias 4 similarly assumes as a general principle that the agreement between the speaker and his opponent to share the slave at the centre of their dispute, and that the terms of any agreement ought to be honoured.287 Isocrates 17 is litigation which proceeds on the misdeeds of Pasion the banker by alleging he had reneged on a number of promises made in relation to handling of the speaker’s
281 Dem. 17. 282 Isoc. 14. 283 Isoc. 7.17. 284 Aeschin. 2.115. 285 Sommerstein and Torrance, Oaths and Swearing, 67. For examples of such cases in forensic oratory, see Dem. 32-35 286 Hyp. 3.13. There is a contrary view that in this speech, there is no proof that a voluntary promise created an obligation to perform – see for example Gerhard Thür, "The Statute on Homologein in Hyperides’ Speech against Athenogenes," Dike 16 (2013): 9. However, that analysis is about a strictly legal obligation to perform, not so much the fundamental social and moral claim that underpins the pleading in the case. There are also general statements made in oratory that present a similar argument, that one ought to ensure that agreements duly entered into are honoured – see for example Dem. 33.12, 33.36 287 Lys. 4.9.
70 Human Rights and Fundamental Freedoms in Athenian Oratory Chapter 2 money.288 Other cases similarly are founded on the failure of a party to deliver what was promised such that the courts are turned to for redress.289
Promises also carried significant force and were presented as strong reasons to act in a certain way. For example, Demosthenes argues that his involvement in the second Embassy and travel to Macedon was done principally to fulfil his promise to Athenian prisoners that he would ransom them:
“…you must remember that I had promised the prisoners whom I delivered that I would bring the ransom-money and do my utmost for their rescue. It would therefore have been too bad to break my word and abandon fellow-creatures and fellow- citizens in misfortune. Had I declined on oath, a private excursion to Macedonia would have been neither decent nor safe. Except for my strong desire to liberate those men, may I die miserably before my time if any reward would have induced me to accept an embassy with these men as my colleagues.290
ταῦτα μέμνησθε, ὅτι τούτοις ὡμολογήκειν οὓς ἐλυσάμην καὶ κομιεῖν λύτρα καὶ σώσειν εἰς δύναμιν. δεινὸν οὖν ψεύσασθαι καὶ προέσθαι δυστυχοῦντας ἀνθρώπους πολίτας: ἰδίᾳ δ᾽, ἐξομοσάμενον, οὐ πάνυ καλὸν οὐδ᾽ ἀσφαλὲς ἦν ἐκεῖσε πλανᾶσθαι: ἐπεὶ εἰ μὴ διὰ τὸ τούτους βούλεσθαι σῶσαι, ἐξώλης ἀπολοίμην καὶ προώλης, εἰ προσλαβών γ᾽ ἂν ἀργύριον πάνυ πολὺ μετὰ τούτων ἐπρέσβευσα. σημεῖον δέ: ἐπὶ γὰρ τὴν τρίτην πρεσβείαν δίς με χειροτονησάντων ὑμῶν δὶς ἐξωμοσάμην.
Although the right in question is to specific performance of the promised action, the right as outlined in the quote above was used to justify recompense for community service. In this way, it also speaks to the concept of a right to claim promised action generally. Implied in this passage is Demosthenes would have violated the rights of the prisoners if he had failed to act. His fulfilment of the promise is therefore laudable and worthy of recognition because of the way in which it respected the rights of the prisoners in a general sense. For example, it is also argued in oratory that anyone who breaks an oath should be liable.291 The shared nature of the right is strengthened by the lack of use of oath of everyday business transactions. Sommerstein argues that this is because the purpose of an oath was to add additional guarantees and weightier punishment to a particular promise, which may indicate a lack of trust.292 The fact that we have agreements, contracts and promises without oath present in forensic oratory shows two things. Firstly, it shows that everyday transactions proceeded on the general belief that one could trust and rely on the promises of another party even in risky matters such as business. Secondly, it shows that oath does not generate the underlying principle that one should honour promises, but instead it merely alters the gravity of the consequences, and therefore in the Athenian conception, increases the likelihood of compliance and follow through.293
288 Isoc. 17.19-20. 289 Dem. 56.15, 31; Isaeus. 5.1-2 290 Dem. 19.171-172. 291 Din. 3.4. 292 Sommerstein and Torrance, Oaths and Swearing, 67. 293 We can see this process in the differential between oaths, where the increasing levels of formality used signalled a greater belief in the strength of the binding that was placed. Ibid., 281, 331, 42.
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What was the purpose then of oath and promise as an overall institution in the view of Athenian oratory? What the examples show us is that oath and promise provided a shared baseline for human interaction, which set shared expectations. Athenian oratory recognised the social function of ensuring that promises are kept in an explicitly commercial context. Demosthenes appeals to the jury to draw a comparison with the general principles around trade:
“You are the same persons who punished with death, when he had been impeached before the assembly, a man who obtained large additional loans on your exchange, and did not deliver to his creditors their securities, though he was a citizen and the son of a man who had been general. For you hold that such people not only wrong those who do business with them, but also do a public injury to your mart; and you are right in holding this view. For the resources required by those who engage in trade come not from those who borrow, but from those who lend; and neither ship nor shipowner nor passenger can put to sea, if you take away the part contributed by those who lend.”294
ὑμεῖς γάρ ἐστε οἱ αὐτοὶ οἱ τὸν ἐπιδεδανεισμένον ἐκ τοῦ ἐμπορίου πολλὰ χρήματα καὶ τοῖς δανεισταῖς οὐ παρασχόντα τὰς ὑποθήκας θανάτῳ ζημιώσαντες εἰσαγγελθέντα ἐν τῷ δήμῳ, καὶ ταῦτα πολίτην ὑμέτερον ὄντα καὶ πατρὸς ἐστρατηγηκότος. ἡγεῖσθε γὰρ τοὺς τοιούτους οὐ μόνον τοὺς ἐντυγχάνοντας ἀδικεῖν, ἀλλὰ καὶ κοινῇ βλάπτειν τὸ ἐμπόριον ὑμῶν, εἰκότως. αἱ γὰρ εὐπορίαι τοῖς ἐργαζομένοις οὐκ ἀπὸ τῶν δανειζομένων, ἀλλ᾽ ἀπὸ τῶν δανειζόντων εἰσίν, καὶ οὔτε ναῦν οὔτε ναύκληρον οὔτ᾽ ἐπιβάτην ἔστ᾽ ἀναχθῆναι, τὸ τῶν δανειζόντων μέρος ἂν ἀφαιρεθῇ.
This passage shows that in the Athenian conception, the ability to trust and fulfil promises was an essential right to ensure a foundation of trust on which trade and commerce needed to be built. The violation of principles relating to agreements, securities and promises harm not just the individual, but the system and community – the purpose of a claim to fulfilment of promise is then to ward against this mistrust, and implicitly, to ensure the ongoing stability of Athenian trade.295 From this, we can extract a general principle that the minimum safeguards provided through oaths and promises were a way to counteract natural mistrust that individuals have for one another. Violation of the system of oath and promise was therefore an injury not just to the individual, but to the community as a whole, just as in the case of harm to commerce and trade.296 In turn, this represents an implicit understanding that such frameworks served to regulate social behaviour and contribute to the social harmony and wellbeing of the community as a whole. Moreover, the ability to enter into agreements and oaths was also a recognition of the underlying autonomy of each party, and a method through which that autonomy could be rightfully restrained.297
What of the applicability of such rights to humankind as both an inherent element and an equal entitlement? The stated importance of contract, covenant, oath and other promises outlined above is in fact linked to their broad application – cases involving oath and covenant have critical importance because they “have such binding force that almost all the daily
294 Dem. 34.50-51. 295 See for example Dem. 56.48-50. 296 Aeschin. 1.161; Dem. 35.54. 297 Sommerstein and Torrance, Oaths and Swearing, 193.
72 Human Rights and Fundamental Freedoms in Athenian Oratory Chapter 2 activities of Greeks and of barbarians are governed by covenants” by virtue of being “the only universal institution which all we of the human race constantly employ”, such that it is the duty of all men to uphold covenants and ensure that they are upheld.298 This expression is vitally important. It recognises that the application of oath and promised action was a critical feature of human social interaction, specifically bridging the divides of other categories such as race or geography. Moreover, it notes that they held universal recognition for enforceability, which suggests that they were indeed considered to be a fundamental human right.
However, other statements relating to oath and contract present views in tension with this. For example, Antiphon notes that it is specifically free men who ought to be bound by oaths, as opposed to the use of torture for slave testimony.299 While this still acknowledges a baseline right, it decouples its source from humanity, and rather to one’s status, which could be transient. Moreover, the threshold of equality of the rights to promised action is not directly dealt with. Although it may be implied given the breadth of its application, it could equally be said that the right accrued equally to societies, but not necessarily to each of the individuals who make up that society.
Let’s turn now to the source of legitimacy and empowerment for the right. Oath had clear enforcement mechanisms, relying on the witnessing of a divine authority to guarantee the promise made, and therefore to generate the required recompense. The divine authority in oath, linking to both the direct involvement of the divine in the promise as guarantor, and also as the source of the punishment or recompense in the case of breach. Such consequences are drawn from a belief in the capacity for the divine to intervene, either in this generation or in the next.300 It should be noted that not all oaths invoked gods, but could also rely on sacred and non-sacred objects, historic events or even abstract concepts. However, the uniting theme in the deployment of such guarantors in place of the divine was to impart the same kind of higher force beyond human institutions as an authority.301
It also shows that the institution of oath and promised action is one that is drawn from beyond social institutions or the day-to-day laws that may differ from place to place. To a certain extent, the force of oaths used to support the operation of the law such as evidentiary oaths were outside the competence of the law, because they were assumed to be directly controlled and enforced by the gods.302 Moreover, oath is also used as a source of authority for the operation of law. The judicial oath, as noted above, was sworn by all the dikasts before they were permitted to hear cases, and provided an additional layer of authority to the rule of law rights claim, sitting alongside the general expectation that cases would be
298 τοσαύτην δ᾽ ἔχουσι δύναμιν ὥστε τὰ πλεῖστα τοῦ βίου καὶ τοῖς Ἕλλησι καὶ τοῖς βαρβάροις διὰ συνθηκῶν εἶναι… τούτῳ μόνῳ κοινῷ πάντες ἄνθρωποι διατελοῦμεν χρώμενοι. Isoc. 18.27-28. 299 Antiph. 6.23-25. 300 This includes a divine personification of both horkos as oath and arai as curse, which were used interchangeably to indicate the divine source of authority. Sommerstein and Torrance, Oaths and Swearing, 7-9, 12, 23, 117. 301 Typically, these are items or concepts selected for their close personal ties or contextual significance. In each instance, these guarantors had established authority of their own, or were seen to be direct substitutes for divinity (or both). Ibid., Chapter 5.3. 302 Todd, The Shape of Athenian Law, 310.
73 Human Rights and Fundamental Freedoms in Athenian Oratory Chapter 2 considered according to law.303 The use of oath as a strengthening feature also demonstrates that the oath, and the obligations that it generates, are beyond the law and indeed precede it, such that it can ensure and guarantee the law.
The divine overlay is also invoked in cases where oaths are breached. For example, Isocrates notes that the killing of Clearchus by the Great King in defiance of solemn oaths is an “outrage to the gods”.304 This divine sanction for oath carried significant strength – risking one’s safety for the maintenance of sacred covenants was equivocated to hoplite service, and therefore carried strong obligatory connotations.305 The link to the divine again strengthens the cross-polis applicability of the obligation to abide by and respect undertakings made through oath, given the belief in a shared divine order. The concept of the sacredness of agreement and promise also appears to arise beyond oath, to a general premise around promise. For example, Demosthenes argues that the undertakings made by his father in relation to guardianship and the instructions for his guardians were a sacred deposit, and that in violating the terms of that agreement, his guardians have proven themselves to be impious.306 The use of language around piety therefore implies the principles explicitly made for oath are transferrable to general promise.
We can also note that the claim for promised action, including but not limited to oath, explicitly notes the enforceability of promises is justified by and drawn from established principles of justice, fairness and equity.307 This is a notable claim because it explicitly moves the foundation of such promises away from being empowered by a legal form or a procedural form, but rather it is a procedural guarantee that makes manifest pre-existing moral standards. There are also analogies drawn to the system of the law, and its character of justice and equality – for example, Demosthenes claims that ignoring the terms of an agreement is akin to a person seeking to make a law only for themselves.308 This is further reinforced by limitations on the binding and claimable nature of undertakings made – agreements are to be binding, except in cases where they are unjust, a claim expressed as a general principle.309 Similarly, the fundamental moral component is noted in cases of breach. Sparta’s great wrongs are said to be breaking its oaths and selling out those who it swore to protect.310 On a personal level, it is said that honourable men are those who ensure that they do all that they have promised.311 These formulations consider that while both oath breaking and a failure to live up to promises amount to the same practical outcome, they are differential causes. This suggests that there is a broader category of a right generated by promises or other equivalent action even when not in the form of oath. As such, even though
303 Aeschin. 3.8, Dem. 18.1, 18.8. 304 Isoc. 5.91. 305 Isoc. 8.47. 306 Dem. 28.15-16. 307 Dem. 17.1, 20.12, 37.60. Indeed, the orators recognised and exalted a concept of contractual obligation that was distinct from a legal doctrine of contract, which typically involved elements of actionability. Todd, The Shape of Athenian Law, 264-65. This threshold of a legal doctrine is not directly relevant to the question of whether as a general social view, there was an entitlement to be able to claim action that has been promised to you. 308 Dem. 56.12. 309 Hyp. 3.13. Similarly, it is suggested oaths which harm the city ought not to be binding. Lys. 12.47. 310 Isoc. 12.104. 311 Dem. 35.7.
74 Human Rights and Fundamental Freedoms in Athenian Oratory Chapter 2 oath may be the principal vehicle for the rights claim for specific performance, the underlying right is broader in application.
The discussion of exceptions to following through on agreements or promised action does not directly reference a legal obligation to perform, but rather is a discussion in a non-legal, principled context.312 This implies that the entitlement is one sourced from beyond the law itself, notwithstanding that the law may be the arena to provide recompense. The breaking of a promise, even on specific matters such as price or transactional features is essentially cast as a moral failure and the violation of the social standards of behaviour expected of other people.313
Nevertheless, there are expressions in oratory that ascribe a legal authority to certain agreements, which would imply that their foundation was institutional rather than fundamental. For example, Demosthenes notes that it is a law which states that mutual covenants agreed on in the presence of witnesses ought to be binding.314 There are also specific laws for different types of agreement that follow in this direction, such as the laws that require written agreements for maritime loans, and that in the absence of such agreements, legal actions are not available.315
This provides a clear contradiction to a fundamental authority, and one that we cannot resolve purely from the cases. At best, we might conjecture and extrapolate some of the logic used earlier in this chapter on other rights to assert that these claims to specific legal establishment of forms for binding agreements are simply recognition and layered authority that implies that the law does not generate, but shapes the rights. The law could be described as an institution which prescribes remedies for the breach of certain agreements, and establishes requirements for such agreements to be recognised. However, one might posit that does not go so far as to establish that the law is the sole institution which creates or generates a general expectation that agreements ought to be honoured. Instead, the law here is treated as a mechanism to realise an underlying right (and the benefits to society that follow).316 It could be argued that the principles of contract and their binding nature were self- evident, and so needed no statutes or rules to generate binding force.317 The existence of laws that did provide such authority were merely to reinforce the existing underlying entitlement. While this reading would enable the explicit invocation of law for non-oath promise to be read as human rights, the evidence is insufficient to be able to draw this inference conclusively.
Conceptually in oratory, it appears that the conventional view is to see the entitlement to claim promised action as a dominant force in the lives of all, Greek and Barbarian, and by
312 Todd, The Shape of Athenian Law, 257. 313 Lys. 3.21, 12.10-11. In the inverse, abiding by one’s oaths even at personal cost is seen as a laudable trait, even if one’s political views were objected to: Lys. 13.21. 314 Dem. 42.12, 30, 47.77, 56.2. 315 Dem. 32.1. 316 For example, see Dem. 34.52, in which the laws provide for the protection of rights in relation to lending and commercial promises, but without any mention of the laws creating such rights. The implication is that the right is one that precedes the law, and is simply being recognised and implemented as a matter of enforcement. 317 Thür, "Statute on Homologein," 7.
75 Human Rights and Fundamental Freedoms in Athenian Oratory Chapter 2 reasons linked to divine sanction and order within society – in short, a rights claim which can be said to be akin to a human right. However, the practical enjoyment of claiming promised action tended to prioritise citizen and free males. To claim a promise, one needs to be able to either make a promise, or have one made to them (or, realistically, both). The question as to what extent this capability was present will conclude analysis of this right. The cases that we have show citizen status was not a requirement to make or claim promises. The commercial cases in particular demonstrate that foreigners and Athenian citizens alike could enter into agreements on relatively equal footing.318
There is no direct suggestion that the free did not have a capacity to make oaths or claim promises. Indeed, among the speeches outlined above are cases in which parties to promises have been non-citizen but free men. In regards to women, the picture becomes somewhat murkier. Similarly, there do not appear to be formal barriers to women swearing oaths or other agreements, which typically were informal verbal contracts.319 There are clearly cases in which women were able to claim promised action or rely on the promises of others. Most strikingly, the case of Neaera in Demosthenes 59 involves a series of promises she made and received from her admirers.320 This shows that even as a woman, she was able to participate in the system of oath and promise that was said to be fundamental and shared between all human societies. The same can be said of Plangon, who used oath to force Mantias to recognise her children as his own.321 The interesting element about the case of Plangon is not just that she swore an oath and it had the same level of force, but indeed that she was challenged to do so by Mantias.
This indicates that at least in the case of oath, there was not seen to be a significant difference in capacity, and subsequently, the rights arising, between the genders. In Plangon’s case, she was also involved in the direct negotiation of a non-oath agreement with Mantias where she would be paid if she refused his oath challenge – her reneging on this agreement was characterised recognised by all mankind to be contemptible.322 For our purposes, this again shows that women had the capacity to engage in the system of promise, with the natural implication that the same entitlements would therefore follow. Similarly, Antigone swore a number of oaths while acting as a go-between for Athenogenes and Epicrates and it was this very fact that gave Epicrates greater faith in the promises of Antigone and Athenogenes that they would be true to their word.323 Moreover, as a general principle it was acknowledged that a promise made through oath was the only way to enable women to provide testimony to a court – while this speaks to the disability of women to have standing as part of the legal process, it also speaks to their fundamental capacity to make oaths.324 However, in other parts of formal oath taking and enforcement, women are
318 See for example: Dem. 32-35; Hyp. 3. 319 Sommerstein and Torrance, Oaths and Swearing, 156-57. 156-157 320 Dem. 59.26-32. 321 Dem. 39.3-4. 322 Dem. 40.10. 323 Hyp. 3.2. 324 Roger Just, Women in Athenian Law and Life (London: Routledge, 1989), 33-39; L Foxhall, "The Law and the Lady: Women and Legal Proceedings in Classical Athens," in Greek Law in Its Political Setting: Justifications Not Justice, ed. L Foxhall and A. D. E Lewis (Oxford: Clarendon Press, 1996), 143-49; David C. Mirhady, "The Oath-Challenge in Athens," Classical Quarterly 41, no. 1 (1991): 82. In oratory, see for example Dem. 29.26, 29.33, 29.56, 55.37
76 Human Rights and Fundamental Freedoms in Athenian Oratory Chapter 2 notoriously absent, and when they are present, it is almost always in relation to a man who is taking the primary oath.325
When we consider slaves, we see little to no practical capacity to undertake oaths on their own behalf.326 Instead, to the extent that in the day-to-day, they were able to engage in business, or undertake transactions, or even claim on promises, they largely wielded the authority of their masters. However, while as a matter of principle, the right to make promises was not extended to slaves, they could still participate in some aspects of claiming promise. For example, Kamen points to the institution of secular manumission, which she posits involved the fictive sale of the slave to a third party for the purposes of manumission.327 This is a practice which in effect requires slaves to become parties to a promise or agreement struck, and then to follow through. Similarly, the slave girl in Lysias 1 successfully seeks a promise from her master Euphiletos that he will not harm her if she reveals the truth to him.328 This ability to seek a promise, and then the expectation that each party will act as agreed appears to have been taken for granted, and the status of the parties is of no direct concern. Additionally, the evidence of oaths from across the available sources outside of oratory serve to suggest that slaves were able to make informal agreements and expect their enforcement, particularly between each other – it may be that such oaths have faded from the available evidence in oratory given their removal from the expected subject matter of the Attic orators.329
Ultimately, in much the same way that the right to the application of the law and its processes was cast as a system which was a fundamental feature of any human society, so too is the concept of a right to claim promised action framed by oratory as an inherent and inalienable feature of human existence. The right was claimed both implicitly and explicitly through formal institutions such as oath, as well as general principles around promised action. The importance of abiding by promises and the general right to claim promised action was used by oratory in specific cases not just to claim recompense, but also to draw out reflection on the character of the individual and as a proxy for one’s attitudes to the maintenance of social structures which guarantee respect for one’s fellows. Importantly, the claims around the enforceability and importance of respecting this right extended it to have generalised application to all societies. Nevertheless, there remained clear gaps and discrimination between classes in the way in which they were able to enjoy or actualise rights around promised action.
2.6 Possession and Use of Property
The right to property is one that has not always sat easily within human rights. In modern human rights discourse, the right to own property is included (for example, under Article 17
325 Sommerstein and Torrance, Oaths and Swearing, 163-65. 326 Kamen, "Sale for the Purpose of Freedom," 81. 327 Ibid. 328 Lys. 1.19-20. 329 Sommerstein and Torrance, Oaths and Swearing, 195. 195
77 Human Rights and Fundamental Freedoms in Athenian Oratory Chapter 2 of the UDHR),330 but it is equally notable that not all cultures prioritised conceptions of personal property in the same way. However, concepts of possessing and using property were clearly a significant element of Athenian life, and a feature in a significant portion of forensic oratory, including but not limited to agreements for sale of property, inheritance and division of assets, trade agreements and recovery of loans. From the outset, it appears that in Athens, the ability to own property was an important feature of society, and one which became a site of contest and conflict between the rights of individuals.
Much like rights to promised action, when we speak of a right over property that we own, we are speaking on an entitlement to a specific case of circumstance. This instantly moves us away from concepts of inherency and equality, because the very nature of a property right is that it involves primary use or control over a specific thing. Such concepts are also present in Classical Athens, where property which one rightfully possesses is characterised by your ability to alienate it either through sale or gift.331 Classic modern concepts around property rights involving the ability to use a thing, to enjoy its fruits, and to use it up or get rid of it, may also have been reflected in Athenian discourse, with equivalents in the verbs khraomai (to use), georgeo (to farm) and apallotrioo (to alienate).332 The dominant treatment of property in Athens centres on these functions to amount to a limited power of disposition, in contrast to questions around absolute ownership or title.333 In terms of use, an owner is said to be entitled to the disposal or transmission of that property. This included post mortem through mechanisms such as wills, which were considered a particularly complete exercise of the discretionary right to dispose of property.334 Disposal of one’s property was seen to be a strong right that could be exercised even where other rights were restricted – for example, where the owner was imprisoned or on death row.335
These direct statements about the use of property are also supported by implication arising from the discussion of property and the way it ought to be used. These sentiments, which function as appeals from speakers nevertheless rely upon a baseline position of a capacity to dispose of and use property as a general proposition. Exhortations and moral commentary accentuate the strength of one’s ability to control, access and use of property. For instance, Demosthenes posits that the ideal social framework was where the ownership and possession was provided to rightful owners, but that such owners would enable the enjoyment of their property by those in need.336 This formulation recognises the primacy of the right of the possessor to dispose of and use their property in the manner that they wish, but urges the exercise of that right alongside moral guidelines. This is also reflected in the
330 (1) Everyone has the right to own property alone as well as in association with others. (2) No one shall be arbitrarily deprived of his property. Article 17, Universal Declaration of Human Rights (UN, 1945) https://www.un.org/en/universal-declaration-human-rights/ (accessed 15 February 2021). 331 Arist. Rh. 1361a16-19. 332 Ludovic Beauchet, L'histoire du Driot Privé de la République Athénienne, 4 vols., vol. 3 (Paris 1897), 45-46. cited at Todd, The Shape of Athenian Law, 240. 333 Hunter, Policing Athens, 11. 11. The nature of Athenian law on property suggested that title was primarily relative rather than absolute, which may explain the focus on the possession and disposition aspects of property. Harrison, The Law of Athens, 1, 201-02; Todd, The Shape of Athenian Law, 120, 246-47. 334 Isaeus. 1.24, 2.13; Isoc. 19.43. 335 Lys. 13.41. 336 Isoc. 7.35.
78 Human Rights and Fundamental Freedoms in Athenian Oratory Chapter 2 many exhortations that individuals ought to choose to use their fortunes or wealth for the benefit of the polis, and on the other hand, that a failure to contribute was indicative of poor character.337 These exhortations rest on the assumption that individuals could choose to withhold their money, notwithstanding the reflections on their character. In the case of inheritance, a significant theme is the moral culpability and consequences visited upon those who squander or reduce their patrimony, which are recognised to be reflections of negative character.338 The social and civic consequences of such actions demonstrate that property rights were unrestricted, in that such use was not prohibited action, but rather it was considered to be a poor discretionary use of the right.
The right to possess personal property included both the physical possession of that property, in addition to the ability to use and enjoy that property as one sees fit.339 In terms of possession, this generated a restraint on third parties from interference with owned property. For example, Hyperides recounts the assurance that the sale of the slave boy in question, rather than the purchase of his freedom, would ensure that no one else can interfere:
“Instead I will sell them to you formally as your own, so that no one shall interfere with, or seduce the boy, and also so that the slaves themselves shall abstain from being troublesome, for fear of the consequences.”340
ἐγὼ δέ σοι ἀποδώσομαι αὐτοὺς ὠνῇ καὶ πράσει, ἵνα πρῶτον μὲν μηδεὶς παρενοχλῇ μηδὲ διαφθείρῃ τὸν παῖδα, ἔπειτ᾽ αὐτοὶ μὴ ἐγχειρῶσι πονηρεύεσθαι μηδὲν διὰ τὸν φόβον.
This passage shows that property rights included not just use and disposal, but also a right to exclude others from use or interference with use of that property. This kind of right also serves to restrain the rights of other to use their own property. For example, in Demosthenes 55 it is alleged the construction of a wall had dammed a natural watercourse and caused flooding on another’s property – the defence rests on the facts that such a watercourse did not exist.341 In this case the argument of the speaker is about the facts about the impact of the wall. At no point is it disputed that if there had indeed been a watercourse that was dammed by building on private property, the speaker would have violated the property rights of his neighbour. This means that the right of non-interference is the principle which had precedence over use rights in relation to property rightfully held.
Forensic oratory in which the ownership of property is disputed also displays this language. For example, Demosthenes claims that Onetor’s wrongful possession of a farm is depriving him of his rights.342 Importantly, this is not just the abstract right to ownership of the property,
337 Dem. 1.28, 14.26, 21.159-167, 28.24, 38.25-26, 50.7-8; Lys. 19.10-11, 28.6. 338 Aeschin. 1.30. 339 Isoc. 18. 340 Hyp. 3.5. Note also this protective element of the property right is seen as a defining feature in cases where the right has been violated – for example, the lament that “it is not surprising if they uprooted the sacred olives at a time in which we were unable to safeguard even our personal property.” οὐ θαυμαστὸν δ᾽ εἰ τότε τὰς μορίας ἐξέκοπτον, ἐν ᾧ οὐδὲ τὰ ἡμέτερ᾽ αὐτῶν φυλάττειν ἐδυνάμεθα. Lys. 7.7. 341 Dem. 55.5. 342 Dem. 30.4.
79 Human Rights and Fundamental Freedoms in Athenian Oratory Chapter 2 but practical rights to enter it, occupy it, and ultimately use it. Implied in Demosthenes’ construction then is the right to the property carries with it additional entitlements or authorities which can be used by the rightful owner. This element of the rights claim to exclusive use and disposal is also made in the language of prohibitions on actions. The general expression of such an injunction is that it not permitted for one to covet or steal the possessions of others.343 This necessarily implies that the rightful owner has the entitlement to exclude others from usage. It is also seen in cases where property is disputed and the speaker claims that they have been wronged by having their property taken away or seized.344 This kind of expression that such acts are outrageous implies that the outrage is as a result of the violation of the exclusive control of the rightful owner.
Similar arguments and exhortations are made in other speeches, where listeners are urged to use their money on things that benefit the polis as a whole rather than themselves, again conceding that at a baseline, there was a right to dispose of and use one’s property in a discretionary fashion.345 This even extends to where the use or disposal of property would be of significant public benefit. For example, slave owners could not be compelled to provide their slaves for torture, only challenged, even if that slave testimony would be critical to ascertaining the truth.346 This view of the strength and primacy of possession against third party claims is typified by the protective function of the right.
Individuals also had a right to be able to recover something that rightfully belongs to them if in the possession of another.347 The right to possess property could also be extended to function as a license to act by wholly or partially exculpating actions that would otherwise be impermissible in defence or assertion of a property right. For example, the law around theft emphasises that individuals were both authorised to and to some extent, even obliged to undertake self-help by apprehending an individual caught during the commission of a crime.348
Reclamation of property is also argued frequently in political oratory on a territorial scale. It is argued that the foundation of peaceful coexistence is predicated on the ability for all to maintain their territorial holdings.349 This is an implied right to positive action to maintain that territory as justified in the name of achieving peace. In the same vein, there is seen to be a natural right to reclaim territory that rightfully belongs to you where it is currently possessed
343 The relevant standard of enforcement is through social norms and pressures, independent from specific institution and linked to a natural order. Isoc. 3.49, 4.110. 344 Dem. 47.52-58, 53.15. Slaves were included as property that could be carried off: Dem. 59.40, Lys. 23.10-11. 345 Andoc. 2.11-12; Dem. 25.26; Isoc. 15.152; Lys. 21.15. 346 While we cannot know for certain, it seems fairly reasonable to assume that the future utility of skilled slaves was a factor that pushed owners to refuse to allow their slaves to be tortured. Humphreys, "Social Relations on Stage," 165. 347 Aeschin, 3.10; Dem. 24.13, 45.81; Isaeus 4.28; Harrison, The Law of Athens, 1, 206-07. 348 Sealey, Athenian Republic, 31. 349 Isoc. 8.16.
80 Human Rights and Fundamental Freedoms in Athenian Oratory Chapter 2 by others.350 These primary licenses to act also generate secondary rights, such as the right to fair compensation for the use of that property.351
However, there remain limitations on the actions of rightful owners and their ability to exclude or prevent interference. For example, property could be confiscated in ways that would normally be unjust if it was done by the state and for the benefit of the community as a whole.352 Similarly, property could only be directed as an inheritance through instruments such as adoption and wills if there were no natural heirs, and if there were heirs, one was not at liberty to direct their inheritance to others.353 Even if such wills were properly executed, the argumentation in the inheritance cases often rests upon the jury setting aside the decision of the testator in favour of principles of equity and reciprocity based on kinship or past service.354 This would in effect be a limitation on the scope of the property right, and indicates its weakness to external, overriding forces.
Differences in practice and procedure of what could or could not be done is also evident between clear categories of property. In particular, the use and disposal of land was more restricted, and as a class of property it was seen as distinct from moveables such as chattels, slaves or money.355 Certain special property, such as olive trees were also heavily restricted in the way in which people could use and dispose of them.356 Nevertheless, having principal title was felt to convey quasi-absolute control, where one may be described of as the master of one’s own property.357
When we consider these rights against human rights purposes or thresholds of inherency and equality, it appears as if these rights are contained as features of civic society. There are no direct references to a right to possess property as being a fundamental entitlement or capacity of individuals and there are explicit linkages within oratory that connect the right to human institutions such as the law. Indeed, the latter are overall more common, which is not to be unexpected when dealing with forensic oratory. Where property is in dispute, claimants argue that their opponents have no legal right to the relevant property.358 Similarly specific forms of property right such as the right to succession of patrimony and inheritance is a right said to be given by the law.359
However, in these cases, there is also the sense that the law primarily serves to function as a suitable mechanism to determine the terms of which inheritance can be made. For instance, it is claimed that all Greeks and barbarians alike regard the Athenian law on
350 Dem. 4.5, 28.24, 59.3. 351 Hyp. 4.16-17. 352 Lys. 18.17, 18.20, 19.38. 353 Dem. 46.14; Isaeus. 2.13, 17, 4.15, 6.25; Harrison, The Law of Athens, 1. 233; Todd, The Shape of Athenian Law. 266. 354 Primarily, see Isaeus, whose speeches all deal with disputed inheritance. See also: Dem. 27-28, 36, 40, 43-44, 48; Isoc. 19. 355 Harrison, The Law of Athens, 1. 228-229 356 Dem. 43.72; Lys. 7. 357 Dem. 20.102, 46.14; Isae. 2.46. 358 Isaeus 4.21, 11.12. 359 Isaeus 1.46, 2.13, 2.17; 6.3, 6.8-9, 6.26, 11.13.
81 Human Rights and Fundamental Freedoms in Athenian Oratory Chapter 2 adoption as good and make use of it.360 This is reflected in the wide ranging circumstances in forensic oratory where property ownership is assumed, and not remarked on, even if it is for non-citizens.361 This implies, through an absence of contrary authority, that the right to control property was, as a starting position, expansive and applicable to all. Institutions such as the law then intervenes to restrict and shape that pre-existing right.
Specifically in the context of inheritance, it is also argued that it is universally admitted that the property of a deceased person devolves to his next of kin on his death.362 Given that these cases deal specifically with Athenian inheritance and the application of Athenian law, the extension to barbarians/universal scope implies that the law was merely instrumental in giving effect to a far wider reaching principle around the ability for one to set the terms on which property was disposed of after death. This is seen when Isaeus notes that the laws preference kinship for inheritance in addition to the universal recognition that kin had an entitlement to inherit property.363
It is important to note the rights claims expressed in relation to possession require more than mere physical control, describing rightful possession. This implies that there needs to be a standard by which specific claims over property can be assessed. In this case, Isocrates 6 is instructive, dealing principally with concepts of rightful possession in the context of Spartan control over Messene. There, three key avenues for rightful possession are outlined: possession via gift; possession via divine sanction; and possession via conquest.364 While the concept of gift may, to a modern understanding, imply a non-conditional and/or altruistic grant of property, the conception in oratory extends to any form of transmission by agreement. In the same speech, it is claimed that Sparta has a right to Messene because they “received the country from its rightful owners”.365 These layers need not be independent of each other. For example, it was argued that Sparta rightfully possessed Lacedaemon both by right of gift and by right of kinship with Castor and Pollux.366 Secondly, conquest presents a straightforward justification as a legitimate mechanism to obtain possession – Messene is said to belong to Sparta as a prize rightfully taken in war.367 Finally, just possession was also delivered through broad or widespread recognition. In somewhat circular logic, the fact that possession over a thing is widely recognised by others are taken as indicia of rightful possession.368 In the same vein, possession over an extended period of time is also seen as indicative of rightful possession: “possessions, whether private or public, when they have remained for a long time in the hands of their owner, are by all men acknowledged to be
360 Isaeus 2.24. 361 The facts of several cases show metics and freedmen operating businesses and making profit, without remarking this was unusual. For example, see: Dem. 27.19-22, 36, 52, 59; Hyp. 3; Lys. 22 362 παρὰ πάντων γὰρ ὡμολόγηται τοῖς ἐγγυτάτω γένους τὰ τοῦ τελευτήσαντος γίγνεσθαι. Isaeus 4.15. Similar sentiments are expressed in Dem. 43.23. 363 Isaeus. 4.15-16. 364 Isoc. 6.24-25. 365 Isoc. 6.32. 366 Isoc. 6.18-19. 367 Isoc. 6.18-19. Conquest is also seen as a pathway to rightful possession in Dem. 12.20-23. However, in other cases, it is deplored that conquest can overcome the ownership of territory from poleis or individuals that have duly acquired that land. Isoc. 12.46. 368 Isoc. 6.29-30.
82 Human Rights and Fundamental Freedoms in Athenian Oratory Chapter 2 hereditary and incontestable”.369 These avenues demonstrate that the rightfulness of possession was a closed class – there needed to be a further element describing how one possesses property that moves the claim beyond mere physical possession and a bona fide entitlement.
The explanations in Isocrates 6 are also mirrored and expanded in other sources. For instance, inheritance is taken to be evidence of rightful ownership and possession seen in the same category as gift or transfer.370 A distinction is also made between property held on trust, such as through a guardianship agreement and property that one had an entitlement to possess outright.371 This meant that one could have a rightful claim to property, even in cases where there was no direct or actual physical possession. Additionally, rightful possession was also linked to the fair compensation or result of effort. For example, it is claimed that the profits of Thessaly should go to the people of Thessaly.372 This implies where one creates a new article of property, one has a claim over that possession by virtue of the effort expended.
From this, we can draw out which constitutes a generalised right claim that one is entitled to possess and dispose of property which is ‘rightfully’ owned. When one claims ownership of property, they are at once claiming a specific entitlement over a specific thing, but with reference to a general principle that individuals are entitled to possess and use that which is recognised as rightfully theirs. This reflects much of the modern theorising of the classical liberal tradition, in which the right to use and possess property was seen as a fundamental feature of humankind.373
The concept of rightful possession also evokes a strong moral component and appeal to justice which serves to disassociate the right to the system as an institutional grant, and more as a fundamental feature of society. In some speeches, the rightful claim to property is something that sits alongside and separate from legal institutions, which suggests that it is based on a more fundamental principles which move the concept closer to a human right. For example, Isaeus 8 opens by arguing:
“It is impossible, gentlemen, not to feel indignation against men who not only have the impudence to claim the property of others but also hope by their arguments to abolish the rights which the laws confer; and this is what our opponents are now trying to do”374
369 ἀλλὰ μὴν οὐδ᾽ ἐκεῖν᾽ ὑμᾶς λέληθεν, ὅτι τὰς κτήσεις καὶ τὰς ἰδίας καὶ τὰς κοινάς, ἂν ἐπιγένηται πολὺς χρόνος, κυρίας καὶ πατρῴας ἅπαντες εἶναι νομίζουσιν. Isoc. 6.26. 370 Dem. 12.20-23. Argos is said to belong to Heracles’ heirs “by right of next of kin”. Isoc. 6.18-19. 371 Dem. 27.52, 28.9, 28.23. 372 Dem. 1.22. 373 Perhaps most famously, John Locke in his Second Treatise argues that the very creation of civil society is predicated on the necessity of protecting and upholding rights to property. Property rights are seen to be an extension of one’s right to autonomy – if it is true that one is entitled to possess oneself, then one must also be entitled to enjoy the fruits of their labour, and thus where effort has been expended to create or develop something, that becomes the rightful property of the individual. John Locke, Two Treatises on Civil Government (London: G Routledge and Sons, 1887), Chapter 5. 374 Isaeus 8.1
83 Human Rights and Fundamental Freedoms in Athenian Oratory Chapter 2
ἐπὶ τοῖς τοιούτοις, ὦ ἄνδρες, ἀνάγκη ἐστὶ χαλεπῶς φέρειν, ὅταν τινὲς μὴ μόνον τῶν ἀλλοτρίων ἀμφισβητεῖν τολμῶσιν, ἀλλὰ καὶ τὰ ἐκ τῶν νόμων δίκαια τοῖς σφετέροις αὐτῶν λόγοις ἀφανιεῖν1 ἐλπίζωσιν: ὅπερ καὶ νῦν οὗτοι ποιεῖν ἐγχειροῦσι.
This quote clearly treats the issue of the ownership of property to be a matter in addition to any rights that may be provided or granted by the law, which suggests that the foundation on which the possession/ownership claim is based lies distinct from the law. To the extent that the law deals directly in property rights, it more generally reflects a codification of pre- existing customary rights relating to property, which themselves were based on notions of justice, equality and fairness.375
This foundation is likely to be principles around justice and fairness, as other expressions of property rights invoke these principles in relation to justifications around legitimacy. It is noted that seizing something that belongs to others is an action that invokes injustice.376 . In some formulations, breach of another’s property rights is described as a reflection on moral character, linked to evil or depravity.377 In others, it is seen as a marker of injustice, connecting the violation of the right to fairness principles.378
The concept of rightful possession is further expressed through complaints about unjust or wrongful possession.379 This is explicitly linked to not legal, but rather moral and social codes, such as through expressions that “no man would claim the gifts of another”.380 In the case of possession, justice is treated as an enhancer for the need to observe and enforce the possession right. Isocrates notes that one ought to prefer moderate competence with justice over great wealth unjustly earned.381 While more akin to a statement around value, this formulation still connects justice with the fundamental principles that shape the exercise of the possession right. For example, justice requires giving to the oppressed and not coveting the possessions of others.382 This formulation in effect asserts that one would have a right to assistance or restoration through a claim for justice. More generally, it is argued that coveting the property of others is an improper use of one’s hegemony.383 Such claims around property and its rightful use are used to argue for practical outcomes, where Athens is counselled to not covet the possessions of others as this will enable them to avoid war.384 It is interesting to note the strength of the property conception is expressed through the
375 Emanouil M. L. Economou and Nicholas C. Kyriazis, "The Emergence and Evolution of Property Rights in Ancient Greece," Journal of Institutional Economics 13, no. 1 (2017): 63-64; Kapparis, Athenian Law and Society, 31. 376 Dem. 47.52-53; Isoc. 8.34. 377 It is a hallmark of evil to plot against to hold the property of other people, which is typical for sycophants: Isoc. 15.225, 15.230; depravity is typified by (amongst other things) covetousness over the possession of others: Isoc. 8.96. 378 Isoc. 8.30, 8.34. 379 Dem. 7.3-5, 26; Din. 1.108. 380 Dem. 20.136. 381 Isoc. 8.93. 382 Isoc. 8.30; Lys. 25.17. 383 Isoc. 14.9-10. 384 Isoc. 8.22.
84 Human Rights and Fundamental Freedoms in Athenian Oratory Chapter 2 injunction not only on wrongful possession or attempted wrongful possession, but even the contemplation of such through coveting the possessions of others.
Similarly, it is the marker of injustice under oligarchy that oligarchs claimed the property of others.385 The common democratic complaint about the arbitrary rule of oligarchy is linked to the charge that oligarchs punished those who were not found guilty. In this, there is an implicit equivalence with the rule of law protections outlined above. The moral metrics are used to link up to admonishment of actions undertaken by others. For example, Sparta is admonished as being worse than Egypt (in a moral scale) because they claim a right to seize property through force.386
The examples provided about the close association and justification of the property right to fundamental principles relies on a conceptualisation of a system whereby some possession is rightful and some possession is not. Importantly, due to the inter-polis nature of these claims and statements, and the lack of a super-polis structure or framework, this means such rights claims must by their very nature be assessed against underlying or fundamental criteria. In turn, this moves the right to possess property firmly away from one that originates at law, but rather towards a right that is shaped by and recognised by law or other social structures, meeting the requisite threshold for foundation of a human right. The logical basis for these views about property, notably on an inter-polis level, requires a shared framework or understanding that property rightfully possessed was under the control of the possessor, which came with it rights to exclude and protect that property. The fundamental entitlement then is not about the possession of property per se, but the ability to possess property by taking part in that social system. While equality is not directly mentioned, adapting the approach to both treatment under law and claiming promised action outlined above, there is a strong emphasis that this right and system was extensive to any human society, being a shared network of interaction and engagement.
Similarly, at a micro-social level, property systems replicate themselves in a way that suggests they are assumed to be fundamental features of human society. For instance, Aristogeiton was said to have been ostracised while he was in prison for stealing from another prisoner.387 There is no evidence to suggest that there was a law that determined the way in which property claims were enforced in prison – instead, it is more likely that such actions formed an informal code of behaviour, in which the prison society modelled itself on the outside world.388 In this way, the importance of property rights can be said to be one that arises naturally even in the absence of formalised institutions such as law.
There is a strong implication then that in Athenian oratory, society necessarily included a system of property rights as a matter of any regular functioning society. A shared set of property rights, and the ability to exclusively own property as an entitlement was the foundation on which economics and trade could occur, which from a practical sense was
385 Isoc. 21.12-13. 386 Isoc. 11.19. Note the tension with the expression of Isocrates here with the expression of the legitimacy of Spartan ownership through past conquest at Isoc. 6.18-19. 387 Dem. 25.60-63; Din. 2.8, 2.11. 388 For instance, the Athenian prison was an equaliser for individuals, and consequently there was a reduction in the importance of citizen status in the lived experience of Athenian prisoners Hunter, "The Prison of Athens," 313-15.
85 Human Rights and Fundamental Freedoms in Athenian Oratory Chapter 2 seen to be a necessary element of human functioning. In particular, there was a close association with Athenian democracy, which asserted that a smoother functioning of an economy was one in which individuals were able to rely on exclusive property rights.389 The functioning of this economy is not value free, but again speaks to the need for the system of property rights as one that protected against the arbitrary exercise of power by individuals over each other. In effect, the purpose of the property right was to limit the potential for brutality through the existence of a shared social institution.
As with all the other rights claims explored however, that fundamental basis to which all humans in society are entitled presented a much more limited picture in actual application. Athenians recognised that there were a number of different types of property which could be owned, some of which required different treatment. For example, land was a unique form of property, and could only be owned by citizens.390 Even for citizens, their rights of disposition were more limited in relation to property which was said to be ancestral or linked to the kinship network.391 This demonstrates at a basic level the differentiation of property rights between the classes. When we look to property rights in terms of participation in the system, the same limitations on non-citizens emerge. The general view of the examples above focusses on the concept of redress for violation of property rights that citizens can access.392
Other classes did not enjoy nearly the same rights, although in terms of general dealings with property and money, it is clear that free men were able to acquire funds and own property in much the same way that citizen men did, without significant disability.393 Citizen women only held limited property rights through inheritance and dowry. In each case, the property that constituted this endowment was attached to the woman, so in a sense she had a right to it. Relevantly, oratory presents such property as the entitlement of the woman, restricting rights of disposal and alienation, and requiring that such property be used to benefit her.394 There are also cases in which it is claimed that women generally have a right to maintenance and financial support from the responsible men they were linked to.395 Notably, women could also take an active role in protecting and confirming these rights – take for example Demosthenes’ mother, who challenges his guardians to produce the will legitimating their use of her late husband’s estate.396 Similarly, the wife of the speaker of Demosthenes 47 seeks to prevent furniture and other moveables from being wrongfully seized by claiming that the property belongs to her through her dowry.397 This may form an indirect right over a property, although it was admittedly over a non-specific thing and to funds generally. When women are denied their inheritance, they are also described as
389 Economou and Kyriazis, "Emergence and Evolution of Property Rights," 72. 390 Harrison, The Law of Athens, 1, 230, 37; Sarah Pomeroy, Goddesses, Whores, Wives and Slaves: Women in Classical Antiquity (New York: Schocken Books, 1975), 63; David M. Schaps, Economic Rights of Women in Ancient Greece (Edinburgh: Edinburgh University Press, 1979), 4-5. 391 Aeschin. 1.30; Dem. 44.67; Isaeus 6.25. 47; Harrison, The Law of Athens, 1, 233. 233 392 Isoc. 18.16. 393 The commercial cases often involve transactions between Athenians and foreigners: Dem. 32-35; Hyp. 3. There is also an acknowledgement that former slaves could earn a living and control property and money: Dem. 36.4-6. 394 Isaeus. 3.35-36; Lys. 31.6, 31.15-17. 395 Dem. 27.66; Isaeus. 3.39, 3.42, 3.62. 396 Dem. 27.40. 397 Dem. 47.57.
86 Human Rights and Fundamental Freedoms in Athenian Oratory Chapter 2 having been robbed or forcibly deprived of property which by right belongs to them.398 However, the practical reality was that such property passed into the control of the citizen men who held dominion over her, and so the woman never truly owned the property which constituted her dowry.399 This is supported by views that the requirement to dower women was a burden on men.400 Indeed, the way in which dowry transmission is described in oratory was to highlight the view that while the property travelled with a woman, it was always intended to be a transmission from one man to another in recognition of the support that he would need to provide.401 Moreover, there are competing presentations of such claims where the woman is merely holding the property on trust for her children, such that a dispossession or wastage of such property was in effect an assault on the patrimony of the children.402 The same is said for women who inherited as epikleroi, or ‘heiress’ in the absence of male heirs. Although they were said to inherit the property of the deceased person, they were essentially inheriting on trust for the relevant males to assume ownership, which is why there were requirements to ensure that they were married (which would transmit the rights over the property).403
To a certain extent, the formal position of women and their competence in regard to property is not explicitly stated. It appears that their ability to deal in property was not granted, protected, or prohibited at law, and instead left to family practice.404 On the one hand, this means that the capacity to manage property and money was at the discretion of the responsible man, either a relative or a husband.405 However, the practical reality appears to have a much more generous view of women’s capacity to deal in property. This provides us with some examples of where women were able to actively exercise property rights in formal settings. For example, in Lysias 23 one of the people made a claim to be Pancleon’s master was an unnamed woman.406 Although this woman remains nameless in the narrative (contrasting with the other individuals named in the case) which would seem to deprioritise her status, it is not treated as notable that a woman would be able to make such a claim over a slave, which is in essence the expression of a property right.407 In other cases, women are
398 Dem. 43.3, 43.6, 43.30; Isaeus 5.9. 399 Todd, The Shape of Athenian Law, 226. In effect, the exchange of dowry was a transaction between the two men involved (i.e. the husband and the woman’s guardian). Hunter, Policing Athens, 18. 400 Dem. 19.195. 401 This is evident in the way in which dowry dealings are described – take for example the dealings between Onetor and Aphobus, in which the dowry is all about the transaction between these two men. Dem. 30.7-8, 30.12. Alternately, there are expressions in which the dowry is assimilated into the property of the household as a collective unit. Dem. 42.27. 402 Lys. 31.10. 403 Isaeus 1.39. Epikleroi were not just citizens, but could also be foreigners, although different procedures were prescribed at law. Dem. 46.22. 404 Hunter, Policing Athens, 29. 405 Schaps, Economic Rights, 14. 406 Lys. 23.10-11. 407 Women were also known to own slaves personally, such that they were able to take the slaves with them should they choose to leave. Hunter, Policing Athens, 26-27.
87 Human Rights and Fundamental Freedoms in Athenian Oratory Chapter 2 shown to have the capacity to purchase and sell slaves, receive them as gifts, or control them as personal property.408
Women were also given functional control over chattels and moveables, particularly clothing and jewellery.409 The claim for ownership and exclusive use was significantly strong in this context. For example, Demosthenes notes that is mother was in dispute with his guardian Aphobus about her jewels.410 Similarly, Neaera was able to have a court determine that she owned the clothes, jewels and maidservants given to her, as they were purchased for her specific use.411 This suggests that the right for women to control and direct these possessions sat on equal footing with that of citizen men. Women were also able to rightfully own other personal property, as seen in Demosthenes 22 where it is argued that the prostitutes Sinope and Phanostrate had their property (mostly of furniture) wrongfully distrained as part of tax collection activities.412
Women also had control over money. It is noted that Philon’s mother chose another to conduct her burial rites, including paying that person for their service, which implies an ability to dispose of personal funds as she saw fit, her status as a woman notwithstanding.413 Even as a slave, Neaera was shown to have money that she was able to use in order to effectively purchase her freedom, through an agreement for manumission.414 There are also a range of examples where widows were able to direct the use of money and other property.415 Women were also seen in the forensic speeches to be capable of lending money as part of formal arrangements.416 We might also note that the experience of women as a class was not homogenous. The evidence available indicates that non-citizen women, particularly free hetaerae, had greater control of their property, which may be linked to their comparative disconnect from a male kyrios as a nature of their profession.417
However, in spite of their capacity to undertake dealings in relation to property, it is also noted that such dealings were limited in formal senses. For example, Isaeus cites a law which maintains that women were only able to engage in dealings for less than a bushel of barley.418 This is a significant shortfall then in the formal capacity of women to possess property, noting that rightful possession was primarily characterised by the capacity to dispose of or deal with property. Additionally, the position at law appeared to assume that women who committed wrongs would not be able to be punished through fines, heavily
408 On sale and purchase: Dem. 59.18, 59.29; on receipt via gift: Dem. 45.28; on personal handmaids: Dem. 40.51, 59.46. See also Xen. Mem. 3.11.4-5 409 Both carried strong connotations of femininity and were seen as appropriate for female ownership. Schaps, Economic Rights, 9-10. 9-10. See for example: Dem. 27.10, 27.13, 45.28, 59.35, Isaeus. 2.9 410 Dem. 27.15. 411 Dem. 59.46. 412 Dem. 22.56-57. 413 Lys. 31.20-22. Similarly, Archippe is able to control and dispose of her property even though she was married. See further Dem. 36, 45-46, 50. 414 Dem. 59.30-32. 415 Dem. 27.15, 29.26, 41.9, 41.11; The kinds of property that women were able to deal in included slaves (noted above), moveables and money. Hunter, Policing Athens, 26-29. 416 Dem. 25.56-57, 41.7-9, 41.21. 417 Pomeroy, Goddesses, Whores, Wives and Slaves, 89, 91; Schaps, Economic Rights, 12. 418 Isaeus. 10.10.
88 Human Rights and Fundamental Freedoms in Athenian Oratory Chapter 2 suggesting that they did not have formal recognition of capacity over money – instead they suffered losses of rights, or in severe cases, physical punishment.419 We balance this with the significant potential for women have strong de-facto economic rights and rights over property, which appeared then to become more distinct from the question of ‘rightful’ possession and ownership – possession and ownership remained the preserve of the woman’s male kyrios.420
Slaves were even more dispossessed. They could not own anything outright, as all property that they had was technically under the control of their masters.421 Moreover, slaves were themselves part of the system of property, which reinforced the idea that they could not themselves dispose of or deal with property. While limitations clearly did exist, the practical experience of rightful possession of property were likely to remain expansive, and in some cases, could counteract that restrictive reading. As Kamen notes, “slaves in ancient Greece could de facto acquire and dispense with money, [even though] de jure they lacked the capacity to do so, since anything they possessed technically belonged to their masters.”422 The example of how Neaira purchased her freedom from slavery is a case study in how as a slave, she had sufficient control and autonomy over her property, to the extent that she was able to use said property to purchase her freedom.423 This is an interesting example of how the concept of rightful possession and use of property, in actual practice, was likely to be more permissive that the supposed state of affairs at law. Similarly, the public slave Pancleon was able to own a house and control his money.424 This suggests again that the property right was one that intuitively was felt to be fundamental as a feature of human society. Although the right is fundamental and has baseline features, it can be and is shaped by intervening sources such as legal and societal frameworks.
Ultimately, like with many of the rights considered in this chapter, oratory adopts a conflicting and ambivalent formulation on where the right to possess property and exclude others from its use is drawn from. However, the way in which possession rights are taken for granted in oratory, particularly in relation to speeches on territorial claims and inter-polis application suggests that there may have been an underlying assumption that the system of property was one which was inherent to human society, and therefore to human existence. This once more flies in the face of significant disparities in the way in which certain classes of individuals were able to access this system and network, and therefore to claim and enjoy rights over property at all. Notably, the conception of a right to own property as a theoretical construct in oratory was narrow, being closely mapped onto existing social structures where it is engaged with explicitly. In contrast, the details of cases in oratory where the theory of property rights is not engaged, the practical ability to deal with and use property appears to be much broader and more inclusive. However, even if women and slaves could deal with property de facto, it did not change the position that de jure, they had no rights over the
419 Garlan, Slavery in Ancient Greece, 16. 420 Sue Blundell, Women in Ancient Greece (Cambridge: Harvard University Press, 1995), 115; Schaps, Economic Rights, 4, 7. 421 Dem. 53.20; Kamen, "Sale for the Purpose of Freedom," 281. 422 Ibid. 423 Dem. 59.26-32. 424 Aeschin. 1.54-59, 1.62.
89 Human Rights and Fundamental Freedoms in Athenian Oratory Chapter 2 property with which they were dealing. This could potentially reflect a view that property could be extensive to all people as a general pre-requisite of any human society.
2.7 Conclusion
At the conclusion of this chapter, six distinct entitlements have been analysed in relation to their proximity to a framework that identified human rights. What emerges is a series of contradictions in Attic oratory. None of these rights saw a complete or consistent presentation that would enable them to be definitively classed as a human right in Classical Athens. However, what this chapter has shown is that in each case, there are examples and formulations of these entitlements that call on and connect to human rights ideas and thresholds.
Where this occurs, two different layers of a human right upon which the claims in oratory rely are reflected. Much like modern human rights, these rights represented entitlements for individuals that were seen as both important and fundamental. They described the way in which individuals were authorised to act and how their actions could be limited. However, perhaps more importantly, these rights analysed largely connected to inherency and equality amongst humans by positioning the entitlements as systems which were fundamental to any properly functioning human society. It is the concept of a shared ideal for human society, to which Athens set the benchmark, that these rights have characterised in describing baseline entitlements owed to all.
Their use in the rhetoric and persuasion of the different forms of oratory speaks to their discursive power. They were most commonly deployed to strengthen claims to as an indication of the gravity of the conflict or conduct under examination. It is this link to a standard beyond the Athenian polis that was used by Athenian oratory to layer onto institutional claims, and influence listeners to treat such rights claims as more important than those relied on by opponents. As Dover puts it, reference to the fundamental or essential rights to human existence suggested that if one contravened such rights “one would be led to disaster, unhappiness or insanity by the sheer force of internal contradiction, as surely as a cart constructed in defiance of the rules of mechanics will fall apart or refuse to move”.425 The risks involved were not only addressed by the orators to their opponents, but indeed to the jury acting on behalf of the polis, in asserting that failure to protect individual rights could result in a breakdown of polis society.
This chapter has also recognised briefly that for each right, even if we were to accept the lofty claims to inherency and equality between mankind, there are not just contradictory statements but also practical limits to their actual enjoyment by all. To varying degrees, women, metics and foreigners, and especially slaves were excluded as a matter of course from the individual entitlements and participation in the systems that constitute Athenian human rights ideals. The following chapter will build on these rights and the way in which they are linked to draw out conclusions in relation to an Athenian vision of human dignity.
425 Dover, Greek Popular Morality, 269.
90 Human Rights and Fundamental Freedoms in Athenian Oratory Chapter 3
3 Human Dignity in Classical Athenian Oratory
The previous chapter outlined six key entitlements that may be able to be considered human rights. Taking these entitlements, justified by reference to inherency, equality and inalienability, what can we glean from the way they are used by the orators collectively? In modern contexts, foundational documents such as the UDHR are said to articulate through their listed rights baseline standards of human dignity, such that an absence of the specified rights indicates either that life is not what ought to be considered human, or even if considered human, is not to be considered good. In this regard, human dignity can be treated as the combination of these rights. We can do much the same with Athenian human rights to draw out an Athenian conception of human dignity by simply adding together the rights articulated. Isocrates notes that depravity includes injustice, indolence, lawlessness, avarice, contempt for allies, covetousness over possessions of others, and indifference to oath/covenant.1 In effect this list is a succinct collection of the rights outlined above.
However, to leave it at that would be a significant shortfall in our analysis of human rights. As noted in the Introduction, human rights are greater than the sum of their parts – the baseline entitlements are descriptive of what is thought to entail human dignity, but they are also reflective of an overall ideology of what makes human existence essentially ‘good’. They represent convictions about the role of the individual vis a vis others within their societies.
This chapter considers the human rights outlined above collectively to draw out some of these conclusions around Athenian human dignity. It touches on two points previously made and well established in scholarship, but adds to them with what the human rights have shown. First, it will look to the principles of freedom and equality which are recognised as central to Athenian social and political discourse and ideology. The human rights claims outlined above feed into these principles, and construct them not just as valuable elements, but valuable elements for all human society, presenting a common metric for dignity and success on the basis of humankind. This use of human rights is one which aligns with modern understandings of human rights.
Second, it looks to the recognised communal focus of Athens, in which the polis was the principal consideration and individuals were seen as secondary. Here, Athenian human rights highlight a critical difference with modern visions of human rights in articulating that the rights of the individual are intended to support the community and its wellbeing, rather than as a protection for the individual against all others. Nevertheless, contrary to some scholarship, the focus on the community and the potential for the benefit of the state to take precedence does not invalidate the existence of human rights, merely changes their justification, framing and alignment. This chapter sets to one side the more practical limits of the human rights and fundamental freedoms expressed in contradictory statements in oratory, and focusses on the commonalities that arise where such rights and freedoms were in fact justified along human rights metrics.
1 Isoc. 8.96. In much the same fashion, Demosthenes laments Macedonian ascendency by claiming that Philip’s success has resulted in the loss of prestige, authority, independence and even the constitution of all poleis alike. Dem. 18.65.
91 Human Rights and Fundamental Freedoms in Athenian Oratory Chapter 3 3.1 Familiarities: Freedom and Equality
The rights outlined in the previous chapter were united by a number of principled dimensions, which can be identified through the way in which they were justified and the way in which the benefits of such rights were framed. Two familiar principles in relation to human rights arise that find parallels between modern and Athenian conceptions of human rights, namely freedom and equality. Modern human rights discourse emphasises that the rights which constitute human dignity are founded on principles of freedom and equality. Individuals are conceptualised in a shared community and that to ensure they have dignity each must be empowered to act generally without restraint and none must be disadvantaged from another party. Both of these principles are also evident from the human rights identified in this thesis, and each principle will be considered in turn
When oratory applies human rights reasoning and justification to each of the entitlements and freedoms outlined, there is also an implicit belief that human dignity requires humans to be able to exist freely. The equivalent Greek term for freedom, eleutheria, contains a wide range of meanings, including but not limited to: a state of being in contrast to slavery; the capacity to participate in public life and democratic institutions; the ability to live as one pleases; and not being subject to the governance of another individual (i.e. subject to an oligarchy or monarchy).2 Each of these meanings constructs a view of freedom as a state of being that is free from a range of external influences.
The notion that freedom was incredibly important to Athenians is one that is well attested to, and in this regard the idea that it is seen as an essential component of dignity in Athenian discourse is not a novel one.3 Freedom as a concept has typically been seen to be closely situated within these class divisions and structures, seen as the precondition to equality and the ability to participate in public life, or to be subject to a specific form of government.4 Drawing on the meaning of eleutheria as a state of being oppositional to both slavery and political systems such as tyranny has helped to cement this meaning and prioritise the political and class components.5 In much the same fashion, freedom as a political consideration was often invoked in relation to geopolitical forces. For example, in Demosthenes 18 the orator boldly claims “that then was my policy [to oppose Philip]. I saw a man enslaving all mankind, and I stood in his way.”6 In the same speech, Demosthenes associates such sentiment of a universal sense of freedom with the past actions of Athens,
2 Mogens Herman Hansen, "The Ancient Athenian and Modern Liberal View of Liberty as a Democratic Ideal," in Dēmokratia: A Conversation on Democracies, Ancient and Modern, ed. Josiah Ober and Charles Hedrick (Princeton: Princeton University Press, 1996), 93-94; Raaflaub, Discovery of Freedom, 54-55. 3 For instance, see Discovery of Freedom. 4 Ostwald, "Shares and Rights," 54-55. 5 There is a corresponding focus in the sources. For example, on contrasting of slave and free, see: Din. 1.18; Isoc. 4.123, 6.51, 8.16. On the oppositions between tyranny and democracy see: Dem. 6.25, 7.32, 8.42, 15.20; Hyp. 2.fr.1, Isoc. 4.117. 8.67-68, 8.99. 6 ταῦτα τοίνυν ἐπολιτευόμην ἐγώ, καὶ ὁρῶν καταδουλούμενον πάντας ἀνθρώπους ἐκεῖνον ἠναντιούμην, καὶ προλέγων καὶ διδάσκων μὴ προΐεσθαι διετέλουν. Dem. 18.72.
92 Human Rights and Fundamental Freedoms in Athenian Oratory Chapter 3 which were to never prefer servitude and security over war and danger if the latter was in the protection of the liberties and freedom of mankind generally.7
However, taking the rights outlined in the previous chapter collectively, it appears as though the individual aspect of eleutheria as living as one pleases was a more fundamental consideration central to the good life of any human. The treatment of slaves and their relation to freedom concepts is an interesting tension in the source material. On the one hand, slaves were inherently seen to be unfree, almost as if by nature they were not entitled to such a right.8 And yet, in cases where slave motivations need to be interrogated, freedom and the control and protection of their physical selves is seen to be the key thing any slave would desire.9 The implication here, to thread the needle, is that the slave class was inherently unfree, but that as humans, all desired freedom, almost instinctually. Moreover, freedom was the central entitlement and benefit which slaves claimed on manumission. Inscriptions relating to manumission describe the former slave as now being master of themselves and able to go where they wished.10 In this way, freedom becomes a fundamental human rights claim, albeit one with a tightly constrained application given the overlay of social structures.
All of the human rights to varying degrees relate to the provision of freedom. Some of these operate directly. The ability to speak, particularly in its formulation as parrhesia is one that is characteristic of acting without restraint. Protections for the individual are cast as necessary to ensure that individuals are able to go about their daily life freely and without interference. The other rights approach the issue more indirectly. Systems such as the law, oath and property are justified as providing the framework for human interaction, and they describe entitlements of individuals to in fact restrict the freedom of others. However, we can make two observations about these rights. In the first instance, the argument by silence suggests that these rights enabled a significant degree of freedom by their limited application. Once individuals complied with subordination to legal processes, respect for other’s property and required completion of promised action, they were free to otherwise live their lives. Wallace uses similar logic to argue that the absence of law in regulating day to day activities is an indicator of the general freedom enjoyed by individuals in Athens.11 The same applies here to the human rights identified, which represent high level claims, and often are only presented as a fallback position. Within the very flexible parameters of the rights, the assumption is that individuals can and should be able to live and act as they please.12
Secondly, these rights and systems were thought to actively contribute to freedom by guaranteeing systems through which individuals were able to seek redress and therefore
7 Dem. 18.203, 18.208. 8 Noting that this was a more developed position and theory amongst philosophers, particularly Aristotle, but also linked into the work of the Hippocratic writers. Garlan, Slavery in Ancient Greece, 121. 9 Lys. 5.3-5. Note also that the speaker in Lys. 5 makes the point that freedom ought not to be provided at all costs, and that it is a concern of not just the individual slaveowner, but of the whole polis as to how slaves see the pathways to freedom. This has the effect of delineating between rightful and wrongful freedom, but only in the case of slaves, not of all humankind. 10 Kamen, "Sale for the Purpose of Freedom," 288-89. 11 Wallace, "Law, Freedom and the Concept of Citizens' Rights," 112. 12 Cohen, Law, Violence and Community in Classical Athens, 54.
93 Human Rights and Fundamental Freedoms in Athenian Oratory Chapter 3 protect their freedom from encroachment by the actions of others. In essence, by limiting absolute freedom for some, rights to social systems served to maximise the aggregate freedom of Athenians. Human rights expressed in Athenian oratory serve to guarantee and support the ability to individuals to live free, and particularly to be free from brutality. This also lends strength to the statements that may in isolation be seen to be radical from the philosophers, such as Alcidamus who claims that “god has left all men free, nature has made no man a slave”.13 In this way, the threshold of an idealised human life of dignity is one in which individuals are free to lie as they choose, the very character for which Pericles thought Athens exceeded all others.14 The conceptual extension of rights such as protection from interference, protection under the law and an ability have promises fulfilled to women, metics and even slaves is characterised as a marker of humanity. This in effect extends freedom as a normative good for all humans, notwithstanding the fact that such groups suffered practical disadvantage in comparison to citizen males. Indeed, because of the existence and application of these human rights, in the day to day, it is likely that Athenians could speak, act and speculate freely, and were likely to have normally done so.15
What this thesis has shown is that when we consider the human rights outlined in the previous chapter, freedom was not just a class consideration, but also a normative good seen as necessary component of a dignified human existence. This moves the concept as presented in oratory beyond its political and class components to an aspirational character of human society. These rights which push towards freedom were closely linked to the concept of a good order and justice. In the Athenian mindset, the natural product of a good order is one in which individuals have personal freedom on an equal basis with each other.16 This interaction between such principles was also self-reinforcing, such that freedom was said to constitute the precondition within which values such as order and equality dominated everyday life.17
Equality is the second characteristic of human dignity arising from these human rights. Equality has already been noted as a common threshold for human rights claims. However, it also functions as a descriptor of the goal and purpose of such rights and therefore a character of a vision of human dignity – namely, that fundamental rights exist not just because humans are equal, but in order to continue to ensure an equality between individuals. The human rights outlined in the previous chapter drive towards equality by setting up the rules for such competition and ensuring the capacity to participate. Although this was a general standard, it is also worth acknowledging that equality as an assessment was not against all humanity at any one time, but rather referred to a more limited equality within a particular community.
Again, equality has long been recognised as a central component of Athenian political structures, with democracy being characterised as a government of equals. As Isocrates
13 ἐλευθέρους ἀφῆκε πάντας θεός: οὐδένα δοῦλον ἡ φύσις πεποίηκεν. Arist Rh. 1373b18-19. 14 Thuc. 2.37.2, Arist. Ath Pol. 6.2.1317a40ff 15 Wallace, "Law, Freedom and the Concept of Citizens' Rights," 117. 16 In this way, one might best explain Solon’s prohibitions on slavery and debt bondage of citizens less as a concern for personal freedom, but instead as a limitation intended to avoid certain individuals to rise too far above their peers into positions of tyranny that would result in disorder. Raaflaub, Discovery of Freedom, 55-56. 17 Ibid., 208.
94 Human Rights and Fundamental Freedoms in Athenian Oratory Chapter 3 puts it, the Athenian approach is to “condemn oligarchies and special privileges” and “commend equal rights and democratic governments”.18 The common justification that equality is deserved on account of the equal shares and contributions that that such an assessment of common and equal benefit is both by reason of citizenship, but also in relation to one’s contributions as a citizen.19 The return of the democrats after the rule of the Thirty was said to have ensured that all men of Athens gained equal rights.20 This is also evident in the practical measures taken by the Athenians to ensure that their systems provided equal access, such as the use of lot as a voting mechanism, the strict rotation of roles and processes such as accounting for service in office.21
What the human rights in the previous chapter have shown is that for the orators, equality is borne out of a fundamental view that individuals ought to start from a level playing field, at least within the same broad class stratification. This is particularly true for rights to social institutions and systems, in line with the third purpose of human rights outlined in Chapter 2. The right to an agreed system of oaths, of property and of the law is justified in the source material as a pathway to or a protection of equality between individuals. This is because the rights to such institutions assume that access to the relevant institution is a mechanism through which all are able to interact with each other on a level playing field – in essence as a guarantee of equality because the same institution governs all.
Similar logic also emerges in the rights for individualised action – the ability for all to speak under isegoria, for instance, is justified as a mechanism to ensure parity between individuals and equalise the playing field. As the rights detailed in the previous chapter showed, even on a case specific basis, principles such as equality were seen to be critical. It could form the foundation of legitimate complaint if, for example, one was felt to have been singled out in a way or suffered in a way that by design was not the same as their peers.22 The function of such rights as limitations on brutality is still present, but ultimately is not the primary function for equality. Importantly the Athenian conception of an egalitarian human society which guaranteed dignity was one in which the equality of opportunity took primacy over absolute equality of outcome for individuals.23 From the starting point established by rights, individual differences could then come to the fore, and differential treatment was therefore acceptable provided the baseline of equal opportunity was met. This is the very basis for the rights to property and oath, which recognise that the specific property, or the specific promise would vary from case to case. Instead, what was critical was the shared ability to access these systems without barrier or interference.
18 ἐν γὰρ τοῖς πλείστοις τῶν λόγων τῶν εἰρημένων ὑπ᾽ ἐμοῦ φανήσομαι ταῖς μὲν ὀλιγαρχίαις καὶ ταῖς πλεονεξίαις ἐπιτιμῶν, τὰς δ᾽ ἰσότητας καὶ τὰς δημοκρατίας ἐπαινῶν. Isoc. 7.60. 19 Andoc. 2.1; Dem. 13.4. 20 Lys. 12.92. 21 Todd, The Shape of Athenian Law, 292. 22 For example, the allegedly unfair conscription of the speaker at Lys. 9.4. The claim is similarly expressed through the outrage that Apollodorus sought to suggest that Phormio ought not to be given equal footing just because of his past as a slave: Dem. 36.48. 23 Jennifer Tolbert Roberts, "Athenian Equality: A Constant Surrounded by Flux," in Dēmokratia: A Conversation on Democracies, Ancient and Modern, ed. Josiah Ober and Charles Hedrick (Princeton: Princeton University Press, 1996), 188.
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Nevertheless, equality of opportunity, as a core function of human dignity, was also subject to many of the same limitations as the individual rights, being presented as more important from citizen males. This reflects the organisation of Athenian social and political institutions around competition for honour and standing within the community.24 Tellingly, this is a moral community that excludes women, slaves and foreigners, largely on the tautological reasoning that they were not free and therefore could not be equal.25 Instead of competing for honour, the role and goal of women was to aspire to motherhood and marriage, in support of the continuation of the family.26 Metics and foreigners were defined by their transience and comparative lack of connection to the land vis a vis an Athenian citizen, and so unable to own a direct share of the polis, either through land or through participation in the running of the polis.27 Slaves, even if they were human, were human property and this was their primary conception, such that their interests and standing were irrelevant in comparison to the person to whom they were subordinate.28 Accordingly, it stands to reason that they would also have no share in the rights considered to be fundamental.
The special character of Athenian democracy in relation to equality and its broader application as a critical outcome of human rights is again a feature of Athenian self- justification of its exceptionalism. The very purpose of Athenian democracy was thought to be a safeguard for all individuals to limit the disparities in social power that could arise through wealth inequity.29 The function of human rights and fundamental freedoms was to both limit certain actions, as well as protect others in a manner that was shared by the polis community. The rights outlined as whole then add character to what needed to be equal between peoples beyond mere platitudes, and justified such on the basis of humanity.
Moreover, there are counter-narratives within the sources that suggest that the democratic system was only seen as one of many potential useful mechanisms (if not the most useful) for the implementation of equality as a right. For example, the Lacedaemonian government was lauded as setting the benchmark, not because they adopted democracy, but because they adopted a system that entrenched equality:
“For I know that under this constitution our ancestors were far superior to the rest of the world, and that the Lacedaemonians are the best governed of peoples because they are the most democratic; for in their selection of magistrates, in their daily life, and in their habits in general, we may see that the principles of equity and equality have greater influence than elsewhere in the world—principles to which oligarchies are hostile, while well-ordered democracies practise them continually.”30
οἶδα γὰρ τούς τε προγόνους τοὺς ἡμετέρους ἐν ταύτῃ τῇ καταστάσει πολὺ τῶν ἄλλων διενεγκόντας, καὶ Λακεδαιμονίους διὰ τοῦτο κάλλιστα πολιτευομένους, ὅτι μάλιστα δημοκρατούμενοι τυγχάνουσιν. ἐν γὰρ τῇ τῶν ἀρχῶν αἱρέσει καὶ τῷ βίῳ τῷ καθ᾽ ἡμέραν καὶ τοῖς ἄλλοις ἐπιτηδεύμασιν ἴδοιμεν ἂν παρ᾽ αὐτοῖς τὰς ἰσότητας καὶ τὰς
24 Cohen, Law, Violence and Community in Classical Athens, 64. 25 Ostwald, "Shares and Rights," 52; Cohen, Law, Violence and Community in Classical Athens, 64. 26 Pomeroy, Goddesses, Whores, Wives and Slaves, 60-62. 27 Sealey, Athenian Republic, 24; Todd, The Shape of Athenian Law, 196-97. 28 Garlan, Slavery in Ancient Greece, 40-41. 29 Ober, "Quasi-Rights," 32. 30 Isoc. 7.61.
96 Human Rights and Fundamental Freedoms in Athenian Oratory Chapter 3
ὁμοιότητας μᾶλλον ἢ παρὰ τοῖς ἄλλοις ἰσχυούσας: οἷς αἱ μὲν ὀλιγαρχίαι πολεμοῦσιν, οἱ δὲ καλῶς δημοκρατούμενοι χρώμενοι διατελοῦσιν.
Similarly, going to the mythic past, other forms of government are also seen as capable of delivering on the promise of equality. The monarchy of Theseus was said to have been ideal as a government where all could live as citizens on terms of equality.31 Indeed, the value and importance of equality was also presented where inequities were identified and criticized. For example, the Persians are said to not govern with equality, which is demoralising to human nature.32 Moreover, it is acknowledged that as important as democracy was to Athenian self-conception, no man was born a democrat or an oligarch, but rather the system used was one that conformed to the advantages and the circumstances faced by each individual.33 The resolution of such competing claims again applies the Athenian view of their comparative enlightenment and civility in achieving an idealised society through democracy. This assessment requires that democracy therefore becomes a mechanism rather than a goal of human society and human dignity, such that the human community as a whole is united by shared purpose and principle, which Athenian democracy so happens to best attain in the circumstances faced by Athens.
The human rights outlined in the previous chapter then collectively demonstrate how equality could be safeguarded and protected by establishing baseline rules of engagement and interaction in a manner that would guard against arbitrarily favouring one person over another. Equality principles explain how rights holders related to each other, constructing a shared imagined community on the basis of humanity which ought to be the minimum standard for life to be considered to be human.
What we can see from these two principles is that the human rights claims in oratory were not a collection of disparate rights relating to discrete entitlements and protections. Instead, as a collective they were presented in a manner that highlighted a shared support for principles of freedom and equality, which then characterises the fundamental nature of a dignified human existence. Athenian human rights were presented as compelling reasons in oratory for individuals to conform to group social norms, through the proper use of mechanisms to resolve conflict and behavioural codes to promote social harmony. The human rights in Attic oratory speak to a vision of a dignified human existence as an ideal shared by all, one to which Athens excelled through its application and defence of such rights. The Periclean funeral oration in Thucydides makes this assertion as to Athenian exceptionalism in regard to the rights afforded to individuals:
“Let me say that our system of government does not copy the institutions of our neighbours. It is more the case of our being a model to other, than of our imitating anyone else. Our constitution is called a democracy because power is in the hands not of a minority but of the whole people. When it is a question of settling private disputes, everyone is equal before the law; when it is a question of putting one person before another in positions of public responsibility, what counts is not membership of a particular class, but the actual ability which the man possesses. No
31 Isoc. 10.32-35. 32 Isoc. 4.151-153. 33 Lys. 25.8.
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one, so long as he has it in him to be of service to the state, is kept in political obscurity because of poverty. And, just as our political life is free and open, so too is our day-to-day life in our relations with each other. We do not get into a state with our next-door neighbour if he enjoys himself in his own way, nor do we give him the kind of black looks which, though they do no real harm, still do hurt people’s feelings. We are free and tolerant in our private lives; but in public affairs we keep to the law. this is because it commands our deep respect.”34
‘χρώμεθα γὰρ πολιτείᾳ οὐ ζηλούσῃ τοὺς τῶν πέλας νόμους, παράδειγμα δὲ μᾶλλον αὐτοὶ ὄντες τισὶν ἢ μιμούμενοι ἑτέρους. καὶ ὄνομα μὲν διὰ τὸ μὴ ἐς ὀλίγους ἀλλ᾽ ἐς πλείονας οἰκεῖν δημοκρατία κέκληται: μέτεστι δὲ κατὰ μὲν τοὺς νόμους πρὸς τὰ ἴδια διάφορα πᾶσι τὸ ἴσον, κατὰ δὲ τὴν ἀξίωσιν, ὡς ἕκαστος ἔν τῳ εὐδοκιμεῖ, οὐκ ἀπὸ μέρους τὸ πλέον ἐς τὰ κοινὰ ἢ ἀπ᾽ ἀρετῆς προτιμᾶται, οὐδ᾽ αὖ κατὰ πενίαν, ἔχων γέ τι ἀγαθὸν δρᾶσαι τὴν πόλιν, ἀξιώματος ἀφανείᾳ κεκώλυται. ἐλευθέρως δὲ τά τε πρὸς τὸ κοινὸν πολιτεύομεν καὶ ἐς τὴν πρὸς ἀλλήλους τῶν καθ᾽ ἡμέραν ἐπιτηδευμάτων ὑποψίαν, οὐ δι᾽ ὀργῆς τὸν πέλας, εἰ καθ᾽ ἡδονήν τι δρᾷ, ἔχοντες, οὐδὲ ἀζημίους μέν, λυπηρὰς δὲ τῇ ὄψει ἀχθηδόνας προστιθέμενοι. ἀνεπαχθῶς δὲ τὰ ἴδια προσομιλοῦντες τὰ δημόσια διὰ δέος μάλιστα οὐ παρανομοῦμεν, τῶν τε αἰεὶ ἐν ἀρχῇ ὄντων ἀκροάσει καὶ τῶν νόμων, καὶ μάλιστα αὐτῶν ὅσοι τε ἐπ᾽ ὠφελίᾳ τῶν ἀδικουμένων κεῖνται καὶ ὅσοι ἄγραφοι ὄντες αἰσχύνην ὁμολογουμένην φέρουσιν.
In such a fashion, Athens was said to be the most magnanimous in the world, in no small part to the way in which its customs were shaped towards upholding the rights and principles that are impliedly shared between mankind.35 It is a vision of freedom and equality that is remarkably similar to that which we intuitively associate with modern human rights. The connection to Athens aligns with the function of the individual rights in the rhetoric of Athenian oratory, to strengthen the case of the speech and the invite the listener’s agreement, through the invocation and application of both shared ideals of human dignity, but also of a self-aggrandisement of the Athenian polis and by extension, its members.
3.2 Divergences: Individual Rights for Community Benefit
If the principles with which human dignity was constructed from Athenian human rights are remarkably familiar, we also need to be mindful of some of the sharp differences with modern conceptions of human rights. The start of this thesis began with the preamble of the American Declaration of Independence, which made the bold claim that certain rights were inherent and inalienable to humankind. The sentence which follows is equally telling as to the modern view that “to secure these rights, governments are instituted among men”. This sees rights as an individual entitlement, and human dignity as something that is necessarily
34 Thuc. 2.37 35 Hyp. 4.11, 4.33. On Athens being comparatively more advanced/superior to its fellows, see also Dem. 19.69. The sources indicate that regardless of the type of constitution, the ultimate goal of government is to ensure the welfare of its people (i.e. human dignity, as contained in fundamental human rights): Dem. 13.1. Isoc. 8.91, 9.15. Similarly, the constitutional argument in Herodotus assumes that regardless of the type of constitution, the goal of a government ought to be the same – the difference is just the likelihood of success. This speaks to the concept of a shared baseline of ideal human society. Hdt. 3.80-82.
98 Human Rights and Fundamental Freedoms in Athenian Oratory Chapter 3 experienced by each person to the exclusion of others. However, that is not the case for the rights considered to be fundamental by the Athenians that we have seen form the foundation of human dignity. Rather than a government or social organisation whose purpose is to protect individual rights, in Athenian oratory we have a view of fundamental rights whose purpose is ultimately to ensure the continuance of government and social structures.36 This reflects a far more communal lens than the individualistic, atomistic one that modern human rights discourse is conventionally based on.
The communality of Athenian society is again well-recognised in scholarship, where the individual is conceptualised as generally subservient or instrumental to the imagined community of the polis.37 Individuals were commonly seen as subjects that ought to be managed on a communal level by external regulation, rather than as individuals who would internalise appropriate behaviours and self-regulate.38 In oratory, the common refrain is for the indulgence, pity or understanding of the jury on the basis of past services to the polis.39 The jury or audience is invited to make a comparative assessment of the potential treatment of the relevant party, balanced against their overall service to the city.40 In contrast, there is a trope in which opponents are cast as selfish, refusing to serve the city and instead prioritising their personal gains at the expensive of the collective.41 Their actions may also be argued to be an attack not just on an individual, but on the community as a whole.42
In each of the human rights expressed in Athenian oratory, the entitlement is provided to the individual, but is justified as a part of a broader social structure. This is particularly true of rights such as those to social structures and social systems, particularly the rule of law. However, even the most individualistic rights are framed with the community in mind. For example, we saw that freedom of speech was not simply that speech was able to be free and frank, but that it was couched in the belief that such frankness was an important part of ensuring that the community could benefit from hearing the truth as seen by each individual as they were all equal. Moreover, the exercise of speech was not absolutely free, but limited through application of metrics such as social harmony and community stability, often through institutions such as the law or social enforcement around norms of propriety. The same could be said of protections for individual entitlements such as the protection of the self, the fulfilment of promises, and the right to control property. These are rights which, although attaching to individuals, speak to a view that these rights and the frameworks for acceptable action they represent are important safeguards against the breakdown of civil society. This
36 Hansen, "Liberty as Democratic Ideal," 96-97. 37 Campbell, "Constitutionalism," 240, 68. 38 Herman, Morality and Behaviour, 17. 39 Lys. 3.48, 4.19. Dover, Greek Popular Morality, 173-80, 302; Liddel, Civic Obligation and Individual Liberty, 84-85; Usher, Greek Oratory, 22-26, 153. 40 Aeschin. 2.160-163; Isaeus 4.27-29, 7.39; Lys. 12.18-20, 12.88-89, 12.96. This comparison could also be drawn with past figures who provided to the city (and therefore were similar to the speaker/starkly different from their opponent). See for example Lys. 13.60-61. 41 The concern is around personal enrichment, so this is a typical claim made in prosecutions for bribery. See for example Dem. 19, Din. 1-3. It could also refer to a meanness of those who chose to use their wealth or skill and expend it on personal gain rather than improving the polis. See for example Dem. 21.159-167; Isoc. 12.12; Lys. 19.10-11. 42 Dem. 21.2, 21.112, 21.124, 24.111; Isaeus 5.35, 6.48; Todd, The Shape of Athenian Law, 319-20. 319-320
99 Human Rights and Fundamental Freedoms in Athenian Oratory Chapter 3 view is echoed by some philosophers, such as Protagoras as presented in the Platonic dialogue. Baldry describes the position taken as one that links justice to the existence of mankind and human societies by arguing that:
“…man is a reasoning animal, and all members of the human species include among their common attributes worship of the gods, the fit of speech, and the power to acquire or other form of technical skill. The great majority have also some ability to learn justice and respect for others and political wisdom, and they come together in civilised communities.”43
This argument presents an important layer then to add onto the conception of human dignity as being characterised by freedom and equality – what is being described is a human existence within and contingent on a social unit rather than an individual existence in the state of nature. Individual freedom and collective freedom were also seen as interconnected, although this was not always made explicit. Rather there was an underlying assumption that individual freedom was predicated on the existence of collective freedom.44 When orators invoke the image of the freedom of a polis from interference, they speak not only of the polis as an entity, but also of the right of freedom that is held by each polis member as an individual. For instance, in Demosthenes’ Olynthiac and Philipic speeches, the common theme in the anti-Macedonian appeals is a link between resistance and supporting freedom for Greek poleis. Throughout each of these speeches, the key elements of freedom and autonomy rights claims that are highlighted are their broad applicability of the basis of humanity, and indeed their inherence to proper functioning society.45 Similarly, the appeal for Athens to lead a pan-Hellenic alliance against Persia in Isocrates’ Panegyricus positions Athens and its democracy as a forerunner and benchmark for the pursuit and delivery of what are a shared set of ideals that are common to all human societies, emphasising here the rule of law, freedom of speech and livery rights that are connected to democracy.46 In these cases, talk of the defence of rights and the principles of human dignity always come back around to their instrumental purpose in ensuring that the social unit of the polis was secured, as the central mechanism for the realisation of human dignity.
In Athenian oratory then human dignity was only achievable if one was within a good community. The good life as we have seen is fundamentally tied to the provision of services through institutions and structures that existed at the social level. This dominant view also reflects the underlying assumptions in the political philosophy of Plato and Aristotle, which posits that the good life can only be lived in a good polis, which is what established the corresponding obligations to maintain and improve the polis from generation to generation.47 In oratory, similar trends emerge, in which the common goal of people generally is to live constitutionally and freely in their own fatherlands, without fear of attack or fear for personal safety.48 The spirit of the Athenian commonwealth was said to be based in avoiding or
43 Baldry, Unity of Mankind, 41-42. 44 Raaflaub, "Democracy," 522. 45 Dem 1.23, 2.8, 2.24, 3.20, 3.24, 3.27-28, 4.10, 6.10, 6.25, 9.23, 9.36, 10.14-15, 10.50. 46 Isoc. 4.20-26, 4.39-40, 4.183-185. 47 Ober, "Quasi-Rights," 43; "Ability and Education," 277. 48 “That spirit is a spirit of compassion for the helpless, and of resistance to the intimidation of the strong and powerful; it does not inspire brutal treatment of the populace, and subservience to the potentates of the day.” τοῦτο δ᾽ ἐστὶ τί; τοὺς ἀσθενεῖς ἐλεεῖν, τοῖς ἰσχυροῖς καὶ δυναμένοις μὴ
100 Human Rights and Fundamental Freedoms in Athenian Oratory Chapter 3 mitigating the chance for brutality of the populace at the hands of the powerful.49 Their polis was said to be laudable as a united body characterised by principles of mutual kindness and humanity.50 As the previous chapter has shown, the fundamental rights that were seen in oratory generally worked to this ultimate goal, both directly such as the rule of law or physical protection, and indirectly through the support that rights such as free speech or claimable promise lent towards social structures that enabled individuals of different strengths to meet on an even playing field. More generally, this line of thinking is also reflected in wider Athenian thinking about the relative superiority of the Greeks, which was done in reference to a “whole complex of fundamental values that preside over the organisation of human dignity.”51
Importantly however, those obligations to contribute to the democratic polis and its operation can also be presented as rights that secure the capacity of individual participation and equality of access.52 These are the same rights that have been outlined in the previous chapter. Their focus is on safeguarding the individual to ensure that they can contribute to the common good – in essence, rights which are principally participatory, rather than protective of an individual standard or sanctified sphere of rights. Indeed, the protection of the individual and their rights was seen as a general support of the state, as it increased the overall health of the state. For example, Demosthenes casts his payment of ransom for Athenian captives not just as a service to those individuals, but indeed as a service to the polis as a whole.53
The purpose of human rights is therefore the inverse of that in the modern formulation. Governments do not exist to guarantee individual rights, but instead human rights exist to guarantee governments, which are the preconditions for human dignity. One’s equality and freedom formed part of a commitment to continue and maintain such principles through participation and defence of existing social institutions and structures to the extent that they aligned with the idealised vision of social organisation. Athenian liberties were held by individuals to enable them to support a system in which each individual could maximise their full potential.54 Nevertheless, even if all humans needed a good polis to enjoy a good life, what that life looks like is not the same for all, as we have seen throughout this thesis. The maximal enjoyment of the good life and human rights under the polis also involved being a citizen male. This gap between the ideal of human dignity through the polis and its practical experience is remarked upon in the conclusion of this thesis.
These norms reflect of the often turbulent and unstable nature of the Classical Athenian world, in which warfare, conflict and misfortune were common occurrences. Additionally, the formal state apparatus on which modern societies rely, such as defence force professionals, law enforcement and other mechanisms of social control were functionally non-existent.
ἐπιτρέπειν ὑβρίζειν, οὐ τοὺς μὲν πολλοὺς ὠμῶς μεταχειρίζεσθαι, κολακεύειν δὲ τὸν ἀεί τι δύνασθαι δοκοῦντα. Dem. 23.139. 49 Dem. 24.171. 50 Dem. 25.87-89. 51 Garlan, Slavery in Ancient Greece, 122. 52 Liddel, Civic Obligation and Individual Liberty, 316-17; Ober, "Quasi-Rights," 50, 58, 60-61; Raaflaub, "Democracy," 521. 53 Dem. 19.171. 54 Raaflaub, "Democracy," 522.
101 Human Rights and Fundamental Freedoms in Athenian Oratory Chapter 3
Instead, these functions were carried out by citizen volunteers. The potential impact an individual could have on the survival of the state was therefore (at least conceptually) significant. This meant that there was an acknowledgement that the fate of all individuals was in some way tied to the polis. As Demosthenes claims, “in common justice, the city and its representatives should have fared alike.”55 A harm to the polis would therefore be equivalent to a harm to the self, but with the added detriment of also harming others.
Additionally, the importance of the community to safeguard rights also demonstrates the place that Athenians saw mankind in relation to a world of uncertainty and significant risk. It is remarked on that the shared fate of mankind is to be at the whim of the divine, and ultimately subject to the vagaries of fortune.56 In the face of such risks and uncertainty, the role of human rights was to therefore secure the state as the principal protection against uncertainty, and then in a self-reinforcing loop, enable the protection and enjoyment of these rights within that social structure. Perhaps most importantly, Athenian oratory saw that they operated as the benchmark for what an idealised society was that protected fundamental rights and freedoms, an ideal which they shared with the world. As Isocrates declares:
“For, finding the Hellenes living without laws and in scattered abodes, some oppressed by tyrannies, others perishing through anarchy, she delivered them from these evils by taking some under her protection and by setting to others her own example; for she was the first to lay down laws and establish a polity. This is apparent from the fact that those who in the beginning brought charges of homicide, and desired to settle their mutual differences by reason and not by violence, tried their cases under our laws. Yes, and the arts also, both those which are useful in producing the necessities of life and those which have been devised to give us pleasure, she has either invented or stamped with her approval, and has then presented them to the rest of the world to enjoy. Moreover, she has established her polity in general in such a spirit of welcome to strangers1 and friendliness2 to all men, that it adapts itself both to those who lack means and to those who wish to enjoy the means which they possess, and that it fails to be of service neither to those who are prosperous nor to those who are unfortunate in their own cities; nay, both classes find with us what they desire, the former the most delightful pastimes, the latter the securest refuge.”57
παραλαβοῦσα γὰρ τοὺς Ἕλληνας ἀνόμως ζῶντας καὶ σποράδην οἰκοῦντας, καὶ τοὺς μὲν ὑπὸ δυναστειῶν ὑβριζομένους τοὺς δὲ δι᾽ ἀναρχίαν ἀπολλυμένους, καὶ τούτων τῶν κακῶν αὐτοὺς ἀπήλλαξε, τῶν μὲν κυρία γενομένη, τοῖς δ᾽ αὑτὴν παράδειγμα ποιήσασα: πρώτη γὰρ καὶ νόμους ἔθετο καὶ πολιτείαν κατεστήσατο. δῆλον δ᾽ ἐκεῖθεν: οἱ γὰρ ἐν ἀρχῇ περὶ τῶν φονικῶν ἐγκαλέσαντες, καὶ βουληθέντες μετὰ λόγου καὶ μὴ μετὰ βίας διαλύσασθαι τὰ πρὸς ἀλλήλους, ἐν τοῖς νόμοις τοῖς ἡμετέροις τὰς κρίσεις ἐποιήσαντο περὶ αὐτῶν. καὶ μὲν δὴ καὶ τῶν τεχνῶν τάς τε πρὸς τἀναγκαῖα τοῦ βίου χρησίμας καὶ τὰς πρὸς ἡδονὴν μεμηχανημένας, τὰς μὲν εὑροῦσα τὰς δὲ δοκιμάσασα χρῆσθαι τοῖς ἄλλοις παρέδωκεν. τὴν τοίνυν ἄλλην διοίκησιν οὕτω φιλοξένως
55 τῶν γὰρ αὐτῶν ἔδει τήν τε πέμψασαν πόλιν τυγχάνειν καὶ τοὺς ἐκ ταύτης πρέσβεις, εἴπερ τι τῶν δικαίων ἐγίγνετο. Dem. 19.147. 56 Dem. 18.194, 18.200, 18.252. 57 Isoc. 4.39-41.
102 Human Rights and Fundamental Freedoms in Athenian Oratory Chapter 3
κατεσκευάσατο καὶ πρὸς ἅπαντας οἰκείως, ὥστε καὶ τοῖς χρημάτων δεομένοις καὶ τοῖς ἀπολαῦσαι τῶν ὑπαρχόντων ἐπιθυμοῦσιν ἀμφοτέροις ἁρμόττειν, καὶ μήτε τοῖς εὐδαιμονοῦσι μήτε τοῖς δυστυχοῦσιν ἐν ταῖς αὑτῶν ἀχρήστως ἔχειν, ἀλλ᾽ ἑκατέροις αὐτῶν εἶναι παρ᾽ ἡμῖν, τοῖς μὲν ἡδίστας διατριβάς, τοῖς δὲ ἀσφαλεστάτην καταφυγήν.
The focus in oratory of fundamental rights as an instrumental good insofar as they supported the creation of the polis highlights an interesting comparison in terms of the social foundations of modern rights that are arguably founded on similar principles. Modern social, political and moral discourses are founded on the idea of the individual as the principal actor, which creates theoretical problems in collectivising rights.58 Most rights are protections for individuals against other individuals and against authority that may be overstepping its legitimate bounds. Human rights discourse is placed in opposition to the absolute license of the state and serves to restrain its functions.59 That is, rights holders are principally individuals, and the operationalization of rights concepts and values is something that has been assessed insofar as they affect individuals. In contrast, the Athenian conception is one rooted in alignment with the state, such that its existence is the purpose and function of these rights.
However, in the context of human rights, the emphasis on communality in the fashion presented by Athenian oratory has at times been used by Classical scholarship to deny that such rights exist on two grounds: first because they don’t enable the protection of the individual against the excesses of the community as the individual is always seen as subordinate; and second, on a related ground that this ideological position enabled essentially unlimited state power.60 As noted explicitly by Demosthenes, the view was that the civic body of Athens has supreme and unlimited authority.61 This raises a challenging proposition in relation to human rights in Classical Athens, which is the extent to which such rights are ever truly inalienable if they only serve to support a political structure such as democracy.
However, this view around unlimited state power denying human rights rests on a fundamental assumption that actual enforcement is needed. As noted in Chapter 1, human rights in their form as social constructs are not reliant on practical enforcement. The mere fact that the right could have been abrogated, and was abrogated for other reasons, does not in and of itself deny the existence of the right. Additionally, it is an overstatement that the state has unlimited power to abrogate rights and freedoms of individuals if the likelihood of such is marginal.62 The abrogation of such human rights was in fact unlikely given their close connection to the stability of the community and their conception as mechanisms to benefit
58 De Feyter, "Law Meets Sociology," 56. 59 Janet Hiebert, "Interpreting a Bill of Rights: The Importance of Legislative Rights Review," British Journal of Political Science 35, no. 2 (2005): 235, 42, 55; Arzoo Osanloo, Forgiveness Work: Mercy, Law and Victims' Rights in Iran (Princeton: Princeton University Press, 2020), 267; Soirila, "Humanity," 369. 60 Dover, Greek Popular Morality, 157-58, 289; Moses Finley, Democracy: Ancient and Modern (New Brunswick: Rutgers University Press, 1988), 116; Richard Muglan, "Liberty in Ancient Greece," in Conceptions of Liberty in Political Philosophy, ed. Zbigniew Pelczynski and John Gray (New York: St Martin's Press, 1984), 13; Yunis, "Rhetoric of Law," 191. 61 Dem. 59.88. 62 Wallace, "Law, Freedom and the Concept of Citizens' Rights," 115-16.
103 Human Rights and Fundamental Freedoms in Athenian Oratory Chapter 3 the collective. Unlike modern conceptions of rights as a restraint on government action, in opposition to those interests, human rights as understood by the Athenians were afforded to individuals to support the action of the polis to secure the communal good.
Returning to the claim from Demosthenes that the civic body was essentially unfettered, he immediately follows that up with the statement that that authority had been used to set limits for itself in a way that was enduring and necessary for the continuance of stable society.63 There was then very little reason for the state to abrogate these fundamental human entitlements because they were the very mechanisms, in the Athenian conception, that would enable the state to continue to function as a legitimate human society. Indeed, it reflected a more fundamental view that the purpose of limitations articulated by fundamental rights of individuals was not to guard against the overreach of a government, but rather to guard against the overreach of an individual, who had amassed such a level of power, clout or impudence that they threatened to upset the existing order of the polis.64
The terrible rule of the Thirty is the perfect example of this. Rather than the state overreaching, it was individuals who upset the balance, and through their lack of restraint the abrogation of human rights such as the rule of law occurred. In a self-reinforcing loop, the loss of these freedoms was indicative the rule of the Thirty was one in which Athenian society during that period failed to meet the standards necessary to guarantee human dignity. To the extent that Athenian human rights shaped state action, it was not through direct opposition or restraint, but rather in serving to direct the exercise of potentially unlimited state discretion, a process in modern human rights discourse closer to humanitarianism and appeals for benevolence in line with the moral principles established by human rights frameworks.65 An alternate approach has been to see a rise in the use of humanity and human rights as a responsibility of bona fide state sovereignty, such that a failure to protect and respect human rights is seen to be an undermining of proper statehood.66 This is something that we can also apply to the Athenian approach, in which (perhaps as a matter of circular logic) rights not only supported proper society, but proper society supported rights. In all cases, the very framing of Athenian human rights meant that they were definitionally in alignment with the wellbeing of the polis. The limitations then were to guard against individuals who stepped outside of that construct of ideal human society, not the state that sought to expand power and interfere in the lives of individuals.
The contrast with Athenian conceptions of human rights, coupled with a community based vision of human dignity throw into sharp relief that the individualised model adopted through modern Western liberalism is an artificial construct. Both involve propositions of human rights and human dignity, but the ultimate weighting of the material in classical Athens is that the principles and rights which taken together form a picture of human dignity always do so by locating the individual within the existence of the social structure. Where in modern conceptualisations of right, social structures serve to enforce and uphold the entitlements of individuals, in the classical Athenian mindset, the existence and enforcement of rights is something done in order to support the existence of an idealised version of human society.
63 Dem. 59.88. 64 Ober, "Quasi-Rights," 48, 57. 65 Osanloo, Forgiveness Work, 267-68. 66 Soirila, "Humanity," 370-71.
104 Human Rights and Fundamental Freedoms in Athenian Oratory Chapter 3
This points to and justifies then the structural elements of the way in which human rights are treated in the source material, including the preoccupation with their protection under Athenian democracy compared to other systems. Human rights as articulated by Attic oratory therefore serve to reinforce the relative superiority of Athens over its fellows along universal human metrics of freedom and equality.
105 Human Rights and Fundamental Freedoms in Athenian Oratory Conclusion
Conclusion: Limited Human Dignity and Systemic Inequity
This thesis sought to identify whether Athenian oratory called upon entitlements justified as inherent to humanity and held equally by people on the basis of their humanity, and if so, how this was expressed and framed. No consistent picture or definitive statement of human rights was present in Athenian oratory. However, what has been shown is that key entitlements to free and equal speech, to the protection of the self and rightful retaliation, to access to and protection under the law, to the fulfilment of promises and to the control of property were at times presented by orators as fundamental rights not granted by human institutions, but recognised by virtue of one’s humanity. In doing so, the implication was that such rights greater need for defence and were more egregious when breached, in part because of the way in which they related to human status in their justification. They were called on by the orators to bolster and strengthen their arguments and appeals to their listeners, and to invite their agreement with the points being made by the orator at that time.
From these key entitlements, this thesis demonstrated that the Athenian ideals of freedom, equality and communality were linked to a shared conception of humanity, alongside their well-known civic dimensions. These principles and entitlements as a collective present a view of Athenian human dignity in oratory, which was the maintenance of a stable society, through which freedom, equality and the good life could be achieved. These conclusions are interesting because they run contrary to conventional wisdom in which the distinction along polis specific classes were instead taken to be the exclusive organising structure for social interaction, situated through the construct of citizenship.1 Instead, the rights and freedoms seen as important in Athenian oratory were at times claimed to be fundamental human entitlements, in service to a vision of human dignity.
The rights and freedoms explored in this thesis suggest this is a suitable and complementary approach to the explicit focus in Classical scholarship on citizenship and associated social institutions. At an individual level, the category of human was one seen as fundamental, and while not as practically important as perhaps citizenship, it remained conceptually important in expressing particular values and convictions. Each individual was seen to be connected by virtue of their humanity to certain fundamental entitlements. This is clearest when rights claims are afforded to those who are not citizens, such as protections to individual's life, and to the established social systems such as the law (notwithstanding such systems may be themselves discriminatory). More importantly, these convictions were not just seen as a matter of Athenian excellence, but a matter of human excellence, positioning Athens as the undisputed leader of enlightenment in comparison to its peers, as a human social system par excellence.
While this has been the focus of this thesis, it is appropriate to conclude with a consideration of the inconsistencies, and contradictions within Athenian oratory, that also explicitly and implicitly limits the full experience of human dignity to Athenian citizen men noted across the previous chapters. The language of fundamental human entitlement, through an ideal human society, defined out certain demographics from participation, and by extension from a stake in human rights and human dignity.
1 Baldry, Unity of Mankind, 1-7.
106 Human Rights and Fundamental Freedoms in Athenian Oratory Conclusion
The uneven enforcement of such rights claims is not random. Rather, it is a product of existing power structures. As Hunter neatly explains, “biases may be built into a social system, codified in laws, enforced by official sanctions and upheld both by community and ideology”.2 When oratory describes a society in which members were able to access fundamental freedoms and rights as the ideal state of human existence, this also obscured the fact that such societies were founded on gross inequities. In such a system, and from the viewpoint of the Athenian orators, the oppression of women, of foreigners and of slaves is something that is justified and not at all problematic because the very nature of human rights and entitlements is framed on the existing social structure and serves to ensure the perpetuation of that structure, rather than as a challenge to the polis community to do better by each individual member. In fact, this oppression was, in Athenian discourse and social structures, seen as a necessary corollary to the limitations on the exploitation of other citizens – an equalisation of the masses to the elite was done through an elevation of the status of the masses to elites over an underclass of foreigners and slaves.3
Human rights and freedoms existed only to ensure the continuance of stable government and to guard against unrest, relying on the concepts of equality within unequal classes.4 The limitations on access of certain rights is justified by reference to underlying beliefs about difference, but then codified into a unified vision of human dignity thought to be natural. Athens considered itself the benchmark, and in doing so disempowered a whole host of communities. In essence, the fact that Athens was built on discrimination did not undermine its supposed existence as a society which respected and protected human dignity, because it was a society which in turn conformed to the protection of those rights.
This brings back a challenge to the existence of human rights in Classical Athens raised at the start of this thesis. The temptation from such a view of human dignity in Athenian oratory, which accepts as a given that the ideal human society is predicated on a system of inequality, is to say that these repugnant actions indicate there was no underlying conception of shared humanity at all. This is very much an ‘all or nothing’ approach to human rights asserting that when some human rights vanish, all of them do. A comparison to modern perspectives shows that such a conclusion is unsound. Modern champions of the human rights movement have often violated their obligations in pursuit of other ends, and yet there is no suggestion that such actions jeopardise the existence of human rights as a concept.5 This tendency can be traced to the supposed genesis documents of the modern human rights movement. For example, when the U.S. Declaration of Independence was created, it proudly proclaimed that all men were created equal and with inalienable rights
2 Hunter, Policing Athens, 40. 3 Luca Asmonti, "Gentrifying the "Demos": Aristocratic Principles and Democratic Culture in Ancient Athens," Studi Classici e Orientali 61, no. 1 (2015): 62. 4 Ober, "Quasi-Rights," 34. 5 The key example is of the United States of America. The USA is widely recognised as one of the principal defenders of freedom, and by extension of human rights – in the course of its cultural and political hegemony, it has been seen as the symbol of the export of universal human rights ideas alongside its promulgation of liberal democratic systems. However, this sits in contrast with its actual human rights record, including the flouting of international human rights norms, such as the use of torture (most infamously, in Guantanamo Bay) – powerful nations are notorious for their failure to respect international standards and respect the same human rights they purport to uphold. Mutua, Human Rights, 6-7, 20, 36-37.
107 Human Rights and Fundamental Freedoms in Athenian Oratory Conclusion and yet such broad, sweeping statements were made in a society that, just like Classical Athens, condoned slavery and denied women the same rights and respect as men. Even in modern frameworks, whether or not one truly can say they hold rights is therefore a feature of status, standing or other social constructs.6 That interference of power structures is a unique problem for the continued use and justification of human rights in modern contexts, because of its claims to moral differences and superiority.7
Rather than seeing this as a barrier to human rights existing, a more fruitful line of inquiry would be to explore why such differences arise. Modern human rights scholarship and discourse has advanced several explanations on this point. Some views are that the human rights moniker can be used as a smokescreen to legitimate existing power structures under the veneer of respectability and morality generally.8 Part of modern human rights is that they are supposedly value and culture agnostic, but this underestimates the context in which such rights were developed and the existing discourses that have influenced them. To this end, some scholars argue modern human rights have become the face of the neo-colonial project, well situated in the historical tradition of Western hegemony seeking to ‘civilise’ and enlighten other parts of the world.9 As Mutua puts it:
“The historical pattern is undeniable. It forms a long queue of the colonial administrator, the Bible-wielding Christian missionary, the merchant of free enterprise, the exporter of political democracy, and now the human rights zealot.”10
Mutua characterises this overarching narrative as an extended metaphor of the ‘saviour’ (the enlightened West), the victim (the oppressed masses) and the savage (pre-human rights oppressors).11 The belief in the fundamental and universal dignity of all humans has long motivated a tradition where the enlightened ‘saviour’ lifts the ‘savage’ out of their ignorance and into the purportedly better (i.e. more Western) mode of life. It treats a lack of human rights as a lack of appropriate humanity which justifies significant intervention, with an ultimate goal of recreating societies in the image of Western liberal democracies.12 All of this is predicated then on a dehumanisation of those who have no active share in the specific manifestation of human rights in modern context which runs contrary to and in direct tension with the purported principles of universal human dignity.13
While Classical Athenian oratory has also presented a similar gap between practice and promise, there are important differences in how this narrowing occurs that are worth bearing
6 Darby, "Unnatural Rights," 51, 58. 7 Freeman, Human Rights, 5. 8 Darby, "Unnatural Rights," 55; Berman, "Teaching Human Rights Law," 440-41. 55 440-441 9 As part of the enlightenment project of the modern West to export their value, political and social systems, political democracy and universal human rights have been delivered as a single package – universal rights is sold as the end goal, and the installation of political democratic systems as the delivery method to ensure their protections take root. Brown, "Universal Human Rights?," 33, 45; Mutua, Human Rights, xi, 5-8, 12, 15; Sellars, Rise and Rise, viii; Sharma, Are Human Rights Western?, 24, 193-98. 10 Mutua, Human Rights, 20. 11 Ibid., Chapter 1. See also: Sharma, Are Human Rights Western?, 201-13. 12 Soirila, "Humanity," 374-75. 13 Ibid., 376.
108 Human Rights and Fundamental Freedoms in Athenian Oratory Conclusion in mind. The end outcome is the same, in which human rights discourses seem to support systems and structures that entrench and concentrate power it in the hands of the privileged. And yet, while modern human rights discourses exclude the less powerful on an individual basis, treating them as proto-humans who require guidance and education, to be moulded in the shape of the ideal saviour figure, Athenian conceptions of human dignity instead saw such discrimination and differentiation as an unquestioned feature of the ideal social structure. Elevation or change to the status of lesser classes did not factor into the equation. Human dignity was a question of maintaining good governance and good social order, not so much individualised rights. The necessary stratification of classes was in effect an assumed inherent element of what Athenian oratory saw as a society of human dignity.
It is beyond the scope of this thesis to state with certainty what underlying discourses would enable the rationalisation of such conflicting views on human rights, nor is it possible to fully unpack whether the conception of human dignity within Athenian oratory entrenched power imbalances in concert with other discourses such as dehumanisation or inherent class difference. There are further questions to be explored in the way in which the vision of the orators interacts with the lived reality of Athenian society, including but not limited to how Athenian oratory reconciled its discriminatory and exclusive social structure (which they cast as the ideal form) with a view as to shared humanity. Did they undertake a similar invocation of dehumanisation, as done in modern discourses, or was something else at play? While it does not resolve these tensions, this thesis represents a starting point for a more in-depth exploration of the issue, by drawing out the key rights which in Athenian oratory were considered to form part of a human ideal, and some of the contradictions and challenges within oratory. What this thesis has shown is that there is a cause to rethink the rejection out of hand that human rights did not exist in Classical Athenian discourses and self-conception, given their use in Athenian oratory to represent Athens as the benchmark for a human social structure which recognised and protected human dignity.
109 Human Rights and Fundamental Freedoms in Athenian Oratory
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