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Quasi-Rights: Participatory Citizenship and Negative Liberties in Democratic Athens

Published online by Cambridge University Press:  13 January 2009

Josiah Ober
Josiah Ober
Affiliation:
Classics, Princeton University
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Extract

The relationship between participatory democracy (the rule of and by a socially diverse citizenry) and constitutional liberalism (a regime predicated on the protection of individual liberties and the rule of law) is a famously troubled one. The purpose of this essay is to suggest that, at least under certain historical conditions, participatory democracy will indeed support the establishment of constitutional liberalism. That is to say, the development of institutions, behavioral habits, and social values centered on the active participation of free and equal citizens in democratic politics can lead to the extension of legally enforced immunities from coercion to citizens and noncitizens alike. Such immunities, here called “quasi-rights,” are at least preconditions for the personal autonomy and liberty in respect to choice-making that are enshrined as the “rights of the moderns.” This essay, which centers on one ancient society, does not seek to develop a formal model proving that democracy will necessarily promote liberal constitutionalism. However, by explaining why a premodern democratic citizenry of free, adult, native males—who sought to defend their own interests and were unaffected by Enlightenment or post-Enlightenment ideals of inherent human worth—chose to extend certain formal protections to slaves, women, and children, it may point toward the development of a model for deriving liberalism from democratic participation. Development of such a model could have considerable bearing on current policy debates.

Type
Research Article
Information
Social Philosophy and Policy , Volume 17 , Issue 1 , Winter 2000 , pp. 27 - 61
Copyright
Copyright © Social Philosophy and Policy Foundation 2000

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References

1 Weingast, Barry R., “The Political Foundations of Democracy and the Rule of Law,” American Political Science Review 91, no. 2 (06 1997): 245–63CrossRefGoogle Scholar, develops the game-theoretic basis for a rational choice model along these lines. Although my argument here focuses on social practices and values rather than on rational choice, it is compatible with Weingast's model. I received very helpful comments on earlier versions of this paper delivered at New York University, the University of California at Santa Cruz, Stanford University, and Princeton University's Center for Human Values. Special thanks to Barry Strauss and Phillip Mitsis, for discussions that led to the writing of this paper, and to Emily Mackil for editorial assistance and substantive comments.

2 Zakaria, Fareed, “The Rise of Illiberal Democracy,” Foreign Affairs 76, no. 6 (11/12 1997): 23–43.CrossRefGoogle Scholar For a good discussion of the traditional conflict between the liberal “rights of the moderns” (religious liberty; liberty of conscience, thought, and expression; rights of person and property) and the democratic “rights of the ancients” (freedom of political speech, and participation rights), and an argument that these can be conjoined within a conception of deliberative democracy based on reasonable plurality, see Cohen, Joshua, “Procedure and Substance in Deliberative Democracy,” in Democracy and Difference, ed. Benhabib, Seyla (Princeton: Princeton University Press, 1996), 94–119.Google Scholar

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4 Ibid., 26.

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9 The story of how the dêmos came to be defined in terms of “non-leisured” Athenians (or, conversely, all native adult males) rather than in terms of the elite is important and interesting, but is not my main focus here: cf. Ober, Josiah, The Athenian Revolution: Essays on Ancient Greek Democracy and Political Theory (Princeton: Princeton University Press, 1996), esp. ch. 6Google Scholar; Hanson, Victor D., “Hoplites into Democrats: The Changing Ideology of Athenian Infantry,”Google Scholar in Demokratia, ed. Ober, and Hedrick, , 289–312Google Scholar; Strauss, Barry S., “The Athenian Trireme, School of Democracy,”Google Scholar in ibid., 313–26; and my exchange with Kurt Raaflaub in Democracy 2500? Questions and Challenges, ed. Raaflaub, K. and Morris, I., Archaeological Institute of America, Colloquia and Conference Papers 2 (Dubuque, Iowa: Kendall/Hunt, 1998), 67–85.Google Scholar

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13 On this distinction, see Ober, , Athenian Revolution, ch. 11Google Scholar, and the literature cited therein.

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15 See Ober, , Athenian Revolution, ch. 11.Google Scholar

16 The distinctions between what people say and what they do, and between what people say in official circumstances and what they say among intimates, is relevant here, but hard to specify.

17 See, for example, Ober, , Athenian Revolution, ch. 5Google Scholar, on the inevitability of criticism.

18 Butler, Judith, Excitable Speech: A Politics of the Performative (New York: Routledge, 1997)Google Scholar, offers one account of the relationship between performance and culture; my thanks to Susan Lape for clarifying for me how Butler's work can be applied to Athens. My own understanding of how dominant ideologies are challenged by alternative performances is sketched in Athenian Revolution, 148–54.Google Scholar

19 See Morris, , Archaeology as Cultural History.Google Scholar

20 Ibid., ch. 4. In my own work, I have tended to use the term “ideology” to cover aspects of both thought and practice, and it is important to keep in mind that there is no practical way to segregate “mentality” from “ideology” in the thought of any given person at any given time.

21 Chattel slaves, either Greek prisoners of war or (more often) non-Greeks imported specifically to serve as slaves, could be bought and sold as ordinary property. Helots and other unfree “serfs” were tied to the land; they could not be bought or sold, but otherwise lacked liberties and immunities.

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37 See note 38 for a modern edition of Demosthenes' speech. I offer a detailed analysis of the speech in Athenian Revolution, ch. 7.

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40 See Cohen, Edward E., Ancient Athenian Maritime Courts (Princeton: Princeton University Press, 1973)Google Scholar; and Cohen, , Athenian Nation.Google Scholar

41 On the question of religious freedom and the law against impiety, see Parker, Robert, Athenian Religion: A History (Oxford: Clarendon Press, 1996), 207–11, 214–15.Google Scholar On metics and slaves in Athenian religious life, see Cohen, , Athenian Nation.Google Scholar The Eleusinian Mysteries were celebrated each year with a grand procession from Athens to the deme of Eleusis, where initiates were shown and told secret things that led them to have hopes for the afterlife.

42 On Periclean citizenship law, see Boegehold, Alan L., “Perikles' Citizenship Law of 451/0 b.c.,” in Athenian Identity and Civic Ideology, ed. Boegehold, Alan L. and Scafuro, Adele C. (Baltimore and London: Johns Hopkins University Press, 1994), 57–66Google Scholar, and the literature cited therein. On the move from autochthony to patriotism, see Ober, , Mass and Elite, 261–66.Google Scholar In Athenian Nation, Cohen discusses the evidence for naturalization in detail. He also argues that the citizenship law potentially allows any individual to be legally accepted as a citizen so long as he was born of two long-term noncitizen residents of Attica, but I do not believe that the evidence he cites supports the sharp legal distinction between the terms astos and politês upon which his argument depends.

43 On the procedure for enfranchisement and its relative rarity, see Osborne, M. J., Naturalization in Athens (Brussels: AWLSK, Klasse der Lettern, Jaargang 43, Nr. 98, 1981).Google Scholar On the house of Pasion and Apollodorus, see Ober, , Mass and Elite, 212–14.Google Scholar See also Trevett, Jeremy, Apollodoros the Son of Pasion (Oxford: Clarendon Press, 1992).Google Scholar

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45 Cohen, , in Athenian Nation, discusses the evidence in detail.Google Scholar

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48 Cf. Thucydides 2.45.2: “If I may speak also about the women who will now be widows, I shall define it all in a brief admonition. For great is the glory for you not to be worse than your existing nature, and not to be talked about for good or evil among men” (trans. Rusten, J. S., Thucydides, The Peloponnesian War, Book II [Cambridge: Cambridge University Press, 1989]Google Scholar, with adaptations suggested by Hornblower, , A Commentary on Thucydides).Google Scholar

49 See also Ober, Josiah, Political Dissent in Democratic Athens: Intellectual Critics of Popular Rule (Princeton: Princeton University Press, 1998), 122–55.Google Scholar

50 The argument here is made in more detail in Ober, , “How to Criticize Democracy in Late Fifth- and Fourth-Century Athens,” in Athenian Revolution.Google Scholar

51 Although Aristotle's concept of aristocracy is a complicated philosophical contrivance, the fact that some nondemocratic poleis did indeed have “controllers of women” allows us to use the term “aristocracy” rather more broadly than Aristotle (sometimes) did. Some scholars have supposed (although it is not provable) that the hubris law was enacted by Solon, to whom are also attributed laws restricting the behavior of Athenian women at funerals (Plutarch, , Solon 21.5Google Scholar). But the point here concerns what laws are enforced under the democratic regime.

52 On Plato's Crito, see Kraut, Richard, Socrates and the State (Princeton: Princeton University Press, 1984).Google Scholar

53 This would be a problematic procedure if the primary concern was the intention of the original lawmaker, but since that is unknowable and undatable (per note 51 above), I am concerned here with the way the law was used and understood in fourth-century practice.

54 On the phrase kataluein ton demon (or similar phrases) and its association with hubris, see Aristophanes, , Ecdesiazusae 453Google Scholar; and Thucydides, , The Peloponnesian War 3.81.4 (civil war on Corcyra).Google Scholar

55 Demosthenes' description of the various bad things done to him in private life by Meidias and his cronies illustrates the potential harms that could arise from challenging the powerful, even in Athens.

56 The Athenians annually appointed many magistrates (by election or, more often, by lot) to undertake various aspects of public business; see Hansen, Mogens H., The Athenian Democracy in the Age of Demosthenes (Oxford: Basil Blackwell, 1991), 225–45.Google Scholar But the work of magistrates was subordinate to the popular Assemblies and lawcourts, and did not include moral policing.

57 A good deal of recent work is summed up in Euben, Peter, Corrupting Youth: Political Education, Democratic Culture, and Political Theory (Princeton: Princeton University Press, 1997)CrossRefGoogle Scholar; and Demokratia, ed. Ober and Hedrick; and the bibliographies of both books point to more.

58 See, for example, Taylor, Charles et al. , Multiculturalism: Examining the Politics of Recognition, ed. Gutmann, Amy (Princeton: Princeton University Press, 1994).Google Scholar