REPUBLICANISM, RIGHTS AND DEMOCRATIC ATHENS

D.M. Carter1

Abstract: In a recent article Paul Cartledge and Matt Edge argue that the modern
republican tradition offers a useful framework for understanding the Athenian concept
of freedom, and that within this framework the Athenians protected their freedoms
without reference to a concept of rights. This paper agrees with both of these conclu-
sions but identifies and corrects three assumptions behind Cartledge and Edge’s argu-
ment: that the only purpose of rights is to protect individual freedoms against the state;
that rights have no place at all in the republican tradition; and that the ancient Greeks
did not understand rights. In fact the Athenians did have an understanding of rights but
they did not use rights to protect freedoms. The reason for this is that the protected
freedom is a very modern and particularly sophisticated application of the concept of
rights.

In their contribution to the Blackwell Companion to Greek and Roman

Political Thought Paul Cartledge and Matt Edge correctly diagnose a problem
in the discussion of the ancient Greeks and the modern theory of rights.2 Many
modern attempts at this question limit themselves by accepting Benjamin
Constant’s dichotomy, proposed in February 1819: ‘de la liberté des anciens

1 Department of Classics, University of Reading, Reading RG6 6AA, UK. Email:

d.m.carter@reading.ac.uk
2 P. Cartledge and M. Edge, ‘ “Rights”, Individuals, and Communities in Ancient
Greece’, in A Companion to Greek Political Thought, ed. R.K. Balot (Oxford, 2009), pp.
149–63. For a range of views on whether the ancient Greeks had the concept of rights,
see: K.A. Raaflaub, ‘Des freien Bürgers Recht der freien Rede: Ein Beitrag zur Sozial-
und Begriffsgeschichte der athenischen Demokratie’, in Studien zur antiken Sozial-
geschichte: Festschrift F. Vittinghoff, ed. W. Eck et al. (Cologne and Vienna, 1985), pp.
7–57; D.F. Wiltshire, Greece, Rome and the Bill of Rights (Oklahoma, 1992); M.F.
Burnyeat, ‘Did the Ancient Greeks have the Concept of Human Rights?’, Polis, 13
(1994), pp. 1–11; F.D. Miller Jr, Nature, Justice and Rights in Aristotle (Oxford, 1995);
M.H. Hansen, ‘The Ancient Athenian and the Modern Liberal View of Liberty as a
Democratic Ideal’, in Demokratia: A Conversation on Democracies, Ancient and Mod-
ern, ed. J. Ober and C. Hedrick (Princeton, 1996), pp. 91–104; M. Ostwald, ‘Shares and
Rights: “Citizenship” Greek Style and American Style’, in Demokratia, ed. Ober and
Hedrick, pp. 49–62; J. Ober, ‘Quasi-Rights: Participatory Citizenship and Negative
Liberties’, Social Philosophy and Policy, 17 (2000), pp. 27–61 (reprinted in J. Ober,
Athenian Legacies: Essays on the Politics of Going on Together (Princeton, 2005),
pp. 92–127); D.M. Carter, ‘Citizen Attribute, Negative Right: A Conceptual Difference
between Ancient and Modern Ideas of Freedom of Speech’, in Free Speech in Classical
Antiquity, ed. I. Sluiter and R.M. Rosen (Leiden, 2004), pp. 197–220; C. Horn,
‘Menschenrechte bei Aristoteles’, in Menschenrechte und europäische Identität: Die
antiken Grundlagen, ed. K.M. Girardet and U. Nortmann (Stuttgart, 2005), pp. 105–22.
For a collection of responses to Miller, see volume 49.4 (1996) of the Review of Meta-
physics.
POLIS. Vol. 30. No. 1, 2013
74 D.M. CARTER

comparée à celle des modernes’.3 Constant’s modern liberty is the individ-

ual’s freedom to live the life he or she chooses; his ancient liberty is a freedom
to take part in government.4 In the former the individual is thought to be free
in spite of political organization; in the latter the citizen was thought to be free
because he was a member of a political organization.
In Constant’s modern world rights serve to set limits on the potential intru-
sion of public into private life, allowing the individual to think, speak, act and
believe as he or she likes, ‘or even simply to occupy his days or hours in a way
that is most compatible with his inclinations or whims’ (‘. . . soit simplement
pour remplir ses jours ou ses heures d’une manière plus conforme à ses
inclinations, à ses fantaisies’). In the ancient world there were no such limits:
the community enabled its citizens to exercise freedoms of a sort; but ‘they
admitted as compatible with this collective freedom the complete subjection
of the individual to the authority of the community’ (‘. . . ils admettaient
comme compatible avec cette liberté collective l’assujettissement complet de
l’individu à l’autorité de l’ensemble’).
But ‘[f]reedom is fundamentally a concept of degree, which is why approaches
such as Benjamin Constant’s should be avoided’.5 To illustrate this point
Cartledge and Edge bring in a third concept of freedom, promoted in the work
of Philip Pettit as ‘republican’. Like the liberal idea of freedom, to which Con-
stant subscribes, the republican concept of freedom is essentially negative;
but, whereas the former is a freedom from interference, the latter is freedom
from domination.6 Republican freedom has to do with the status of the free

3 On ancient and modern ideas of freedom, see: M.H. Hansen, Was Athens a
Democracy? Liberty and Equality in Ancient and Modern Political Thought (Copen-
hagen, 1989); K.A. Raaflaub, The Discovery of Freedom in Ancient Greece, trans.
R. Franciscono, rev. by the author (Chicago, 2004) [German orig. Munich, 1985];
P. Liddel, Civic Obligation and Individual Liberty in Ancient Athens (Oxford, 2007);
W. Nippel, Antike oder moderne Freiheit? Die Begründung der Demokratie in Athen
und in der Neuzeit (Frankfurt, 2008); M. Edge, ‘Athens and the Spectrum of Liberty’,
History of Political Thought, 30 (2009), pp. 1–45; K. Vlassopoulos, Politics: Antiquity
and Its Legacy (London and New York, 2010).
4 Constant does not quite make the same distinction as Isaiah Berlin does between
positive and negative liberty (‘Two Concepts of Liberty’, in Isaiah Berlin, Four Essays
on Liberty (Oxford, 1969), pp. 118–72). Berlin’s negative liberty is essentially the same
as Constant’s liberté des modernes, but his positive liberty is described along the lines of
a split personality, where one’s better nature rules the worse.
5 Cartledge and Edge, ‘Rights’, p. 158.
6 P. Pettit, Republicanism: A Theory of Freedom and Government (Oxford, 1997).
C. Larmore, in ‘A Critique of Philip Pettit’s Republicanism’, Philosophical Issues, 11
(2001), pp. 229–43, objects that this is to draw too stark a division between republican
and liberal schools of thought, and observes that in order to maintain the dichotomy Pettit
(surprisingly) recruits Locke (on whom, see below) as a republican theorist. Pettit him-
self acknowledges this difficulty on pp. 9–10 of his book. On ancient Greek influences on
 REPUBLICANISM, RIGHTS AND DEMOCRATIC ATHENS 75

person or free society. It is a general position of freedom from domination

whereas a liberal freedom is a particular freedom from interference; hence in
liberal thought it often makes sense to talk of freedoms, plural. Where republi-
can freedom breaks down into particular instances these must be freedoms
from arbitrary interference — that is, the interference of a dominating master.
To illustrate the difference between the liberal and republican concepts of
freedom Pettit argues that one can be free from interference while still
dominated by someone else (perhaps a benevolent master); and one can be
free from domination while still subject to reasonable, non-arbitrary interfer-
ence (for example, from government agencies, suitably policed and regu-
lated).7 A further difference has to do with the rule of law. In the liberal view,
as characterized by Pettit, laws are essentially restrictive: even a law designed
to protect freedom in one area will reduce freedom in another; whereas in
republican thought one is free because of, not in spite of, the law.8
Cartledge and Edge show in telling detail over a few pages how Pettit’s
republican freedom is applicable to our understanding of classical Athens,
despite (or because of) the fact that it was facilitated by the kind of undiluted
democracy to which republican theorists have traditionally been opposed.
Their stated aim is to sideline the debate on the Greeks and rights, which they
see as a distraction from our understanding of ancient Greek ideas of freedom:
‘our language of rights represents just one way, historically speaking, in
which the liberty of the individual has been protected by the society in which
he or she lived. Simply because the Athenians did not have a conception of
rights does not logically entail that they did not understand the need for, and
did not seek to secure, individual liberty.’9 How then were individual free-
doms protected at Athens? The answer, according to Cartledge and Edge, is
found in the reformed democracy of the fourth century, which set legal limits
on popular sovereignty as exercised in the assembly or jury courts.10
Thus Cartledge and Edge usefully demonstrate the enduring and limiting
influence of Constant on modern discussions of the Greeks and rights. The
dichotomy of ‘freedom from’ and ‘freedom to’ is too simplistic, especially if
the Athenians enjoyed a different type of ‘freedom from’: the freedom from
domination. However, Cartledge and Edge fail to point out a further common
limitation on these discussions, indeed they share it: the view that rights only
make sense in the context of modern liberalism.
Cartledge and Edge’s argument rests on three assumptions, each of them
possibly unsafe: that the only purpose of rights is to protect individual freedoms

the republican tradition, see E. Nelson, The Greek Tradition in Republican Thought
(Cambridge, 2004).
7 Pettit, Republicanism, pp. 22–3.
8 Ibid., pp. 35–41.
9 Cartledge and Edge, ‘Rights’, p. 150.
10 Ibid., pp. 156–7.
76 D.M. CARTER

against the state; that rights have no place at all in the republican tradition; and
that the ancient Greeks did not understand rights. In the next part of this paper
I explore these three assumptions. The problems thus identified do not
entirely disprove Cartledge and Edge’s thesis. In fact I think Cartledge and
Edge arrive at the correct conclusion — that the ancient Greeks did not think
of their freedoms in terms of rights — by the wrong route. The real reason, I
suggest, is that the protected freedom represents a level of sophistication in
rights-based thinking that the ancient Greeks did not reach. By this I do not
mean to adopt a teleological position, placing the ancient Greeks at the primi-
tive end of a process of evolution in rights-based thought. What I mean is that
on the one hand the ancient Greeks did have the concept of rights; but on the
other hand rights played a far smaller part in ancient Greek thought than they
do in modern thought and discourse, and were put to less use. The final part of
this paper illustrates this thesis with particular reference to the Thirty tyrants
as portrayed in the speeches of Lysias.

Three Assumptions
The first potentially unsafe assumption on which Cartledge and Edge’s argu-
ment rests is that the only purpose of rights is to protect individual freedoms
against the state. In fact the concept of rights is used in many different ways in
modern discourse. In its strict legal sense a right imposes a duty on another
person: my right to free speech imposes a duty on anyone else not to censor
me (and, equally, other people’s rights to freedom from defamation or libel
impose duties on me in respect of my speech); my right to vote correlates to
the government’s duty to hold fair elections. But in everyday discourse the
word ‘right’ is used in various other ways, perhaps most often in the context of
what one considers oneself naturally free to do. It helps here to distinguish
between legal rights and moral rights. Legal rights exist only insofar as they
are supported by a set of rules. If I am tried and convicted of a crime and have
the right of appeal, this is not a right I have in any absolute sense but only
because the laws of my country make this possible. But, if I am imprisoned
indefinitely without charge, I might consider this an interference with my
moral right to go where I want to go.
We begin to see how rights are associated with freedoms in liberal thought.
But the relationship between rights and freedoms is more complex than it
might first appear. To have a duty is to have limits placed on one’s freedom.
Therefore, in the strict legal definition, the easiest way to explain the relation-
ship between rights and freedoms is to say that my freedom restricts your
right, whereas your right curtails my freedom.11 If parliament passes a law
allowing judges to imprison a suspected terrorist for even a short time without
11
This reflects the influential model of legal rights proposed by W.N. Hohfeld, in
Fundamental Legal Conceptions as Applied in Judicial Reasoning, ed. W.W. Cooke
(New Haven, 1919), and adopted in most introductory accounts of moral as well as legal
 REPUBLICANISM, RIGHTS AND DEMOCRATIC ATHENS 77

charge, it has given the state enhanced powers (higher-order legal rights) and
set potentially tighter limits on the freedom of everyone else. By the same rea-
soning, my freedom of movement correlates to the state’s lack of right to con-
strain it.
But the relationship between rights and freedoms as assumed by Cartledge
and Edge is more sophisticated than that. Whereas the strict legal view given
just above posits a reverse correlation between rights and freedoms, the more
sophisticated model makes rights and freedoms all but equivalent:
The purpose of a right, or of rights in general, is to guarantee to the individ-
ual protection from the invasion of her freedom (of speech, of association,
of thought, and so on) and of her property, and to protect her from forms of
bodily harm and abuse (torture, violence, slavery, abduction, arbitrary
arrest and imprisonment, and so forth). In short, rights protect individual
liberty, safety, dignity, and well-being.12
This kind of right is best described as a protected freedom, where my right
imposes a duty on anyone else not to interfere. There are three aspects of par-
ticular note in this liberal model of rights, each one adding a layer of sophisti-
cation to the concept. First, the right is not exactly the same thing as the
freedom; rather, they are conceptually clustered, the one protecting the other.
Second, it is not always readily apparent to whose duty any one person’s right
correlates. If my freedom of speech is protected by right then this right creates
an indefinite number of bipartite duties to be observed by other people, who
may not even know me and, if they did, would have not the slightest wish to
silence me. However, another way of considering this is to say that my rights
are protected by laws and that other people have a general duty to obey the
law; hence the correlation between my right and other people’s duty is indi-
rect.13 Third, on the liberal model the principal threat to individual freedom is
held to be the state, upon which the duty of non-interference is placed. Some
rights against the state are legal rights: the individual may be protected from
aspects of state interference by constitutional laws or by international codes
such as the European Convention on Human Rights or the UN Universal Dec-
laration of Human Rights. But these rights are frequently held also to be moral
rights. When the South Africans imprisoned Nelson Mandela, or the Burmese
Aung San Suu Kyi, they did not necessarily break any of their own laws but

rights: e.g. P. Jones, Rights (Basingstoke, 1994), pp. 12–25; J.M. Finnis, Natural Law
and Natural Rights (Oxford, 2nd edn., 2011), pp. 198 ff.; J. Waldron, Theories of Rights
(Oxford, 1984), pp. 6 ff. Parts of Hohfeld’s model were anticipated by Jeremy Bentham:
see H.L.A. Hart, ‘Bentham on Legal Rights’, in Oxford Essays in Jurisprudence, ed.
A.W.B. Simpson (Oxford, 1973), pp. 171–201 (reprinted in H.L.A. Hart, Essays on
Bentham: Jurisprudence and Political Theory (Oxford, 1982), pp. 162–93).
12 Cartledge and Edge, ‘Rights’, p. 150.
13 Thus the laws create what Hart (in ‘Bentham on Legal Rights’) called a ‘protective
perimeter’ around my right. See further p. 89 below.
78 D.M. CARTER

they did behave in ways that are held to have offended some higher moral
principle. Now the state, ‘an entity which is at once distinct from both rulers
and ruled and is able in consequence to call upon the allegiances of both par-
ties’,14 is not a concept that the ancient Greek would necessarily have under-
stood. A decision of the Athenian democracy was owned collectively by ‘the
Athenians’ but not necessarily by ‘Athens’ in the abstract.15
The second potentially unsafe assumption made by Cartledge and Edge is
that rights have no place at all in the republican tradition. It is true that many
republican thinkers, including Pettit, are not particularly interested in moral
rights; and some go so far as to argue that rights are incompatible with republi-
can thought.16 To say whether or not rights ought to have a place in republican
thought is beyond the scope of this paper; however, as Pettit recognizes, we do
find an authentic strain of rights-talk in early modern republican writing, par-
ticularly in the tradition of Anglophone republican thought that stretches from
the English Civil War to the American Revolution and was conditioned by

14Quentin Skinner, ‘The State’, in Political Innovation and Conceptual Change, ed.
T. Ball et al. (Cambridge, 1989), pp. 90–131, p. 112; cf. ‘Hobbes and the Purely Artificial
Person of the State’, Journal of Political Philosophy, 7 (1999), pp. 1–29.
15 See R. Osborne, Demos: The Discovery of Classical Attika (Cambridge, 1985),
pp. 7–10; P. Cartledge, ‘Laying Down Polis Law’, Classical Review, 49 (1999),
pp. 465–9 (cf. Cartledge, ‘Greek Political Thought: The Historical Context’, in The
Cambridge History of Greek and Roman Political Thought, ed. C. Rowe and
M. Schofield (Cambridge, 2005), pp. 11–22, p. 17 and Ancient Greek Political Thought
in Practice (Cambridge, 2009), p. 13; A. Vincent, Theories of the State (Oxford, 1987),
p. 13). Against this view: M.H. Hansen, Polis and City-State: An Ancient Concept and
its Modern Equivalent (Copenhagen, 1998); G. Anderson, ‘The Personality of the
Greek State’, Journal of Hellenic Studies, 129 (2009), pp. 1–22. On the Greek polis as a
‘stateless community’, see various articles by Moshe Berent: ‘Hobbes and the Greek
Tongues’, History of Political Thought, 17 (1996), pp. 36–59; ‘Anthropology and the
Classics: War, Violence and the Stateless Polis’, Classical Quarterly, 50 (2000),
pp. 257–89; ‘In Search of the Greek State: A Rejoinder to M.H. Hansen’, Polis, 21
(2004), pp. 107–46; and ‘The Stateless Polis: A Reply to Critics’, Social Evolution &
History, 5.1 (2006), pp. 141–63. Berent’s interlocutors and critics include: M.H. Hansen,
‘Was the Greek Polis a State or a Stateless Society?’, in Even More Studies in the Ancient
Greek Polis, ed. T.H. Nielsen (Stuttgart, 2002), pp. 17–47; L. Grinin, ‘Early State and
Democracy’, in The Early State: Its Alternatives and Analogues, ed. L. Grinin et al.
(Volgograd, 2004), pp. 419–63; E.C.L. van der Vliet, ‘Polis: The Problem of Statehood’,
Social Evolution & History, 4.2 (2005), pp. 120–50.
16 E.g. J.G.A. Pocock, ‘Virtues, Rights, and Manners: A Model for Historians of
Political Thought’, Political Theory, 9 (1981), pp. 353–68 (reprinted in J.G.A. Pocock,
Virtue, Commerce and History (Cambridge, 1985), pp. 37–50). For a modern work of
political theory arguing that rights do have a place in republican thought, see R. Dagger,
Civic Virtues: Rights, Citizenship, and Republican Liberalism (New York, 1997).
 REPUBLICANISM, RIGHTS AND DEMOCRATIC ATHENS 79

both events in turn.17 Even John Locke’s contractarian political theory con-
ceives of freedom in essentially republican terms (Second Treatise 22):
The natural liberty of man is to be free from any superior power on earth,
and not to be under the will or legislative authority of man, but to have only
the law of Nature for his rule. The liberty of man in society is to be under no
other legislative power but that established by consent in the common-
wealth, nor under the dominion of any will, or restraint of any law, but what
that legislative shall enact according to the trust put in it. Freedom, then, is
not what Sir Robert Filmer tells us: ‘A liberty for everyone to do what he
lists, to live as he pleases, and not to be tied by any laws’; but freedom of
men under government is to have a standing rule to live by, common to
every one of that society, and made by the legislative power erected in it. A
liberty to follow my own will in all things where that rule prescribes not, not
to be subject to the inconstant, uncertain, unknown, arbitrary will of another
man, as freedom of nature is to be under no other restraint but the law of
Nature.
While a thoroughgoing republican writer would have had no place in his
theory for a state of nature, it is instructive to note that Locke’s concept of
freedom is not a long way from the republican.18 In fact to define freedom in
terms of non-interference was something of a novelty in the seventeenth
century, confined to the writings of people like Hobbes and Filmer, both of
whom sought to promote absolute monarchy. (The usual seventeenth-century
English term for a republic was a ‘free state’; one of the things that Hobbes
and Filmer were trying to do was to appropriate the word ‘freedom’ as some-
thing rather different from the republican.) It may seem that liberalism, with
its definition of freedom as non-interference, is the dominant political doctrine
in the modern West; and yet the Lockean and republican strains in seventeenth-
century republican thought remain important, not least through their influence
on political texts including the US Constitution and Bill of Rights.19

17 Pettit, Republicanism, p. 101. See R. Ashcraft, Revolutionary Politics and Locke’s

Two Treatises of Government (Princeton, 1986), pp. 210–12; B. Worden, ‘English
Republicanism’, in The Cambridge History of Political Thought 1450–1700, ed. J.H.
Burns with M. Goldie (Cambridge, 1991), pp. 443–75, p. 443. Most of the seventeenth-
century English republicans discussed in Quentin Skinner’s Liberty before Liberalism
(Cambridge, 1998), esp. pp. 18–19, are comfortable with the language of rights.
18 Pettit, Republicanism, p. 40. On the mixed tradition of political thought into which
Locke can be placed, see J. Tully, ‘Placing the Two Treatises’, in Political Discourse in
Early Modern Britain, ed. N. Phillipson and Q. Skinner (Cambridge, 1993), pp. 253–82.
19 A well-known controversy among modern historians of political thought concerns
the philosophical influences on the American Revolution: were the authors of revolu-
tionary literature liberals or republicans? On this debate see J.T. Kloppenberg, ‘The
Virtues of Liberalism: Christianity, Republicanism, and Ethics in Early American Politi-
cal Discourse’, Journal of American History, 74 (1987), pp. 9–33, p. 10, with further
bibliography. One conclusion to be drawn is that they were both of the above: the appar-
80 D.M. CARTER

Pettit gives two possible explanations of the appearance of rights in early

modern republican writing. His best guess is that ‘when republicans spoke of
natural rights . . . they generally meant to argue that certain legal rights were
essential means of achieving freedom as non-domination, and . . . the descrip-
tion of such rights as natural did not have more than rhetorical significance for
them’. However, if natural rights have a real place in republican thought, says
Pettit, they must be natural rights to freedom from arbitrary interference: ‘in
practice, they would be rights against interference other than by a suitable
law’.20
The third potentially unsafe assumption made by Cartledge and Edge is that
the ancient Greeks did not understand rights. If we take Cartledge and Edge to
be interested in moral rights only, with little interest in legal rights, then this
position is at the very least plausible. It is hard to show that the Greeks had any
sense of moral rights, of which a significant purpose in the liberal tradition is
to give individuals the kind of protection that local laws cannot provide.21 But
it can be shown that the Greeks understood the simpler forms of legal right.
Let us say that I have entered into a contract with someone else. We have
essentially made promises to each other, contingent on agreed terms. If the
other party fails to keep to any of these terms I might characterize this as a
failed duty; I might additionally claim that the other party has acted against a
particular interest of mine when he or she ought not to have done; and I would
certainly, as a final resort, feel able to pursue my claim in the courts. It is per-
haps unsurprising that this basic idea of a right, as a legally actionable duty,
appears in some of the Greek literature that we have and especially in the Attic
orators.
Each of the following two examples includes the assertion of such a claim
by a litigant in the Athenian jury courts. The first comes from a speech given
ent incompatibility of rights-based and virtue-based thought may have been lost on the
Founding Fathers (see I. Hampsher-Monk, A History of Modern Political Thought:
Major Political Thinkers from Hobbes to Marx (Oxford, 1992), pp. 209–10); and the dis-
tinction between liberalism and republicanism will have been far less apparent in the
eighteenth century than it is now, not least because liberalism is ‘a nineteenth-century
construct that is best kept out of these discussions’ (K. Haakonssen, ‘From Natural Law
to the Rights of Man: A European Perspective on American Debates’, in A Culture of
Rights: The Bill of Rights in Philosophy, Politics, and Law, 1791 and 1991, ed. M.J.
Lacey and K. Haakonssen (Cambridge, 1991), pp. 19–61, p. 46, cf. Kloppenberg, ‘The
Virtues of Liberalism’, p. 29). See also L. Banning, ‘Jeffersonian Ideology Revisited:
Liberal and Classical Ideas in the New American Republic’, William and Mary Quar-
terly, 43 (1986), pp. 3–19, pp. 18–19.
20 Pettit, Republicanism, p. 101 with n. 4.
21 Cf. K.J. Dover, Greek Popular Morality in the Time of Plato and Aristotle (Berke-
ley and Los Angeles, 1974), p. 57: ‘The Greek did not regard himself as having more
rights at any given time than the laws of the city into which he was born gave him at the
time; these rights could be reduced, for the community was sovereign, and no rights were
inalienable.’
 REPUBLICANISM, RIGHTS AND DEMOCRATIC ATHENS 81

in the Athenian maritime courts, which had authority over the contracts that
regulated trade at sea.22 The speaker in Ps.-Demosthenes 35 (Against Lacritus)
is an Athenian named Androcles, who has jointly lent a substantial sum of
money to two merchants from Phaselis in Asia Minor named Artemon and
Apollodorus. The two Phaselites appear not to have observed the terms of the
contract and the speech is given as part of Androcles’ attempt to recover the
money through the courts. Androcles has brought a dik emporikÂ, a legal
action based on a contract, not against his creditors, but against Lacritus,
brother of the now-deceased Artemon. Lacritus has entered a paragraphÂ
(special plea), arguing that he is not bound by the original contract and has
renounced any claim to his brother’s estate.
The speech that we have is Androcles’ response to the paragraphÂ. It
begins with some generalized remarks about people from Phaselis (Ps.-
Demosthenes 35.1):
oujde;n kaino;n diapravttontai oiJ FashliÖtai, w\ a[ndre" dikastaiv, ajll!
a{per eijwvqasin. ou|toi ga;r deinovtatoi mevn eijsin daneivsasqai crhvmata
ejn tw/' ejmporivw/, ejpeida;n de; lavbwsin kai; suggrafh;n suggravvywntai
nautikhvn, eujqu;" ejpelavqonto kai; twÖn suggrafwÖn kai; twÖn novmwn kai; o{ti
dei' ajpodou'nai aujtou;" a{ e[labon.
The Phaselites, men of the jury, are up to no new tricks; they are merely
doing what it is their wont to do. For they are the cleverest people at borrow-
ing money on your exchange; but, as soon as they get it and have drawn up a
maritime contract, they straightway forget the contract and the laws, and
that they are under obligation to pay back what they have received.23
Towards the end of this speech the appeal to the speaker’s rights becomes
more pointed. Androcles here makes his point that a paragraphÂ, such as has
been entered by Lacritus, ought to be inadmissible in the context of a dikÂ
emporikÂ. Somewhat argumentatively he imagines what Lacritus would say if
the tables were turned and he, having made the initial claim, was forced to
respond to a paragraph from Androcles (35.45):
kai; ei[ gev ti" hJmwÖn feuvgwn divkhn uJpo; touvtou paragrafh;n ejtovlmhse
paragravfesqai, mh; eijsagwvgimon ei\nai th;n divkhn, eu\ oi\d! o{ti hjganavktei
a[n aujto;" kai; ejscetlivaze pro;" uJmaÖ", deina; favskwn pavscein kai;
paranomei'sqai, eij mhv ti" aujtwÖ/ th;n divkhn yhfieiÖtai eijsagwvgimon ei\nai,
ejmporikh;n ou\san. e[peita, w\ Lavkrite, soi me;n tou'to divkaion dokei'
ei\nai, ejmoi; de; dia; tiv oujk e[stai_ oujc a{pasin hJmiÖn oiJ aujtoi; novmoi
gegrammevnoi eijsivn kai; to; aujto; divkaion peri; tw'n ejmporikwÖn dikw'n_

22 For similar arguments made in the maritime courts, see Dem. 34.43, 56.12–17.
23 In each of these examples I use the translation by A.T. Murray (London and Cam-
bridge MA, 1936–9). I briefly discuss these two examples in D.M. Carter, ‘Could a
Greek Oath Guarantee a Claim-Right?’, in Horkos: The Oath in Greek Society, ed. A.H.
Sommerstein and J. Fletcher (Exeter, 2005), pp. 60–72.
82 D.M. CARTER

And, if any one of us, being defendant in a suit brought by him, had dared to
enter a paragraph declaring that the action was not one that could be
brought into court, I know well that he would have waxed indignant, and
would have protested to you, declaring that he was suffering treatment that
was outrageous and contrary to law, if anyone voted that his action, being a
dik emporikÂ, was not one that could be brought. Then, Lacritus, if you
consider this just for yourself, why should it not be just for me? Do not the
same laws stand written for us all? And the same principle of justice in
regard to dikai emporikai?
The legal niceties do not concern us here as much as the character of the argu-
ment. Androcles’ point at the end of this passage is that both he and Lacritus
ought to have equal access to justice: what is divkaion (just) for one man is
divkaion for the other. The loose syntactical relationship between a{pasin
hJmi'n . . . to; aujto; divkaion (‘for us all . . . the same principle of justice’) sug-
gests that to;; divkaion (the just thing) is something owned by individuals,
rather as in modern discourse one ‘has a right’. The translation above is lightly
adapted from Murray’s Loeb, but his original is probably correct: ‘And have
we not all the same rights in regard to mercantile suits?’
The second example is from Ps.-Demosthenes 48 (Against Olympiodorus).
Callistratus, the speaker, has previously agreed with Olympiodorus to make a
joint claim on an inheritance. Olympiodorus presented the case in court and
the two men swore an oath to an agreement that, should Olympiodorus win,
they would divide the money equally. Olympiodorus did win the case but,
in the following example, appears to have gone back on the deal (Ps.-
Demosthenes 48.32):
nikhvs a" de; kai; diapraxamevn wn a{p anta o{s a ejb oulhvq hmen ejn tw'/
dikasthrivw/ . . . oujd! oJtiou'n hjqevlhken tw'n dikaivwn pro" me poihÖsai, ajll!
e[cei aujto;" a{panta, ojmwmokw;" kai; sunqhvka" prov" me poihsavmeno" h\ mh;n
ijsomoirhvsein.
But when he had got the verdict and we had accomplished in the court-room
all that we wished . . . he has refused to do anything whatever that is fair
toward me, but keeps everything himself, even though he has given his oath
and made an agreement with me that in very truth we should take equal
shares.
Callistratus goes on to complain (48.50):
pw'" a]n ou\n ma'llon katafanh;" gevnoito a[nqrwpo", o{ti dikaivw" me;n oujde;n
bou;letai prov" me pravttein, ajposterhvsein d! oi[etai a} prosh;;kei ejmoi;
labei'n, profavsei" levgwn kai; ejgklhvmata ejgkalwÖn, ta;" de; sunqhvka", a}"
fhsiv me parabebhkevnai, oujk w/jhvqh deiÖn uJma'" ajkou'sai_
How, then, could it be made more plain that the fellow is unwilling to act
justly toward me in any way, that he thinks to rob me of what I ought to
receive by advancing excuses and preferring charges, and that he determined
that you should not hear the agreement which he asserts I have broken?
 REPUBLICANISM, RIGHTS AND DEMOCRATIC ATHENS 83

Clearly there were claims on both sides that the other party had broken an
agreement; but we only have Callistratus’ argument here. It is interesting,
although by no means crucial, that the other party in this case allegedly swore
an oath to keep to the agreement. This gives Callistratus additional moral trac-
tion on Olympiodorus; however, the key to the legal claim is the agreement
itself.24
In each of these cases the speaker considers himself to have a claim against
someone else: that is to say he considers himself entitled to take legal action in
order to enforce someone else’s duty. Thus they argue along rights-based
lines, for all that there is no single Greek word that translates as ‘right’. The
key elements of this rights-based argument are a sense of personal injustice
coupled with an allegation of failed duty:

Personal Injustice Failed Duty

oujc a{pasin hJmiÖn oiJ aujtoi;
dei' ajp odouÖn ai aujt ou;" a}
novmoi gegrammevnoi eijsi; kai;
e[labon
to; divkaion . . ._
[Dem.] 35 . . . they are under obligation
Do not the same laws stand
to pay back what they have
written for us all? And have
received
we not all the same rights . . .?
dikaivw" . . . oujde;n bouvletai ajposterhvsein d! oi[etai a}
prov" me pravttein proshvkei ejmoi; labei'n
[Dem.] 48
. . . [he] is unwilling to act . . . he thinks to rob me of
justly toward me in any way what I ought to receive

The identification of this type of rights-based argument in the literature that

we have shows that Cartledge and Edge cannot be entirely correct to say that
the ancient Greeks had no concept of rights; and if the Greeks were intellectu-
ally equipped to understand rights under contract then they may have under-
stood other rights as well. This also gives us a template — personal injustice
coupled with failed duty — for what a rights-based argument might look like
in ancient Greek. In the next part of this paper this two-stage test will be
applied to two speeches of Lysias in the context of protected freedoms.
Cartledge and Edge’s argument, we have seen, rests on three possibly
unsafe assumptions: that the only purpose of rights is to protect individual
freedoms against the state; that rights have no place at all in the republican tra-
dition; and that the ancient Greeks did not understand rights. All the condi-
tions are in place, therefore, for the ancient Greeks to have understood
republican-style freedoms as protected by right. However, it will be seen in
the rest of this paper that rights-based arguments against arbitrary interference

24 See Carter, ‘Could a Greek Oath Guarantee a Claim-Right?’.

84 D.M. CARTER

are very hard indeed to find in the literature that we have. So the identification
of three unsafe assumptions does not entirely disprove Cartledge and Edge’s
thesis. Rather, they have arrived at essentially the correct conclusion — that
the ancient Greeks did not think of their freedoms in terms of rights — by the
wrong route. The real reason that the Greeks did not see their freedoms in
terms of rights, I would argue, is that the protected freedom is in itself a
sophisticated and very modern concept. In particular, the difficulty in finding
arguments for protected freedoms in ancient Greek thought can be explained
in terms of a difficulty in the identification of correlative duty. If I have a par-
ticular freedom it is not always readily apparent on whom the duty falls to
respect this freedom.

Case Study: The Thirty Tyrants

In illustration of this point I want to use the rest of this paper to consider a well
known episode in Greek history, during which the Athenians were unfree in
republican terms. Analysis of legal actions brought against members of the
Thirty or their associates in the aftermath of their rule ought perhaps to yield
rights-based arguments. Interestingly, they do not.
The Thirty were not so far as we know called ‘the Thirty Tyrants’ during or
in the immediate aftermath of their regime (the earliest source to call them
tuvrannoi is Diodorus Siculus 14.3.7). However, there is no doubt that their
rule was seen as tyrannical and tantamount to enslavement of the people of
Athens. One example comes at Lysias 12.73 (cf. 67, 78, 92, 94):
ajnasta;" de; Qhramevnh" ejkevleusen uJma'" triavkonta ajndravsin ejpitrevyai
th;n povlin kai; th/' politeiva/ crhÖsqai h}n Drakontivdh" ajpevfainen. uJmei'"
d! o{mw" kai; ou{tw diakeivmenoi ejqorubei'te wJ" ouj poihvsonte" tau'ta:
ejgignwvskete ga;r o{ti peri; douleiva" kai; ejleuqeriva" ejn ejkeivnh/ th'/ hJmevra/
hjkklhsiavzete.
Theramenes stood up and instructed you to turn over the city to thirty
men and to implement the system of government that Dracontides had
explained. And you, despite your difficult circumstances, made an uproar
and said you would not do this, for you realised that you were deciding
between slavery and freedom on that day.
There are also indications that their rule was seen as unconstitutional
(paranovmw" a[rcein, Lysias 12.48, cf. Diodorus Siculus 14.4.3, 5.6) and
excessive (sfovdra h[rcesqe, Lysias 12.92). This sense of the constitutional
irregularity of installing a tyranny was supported by Athenian legislation that
forbade anyone from proposing tyranny in the first place, although after 411
the law was rephrased in terms of subverting the democracy (katavlusi" tou'
dhvmou, Aristotle, Constitution of the Athenians 8.4, cf. Lysias 13.20).25
25 M. Ostwald, ‘The Athenian Legislation against Tyranny and Subversion’, Trans-
actions of the American Philological Association, 86 (1955), pp. 103–28.
 REPUBLICANISM, RIGHTS AND DEMOCRATIC ATHENS 85

Lysias 12 (Against Eratosthenes) and 13 (Against Agoratus) will provide

useful examples. Both are speeches made in prosecution, following the resto-
ration of democracy, of crimes perpetrated by the Thirty and their associates.
Ideas of rights are frequently more visible when they are threatened; and, like
the contract-based arguments discussed above, these speeches were made in
order to correct perceived personal injustices. We ought here, if anywhere, to
uncover a rights-based argument made by an ancient Greek for his personal
freedoms. In the previous examples a rights-based argument was easy to iden-
tify since the speaker was taking action in pursuit of a claim. Hence in Lysias
12 and 13 I shall be looking for rights-based arguments implicit in complaints
that individuals have been poorly treated by the Thirty. In the two
Demosthenic speeches discussed above I identified a two-stage test for one
form of rights-based argument in ancient Greek. Applied to Lysias 12 and 13,
this two-stage test would identify a complaint of personal injustice at the
hands of the Thirty combined with a view that the Thirty had a duty not to
behave in this way.
Speech number 12 was delivered by Lysias himself in prosecution of one of
the Thirty, probably in the context of an examination (euthuna) Eratosthenes
had to undergo as one of the conditions of the general amnesty following the
restoration of democracy.26 Lysias had his own personal reasons to be hostile
to the Thirty and loyal to the restored democracy, which briefly granted him
citizenship; but he also needed to appeal to the political sympathies of the
jurors in order to persuade them. Therefore the political ideas contained in this
speech, it is safe to assume, were not held only by the speaker.27 Lysias 13 was
delivered by an unnamed speaker in prosecution of an informer whose actions
helped to set up the regime.
Much of the behaviour of the Thirty as described by Lysias counts as arbi-
trary interference on Pettit’s terms: involuntary exile, execution of innocent
men, confiscation of property, removal of full citizenship, and so on. An

26 P. Krentz, The Thirty at Athens (Ithaca, 1982), p. 122; Greek Orators I: Antiphon
and Lysias, ed. M. Edwards and S. Usher (Warminster, 1985), pp. 235–6; Lysias, trans.
S.C. Todd (Austin, 2000), pp. 113–14. For a different view, see T.C. Loening, The
Reconciliation Agreement of 403/402 BC in Athens: Its Content and Application
(Stuttgart, 1987), pp. 70–1.
27 On this methodology, cf. J. Ober, Mass and Elite in Democratic Athens: Rhetoric,
Ideology, and the Power of the People (Princeton, 1989), pp. 35, 42–9; P. Hunt, War,
Peace, and Alliance in Demosthenes’ Athens (New York, 2010), pp. 10–25. I think this
position will do for the present argument; however, it can be qualified in both general and
specific terms. Generally, a more nuanced version of this methodology is given by
C.B.R. Pelling, Literary Texts and the Greek Historian (London, 2000), pp. 15–16, who
considers the characterization of citizen juries in the light of the ‘dynamics of the occa-
sion’. Specifically, see K.J. Dover, Lysias and the Corpus Lysiacum (Berkeley and Los
Angeles, 1968), pp. 47–56, on the difficulty of pinning down Lysias’ own political sym-
pathies.
86 D.M. CARTER

indicative list is given at Lysias 12.21 (cf. 12.96; Xenophon, Hellenica

2.4.13):
ou|toi ga;r pollou;" me;n twÖn politwÖn eij" tou;" polemivou" ejxhvlasan,
pollou;" d! ajd ivk w" ajp okteivn ante" ajt avf ou" ejp oivh san, pollou;" d!
ejpitivmou" o[nta" ajtivmou" katevsthsan, pollwÖn de; qugatevra" mellouvsa"
ejkdivdosqai ejkwvlusan.
For these men sent many citizens in exile to the enemy; they killed many of
them unjustly and denied them burial; they brought many who were in good
standing into poor standing; and they forbade many who were intending to
do so to give their daughters in marriage.
The implication is that the Thirty acquired judicial powers for themselves and
exercised them arbitrarily. This sense of injustice might tempt us to read in an
idea of the rights of citizens not to be subject to this kind of arbitrary authority.
I would prefer to resist this temptation since my two-stage test — failed duty,
seen as a personal injustice — is not really satisfied. While the Thirty’s
actions are clearly wrong they are not characterized here as a dereliction of
duty; there is no ‘ought not’ in Lysias’ argument.
It might be argued that, in anyone’s language, to kill someone unjustly (as
in the example above: ajdivkw" ajpokteivnante") is a breach of rights; therefore
if we wished to establish that the speaker is complaining about his rights, even
implicitly, all we would need to do is demonstrate that there was a personal
injustice. However, it is not by any means agreed even among modern jurists
that the law gives rights to the potential victims of crime; whether or not you
think it does depends on how you assign the correlative duty. On one reading
every (or almost every) duty correlates to a right, held by whoever it is that
stands to benefit. Therefore on this ‘benefit’ theory of rights one person’s duty
to obey a homicide law correlates to another person’s right not to be killed
unlawfully. On another view, to have a right is to have a choice: strictly
speaking I only have a right if I have the power to hold someone to a duty or
release them from it.28 It can be observed that, in the Demosthenic arguments
considered in the previous part of this paper, the underlying idea of a right is
28On these two theories of rights, respectively the benefit and choice theories, and
their differing views on criminal law, see Hart, ‘Bentham on Legal Rights’. The choice
theory has more recently been defended by C. Wellman, A Theory of Rights: Persons
under Laws, Institutions, and Morals (Totowa NJ, 1985) and H. Steiner, An Essay on
Rights (Oxford, 1994) (cf. ‘Working rights’, in M.H. Kramer, N.E. Simmonds and
H. Steiner, A Debate over Rights: Philosophical Enquiries (Oxford, 1998), pp. 233–
302). The benefit theory is defended by D. Lyons, ‘Rights, Claimants and Beneficiaries’,
American Philosophical Quarterly, 6 (1969), pp. 173–85, and informs the work of
Joseph Raz: see e.g. J. Raz, ‘The Nature of Rights’, Mind, 93 (1984), pp, 194–214
(reprinted in Raz, The Morality of Freedom (Oxford, 1986), pp. 165–92) or Raz, ‘Legal
Rights’, Oxford Journal of Legal Studies, 4 (1984), pp. 1–21 (reprinted in Raz, Ethics in
the Public Domain: Essays in the Morality of Law and Politics (Oxford, 1994), pp.
254–76).
 REPUBLICANISM, RIGHTS AND DEMOCRATIC ATHENS 87

closer to the choice theory. This is because the right reveals itself in the
right-holder’s attempt to hold someone to their duty through legal action.
Rights under the choice theory are inherently actionable.29
No ordinary citizen is in a position to release his neighbour from the duty
not to kill him; therefore, under the ‘choice’ theory of rights, the law does not
give rights to the potential victims of crime. One version of the choice theory,
however, suggests that the criminal law gives rights to ‘state officials’ who
have an at least theoretical ability to vary laws and penalties.30
In this context we should note that there was no public prosecution service
in ancient Athens. Criminal proceedings were private actions (dikai) brought
by the victims or their families. Anyone in receipt of an injustice might
wish — exercising choice — to go to court and get satisfaction. We might say
that the adikoumenos (injured party) had a right to prosecute, rather as the
speaker felt he did in Ps.-Demosthenes 35 and 48, discussed above. Thus the
adikoumenos acquired rights that he did not have before he was wronged. But
it does not follow that this right to bring a criminal prosecution rested on a
pre-existing right not to be wronged. (If I have the right to prosecute anyone
who might commit a crime against me it does not follow that I already have
the right not to be the victim of a crime.) Rather, to ‘get justice’ was to correct
a perceived imbalance: in ancient Greek to successfully prosecute a criminal
was to ‘get justice’ (dikÂn labein) and the convicted was said to ‘give justice’
(dikÂn dounai). This does not seem to me to be exactly the same thing as a
rights-based model of criminal justice, in which the perpetrator has a pre-
existing duty not to wrong the victim.
Another way of reading ajdivkw" ajpokteivnante", which will become appar-
ent in the discussion to follow, is to say that the Thirty acquired judicial pow-
ers and exercised them wrongly; they arrested and put to death or exiled
people who had done nothing wrong and did not deserve to be punished (cf.
Demosthenes 22.52, 24.164). An argument of this sort is found at Xenophon,
Hellenica 2.4.13 (Thrasybulus speaking):
ou|toi dh; oiJ triavkonta, oi} hJma'" kai; povlew" ajpestevroun oujde;n ajdikouÖnta"
kai; oijkiw'n ejxhvlaunon kai; tou;" filtavtou" tw'n hJmetevrwn ajpeshmaivnonto.
These indeed are the Thirty, who have deprived us of our city when we have
done nothing wrong and driven us from our homes and proscribed our near-
est and dearest.
In rights-based terms we would read this not as a dereliction of duty but as an
attempt by the Thirty to act beyond their rights. This idea is unpacked for us as
we continue to read Lysias’ prosecution of Eratosthenes (Lysias 12.23):

29 Steiner, An Essay on Rights, pp. 55–8.

30 Ibid., pp. 64–73.
88 D.M. CARTER

to;n ajdelfo;n ga;r mou . . . !Eratosqevnh" ajpevkteinen, ou[te aujtov" ijdiva/

ajdikouvmeno" ou[te eij" th;n povlin oJrw'n ejxamartavnonta, ajlla; thÖ/ eJautou'
paranomiva/ proquvmw" ejxuphretw'n.
For Eratosthenes killed my brother neither himself having suffered a private
wrong nor observing that he was wronging the city; but rather in enthusias-
tic indulgence of his own lawlessness.
Lysias’ argument seems to imply that Eratosthenes would have had more of a
right to kill Polemarchus if Polemarchus had already been in the wrong. In
some ways this implication is false: Athenians were rarely allowed to take the
law into their own hands in this way.31 But the way in which the argument is
composed reflects the structure of the Athenian legal system in a fairly obvi-
ous way. Any wrongdoing on Polemarchus’ part would have put Eratosthenes
in a position to prosecute: either a private prosecution (dikÂ) for having suf-
fered a private wrong (iJdiva/ ajdikouvmenoÀ) or a public prosecution (graphÂ)
brought by Eratosthenes as a willing individual (ho boulomenos). So the
implication of Lysias’ argument is that, had Polemarchus been in the wrong,
there would have been on some level a legal justification for Eratosthenes’
actions; but in the absence of any previous injustice Eratosthenes’ actions are
presented as pure lawlessness.
Lysias then questions Eratosthenes, the killer of his brother. Eratosthenes
protests that he was acting under orders. The exchange continues (12.25):
povteron sunhgovreue" toi'" keleuvousin ajpoktei'nai h] ajntevlege"_
ajntevlegon.
i{na mh; ajpoqavnwmen_
i{na mh; ajpoqavnhte.
hJgouvmeno" hJmaÖ" a[dika pavscein h] divkaia_
a[dika.
Did you agree with those who gave orders for us to be killed, or disagree?
I disagreed.

31 Athenian law did however provide comparatively generously for lawful homicide,
including for self-defence or as retaliation against someone caught in the act of adultery:
D.M. MacDowell, The Law in Classical Athens (London, 1978), pp. 113–14; S.C. Todd,
The Shape of Athenian Law (Oxford, 1993), p. 274. It was also possible to kill another
Athenian who was atimos (‘in poor standing’). In the Archaic period to be atimos was to
be completely outside the law; in the classical period atimia could mean the loss of any
right to prosecute in the courts, in other words the loss of any real protection under the
law: see A.R.W. Harrison, The Law of Athens II: Procedure (Oxford, 1971), pp. 169–76.
 REPUBLICANISM, RIGHTS AND DEMOCRATIC ATHENS 89

So that we might not die?

So that you might not die.
Thinking that we were suffering injustice or justice?
Injustice.
In the light of the previous discussion we might understand a[dika pavscein as
both (1) to be in receipt of injustice, so as to wish to go to court and get
satisfaction (dikÂn labein, the point of the current prosecution); and (2) to
suffer undeserved punishment. It is argued that Eratosthenes’ actions repre-
sent a personal injustice to Polemarchus and his family, but nowhere is this
expressed in terms of a duty Eratosthenes had not to act in this way. So here
my two-stage test for a rights-based argument is not quite met.
But does such a duty always have to be owed to an individual? As I suggest
above, it is more plausible to say that a person’s rights against arbitrary arrest,
execution or exile are protected by everyone else’s duty to obey the law; it is
through the accumulation of these duties that we remain free. Therefore a cor-
relative duty need not, as in the contractual examples discussed earlier, be
owed directly to the right-holder; it may instead be owed to the law generally.
We have seen that, certainly when it comes to the appearance of rights in early
modern republican thought, Pettit’s best guess is that any rights espoused are
merely the legal rights that are found in a free society. In other words they are
created by a series of laws whose collective purpose is to protect individual
liberties.
Such a law would be one that protects individuals against possible miscar-
riages of justice through the observance of due procedure in the courts. In the
following example the speaker complains that the wrong procedure was used
against some of the Thirty’s early victims (Lysias 13.35–7):
ejpeidh; toivnun oiJ triavkonta katestavqhsan eujqevw" krivsin toiÖ" ajndravsi
touvtoi" ejpoivoun ejn th'/' boulh/,' oJ de; dhÖmo" «ejn tw'/ dikasthrivw/ ejn discilivoi"»
ejyhvfisto . . . eij me;n ou\n ejn tw' dikasthrivw/ ejkrivnonto, rJadivw" a]n
ejswv/zonto: a{pante" ga;r h[dh ejgnwkovte" h\te ou| h\n kakouÖ hJ povli", ejn w|/
oujde;n e[ti wjfeleiÖn ejduvnasqe. nuÖn d! eij" th;n boulh;n aujtou;" th;n ejpi; twÖn
triavkonta eijsavgousin. hJ de; kri;si" toiauvth ejgivgneto, oi{an kai; uJmeiÖ"
aujtoi; ejpivstasqe. oiJ me;n ga;r triavkonta ejkavqhnto ejpi; twÖn bavqrwn, ou| ni'n
oiJ prutavnei" kaqevzontai: duvo de; travpezai ejn tw'/ provsqen tw'n triavkonta
ejkeivsqhn: th;n de; yh'fon oujk eij" kadivskou" ajlla; fanera;n ejpi; ta;"
trapevza" tauvta" e[dei tivqesqai . . .
As soon as the Thirty had been established they brought these men to trial
before the BoulÂ, even though the people had passed a vote that it should be
‘before the court of two thousand’ . . . If then they had been tried in court
they would easily have been acquitted; for by then you were apprised of the
danger to the city but you could be of no further help to it. But as it was they
led them in before the Thirty. And the judgement was of such a kind as you
90 D.M. CARTER

yourselves are aware. For the Thirty were seated on the benches where the
prytaneis now sit, and two tables were placed before the Thirty; and one had
to cast one’s vote not in urns but openly on these tables . . .
Here we have an argument that the Thirty denied due procedure to Athenian
citizens. It is further claimed that under the correct procedure these men
would (rightly) have been acquitted. There is plenty of talk in this speech of
the misfortune of these men and of the evils to come (e.g. 13.43–9). What is
missing is any sense that this failure to try the men lawfully represented a per-
sonal injustice. Again, my two-stage test for a rights-based argument in
ancient Greek is not quite met.
What we do find, implicit here and explicit elsewhere in the Attic orators, is
the view that it is bad for a political system when the correct procedures are
not met: it is detrimental to the continued rule of law (essentially the argument
of Euryptolemus at the trial of the generals, Xenophon, Hellenica 1.7.25–9);
such a city is not a place where one would want to live (Isocrates 15.22). On
this view the general duty to obey the law correlates to what we might call an
objective right (the integrity of the system) rather than to individual, subjec-
tive rights.

Conclusion
In this paper I have found one way in which we can identify an ancient Greek
rights-based argument, notwithstanding the absence of a single ancient Greek
word for rights. This means of identification is based on a fairly strict defini-
tion of legal rights that correlate to duties. A concept of rights tends to rise to
the surface where the right-holder feels that his rights have been infringed. In
an ancient Greek context I found that this occurs where the right-holder feels
there has been a dereliction of duty by someone else and that he has thus suf-
fered an injustice.
My aim here, therefore, has been to find out not whether the victims of the
Thirty had rights but whether they understood themselves to have rights. As a
twentieth-century observer I can reasonably say that the Thirty frequently
infringed the rights of their victims. Lysias equally considers the actions of the
Thirty to have been wrong but, on the admittedly strict definition given above,
a concept of rights does not underpin his condemnation of their actions. The
regime of the Thirty was, on the republican terms adopted by Cartledge and
Edge, a period of greatly diminished freedom for most Athenians as well as
for resident foreigners like Lysias. This diminished freedom manifested itself
in the heightened risk of arbitrary arrest, execution or exile. In Lysias’
speeches we come close to a characterization of this behaviour as the denial of
individual rights that promote freedom: the actions of the Thirty and their
associates are frequently characterized as injustices; but nowhere do we close
 REPUBLICANISM, RIGHTS AND DEMOCRATIC ATHENS 91

the circle (in terms of my two-stage test) and find these actions considered as
failed duties either to individuals or to the law.
Lysias’ characterization of the regime of the Thirty thus provides some
illustration of my view that the protected freedom represents a level of sophis-
tication in rights-based thinking that the ancient Greeks did not quite reach.
This is not to say that our own model of rights-based justice is better devel-
oped or superior; merely that, in a society that made far less use of the idea of
rights in its discourse, such a sophisticated idea was unlikely to arise.
Rights-based arguments based on contract are simple to make: he had a duty
to pay me, he failed, this is unjust. Rights-based arguments for individual
freedoms are more complex. They rest either on an indefinite series of
pairwise duties to refrain from actions that might diminish individual liber-
ties, or indirectly on a general duty to the law. Given this complexity it is no
surprise that the ancient Greeks did not tend to see their freedoms as rights.
For Cartledge and Edge the ancient Greeks did not use rights to protect free-
doms because they had no concept of rights. I hope to have shown that the
ancient Greeks did have a concept of rights, however narrowly conceived.
What they lacked was the concept of a protected freedom.32

D.M. Carter UNIVERSITY OF READING

32 My thanks to Alan Cromartie and to Peter Liddel, who read and commented on
an earlier version of this paper. The views expressed here remain my own.