The Ethos of the Laws and Athenian International Policy: The Against Aristocrates (Dem. 23)

Arguments based on constitutional principles of fairness and humanity (anthropinos, for â€?humane’) shape most of the discussion of the laws. Demos­thenes connects the minute examination of the provisions of specific statutes broken by Aristocrates' decree with the general aim of laws, showing the moral clash between the decree (and the person honoured by the decree itself) and the spirit of the Athenian laws. At 23.44, Demosthenes refers to a statute about the persecution of murderers in exile. In Athenian Law, a convicted murderer could go into permanent exile and be physically safe. The law provided that anyone who pursues or despoils a murdered in exile, whose goods are not con­fiscated, is liable to the same punishment as if one did this in his own coun- try.75 This law was meant to protect those who were convicted for uninten­tional homicide and went to exile. Demosthenes makes the case for the unconstitutionality of the enactment by considering the hypothetical instance whereby someone might kill Charidemus unintentionally and then face arrest abroad. This, for Demosthenes, was but one of many negative consequences of the decree resulting from Aristocrates having â€?overturned all human laws’ and of having eliminated the key aspect of intention which makes an action good or shameful?⁶

Appeals to the intent and the authority of the lawgiver are again made in the discussion of another law forbidding any charge of homicide upon those peo­ple who indicted a murderer in exile if he returns to Athens without permis­sion. Demosthenes points out that this law, like the all the statutes cited in his written indictment, were enacted by Draco, the earliest Athenian lawgiver.77 Recalling the authority of the lawgiver is not surprising in Athenian oratory?⁸ In Athenian legal discourse, laws, in this case those about homicide, were un­derstood as the coherent and authoritative product of an individual lawgiver who enshrined in the laws his ethos. Because of this unitary intent, litigants could interpret the laws by referring to the original principles inserted in the statutes by the authoritative legislator. In this case, Demosthenes interprets the ethos of the lawgiver in respect of two legal rights: the right of denouncing but not seizing a murderer, and the protection of permanent exile.^[172] Both of these principles were violated by the decree of Aristocrates, therefore contra­vening the spirit as well as the substance of Draco's legislation.^[173]

A similar example occurs at 23.82-85. Demosthenes asks the clerk to read out another law about hostages, permitting the relatives of a victim of violent homicide to seize three hostages until the trial or the surrender of the killers^[174] According to Demosthenes' interpretation of the law, the decree for Char- idemus violates the law because it does not qualify the homicide as �violent' or �deliberate', and gives therefore anyone the right to seize a man before the trial, rather than the three hostages. Demosthenes also adds that the decree is clearly illegal because it prescribes that if a man accused of the homicide of Charidemus goes into exile and is hosted by a foreign community according to principles of humanity, the decree rules them out of any alliance with Ath­ens, if they do not surrender him^[175] This clause in the decree of Aristocrates is important because it shows that the decree extended the Athenian regulations to a wider area, imposing penalties upon allies who did not abide by its terms. From the quotation of the decree, in the speech, there seems to have been an expectation that allies were to act as agents of Athens in the event of someone killing Charidemus by arresting and extraditing the murderer, or otherwise face exclusion from the League as a consequence. Such a practice was prob­ably not unusual in Greek diplomatic dealings. A similar provision is found in a fourth-century Theban decree, as paraphrased by Xenophon, who reports that the Thebans had voted to allow the extradition of exiles from the cities of the allies^[176] An Athenian decree, probably to be dated at 348 or 343 BCE, includes a similar if not identical clause allowing for the extradition of the properties of the offender - the relevant term is agogima - from all the allied cities^[177] By contrast, Demosthenes implies that the strict term of the decree of Aristocrates force Athenian allies to take a side between the enforcement of the decree for Charidemus and the respect of the laws about hosting suppli­ants. This argument is misleading, for it overlooks the ability of a community to reject a suppliant who committed homicide, but it allows Demosthenes to extrapolate, again, a series of constitutional principles from the written law to impress upon the minds of the judges that the decree is not only contrary to the wording of the law but also to the moral ideals underpinning the laws that regulate the Athenian hegemony and the relations with its allies.

The purpose of this recurrent exercise in revealing how the decree of Aristo- crates stood in violation of the written statutes was to appeal to the oath, pledged by each judge at the assumption of their offices, to enforce the laws. From here, the speech appeals to precedent, comparing other honorific de­crees with that bestowed by the decree of Aristocrates upon Charidemus.^{[178] [179] [180] [181] Ex­cerpts of similar honorary decrees for foreign benefactors are repeatedly shown to contain the following construction: �Let there be the same punishment as if he killed an Athenian’^6 The best way to honour a benefactor, Demosthenes insists, is treat him in accordance with the laws in keeping with the past. For­mer proposers have put forward decrees by maintaining the laws valid and the privileges were granted according to them.87 Aristocrates, on the other hand, has proposed a decree that insults the laws and the same honour of citizenship given to Charidemus. This comparison reinforces the line of argument of the whole speech: honours are key for Athenian diplomacy and constitute a funda­mental factor in inter-polity relations but they cannot be granted against the laws. The respect of the laws and the legal procedures are binding for the Athe­nians as well as for the benefactor, in this case Charidemus, constraining them to abide by normative standards of behaviour in the international relations.}

The relationship between respect of the law and interest of the city is clearly illustrated at the transition between the first half of the speech and the second half, in which the career of Charidemus is discussed at length.88 His character and conduct are presented as deceitful, dishonest, and undeserving of the pub­lic honours, and a fortiori in contrast with the laws of Athens. At 100, Demos­thenes recalls a recent episode in which a man who had proposed an illegal decree tried to argue in court that although the decree was illegal, it was issued in the best interest of the city. This passage sheds light on the prominence of legal reasoning and argument in graphe paranomon trials, because Demos­thenes states that this argument is shameless because no illegal decree can be in the interest of city, which the judges of the city must recognise because they have sworn to apply the laws. Demosthenes substantiates this point with a consideration of the contemporary international Greek world and Athenian interests within it. He explains that it is not beneficial to Athens that Thebes or Sparta grow too powerful; rather, a balance of powers is what makes Athens secure. The same is true in the Chersonese, where the division and mutual distrust of the three Thracian kingdoms works to secure Athenian interests in the area. By strengthening the position of king Cersebletes through the special privileges granted to Charidemus, it is then argued that Aristocrates' decree will destabilise the region. Other kings will be fearful to commit an offence against him because of the illegal honour of the decree,^[182] which is precisely what had already taken place with regards to a similar decree favouring king Cotys against Myltokythes and contrary to Athenian interest. In addition, Athenian reputation will suffer, discouraging the Thracian kings to uphold their alliance for they will perceive the Athenians to be leaning too favourably towards Cersebleptes^[183] This passage therefore reveals the Athenian attitude to assessing decrees and domestic legislation in terms of their wider impact on other communities which, for Liddel, boils down to a combination of cultural imperialism and concern for the value of reciprocity in interstate relations^[184]

Having revealed how the decree is detrimental to Athenian interests, and argued for their opposition to principles of fairness and humanity as enshrined in the laws, what remains for Demosthenes to identify in the remaining part of the speech is the link between the illegality of the decree, the poor character of the undeserving honorand, and the ill consequences for Athenian foreign policy:

The decree brings no advantage to our foreign policy [του τοiς πραγμασι μη συμφερειν τo ψηφισμα]. Nor does it help our city's reputation [ουδε πρoς δoξαν συμφερει τη πoλει] to be seen passing such a decree [...] if the de­cree had been proposed for someone living in our city and obeying its laws [τω και νoμοις πολιτευομενω], it would be less dangerous but still shameful. But in fact it has been proposed for Charidemus, who lives in no city at all, serves as a general for a Thracian, and through his kingship does injustice to many.^[185]

Appeals to the issue of the reputation (doxa) of the city were of profound im­portance in Athenian legal argument about honorific decrees and laws, and can also be seen playing a central role in Demosthenes' argument in the Against Leptines, a speech delivered in a graphe nomon me epitedeion theinai against the law of Leptines^[186] Here, Demosthenes effectively builds an argu­ment on the reciprocity of the honours and the ethical principles of the laws which are in contrast with the law of Leptines abolishing all tax exemptions. Leptines' law diminishes Athenian reputation abroad and undermines the bonds of trust (pistis) between the Athenian people and its foreign benefac­tors, who provide economic and diplomatic advantages to Athens. Such a legal argument was rooted in shared Greek morality, and was so effective that the judges repealed the law of Leptines and re-established tax exemptions for all benefactors who had deserved it. The example of the Against Leptines shows that such forensic arguments were not limited to the Against Aristocrates and occurred frequently in judicial review trials. They relied on a common under­standing in Athens of the dynamics of time and on the moral grounds under­pinning the laws of Athens through which both domestic and international politics was predicated.

The importance of honouring law-abiding and trustworthy benefactors is developed in the following two sections of the speech, in which Demosthenes provides examples of other mercenaries, like Philiscus, and reviews Charide- mus' career, with particular emphasis on his actions in Thrace^[187] These sec­tions of the speech are meant to illustrate the incompatibility between the spirit of the laws, discussed in the first half of the speech, and the bestowal of honorific rights upon an individual of such poor character as Charidemus. The logic of honorific practice implies the reciprocity of benefits, the grant to Char- idemus however does not comply to this moral dynamic because the decree of Aristocrates gives him a free hand to harm Athens^[188] And again, Demosthenes argues, contra his opponents, that honours cannot be granted in contrast with the laws and the Judicial Oath sworn by the judges, even when they seem, at first glance, to be in the interest of the city^[189]

The speech ends with the memorialisation of a storied past and its diver­gence from the present in this case. Grants of honours to great Athenian lead­ers like Miltiades and Themistocles are recalled. These men had been rewarded proportionally to their merits. Charidemus, by contrast, could be identified as the kind of deceitful individual who might face punishment by the ancestors.^[190] Men like Menon of Pharsalus or Perdiccas of Macedon had never received the same special protections afforded to Charidemus, for another contrast, even if they succeeded in giving major benefactions to Athens. Following these ap­peals to precedent, the last thing for Demosthenes to do is go back over each of the laws listed in the indictment and to identify, in brief, how the decree was proposed in contravention of them.

The outcome of the trial is unknown. The indicted probouleuma was only valid for one year without the Assembly’s ratification, and this time would have elapsed before it could enter into force. Further details about the case and its aftermath are obscure. In the following years, Charidemus kept serving Ath­ens as general and trierarch, and was granted honorific crowns for his service to the city. Although the picture of Charidemus given by Demosthenes in the Against Aristocrates was one-sided and unlikely to be free of some prejudice, the speech survives as an important illustration of legal argumentation in a fourth-century case of judicial review for an honorific decree with broader im­plications for Athenian international relations. It shows that the procedure of graphe paranomon compelled the Athenians to formulate and to enact honor­ific decrees in the Council and the Assembly in accordance with the laws and the principles embedded in the statutes. Such principles did not represent a different source of legal authority, but were based on shared Greek values that were enshrined in the overall system of the laws: reciprocity of honours, equal­ity before the laws, and the right to a fair trial.

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