CY416B/Elster-FM.tex P1: JZP 0521839696agg.xml CY416B/Elster 0 521 83969 6 June 16, 2004 15:27 Closing the Books Transitional Justice in Historical Perspective JON ELSTER Columbia University iii P1: JZP 0521839696agg.xml CY416B/Elster 0 521 83969 6 June 16, 2004 15:27 published by the press syndicate of the university of cambridge The Pitt Building, Trumpington Street, Cambridge, United Kingdom cambridge university press The Edinburgh Building, Cambridge cb2 2ru, uk 40 West 20th Street, New York, ny 10011-4211, usa 477 Williamstown Road, Port Melbourne, vic 3207, Australia Ruiz de Alarcón 13, 28014 Madrid, Spain Dock House, The Waterfront, Cape Town 8001, South Africa http://www.cambridge.org C© Jon Elster 2004 This book is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2004 Printed in the United States of America Typeface Sabon 10/13 pt. System LATEX 2ε [tb] A catalog record for this book is available from the British Library. Library of Congress Cataloging in Publication Data Elster, Jon, 1940– Closing the books : transitional justice in historical perspective / Jon Elster. p. cm. Includes bibliographical references. isbn 0-521-83969-6 – isbn 0-521-54854-3 (pb.) 1. Political crimes and offenses. 2. Justice and politics. 3. Ex post facto laws. 4. Revolutions. 5. Restorative justice i. Title. k5250.e44 2004 303.6′6–dc22 2004043581 isbn 0 521 83969 6 hardback isbn 0 521 54854 3 paperback iv P1: JZP 0521839696agg.xml CY416B/Elster 0 521 83969 6 June 16, 2004 15:27 Contents Preface and Acknowledgments page ix part i the universe of transitional justice 1 1 Athens in 411 and 403 b.c. 3 2 The French Restorations in 1814 and 1815 24 3 The Larger Universe of Cases 47 part ii analytics of transitional justice 77 4 The Structure of Transitional Justice 79 5 Wrongdoers 136 6 Victims 166 7 Constraints 188 8 Emotions 216 9 Politics 245 References 273 Index 289 vii P1: KIC/IRP 0521839696agg.xml CY416B/Elster 0 521 83969 6 June 16, 2004 17:35 part i THE UNIVERSE OF TRANSITIONAL JUSTICE Transitional justice is made up of the processes of trials, purges, and reparations that take place after the transition from one political regime to another. A fuller characterization is provided in Chapter 4. The task of the present book is, first, to describe the variety of cases of transitional justice and, second, to propose an analytical framework that can help us explain the variations among the cases. Part I is devoted to presentation of the cases. In the first two chapters I describe several historical examples in some detail. Chapter 1 describes the processes of transitional justice that occurred in the wake of the restorations of Athenian democracy in 411 and then again in 403 b.c. In Chapter 2, I discuss the measures of retribution and reparation that took place in France after the two Restorations of the Bourbon monarchy in 1814 and 1815. Chapter 3 is a more compact survey of transitional justice in other cases, mainly transitions to democracy in the twentieth century. There are several reasons that I single out the Athenian and French episodes for a fuller discussion than what I provide for other cases. First, they will be less known to most readers than the more recent cases. Second, they show that transitional justice is not limited to modern regimes nor to democratic regimes. Third, both cases show exceptionally clearly that in transitional justice, nations can learn from experience. The measures taken after the second restoration of Athenian democracy were shaped by what was perceived as excessive severity in the first. Conversely, tran- sitional justice after the Second French Restoration was shaped by the perceived failure to strike hard enough in the First. In our century, too, transitional justice can be shaped by the memory of earlier transitions, the most striking instance being the three German transitions of the twentieth 1 P1: KIC/IRP 0521839696agg.xml CY416B/Elster 0 521 83969 6 June 16, 2004 17:35 2 The Universe of Transitional Justice century: after World War I, after World War II, and after reunification in 1990. On each of the last two occasions, many of those who wanted to hold the outgoing regime to account were adamant that they would not repeat the mistakes that had been made the previous time.1 In Belgium, the desire to hold speedy trials of collaborators after World War II was shaped in part by the memory of the failure to prosecute those who had collaborated with the Germans during World War I (see Chapter 8). 1 On the back cover of a book documenting the lack of denazification of the West German judiciary (Friedrich 1998), a high judge and a law professor both draw the lesson that the same error must not be repeated in dealing with the East German judiciary. For a criticism of this argument, see Rottleuthner (1994). For the relation between 1918 and 1945, see Chapter 7. P1: KIC/IRP 0521839696agg.xml CY416B/Elster 0 521 83969 6 June 16, 2004 17:35 1 Athens in 411 and 403 B.C. i. introduction Democratic transitional justice is almost as old as democracy itself. In 411 b.c. and then again in 404–403 b.c., the Athenians saw the over- throw of democracy by an oligarchy, followed by defeat of the oligarchs and restoration of democracy.1 In each case, the return to democracy went together with retributive measures against the oligarchs. In 403, the Athenians also took steps toward restitution of property that had been confiscated by the oligarchic regime. The next episode of transitional justice occurred more than two thousand years later, in the English Restoration. The Athenians had two episodes of transitional justice that followed closely upon each other. It seems likely that after the first episode some learning took place, shaping the next occurrence. After the collapse of the first oligarchy in 411, the Athenians restored the pre-oligarchic democ- racy, carried out harsh retribution, and enacted new laws to deter future oligarchs from trying to take power. What they did not do was to attack the root causes of the oligarchic coup. In 403, the returning democrats reacted differently. On the one hand, they enacted constitutional changes to eliminate features that had brought democracy into disrepute. On the other hand, they pulled their punches in dealing with the oligarchs, 1 In the following I rely heavily on Ostwald (1986). My indebtedness to Hansen (1991) will also be obvious. The most recent monograph on the transition in 403 is Loening (1987). Although many of the stark statements in the text ignore important controversies in the scholarly literature, I do not think this affects the substance of the argument, as summarized toward the end. 3 P1: KIC/IRP 0521839696agg.xml CY416B/Elster 0 521 83969 6 June 16, 2004 17:35 4 The Universe of Transitional Justice preferring the forward-looking goal of social reconciliation over the backward-looking goal of retribution. ii. athenian democracy To understand the two transitions and the decisions taken in their af- termath, we have to go back to the beginning of Athenian democracy almost two hundred years earlier. In 594, Solon was given carte blanche by two opposing factions to reform the laws.2 Three of his reforms are directly relevant for transitional justice. He enacted an amnesty law that restored civil rights to those who had been disenfranchised, except ex- iles condemned on charges of homicide or massacre, or for seeking to establish a tyranny.3 This law was the model for the amnesty legislation of 405 b.c. that, in the wake of the defeat of Athens by the Spartan fleet, canceled some of the harsh sentences passed after the overthrow of the oligarchs in 411.4 (The purpose of the amnesty was to reunite the city, but it came too late.) Also, Solon enacted a “peculiar and surprising law, which ordains that he shall be disfranchised who, in time of faction, takes neither side,” the citizen being expected to “espouse promptly the better and more righteous cause, share its perils and give it his aid, instead of waiting in safety to see which cause prevails.”5 Finally, he introduced an important change in the Athenian legal system. Then and later, there was no public prosecutor. All suits had to be brought by private individuals. Solon’s reform was to allow any citizen to start a prosecution, either on behalf of the injured person or simply in the public interest. One effect of the law was to create an incentive for frivolous suits by “sycophants,” or professional denunciators, who would bring a suit against a wealthy man in order to blackmail him by offering to drop the case. They were widely resented by the upper classes, and vigorously prosecuted under the second oligarchy. Other pieces of Solon’s legislation are indirectly relevant, qua impe- tus to a process of democratization that eventually led to untrammeled popular rule triggering an oligarchic backlash. He abolished debt slavery, thereby creating an important condition for effective democracy. Before 2 The basic sources are Plutarch’s Life of Solon and Aristotle’s Constitution of Athens. The latter is usefully interpreted and corrected by Moore (1975). 3 Plutarch, Solon xix.3–4. 4 Andocides, “On the Mysteries,” 73–79. 5 Plutarch, Solon xx.1. P1: KIC/IRP 0521839696agg.xml CY416B/Elster 0 521 83969 6 June 16, 2004 17:35 Athens in 411 and 403 b.c. 5 he enacted his reforms, all citizens could vote in the assembly and serve on the popular courts, but eligibility for some offices was reserved for the nobles (“wellborn”). After the reforms, all criteria of eligibility were defined in purely economic terms, so that birth no longer was decisive. Among the four property classes, members of the lowest were excluded from all state offices. For the most important offices, only members of the top class or the two top classes could be chosen. In 457, members of the third-ranked class became eligible for some of these high offices. Yet even though members of the lowest class remained ineligible, they exer- cised great influence as members of the Assembly, of the popular courts, and (after the reforms of Cleisthenes in 507) of the Council of the Five Hundred, which controlled the agenda of the Assembly. The rights to vote and to hold office may be spurious if their exercise is costly. As Aristotle notes in the Politics (1308b–1309a), “If office bought no profit, then and only then could democracy and aristocracy be combined; for both notables and people might have their wishes gratified. All would be able to hold office, which is the aim of democracy, and the notables would be magistrates, which is the aim of aristocracy.” A decisive step to a more effective democracy was taken by Pericles in the mid–fifth century, when he instituted daily pay for jurors, for members of the Council of the Five Hundred, and for magistrates.6 The class structure could also influence politics by its link to military functions. By and large, the navy was manned by the lowest property class (thetes) and the infantry (hoplites) by the second lowest. As Athens in the period that concerns us was more or less constantly at war, the presence or absence of these groups in the Assembly could sway the outcome: Radical democracy was introduced by Ephialtes’ reforms in 462 which were passed by the Assembly when 4000 hoplites of the middle class were away fight- ing in Messina. Fifty-one years later the radical democracy was replaced by the oligarchic rule of the Four Hundred, and that constitutional change was passed by an Assembly in which the thetes were probably under-represented, because the meeting was held outside the walls and because the entire Athenian navy was stationed off Samos.7 6 Payment for going to the Assembly was established only in the following century. By contrast, at that later time payment for magistrates seems to have been abolished, arguably “a retreat from radical-democratic principles and another sign that the Athenians from 403/2 had opted for a more ‘moderate’ form of democracy” (Hansen 1991, p. 241). Other aspects of this retreat from radical democracy are discussed in Section IV. 7 Ibid., p. 126. P1: KIC/IRP 0521839696agg.xml CY416B/Elster 0 521 83969 6 June 16, 2004 17:35 6 The Universe of Transitional Justice Not surprisingly, the impetus for the restoration of democracy came from that very same navy at Samos. The second-highest group, the cavalry (hippeis), was seen as closely associated with both oligarchies. As members of the Assembly, the Athenians could vote laws and de- crees, but it remained to implement them. Perhaps the most remarkable feature of the full-fledged Athenian democracy is the degree of control the citizens exercised over those who were to carry out their decisions. Al- though most officeholders were chosen by lot, the important offices were elective. Whether chosen by lot or elected, all magistrates had to undergo a mandatory scrutiny before and after taking office. Whereas the ex ante scrutiny was usually a formality (but see Section V for exceptions), the ex post examination could be a serious business. Moreover, magistrates were also subject to prosecution for “crimes against the state.” These control functions had originally been lodged in the Areopagus, an elite body consisting of former high officials belonging to the highest property group, but after the reforms of Ephialtes, they devolved on the Council and finally on the popular courts. By the mid–fifth century, a succession of reforms had created the poten- tial for abuses of unrestrained popular power.8 As reflected in the title of Martin Ostwald’s work, the Athenians had popular sovereignty but not yet the rule of law. For a while, as he also writes, “Pericles’ intelligence and psychological and political insight prevented unreason from dominat- ing policy.”9 One cannot, however, judge the robustness of institutions by looking at the outcomes they generate under good leadership: Enlightened statesmen will not always be at the helm. The next generation of lead- ers, of lesser stature or lesser prudence, showed the vulnerability of the 8 We may wonder how this came about. There was certainly no democratic revolution. Although the masses may have used their voting rights to expand their power, this does not seem to have been the main mechanism. Rather, the elites found it in their interest to sponsor popular measures. Ober (1989), p. 85, notes that “by the time of Cleisthenes, the elites recognized mass ambitions as a new weapon to use against each other. As a result, politically ambitious elites actively sponsored democratizing reforms. . . . Ironically, as the elites gained victories over their enemies by sponsoring democratic reforms, there were fewer and fewer institutions that they could control directly.” Similarly, Ostwald (1986), pp. 179–80, writes that “Ephialtes’ reforms had the effect of establishing the sovereignty of the people in political affairs, but that does not mean this was their intent. His primary purpose may well have been to outflank those who had been most effective in supporting Cimon’s now-discredited policy of ‘giving a higher priority to the interests of Sparta than to the expansion of his own country.’” Ober’s comment is especially interesting, in that it suggests that the elites were engaged in something like a prisoner’s dilemma, in which they all lost power by trying to outdo one another in appealing to the people. 9 Ibid., p. 200. P1: KIC/IRP 0521839696agg.xml CY416B/Elster 0 521 83969 6 June 16, 2004 17:35 Athens in 411 and 403 b.c. 7 institutions. Although the system contained some safeguards,10 these were least effective in the supremely important realm of military decisions. iii. the first oligarchy and its demise Athens had strong expansionist and imperialist traditions. At its height around 460, the Athens-led Delian League comprised nearly two hundred member states in the Eastern Mediterranean. The idea of empire appealed both to the Athenians’ desire for glory and to their desire for tribute. Yet when decisions to go to war were taken by the popular assembly, they were not always wise. In particular, the disastrous Sicilian expedition of 415 was undertaken on a wave of popular enthusiasm, against the more realistic assessment of Nicias. Summarizing Thucydides, Ostwald writes that Nicias himself recognizes that the sobriety and circumspection of his seasoned military expertise have little chance of stemming the irrational enthusiasm of the Assembly (6.9.3). Even before Alcibiades had opened his mouth, lust for adven- ture had made the commons deaf to Nicias’ warnings: a Sicilian expedition would only swell the number of already existing enemies (6.10); even if the expedition succeeded, it would be difficult to control a large population from a great dis- tance, and if it failed in any way, the Sicilians would join the Spartans, eager to recoup their lost prestige, in attacking Athens itself (6.11), and what strength had been recovered after the recent plague should not be dissipated on alien ventures (6.12).11 The effect of the disaster was “the rise of oligarchic opposition, putting all the blame on the leaders who had persuaded the people and on the people themselves for being cozened by them.”12 In the summer of 411, the oligarchs staged a coup and terrorized the assembly into abdicat- ing its powers to them. Organized as the Council of the Four Hundred, they stayed in power for four months only, as the alliance with Persia on which they had counted fell through and the naval troops at Samos turned against them. The restoration of democracy, including transitional justice, took place in two steps. The first (or “intermediate”) successor regime, which lasted 10 These safeguards included notably the use of delegation of decision making to smaller bodies and delays (Ostwald 1986, pp. 78–79; Hansen 1991, p. 307). See, however, Ruzé (1997, Chap. 22) for important reservations to the idea that the role of the Council in preparing proposals for the Assembly served as a delaying device. 11 Ostwald (1986), p. 318. 12 Hansen (1991), p. 40. P1: KIC/IRP 0521839696agg.xml CY416B/Elster 0 521 83969 6 June 16, 2004 17:35 8 The Universe of Transitional Justice for about eight months, was a truncated democracy, limiting franchise to the Five Thousand, “of which body all who furnished a suit of armor were to be members.”13 The regime immediately engaged in what Ostwald calls “a relentless prosecution of extremist oligarchs.”14 Three of them were tried and two executed for treason, because they went on an embassy to Sparta after news of the revolt of the troops at Samos had reached Athens. Some avoided trial by going into exile, only to return in 403 to become members of the Thirty Tyrants. After the restoration of the full democracy, “vindictive measures against those who had been associated with the Four Hundred widened in scope.”15 Soldiers who had stayed in the city during the regime of the Four Hundred suffered partial loss of their political rights.16 Three democrats are cited as having exploited the retributive apparatus for private gain.17 An oligarch who had already been tried and convicted under the intermediary regime was retried under a more serious charge. Yet three indicators show that the measures were not simply victors’ justice. First, as Ostwald adds, “it was a prosecution not a persecution: we hear of no lynchings or terrorism but only of orderly legal pro- ceedings initiated soon after the new regime had been established.” Sec- ond, many who served on the Council of the Four Hundred to the very end were tried and acquitted. Third, the restored democracy resisted the temptation of retroactive legislation. Because there was no law against attempts to overthrow the democracy, the three oligarchs had to be prosecuted for treason; others presumably were not prosecuted at all. Although the new regime enacted a law against such attempts, the legisla- tion was prospective, not retroactive. It was intended to deter “oligarchic recidivism,” not to punish members of the oligarchy that had just been overthrown.18 13 Thucydides, The Peloponnesian War, 8.97.1. This measure, and the abolition of pay for public office, were voted by the people as a whole. 14 Ostwald (1986), p. 401. 15 Ibid., p. 420. 16 Andocides, “On the Mysteries,” 75–76. 17 Lysias, “Defence against a charge of subverting the democracy,” 26. 18 Ostwald (1986), p. 418. In his account of why the “intermediary regime” tried three oligarchs for treason but not for their “revolutionary activities,” Ostwald (1986), p. 402, cites the fact that “their accusers had themselves been active in establishing the Four Hundred and had been members of the Council but had turned against the extremists and were now leaders of the new regime.” After the restoration of the full democracy, this self-serving reason was presumably less important in the explanation of democratic self-restraint. P1: KIC/IRP 0521839696agg.xml CY416B/Elster 0 521 83969 6 June 16, 2004 17:35 Athens in 411 and 403 b.c. 9 iv. the second oligarchy and its demise The next oligarchic regime owes its origin to an event that both discredited the democracy internally and made it vulnerable to external threats. After a great victory in a sea battle against the Spartan fleet off the Arginusae Islands in 406, the Athenians tried eight of their generals for failure to rescue the surviving sailors (or perhaps for a failure to recover the bod- ies of the dead). The proceedings, which may have involved breaches of legality,19 led to the condemnation of all the generals and the immediate execution of the six who were present in Athens. The charged emotional atmosphere that made this outcome possible is captured in Xenophon’s description of what happened when a member of the Council, Callixenus, proposed to vote over the guilt of the generals without a proper trial: Euryptolemus . . . and some others served a summons upon Callixenus, alleging that he had made an unconstitutional proposal. And some of the people applauded this act, but the greater number cried out that it was monstrous if the people were to be prevented from doing whatever they wished. Indeed, when Lyciscus thereupon moved that these men should also be judged by the very same vote as the generals, unless they withdrew the summons, the mob broke out again with shouts of approval, and they were compelled to withdraw the summonses. Furthermore, when some of the Prytanes [the executive committee of the Council] refused to put the question to the vote in violation of the law, Callixenus again mounted the platform and urged the same charge against them; and the crowd cried out to summon to court those who refused. Then the Prytanes, stricken with fear, agreed to put the question – all of them, except Socrates, [who] said that in no case would he act except in accordance with the law.20 The phrase that I have italicized is commonly taken as the most ex- treme expression of unconstrained popular sovereignty in Athens. There is a special irony in that one of the executed generals, Thrasyllus, had been a key actor in restoring the democracy in 411. Although later “the Athenians regretted their action and voted that charges be brought against those who had deceived the people, Callixenus among them,”21 this could not undo the twofold harm that had been done. First, the episode rekin- dled divisions among the citizens and strengthened those who distrusted the democrats. Second, in choosing new generals to replace those who had been executed, the Athenians favored loyalty to the democracy over military competence. In itself, this would not have mattered had the 19 For opposing views on this important point, see Ostwald (1986), pp. 439–41, and MacDowell (1978), pp. 178–79. 20 Xenophon, Hellenica, I.vii. 21 Ibid. P1: KIC/IRP 0521839696agg.xml CY416B/Elster 0 521 83969 6 June 16, 2004 17:35 10 The Universe of Transitional Justice Athenians accepted a peace offer from Sparta after the defeat at Argi- nusae. According to Aristotle, the Assembly rejected the offer because it was deceived by Cleophon, whom he depicts as a notorious demagogue.22 Whether the Assembly acted emotionally or took a calculated gamble based on distrust of Sparta,23 the outcome was disastrous. Led by less- than-outstanding generals, the Athenians suffered a devastating defeat in the battle of Aegospotami in 405, which marked the end of the Athenian empire. In the wake of the defeat, a second oligarchy was installed in 404 under Spartan auspices. The reasons why the Spartans preferred to install a relatively autonomous oligarchic “Vichy” regime, rather than a puppet “Quisling” government, remain conjectural.24 The peace treaty included provisions for the return of the oligarchs who had gone into exile after the collapse of the previous oligarchy, and a vague clause allowing Athens to retain its “ancestral constitution,” a phrase susceptible of several interpretations. In practice, the regime installed by the Thirty Tyrants, as the new oligarchic leaders came to be called, was one of terror. Among other things, they required each of their members to prove his mettle by killing one metic (alien resident). Also, more than fifteen hundred citizens were killed. One motive for the atrocities may have been revenge: The leading oligarch Critias “showed himself eager to put many to death because . . . he had been banished by the democracy”25 after the demise of the previous oligarchy. For some oligarchs, the ultimate goal may have been to remake Athens on the austere model of Sparta.26 Economic gain may also have been a motive. To consolidate their rule, the Thirty created a privileged body of Three Thousand, as they came to be called, and expelled the rest of the citizens from the city. The expelled took up residence in Piraeus, the main port of Athens. Ultimately, with the assistance of an exile democratic army, they routed the oligarchs in battle and killed two of their main leaders. The Spartan leaders once more pulled their punches and supervised a treaty of reconciliation between “the men in the city” and “the men in Piraeus.” According to Aristotle, the terms of the reconciliation were as follows: Those of the Athenians who had remained in the city and wished to leave should live in Eleusis, where they should retain full citizen rights, have complete 22 The Constitution of Athens xxxv.1; see also xxviii.3. 23 For the latter view, see Kagan (1987), pp. 378–79. 24 Ibid., pp. 405–10. 25 Xenophon, Hellenica, II.iii. 26 Ostwald (1986), pp. 485–87. P1: KIC/IRP 0521839696agg.xml CY416B/Elster 0 521 83969 6 June 16, 2004 17:35 Athens in 411 and 403 b.c. 11 self-government and enjoy their incomes. The temple was to be common to both sides. . . . Those living at Eleusis were not allowed to visit the city of Athens, nor were those living in Athens allowed to visit Eleusis, with the exception for both sides at the celebration of the Mysteries. The people at Eleusis were to contribute to a defence fund from their revenues like the other Athenians. If any of those leaving the city took over a house at Eleusis, they were to do it with the agreement of the owner; if agreement proved impossible, each was to select three assessors, and the owner was to accept the price they fixed. Any inhabitants of Eleusis ac- ceptable to the new settlers were to live with them there. Those wishing to move out to Eleusis had to register within ten days of the swearing of the reconcilia- tion oaths if they were in the city at the time, and move out within twenty; those abroad had the same periods from the moments when they returned to Athens. Nobody living at Eleusis could hold any office in the city of Athens until he had been registered as having moved his residence back to the city. Homicide trials in cases where someone had killed or wounded a person with his own hands were to be conducted in accordance with traditional practice. There was to be a total amnesty covering everyone except the Thirty, the Ten, the Eleven and the gover- nors of the Piraeus; even they were to be immune from prosecution once they had rendered their accounts. . . . Those who had held office in the city were to appear before citizens with taxable property. On this basis those who wished to leave could leave the city. Each side was to repay separately the money which it had borrowed for the war.27 The terms of the agreement need some comments. Both sides had to swear an oath to the effect that they would “harbor no grievance” against anyone except for one specific act and four specific groups. Pros- ecution for murder was possible when the accused had killed “with his own hands” (autocheiria). “The means which the Thirty had employed to eliminate their opposition made it difficult, however, for potential plain- tiffs to demonstrate autocheiria in its strictest sense. Few victims of the oligarchy were murdered outright; more often they were deposed by an informer on a spurious charge, arrested, convicted before the oligarchic Council (unless a trial were dispensed with altogether) and compelled to drink hemlock.”28 The four groups excluded from the amnesty were the Thirty Tyrants, the Ten who succeeded them in a brief transitional stage before the restoration of democracy, the Eleven who were responsible for executing the orders of the Thirty, and the governors of Piraeus who administered the port on behalf of the oligarchy. The reference to “render- ing accounts” is to the ex post scrutiny to which all officials were subject. 27 The Constitution of Athens xxxix. 28 Loening (1987), p. 83. The example of Polemarchos discussed in Section V indicates that the demand for each member of the Thirty to kill one metic did not imply that they had to do it by their own hands. P1: KIC/IRP 0521839696agg.xml CY416B/Elster 0 521 83969 6 June 16, 2004 17:35 12 The Universe of Transitional Justice Normally, the scrutiny was carried out by a popular jury chosen by lot among all citizens or even by the assembly as a whole. In this exceptional case, the requirement of scrutiny by citizens with taxable property en- sured that nobody from the lowest property group (thetes) would sit in judgment of the oligarchs, so that former members of the Three Thousand would be overrepresented on the juries.29 It is relevant to mention here that the normal ex post scrutiny was widely seen as a manifestation of untrammeled democracy, capable of leading to “excesses, injustice and plain inefficiency,”30 as when generals were punished for defeats that might be due simply to bad luck.31 Hence, stacking the juries in favor of the oligarchs may have been proposed or accepted by the democrats to signal their intention to retreat from extreme forms of popular rule. The clause may of course also have been proposed or imposed by the Spartans to protect their former allies.32 Other evidence that I shall cite shortly suggests, however, that the returning democrats were willing to limit retribution for the sake of civil peace. Although Aristotle does not mention the fate of property confiscated by the oligarchs, other texts show that this issue was also covered by the treaty. In the summary of Thomas Loening: Individuals who had purchased confiscated goods will retain possession of them, and any property which had not been auctioned off will revert to the original owner. . . . This provision only involves movable property. Presumably, the origi- nal owner would have to establish undisputed title to these unsold goods before regaining possession of them. Acceptance of the reconciliation agreement meant a renunciation of all legal claims to movables confiscated and sold by the oligarchy. There may have been a provision whereby the exiles could repurchase their goods for the amount of money paid by the buyer, provided that he were willing to sell. Such a clause would prevent profiteering on the part of persons who had bought confiscated property cheaply and who then later attempted to sell it back to the original owner at an inflated price. There would be no obligation to resell, unless the buyer wanted to do so. . . . Not all confiscated property remained in the hands of the purchasers. The reconciliation treaty ordains that immovable property, such as land and houses, will be returned to their former owners . . . on the condition that they paid.33 29 Ostwald (1986), p. 499. 30 Ibid., p. 78. 31 See, for instance, Kagan (1981), pp. 318–20. 32 I disagree, therefore, with Loening (1987), p. 49, when he argues for a different reading of Aristotle’s text, on the grounds that “[i]n all likelihood the exiles would not concede such an important advantage which would probably result in the exoneration of many of the oligarchs.” 33 Loening (1987), pp. 51–52. The last clause (“on the condition that they paid”) is conjectural. P1: KIC/IRP 0521839696agg.xml CY416B/Elster 0 521 83969 6 June 16, 2004 17:35 Athens in 411 and 403 b.c. 13 The most significant provision is the distinction between the confiscated goods that had been sold to private citizens and those that remained in the hands of the state. With regard to the former, which might legitimately be claimed by both the old and the new owners, the treaty settled in favor of the new owners. While the new owners were not necessarily oligarchs, they had certainly profited from the oligarchy, yet their gains were not canceled. Here, too, we can see evidence of a willingness to compromise on the part of the returning democrats. The main architects in restoring the democracy were Thrasybulus and Archinos. Thrasybulus, who had led the democrats in exile, was concerned with rewarding those who had struggled on their side. Consequently, he proposed “to give citizenship to all who had had a part in the return from Piraeus although some were manifestly slaves.”34 Archinos was worried, however, that this might change the balance of power in the city too much in favor of the democrats. When the proposal was passed by the Assembly, he had it annulled through a graphe paranomon, a device by which the Athenians could reconsider their own past decisions. Aristo- tle, who praises this move by Archinos, also cites approvingly two other actions, both of questionable legality, that he undertook to cement the reconciliation. First, he arbitrarily abridged the deadline for registration for emigration to Eleusis, thus compelling oligarchs to stay in the city “against their will.”35 Aristotle refers to this as a “sound move,” perhaps because he thought the balance of forces would be as upset by oligarchs leaving the city as it would be by giving voting rights to returning slaves.36 Second, [w]hen one of the returned exiles began to violate the amnesty, Archinus haled him to the Council and persuaded them to execute him without a trial, telling them now they would have to show whether they wished to preserve the democracy and abide by the oaths they had taken; for if they let this man escape they would encourage others to imitate him, while if they executed him they would make an example for all to learn by. And this was exactly what happened; for after this man was put to death no one ever again broke the amnesty.37 An editor of the text comments that Archinos’s “action in attacking someone for violating the amnesty was indeed right, for the only way of 34 Aristotle, The Constitution of Athens xxxx.2. 35 Ibid., xxxx.1. 36 After a few years, however, “the atmosphere in Athens had changed sufficiently to enable Thrasybulus to try again, this time with more discrimination and success, to fulfill his promise to those who had fought on his side” (Ostwald 1986, p. 509). 37 Aristotle, The Constitution of Athens xxxx.2. P1: KIC/IRP 0521839696agg.xml CY416B/Elster 0 521 83969 6 June 16, 2004 17:35 14 The Universe of Transitional Justice reestablishing the state after such a traumatic period was for the Athenians to turn their backs on the past, but it is legitimate to ask whether an illegal execution was the best way of reestablishing the rule of law.”38 In turning their backs on the past, the Athenians resorted to the methods of the past – but they only had to do it once. Although the amnesty did not altogether eliminate lawsuits related to behavior during the oligarchy,39 these were isolated events. A final restraining measure initiated by Archinos, not mentioned by Aristotle, was the enactment of the procedure of paragraphe, perhaps best translated as “counteraccusation.” It is described in a passage from Isocrates that is worth citing at some length: Now after your return to the city from Piraeus, you saw that some of the citizens were bent upon bringing malicious prosecutions and were attempting to violate the Amnesty; so, wishing to restrain these persons and to show to others that you had not made these agreements under compulsion, but because you thought them of advantage to the city, you enacted a law, on the motion of Archinos, to the effect that, if any person should commence a lawsuit in violation of the oaths, the defendant should have the power to bring a paragraphe; the magistrates should first submit this question to the tribunal, and that the defendant who had entered the plea should speak first; and further, that the loser should pay a penalty of one-sixth of the sum at stake. The purpose of the penalty was this – that persons who had the effrontery to rake up old grudges should not only be convicted of perjury but also, not awaiting the vengeance of the gods, should suffer immediate punishment.40 The new procedure thus had a double purpose. The immediate aim was to deter attempts to bring suit in violation of the amnesty. The broader end was to show that the reconciliation agreement treaty had not been imposed by the oligarchs or their Spartan allies, but freely chosen by the democrats in order to promote the good of the city. The moderation displayed by the victorious democrats was quite re- markable.41 In Thucydides, for instance, we find numerous accounts of the horrors of civil war that might have led us to expect a far worse outcome. 38 Moore (1975), p. 272. 39 Loening (1987), Chap. III, has a full account of the cases that arose. 40 Isocrates, Against Kallimachos 2–3. 41 In his catalogue raisonné of violent episodes in classical Greece, Bernard (1999) does not note the lack of vindictiveness following the demise of the oligarchy in 403. The contrast he draws (pp. 423–24) between the vindictiveness of pre-Christian societies and the charitableness of Christianity leaves no room for simple prudence. One can abstain from revenge merely because one perceives that it will be counterproductive, which arguably is what the Athenians did in 403. P1: KIC/IRP 0521839696agg.xml CY416B/Elster 0 521 83969 6 June 16, 2004 17:35 Athens in 411 and 403 b.c. 15 The willingness to show clemency went hand in hand with constitutional reform intended to remove the root causes of oligarchic discontent. A key provision stated that “[t]he magistrates shall under no circumstances whatever employ a law that is not part of the written code. No decree of either Council or Assembly shall have higher authority than a law. No law shall be directed against an individual without applying to all citizens alike, unless an Assembly of six thousand so resolve by secret bal- lot.”42 Also, legislation was removed from the Assembly and delegated to a smaller group of nomothetai. In Ostwald’s words, “The procedures are democratic, since they mandate repeated discussions in the Assem- bly before a new law can be validated, but they represent a restriction on popular sovereignty because the validation does not come from the Assembly but from a broadly based group of nomothetai.”43 Even that smaller group was subject to constraints. If the Assembly, in its annual review of all legislation, found that a set of laws was unsatisfactory, it had to elect five men to speak in the defense of those laws before the matter could go forward to the nomothetai. These long-term measures, which impose procedural constraints on popular rule,44 complement the short- term measures that were taken to alleviate the enmity between oligarchs and democrats. The reconciliation treaty brought about amnesty, but neither oblivion nor silence. Although there are examples of “gag rules” that take certain matters off the table to protect social peace,45 the amnesty decree of 403 is not among them. The clause stating that the Athenians should abstain from harboring grievances did not, as is sometimes asserted,46 impose a total ban on referring to past strifes. It provided immunity for prosecution but did not exclude that a person’s behavior under the oligarchy could be relevant for his suitability to hold public office. Membership of the Council in this period seems to have been viewed as more aggravating than simply belonging to the Three Thousand, although less serious than being one of the Thirty. Nor was the amnesty violated by the decrease in pay for the cavalry, who had largely supported the oligarchy, or by an increase 42 Andocides, “On the Mysteries,” 87. 43 Ostwald (1986), p. 522. 44 MacDowell (1975), p. 74, states that “after the turmoil of 403 the Athenians . . . wanted to make it difficult for themselves to introduce changes in the laws.” Ostwald (1986) similarly writes that the reforms “show that law was to be supreme in the new democracy and that the demos could no longer regard whatever it pleased as valid and binding.” 45 Holmes (1989). 46 E.g., by Loraux (1997). P1: KIC/IRP 0521839696agg.xml CY416B/Elster 0 521 83969 6 June 16, 2004 17:35 16 The Universe of Transitional Justice in pay for the mounted archers, who were more likely to have opposed it.47 The cavalry could also be punished by other means. When asked to send troops to Persia, “the Athenians sent some of those who had served as cavalrymen in the time of the Thirty, thinking it would be a gain to the democracy if they should live in foreign lands and perish there.”48 v. lysias To explore some of these issues, and to view other aspects of the amnesty through the eyes of a contemporary, I shall consider some speeches of Lysias (ca. 458–380). As a resident alien in Athens, he belonged to a group targeted for persecution by the Thirty Tyrants. His brother Polemarchos was put to death by the tyrants, and Lysias himself had a narrow escape. In three speeches delivered between 403 and 399, Lysias discusses moral issues concerning the oligarchs, their supporters, the resisters, and the beneficiaries of their rule, as well as those who chose to remain neutral. In one speech, he personally accuses one of those responsible for the murder of his brother. In another, he writes as a hired pen for a citizen defending himself against the accusation that his passive behavior during the oligarchy makes him ineligible for public office. In the third, Lysias is himself penning such accusations. The speech “Against Eratosthenes,” one of the Thirty, was probably given at the scrutiny of the latter after the fall of the oligarchy. As noted earlier, the jury is likely to have been stacked in his favor, whence certain constraints on the rhetorical strategies Lysias can deploy. Lysias begins by stating that the Thirty moved against resident aliens, alleging that they were hostile to the administration: Therefore they had an excellent pretext for appearing to punish while in reality making money; in any case, the State was impoverished and the government needed funds. They had no difficulty in persuading their hearers, for those men thought nothing of putting people to death, but a great deal of getting money. So they resolved to seize ten, of whom two should be poor men, that they might face the rest with the excuse that the thing had not been done for the sake of money (6–7).49 47 Loening (1987), p. 119; Ostwald (1986), p. 506. 48 Xenophon, Hellenica, III.1.4. 49 The passage raises an intriguing question: Exactly whom were the Thirty trying to fool? In including two poor individuals, the Thirty showed that they were subject to what I have called the “imperfection constraint” in the process of misrepresenting one’s preferences (Elster 1999, pp. 375–80). If the stated aim of an action (persecuting resident aliens for their political views) coincides too well with the agent’s self-interest (confiscating their P1: KIC/IRP 0521839696agg.xml CY416B/Elster 0 521 83969 6 June 16, 2004 17:35 Athens in 411 and 403 b.c. 17 Lysias then states that Eratosthenes had arrested Polemarchos in the street and taken him to prison, where he received the order to drink hemlock: “[M]y brother, as I said before, was put to death by Eratos- thenes, who was neither suffering under any private wrong himself, nor found him offending against the State, but eagerly sought to gratify his own lawless passions” (23–24).50 Against a possible defense by Eratos- thenes that he was acting out of fear and just following orders (25), Lysias responds by asking “whom, in fact, will you ever punish, if the Thirty are to be allowed to state that they merely carried out the orders of the Thirty?” (29–30). Toward the end of his speech, Lysias joins together the “men of the city” and the “men of the Piraeus” as victims (92), saying that he wants to recall the events of that period so that both groups will remember their grievances against the Thirty and their common desire for revenge. He says to the men of the city, “You were so oppressed by the rule of these men that you were compelled to wage war against your brothers, your sons, and your fellow citizens” (92). The purpose of the argument is clearly to make the men of the city, who were overrepresented in the jury, think of themselves as co-victims with the exiled democrats, rather than as co-perpetrators with the Thirty.51 Whereas it would be absurd for Eratosthenes, a member of the Thirty, to claim to have acted under coercion by the Thirty, that excuse is available to their supporters. Yet with the end of the oligarchy, the excuse is no longer valid: “[I]f you condemn this man, you will declare your indignation at the things that have been done; but if you acquit him, you will be recognized as aspirants to the same conduct as [the Thirty], since today nobody is compelling you to vote against your judgment” (90–91). wealth), the claim of being politically motivated lacks credibility. To create an appearance of political motivation, the Thirty would either have to abstain from prosecuting some wealthy individuals or to prosecute some poor ones; the latter strategy is the one Lysias mentions. Yet at the time when the Thirty published a list with the names of the Three Thousand, they decreed “that none of the Three Thousand could be put to death without a verdict of the Council but that the Thirty had the right to put to death anyone not on that list” (Ostwald 1986, p. 486). Since that decree was probably given before the measures against the resident aliens (ibid., p. 487), it is hard to see whom they needed to “persuade.” 50 Note that Lysias here suggests an alternative way in which Eratosthenes could have sought to misrepresent his motives, by claiming to act for personal revenge rather than for gain. In Elster (1999), p. 213, I argue that for the Athenians, acting for revenge, although an inferior motivation to acting for the good of the state, was superior to that of acting out of self-interest. 51 D. Cohen (2001) emphasizes this aspect of much of the post-403 rhetoric.