An accurate picture of democratic eleutheria must include an investigation of the oratorical corpus, one of our most robust sources for Athenian ideology. In contrast to the evidence of the historians and philosophers surveyed in Chapter 2, the information contained in the orators was not intended for a specialized audience, but instead aimed at a greater range of Athenians. While intellectuals could offer idiosyncratic and often dissident perspectives on democratic freedom, orators had to persuade using a framework that was palatable to a general audience. Since oratory is aimed at the average Athenian, whether in the Assembly, Council, or courts, these speeches provide access to more broadly held beliefs about freedom. The majority of extant speeches come from the fourth century, by which point the phrases that use the verb “to wish” (βούλομαι), such as to do “whatever one wishes,” (ὅ τι ἂν βούληται) have become semi-standardized to express the idea of positive freedom. The speeches provide a window into how this developed ideology functioned in the fourth century. In particular, they demonstrate its predominant acceptance as a democratic value rooted in citizenship and as accessible political theory regarding the relationship between individual action and community prerogative.

An explicit statement of positive freedom appears in Lysias’ Funeral Oration (2).Footnote ¹ The speech was most likely not the official state-commissioned oration nor delivered as such, but instead written by Lysias for private reading or publication.Footnote ² Perhaps ironically, it is the most standard representation of the epitaphic genre that we have.Footnote ³ The speech represents Athenian military exploits, both historical and contemporary, as proof of Athens’ unique status as defender of freedom. The first mention of eleutheria defines it in a way that gives prominence to the role of will achievement. Lysias explicitly invokes freedom in his retelling of Athens’ assistance to the Herakleidai, in which he explains the Athenians’ motivation to help them in terms of freedom, justice, and courage. He specifically ascribes to Athenians the belief that “it was a mark of freedom to do nothing unwillingly” (ἐλευθερίας μὲν σημεῖον εἶναι μηδὲν ποιεῖν ἄκοντας, 14). As opposed to slavery, which is associated with compulsion, freedom is acting in accordance with one’s own desires. In this case, it is Athenians as a whole who act on their own desires rather than at the behest of an outsider, Eurystheos. As an encomium of the citizens’ past and the city itself, freedom here connects the individual’s ability to act with the independence of the polis from foreign powers. In his telling, free Athenians should not submit themselves to the will of others but assert their own will.

Lysias follows this episode with an explanation of Athens’ ancestral foundation of democracy. By driving out the ruling classes, democracy is born of the view that “freedom for all is the greatest harmony. [The Athenians] allowed everybody to share in the hopes that result from danger, and governed themselves with freedom of spirit” (ἡγούμενοι τὴν πάντων ἐλευθερίαν ὁμόνοιαν εἶναι μεγίστην, κοινὰς δ᾽ ἀλλήλοις τὰς ἐκ τῶν κινδύνων ἐλπίδας ποιήσαντες ἐλευθέραις ταῖς ψυχαῖς ἐπολιτεύοντο, 2.18). Rather than external freedom from a foreigner, the internal freedom of the city is the main concern in this passage. In contrast to the previous narrow oligarchy, democratic freedom represents equal status and self-rule by the people. On the heels of the Herakleidai episode, it also conveys a sense of freedom as the ability to act. Democracy is thus explicitly a means by which to achieve freedom, understood as self-rule by the people who act as they wish. Within the idealized prehistory of Athens, Lysias underscores positive freedom as a unique feature of Athenian democracy.

While epideictic oratory, a genre which includes the funeral orations, does praise citizen autonomy, a cursory look at forensic speeches reveals examples that appear to associate doing “whatever one wishes” with illegal activity, violence, or oligarchy. Scholars have accordingly argued that this type of freedom was irreconcilable either with the rule of law, civic obligation, or the priority of the community over individuals, all of which were important democratic principles. Thus, as Liddel puts it, “the liberty of doing whatever one likes was, within the discourse of the Attic orators, a concept too extreme to be applied to any human being, dead or alive.”Footnote ⁴ In this argument, critics of democracy, instead of democrats themselves, were responsible for associating democratic freedom with doing “whatever one wishes.”Footnote ⁵ Since it does appear to represent democratic values in certain passages, such as in the idealistic funeral orations, it has been suggested that the ambivalence can be explained by making recourse to the public-private division. Derived from the division of positive and negative freedom along the same lines, this view claims that living “however one wished” only applied in the private sphere.Footnote ⁶ In the public sphere, it was an offense. Yet, this phrase or idea is woven so frequently into rhetorical figures in different oratorical genres that it warrants further investigation.

Analyzing the contexts of the doing “whatever one wishes” phrases demonstrates that the orators do not reject positive freedom but, in fact, they presuppose it as desirable. Who the agent of the action is and who is suffering as a result are key factors in its approbation or criticism. My approach elucidates how positive freedom, or the ability to accomplish one’s will, far from being portrayed as an inherent danger to democracy, is a central concern of these passages. Citizen autonomy, both for individuals and the collective, is presented as at stake when the wrong circumstances attend acting “however one wishes.” The disparagement of specific people acting as they wish is couched in terms of the protection of other citizens’ freedom and autonomy rather than the restriction of that freedom.

First, I establish that the orators’ concern is with freedom as a civic status that has political and ideological ramifications (Section 3.1). Status is invoked to distinguish the proper legal treatment of citizens, and occasionally other free foreigners, from the treatment of slaves. The fundamental division between these statuses is complementary to the more abstracted meanings of “free.” That is, free men act autonomously, while enslaved men cannot. The correlation of free status and free action corresponds to the presentation of freedom and slavery in philosophical, historical, and legal texts. From the individual citizen, positive freedom is extended to the city as a whole. Next, I demonstrate how the idea of positive freedom pervades different aspects of oratorical argument (Section 3.2). The speakers’ assumption that to do “what one wishes” is a commonplace and desired outcome substantiates its widespread acceptance as a democratic value.

Throughout the corpus, the propriety of positive freedom, even in its extreme form, is determined by the agents performing the action and those consequently affected. The public and private nature of the action does not determine its valence, but instead who the victims may be. While there are idiosyncrasies among the orators and subgenres, consistent themes appear across them. Often, orators identify bad actors as non-Athenians and oligarchs, whether in actuality or in spirit. Oligarchs are associated with tyrannical behavior, flouting accountability and harming other citizens (Section 3.3). These oligarchic stereotypes are then deployed to signal that an opponent, whether an oligarch or not, is inappropriately suited to achieving his will or that he outright limits the positive freedom of other citizens and threatens democracy (Section 3.4). As such, he threatens democracy and its citizens. Ultimately, I plan to show that the understanding of freedom in this sphere is consistent with the more theoretical and legalistic presuppositions of Chapter 2, further evincing its centrality to democratic ideology.

3.1 Free Status and Autonomous Action

Athenian orators represent doing “whatever one wishes” as an integral part of Athenian freedom, emanating from the slave-free status distinction and encompassing the internal and external freedom of the city. Just as we saw in Chapter 2, the fundamental division between slave status and free status serves as the basis for all the extended uses of “freedom” in Athenian ideology. In oratory, status is assumed to be related to the ability to achieve one’s will for oneself and others. Furthermore, the orators indicate that the reverse of not acting as one wishes is in fact subjection to another’s will, which is slavish and entirely incompatible with democratic freedom. The association between freedom and will achievement is not limited to the individual but is a hallmark of Athens as a city. Whether in a forensic or symbouletic context, the orators operate under the assumption that a citizen’s ability to act freely is emblematic of democracy in his private life and his public capacity. The phrase thus encompasses all aspects of freedom, from the individual to the city, internal to external.

The distinction between slave and free is manifested in how the orators reference the basic procedural aspects of the courtroom. As early as the end of the fifth century, Antiphon provides the oft-repeated trope of the torture challenge (βάσανος), where a litigant claims he offered his slaves or asked for another’s to provide testimony via torture but his opponent refused.Footnote ⁷ Free men could submit their testimony as evidence, but slave testimony was only admitted if obtained through torture.Footnote ⁸ The trope of the challenge and its refusal is well documented in oratory and reflects a broader understanding about slaves and free men.Footnote ⁹ In addition to the assumptions about bodily sanctity, the use of the trope also showcases the (in)ability of each status to act.Footnote ¹⁰ The defendant in On the Chorus Boy (6) enumerates all the witnesses present at the scene of his alleged crime and details how he urged the prosecutor to interrogate them all. As the witnesses differ in civic status, so does the proper means by which to examine them. In regards to the defendant’s own slaves, if the prosecutor felt they were not forthcoming, the defendant emphasizes that he was “ready to hand over all my slaves for examination under torture, and if he wanted any slaves belonging to someone else, I agreed to get their master’s permission to allow him to interrogate them however he wanted” (ἕτοιμος εἴην διδόναι βασανίζειν τούς τε ἐμαυτοῦ πάντας, καὶ εἴ τινας τῶν ἀλλοτρίων κελεύοι, ὡμολόγουν πείσας τὸν δεσπότην παραδώσειν αὐτῷ βασανίζειν τρόπῳ ὁποίῳ βούλοιτο, 6.23). Like the examples of voluntarism, the free citizen’s ability to act within the public sphere underlies the procedural aspect of the challenge.Footnote ¹¹ While Athenians are allowed and even encouraged to do “what they wish” in the judicial context, slaves are their diametric opposites, suffering instead whatever the interrogators wish. The unremarkable nature of the passage reveals that such an assumption was commonplace. The expression of will is manifest in the most basic understanding of free status and legal procedure.

The principle that free men act upon their will and slaves suffer someone else’s is not limited to the court procedure. Lysias’ defense speech On a Wound by Premeditation (4) exemplifies the broader significance of acting “however one wishes” for status.Footnote ¹² The slave woman who is the main source of the litigants’ violent quarrel is treated in the speech as nothing more than an object to be used for the speaker’s ends. The prosecutor has alleged that the defendant attempted to kill him in an argument over the slave woman, the penalty for which was exile and confiscation of property.Footnote ¹³ Strikingly, about half of the extant speech concerns the prosecutor’s refusal of the defendant’s challenge to torture the woman for testimony (10–17).Footnote ¹⁴ In these sections, the defendant contradicts the claim of his opponent to have had sole ownership of the woman and, thus, to have unilaterally manumitted his own slave. Manumission would make the defendant’s challenge for testimony incoherent, since a free person could not be tortured. The defendant resists these claims and asserts his power over the woman:

The reasoning is that, as his part of his property, he could have sold her to raise money for a ransom, but the prosecutor has not allowed him recourse to her for his current needs. His use of the phrase “whatever use of her I wished” (χρῆσθαι αὐτῇ ὅ τι ἐβουλόμην) expresses the woman’s complete commodification.Footnote ¹⁶ Taking the whole clause together, his power as slave owner is expressed in his ability to treat her in what way he wishes. This is appropriate because he is free and she is not.Footnote ¹⁷ His potential power as owner is unremarkable; he wishes to underscore his inability to bring this to fruition because of the prosecution. Lysias marks this infringement upon the defendant’s rights as unusual and unfair, based on the assumption that free citizens should impose their wills and slaves, as their ideological opposites, should suffer others’ wills. Freedom and will achievement are assumed to be linked inside and outside of the courtroom.

The salient feature of positive freedom is the ability to achieve one’s will and therefore the free citizen normatively should exert his will. When a free person is instead subjected to what others wish, it is a reversal of expectations. Free men who chose to submit to another’s will for money are suspect. For instance, Aeschines accuses Demosthenes of taking bribes, and so he criticizes him for speaking not “when it seems right to him” nor “whenever he wishes” but when he is commanded to do so (λέγεις δὲ οὐχ ὅταν σοι δοκῇ, οὐδ᾽ ἃν βούλῃ, ἀλλ᾽ ὅταν οἱ μισθοδόται σοι προστάττωσιν, 3.218). Demosthenes’ actions, motivated by money, are alleged as contrary to his desires and judgments, and in this way he exhibits conduct unbefitting a free citizen.

From the other perspective, treating a free person in whatever way one wishes carries the mark of undue arrogance, since it undercuts their status by undermining their positive freedom. Dealing with the same charge as, and having a similar background to, On a Wound by Premeditation, Lysias’ defense speech Against Simon (3) is the culmination of a protracted dispute over a sex laborer, Theodotos the Plataian, that has led to violence.Footnote ¹⁸ In a display of Lysias’ skill at characterization, the speech negatively portrays Simon as a lawless and hubristic man.Footnote ¹⁹ The description of Simon’s behavior at the outset of the narrative showcases the difference between the litigants in terms of proper treatment of free men:

Set against the foil of the defendant’s honorable behavior toward his love interest, Simon’s actions are vilified as hubristic. Treating a slave as one wishes is a matter of course, but subjecting a free person to the desires of another is unnatural.Footnote ²⁰

There are exceptions when citizens must be subject to another’s will. Certain occasions allow citizens to suffer another’s will rather than impose their own. For instance, in the case of a seducer (μοίχος) caught in the act, the laws allow the woman’s guardian “to treat him in any way he pleases” (ὅ τι ἂν οὖν βούληται χρῆσθαι, Lys. 1.49). Seduction, or unauthorized sex with a female citizen, was a crime that threatened both oikos and polis.Footnote ²¹ It was an affront to the power of the citizen head of household and the legitimacy of citizen offspring. The gravity of the threat called for a penalty equal in severity. While in this passage Lysias refers to the ability of the man to kill the seducer on the spot, the law also permitted a range of other options, including charging him through the courts, holding him for ransom, and physically humiliating him.Footnote ²² The kurios committing these actions would be protected from charges of hubris, wounding, or murder. In other words, he was allowed to treat the free citizen as below his status with impunity. The seducer could bring a suit for illegal imprisonment (ἀδίκως εἰρχήναι) if he claimed to be wrongfully imprisoned for seduction, but,

The penalty for the moichos is, in short, a temporary loss of power and freedom. As Kapparis points out, in this passage “the suspension of his protection from abuse, guaranteed for all free persons, deprived him of some of his most precious civil rights.”Footnote ²⁴ For a moment, the adulterer, rather than himself doing “whatever he wishes,” must suffer like a slave whatever the successful litigant wishes (ὅ τι ἂν βουληθῇ). It is, in essence, a temporary disenfranchisement. The inverse of doing whatever one wishes is not simply lacking the power to bring one’s will to fruition, but suffering another’s will.

The corresponding law concerning female adulterers likewise centers on the loss of free citizen status through submission to another’s will. The punitive measures threaten the woman’s total identity within Athens, “banish[ing her] both from her husband’s house and from the temples of the city” ([Dem.] 59.86).Footnote ²⁵ Because religious activity was a significant portion of women’s civic lives, exclusion from temples and rites was tantamount to partial disenfranchisement.Footnote ²⁶ The consequences for disregarding these sanctions rival those of the convicted male adulterer:

Just as a convicted man is forced to be at the mercy of whatever his captor wishes, a convicted woman must endure whatever anyone wishes if she partakes in forbidden activity. The connection between partial disenfranchisement (atimia) and the passive experience of convicted criminals is therefore common to both the male and female parties to adultery. When the orator Aeschines discusses the same law, he explicitly interprets the lawgiver’s motivation as wishing to “dishonor” (ἀτιμῶν) the woman, a verb that can denote disenfranchisement (1.183).Footnote ²⁸ In addition to ejection from her private and public life, the possibility of corporal punishment is a physical reminder that her citizenship status, and thus her ability to assert autonomy, is revoked. For the moment, her body is no longer inviolable. The terminology used in both laws to describe the momentary subjugation to the will of others recalls the passivity of slaves. These cases are meant to be outliers and stand in contrast to the norm experienced by citizens. As a foil, they spotlight the will achievement that is taken for granted as part of freedom.

The ability to do “whatever one wishes” is also applied descriptively to the city as a whole. In a historical instance, Demosthenes invokes a freedom from Macedon that includes the external freedom of the city and the individual’s freedom within it. Both rest upon the citizen’s freedom to act in accordance with his wishes. After the death of Alexander the Great and before the outbreak of the Lamian War, Demosthenes wrote a letter from exile to be read to the Council and Assembly that encouraged war versus Macedon.Footnote ²⁹ While not a speech, his intended context is that of symbouletic oratory, urging his fellow citizens to action. He emphasizes the present time as a pivotal moment where it is possible to regain Athens’ freedom, which had been stripped by Macedon (τὸν δὲ παρόντα καιρὸν ὁρῶν ἑλομένων μὲν ὑμῶν τὰ δέοντα ἅμα δόξαν καὶ σωτηρίαν καὶ ἐλευθερίαν δυνάμενον κτήσασθαι, Ep. 1.2). Crediting divine intervention with salvation of the city, he claims the gods have given the Athenians “the opportunity to decide anew what [they] want to do” (οἱ θεοί, καλῶς ποιοῦντες, σῴσαντες τὴν πόλιν ἀποδεδώκασιν ὑμῖν ὅ τι ἂν βούλησθ᾽ ἐξ ἀρχῆς βουλεύσασθαι, 1.8). Released by Alexander’s death, the moment where complete freedom may once again be possible is defined by Athens’ renewed ability to do what it wishes.Footnote ³⁰

Isocrates expresses the complementary principle that subjection to another’s will is considered slavery in the international context. While not a delivered speech, the Panathenaicus (12) purports to be an epideictic speech and incorporates elements of symbouletic oratory. In the text, Isocrates returns to criticizing Sparta for handing over the Greek poleis in Asia Minor to the Great King.Footnote ³¹ In his compressed narrative of the events in the decades between the end of the Peloponnesian War and the King’s Peace, he inculpates Sparta for “enslaving” fellow Greeks rather than freeing them (οὓς μὲν ἐλευθερώσειν ὤμοσαν, κατεδουλώσαντο μᾶλλον ἢ τοὺς Εἵλωτας, 104) and becoming their “masters,” courtesy of the Persian king (ὁ βασιλεὺς δεσπότας τῶν Ἑλλήνων κατέστησεν, 106). The language of freedom and slavery is further embedded into the whole affair as Isocrates paraphrases the treaty regarding the Asian poleis. The Spartans “wrote explicitly in the treaty that [the Persian king] should treat [the Greek cities] as he wished” (διαρρήδην γράψαντες χρῆσθαι τοῦθ’ ὅ τι ἂν αὐτὸς βούληται, 12.107), thus invoking the language of submission and enslavement to a foreign sovereign. The Greek cities, rather than living by their own lights, must submit to Persia’s wishes. Being subject to another’s will is a type of disempowerment, indicating lack of freedom.

The association of freedom with doing “whatever one wishes” and slavery with suffering the another’s will presents itself across different oratorical genres and authors. The matter-of-fact statements of positive freedom inherent in free status, recited to various groups of Athenians through oratory, indicate the uncontroversial nature of the idea. Accordingly, the connection could be used rhetorically to champion or impugn a person’s actions and character.

3.2 The Rhetoric of Positive Freedom

In this section, I survey rhetorical uses of positive freedom that assume it is a deeply held value. Whether describing participation in government bodies or defending the status of a citizen, positive freedom is part and parcel of the democratic values in the orators’ rhetorical toolbox. It supports their arguments or detracts from the opponent’s case by providing justification, explaining charges, and sketching characters. From the mundane to the hyperbolic, the disparate instances take Athenians’ autonomy as a presumption that can be manipulated for each speaker’s ends. The passages express a concern with supporting fellow citizens’ positive freedom and connecting it with the potentially contrary value of the rule of law.

In a testament to the significance of positive freedom, Demosthenes deems it valuable enough to serve as supporting justification for a military proposal. Demosthenes’ On Organization (13) is a symbouletic speech treating public expenditures, in which Demosthenes highlights the importance of military strength to the health of the Athenian democracy.Footnote ³² While courts can protect justice within the city, only military force can protect the politeia (13.16); voting cannot bring victory in war, he tells the Assembly, but, “rather, it is those who have defeated the enemy by force of arms who will provide you with power and safety to vote or to do whatever you wish” (ἀλλ’ οἱ μετὰ τούτων κρατοῦντες τοὺς ἐχθροὺς καὶ ψηφίζεσθαι καὶ ἄλλ’ ὅ τι ἂν βούλησθε ποιεῖν ὑμῖν ἐξουσίαν καὶ ἄδειαν παρασκευάσουσιν, 17). Voting and doing “whatever one wishes” are equally key to democracy. Demosthenes leverages the belief that this internal positive freedom is worth defending to canvas support for his funding proposals.

In a more mundane context, speakers in court often highlight procedural instances of positive freedom as a means to ingratiate themselves to the dikasts. Typically, the litigant will defer obsequiously to the jury’s will:Footnote ³³ in polite, but empty, rhetoric, a speaker may allege he will submit to their wishes and cover his speech in their preferred order (e.g., δίκαιον δ᾽ ἐστὶν ἴσως ἔμε … πάντων αἵρεσιν ὑμῖν δοῦναι … τί πρῶτον ἢ τί δεύτερον ἢ τί τελευταῖον βουλομένοις ἀκούειν ὑμῖν ἐστιν. ὅ τι δὴ βούλεσθε, ὁρᾶτε, ἵνα τοῦτο λέγω πρῶτον ὑμῖν. Dem. 23.18–9).Footnote ³⁴ Likewise, the prosecutor in Lysias’ Against the Retailers of Grain (22) claims that he brought the case, albeit hesitantly, because he “considered it shameful to withdraw before you have the chance to vote about their case however you wish” (αἰσχρὸν δ᾽ ἡγοῦμαι πρότερον παύσασθαι, πρὶν ἂν ὑμεῖς περὶ αὐτῶν ὅ τι ἂν βούλησθε ψηφίσησθε, 4). So why has he brought the charge himself? In order to lay the defendant at the feet of the jury so they may exert their will through deciding on a verdict.Footnote ³⁵ Clearly, he is courting goodwill here, but he expresses it in the specific terms of facilitating the dikasts’ autonomy. Demosthenes gestures at this motif when he suggests that if Aeschines were a good citizen, he would assume the proper posture toward his fellow citizens and tell the jury, “do with me what you will!” (ἐμοὶ μὲν χρήσασθε ὅ τι βούλεσθε, 19.104), implying that his lack of character includes a disregard of the dēmos. The Council and Assembly, too, have their volitions expressed and respected in similar language. As one of Demosthenes’ sample prooimia to an Assembly speech proclaims, “it is in your hands to choose whichever proposal you wish” (ἐφ’ ὑμῖν ἐστιν ἑλέσθαι τῶν ῥηθέντων ὅ τι ἂν βούλησθε, Ex. 4.1). The trope already appears in the fifth century. Antiphon’s On the Murder of Herodes (5), a defense speech, takes issue with a procedural aspect of the trial.Footnote ³⁶ Because of this technical error, the defendant argues, an acquittal rather than conviction empowers the jury to act as they please since a more appropriate charge could be brought afterward. The defendant emphasizes the ability of the jury to achieve their will through an acquittal: “if you spare me now, you’ll still be able to do what you want with me then, but if you destroy me, you won’t be able to deliberate about me again” (καὶ φεισαμένοις μὲν ὑμῖν ἐμοῦ νῦν ἔξεστι τότε χρῆσθαι ὅ τι ἂν βούλησθε, ἀπολέσασι δὲ οὐδὲ βουλεύσασθαι ἔτι περὶ ἐμοῦ ἐγχωρεῖ, 90). The defendant presents himself as subject to the jury’s will at the moment and in the future through acquittal. These remarks, calculated to curry favor, recognize the agent’s will, collectively and individually, as part of basic democratic processes.

Speakers additionally recognize the wills of other citizens, not those in the jury or Assembly, and willingly comply with them to illustrate their overall affability. For instance, a defendant declares that he was willing “to hand over to [the prosecutor] whichever of [the slaves] he wishes to take for interrogation under torture” (καὶ παραδοῦναι … αὐτῷ τούτων ὅντινα βούλοιτο λαβὼν βασανίζειν, Dem. 29.38).Footnote ³⁷ As we saw earlier, these claims establish the proper role of a slave as subject to another’s will. But they also indicate the speaker’s acknowledgment of the other litigant’s right to act. Similarly, a prosecutor in an inheritance case alleges he was willing to submit to “any impartial arbitrator which [the defendant] wished” (ἕτοιμος ἦν ἐπιτρέπειν καὶ Κόνωνι καὶ ἄλλῳ διαιτητῇ ἴσῳ, ὅτῳ οὗτος βούλοιτο, Dem. 40.39). The speakers’ willingness to go along with the wishes of others serves the rhetorical purpose of making them seem non-litigious, congenial, and confident in their cases.Footnote ³⁸ The way in which the orators represent this quality is through the speaker’s professed deference to another agent’s action. In these passages, the possibility of the other party doing “whatever it wishes” is not presented adversely. Rather, the invocation of submission to procedural norms and other citizens’ wishes demonstrates popular affirmation of individual autonomy.

Acting as a catalyst for citizen action in all circumstances, not only in their capacity as jurors or legislators, can even be deployed as proof of democratic allegiance. The pseudo-Lysian For Polystratos (20) is a defense speech for a man indisputably involved in the Four Hundred as a registrar (καταλογεύς). As part of excusing the defendant’s actions, the speech defends people who stayed in the city under the oligarchy but acted neutrally to avoid exile or death (8–10). The speaker argues that, when citizens cannot achieve their true will, nonharmful action is the next best option. Pseudo-Lysias hangs part of the defense on using Polystratos’ empowerment of his fellow citizens as evidence that he is a loyal democrat:

In the midst of oligarchy, when regular citizen action overall is limited, Polystratos is presented as allowing citizens to do what they wish, albeit in the narrow scope of enrolling in the 5,000. His willingness to allow Athenians to become citizens solely on their wish is intended to attest to his democratic credentials.

Conversely, disregarding citizen positive freedom is harnessed by the orators to denigrate their opponents. Athenian procedure, as explored in Chapter 2, was structured to provide wide latitude for citizens to act within it. Demosthenes features positive freedom in his jurisprudential arguments in Against Timokrates (24). Rather than conflicting with the rule of law, positive freedom is married to the importance of the laws. In 353/2, Timokrates proposed a law that allowed state debtors to avoid going to prison until the ninth prytany of the year if they provided sureties. Diodoros, for whom this speech was written, brought a public suit for inexpediency (γραφὴ νόμον μὴ ἐπιτήδειον θεῖναι) against Timokrates.Footnote ³⁹ The speech opens with a common attention-topos in the prooimion that emphasizes how the case is important and worth the jury’s time, but that also, less typically, foregrounds the “philosophical and political” themes of the speech on the role of the laws in creating and protecting democracy.Footnote ⁴⁰ Demosthenes claims that no one would attribute Athens’ freedom and democratic government to anything except the laws (τῶν γὰρ ὄντων ἀγαθῶν τῇ πόλει καὶ τοῦ δημοκρατουμένην καὶ ἐλευθέραν εἶναι ὡς ἄλλο τι τῶν νόμων αἰτιώτερόν ἐστιν, οὐδ᾽ ἂν ἕνα εἰπεῖν οἶμαι, 24.5). Doing “whatever one wishes” will accordingly be interpreted against the background of the importance of the laws and the citizenry’s relationship to those laws.

Demosthenes frames the existing laws as protecting the will of the people collectively and individually and, thus, as the backbone of democratic practice. His exegesis on nomothetic procedure emphasizes several aspects of the process that Timokrates has disregarded. After a direct quotation of the procedural laws, they are described as having nothing “oligarchic” (ὀλιγαρχικόν, 24) but instead they conduct the process “democratically” (δημοτικῶς, 24).Footnote ⁴¹ In particular, the layers of accountability to citizens are central to this designation.Footnote ⁴² The decision to introduce a new law is up to the citizens (“you all,” ἐφ’ ὑμῖν, 25) and, if they decide to do so, another meeting of the Assembly is used to determine the scope of the lawmaking committee (25). Then, the proposed laws must be publicly posted “so that whoever wishes may inspect them” and judge their usefulness (ἵν᾿ ὁ βουλόμενος σκέψηται, 25).Footnote ⁴³ Demosthenes then outlines how Timokrates directly contradicted these statutes since he never exhibited his law and so did not “allow anyone who read it and wished to lodge an objection to do so” (οὔτ᾿ ἔδωκεν εἴ τις ἐβούλετο ἀναγνοὺς ἀντειπεῖν, 26). Positive freedom here is integral to the legislative process, designated by the uses of boulomai in the language central to democratic procedure. Embedded in this use is the will of citizens front and center, both collectively (in the various steps before the Assembly) and individually (in taking up the chance to read the law and potentially oppose it). Throughout this process, the laws preserve rather than diminish a citizen’s ability to act upon his will. Demosthenes rebukes Timokrates’ alleged missteps for cutting out the role of other citizens, and thus acting illegally. The opposition of good laws, which protect autonomy, to a bad lawmaker, who subverts it, is underpinned by a political point of view where the people should have the power to do what they wish.

Since democracy is not anarchy, however, the orators do recognize that the laws can limit the ability of citizens to do what they wish. The context of the courtroom presses questions of legality to the forefront, but the laws do not disregard individual autonomy as a rule. Prosecutors often underscore defendants’ flouting of the laws as harmful because it disregards other citizens, gesturing to their positive freedom. In a hyperlegalistic set of arguments intended to demonstrate a proposed law’s repugnancy to multiple statutes, Demosthenes cites a law that prohibits reinstating disenfranchised men or remitting their debt without a preliminary vote for special permission (ἀδεία) in the Assembly (24.45).Footnote ⁴⁴ Not even once an applicant has completed these stringent steps and received permission, Demosthenes tells the court, “does the law allow him to act as he wishes, but as the Council and Assembly decide” (καὶ ὁ μὲν νόμος, οὐδ᾿ ἐπειδὰν τὴν ἄδειαν εὕρηταί τις, ἔδωκεν ὡς ἂν βούληται πράττειν, ἀλλ᾿ ὡς ἂν τῇ βουλῇ καὶ τῷ δήμῳ δοκῇ· 47). While this is a case in which a citizen is explicitly denied the ability to do what he wishes, it is not a prohibition on autonomy overall. It is an expressly circumscribed situation where the law orders specific action. In this case, requesting immunity, followed by discussion and decision by the Boulē and Ekklesia. Other statutes, such as all the procedural regulations or the law on moicheia or naturalization decrees, in fact prescribed one to do what he wished or allowed people to enact them in the way they wished.Footnote ⁴⁵ That this statute does not permit one to act “however one wishes” underscores a contingent factor of a particular law, not all public and private affairs or laws in general. Ultimately, the established statute volleys the control back to the people in the Assembly and Council. The explanation of laws’ control over particular actions, especially as an extension of the dēmos, is complementary to citizens’ positive freedom.

Isocrates, however, disapproved of the link between free citizen status and acting freely. Scholars have cited him to argue that Athenians did not praise positive freedom or that it was a critique invented wholesale by detractors rather than a democratic value.Footnote ⁴⁶ His work, of course, must be read in light of his overall conservative sentiments and his likely elite audience. Although not all his works are oratory in the strict sense, his influence on rhetoric and the framing of many works as part of an oratorical genre permit his treatment alongside the orators. His core disparagement of fourth-century democratic freedom appears in his Areopagiticus (7). The speech, however, is aimed at changing the current state of affairs rather than reflecting them. In this way, like Plato’s work, it is a criticism of current practices and reveals those existing ideologies through its opposition to them. The complaint against unbridled freedom comes during his lengthy praise of Athens’ ancestral democracy. In this passage, Isocrates ruminates on the mechanisms by which the earlier Athenians achieved what he deems the most balanced rule of the state. In contrast to the unsound practices of his contemporary democracy, the ancestral constitution was not one which “educated the citizens to regard intemperance as democracy, lawlessness as freedom, free speech as equality under the law, or the license to do everything as happiness” (ἐπαίδευε τοὺς πολίτας ὥσθ᾽ ἡγεῖσθαι τὴν μὲν ἀκολασίαν δημοκρατίαν, τὴν δὲ παρανομίαν ἐλευθερίαν, τὴν δὲ παρρησίαν ἰσονομίαν, τὴν δ᾽ ἐξουσίαν τοῦ πάντα ποιεῖν εὐδαιμονίαν, 7.20).Footnote ⁴⁷ Traced back to Solon, this “ancestral democracy” notably limited the role of the dēmos and its ability to act. Isocrates claims that the earlier democracy recognized that not all citizens were equal (21–2) and did not have election by lot (22). Further, while the dēmos, he says, was like the monarch of the state (ὥσπερ τύραννον, 26) insofar as it appointed magistrates, punished criminals, and judged disputes, it ceded actual office to men of leisure. In his view, the policies by which those with the capacity to rule do so through holding office while the people hold power by being empowered over officeholders (κύριον, 27–28) give rise to the most democratic society. These critiques are in reference to his ideal moderate democracy and accordingly portray contemporary Athenian values negatively. As he rails against the vices of democrats (“intemperance,” “lawlessness”) linked to their desire to do what they wish, Isocrates underscores and distorts to his purpose the democratic value of positive freedom. He deliberately foregrounds lawbreaking (τὴν παρανομίαν) and subsumes the language of volition under doing every possible thing (ποιεῖν πάντα).

Through the lens of Isocrates’ conservatism, fourth-century definitions of democratic values are perverse in part because they give greater rein to the average individual citizen. Isocrates locates the mechanism by which ancestral balance was accomplished in the Areopagus and the moral code they imbued in the polity:

The language of volition comes into play as Isocrates outlines how controlling the citizenry is key to a successful constitution. In Isocrates’ political and moral hierarchy, average citizens, even once they have reached manhood, are not to be trusted to act upon their wills. They are to express their wishes in the aforementioned prescribed arenas: election of magistrates, scrutiny of officials, and legal judgment. In these ways, citizens can share in the city, but they cannot share in the Areopagus and its oversight (μετασκεῖν). Rather than the average citizen in the dēmos as the center of power in the politeia, it is the elite Areopagus that oversees the city. The devaluation of the Areopagus is seen as a symptom of fourth-century democrats championing each citizen’s will and, thus, confusing license with happiness and democracy. Positive freedom for Isocrates should be circumscribed for the average citizen, while wealthy ruling elites, whether magistrates or kings, enjoy fuller freedom and responsibility.Footnote ⁴⁸ Thus, throughout his imaginary speeches to his fellow Athenians, a citizen doing “whatever he wishes” is marked as damaging and unwanted. Like his institutional critiques, Isocrates’ rhetorical use of positive freedom as a disparagement is intended to combat its prevalence in popular discourse. While he may disagree with the democratic move to permit positive freedom to the individual, Isocrates’ use bears out the link between the language of achieving one’s desired outcome and freedom; a link consistent across the oratorical corpus.

The prevalence of doing “whatever one wishes” phrases in rhetorical arguments indicates its general perception as a good. It is used as a commonplace descriptor of democratic procedure as well as an established quality of citizenship that can be leveraged for the case at hand. The orators even create compatibility between positive freedom and obedience to the laws. Just as facilitating citizen action is used to characterize litigants as good in a democracy, so is inhibiting citizen action used to characterize litigants as bad. As we shall see further in the exploration of oligarchy in Section 3.3, instances where doing “whatever one wish” seems undesirable are linked to the unaccountable abuses of the oligarchy.

3.3 The Negative Paradigm of Oligarchy

Despite positive freedom’s status as a good within Athenian democracy, there are individuals singled out critically in forensic oratory for acting “however they wish.” In a paradigmatic example from Lysias’ Against Theomnestos I (10), a prosecution for slander, the plaintiff reformulates the verdict as whether the defendant will pay the penalty or “whether he alone of all the Athenians will receive special exemption to do and say anything unlawful he wishes” (πότερον δώσει δίκην, ἢ τούτῳ μόνῳ Ἀθηναίων ἐξαίρετόν ἐστι καὶ ποιεῖν καὶ λέγειν παρὰ τοὺς νόμους ὅ τι ἂν βούληται, 3). The modification “unlawful” (παρὰ τοὺς νόμους) is an important marker.Footnote ⁴⁹ Rather than placing the law in opposition to positive freedom, this formulation marks an agreed-upon boundary to permissible action. Likewise, in a more restricted sphere of action, a speaker in an inheritance dispute claims “if an adopted son is permitted to adopt whomever he pleases contrary to the law, inheritances will never be passed on to kinsman” (εἰ δ᾽ ἔσται τῷ εἰσποιηθέντι παρὰ τὸν νόμον εἰσποιεῖν ὃν ἂν βούληται, οὐδέποτε τοῖς γένεσιν αἱ κληρονομίαι δοθήσονται, [Dem.] 44.63). He marks both the illegality of the action and the effect on others, targeting the jurors’ likely concern for their own position. Acting “however one wishes” is not in itself technically illegal or even ideologically undesirable. This mode of action, bringing one’s will to fruition, is only unfavorable in light of contextualizing circumstances. Since it can be a simple expression of the autonomy of an Athenian citizen, it must be clearly signaled when it is used to perform something harmful or illegal. Specifying that the desired action is clearly contrary to the laws is one such modifier.Footnote ⁵⁰

Bad intentions are also sufficient to contextualize a citizen’s free action as harmful. An early speech in Demosthenes’ public oeuvre (c. 359), On the Trierarchic Crown (51) presents his opponents as wishing to do harm to Athens, a clearly unacceptable instance of acting as one wishes.Footnote ⁵¹ Demosthenes appears to have been awarded a crown for equipping and presenting his trireme first among all the trierarchs, but a pair of trierarchs have disputed the award and claimed it for themselves instead.Footnote ⁵² Demosthenes’ defense tactics include not only proving that there were deficiencies in the syntrierarchs’ service but also that they acted malevolently toward the citizens and the state. They have taken what should be a commendable citizen activity, fulfilling the most expensive liturgy, and blighted it. In particular, they approached their duties greedily, intending to profit from their service and damaging Athens in the process (e.g., 51.13–4). According to Demosthenes, they were emboldened to act thusly because the Council had been too soft on previous perpetrators:

Doing “whatever they wish” is not a neutral description of will achievement in the passage. Demosthenes has created a portrait of the syntrierarchs as men who are harmful to Athens. Thus, what these types of men wish (τοῖς βουλομένοις) is linked by Demosthenes to turning a profit at the city’s expense and explicitly categorized as “doing wrong” (ἀδικεῖν). Such people are bad actors – their character colors all that they do at the expense of other citizens. Just as their liturgies or legal advocacy can be disparaged, both normally legitimate features of citizenship, so, too, can their expression of will be presented as incorrectly employed.

A more pertinent rubric by which the orators expect their audiences to judge actions originates from notions of oligarchy and its harm to democratic citizens. Lawlessness and self-interest are already associated in democratic thought with oligarchy and tyranny, and this link provides the premise for linking illegal action with a host of other oligarchic characteristics. In a prosecution speech, Aeschines furnishes an extended reflection on the role of the laws in different constitutions:

On these terms, illegal activity is a threat to each citizen and to democracy itself. Of course, this is a functional fulcrum for a case that rests largely on what might be categorized as a victimless crime.Footnote ⁵⁴ Nevertheless, the stereotypes of oligarchy formed a nexus of easy references for criticizing opponents as threats to democracy. Nor is Aeschines an outlier. As Mitchell has shown, oligarchy was generally amalgamated with tyranny.Footnote ⁵⁵ The tyrant was ultimately unaccountable and “ruled in his own interest, stood outside the law, inhibited equality, and prevented freedom. The tyrant represented everything democracy did not,”Footnote ⁵⁶ and so oligarchs took on the same deficiencies.

Just as tyranny was imagined as an enslavement of the polis, so, too, was oligarchy associated with enslavement. In the symbouletic speech On the Freedom of the Rhodians (15), for instance, Demosthenes identifies Athens’ very constitution and freedom (ὑπὲρ δὲ τῆς πολιτείας καὶ τῆς ἐλευθερίας, 17) as what is at stake in wars against oligarchic cities as opposed to democratic ones. While democracies’ inhabitants are free men (18), oligarchies in general are a form of slavery (ταύτην τὴν δουλείαν, 19).Footnote ⁵⁷ When, why, and how, then, oligarchs are described as acting “however they wish” illuminates the criteria necessary to code other instances as antidemocratic and anti-freedom. I will show that oligarchs should not achieve their wills, despite their citizen status, because of who they are and whom their actions injure. Self-interest, the upending of law, active hindrance to others’ freedom, and lack of accountability characterize oligarchic behavior. Through these characteristics, the orators make manifest the oppressive nature of the actor’s will as an attack on another citizen’s freedom. We will see that acting freely becomes altogether dangerous to others’ freedom when wielded by an oligarchically inclined, unaccountable person.

Rather than respect the freedom of other citizens, oligarchs are shown to impose their unchecked will over the rest of the dēmos. Lysias uses this oligarchic feature to signal the beginning of the end for democracy after the Peloponnesian War. In his prosecution of Eratosthenes at his audit (euthuna) shortly after the fall of the Thirty, Lysias lingers on the moment when democracy slid into despotic oligarchy in order to highlight Eratosthenes’ role in the affair.Footnote ⁵⁸ After the loss at Aegospotami, but before the Thirty’s installation, a set of five ephors was established at Athens, which was modeled loosely on those in Sparta. The ephors are described by Lysias as having a position with unmitigated powers:

In this proto-oligarchy, the ephors’ powers replace the ability of citizens to legislate and to elect officials, while the principles of voluntarism and lot are superseded by whatever the ephors wish to accomplish. The ephors themselves are subject to no oversight by the dēmos. In essence, they become the only citizens who can successfully bring desires to fruition. Doing “whatever one wishes” is surely portrayed as detrimental to democracy in this passage, but it is marked explicitly as limiting the powers of other citizens. Both who is enacting their wishes (oligarchs) and whom it affects (all the citizens) are important features that contextualize this type of action as perverse and antidemocratic. Furthermore, the ephors do not have to answer to the rest of the dēmos.Footnote ⁵⁹ Since they are unaccountable, it breaks the circuit that empowers all the citizens; the dēmos no longer has functional positive freedom.

In the same speech against Eratosthenes, Lysias alleges Eratosthenes’ supporters will vouch for him in order to extend the amnesty since they believe that “they themselves will have virtual impunity for what they did and might wish to do in the future” (ἡγούμενοι πολλὴν ἄδειαν σφίσιν ἔσεσθαι τῶν <τε> πεπραγμένων καὶ τοῦ λοιποῦ ποιεῖν ὅ τι ἂν βούλωνται, 12.85). The entire speech is at pains to show that these men are villains whose actions affect citizens in such a way as to limit their freedom. By wanting an extended amnesty, they wish to avoid the accountability at the heart of democracy. Their will, signaled by the boulomai-phrase, should not be achieved. In the same work, however, Lysias asks the jurors, “how is it not shameful for you to leave unused any penalty that anybody wishes to impose on them?” (πῶς οὐκ αἰσχρὸν ὑμῖν καὶ ἡντινοῦν ἀπολιπεῖν, ἥντινά τις βούλοιτο παρὰ τούτων λαμβάνειν; 12.84). The will of proper democratic citizens is not a threat and therefore should be achieved.Footnote ⁶⁰ These different uses demonstrate that the phrase to do “whatever one wishes” does not evoke a general seditious idea on its own.Footnote ⁶¹ In the case of Eratosthenes’ cronies, however, it regards their specifically oligarchic desire for extralegal, unaccountable power, and so carries a pernicious sense.

Oligarchic qualities can be attributed to non-oligarchic individuals, illuminating how doing “whatever one wishes” must be intentionally coded as undesirable. In this context, doing “whatever they wish” is harmful because the actors are bad individuals with explicit intentions to strip other citizens of their freedom and avoid accountability. Like all of Lysias’ extant dokimasia speeches, the misnamed Defense Against Charges of Subverting the Democracy (25) focuses on the prospective officeholder’s behavior under the Thirty.Footnote ⁶² The defendant is an unnamed wealthy man who is suspected of oligarchic sympathies since he stayed in the city during their reign. Lysias crafts his defense as an apology for anyone who stayed in the city, and who perhaps even had oligarchic affiliations, but was detached from the extreme position and violence of the Thirty.Footnote ⁶³

As part of his strategy, he defines a person as oligarchic through their actions against fellow citizens rather than their location during the regime or even their overt political alliance. In this way, he portrays the speaker as never harming other citizens and being of service to the democratic regime.Footnote ⁶⁴ The shift from political affiliation to individuals’ behavior allows Lysias to attack his opponents as oligarchic in temperament even though they participated in exile with the rest of democrats. Lysias transfers the negative qualities of oligarchic sympathies from his client onto the prosecution:

Their greed for money and unlimited power, untethered from the rest of the city by any accountability, is oligarchic, made all the worse by acting thusly under a democracy.Footnote ⁶⁵ They avoid audits, assume mock judicial power, and act as if their wills alone govern the polity. As a point of political commentary, the passage connects the judicial power of citizens and the role of accountability to the protection of democracy as a whole. Without these safeguards of citizen power, wrongdoers are unpunished and the city is not free. Rather than a condemnation of the positive freedom, this is marked as an abuse of doing “whatever one wishes.” The prosecutors have taken the power allotted to the democratic citizen through his freedom and misused it as domination, like oligarchs. Despite claims to be democratic (33), their oligarchic action is revealed as unaccountable and deleterious. The priority is preservation of citizen positive freedoms, summed up at the end of the passage. These types of actions prevent the city as a whole from being free.

Throughout the extant speeches, the orators highlight the threat of oligarchy to the freedom of the city and the citizens. The Thirty, in particular, provided a model for the most negative oligarchic qualities. Since oligarchy was an exemplar of bad action and intention, this framework is employed even when oligarchs are not directly involved. Accordingly, the focus on oligarchy colors the undesirable instances of doing “whatever one wishes.” Actions without accountability and those that limit other citizens’ ability to act are associated with oligarchic behavior. Rather than demonstrating a critique of positive freedom as a democratic value, the context makes that particular person’s freedom of action disagreeable.

3.4 Unworthy Actors and Bad Consequences

In court cases, litigants are engaged in a contest to devalue their opponents’ actions and magnify their own. It is no surprise that the opposition is presented as acting against the interest of the people and the city. Even actions which might otherwise be meritorious are used to undercut an opponent’s standing in the eyes of the jury. The rhetorical framing of a citizen’s activities is constructed from the assumed prejudices and beliefs of the jury. Drawn from shared ideology, the oligarchic paradigm outlined in Section 3.3 serves as a guide to interpret other passages that at first appear to show positive freedom as a vice. Within this framework, the orators fashion characters that are unworthy of free action or that use that action to the detriment of other citizens. What is argued as at stake is the very freedom that bad citizens misemploy. Positive freedom is not in itself dangerous, but maleficent citizens are shown to misuse their abilities by breaking the law, skirting accountability, imposing their wills inappropriately, and, ultimately, limiting the autonomy of others. Whether they are accused of oligarchy or not, these features shared with oligarchs render their actions offensive.

Putting individual gain before Athens’ well-being is linked to an antidemocratic limitation on others’ positive freedom. In On the Trierarchic Crown (51), Demosthenes includes the defendants’ supporting speakers under the rubric of those whose actions are dangerous because they abuse their citizen privileges. While these co-speakers allegedly joined in prosecuting previous trierarchs for leasing out their liturgies, they now advocate crowning the defendants who have done the same.Footnote ⁶⁶ Demosthenes ascribes the contradiction to their greed and their belief that they have the license “to do whatever they want and say whatever they want to you” (ποιεῖν ὅ τι βούλονται καὶ λέγειν παρ’ ὑμῖν, 51.16). The speakers’ excessive entitlement is linked to a disregard of other citizens’ abilities:

Participation in public affairs was normally model citizen behavior, but the co-speakers engage in politics in a sordid fashion. While democracy is the very constitution in which “any man who wishes may speak,” an expression of the citizens’ positive freedom, these men treat public action as a “private” good for themselves alone. In Demosthenes’ telling, these supporters put their positive freedom in direct competition with others’. Their desires do not result in an ideal coexistence of wills but create a contentious situation between citizens. The further implication is that their actions exhibit oligarchic tendencies. Demosthenes claims that they call any other citizen who speaks freely “shameless” (ἀναιδῆ) in order that they themselves are regarded as “fine and good men” (καλοὺς κἀγαθούς, 19), a designation with aristocratic overtones. In short, they act as if they control the city’s affairs, “setting themselves as wielding greater power than your decisions” (κυριωτέρους αὑτοὺς τῶν ὑμετέρων δογμάτων καθιστάντες, 22).Footnote ⁶⁷ What these men “wish,” then, is akin to running Athens like an oligarchy, which negates the freedom of others.

The conflict between the jury’s will and another litigant’s will factors into the presentation of each doing “whatever they wish” more broadly. Throughout On the Murder of Herodes (5), a case where the circumstances are in dispute and witnesses are in disagreement, one of Antiphon’s tactics is to characterize the prosecutors as unscrupulous people hoping to assert their will over the jury’s:

Antiphon equates a conviction with sycophants imposing their wills in the current situation and in future ones instead of the jury doing so.Footnote ⁶⁸ What the sycophants “wish” (ἃ βούλονται) is superficially Euxitheos’ conviction, but the consequence would be other defendants avoiding court and so disempowerment of the citizenry (τὸ ὑμέτερον πλῆθος).Footnote ⁶⁹ This framing acknowledges the will of the jury, and by extension, each citizen therein. The passage suggests that when the wills of different citizens are in conflict, those that are ill-disposed to the rest of the citizen body should fail to attain their goal.

In Against Alcibiades I and II (14, 15), Lysias portrays what amounts to a victimless crime as directly affecting the power and freedom of individual citizens owing to its oligarchic character. Alcibiades, the son of the controversial general by the same name, is accused of failing to serve in the hoplite forces and instead mounting with the cavalry, although he had never undergone the proper dokimasia for the cavalry (14.7–10).Footnote ⁷⁰ Lysias alleges, in fact, that Alcibiades will argue that “he did no harm to the city” (οὐδὲν ἠδίκει τὴν πόλιν, 8). The prosecution’s strategy is to conflate the interests of the people and the law, intertwining protecting citizen action with preservation of the laws. Other soldiers, unlike Alcibiades, served in the infantry because of their wholehearted patriotism and respect for fellow citizens and the law (δεδιότες ὑμᾶς καὶ τὸν νόμον, 10). In contrast, “Alcibiades dared to join the cavalry, not because he was loyal to your democracy … or had been approved by you at his dokimasia, but in the expectation that the city would not be in a position to punish criminals” (Ἀλκιβιάδης δ’ ἐτόλμησεν ἀναβῆναι, οὔτε εὔνους ὢν τῷ πλήθει … οὔτε ὑφ’ ὑμῶν δοκιμασθείς, ὡς οὐκ ἐξεσόμενον τῇ πόλει δίκην παρὰ τῶν ἀδικούντων λαμβάνειν, 10–1). Alcibiades’ actions depend on Athenians’ disempowerment since his actions were knowingly and purposively outside of democratically established legal limits. After this framing, Lysias articulates what is at stake when men like these get away with crimes: “if everybody is allowed to do whatever he likes, there will be no point in having laws, or meeting as an Assembly, or electing generals” (εἰ ἐξέσται ὅ τι ἄν τις βούληται ποιεῖν, οὐδὲν ὄφελος νόμους κεῖσθαι ἢ ὑμᾶς συλλέγεσθαι ἢ στρατηγοὺς αἱρεῖσθαι, 11). The laws are folded into other modes of citizen action. Alcibiades doing “whatever he wishes” in effect erases the ability of other citizens to do what they wish: their judicial, legislative, and elective powers are at stake. These are the public aspects of positive freedom. Normally, ordinary citizen expression of will does not negate the freedom of others. Rather than referencing doing “what one wishes” as a bad quality in itself, Lysias presents Alcibiades’ specific action as detrimental to others’ positive freedom and carefully codes it as oligarchic in order to characterize it as injurious. Just as oligarchs force their own wills upon the city, Alcibiades restricts democracy through his opposition to other citizens and their laws. His evasion of accountability, namely skipping the cavalry dokimasia, further enhances the oligarchic portrait (15.6–7). By avoiding the scrutiny, Alcibiades blatantly disregards the laws and gives himself as a private citizen a power which not even elected officials have (15.11). Illegal activity thus is never a victimless crime, since it always threatens citizen freedom and may nudge the politeia toward oligarchy.

The intertwining of citizen will and the law allows for arguments even about jurisprudence to be formulated from the principle of positive freedom. Demosthenes’ parsing of legal language in Against Timokrates (24) showcases the value of positive freedom in legislation. As we saw, he calls attention to how “good” laws protect positive freedom. Timokrates’ law, on the other hand, is framed as limiting freedom. In a bid to show that Timokrates’ law is repugnant to several extant statutes, Demosthenes produces a tendentious argument referencing a law that prevents anyone from supplicating on behalf of a convict (50). He reasons that the new law contravenes it, since Timokrates’ law not only “supplicates” for his convicted friends, but “orders” that they be let out of prison, seeing as laws “order” (προστάττουσιν, 53) rather than “beg” (δέονται), like suppliants do.Footnote ⁷¹ Demosthenes caps off the passage by telling the jurors, “in cases where you have decided that requests must not be granted, it would be shameful for you to allow what some men wished to be carried out against your will” (καὶ γὰρ αἰσχρὸν περὶ ὧν μηδὲ χαρίζεσθαι δεῖν ὑπειλήφατε, περὶ τούτων ἀκόντων ὑμῶν ἐᾶν ἅ τινες βούλονται πραχθῆναι, 53). That criminals will be able to do “what they wish” owing to the new law, while other citizens are plainly “unwilling,” is problematic. The effectiveness of the rhetoric depends on the jury identifying with some loss of autonomy with the new law, an undesirable outcome that challenges the jurors’ positive freedom.

The very language of doing “whatever one wishes” in legal statues must be carefully employed so as to protect citizen freedom. Demosthenes’ jurisprudential critique is that Timokrates’ law gives power to a convict that is not even allotted to archons and disempowers the verdict of the jury (54–5). He takes the law to task for using the phrase inappropriately, resulting in magistrates serving at the whim of offenders, since “Timokrates proposes that, if sureties are nominated, the Commissioners shall be obliged to submit their names, and adds the phrase, ‘whenever any debtor wishes’” (ὁ δ᾿ ἔγραψε τοῖς προέδροις ἐπάναγκες, ἐάν τις καθιστῇ, προσάγειν, καὶ προσέγραψεν “ὁπότ᾿ ἄν τις βούληται,” 55). The fixation on this clause is marked because similar clauses are unproblematically found in other laws, as we have seen.Footnote ⁷² Demosthenes takes issue not with positive freedom in general, but with who is being allowed the range of action (convicts) and who suffers as a result (the law and other citizens). He later returns to the clause as evidence that “throughout his entire law [Timokrates] thinks it necessary to protect the guilty man convicted in your courts. By permitting him to provide sureties ‘whenever he wishes,’ he made it possible for him to avoid payment and imprisonment” (παρὰ πάντα τὸν νόμον οἰόμενος δεῖν σῴζειν τὸν ἠδικηκότα καὶ τὸν ἐν ὑμῖν ἑαλωκότα. δοὺς γὰρ ὅταν βούληται τὴν κατάστασιν αὐτῷ τῶν ἐγγυητῶν, ἐπ᾿ ἐκείνῳ πεποίηκε μηδέποτ᾿ ἐκτεῖσαι μηδὲ δεθῆναι, 84). The dichotomy is between the guilty man and the rest of the Athenians, embodied by those dikasts who have convicted him. In these terms, will achievement is a zero-sum situation. Attending to the language of the law, Demosthenes is specific in the ways in which someone can use this clause to circumvent proper procedure, robbing fellow citizens of their power. The clause is not singled out as simply harmful because of the idea of unrestricted action, but it is unrestricted action contrary to extant laws and citizen will (expressed through the conviction) performed by an unworthy agent. In the political and legal posturing evident throughout Against Timokrates, Demosthenes reorients the doing “whatever one wishes” phrase by situating certain instances as unusually inimical to Athenian interests.

While the orators do accuse their opponents of acting “however they wish” as a form of disparagement, the notion of positive freedom is being protected rather than attacked. That is, these actions are singled out as emanating from an unsavory character, who either unequally places his will above all others or who more directly strips away the power of other citizens to act upon their own desires. Oligarchs are the exemplars of bad actors, but any individual could be cast in the same rhetorical light. Motivating these attacks is the democratic ideal of positive freedom as a good for the average citizen.

3.5 Conclusion

The orators’ speeches were intended to convince diverse audiences of their point of view and often made use of democratic ideals as a pivot for their arguments. A dominant principle in these texts is preservation of positive freedom. By examining instances of positive freedom expressed as doing “whatever one wishes” alongside uses of “free,” a nuanced picture of positive freedom emerges. While this notion can be presented in a negative light, living freely is not in itself negative. Other scholars attribute the apparent changing valuation of doing “whatever one wishes” to differences between the public and private spheres or between oratorical genres. Instead, I have argued that it is necessary to bring into focus who is doing “whatever they wish” and whom they affect. The underlying ideology of eleutheria as positive freedom is unchanged, but Athenians were not anarchists and thus limits had to be reckoned with in practice. The way the limits are imagined further reveals the centrality of positive freedom to Athenian democracy. In particular, the impediment of another citizen’s ability to do what he wishes, either as an individual or as part of the dēmos, renders it worthy of condemnation. Bad characters, true oligarchs, and lawbreakers can also be rebuked as undeserving of positive freedom and abusive of the power which attends it. Doing what one wishes simpliciter is not a byword for antidemocratic action, but it gains such a connotation because of the particular actors or victims of the actions. The power engendered by such freedom is examined in the following chapter.