Socrates’ Conscience and Executive Order 13769

The extraordinary actions of the nascent Trump presidency are provoking some striking acts of conscience.  Sally Yates was sacked from her job as Acting Attorney General by President Trump because she would not permit the Justice Department to defend Executive Order 13769 in court.  In a letter to her staff, she wrote that she wasn’t convinced that a defence of the executive order was consistent with the department’s ‘solemn obligation always to seek justice and stand for what is right’.  Nor was she convinced that the executive order was lawful.   And just yesterday, the Speaker of the UK House of Commons, John Bercow, took the highly unusual and controversial step of very firmly stating his opposition to the idea of President Trump making an address to Parliament during his prospective State Visit. He presented his rejection of Trump as a matter of political-constitutional conscience: ‘I feel very strongly that our opposition to racism and to sexism and our support for equality before the law and an independent judiciary are hugely important considerations in the House of Commons.’  House of Commons Speakers aren’t supposed to pass political comment or take a position in this way.

In the Classical Athenian democracy there were also moments when individual citizens took a conscientious stand in defence of the rule of law.  The classic example was when eight generals commanding the Athenian navy at the sea-battle of Arginousae (406 BCE) stood accused of failing to recover their own dead and dying sailors from the water.  The philosopher Socrates happened to be ‘chairman’ of the assembly on the crucial day of the debate about how the generals should be tried.  A citizen only got to be chairman for one or two days in an entire lifetime (if at all). Chairmen rotated from within each of ten tribal groups of fifty ‘presiding officers’ (prytaneis) who were picked by lot each year. Each group of ‘presiding officers’ took turns in maintaining the city’s permanent government and acted as an executive committee to the Council and Assembly.

From admittedly partial accounts of this momentous day in Plato and Xenophon, we learn that a politician named Callixenus proposed that the assembly itself should vote right now on the guilt or innocence of all the generals at one fell swoop.  On the previous day, the assembly had heard the generals’ brief defence that bad weather had prevented recovery of the sailors.  Riding a tide of popular grief and anger against the generals, Callixenus argued that it was now time to decide their collective fate with one vote and without further debate.  If found guilty, they would all be put to death.  A chap called Euryptolemus and several others opposed the motion on the grounds that it was illegal to conduct a trial in this way: the generals should each be tried separately via due process.  But they withdrew this objection after another politician proposed that the same penalty applied to the generals also be applied to them. Xenophon tells us that many in the assembly crowd shouted that ‘it was insufferable that the people (dēmos) should not be allowed to do whatever it wanted’ (Hellenica 1.7.12).   The ‘presiding officers’ were also intimidated into withdrawing their initial refusal to put Callixenus’ proposal to a vote.  Only Socrates himself held out, declaring that he would ‘do nothing that was contrary to the law’ (1.7.15).

Despite more impressive manouverings from Euryptolemus, Callixenus’ original motion was finally carried by the assembly.  Six generals were found guilty and executed. Xenophon tell us that the Athenians soon came to regret this decision, and charges were brought against Callixenus and his fellow travellers. These men escaped Athens before they could be brought to trial.

If Plato is to be believed, when the philosopher himself was later put on trial on charges of impiety and corrupting young men, he reminded the citizen-jury of his principled stand on that day (Apology 32b):

At that time I was the only one of the presiding officers who opposed doing anything contrary to the laws, and although the orators were ready to impeach and arrest me, and though you urged them with shouts to do so, I thought I must run the risk to the end with law and justice on my side, rather than join with you when your wishes were unjust, through fear of imprisonment or death.

Of course, the reader is meant to infer here that Socrates’ own trial and execution were another example of the Athenian democracy acting on ‘unjust wishes’.

Not long after the execution of the generals, the Athenians brought in measures to ensure that no assembly decree could override laws which were designed to have general and/or permanent validity. This wasn’t just about preventing a repeat of the Arginousae affair.  Even before that, in 411 BCE, the oligarchy of the Four Hundred was briefly set up when a meeting of the democratic assembly was duped into voting itself out of existence!

What can we learn from all of this?  Well, when I first thought up this post, I thought I was going to end on the importance of listening to one’s conscience and doing the right thing. But this is very easy to say and much harder to act upon when one’s own job, freedom or life are at stake.  Socrates’ stand didn’t even save the generals from an illegal trial and execution.  Perhaps the real value of such historical acts of conscience is to remind us that the ‘popular will’ or a majoritarian decision are not necessarily aligned with justice and the rule of law.  A democratic mandate to do x does not automatically make x fair, legal or just.  And the very fact that individual consciences can so easily be sidelined or even quelled through intimidation reminds us how important it is to have institutional safeguards against the possibility of democratically-sanctioned illegality and injustice.