La violence de l’État. La condamnation à mort sans jugement dans la Grèce ancienne

It is stated in Greek sources, with some frequency, that condemning to death a citizen without subjecting it to a regular process (akritos, "without judgment") is an unconstitutional act, an index of contempt for the law (nomos) and typical of tyranny and extreme oligarchy. These assumptions make it particularly surprising the case, mentioned by Aristotle in the Constitution of the Athenians (40, 2), of an Athenian citizen put to death without trial in the context of the democratic restoration on iniziative of Archinos. Modern scholars have questioned the possible illegality of the procedure, which indeed Aristotle does not seem to notice: in his narrative, the decision appears exceptional, but not unconstitutional. The analysis of the legal question leads to the conclusion that the illegality of Archinus’ initiative would not be so much in the involvement of the Boule in the procedure or in the absence of a regular trial, but in the equation of a democratic mnesikakôn with a kakourgos, an asebes or a person guilty of katalysis tou demou and by classifying his offence as punishable with death sentence without a trial. The story of the democratic mnesikakôn is in fact the only clear case of putting to death akritos an Athenian citizen (other proposals in this regard were made, but they were all rejected) and it is placed not by chance in the context of a particular fragility of the democratic system, with a prevalence of the raison d'État on the defense of democratic guarantees. From Lys. XXII, 2 it seems to emerge that the procedure, although legally usable, has been seen by some as a serious abuse in which we can recognise an echo of a polemic against the Boule and the risk that it could "took the habit" (ἐθίζεσθαι) to resort to these extreme forms of coercion.