Language – Sword of Damocles

According to Wikipedia, the expression refers to Damocles, a character who appears in a (likely apocryphal) anecdote commonly referred to as “the sword of Damocles”, an allusion to the imminent and ever-present peril faced by those in positions of power.*

Damocles was a courtier in the court of Dionysius I of Syracuse, a ruler of Syracuse, Sicily, during the classical Greek era. The story goes that Damocles flattered King Dionysius telling him he was a fortunate man with great power. The King offered Damocles the throne for a day. Damocles eagerly accepted but the King arranged for a sword to hang over the throne – hanging by a single horsehair – to evoke in Damocles the sense of being king, constantly in fear for threats against him. Damocles eventually begged to be released.

John F Kennedy famously described the ever-present threat of nuclear annihilation during the Cold War by reference to the phrase[1]:

Today, every inhabitant of this planet must contemplate the day when this planet may no longer be habitable. Every man, woman, and child lives under a nuclear sword of Damocles, hanging by the slenderest of threads, capable of being cut at any moment by accident or miscalculation or by madness. The weapons of war must be abolished before they abolish us.

The Macquarie Dictionary defines the expression as “an immediate threat or danger, especially in otherwise favourable circumstances”.

The phrase is used in the following authorities:

Jones v Commonwealth (2023) 97 ALJR 936 at [203] (Steward J):

The third aspect is most troubling. It is at least an unattractive legislative choice to expose a citizen from the date of conviction until death to the risk of denationalisation — a risk which hangs over the head of such a person like the “sword of Damocles”. It is harder to justify on this occasion a sufficient connection between such an open-ended power and a non-punitive purpose of protecting the integrity of the naturalisation process. Yet, care must be taken not to introduce here a requirement of legal reasonableness, if in substance that means that the law must be proportionate in order to be valid. Asking whether a law is reasonably capable of being seen as necessary for a legitimate non-punitive purpose is to ask a question concerning that law’s purpose. Here, the question must be: does the creation of such an open-ended power of denationalisation preclude the characterisation of s 34(2)(b)(ii) — and 34(2)(c) — as laws which exist for the purpose of protecting the integrity of the naturalisation process?

Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) (1998) 195 CLR 1; [1998] HCA 30 at [192] (Callinan J) citing the Lord Hoffman in Co-operative Insurance v Argyll Stores Ltd [1998] AC 1 at 11-13[2]:

The prospect of committal or even a fine, with the damage to commercial reputation which will be caused by a finding of contempt of court, is likely to have at least two undesirable consequences. First, the defendant, who ex hypothesi did not think that it was in his economic interest to run the business at all, now has to make decisions under a sword of Damocles which may descend if the way the business is run does not conform to the terms of the order. This is, as one might say, no way to run a business. In this case the Court of Appeal made light of the point because it assumed that, once the defendant had been ordered to run the business, self-interest and compliance with the order would thereafter go hand in hand. But, as I shall explain, this is not necessarily true.

R v Harrison [2015] QCA 210 (McMurdo P) at p8:

For that reason I consider a head sentence appropriately reflecting the appellant’s guilty plea by way of ex officio indictment to recognise all his offending was one of five years imprisonment. In imposing that sentence I am reducing the head sentence to reflect his guilty plea and acting on the fact that any early parole recommendation would be most unlikely to be acted on. In imposing a comparatively modest head sentence of that kind, I would tailor this with a later than usual suspension of his sentence, in light of the applicant’s many years of recidivist offending. To suspend his sentence two years earlier than the full-time release date, however, would both recognise his appalling criminal history and recidivism and unpromising future prospects, and also ensure that when he is released into the community he will have the Sword of Damocles hanging over his head for two years. If he does not do as he claims he will and rehabilitate himself and instead relapses into crime, he will be quickly returned to prison to serve the rest of his sentence, together with any sentence imposed for other criminal behaviour. This case falls into that unusual category of cases where it is appropriate for a court to suspend the sentence after the halfway point, here, after three years.

* This phrase was also considered by Hearsay in Issue 90 (December 2022), but we like it so much we’re adding further to it.

[1] Address before the General Assembly of the United Nations, September 25, 1961 available at https://www.jfklibrary.org/archives/other-resources/john-f-kennedy-speeches/united-nations-19610925 (accessed 6 August 2024)

[2] Cited by Applegarth J in Sentinel Countrywide Retail Ltd v PC Emerald (Qld) Pty Ltd [2015] QSC 348 at [5]