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The Origins Of Modern Constitutionalism
The Greek Conception of Law
by Wormuth, Francis D.


Greek discussions of law in the fifth and fourth centuries before Christ turned chiefly on the contrast between government according to fixed laws and the discretionary rule of an unfettered king or statesman. The differences of opinion were less striking than the points of agreement. The generality of law was always considered to be its characteristic feature. The utility of law was a consequence of its generality; and generality also carried with it disadvantages. Disagreements turned on the question whether the virtues of generality outweighed its defects.

An Athenian nomos provided that no law or decree should be passed dealing with an individual, except the measures which required the concurrence of the extraordinary majority of six thousand, such as ostracism.1 Aristotle's chief reproach to democracy was directed toward its tendency to substitute for nomoi (by which he meant general rules) popular decrees or psephismata,2 which he defined — inaccurately,3 as it happens — as dealing only with particulars.

The idea of a rule of conduct implies not only generality but prospectivity. The evidence that the Greeks drew this inference is not abundant. But Plato defined law as a judgment for the future,4 and Aristotle spoke of it as "prospective and general."5 Demosthenes on one occasion uttered a violent denunciation of retroactive legislation, saying that it was appropriate to the lawless rule of oligarchs.6

What were the virtues of generality? It was common for democratic spokesmen to identify laws with democracy. Aeschines announced that: "Tyrannies and oligarchies are administered according to the temper of their lords, but democratic states according to their own established laws."7 Demosthenes, in attacking Philip of Macedon, urged that "every king, every despot is the sworn foe of freedom and law."8 The democratic element in law was the equality which results from generality. Euripides in his Suppliants makes Theseus reply to the Theban Herald:9
No worse foe than the despot hath a state,
Under whom, first can be no common laws,
But one rules, keeping in his private hands
The law: so is equality no more.
But where the laws are written, then the weak,
And wealthy have alike but equal right.
Yea, even the weaker may fling back the scoff
Against the prosperous, if he be reviled;
And, armed with right, the less o'ercomes the great.

Equality can be regarded as a special function of a more inclusive virtue, that of impartiality. Plato in his Statesman suggests that general rules are indifferent to particular persons and are therefore more just than the self-interested actions of uncontrolled rulers.10 Law, says Aristotle, is the "mean or neutral";11 its "general principle" is that it is "free from passion."12 Of arguments for decision by fixed rules rather than by discretion, "The weightiest reason of all is that the decision of the lawgiver is not particular but prospective and general, whereas members of the assembly and the jury find it their duty to decide on definite cases brought before them. They will often have allowed themselves to be so much influenced by feelings of friendship or hatred or self-interest that they lose any clear vision of the truth and have their judgment obscured by considerations of personal pleasure or pain."13 Aristotle has other arguments in favor of laws which are less fundamental: the lawgiver is likely to be a wiser man than the jurors or magistrates;14 law is an educational device useful in inculcating moral virtue through habit.15

In all this, however, it is assumed that the laws are good laws. Obviously it is quite possible for laws to be contrived so as to insure inequality and partiality rather than equality and impartiality. Plato in his Laws declares that such measures do not deserve the name of laws.16 It is to prevent corruption of the state by biased legislation that he introduces his polity or mixed state, which is intended to balance the two sources of distortion — property and numbers — against each other. Aristotle defines the good state not as a law-abiding state, but as one which serves the general good." Laws are relative to the constitution; consequently, true forms of government will have just laws, and perverted forms — which he reckons to be tyranny, oligarchy, and democracy — will have unjust laws.18 "Someone may say that it is bad in any case for a man, subject as he is to all the accidents of human passion, to have the supreme power, rather than the law. But what if the law itself be democratical or oligarchical, how will that help us out of our difficulties? Not at all; the same consequences will follow."19 So Aristotle says that a government constituted on oligarchical principles is no true state, even though the oligarchs obey the laws.20 Obedience to the laws is not enough for good government; the laws themselves must be good.21

But even good laws may be a source of error, because of their generality. This has an odd sound to later ears, for two developments in thought subsequent to Aristotle have associated the idea of generality with that of truth. The Stoic philosophy postulated universal laws of reason and morality which maintain order and harmony in the universe. In the eighteenth century there was joined to this conception the notion of invariable physical laws which describe, as Montesquieu put it, "the necessary relations arising from the nature of things." The supposed regularity of the universe enhanced the prestige of law enormously.

But the pre-Hellenistic Greeks did not believe in the cosmic jurisprudence of the Stoics. Attempts have been made to read this conception into the "unwritten and secure laws of the gods" and the "high heavenly laws" in Sophocles, but Miss Macurdy has shown that such expressions referred only to "old social customs which had become binding and religious, involving a curse if transgressed." These customs were limited to burial of the dead, retaliation for the murder of kindred, the prohibition of incest, and the duty of honoring gods and parents.22 It has sometimes been thought that Aristotle in Book III of the Politics makes law not a useful instrument, but a final object of value, as it later became with the Stoics; and indeed he does say that "he who bids the law rule may be deemed to bid God and Reason alone rule, but he who bids man rule adds an element of the wild beast; for desire is a wild beast, and passion perverts the minds of rulers, even when they are the best of men."23 But here Aristotle is merely reporting the arguments against monarchy, as he has earlier reported the arguments in favor of monarchy. This sentence is nothing but an abridgment of Plato's renunciation of free intelligence in the Laws. That Aristotle did not indorse all that might be read into the sentence is made clear when he concludes the rehearsal of conflicting views: "These are the principal controversies relating to monarchy." For he goes on to say: "But may not all this be true in some cases and not in others?"

Nor could the Greeks make human laws appear at home in a Newtonian universe, as Montesquieu undertook to do, for their universe was a very different affair. Professor Cornford has said that "The word law is missing from the vocabulary of Greek science" because the Greeks did not think in terms of the necessary relations between things; "those relations of a substance which take the form of its action on other substances were considered under the aspect of powers or capacities of action residing in the substance."24 The Greeks had no notion of the universe as a machine operating according to cause and effect, and this analogy, which gives so much credit to regularity and thus increases respect for rules of law, was not available to them.

The operation of intelligence on the universe — the solution of problems — could not be reduced to rule. So we sometimes find law unfavorably contrasted with unfettered action. Isocrates, in writing to Philip of Macedon in 346 b.c. to solicit him to lead the Greeks against the Persian king, said that he had singled out Philip "because I saw that all the other men of high repute were living under the control of polities and laws, with no power to do anything save what was prescribed"; Philip, on the other hand, had "untrammeled freedom" to consider all Hellas his fatherland.25 The pseudo-Aristotelian letter to Alexander, prefixed to the De Rhetorica ad Alexandrum, seems to make the same point: "whereas among those whose political constitution is democracy the final appeal on all matters is to the law, among those who are under kingly rule the appeal is to reason."26

Plato carried this idea to the extreme in his Republic. All problems were unique; they could be solved only by free intelligence. A professional class of governors was therefore postulated to perform this task. In the Statesman he reluctantly modified his position. True, he still maintained that the one best rule, and the one true government, is rule by science, by one who makes his art a law and shows a "strength of art which is superior to the law."27 Law, indeed, because it attempts to force the "endless irregular movements of human things" into an inflexible rule, is "an obstinate and ignorant tyrant." Nevertheless the legislator must make some general rules, "for how can he sit at every man's side all through his life, prescribing for him the exact particulars of his duty?" And laws have at least the negative virtue of being more just than the selfish actions of uncontrolled rulers. Moreover, very few can attain to the royal science which governs by art and is the only true form of government. Lacking this, states must content themselves with the second-best form, which imitates the laws established to guide, but not to bind, the true state of royal art. The Laws goes even further than the Statesman: here the second-best state is the only possible form. This is not because Plato has a lower opinion of free intelligence, or a higher opinion of rule, but because he has lost confidence in men.

Mankind must have laws, and conform to them, or their life would be as bad as that of the most savage beast. And the reason of this is that no man's nature is able to know what is best for human society; or knowing, always able and willing to do what is best. ... Human nature will be always drawing him into avarice and selfishness. ... For if a man were born so divinely gifted that he could naturally apprehend the truth, he would have no need of laws to rule over him; for there is no law or order which is above knowledge, nor can mind, without impiety, be deemed the subject or slave of any man, but rather the lord of all. I speak of mind, true and free, and in harmony with nature. But then there is no such mind anywhere, or at least not much; and therefore we must choose law and order, which are second best.28

Aristotle never reaches this level of pessimism. It seems to him altogether practicable to remedy the shortcomings of law.

What creates the problem is that the equitable is the just, but not the legally just but a correction of legal justice. The reason is that all law is universal but about some things it is not possible to make a universal statement which shall be correct. ... When the law speaks universally, then, and a case arises on it which is not covered by the universal statement, then it is right, where the legislator fails us and has erred by over-simplicity, to correct the omission. ... Hence the equitable is the just, and better than one kind of justice — not better than absolute justice but better than the error that arises from the absoluteness of the statement. And this is the nature of the equitable, a correction of law where it is defective owing to its universality. In fact this is the reason why all things are not determined by law, viz. that about some things it is impossible to lay down a rule, so that a decree is needed.29

It appears, then, that Aristotle, in spite of his hostility to psephismara, thought that equity sometimes required enactment of a decree to correct the shortcomings of the nomoi. It was also necessary for the judge to resort to equity in cases where the law could not cover the infinite variety of nature.30 But equity appears chiefly in arbitration, which Aristotle recommends because "an arbitrator goes by the equity of a case, a judge by the strict law, and arbitration was invented with the express purpose of securing full power for equity."31

Such a pragmatic attitude toward law is very different from that introduced in succeeding centuries by the Stoics, who equated law to reason and both these to morality and the universe. "Law is ruler of all,"32 said Chrysippus; and this law was an immutable and invariable system discovered by human reason. It followed, as Cicero said, that statutes which went contrary to this divine code "no more deserve to be called laws than the rules a band of robbers might pass in their assembly."33 This proposition would have appeared startling indeed to the pre-Hellenistic Greeks. Xenophon reports a dispute between Pericles and Alcibiades in which Pericles offered a merely formal definition of law: "Whatever the ruling power of the state after deliberation enacts as our duty to do, goes by the name of law."34 Alcibiades obliged Pericles to add another element: true laws make their way by persuasion, and the commands of a tyrant, imposed by force, are not law.35 Not the austere majesty of cosmic rule, but the Greek conception of politics as a friendly association of equals supplies the substantive content of law. Aristotle says that the bonds of association, in the state as elsewhere, are friendship and justice, and these are almost equivalent terms.36 Persuasion is the means of establishing laws among friends.

NOTES

(1) Andocides, On the Mysteries, 87; Demosthenes, Against Timocrates, 59, and Against Aristocrates, 86.

(2) Politics, 1292*.

(3) See H. Bluehmner, ed., K. F. Hermann's Lehrbuch der Griechischen Antiquitaeten (Tuebingen, 1913), I, 3, 16.

(4) Laws, 644.

(5) Rhetorica, 1354b.

(6) Against Timocrates, 75-76.

(7) Against Ctesephon, 6, in The Speeches of Aeschines (Charles D. Adams, trans.: Loeb Classical Library), p. 313.

(8) Second Philippic, $ 25 (J. H. Vince, trans.: Loeb Classical Library), p. 137.

(9) 429-437, in Euripides (A. S. Way, trans.: Loeb Classical Library), iii, 535. See also Pericles' Funeral Oration in Thucydides, The Peloponnesian War, II, 37.

(10) Statesman, 300.

(11) Politics, 1287b (W. D. Ross, ed.).

(12) Ibid., 1286a, 1287a.

(13) Rhetorica, 1354b, in The Works of Aristotle Translated into English (W. D. Ross, ed.: Oxford, 1924), xi.

(14) Loc. cit.; Politics, 1270b.

(15) Nicomachean Ethics, 1103b, 1180a; Politics, 1269a.

(16) Laws, 715.

(17) Politics, 1279a.

(18) Ibid., 1282b; see also 1289a.

(19) Ibid., 1281a.

(20) Ibid., 1279b, 1298b.

(21) Ibid., 1294a.

(22) Grace H. Macurdy, The Quality of Mercy (New Haven, 1940), p. 115.

(23) Politics, 1287a (W. D. Ross ed.).

(24) F. M. Cornford, The Laws of Motion in Ancient Thought (Cambridge, 1931), pp. 21, 26. See also Edgar Zilsel, "The Genesis of the Concept of Physical Law," Philosophical Review (1942), li, 245.

(25) To Philip, 14, 127, in Isocrates (George Norlin, trans.: Loeb Classical Library), i, 255, 323.

(26) 1420a, in The Works of Aristotle Translated into English (W. D. Ross, ed.: Oxford, 1924), xi.

(27) Statesman, 297 (Jowett trans.).

(28) Laws, 874-875 (Jowett trans.).

(29) Ethica Nicomachea, 1137b. See also Politics, 1286a, 1287', and Plato's Laws, 876.

(30) Rhetorica, 1374a.

(31) Rhetorica, 1374b.

(32) Digest, I, 3, 2.

(33) Laws, II, 5, 13 (C. W. Keyes, trans.: Loeb Classical Library), p. 385.

(34) Memorabilia, I, 2, 42, in H. G. Dakyns, trans., The Works of Xenophon (London, 1897), III, Pt. I, p. 15.

(35) Memorabilia, I, 2, 44-45.

(36) Nicomachean Ethics, VIII, 9-12.

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