Freedom and the Law

4. Freedom and the Certainty of the Law

Law_051-100.indd 26 10/27/09 8:05 AM 4 FREEDOM AND THE CERTAINTY OF THE LAW Le Greek conception of the certainty of the law was that of a written law. Although we are not directly concerned here with problems of historical research, it may be interesting to recall that the Greeks, especially in earlier times, also had a conception of customary law and generally of unwritten laws. Aristotle himself speaks of the latter. These were not to be confused with the more recent concept of the law as a complex of written formulae in the technical sense that the word nomos assumed in the fifth and fourth centuries before Christ. But the ancient Greeks, in a more mature period of their history, also had an opportunity to become tired of their usual idea of the law as something written and enacted by such legislative bodies as the Athenian popular assembly. The example of the ancient Greeks is particularly pertinent in this respect not only because they were the originators of the political systems later adopted by the countries of the West, but also because most of the Greek people, particularly the Athenians , were sincerely fond of political freedom in a sense perfectly understandable to us and comparable with our own. What, for instance, Thucydides has Pericles say in his famous Funeral Oration for the Athenian soldiers and sailors who were the first to fall in the Peloponnesian War could be repeated quite literally by such modern representatives of the political ideal of freedom as Jefferson, De Tocqueville, John Stuart Mill, Lord Acton, or 76 Law_051-100.indd 27 10/27/09 8:05 AM FREEDOM AND THE CERTAINTY OF THE LAW 77 Spencer. The authenticity of the records that Thucydides made use of in order to reconstruct Pericles' speech is still an open question. But even if we imagine that Thucydides himself wrote this speech instead of Pericles, the authority of Thucydides, as far as the feeling of the Athenians and the conditions of his times are concerned, would not be inferior to that of Pericles in this respect. Thus, in the English translation of Crawley, Pericles, as quoted by Thucydides, uses these words to describe the Athenian political and civil system in the middle of the fifth century before Christ: Our constitution does not copy the laws of neighboring states. We are rather a pattern to others than imitators ourselves. Its administration favors the many instead of the few; this is why it is called a democracy. If we look to the laws, they afford equal justice to all in their private differences; if to social standing, advancement in public life falls to reputation for capacity, class considerations not being allowed to interfere with merit. Nor again does poverty bar the way. If a man is able to serve the state, he is not hindered by the obscurity of his condition. The freedom which we enjoy in our government extends also to our ordinary life. There, far from exercising a jealous surveillance over each other, we do not feel called upon to be angry with our neighbor for doing what he likes, or even to indulge in those injurious looks which cannot fail to be offensive, although they inflict no positive penalty. But all this ease in our private relations does not make us lawless as citizens. Against this, fear is our chief safeguard, teaching us to obey the magistrates and the laws, particularly such as regard the protection of the injured, whether they are actually on the statute books or belong to that code which, although unwritten, yet cannot be broken without acknowledged disgrace.1 This Greek idea of freedom, as reflected in Pericles' speech, is quite similar to our contemporary idea of freedom as maximum independence of constraint exercised by others, including the authorities, over our individual behavior. The old notion held by some scholars like Fustel de Coulanges that the ancient Greeks would not have given to the word "freedom" a sense similar to the one we now give to it in most instances has been successfully revised in recent times. There is, for example, a book entitled 1 Thucydides, The History of the Peloponnesian War, II, 37-39, tr. by R. Crawley (London: J. M. Dent & Sons, 1957), p. 93. Law_051-100.indd 28 10/27/09 8:05 AM 78 FREEDOM AND THE LAW The Liberal Temper in Greek Politics...