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Authors: Susan Ford Wiltshire

Tags: #Political Science, #General, #History, #Law, #Reference, #Civil Rights, #test

Greece, Rome, and the Bill of Rights (2 page)

BOOK: Greece, Rome, and the Bill of Rights
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Page 4
of the West. Almost all of the provisions of the Bill of Rights reflect civic practices first developed by the Greeks and Romans.
Alfred North Whitehead intuitively evoked these linkages with antiquity when he observed: "I know of only three times in the Western world when statesmen consciously took control of historic destinies: Periclean Athens, Rome under Augustus, and the founding of your American republic." In speaking of the framers of the Constitution, he added: "They were able statesmen, they had access to a body of good ideas; they incorporated these general principles into the instrument without trying to particularize too explicitly how they should be put into effect; and they were men of immense practical experience themselves."

1

Theories of rights assume a dignity of persons and a status of individuals that did not exist in the classical world. In ancient Greece and Rome, the status of individuals was determined by their relationship to the state. In ancient Athens, where the state took priority, a private person living apart from public life was considered a nonentity. Both Plato and Aristotle are explicit about this. Plato says in the
Laws
: "Neither your own persons nor the estate are your own; both belong to your whole line, past and future, and still more absolutely do both lineage and estate belong to the community."
2
Aristotle confirms this principle in similar terms: "We must not regard a citizen as belonging just to himself: we must rather regard every citizen as belonging to the state."
3
The slow transition from a state-defined to an individual-defined political identity was mediated by a belief in natural law.
4
The five chapters of Part One trace the evolution of political identity forward from Greek philosophy and Roman law through the Middle Ages to the eighteenth-century Enlightenment and the Bill of Rights.
Chapter 1 considers the origins of natural law in ancient Greece, culminating in the philosophy of Stoicism. Chiefly through Cicero, natural law became attached to Roman law and the belief in the
ius gentium,
or "law of nations." This provided the foundation for a Christian

 

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version of natural law and the Christian state in the medieval period, which is the inquiry of Chapter 2.
Chapter 3 looks to England and the evolution of common law, the other great source of American political thought. Attention is paid in this chapter, too, to the relationship between common law and the Roman law which prevailed on the Continent.
Chapter 4 carries the story of natural law into the Enlightenment, tracing the emergence of the individual into full status, now no longer contingent on definition by the state, in the thought of John Locke.
Part One concludes with a brief description in Chapter 5 of the framing of the Bill of Rights, its relation to the previously adopted Constitution, the ratification process, and some thoughts on its meaning.
With a reverse of perspective, the five chapters of Part Two survey antecedents for the various provisions of the Bill of Rights in Greek and Roman political thought and practice.
The freedoms most commonly associated with the Bill of Rights are those protected by the First Amendment: freedom from state-established religion and the freedoms of religious expression, speech, press, assembly, and petition. All of the First Amendment provisions except freedom of the press reflect issues that were in some measure concerns also in Athens or Rome. It is the purpose of Chapter 6 to explore these concerns.
Chapter 7 addresses early precedents for the Second and Third Amendment issues of armsbearing and the quartering of soldiers. In the heroic world of Homer's
Iliad
, the worth of individuals was determined by their skill in warfare. As civic life developed, armsbearing became more problematic. The Third Amendment recalls one of the many strategies by which Rome managed the peoples it conquered, that of conferring on favored cities the privilege of not having to quarter Roman soldiers.
Chapter 8 suggests a long lineage for Fourth Amendment protections against search and seizure. Apparently even older than the Twelve Tables of 451
B.C.
was the protection against fraudulent search of one's home. In

 

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Rome this ritual, known as
lance et licio
, defined the procedures by which such searches might be conducted.
The Fifth and Sixth Amendments provide protections for persons accused in criminal cases, while the Seventh protects litigants in civil cases. Chapter 9 considers the mechanisms in Roman law for bringing indictments and for protections against self-incrimination, together with the origins of trial by jury in Athens and Rome and its further development in English common law.
The final two amendments of the Bill of Rights raise issues considered in Chapter 1. The unenumerated rights addressed in the Ninth Amendment reflect the natural rights theories traceable to the Greeks. The reserve of powers to the states or the people in the Tenth Amendment recalls the Roman genius for administration of its large and diverse empire, especially through the arrangements established by Augustus. Because the Ninth and Tenth Amendments deal with structural issues, I depart from the practice of the preceding chapters by considering recent court cases that illustrate fundamental problems raised by these amendments.
My purpose in Part Two is not to suggest direct influence or to propose a cause-and-effect relationship between classical antiquity and the Bill of Rights. Part Two is rather a study in comparative politics, while Part One is an inquiry into the history of an idea.
In the Conclusion I address two questions growing out of this inquiry: what are the political implications of the Graeco-Roman heritage of the Bill of Rights, and how might such a long heritage affect our attitude toward the values it protects?

 

Page 7
PART ONE
From Athens to America: The Evolution of the Idea of Rights
 
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Chapter 1
The Origins: Greek Philosophy and Roman Law
Democracy was cobbled together, thousands of years ago, by the Athenians. C
YNTHIA
F
ARRAR
Every nation's law, except our own, is crude and almost laughable. C
ICERO
The earliest origins of the Bill of Rights lie in classical Athens, for it was the ancient Greeks who invented the revolutionary idea that human beings are capable of governing themselves through laws of their own making. The Athenians, however, were better at the idea than the practice of self-governance. It was the supreme achievement of the Romans to create, over a period of a thousand years, a system of law that would survive the fall of the empire and form the basis of political and civic organization in the West from that time forward.
The idea that individuals have inherent rights apart from their relationship to the state is a later development, but it could never have evolved if a belief in self-gover-

 

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nance had not first been established by the Athenians and the rule of law elaborated by the Romans.
The thread that connects all the episodes of this long story is natural law. Growing out of Greek political theory, especially that of Aristotle, natural law became a major tenet of Stoic philosophy during the Hellenistic age and exerted profound influence over Roman legal doctrine. Natural law theory underwent several transformations before Jefferson claimed it as the basis of the "unalienable rights" of Americans, but the idea was conceived in ancient Athens.
Greek Beginnings
The Greek alphabet was invented around the middle of the eighth century
B.C.
It developed out of Phoenician script but with the addition of a full set of vowels, which made the Greek language relatively easy to read and therefore facilitated access to the laws by ordinary people.

1
Because people could read the laws, they could participate actively in carrying them out.
2

The earliest surviving publicly inscribed law in Greece is a stone inscription in the Cretan city of Dreros, meant to prevent corruption of the political process for personal gain, dating from the middle or late seventh century
B.C.
3
From that time forward, cities throughout the Greek world began to promulgate written laws. These codes were actual legislation governing the judicial life of the community. The existence of written laws signals the attitude that substantial numbers of citizens had the right to know the law and to benefit from the fact that the laws were public and fixed.
4
Even in the early, predemocratic Greek cities, the assumption was that political business was public business and that the laws, though perhaps somehow attributable to the gods, were promulgated under the authority of the city. The emergence of written laws in the early history of the Greek city-states distinguishes them from the theocratic monarchies of the ancient Near East. Near Eastern laws were meant not to inform the people but to inspire

 

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reverence for the ruler or God. Michael Gagarin concludes that the public nature of Greek laws has no parallel in the law codes of the ancient Near East.

5

The public spirit of community life in early Greece was furthered by substantive legislation, much of which strengthened the authority of the polis over its members. Conversely, one's identity was also determined by membership in the city. This was the case whether the political organization was democratic, aristocratic, oligarchic, or tyrannical. The power of the Greek polis increased at the expense of individual families throughout the archaic period, and the written laws, publicly displayed, served to strengthen not one group or party but all citizens by virtue of their membership in the polis.
6
In classical Athens, political life was considered the proper business of all citizens. Professionalism was actively discouraged, and the legislative, executive, and judicial functions were exercised by commissions of citizens drawn by lot. Further, citizens were required by law to plead their own cases.
7
Consequently, there were no lawyers as such in classical Athens,
8
although litigation was so prevalent and the rotation of offices so frequent that R. J. Bonner calls Athens a "nation of lawyers."
9
Speech writers, orators, and advocates in certain situations formed the germ of the legal profession, but it was at Rome that law and lawyers would flourish.
10
Greek law itself, says one observer, "failed of fruition." Except for Greek maritime law, the legal science that would influence the world came from Rome.
11
The great contribution of Greek law to the West was political philosophy. From a very early period the ancient Greeks thought reflectively about how human beings should govern themselves.
Prefatory to an idea of natural law is the notion of justice itself, that is, that right relations among human beings are subject to principles based on higher than ordinary claims. In tracing the evolution of justice from Homer through Plato, E. A. Havelock shows that although we find no
principle
of justice (
dikaiosune
) in Homer, there is "just action." The term
dike
for just action has a

 

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