Greece, Rome, and the Bill of Rights (3 page)

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Authors: Susan Ford Wiltshire

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

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regulative function legally in the
Iliad
and morally in the
Odyssey
. Hesiod later formalized discourse about justice in ways that would lead to philosophy. Plato's contribution was to transform the problem of justice into an abstract concept and a normative principle.

12

Among the Presocratics, Heraclitus (d. 478
B.C.
) opened the way for a natural law theory when he wrote: "This world-order ... did none of gods or men make, but it always was and is and shall be: an everliving fire, kindling in measures and going out in measures."
13
Kirk and Raven observe that the thought of Heraclitus seems "completely new, " adding: "Practically all aspects of the world are explained systematically, in relation to a central discoverythat natural changes of all kinds are regular and balanced.''
14
This line of thinking would be eclipsed by the anti-nature thought of the Eleatics and Plato, but would rise again with Aristotle.
A theory of justice raises questions concerning the basis of the laws framed to promote it. Are those laws arrived at simply by human consensus and convention? Or do they exist somehow in the very nature of the universe? The relationship between nature and convention, between
physis
and
nomos
, had been debated vigorously by Greek thinkers in the fifth century
B.C.
as a philosophical issue.
15
In the following century Aristotle took up in his
Politics
the legal implications of the problem.
Aristotle insists, first, that there is a distinction between laws that merely have been enacted, which may or may not be good laws, and those that have been enacted well, that is, enacted according to the higher law of nature. In the same context he distinguishes between laws that are best for the individuals for whom they are enacted and laws that are absolutely the best.
16
Thus, for Aristotle, natural law has an existence apart from the conventional or positive laws that human beings enact to deal with matters of everyday justice.
But how are we to arrive at knowledge of such higher laws? Aristotle does not answer that question directly. He could not rely on revelation from God as Aquinas later would do. He does hold, however, that the special capacity

 

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of human beings is to exercise the mind in accordance with rational principles and that first principles are apprehended partly by induction, partly by perception, and partly by developing the habits of reason.

17
John Locke quotes these words of Aristotle in his
Essays on the Law of Nature
in support of his own formulation of natural law.
18
Locke's reference suggests that Aristotle's doctrine may properly be understood as one of the original sources of natural law theory.
19

In addition, Aristotle assumes that human beings are born with a natural tendency to be good.
20
This tendency requires habituation and right education, but an instinct toward natural virtue enables human beings, aided by the exercise of reason, to discern what is morally good and just.
Aristotle died in 3.2.2
B.C.
, a year after his former student, Alexander the Great. Alexander's conquests ended the autonomy of the Greek city-state and the vigorous practice of self-rule that had evolved over several hundred years. It is not surprising, therefore, that political theory became more and more abstracted from actual political life. While for Plato and Aristotle politics was still rooted in the city-state, the philosophical schools that inherited their legacy saw the world in more universal terms because by that time the Greeks exercised little political control within the cities they actually inhabited.
The Contribution of the Stoics
Cosmopolitanism was the special characteristic of the Stoic school, founded on a porch, or stoa, in Athens by Zeno of Citium in about 300
B.C.
No theory attributed to the Stoics has been more influential than that of natural law. The Stoic understanding of natural law is difficult to delineate, however, in no small part because of the elusive quality of the terms themselves.
Even to link the words nature and law
physis
and
nomos
was a radical move, given the intense opposition between them that had raged during the fifth century. Law was seen as what human beings devise out of custom

 

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and compromise. Nature, by contrast, was seen as fixed and unchanging. How, then, could there be a ''law of nature"? Nevertheless, the evidence suggests that the Stoics deserve credit for articulating this hybrid doctrine, which earlier would have been seen as a contradiction in terms.
The Stoics, following Aristotle, believed that human beings are born with a self-awareness that leads them first toward self-preservation. From this follows a capacity to distinguish good from bad. Eventually this capacity to discern right from wrong leads toward development of laws of thought and ethics. These laws are seen to apply to all people at all times and in all places. Plutarch describes Zeno's cosmopolitan viewpoint as presented in Zeno's now-lost
Politeia
:
The
Politeia
of Zeno ... is directed to this one main point, that our life should not be based on cities or peoples each with its view of right and wrong, but we should regard all men as our fellow-countrymen and fellow-citizens, and that there should be one life and one order, like that of a single flock on a common pasture feeding together under a common law. Zeno wrote this, sharing as it were a dream or picture of a philosophic, well-ordered society.

21

This cosmopolitanism suited well the changed political circumstances of Hellenistic Greece after the conquests of Alexander, and Zeno's language here supports the understanding of a theory of universal law that would affirm such world citizenship. It is to be a law "common to all" (
ho nomos ho koinos
).
This law "common to all" is, for the Stoics, not a mere abstraction or theory. It describes the material universe as it really is. As A. A. Long puts it: "The foundations of logic for the Stoics are embodied in the universe at large. They are not merely a system, something constructed by the human mind." The universe is thus a rational structure of material constituents, the connections of which are the work of nature or godtypically called
logos
by the Stoics.
22

 

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What the Stoics did was to match language and thought with natural phenomena. They reject Plato's universals, which made no sense to them because universals lack objective existence. Universals provide a way to classify things, but they do not conform with the structure of reality. We observe particular objects in nature, Stoics would say, not universals.

23

For the Stoics, nature is intelligent and directs everything. Nothing is outside its purview. If any chance were admitted to this scheme, or if any event fell outside the scope of nature's power, then the world could not be understood as entirely subject to natural law. It is fundamental to Stoicism, however, that everything should be understandable in this way. Furthermore, this world is the best of all possible worlds, since divine providence organizes it so that each part is in complete harmony with the whole.
24
The popular stereotype of Stoicism emphasizes its attitude of resignation to events, since everything is fated and cannot be changed. The Stoic attitude is properly understood, however, not as blind resignation to fated events, but rather as a belief in human rationality as an integral part of the active principle in the universe.
25
Human beings are intimately involved in the operation of natural law, a law that is not separable from the material universe or from the human beings who inhabit it. Providence works within human nature, and the Stoics exude confidence that human nature is sufficient for achieving a moral life.
Evidence is lacking for an extensive debate among the early Stoics about the fine points of a theory of natural law or even of a very detailed definition of it. Cicero confirms that Zeno believed that natural law was divine:
Zeno ... naturalem legem divinam esse censet
.
26
Human beings are endowed with reason (
logos
), the divine principle that shapes our impulses. For people to live according to nature means, then, to live according to reason. Since we are not gods but limited and fallible mortals, however, we must choose our actions. Choice implies freedom, including the freedom to err. The Stoic admonition is to

 

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choose according to reason, but that is a hortatory principle rather than a set of criteria.
The central concept of Stoic ethics is "naturalness."

27
This assumes a supreme confidence in the goodness or potential for goodness in human nature and follows from Socrates' belief that if human beings know the good, they will do it. "Nature," however, is an ambiguous term. It can mean that which is, already, all around us; or it can mean that which ought to be if all people accomplished their true end (
telos
) and lived a life fully in conformity with virtue.
28
Zeno's definition of nature as "a craftsmanlike fire, proceeding methodically to genesis" seems in its intent to be fully in accord with Aristotelian definitions.
29

In short, the Stoics offer a general guideline about how to decide what to
do
(that is, to live according to reason), but they say nothing at all about what human beings are
due
(that is, what are their rights). The law of nature, the law common to all, the will of Zeus, or right reason are sufficient to guide good Stoics through life by helping them choose what to do and what not to do.
30
But even then, the Stoics argued, a perfect act depended not on the context of the action but on the virtue relating to how or why it was done, which in turn depended on the attitude or intention of the doer.
31
Virtue was determined not by its consequences in the world but by the degree to which actions followed from a disposition perfectly attuned to the rationality of nature.
32
The Stoic preoccupation was with intentions and with conformity with nature. There was no space for the play of human autonomy apart from the grand plan.
We strain to see in Stoicism a basis for a belief in individual rights. Persons were individuals in Stoic thought to the extent only of their time and place within the world soul. Margaret Reesor points out that both the world soul and the individual soul are series of patterns in time. "It is the function of the soul of the individual," she says, "to produce qualifications that are individual to him; it is the function of the world soul to produce the qualifications of individuals. It is inconceivable, therefore, that a man's

 

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