The Historical Foundation of Civil Liberties, Part 2

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This article is from a transcript of the opening presentation of FFF’s September 21, 2021, conference “Restoring Our Civil Liberties.”

In the later classical period, a new system, which came to be known as democracy, emerged, notably in Athens. It was based on the liberty of the citizens and was used to describe the Athenaion Politeia after the reforms undertaken by the Greek states and Cleisthenes in the period 508 to 507, before the common era. Athens had been a cauldron of civil strife — that is to say, what we might call a civil war or internal conflict — and Cleisthenes was called on to reform the system. In 510, the Athenians had expelled a tyrant, Hippias, with the help of the Spartans. Isagoras then collaborated with the Spartans to seize power and expelled Cleisthenes, who then called on the people to rebel, was elected, and began a democratic transformation of Athens.

This is a really remarkable revolution, if you will, or constitutional reform that had tremendous significance for millennia to come. He instituted a council of 500 that was based on a reorganization of the political structure of the polity. Ten tribes constituted by 30 ridings, 139 villages, towns, neighborhoods that were known as demes, or in the plural, demoi. Each one was then assigned to a tribe — and here was part of the genius of his federal insight — one-third of them were drawn from the plains of Athens and its environs, one-third of them were from the mountains, and one-third from the coast. The idea was to create a system in which people didn’t think only of their small community but understood their common citizenship and common liberty with people who might live rather far away. It was an attempt to break down those foundations of factionalism.

Modern federalism based on Greek concepts

I don’t think it’s an accident that James Madison, when he was writing in Federalist #10, articulated a similar plan. He had read so many of the works of the ancient world and was acquainted with ancient ideas of federalism as well.

There were a few key concepts that prepared the way for civil liberty and that had been articulated initially during Cleisthenes’s period. The first is isonomia, or equal laws. Equality before the law. Or as we might say today, the rule of law: that the law would be the same for everyone and not one for you and another for me. Isegoria, which was instituted explicitly by Cleisthenes, meant equal speech or freedom of speech. It’s often confused with another concept in Greek, parrhesia, which means frankness of speech, to speak whatever comes into your mind. It doesn’t quite mean that. It meant that everyone would have an equal opportunity, an equal freedom, to express their opinion and were not to be punished for expressing it. If you have a debate, for example, and you articulate you’re against the proposal and the proposal passes, you could not later be punished for having been against it and for having shared your insights, your ideas, and your counsel. Finally, there was isokratia, or equal power. One man — at this time, of course, it was one male — one vote. So everyone would be equal in their empowerment in the political system.

These democratic values were undergirded by equality — the iso-prefix of each one of these words. The general idea of this society of free and equal people, later, after a great deal of political evolution, came to be termed civil society. The Greeks had to face a challenge from the outside world to conceive of themselves as living in a free society, and that was provided, of course, by the powerful Persian Empire. There were two major invasions of the Greek mainland under Darius, the important Battle of Marathon and then the second invasion by Xerxes, the Battle of Thermopylae and Salamis. In both cases, they were turned back. They were unable to conquer the mainland of Greece.

The Greeks began to discuss what it was they were fighting for. An important part was bearing arms — being an armed citizen. This had been a very significant part in Greek history, the right to keep and bear arms, but it also played a role in the defense of the city. Themistocles had raised the importance of the menials — the mass of the population — who couldn’t afford armor. They couldn’t be members of the cavalry because they didn’t have a horse, so they became rowers in the Athenian Navy, and this really enfranchised a much wider swath of the population as having political standing and significance.

There’s a very important play entitled The Persians, which was written by Aeschylus, who fought in the Battle of Marathon and possibly at Salamis, and it’s worth looking into. It’s a wonderful play partly because it portrays the Persians — the enemy in this context — not as terrible monsters but as human beings just like the Greeks. It shows great sympathy for the mothers and wives and sisters and daughters of those Persian warriors, who were not going to come home, and their grieving and sorrow. In the play, the Persian queen asks about the Greeks. To the choir, she says, “Who commands them? Who is shepherd of their host?” The chorus of the Persian elders responds, “They’re slaves to none nor are they subject.” This is the idea that they lived as free persons in a free society.

I don’t want to romanticize this. It was not free in our sense of the world. A substantial portion of the population were enslaved, so that was an obvious flaw, but those who were citizens enjoyed equal freedom and equality before the law.

Aristotle’s influence on liberty

Aristotle in his meditations on these questions and the constitution of Athens, and also in his important book, The Politics, says the basic premise of the democratic kind of regime is liberty. One aspect of freedom is being ruled and then ruling in turn, not that one group perpetually rules another but that we take turns in ruling. You can run for office. You can vote, and it’s open to all. And he says, “The other is to live as one wants for this is, they assert, the work of freedoms. It’s not living as one wants as characteristic of a person who was enslaved.” So on the one hand, the equal participation in the political order, and on the other hand, to live as you choose to live and not as others force you to live.

Intimately connected to this was what we would call the rule of law. He said, “It’s no more just for equal persons to rule than to be ruled. And it’s therefore just that they rule and be ruled by terms.” But this, he says, is already law. Here, he gets to the idea of a constitutional order for the arrangement of ruling and being ruled as law. And accordingly, to have law rule is preferred to having one of the citizens do so. The rule of law was better than being ruled by arbitrary command or will.

I’m now going to skip way forward in history, beyond the Roman Republic and the Roman Empire, to the end of the classical world — the end of antiquity — and the reemergence of urban civilization in Europe after the collapse and the crash of the Dark Ages. Here, we see the communes or free cities of Europe as particularly significant. These were typically established by merchants and based on free agreement of the people.

The development of free cities in Europe

This communal movement was facilitated partly by the rediscovery of Justinian’s codification of Roman law, about the year 1080. Two principles were taken out of context from the Roman law, made principles of political life, and are still with us to this day. What touches all must be approved of by all — that is to say, if it’s going to concern all of us, all of us have to be involved and consent to it. Or we could also say no taxation without representation. This principle was formulated in the Roman law, taken out of context, and then made into a political principle: What pleases the prince has the force of law. Obviously, princes and kings and rulers like that a lot. What pleases them is the law, rather than the idea that the law

Communes were voluntary oath-sworn associations. People would gather and take an oath in public, so they were very robust social contracts. Anytime you hear a philosopher or some other person say, “Oh, the social contract,” it’s just a hypothetical construct, as Rawls and others argue, in order to test our intuitions of justice, they’re wrong. There are very strong examples of real social constructs. In his work on medieval cities, the great historian Henri Pirenne said that what they wanted was personal liberty. It was the liberty of coming and going, living where you wished, as you wished, that was the key. And they built walls around themselves in order to protect that liberty.

The term civil society emerged to describe the social order of the cities. We have civitas from the Latin, which gives us civil as a mode of behavior. Civitas refers to the city as such, not as a physical place but rather as a legal, or we might say political, association. But then we also have from the German the word burg, meaning a strong place, a safe place. We get from that the names of places like Canterbury, Pittsburgh, Hillsboro, but then also the German term bürgerlich, which we would translate as civil, having to do with being a citizen. That comes back to the English via the French, who can’t pronounce the German word, so they take bürgerlich and it becomes bourgeois. Think about the House of Burgesses in Virginia and other American colonies as a representative body.

We have civil society or bourgeois society emerging as the foundation of social and political order. They embraced the very important principle of consent and liberty. Cities, then, were place of liberty. If you were an escaped serf and you got into a city and were there for a year and a day, you became a free citizen.

The governance of cities was provided by associations of craftsmen and merchants who provided public goods, security, and peace through associations of guilds. It was very important to maintain the liberty of the city and the peace of the city. This is one of the things that focused the attention of all of the participants there, and they created great prosperity.

In the process of doing this, human relations progressed from status — what you were born into — to contract. Sir Henry Sumner Maine, the great British historian of law, put it very neatly. “The movement of the progressive societies has hitherto been a movement from Status to Contract.” Our relationship with others, and hence our personal identities, are created by contract or agreement with others.

As Anthony Black, the British historian, put it, by joining a commune, you were able to create your individual identity by securing your liberty. You achieved liberty by belonging to this kind of group. The civil societies that emerged were characterized by individual freedom. Such societies differed from slave societies, from feudal societies, and — in the modern era —from totalitarian orders. Instead of distinguishing civil parts of society from the uncivil parts, the term civil society distinguished civil societies from other forms of human association, and it was the civil liberties of the citizens that made possible a civil society.

The rule of law was obviously the important element. Harrington in his powerful book pointed out that what we want is the empire of laws and not of men. That was the key characteristic of a civil society. Remember John Locke’s idea, that law is not just a restriction of freedom but the condition of its enjoyment. It is the condition for its enjoyment. Some of the wisest words, I think, were written in Locke’s Two Treatises: the end or purpose of law is not to abolish or restrain but to preserve and enlarge freedom. Where there is no law, there is no freedom.

This transcript was published in the December 2022 edition of Future of Freedom.

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