“Constitution and Fundamental Law: The Lesson of Classical Athens”
Social Philosophy and Policy 28.1 Winter 2011: 25-49
Abstract: The question of what constitutions should do is deeply connected to what constitutions should be. In the American founding conception, a constitution was a fundamental law, hierarchically superior to the decisions of the legislature, and intended to act as a restraint on legislative action. Despite the massive gulf between the ancient Greeks and the Americans, classical Athens offers an important lesson about how the failure to recognize fundamental laws can lead to catastrophic consequences. The evidence suggests that the Athenians understood the need for conceptual, procedural, and institutional distinctions between the fundamental laws and the more specific decrees of the governing institutions. The Athenian and American experiences also suggest that certain philosophical positions conditioned their understanding of their fundamental laws, and guided the practices that followed from that understanding.
“Xenophon’s Poroi and the Foundations of Political Economy”
Polis 26.2 2009: 370-388
Abstract: In the Poroi, Xenophon’s radical solution to Athens’ financial problems includes several ideas vital to the field of political economy. His identification of justice with the pursuit of wealth provides an alternative to the power politics that for half a century had taken Athens into a series of self-destructive imperial wars. He supports his idea of economic growth with arithmetic calculations, and he connects the results to traditional Greek views of public rewards and benefits. From this he crafts a goal-directed strategy for economic growth designed to foster good will through incentives rather than coercion. This brief commentary on the text (in translation) shows how Xenophon’s positive claims are based not on a modern demand-side conception of economic stimulation, but rather on building productive capital. He is a proto-Saysian, not a Keynesian. Xenophon’s proposals range beyond the polis into a pan-Hellenic vision of increasing trade that is centred on Athens, monetized with Athenian coinage, and idealized into the common peace that the Greeks had so long desired but so little achieved.
“Solon of Athens and the Ethics of Good Business”
Journal of Business Ethics
Abstract: The ancient lawgiver Solon of Athens left norms of proper conduct that carry important ethical implications for all manner of human affairs, including commercial activities and the pursuit of wealth. In his extant poetry he emphasizes the strong connections between individual virtue and its consequences in the social and political sphere. In considering the proper means of obtaining material wealth he describes multiple ways to earn a living, and connects them to proper intellectual and ethical dispositions through a concept of justice. This focus on virtue establishes a long-range ethics that is based on a principle of justice, demands rational intellectual activity, and carries implications for everyone’s self-interest. Solon’s concern for matters of virtue, the proper means of attaining wealth, and the need for long-range awareness of consequences, offers a valuable point of historical focus for our own examinations of business ethics today.
“History, Politics, and Claims of Man-made Global Warming”
Social Philosophy and Policy 26.2 2009: 231-172. Also in Natural Resources, the Environment, and Human Welfare, ed. Ellen Fraenkel Paul, Fred D. Miller Jr., and Jeffrey Paul (Cambridge: Cambridge University Press, 2009).
If the news media are any guide to the truth, the environmental condition of the Earth has deteriorated over the past several decades to the point of imminent disaster. Proponents of man-made, or anthropogenic, global warming (AGW) maintain that an unprecedented, dangerous rise in the overall temperature of the Earth threatens us with imminent climatic catastrophe, and that the primary cause is emissions of carbon dioxide (CO2) and other gases into the atmosphere by the widespread use of fossil fuels. To prevent a global disaster, they claim, we must take vigorous political action immediately to reduce the burning of coal, natural gas, and oil. . . . But, as Philip Stott, professor emeritus of biogeography at the University of London, reminds us: “What has been forgotten in all the discussion about global warming is a proper sense of history.” . . . We have only begun to understand the Earth’s climate system, and our computer models do not account for its complexity. The testimony of top-tier scientists makes it clear that there is no scientific consensus behind the AGW hypothesis. . . .
Among people who are in the position to create and enforce government policies, however, there is a consensus that human responsibility for global warming is a settled issue, and that the task now is to implement the laws required to atone for that responsibility. This political consensus is a dangerous thing, because the remedies being proposed to mitigate the AGW predictions are breathtaking in their scope, and will have negative consequences for billions of people. This conclusion is not a matter of hypothetical computer modeling, conjecture, or percentages on a graph. The governmental actions being planned now are on a scale commensurate with socialist planned economies, and would place the very heart of industrial society—the motive power that keeps its industry beating—under the control of a labyrinthine maze of all-powerful government bureaucracies. . . .
The purpose of this essay is to bring into focus two crucial aspects of this issue. The first is to present a basic outline of natural history as an historical context for the AGW claims, along with the evaluations of top-rank scientists who do not accept those claims. The second is to illuminate some of the regulatory proposals that these claims have engendered, as well as the economic, political, and moral meaning of these proposals. . . .
“Oh Mist! Science, Religion and History in Aristophanes’ Clouds”
Themes in European History: Essays from the 2nd International Conference on European History ed. Michael Aradas & Nicholas C.J. Pappas (Athens: ATINER, 2005). ISBN: 960-88672-7-4
In 399 BC the men of Athens committed the greatest crime against philosophy in history: they condemned Socrates, and demanded that he either renounce his life in Athens by going into exile, or drink the hemlock. How was it that Athens, the home of the intellect in the ancient Greek world, the place where philosophers would gather for the wholesomeness of mind that only free, rational inquiry can provide, could do this to the best among them? Was Athens a haven for free thought, or a nest of orthodoxy and persecution? Aristophanes Clouds offers clues to how Athens received, and reacted to, the ideas of the philosophers, especially the sophists, who taught that moral and legal standards were human creations, and the Ionian physicists, who favored natural explanations for physical phenomena. The sophists and the physicists were united in their rejection of the traditional gods as sources of knowledge, and each could be seen as a threat to the city.
The culmination of this conflict was the charges leveled against Socrates. They were first and foremost failing to believe in the city’s gods, and corrupting the youth through teaching. But there was also his investigations into matters in the earth and the sky, a charge that bears the imprint of minds not open to rational inquiry into the unknown. Socrates’ break with the gods of the city was his turn to new gods—the foundation of his moral thinking—which was itself connected to the “new physics”—the ideas of the Ionian intellectual revolution that were sweeping Athens. As presented in Aristophanes’ Clouds, this was a conflict between philosophy and religion, played out in the mind of a student of Socrates who does not understand the intricacies of either, who is drawn unthinkingly into the orbit of the sophists, and who reacts against those teachings with violence.
Aristophanes’ Clouds—like the death of Socrates—was an expression of such a struggle, between this-worldly “science” and traditional “religion.” But both words must be in quotations; scientific understanding was not Baconian, and religious belief was not Augustinian. Scientists and religious seers were united in their purposes; each purported to understand those things that were not available to immediate sight, which lay hidden either in the future or on a level of wisdom that was beyond the reach of most people. The Greek sophia—wisdom—encompassed conclusions derived both from belief in the gods, and from philosophical thought and investigations into natural events. The war between reason and religion, which led to a series of prosecutions, persecution, exiles and even executions, was fought in a context in which religious truths were not distinguished from scientific truths. Therefore, the very nature of the conflict was unknown in the fifth century, precisely because faith and reason were not clearly differentiated.
“Slavery and Lawlessness in Solonian Athens,”
Scholars who use institutional and legal terminology to analyze the Athenian lawgiver Solon’s attempts to end civil strife in Athens may be relying on anachronistic modern categories that distort both the true condition of Attica and Solon’s actions. Rather than reforming existing legal institutions, his extant verses rather demonstrate that Solon had to deal with unrestrained lawlessness throughout archaic Attica, including rampant slavery that occurred without the decision of a magistrate or a formal sale. The intimidation and hands-on violence of strong-men in the countryside placed their victims into positions of personal bondage, debt-slavery, exile or life in the underground. Although Solon understands several forms of such slavery, he sees a common root—hubris—and common cure: Eunomia, a condition of good order both in the polis and in each man. The problems in Athens could not be corrected by reforming the laws and institutions, but only by creating the cultural climate in which his fellows would subordinate their personal and traditional prerogatives to just, written laws.
It is vital to recognize the presence of non-institutionalized slavery in wild and wooly Attica. Regardless of whether a magistrate had offered a decision or ownership had been established, many men had to do what Solon describes in lines 29-31 of poem 13: “One man gets what he deserves right away, another later; some themselves flee and escape the onrushing fate of the immortals, it comes surely sometime.” Any analysis that considers slavery only in legal terms is suspect, as is any overly formalized view of institutional authorities in Attica. Solon’s problem was not only to change the terms of the laws, but also to rein in those who were enforcing their prerogatives in outlying areas apart from a formal decision, in defiance of dikē and proper standards of life in the polis. This would require some very unpleasant encounters, when the polis began to impose (or re-impose) its authority over Attica, and to make the idea of law real to those outside of Athens. Someone had to enforce these decisions—a vital step towards bringing—or re-establishing—institutionalized justice in Attica.
“Dike, Moira, Bios and the Limits to Understanding in Solon, 13 (West)”
Dike 4, 2001:113-135
Prior interpretations of Solon’s poetic fragments have failed to recognize properly the dichotomy between Solon’s use of dike, which he applies primarily to the polis, and moira, which he applies primarily to a person’s lot in life, including the individual pursuit of material values. This article explains this distinction by considering moira in poem 13, the “Hymn to Muses,” in contrast to dike in the more political poems, such as poem 4, the “Hymn to the City,” and 36, the “Hymn to Himself . . .
. . . To Solon an undesired result in the polis must be the result of corrupted human actions; this is Dike’s promise. In a person’s life such a calamity is due to Moira, who brings good and evil arbitrarily, as she wishes.
“The Intellectual Context of Solon’s Dike”
Polis 18.1 and 2, 2001: 3-26
Solon is our only primary source for the intellectual context of archaic Athenian political thought. Dike is central to that context. The primary question of dike is the degree of abstraction it denotes. To Solon dike is neither an abstract principle with metaphysical proportions, nor merely the concrete procedures of dispute mediation.
Solon understands Dike in a polis that is ordered by the thoughts and actions of human beings, not by divine dispensations. This re-alignment of political authority from vertical authoritarianism to horizontal citizen relationships is directly related to the views of nature found in the Milesian philosophers. Solon’s dike is immanent from the thoughts and actions of the citizens; it is not a divine power pushing down on the polis.
Solon’s dike has three distinct functions. First, it is the inevitable result of unjust thoughts and actions; this is “natural dike.” Second, dike is a process of dispute mediation; this is “procedural dike.” Third, dike is a nascent ordering principle in the polis, found in one passage in Solon as distinct from the consequent retribution. Dike is an archaic concept standing for a comprehensive inevitability in the interactions of the citizens.
“Carving Liberty into Stone: The Greek and American Discovery of Fundamental Law”
The Intellectual Activist 16.10. October, 2002
Thucydides claimed that during Perikles’ tenure, what was nominally a democracy was in fact the rule of one. But Thucydides was misled by the idea that politics is primarily a matter of “how many shall rule.” He failed to see that if limits to the actions of the Assembly are found not in law but in a leader’s personal ability, then the government is not one of laws but of men. This is true even if the leader is wise. Perikles was followed by men who were not of his caliber precisely because of his success in eliminating opposition. The city was bled of worthy successors; all that was left were rabble-rousers eager to please the crowd.
The constitutional aspects of this issue can be further illustrated by considering the essential difference between the Assembly and a Jury Court. Athenian jurors were sworn to judge a case according to law. This oath elevated a juror’s decision to demand compliance with the laws and invited the retribution of the gods and his ancestors if he deviated from them. The Assembly was not limited by such an oath, and could, on principle, pass any decree at any time. The lack of an authoritative law over the Assembly is precisely the factor that Aristotle identified as allowing a democratic assembly to become a tyrant.
“Giving Way: Martha Nussbaum and the Morality of Privation,” Review Essay: M. C. Nussbaum, Women and Human Development (Cambridge: Cambridge University, 2000)
Roundtable, a Journal of the University of Chicago Law School 8.1, 2001:215-237
Martha C. Nussbaum has for decades studied and taught philosophy with a view to its practical relevance. Ancient philosophers were concerned most of all with care for the soul and for beneficial effects upon human life, and we can learn from them in addressing deep problems faced by people today. In her present work, Women and Human Development: The Capabilities Approach, Nussbaum adds to her earlier attempts to formulate practical feminist political principles by focusing on the needs of women in developing countries, especially India. Her approach to the problems she details is moral, political and constitutional: “The aim of the project as a whole is to provide the philosophical underpinning for an account of basic constitutional principles that should be respected and implemented by governments of all nations, as a bare minimum of what respect for human dignity requires.” Ultimately her proposals are intended to serve as a moral core for a set of “constitutional guarantees” acceptable to nations with disparate customs and laws.
Nussbaum’s use of ancient philosophy to develop her modern program leaves room for many levels of critique, but this review will focus on one aspect of her project. Given that she defines her proposals in political terms and states that governments under various systems of law should be concerned with the implementation of these proposals, we must ask: what are the general political and constitutional implications of her proposals? In particular, what are the implications for people whom Nussbaum does not talk about, who do not have a voice in her consensus or her narrative? These people are a substantial portion of the human race.