Philosophy Week 7: Aristotle - Athenian Constitution
Laws and those who issue them can gain esteem in society when issued to achieve justice and an outcome that supports the views held in society1. As we saw in the lecture and session concerning Socrates and whether he should remain to face charges, it was noted that even though this was an unjust sentence, the reverence for the law took precedence. While not all societies have a foundation in law, those with methodologies to update law within the existing frameworks and going outside of these and disobeying them can lead to consequences people need to face.2
The Constitution of the United States is held by many in awe and is globally respected. The founders of the United States and the signers of the Constitution remain stalwart members of historical analysis. Solon remains famous for constructing a legal system for Athens. The judgement deployed in this process remains a studied introduction to early law. When talking to King Croesus, Solon came to understand the Aristotelian perspective that no living man can be called happy. In this, misfortune may befall an individual at any time.3
In analysing Solon and Croesus, Plutarch notes:
“When this was told Cyrus, who was a wiser man than Croesus, and saw in the present example Solon’s maximum confirmed, he not only freed Croesus from punishment, but honoured him as long as he lived; and Solon had the glory, by the same saying to save one thing and instruct another.”4
(Plutarch, Great Books, Vol. 14. p. 75)
There are many respected ancient constitutions and lawgivers. The code of Hammurabi and the law of Moses are examples alongside Solon.5 Solon may be considered the archetype of a lawgiver. While law existed and was written on wooden posts within Athens, these were consolidated and updated to ensure a just system was created and written into stone.6
Solon differs in that he is not merely a legislator and was a crafter of the Constitution of Athens. This achievement makes Solon more like the US founding fathers than existing members of Congress. The Constitutional Convention held in Philadelphia in 1787 ratified a written constitution. This process involved fifty-five delegates from the early colonies. Solon did this task alone. Additionally, Solon created a large number of laws.7
Solon came to power at a time of great strife within Athenian political history. At this time, the system had moved between an oligarchy and democracy multiple times, and there seemed to be irreconcilable differences between individuals within the Greek society. Some favoured a larger democracy with more enfranchisement. Others sought to create an aristocratic, oligarchic form of government. Plutarch describes this as:
“Then the wisest of Athenians, perceiving Solon was of all men the only one not implicated in the troubles, that he had not joined in the exactions of the rich, and was not involved in the necessities of the poor, pressed him to succour the Commonwealth and compose the differences.”
(Plutarch, Great Books, Vol. 14. p. 69)
The people of Athens appointed Solon and empowered him. The people:
“chose Solon to remodel and make laws for the Commonwealth, having him the entire power over everything, then magistracies, their assemblies, courts, and councils; that he should appoint the number, times of meeting, and what estate they must have that could be capable of these, and dissolve or continue any of the present constitutions, according to his pleasure.”
(Plutarch, Great Books, Vol. 14. p. 70)
While Solon had the ability to seize control and become a tyrant or King, he rejected this power and set up a constitutional government.8 This alternative mirrors some of the choices taken by George Washington as the first president of the United States.9 Washington could have become King10, and some people backed that choice. Aristotle considers the choice made by Solon to be the best possible.11
“[Solon] was so moderate and public-spirited in all his … Actions, that when it was within his power to put his fellow citizens beneath his feet and established himself as a tyrant, he preferred instead to incur the hostility of both parties by placing his honour in the general welfare above his personal aggrandizement.”
(Aristotle, Great Books, Vol. 9. p. 555)
Those who act in government with restraint, such as Solon, help create a just society.12 It is necessary to balance the various forces in society and not pander to any. Lycurgus was the lawgiver of Sparta.13 For an interesting understanding of some other Greek legal systems, Plutarch notes the history of the Spartan Constitution as well. Further, Emperor Justinian I may be seen as a reformer in the Roman world.14 While not implementing a new constitution such as Solon, Justinian consolidated a chaotic body of law and collected the Corpus Juris Civilis into a form that could be more readily digested and understood.15
The European Code Napoleon did not stem from the actions of Napoleon but rather was implemented by a council that Napoleon appointed.16 This European body of law has become known as the Code Civil. Rousseau distinguishes people who define legal systems as “legislators” in the Social Contract.17
“If great princes are rare, how much more so a great legislators? The former have only to follow the pattern which the latter have to lay down. The legislator is the engineer who invents the machine, the Prince merely the mechanic who sets it up and makes it go.”
(Social Contract, Bk II, Ch. 7., Vol. 38. p. 400)
Rousseau notes how difficult the creation of law must be.18 To Rousseau, law must implement changes that override some aspects of human nature. While this is based on the premise of living in solitude and independence, we can see a difference between Rousseau and Aristotle. Rousseau saw individuals living in small groups naturally.19 Aristotle conceived of the concept of people naturally forming larger and larger societies and eventually a state. To Rousseau, the legislator is:
“This office, which sets up the Republic, nowhere enters into its constitution; it is an individual and superior function.”
(Social Contract, Bk II, Ch. 7., Vol. 38. p. 400)
Rousseau sees individuals living naturally without government in the form of a natural society.20 Such an anarchist view has never occurred. In transitioning from a state of nature to civil society, we need to remember that people choose to become part of the larger whole. Legislators such as Solon introduced the means to moderate and balance society.21
Athenian Laws and Institutions
Aristotle compiled many volumes describing the constitutions of Greek cities.22 Unfortunately, all of these have been lost other than the treatises on Athens. In Aristotle’s Athenian Constitution, Aristotle starts by describing the history and development of Athens’s political systems and laws and then describes the later work of Solon and subsequent legislators.23 The work is concluded by outlining the Constitution of Athens as it functioned during the fourth century BCE.
Aristotle noted that three functions underline the creation and issue of law.
- Laws need to be constructed, implemented, and passed by a legislature of some type.
- Laws need to be enforced and upheld.
- Laws need to apply to particular cases and to have a structure that enables them to be tried.24
Through this, the various functions of the government can be distinguished. In this, the Constitution of the United States assigned each of those functions to separate branches of government. These functions are the legislative, executive and judicial functions of government. First, the Constitution provides powers between the Congress who create the laws in the US.25 These are passed between the House of Representatives and the Senate to ratify. Next, the executive power is held by the office of the President.26 With administrative departments headed by cabinet members, the President executes and enforces law. Finally, the judicial body is constructed through a combination of federal courts in the Supreme Court. These range from the district court, Court of Appeal up to the highest court in the land and many other specialised courts also exist. The judiciary investigates and applies aspects of the law to ensure consistency and fairness.27
These bodies are held in check in the United States through the Constitution.28 Constitutional rules constrain all bodies and apply a system of checks and balances designed to ensure that no one branch of the government can seize control.29 Unfortunately, the lawmaking functions that existed under Solon are lost to us. Neither Aristotle nor Plutarch documents the construction of legislation and leaves the impression that Solon created all the laws by himself Solon believed that law should be set in stone and enacted legislation that was carved into stone pillars and was argued to be able to remain in force for at least a century without change.30 Solon left Greece so that people would think for themselves and that they couldn’t beg him to change the law.31
In some ways, this mirrors the condition of how bitcoin was founded. The creation of Athenian rules was done in a supposedly set in stone, but as with Solon, other people took charge and changed the rules. In the time of Solon, there was a lack of literacy and people needed to employ others to interpret the writing in the stone. Regarding bitcoin, the development teams used the mythology of how difficult bitcoin was to promote the concept of it being out of the understanding of ordinary people.32
“When he had completed his organisation of the Constitution in the manner that had been described, he found himself beset by people coming to him and harassing him concerning his laws, criticising here and questioning there, till, as he wished neither to alter what he had decided on nor yet be an object of ill will to everyone by remaining in Athens, he set off on a journey to Egypt… Giving out that he should not return for ten years.”
Solon believed that the laws would not be susceptible to either alteration or addition if he left.33 It was the interpretation and application of the law that became important. In this, people needed to start to think for themselves. The judiciary and the courts acted under the Constitution Solon created, allowing all citizens to argue are wrong in court.34 The democratic character of the Constitution allowed people to have both the duty of serving in court and the privilege. While not all positions within the government were open to all people, the courts were universally accessible.
“Since the laws were not drawn up in simple and explicit terms (but like the one concerning inheritances and wards of state), dispute inevitably occurred, and the courts had to decide in every matter, whether public or private. Some persons, in fact, believe that Solon deliberately made the laws indefinite, in order that the final decision might be in the hands of the people.”
Two hundred years passed between the creation of the Constitution by Solon and when Aristotle described the current legislative system in Athens.35 At this time, the democratic structure and power increased, but the courts’ function remained very much as it was. The assembly consisted of the citizens in Athens and did not require wealth. All of the offices of government were selected from the citizenry. As such, by the time Aristotle documented the Athenian government, the various functions of the legislative, executive and judicial power were all in the control of the people of Athens. Aristotle noted that membership of the assembly or “[t]he franchise, is open to all citizens birth by both parents”. The legislative power was in the hands of the citizen.
There were no special qualifications for executive positions with “all the magistrates concerned with the ordinary routine of administration are elected by lot…”. Moreover, there was no requirement other than citizenship to be a jury member. “The jury is for the law courts are chosen by lot by the nine Archons”. By the time of Aristotle, the power of the government lay in the control of the citizenry.36
The Three Powers of Government concerning Law
Laws are created through the legislative body. Next, the enforcement of the law is enacted through executive power. Finally, the additional power acts to apply and interpret the law.37 The Constitution of the United States separates each of the branches of government and the three Powers. The goal was to ensure that each branch of government could only minimally influence the others. In this, the overlap and oversight provide a series of checks and balances so that each branch of the government remains divided and split with the others and ensures the power does not become too excessively large.38
While changes have occurred since the implementation of the Constitution of the United States, the President was never supposed to be able to create any law. His role was merely to be able to veto them. The President held the Congress and Senate and checked through veto powers.39 Equally, Congress could check presidential power due to the requirement that his covenant was made with the “advice and consent” of the Senate. The Bill of Rights states that “Congress shall make no law respecting an establishment of religion” and “no Bill of attainder or exposed facto law shall be passed”.
When disputes over interpretation occur, these questions are settled by the courts. When a law is not aligned to the Constitution, it is deemed unconstitutional. In this instance, the law cannot be applied, and in criminal cases, nobody can be convicted of such a law. In this way, the justice system in the courts acts as a review board interpreting and reviewing the functions of the other legislative and executive bodies. In some ways, the Athenian Constitution functioned analogously to the US Constitution. Even then, some laws were obscure and vague, and the result was that judicial interpretation and decisions were required. In the case of a member of the Athenian assembly seeking to create law outside of the Constitution, the proposed legislation would be seen as an illegal proposal, and the courts could strike it down.40
As with the United States, the Athenian Constitution provided the courts in Athens with significant powers and allowed them to rule on interpretation and the constitutionality of a law. The same individuals would serve both in the assembly and in courts. Juries numbered from 500 to 1500 members. These are far larger than jury bodies we see today. In this, Athenian citizens would act in creating law in the assembly and later in interpreting and judging its constitutionality. This differs significantly from the position within the United States.41
Can the cancellation of Debt be legally justifiable?
Solon reset the status quo and, as head of government, cancelled all existing debt. At the time, the credit industry and the number of people being sold from poor families into slavery were threatening the stability of the state. Plutarch describes this as:
“All the people were indebted to the rich; and either they tilled their land for their creditors, paying them a six-part of the increase, and were, therefore, called Hectemorii and Thetes, or else they engaged their body for the debt, and might be seized, and either sent into slavery at home, or sold to strangers; some (for no law forbade it) were forced to sell their children, or fly their country to avoid the cruelty of the creditors….”
The need for credit reform can also be seen in the Old Testament of the Bible. The cancelling of credit built up in the manner noted by Aristotle can place an entire state at risk. The problem is that debts created in this way are legally contracted. So, it is arguable that this is a form of expropriation. Solon could have settled on a compromise. He could have created a system where debts secured by the person could not be repaid by slavery, and he could have required a longer-term debt repayment structure. Moreover, unlike his later successor, Solon did not force the farmers into growing olives nor give them a way to achieve this. The structure did not work out as well as people thought, and Solon’s action set a precedent that allowed for the future ability to rescind a contract.42
For this reason, the Constitution of the United States explicitly removes the ability to implement ex post facto law. In making a law after the event, the legislator changes the past and removes the ability of individuals to act knowing that they are within the existing law.43 If ex post facto laws can be applied, no person may be safe in any contract. Just because something is legal now does not mean that it always will be in such a system. Ex post facto law destroys the ability and desire for people to abide by laws and removes all legal certainty.44
Questions and Reflections
In order to best understand and comprehend the work, we must question it and think about our understanding by challenging ourselves. Through this, we can learn how to question our own comprehension and whether we have been thorough in understanding what we have read.
- Why did Solon repeal Draco’s laws?
- How long did Solon intend the law he implemented to last?
- What were the duties of the Archons during the time of Aristotle?
- How were jurors selected?
- How do jurors vote?
- In the time of Aristotle in Athens, how did an individual become a fully implemented citizen?
- Describe the introduction of the law requiring that jurors should be paid.
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