Monday, March 1, 2010

Curing Mob Rule with the Rule of Law

I have stumbled upon an interesting observation. Here's the gist. Everyone knows that Athens, a textbook example of absolute, unlimited democracy, collapsed in 411 BC (and then again in 404 BC after a brief restoration) because of its inherently unstable and arbitrary nature and lost the Peloponnesian War partially because of the same reason. Few know, however, that in the fourth century BC Athens attempted to introduce a new type of government - majority rule subject to the rule of law. The experiment is interesting because it demonstrates a general interest in similar political principles in the Mediterranean at that time. It failed eventually (perhaps due to a lack of checks and balances) and Greece yielded first to Macedonian despotism and then to a superior type of government - a much more advanced experiment in the rule of law called the Roman Republic. Below are some quotes:

By a little-known researcher:
This article refines our understanding of the fourth-century Athenian democracy by examining the extent to which the rule of law checked the power of the popular Assembly. Although the concept of the rule of law may take on various meanings in different contexts, when used in this article the phrase 'rule of law' refers to the idea that the Assembly should be subject to, and act in accordance with, written law. The conclusions presented in this study are based on a systematic analysis of the legal arguments delivered in graphai paranomon and graphai nomon me epitedeion theinai, which were the primary vehicles in the fourth century for enforcing the rule of law. The graphe paranomon allowed the courts to annul any Assembly decree (psephisma) that ran contrary to standing law, while the graphe nomon me epitedeion theinai permitted a similar review of new statutes (nomoi). I will argue that despite the aggressive legal reforms enacted in 403/2 Bc to bring the popular Assembly under the rule of law, the rhetoric of the graphe paranomon and graphe nomon me epitedeion theinai speeches shows that these reforms were likely to have imposed only a weak restraint on the sovereignty of the Assembly. Ultimately, this study provides new grounds for concluding that the Athenian democracy of the fourth century was no less radical than that of the fifth century.

By prominent classical liberal Lord Acton:
But for those who were beaten in the vote there was no redress. The law did not check the triumph of majorities or rescue the minority from the dire penalty of having been outnumbered. (…) The restless and inquiring spirit of the Athenians was prompt to unfold the reason of every institution and the consequences of every principle, and their Constitution ran its course from infancy to decrepitude with unexampled speed.
Two men’s lives span the interval from the first admission of popular influence, under Solon, to the downfall of the State. Their history furnishes the classic example of the peril of Democracy under conditions singularly favourable. (…) (The Athenians) venerated the Constitution which had given them prosperity, and equality, and freedom, and never questioned the fundamental laws which regulated the enormous power of the Assembly. (…) But the possession of unlimited power, which corrodes the conscience, hardens the heart, and confounds the understanding of monarchs, exercised its demoralising influence on the illustrious democracy of Athens. It is bad to be oppressed by a minority, but it is worse to be oppressed by a majority. For there is a reserve of latent power in the masses which, if it is called into play, the minority can seldom resist. But from the absolute will of an entire people there is no appeal, no redemption, no refuge but treason. The humblest and most numerous class of the Athenians united the legislative, the judicial, and, in part, the executive power. The philosophy that was then in the ascendant taught them that there is no law superior to that of the State—the lawgiver is above the law.
It followed that the sovereign people had a right to do whatever was within its power, and was bound by no rule of right or wrong but its own judgment of expediency. On a memorable occasion the assembled Athenians declared it monstrous that they should be prevented from doing whatever they chose. No force that existed could restrain them; and they resolved that no duty should restrain them, and that they would be bound by no laws that were not of their own making. In this way the emancipated people of Athens became a tyrant; and their Government, the pioneer of European freedom, stands condemned with a terrible unanimity by all the wisest of the ancients. They ruined their city by attempting to conduct war by debate in the marketplace. Like the French Republic, they put their unsuccessful commanders to death. They treated their dependencies with such injustice that they lost their maritime Empire. They plundered the rich until the rich conspired with the public enemy, and they crowned their guilt by the martyrdom of Socrates.
When the absolute sway of numbers had endured for near a quarter of a century, nothing but bare existence was left for the State to lose; and the Athenians, wearied and despondent, confessed the true cause of their ruin. They understood that for liberty, justice, and equal laws, it is as necessary that Democracy should restrain itself as it had been that it should restrain the Oligarchy. They resolved to take their stand once more upon the ancient ways, and to restore the order of things which had subsisted when the monopoly of power had been taken from the rich and had not been acquired by the poor. After a first restoration had failed, which is only memorable because Thucydides, whose judgment in politics is never at fault, pronounced it the best Government Athens had enjoyed, the attempt was renewed with more experience and greater singleness of purpose. The hostile parties were reconciled, and proclaimed an amnesty, the first in history. They resolved to govern by concurrence. The laws, which had the sanction of tradition, were reduced to a code; and no act of the sovereign assembly was valid with which they might be found to disagree. Between the sacred lines of the Constitution which were to remain inviolate, and the decrees which met from time to time the needs and notions of the day, a broad distinction was drawn; and the fabric of a law which had been the work of generations was made independent of momentary variations in the popular will. The repentance of the Athenians came too late to save the Republic. But the lesson of their experience endures for all times, for it teaches that government by the whole people, being the government of the most numerous and most powerful class, is an evil of the same nature as unmixed monarchy, and requires, for nearly the same reasons, institutions that shall protect it against itself, and shall uphold the permanent reign of law against arbitrary revolutions of opinion.

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