The Unity of Western Civilization

by Unknown

There you have the assertion of a law supreme and binding on all men, eternal, not to be set aside by human enactment.

And now turn to this passage from the traveller and historian Herodotus, an almost exact contemporary of Sophocles. He has been telling how Cambyses, king of the Persians, has been wantonly insulting the religion and customs of the Egyptians. 'The man must have been mad,' he says:

'For if one was to set men of all nations to make a choice of the best laws out of all the laws there are, each one upon consideration would choose those of his own country: so far do men go in thinking their own laws the best. Therefore it is not likely that any but a madman would cast ridicule on such things. And that all men do think thus about their laws may be shown by many proofs, and above all by this story. For when Darius was king he called to him the Greeks who were at his court and asked them, 'How much money would you take to eat your fathers when they die?' And they answered that they would not do this at any price. After this Darius called the men of an Indian tribe called the Kallatiai, who eat their parents, and asked them in the presence of the Greeks, who were told by an interpreter what was said, 'How much money would you take to burn with fire your fathers when they die?' And they cried with a great voice that he should speak no such blasphemy. Thus it is that men think, and I hold that Pindar spoke rightly in his poem when he said that law was king over all.'[23]

There you have law, king over men and gods, but a capricious monarch commanding here this, there that.

This capricious arbitrary aspect of law was a thing which much impressed the Greeks. They contrasted the varying, artificial arrangements made by mankind with the constancy and simplicity of nature. We speak of nature and convention; they contrasted things that are by nature with things that are by law. It was a contrast that bore fruit later on.

Now law, whose arbitrariness and variety so much impressed the Greeks was the law not so much of this place or that, as of this or that community and its members. This is a conception quite different from that of the modern world. We may paraphrase 'English law' by saying the law of England, because it is the law which will be applied (with, it may be, some exceptions or modifications) by the English courts to all persons, be they English or aliens, who come before them. But Athenian law is not in this sense the law of Athens, nor, to begin with, is Roman law the law of Rome. What we find is a law of Athenian or Roman citizens. The stranger to the city is a stranger to its law. As a matter of principle he is without rights by that law. His life is not protected by the blood-feud which his family can pursue, or by the compensation with which it may be bought off. His marriage with a citizen will be no marriage, or at best a sort of half marriage. He can acquire no land within the city's territory, and what goods he brings with him are pretty much at the mercy of the first taker.

Such, at any rate, is the theory of the 'law of citizens'.

We need not, it is true, believe that it was logically formulated in primitive times and ruthlessly applied. Some of its applications were the result of positive legislation due to a growing consciousness of the self-sufficiency of the city state and of the privileges of citizenship, as when Athens passed a law excluding from citizenship the offspring of citizens who had married foreign wives. But in its broad outlines the principle is sufficiently borne out by the exceptions which were necessary to make human intercourse possible. The stranger within your gates is protected just because he is within your gates, and you throw your protection about him, as is indeed your duty, for suppliants and strangers come from Zeus. The foreigner, even at a distance, may have a citizen as representative who can and will defend his rights. A stranger may be allowed to take up a permanent residence in the city, and by the mediation of a patron or guardian enjoy private rights not much inferior to those of a citizen. His legal position will not be very different from that of a woman citizen, who needs the like mediation. Cities may, again, by treaty confer on each other's citizens reciprocal rights of legal protection.

In the middle of the third century B.C., Rome, after its first successful war against Carthage, took special measures to deal with the problem of the alien litigant. The great and growing commerce which came from all parts of the Mediterranean called for something more than a mere admission to treaty privileges. A special officer was from henceforth appointed to deal with the law-suits to which foreigners were parties, and the judgement was given by a body (which we may compare with our jury) which might include fellow-citizens of the foreign suitor.

But here a difficulty arose: what law was to be applied to a transaction between a Roman and a foreigner, or between two foreigners? The Roman law, the law of citizens, had been codified two centuries earlier, and its outline had been hardened by the practice of two centuries. The forms for a transfer of property, for instance, were rigid and solemn; the foreigner would hardly know them, and if he did, his alien hand could not effectively do the prescribed acts nor his alien mouth speak the almost sacred words. The answer was that behind the forms of the law of this city or that, there was 'a law of the men of all nations'. The common elements in the ordinary transactions of life, in whatever form they were clothed, could be taken into account and given effect to. Thus, side by side with the ownership according to the law of Roman citizens, the solemn words of promise which only a Roman citizen could utter, the marriage which only a Roman citizen could enter into, there might be property, contract, marriage to which any one, citizen or alien, might be a party.