Long slightly edited extract from work in progress. More about Mill than Foucault but written in the context of work on Foucault and the history of liberty.
John Stuart Mill’s On Liberty (1859) has an important relation with the work of his friend George Grote on Athenian democracy, a work by a classicist arguing for the modern relevance of Athenian democracy. Grote even takes on the most notorious aspect of Athenian democracy, ostracisim, to argue that it was necessary for building up the kind of constitutional morality necessary to a stable democracy. It is the lack of that constitutional morality which is behind the excesses of the French Revolution, in Grote’s argument. The implication is that for Grote ostracisim does not anticipate the worst aspects of modern democratic revolutions, it is a necessary barrier against those aspects. A stable democracy may have less need of such devices over time, but that makes them no less necessary in instituting democracy.
Against this chance of internal assailants Kleisthênes had to protect the democratical constitution — first, by throwing impediments in their way and rendering it difficult for them to procure the requisite support; next by eliminating them before any violent projects were ripe for execution. To either the one or the other, it was necessary to provide such a constitution as would not only conciliate the good-will, but kindle the passionate attachment, of the mass of citizens, insomuch that not even any considerable minority should be deliberately inclined to alter it by force. It was necessary to create in the multitude, and through them to force upon the leading ambitious men, that rare and difficult sentiment which we may term a constitutional morality — a paramount reverence for the forms of the constitution, enforcing obedience to the authorities acting under and within those forms, yet combined with the habit of open speech, or action subject only to definite legal control, and unrestrained censure of those very authorities as to all their public acts — combined, too with a perfect confidence in the bosom of every citizen, amidst the bitterness of party contest, that the forms of the constitution will be not less sacred in the eyes of his opponents than in his own. This co-existence of freedom and self-imposed restraint, of obedience to authority with unmeasured censure of the persons exercising it, may be found in the aristocracy of England (since about 1688) as well as in the democracy of the American United States: and because we are familiar with it, we are apt to suppose it a natural sentiment; though there seem to be few sentiments more difficult to establish and diffuse among a community, judging by the experience of history. We may see how imperfectly it exists at this day in the Swiss Cantons; while the many violences of the first French revolution illustrate, among various other lessons, the fatal effects arising from its absence, even among a people high in the scale of intelligence. Yet the diffusion of such constitutional morality, not merely among the majority of any community, but throughout the whole, is the indispensable condition of a government at once free and peaceable; since even any powerful and obstinate minority may render the working of free institutions impracticable, without being strong enough to conquer ascendancy for themselves. Nothing less than unanimity, or so overwhelming a majority as to be tantamount to unanimity, on the cardinal point of respecting constitutional forms, even by those who do not wholly approve of them, can render the excitement of political passion bloodless, and yet expose all the authorities in the State to the full licence of pacific criticism.
(Grote 2001, 93)
Grote, George (2001) A History of Greece: From the Time of Solon to 403 B.C.,
Condensed and Edited by J.M. Mitchell and M.O.B. Caspari. London: Routledge
(George Routledge 1907, [Based onA History of Greece from the Earliest Period to
the Close of the Generation Contemporary with Alexander the Great (12 volumes)
In Grote’s interpretation of Athenian democracy, the democracy itself improves the mentality of the people who are now concerned with the common good, and with the private and public actions which go beyond pure egotism. The suggestion that constitutional morality similar to that in the United States can be found in Athens through the institution of ostracism certainly cuts across a lot of assumptions about contrasts between ancient and modern liberty, direct and representative democracy. The attribution of ‘constitutional morality’ to the Athenians could be something of an anachronism, certainly if means attributing mid-nineteenth American century attitudes to fifth century BCE Greeks. One distinction could be in the unwritten laws that Pericles refers to in Thucydides account of his speech. There is not necessarily a complete break, explicit notions of natural justice, along with less explicit assumptions about right and wrong, in modern societies may give us unwritten laws of a kind. However, surely Pericles meant something stronger, which can be found for example in Plato’s Phaedo, the idea of the laws of a city as its character, as something distinct from a list of laws, some way in which the city is personified. The tragedies of Periclean (broadly speaking) Athens present us with law as the force of divine powers, and in conflicts between civil and natural law, which are very personalised and are not about adjudication between laws which may appear to conflict. The ancient sense of law as something divine, archaic, often present in customs rather than written down is something noted by eighteenth century writers, as when Montesquieu talks about the conditions of a democratic republic, with reference to the early stages of antique republics. Foucault, himself, alluded to this issue, when he refers to the growth of ‘juridification’ in the Middle Ages which he contrasts with style of living and care of the self in antiquity. So ‘constitutional morality’ in ancient republics refers not only to respects for laws, and the laws which set up institutions along with the limits of law, but also to customs, respect for gods and the ancestors, awareness of the city as unified by its common rituals. All of these might be taken as aspects of the liberty of the ancients, in Constant’s distinction, but we should also remember that Friedrich Hayek, admirer of Constant and apparent advocate of liberty in the modern sense was a great advocate of law as distinct from written legislation. This is another instance where attempts to make an absolute distinction between ancient and modern liberty fail.
In Grote, again we have an idea of active liberty attributed to antiquity, but also to modernity. This is contrasted with Burkean conservatism in which it is assumed that the people will never, as a whole, be concerned with Burkean principles. This inherent quality of democracy adds to the benefit it provides of milder criminal justice, along with better laws and administration. All of these advantages of democracy elevate the people beyond obedience to authority, and is what gave the Athenians success in war.
Stronger expressions cannot be found to depict the rapid improvement wrought in the Athenian people by their new democracy. Of course this did not arise merely from the suspension of previous cruelties, or from better laws, or better administration. These, indeed, were essential conditions, but the active transforming cause here was, the principle and system of which such amendments formed the detail: the grand and new idea of the Sovereign people, composed of free and equal citizens — or liberty and equality, to use words which so profoundly moved the French nation half a century ago. It was this comprehensive political idea which acted with electric effect upon the Athenians, creating within them a host of sentiments, motives, sympathies, and capacities, to which they had been strangers. Democracy in Grecian antiquity possessed the privilege, not only of kindling an earnest and unanimous attachment to the Constitution in the bosoms of the citizens, but also of creating an energy of public and private action, such as could never be obtained under an oligarchy, where the utmost that could be hoped for was a passive acquiescence and obedience. Burke has remarked that the mass of the people are generally very indifferent about the theories of government; but such indifference (although improvements in the practical working of all Governments tend to foster it) is hardly to be expected among any people who exhibit decided mental activity and spirit on other matters; and the reverse was unquestionably true, in the year 500 B.C., among the communities of ancient Greece.
(Grote 2001, 109)
Grote accounts for the strength and liberty of the Athenians, with reference to the shared idea of a sovereign people of free and equal people. This is certainly attributing the language of early modern contract theorists, particularly Rousseau, to ancient Athens, and probably contains an understanding of antique politics entangled with modern conceptions of sovereignty. As Foucault notes, equality before law is (isonomia) is fundamental to antique liberty, itself connecting with equality in the right to speak in a public forum (isegoria), and that further connecting with parrhesia. However, the ancient conception is much more specific, particularistic and opaque, with regard to the unity of an individual people sharing common roots in the city.