(extract from work in progress on Foucault and Liberty)
Mill’s relation with the work of George Grote on Athenian democracy, a work by a classicist arguing for the modern relevance of Athenian democracy, and which is worth some discussion in its own right, giving background to Mill and to the ways in which work on ancient history connects with political thought, going up to Foucault himself.
Grote even takes on a notorious aspect of Athenian democracy, ostracism, 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, ostracism 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.
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 is that constitutional morality similar to that in the United States can be found in Athens, though 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, nevertheless we have reason to believe that Ancient Greeks took laws and legal codes seriously. One distinction we need to take into consideration could be in the unwritten laws that Pericles refers to in Thucydides’ account of his speech, quoted at the head of this chapter. 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 more concrete, more ‘lived’, along the lines that can be found in Plato’s Crito, in the famous passage where the laws appear before Socrates and speak to him. There is 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 Athens in that age, discussed above, 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 statute laws that 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, in making the distinction between ancient and modern liberty, similar distinctions, as when Montesquieu talks about the conditions of a democratic republic, with particular reference to the early stages of antique republics, and the requirement for virtue in The Spirit of the Laws (I, 3 & 4).
Foucault, himself, alluded to the issue of the transformations of law, 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. ‘Juridifcation’ and associated concepts will be explored further in Chapter Three. 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. It is these which are both respected and challenged in parrhēsia.
It is in Grote, again, that we have an idea of active liberty present in antiquity, but also in modernity. This is contrasted with Burkean conservatism in which it is assumed that the people will never, as a whole, be concerned with political principles. That is Grote sees, in antique liberty, a corrective to the conservative political theory of Edmund Burke, as expressed in his famous book of 1790, Reflections on the Revolution in France (1968), where he argues for liberty only as ‘rational liberty‘ within the constraints of tradition, precedent, custom, law, religion, and state authority Grote’s contrary justification of democracy argues that the inherent quality of democracy adds to the benefit it provides of milder criminal justice, along with better laws and administration, so replying to some of Burke’s concerns. All of these advantages of democracy elevate the people beyond obedience to authority, and is what gave the Athenians success in war.
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. However, 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 parrhēsia. However, as Foucault recognises, the ancient conception is much more specific, particularistic and opaque, referring as it does to the unity of an individual people sharing common roots in the city .