L. Rule of law

In a remarkable anticipation of things to come, the poet Hesiod of the seventh century B.C. speaks about the difficulties man will have once he tries to establish sound rules for 'life under the law', and that inside the city.

The eye of Zeus sees all, and understands,

And when he wishes, marks and does not miss

How just a city is, inside. And I

Would not myself be just, nor have my son

Be just among bad men: for it is bad

To be an honest man where felons rule;

I trust wise Zeus to save me from this pass.

But you, O Perses, think about these things;

Follow the just, avoiding violence.

The son of Kronos made this law for men:

That animals and fish and winged birds

Should eat each other, for they have no law.

But mankind has the law of Right from him,

Which is the better way. And if one knows

The law of Justice and proclaims it, Zeus

Far-seeing gives one great prosperity.

But if a man, with knowledge, swears an oath

Committing perjury and harming right

Beyond repair, his family will be cursed

In after times, and come to nothing. He

Who keeps his oath will benefit his house.

Hesiod, Works and Days (258-88)

Important are several aspects in this poem about 'oaths', or how to ensure that man does keep his promises and stays, as a result, on 'the better way'. For one, there governs inside of the city a different law, for it appears almost impossible to be good amongst bad people. Secondly, the heat of the pavement, the proximity to poverty, but also the access to places of learning and to other means of survival, all that poses new challenges to man and not always does he manage to stay honest, that of 'being just by avoiding violence'. Thirdly, the need for law reflects the practical experience of rules being broken because men do not keep their promises, and there is usually very little what can be done about it. Finally, Hesiod has in mind a total vision because "Zeus sees all", in order to ensure that the entire city remains just - an innocent, equally omnipotent position giving Zeus the possibility to see everything, but as it turned out to be later in history, most dangerous the moment ideologies in reference to Ancient Greece start to proclaim the necessity that the state obtains eyes, in order to control everything. This is the totalitarian state in the making.

Part of the twentieth century discussion will be, and as Martin Jay in his convincing treatise about the 'Disenchantment of the Eye' shows, about different interpretations of perception, or what underlies the dispute between Bataille and Breton, namely fragmentation of perception versus the totalitarian vision. There was not as of yet touched upon the gap existing between vision and law of practice. Endorsement of rules follow according to the Ancient Greek mind, and foremostly that of Cleisthenes such a design of law which takes all of these factors into account, in particular the exclusion of such promises that men can break their promises with the idea that they would benefit from such an act.

Naturally not all of these aspects can be accounted for when moving within the realistic framework of Ancient Greece, yet they explain something about this difficult, and at times very tense, equally unfortunate kinship to anti-human movements. Perhaps the idealization of the perfect lead to a very reactionary movement against man himself struggling with his incompleteness. The 'rule under the law' is also subject to many misinterpretations, and does not always govern the relationship between the individual and society, as is distorted the measure between present and past laws. Hesiod is wise enough to suggest that vision and perception depend upon man being capable of reasoning by himself. He can then judge by himself which aspects of the law apply to his life, which ones do not, for freedom under the law implies the possibility to negotiate if found guilty at least the terms of punishment, while any man in the wish to avoid any kind of violence will want to argue in such a way that another solution can be found. Basically, it has to be understood in a securalized way, namely how to keep up the belief in a deity which has bestowed upon man his own rationality.

Hesiod's answers lie in the direction of developing, in order to secure a city state which is just. It depends not only upon the laws but upon the honesty of men. The individual is as good or bad as the community itself can be good or bad. Clearly the biggest breach of law is not to keep one's promises. To rectify that, it is recommended that the Polis moves towards a legal framework by which everyone applies the same measures for things to come, in order to avoid violence. For man wants to continue to fish and eat what nature has to offer, but which is made available through not so much his labour, but skills and knowledge, and he wants to continue relating to the holy shrines or temples of worships, there where the true voices of the others speak up, in order to be listened to what the Gods have to say through the oracle.

By drawing such a schematic difference between a legal system applying to the life in the Polis, and lawlessness of life in nature, this contrast by Hesiod may help to understand why the concept of 'nature' was neglected by the Ancient Greek thinkers, and not only them since the neglect of the Physis has led to a law interpreted strictly by its linkage to the Nomos: the spirit of the law, or rather its good intention. Emphasis is placed in Ancient Greece upon 'inside of the city', that is within its protected borders. Although this thought is most advanced and very modern as an approach to life, there remains until today the problem of this reduction to the man-made world versus nature. Whether ascribing to natural as opposed to social law, the attribute of being civilized in having laws made by man, all those efforts to give a basis for law suggest self-elevated, but never fully resolved positions. Hence Rousseau's 'Social Contract' is a mere abstract extrapolation out of nature into society in order to establish primarily one strict basis for rules which are meant to apply to everyone, namely no longer promises but agreement, that is contract law. The Greek approach is more subtle, and it leaves space for breathing the crisp air when the wind strokes the forehead in order to cool it from the sun beating down on everything and everyone.

Usually people want to know consequences or more specifically what is the freedom under the rule of law. But many interact without knowing what is the law. That is another kind of 'not knowing', hence the importance of calmness since too many things are lost if reactions are hasty and not thought through. The law depends, therefore, upon calmness to interpret the consequences of possible actions. It is not a life of broken promises, but one of avoiding the curse if one does break a promise.

As a prime form of justice linked to being civilized, such 'rule of the law' is meant to introduce a kind of soberness when facts of life have to be faced, and this without any pretence of being someone. Yet the reduction to that simple truth was not 'nothing', for it was afterall still man facing and fighting all sorts of difficulties, in order to assume self-responsibility and, therefore, the means of self-government. He was alive, even if afraid not to please the Gods, but also daring to provoke the Gods into another kind of exchange rather than follow the usual path of revenge to regain some balance. That was and shall always be the tragic side and flaw of life.

To the Greeks, there was nothing absolute about these kinds of Gods, and hence no reason could be attributed to that kind of anger leading on to revenge. If so, there followed immediately remorse: the first making of a cultural dimension based on redemption. Many were send into exile, if only to be recalled later, since this law knew also the ability to forgive especially if with age wisdom was added and practical situations turned into pressing needs for such wise council. They understood better than anyone else that only stupidity could make it possible to be outplayed, while they realized equally in a game with the Gods they could never win. That required strength and dignity to acknowledge just that, namely that the possibility of being outplayed would only fall back upon themselves for not having realized early enough what was being played. Yet they were not displeased with that sort of perception of the world. As Ernst Cassirer would say, they had something akin to primitive people, namely a friendly attitude towards the world. Even a modern Greek mother would prefer such a setting in which there were many Gods rather than just one, for the former could be outplayed amongst themselves rather than being at the mercy of only One. Odysseus managed to escape the rage of Poseidon only with the help of Athena. It meant not giving up, nor to resign to a sort of pre-determined, equally fatalistic life, but to exchange things while remaining free to bargain about the rules of that exchange. That was more than mere barter trade, it was a new kind of kinship to a deity begging for new definitions since the moment something is not absolute, but there, existing, it means to perceive it through movements while itself constantly moving, transforming itself into various shapes and even disguises, in order to return to a form most easily recognizable as belonging to that kind of polis preferred. Even marriage contracts reveal that wisdom for they allowed according to rank the woman to be married to a foreign ruler her own priests, thus personal reconciliation's with life for words are not there to admonish, but to comfort for great was and shall always be the pain of those who had to leave their own families and familiar sounds of childhood behind.

Exchange yes, but under certain conditions, and not revenge, for that was the difference of the Greeks to all the others, namely to seek the rule of law without asking for revenge as a way of re-adjustment or of regaining balance. If attempted nevertheless, it meant always tragedy or as in the case of Alexander the Great immediately a kind of remorse of having given in to the wishes of women who wanted to burn down Persepolis. To them the search for balance through revenge, meant man risking to forget that this state of affairs means really being permanently out of balance. It was something else to be permanently on a voyage.

In retrospection, 'the rule of the law' in the Ancient Greek world is really an admission that no place has been found as of yet to attain true calmness, that is one free of any masks. The French painter Watteau would interpret that to drop the mask, and only reason which does not deny feelings being able to guide mankind to the life in happiness. For that man requires access to pleasure, that is utmost happiness as a self-fulfilling prophecy of being possible only when realizing a life of love.

In other words, clinging on to revenge would mean that it was impossible of describing a path towards peacefulness nor to have access to such a human language that would give freedom to self-recognition in the relationship between man and woman. All lawfulness is meaningless if there is no love, that is true desire. By this the Greeks meant to include the guidance of the Gods. It should enable man to realize such a life of happy bliss, free to think about things not immediately needed, but of relevance because in coming to rational terms with the world.

Given the importance of promises being kept, the private equivalence to promises being kept was the faithfulness in love - the great theme of Homer's Odysseys in which 'vengeance ends in a bloody death' while homecoming translates life into 'honour being satisfied', that is not being questioned either by death or other men. By contrast, revenge means not wishing to question one's own negative motives like the suitors in Odysseus' house, and in not realizing that they have trespassed another man's house, those seeking to avenge the deaths of their sons at the hands of Odysseus, they get entangled in all sorts of fateful consequences. It is said, that they suffer truly a loss of vision, as those suitors realize little that the Gods stand behind Odysseus' power to enact a freedom of will, in order to get rid in his house of all suitors. Hence by refusing the redemption offered by Odysseus, they rob in the final hours of justice themselves of any possible human recognition. Such a refusal to recognize own mistakes translates easily into tragic dimensions, and are enacted upon everytime when life perishes in the realms of the unexplainable 'but why', that is people made helpless through an explosion of violence, but not able to explain how this came about. This is a mere negative form of astonishment, and no longer related to the wonder about the world. It diminishes the power to imagine a mortal world blessed by and filled with the laughter of childhood, or civilization returning to its roots of innocence.

There is another problem connected with 'the rule of the law'. It was touched upon by Socrates as soon as he expressed that by knowing that he does not know, he is the wiseth man of all, an assumption which the Polis could only refute by giving him the alternative to drink the hemlock or else flee secretly into exile, that is to leave the community. Not knowing was equal to the Polis as not heeding its laws, or else by assuming to stand above them, to make them into an object of mockery which comes equal to not respecting the deity of the city. In practical life this meant freedom was formed in-between all those spaces left to seek pleasures of life as one pleases while not forgetting that there are formalities in need of being taken serious when the situation calls for it. That was not a hushed reverence to the Gods, but showing respect at the height of arguments filling the air with life. Loud voices and respect to the deity could go hand-in-hand, provided that this difference was acknowledged when it counted most, namely in front of other men. Misleading people, and especially the youth was, therefore, the highest crime because it would cause damage to the whole Polis.

This then explains why the Polis reacted in such a strange, indeed violent manner towards Socrates. It was not so much the belief that he would mislead the Youth, but something which has never been fully interpreted. Perhaps the fear became violent against him because he failed to convince them otherwise in thinking his philosophy would bring about, generally speaking, a life without the rule of the law. Socrates gave support to this assumption by not agreeing to any measure of punishment thought by the Polis to be reasonable. The law at that time provided for an alternative sentence to be suggested by the accused himself, that is if not exile or the death penalty itself, then in the form of a satisfactory punishment, e.g. a large enough payment to the Polis. Socrates offered merely 25 Drachmas. In the second vote which was taken by the Polis no longer just 60, but 140 found him to be guilty. His suggestion that "instead of being punished, he should be rewarded like the victors at the Olympic games with a pension for the rest of his life" (Robert Payne, Ancient Greece, p. 359) had obviously angered more than what people were prepared to accept in the form of straight forward truth. Nevertheless Socrates died upholding the law of the Polis by not fleeing into exile.

Interestingly enough Plato showed in his reconstruction's of Socrates' dialogues that prior to himself standing trial, he persuaded while waiting outside a youth not to accuse his father in front of the Polis for having killed a slave. It appears as if here two laws were in conflict with one another: the loyalty of the son to the father as part of a citizenship based on blood relationships versus the law of the community based on equal rights for everyone, including the stranger, provided he respects 'the rule of the law'. There was no reconciliation possible between the two, and thus as a matter of historical choice blood relationships dominated over legal terms in the advice given by Socrates. This was nothing else but a fall back to an acceptance of the status quo, and hence rendering any positive influence upon the setting of priorities within the scope of the Polis to a mere outcome of power and violence of the slave society. The latter is always to be equated with the silence vis-a-vis unjustice, e.g. a father killing a slave.

Because of the indictment of Socrates, it is said that Plato vented all his anger against the Polis for not proving to be democratic enough, but as Adorno would say, this should not go as far as denying democracy altogether, that is the 'rule of the law'. The latter takes on then immediately a different meaning, for if paired with reasoning, such governance by 'the rule of the law' comes closer to the spirit of enlightenment. It outlines what can develop within the community of man in accordance with such thoughts giving to man the ability to reason, and hence to judge certain 'sujets' not yet called 'legal matters' as something different from civil life. For the 'rule of the law' had to express the spirit of the community as prime source for inspirations about governance through rules and their legitimization by the Polis.

Indeed, as long as philosophical themes centred merely around a kind of 'not knowing' without reference to law, there was no knowing as to what consequences would have to be faced if one did something. This lead clumsily enough Nietzsche to state that if "God is dead, then everything is allowed', while Dostoevsky tried to keep the thematic reflection closer to feelings and a concept of a total morality, that is nothing can be done without having any consequence. Between both extreme positions, people continue trying to build-up a community of man with different success stories and many failures. Without relating lack of knowledge to the real legal framework, or by which rules one has to abide to, they feel themselves lost. Contrary to Socrates their 'not knowing' is derived from not knowing what laws govern their actions, that of the stranger or of the Polis, or a bit of both because everything is only in the making, in order to form a just community. Again the combination of reason and 'rule of the law' means to apply true measures as to where things stand at the moment. This does not mean, however, no laws and hence no consequences prevail at all in any community of man.

On the other hand, such religious communities as envisioned by Dostoevsky has such laws which suppose to affect the conscience, and through this have consequences upon the morality of the human being. It is quite a different concept of man, even if not admitted, and not safe at all from some kind of magical law or belief in fate. Everything is based in such a case on an all evasive psychological connection with the cosmos, and left reason as 'measure of things' outside any consideration of a needed rationality by man to have, in order to fulfil the prerequisites of a human legal system. As Robert Payne attests himself, even the Athenian democracy was not free of such things. Consequently it left the task of overthrowing such regimes based on superstition if not to strangers, then dangerously at the mercy of not only intrigues but of violence itself. In the Polis the people reacted strongly against repeated tyrannical rule, and preceeded what would become later in the history of Western Civilization to be known as revolutionary forces attempting to overthrow the unjust rule. The latter were quickly denounced as aestheists, or as those acting upon sheer power, that is not upon the law handed down to man by God. Instead of the Greek world filled by the Gods, christianity had installed that single deity determining the unity of all. Dostoevsky came perhaps to his convictions by having seen people die at the guillotine as a result of just another unjust rule being replaced through a newer one, sharper than that of the old regime. The new regime made no difference in beheading all those found to be guilty by virtue of their lack of claim to the new citizenship due to having the wrong blood, that is an aristocratic background or else sympathy for the old regime. The Russian writer failed to distinguish between the reasons for the revolt and what could not be justified as a measure, if based on the simple morality of vengeance, or even worse on the 'lawlessness of the bad' as expressed by Marquis de Sade.

Out of the perspective of Ancient Greece which was also not entirely free of such arbitrary violence directing itself if not against all, then individuals like Socrates, it is understandable that the just 'rule of the law' has been then and still is now a matter of knowing or not knowing which laws apply, or as Victor Hugo would say through his novel 'Les miserables', "the people of France revolted against the arbitrariness of rule, against the not knowing what law shall be applied when someone was hanged for stealing an apple out of hunger while another one went free despite having committed a murder". This revolt against not knowing meant a quest to restore the rule of the law under not any circumstance, but according to the value premise of equality as expressed in the formula 'citoyen du monde'. Hegel denounced that in a double sense: people tearing down the institutions they had helped to build up, including the legal system, and that this kind of citizenship or 'rules of the citoyen' was dangerous because to him that meant cosmopolitan: the one who like the Jews would swear not his allegiance to the state but instead remain free to roam throughout the world while his decisions were not bounded by particular interests as defined through the state wishing to be recognized. What then was the freedom to live in the community of men, women and children, if no reason was given to the 'rule of the law' in which men recognize one another?

To Socrates as later for Dostoevsky worse than death was the punishment of exile. Others, like Empedokles stayed in exile voluntarily, yet there was pain in the words of a great man if removed from his people who were awaiting from him some leadership. But the stigma of punishment by removing a person outside the political context of both effective responsibility and knowledge as to what was going on, that proved to be powerful weapon of intimation throughout the centuries. Solshenitzyn expressed the same thought in 'First Circle of Hell' and had to experience it when he was send outside his beloved Russia to live in the United States.

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L. Rule of law