Bryn Mawr Classical Review 04.03.26


Susan Ford Wiltshire, Greece, Rome, and the Bill of Rights. Norman: University of Oklahoma Press, 1992. Pp. viii + 247. $24.95. ISBN 0-8061-2464-4.


Reviewed by Dirk t.D. Held, Connecticut College.

As the cultural influence of classical studies wanes in the late twentieth century, we continue to receive fresh investigations of how classical texts, classical ideals, and even classical scholars shaped ideas and practices from the Renaissance through the twentieth century. The influence was at times profound and highly visible in ways no longer true. Its examination can have fruitful results, yielding a deeper knowledge not only of the effects of the classical tradition but of development and changes within the tradition.

As an example of this type of study, Susan Ford Wiltshire's Greece, Rome, and the Bill of Rights is a disappointment. Offspring of a symposium on classics and the Constitution, the book is comprised of two main parts. The first is described as an essay in intellectual history (specifically "the history of an idea," individual rights), the second a "study in comparative politics" (6). A brief conclusion reflects on contemporary political implications of the Constitution's Greco-Roman heritage. A bibliography of sources is followed by a separate bibliography on American political thought and the classics. In the former, ancient, medieval and renaissance works have titles only, and information about editions or translations generally cannot be found.

Wiltshire's guiding assumption is reasonable: that most provisions of the American Bill of Rights "reflect civic practices" (4) and "issues that had already been raised in the ancient world" (99). Regrettably the story is not as straightforward as she makes it and demands a more sophisticated construction of historical relationship than is found here. To say a document "reflects" earlier ideas or to claim, however frequently, Greek and Roman "antecedents," is not to say something very precise. Political and ethical discourse is heavily theory-laden. Even when identical terminology, such as the pivotal word ius, is used across historically distinct periods, meanings will notoriously change over time as the theoretical context changes. Translation naturally complicates matters further. Elucidating the legacy of antiquity to the Bill of Rights requires submitting the connecting chain of documents and practices to substantive conceptual analysis, including analysis of the explicit or implicit theoretical contexts in which they are embedded. The absence of such analysis in this work and the failure to engage ideas at a deep enough level result in historical claims that are thin and underdetermined.

Part One is subtitled "the evolution of the idea of rights," an evolution constructed from the pre-Socratics through Locke and the Enlightenment to the actual drafting and ratification process of the Bill of Rights. A major drawback of this part is the breathless pace at which the reader is taken through centuries of intellectual history. Wiltshire's developmentalist perspective on the transformation of ideas lacks sufficient assessment of content and is missing sufficient political and social context to allow an understanding of the issues at stake in the changes and why the changes occurred as they did. The result, to borrow a phrase from Richard Rorty, comes perilously close to "complacent doxography."

Wiltshire correctly reminds us that the modern notion of individual rights is missing in antiquity, and offers natural law as "the thread that connects all the episodes" (10) of her story. She begins the account of natural law with Aristotle. Not all scholars agree that he should be credited with such an idea and those who find an Aristotelian source for natural law must qualify the claim carefully to show in what respect it can be true. She is on sounder ground with the Stoic account of nature, its adaptation by Cicero and the articulation by Roman jurists of ius civile, ius gentium, and ius naturale as distinctive legal spheres. Yet ius naturale is always a difficult notion. Ius is sometimes "law," sometimes "right," but natural law and natural right are hardly the same thing. Drawing on the work of the legal historian Geoffrey Samuel, she acknowledges that different philosophical and epistemological structures affect the meaning (and translation) of ius naturale for Roman jurists, for Aquinas and Locke, as well as for ourselves, but she fails to develop the details of these differing structures into a heuristic tool that can expose the various significations of ius, "law" and "right." Particularly critical is the need to understand the change which ius undergoes from the time of Aquinas for whom it retained the objective meaning derived from Roman law of "the just thing itself", i.e. what is just in a given situation, and that of Suarez, who saw in ius the facultas or moral power a man had over his own property or in respect to what was due him.1 It is with him that the modern meaning of a subjective "right" begins to become evident.

Wiltshire seeks to trace the evolution of political identity (4) but the account in Part One is simply too sweeping to do justice to the complex distinctions between ancient and modern political experience or to the conceptualizations of the individual's position vis à vis the polis, the Roman civitas, the medieval community or Locke's England. Aquinas's doctrine of natural law should be critical for the link she wants to establish between Greece, Rome and the Bill of Rights. Yet simply stating that Aquinas' doctrines were not individualistic is no substitute for exploring their relation to his contemporary political and philosophical context. The treatment of Locke is one of the more detailed parts of the book, but here too the argument would be imp roved by discussion and not simply acknowledgement that varied historical conditions caused individual rights to evolve differently in England than on the Continent. Moreover, since Wiltshire makes natural law the connection between antiquity and Locke, fuller understanding of what separates as well as what connects the Lockean and ancient views on this subject is called for. It is true that natural law provides the foundation for Locke's belief in natural rights. His view of such rights is complex but in essence natural rights for Locke are independent of and logically prior to any civil society.2 This enables him to hold in the second of his Two Treatises on Government that he has "a liberty to follow [his] own will in all things, where the rule prescribes not" (II, 22). Aristotle tells us that in Athens some thought freedom (eleutheria) was being able to "do what one likes" (Pol. 1310a32), but this was never viewed as anything approaching a Lockean "right." It was in fact condemned by Aristotle as license. A fuller discussion of what underlies this difference in perspective is needed.

The second part of the book, called Greek and Roman Antecedents to the Bill of Rights, puts aside the historical panorama of the first part. For the ten amendments to the Constitution comprising the Bill of Rights, we are presented a range of classical antecedents, some Greek and some Roman, depending on which practices fit which amendments. The author's command of the classical material is impressive, and she ranges widely through Greek and Roman history, philosophers, and jurists. In spite of her range, the deficiencies of the first part impact the effectiveness of the second. No attempt is made to uncover the intellectual, political, or social conditions that could explain how cultures as divergent as classical Greece or Rome and 18th century America developed similar practices and ideas. The point of comparative politics is to reveal how conditions facilitate particular outcomes, in this case the existence of what we call liberties or rights. Since no clear methodology is followed in the juxtaposition of Greek and Roman practices to the Constitution's Rights, the reader is left puzzled about just what an "antecedent" is supposed to be. An account of how the Founding Fathers appealed to antiquity as a justification of their proposals would have been helpful in this respect.

There is not space to survey all ten amendments, and I will only sample her treatment of a few. The longest chapter in Part Two is devoted to the First Amendment, proclaiming the fundamental freedoms of religion, speech, and assembly. To illuminate the freedom of religion clause Wiltshire presents an extensive account of the tolerance of religions in ancient Rome. The author is good on the historical facts, but does not succeed in showing how these facts might have influenced the framers of the Constitution. Indeed, the structural differences seem more striking than the similarities. The focus of permissible religious practices in Rome was the legally recognized community. In contrast, the Lockean principles of rights which the framers accepted protect socially atomic individuals against unreasonable claims of the community.

We move to Athens for freedom of speech, which we are told "approached the status of a right" (118) in the form of isêgoria. Overlooked in the discussion is the fact that the ancient focus was not on a "right" which the author concedes would be anachronistic, but on equality. We need only note the prevalence of isos compounds in the ancient discussions of democracy. Characteristic for democracies, we are reminded by no less than Busolt, is isotes and ison echein hapantas, a view seconded recently by Bleicker (to whom equality is the Grundidee of Athenian democracy) and Hansen (who sees equality as a partner with eleutheria).3 The politeia, not the individual, is characterized by isêgoria since it describes the nature of the political community and the assembly, not a right belonging to each citizen. Wiltshire acknowledges that it has "social and political rather than individual significance" (112), but the point is not developed by a demonstration of how its political and social significance is manifested in either practice or theory.

Turning lastly to the Constitutional right to bear arms, Wiltshire notes that "regulating the military" (132) is a problem in democratic societies. This observation is more helpful in relation to the problems confronting the Constitutional framers (and ourselves) than as a starting point for discussing Greece and Rome. As the military historian John Keegan has remarked, under some conditions the "people, army and state were ultimately indistinguishable ... war was a culture, a way of life, almost a religion, self-fulfilling and self-justifying."4 There is a measure of truth in Keegan's statement that cannot be ignored if we are to grasp the dynamics of ancient societies, dynamics which distinguish them in important ways from societies of the 18th century. Here again fuller attention to the nature of the ancient community would have helped.

As a general comment, Wiltshire needs a more thorough account of moral and political philosophy if she is to justify the historical role she assigns natural law. Her account of rights as they affect the current state of the American democracy may also be said to focus on the wrong branch of the classical tradition. The contemporary perspective which recognizes the legitimacy of individual subjective rights depends on metaphysical, social, and psychological assumptions which render natural law neither defensible nor credible. Recent writers on liberal democracy have looked to classical antiquity as a way out of pressing problems, but the problems in this case stem from rights themselves. Jurisprudential debates by which American political life is increasingly conducted too often inconclusively oppose one set of rights against another. These debates have been unable to focus discussion onto what the social good should be. Aristotle has proved particularly inspiring in attempts to rethink the basis of political philosophy by reversing the priority of Right over the Good and thereby redirecting political thought to the exigencies of real communities. But that is another story.


NOTES

  • [1] John Finnis, Natural Law and Natural Right, (Oxford 1980) p. 206.
  • [2] For the full account of Locke on natural right see A. John Simmons, The Lockean Theory of Rights (Princeton, 1992), pp. 68-120.
  • [3] F. Busolt, Griechische Staatskunde, I2 (Munich 1920), p. 48, n.5; J. Bleicker, Die athenische Demokratie, (Paderborn, 1985); M.H. Hansen, "Athenian Democracy: Institutions and Ideology", CP 84, 1989, pp. 137-148.
  • [4] John Keegan, Times Literary Supplement, Dec. 11, 1992, p. 3.