Bryn Mawr Classical Review 2008.10.31
Wilfried Nippel, Antike oder moderne Freiheit? Die Begründung der Demokratie in Athen und in der Neuzeit. Europäische Geschichte. Frankfurt am Main: Fischer Taschenbuch Verlag, 2007. Pp. 456. ISBN 9783596601042. €11.95.
Reviewed by Benjamin Straumann, New York University (firstname.lastname@example.org)
Rome, Sparta, Athens: three ancient polities and the political ideas they engendered have exercised a crucial impact on Western history both in the realm of political thought and in the realm of events and institutions. While Rome and, to a lesser degree, Sparta have exerted a continuous fascination upon writers and the occasional politician until at least the early nineteenth century, Athens, if not outright neglected, had been regarded more as a nefarious example than a model to aspire to. It was only in the decades after the establishment of large territorial republics in the wake of the American and French revolutions that Athenian democracy acquired a somewhat more palatable flavor, and as a constitutional model began to encroach upon the territory traditionally occupied by the republics of Rome and Sparta. Even then, however, the judgment of most scholars and of the educated remained unfavorable. The afterlife of Sparta in European thought was masterfully explored by the late Elizabeth Rawson, and more recently Fergus Millar has written on the legacy of the Roman republic in political thought.1 In 1994, the reception of and hostility to Athenian democracy received a fine treatment by Jennifer Tolbert Roberts, the telling subtitle "the antidemocratic tradition in Western thought."2
Now the prominent German ancient historian Wilfried Nippel gives us an overview of the foundations of democracy at Athens and in early modern and modern times, viewed from the angle of the influential distinction between ancient and modern liberty. In keeping with the series' ("Europäische Geschichte") aims, the book is directed at a general audience with few references to scholarly debates, the notes being concerned overwhelmingly with primary sources and featuring only a very basic bibliography.
The book covers a vast terrain. Nippel casts a wide net -- and a rather fine one at that. The result is an extensive survey spanning an abundance of topics, writers and time periods. In twelve chapters, Nippel discusses with great erudition and profound knowledge of the institutional sources as well as the normative aspects of the history of democracy. At the same time, the mingling of issues of democracy with those concerning liberty and the combination of institutional and intellectual history create some tensions and blurs the work's focus, a point to which I shall return following an outline of the individual chapters.
Nippel starts by offering a lengthy summary of the history and the fundamental institutions of Athenian democracy, based on our present knowledge. Making interesting observations along the way about the lack of a notion of inalienable human rights in Athens, about freedom of speech in the Assembly and its limits, about taxes and about the protection of private property as the primary goal of the legal order, Nippel proceeds to discuss (76-82) the important distinction between laws (nomoi) and decrees (psephismata) introduced in 399. This distinction allowed for a hierarchy of positive legal norms hitherto unknown and bound to influence Aristotle's and later Hume's and J. S. Mill's views of democracy. The distinction was crucial as it made possible the use of the graphe paranomon in more substantial ways than before. The graphe could now be directed against decrees of the Assembly which rather than merely breaching a procedural rule appeared to substantively violate the higher-order codification of laws.
Chapter 2 describes briefly the influence of ancient constitutional models on Western political thought since the reception of Aristotle's Politics in the thirteenth century. The chapter mentions Machiavelli and Florentine republicanism, the role of a more or less Polybian analysis of the mixed constitution in the English republicanism of James Harrington and Algernon Sidney in the seventeenth century3 and early theories of sovereignty in Bodin and Hobbes. Finally, Spinoza and a few natural lawyers such as Pufendorf and John Locke make an appearance, though receiving rather short shrift.
Chapter 3 portrays the eighteenth century "querelle des anciens et des modernes" and the declining status of ancient models in political and economic thought brought about as a result. This chapter focuses in particular on authors of the Scottish Enlightenment and their criticism of ancient slavery on prudential grounds as well as on Rousseau's contrast between the citizen of the ancient republics and the bourgeois merchant of Geneva.
The next two chapters deal with the early national period of the United States and the French Revolution and their respective relation to classical models and sources. Noting that the American Constitution contains no mention of "democracy," but simply guarantees a "republican" form of government to every state in the Union, Nippel acknowledges that rather than Athenian democracy it was primarily the Roman mixed constitution as seen by Polybius and Cicero that influenced Founders as different as Adams, Madison, or Hamilton--democracy was disqualified precisely in view of its historical Athenian record. Nippel also stresses the importance of the idea of representative government and points out that representation was not merely thought of as a practical exigency making republican government amenable to modern territorial states, but following Hume was also taken to make for more stable and more public-minded governments. Whether or not representation had institutional roots in classical antiquity (Madison thought it did), the perception of the Ephors and the Tribunes of the Plebs as democratic elements within the mixed constitution was regarded as an important classical anticipation of the idea of democratic representation.
Democracy entered the American political idiom only via a re-definition of the term. This change took place in the Jacksonian era and found its most prominent expression in Tocqueville's De la Démocratie en Amérique (1835/40), yielding the hitherto oxymoronic concept of representative democracy. The term had in fact already been used in French public debates after 1789; Sieyès praised representative government as the constitutional model most adequate for a modern commercial society and contrasted this model with Athenian democracy in terms very similar to those of Madison in the Federalist. Even the Gironde constitution of 1793, containing elements of direct democracy, did not refer to itself as "democratic," and at least from Montesquieu onward there existed in French political thought--as everywhere else--a tradition strongly biased against Athenian-style direct democracy. Nippel attributes the French lack of interest in the Athenian model to the fact that the French did not share American apprehensions concerning tyrannical aspirations of a legislating majority. Instead, they perceived the executive as the crucial threat to freedom. The picture that emerges from the comparison between the French and the American constitutional debates is thus one of American engagement with the Athenian example, followed by a spirited "thanks, but no thanks" and self-conscious opposition to democracy. By contrast, the French Revolution, not showing much interest in Athens in the first place, "draped itself alternately as the Roman Republic and as the Roman Empire," as Karl Marx was to quip later (187).
Chapter 6 discusses French and German reactions in the wake of Robespierre's fall and the emerging cliche/ of a cult of antiquity, in particular of Sparta, allegedly cultivated by the Jacobins. In Chapter 7, Nippel offers a concise account of the influential tradition, starting with Condorcet and Benjamin Constant, that would contrast the liberty of the ancients with the liberty of the moderns, drawing a sharp distinction between a perceived lack of individual rights in classical antiquity, on the one hand, and the modern conception of rights-based liberty, on the other. Constant, who was educated in Edinburgh, was drawing on the distinction, already embraced by his Scottish predecessors, between the martial polities of classical antiquity and modern commercial societies. For Constant, this corresponded to a distinction between ancient liberty, which really meant political participation, and modern liberty, which consisted in institutional safeguards for "individual enjoyments," i.e. individual rights limiting the reach of government. This distinction was to have great impact on historical writing and on liberal political thought in the nineteenth and twentieth centuries, and Nippel traces its influence in the works of Fustel de Coulanges, Jacob Burckhardt, Lord Acton and Max Weber. Constant presented a somewhat more differentiated picture of classical antiquity noting that Athens, by virtue of its openness to trade, allowed "its citizens an infinitely greater individual liberty than Sparta or Rome." However, this differentiation did not owe anything to Athens' democratic features; constitutionally speaking, the ancient polities were all lumped together. Constant was by no means the first to do so, of course. Nippel could have cited Hobbes, to whom all the Greek and Roman polities were "popular states," and the liberty described by the classical authors was not the liberty of "particular men," but the "Libertie of the Common-wealth."4 Out of this tradition liberal constitutionalism grew, aiming to safeguard individual rights, chief among them the right to private property. These safeguards were to be instituted against what Constant called the "empire of the legislator," whether that legislator be democratic, aristocratic or monarchic.
Chapters 8 and 9 turn to reverberations of Constant's view in German university-based "Altphilologie" and its eventual rejection in British political thought of the nineteenth century. Nippel justifies his focus on Germany by pointing to the hegemonic position of German universities in the nineteenth century and the concomitant development of ancient history as a discipline. The overwhelming impression one gets from this chapter, however, is that German classicists, notwithstanding their disdain for "dilettantes" such as Constant, Fustel or Burckhardt, were actually by and large in agreement with the Constantian view. Apart from a few outliers such as Theodor Bergk, these authors focused their criticism of Athens on the traditional topoi--the convictions in the context of the mutilation of the Herms in 415, the Arginusae trial and the trial of Socrates. They concluded that Athenian democracy equaled despotism of a majority legislating without constitutional safeguards and often with confiscatory aims, showing no regard for individual rights, especially not for private property. Although more fine-grained in their historical analyses, it would seem that the bulk of nineteenth century German classicists, far from deviating from the "dilettantes," actually shared Constant's general outlook.
The real turning point--and the radical quality of this move would have merited more emphasis--comes with George Grote and John Stuart Mill, whose contributions are discussed in Chapter 9. Grote and Mill reinterpreted Athenian democracy by focusing on a perception of Athenian freedom that was much more akin to "modern liberty" than Constant et al. had allowed--namely the sense of freedom expressed in Pericles' funeral oration (Thuc. 2, 37, 2f.; cf. Aristot. Pol. 1310a25ff.). Grote's Athens was characterized by a reconciliation of different types of individual freedom, in particular freedom of speech, with democracy. What is more, Grote argued, in impressive opposition to the whole anti-democratic tradition, for Athens' respect for constitutional rules and the rule of law. Mill adopted this view of Athens in his political theory and used it to formulate a view of liberty that was at odds with Constant's in that it was not purely negative but required self-rule in a framework of representative democracy. Clearly, Mill's view of the protection and equal standing of minorities owed much to Grote's interpretation of personal freedom in Athens. However -- and Nippel does not stress this sufficiently -- Mill's take on the importance of the constitutional protection of private property and his skepticism regarding the enfranchisement of the working classes were arguably more indebted to Aristotle than to Grote. This makes Mill difficult to situate in the history of democratic theory.5
The last three chapters are taken up with discussions of constitutionalism in the nineteenth and early twentieth centuries (Chapter 10), new theories of democracy in the context of Fascism, Weimar, and National Socialism (Chapter 11) and the perception of Athens after World War II (Chapter 12). The nineteenth century saw a blurring of the concept of democracy. The contrast between republicanism and democracy became less pronounced and, in the new phenomenon of Caesarism, even the contrast between monarchy and democracy began to lose its edge. Fascist ideology too claimed true democracy and freedom for its type of autocracy, substituting acclamation for parliamentary representation. National Socialist ideology was also bent on the distinction between constitutionalism and allegedly authentic, "völkische" democracy and freedom. Nazi ancient historians such as Helmut Berve, Hans Schaefer and Fritz Taeger were glad to interpret the trial of Socrates as the "excision" of a "pest" representing an "individualistic ethics" (319) and to describe a Führer-like Pericles without any qualms about individual rights (321).6 The period after World War II witnessed both a resurrection of the Constantian tradition with Isaiah Berlin's "Two Concepts of Liberty" and a new line of criticism of Athens, faulting Athens no longer for its overly free and democratic institutions, but instead for a lack of freedom and democracy as evinced by its exclusion of slaves, women and metics from political rights. By way of conclusion, Nippel recapitulates that Athens did not recognize any human rights nor guarantee any positive fundamental rights. However, in the hierarchy between laws and decrees introduced in 399 and in the possible cassation of decrees by the graphe paranomon Nippel rightly sees some inchoate forms of constitutionalism in Athens and correctly acknowledges their influence on Hume and J. S. Mill.
Given the enormous range of material the book covers, this brief synopsis cannot possibly do justice to its many facets. There are many interesting observations and discussions (e.g., about abolitionism, the role of the lot, or the extension of suffrage) that I could not touch upon here. But this wealth of material comes at the expense of focus. There seem to be two issues here. One is that while the first chapter provides an extensive account of the institutions of democratic Athens, most of what follows traces the subsequent history of political thought--very broadly understood--with an emphasis on ideas rather than institutions.7 Since it is mostly ideas Nippel is concerned with, the detailed introductory chapter on Athenian institutions could have been profitably balanced by an account of Greek political thought. The chief problem is that many of the issues that were to assume great importance in the history of political thought did not concern institutional fine-tuning. Rather, they had to do with more abstract, normative questions as raised in ancient political thought. Most of the strong views against democracy held by political thinkers over the ages were not suggested by any painstaking historical-philological analyses of the institutions of democratic Athens, but rather to normative arguments put forward in Plato, Aristotle, the Old Oligarch or Thucydides. The marked anti-democratic bias shown by thinkers from Machiavelli to Bodin, from Montesquieu to the American Founders and Benjamin Constant (and indeed also by many of the German classicists) was heavily indebted to abstract normative considerations both of a prudential and of a moral kind first developed in Greek thought. Nippel of course is aware of this (88ff.). The emphasis, nevertheless, seems misplaced. One simply does not get a sufficient sense of the impact of this normative tradition from the book because it receives less attention than the institutional history of Athens. Revisiting this history as presented in the first chapter and then confronted with the overwhelmingly negative judgment of democracy up to Grote and Mill in the nineteenth century, the "general reader" is probably left wondering how Athens' reputation ever got so bad, and why the American Founders--and even Robespierre--did not want any of it. More material on Greek political thought, broadly understood (including the views of democracy to be found in Thucydides, Plutarch and in the democratic ideology transpiring from drama and oratory), could have remedied this issue.
The second problem is that it is not always clear whether the main focus of the book is on democracy, or rather on liberty. At times it appears as if changing conceptions and views of democracy were the main issue. Elsewhere in the book, changing conceptions of liberty seem central. While the connection between democracy and liberty was a topos already in classical political theory, treating the two together in a single book spanning two and a half millennia makes for a difficult and unwieldy subject matter. If democracy is the main focus, apart from saying more about how classical political thought broadly understood shaped the anti-democratic tradition up to the nineteenth century, more space should have been given to Plutarch, Aelius Aristides, Cassius Dio, Bartolus, Baldus, the conciliarist movement, Vitoria and Spinoza. Also, the extent to which engagement with democracy was essentially anti-democratic until long after the French and American revolutions could have been given more emphasis, which would make Grote's eventual break with this tradition even more impressive a caesura. But if the interest in liberty and its rights-based protection (as opposed to democracy) were to be moved front and center, the emphasis on Athens might have to yield to a more extensive treatment of the Roman tradition of liberty with which Quentin Skinner and others have familiarized us.8 Thus Cicero, Roman law and Roman political thought and their concern with entrenched legal safeguards and property rights would appear to deserve more prominence in a work focusing on liberty. For the later reception of this tradition, the early modern natural lawyers--e.g. Vazquez de Menchaca, Gentili, Grotius, Locke--require more attention given the important contributions these writers made to the "modern," rights-based notion of natural liberty and the fact that they all drew on Roman political and legal thought.9 In short, framing the issue of liberty in Constant's terms invites the danger of conflating Athens and Rome and thereby obscuring the contribution of Roman political thought to "modern," rights-based constitutionalism.10
These structural problems notwithstanding, this book presents a solid and broad survey of the history of the reception of Athenian democracy and conceptions of liberty for a general readership. Nippel, a highly qualified guide, is thoroughly acquainted with his sources and able to integrate a very wide array of leads with great erudition. I recommend the work for its ambitious breadth and its firm grasp of a vast topic of immense importance. Moreover, Nippel convincingly demonstrates the fruitfulness of approaching the history of political thought via the study of the classical tradition.
1. Elizabeth Rawson, The Spartan Tradition in European Thought. Oxford: OUP, 1969; Fergus Millar, The Roman Republic in Political Thought. Hanover: Brandeis University Press, 2002. See also James Zetzel's review of Millar in BMCR 2002.05.31.
2. Jennifer Tolbert Roberts, Athens on Trial: The Antidemocratic Tradition in Western Thought. Princeton: Princeton University Press, 1994.
3. A topic on which Nippel has written an important work: Wilfried Nippel, Mischverfassungstheorie und Verfassungsrealität in Antike und früher Neuzeit. Stuttgart, 1980.
4. Thomas Hobbes, Leviathan. Edited by Richard Tuck. Cambridge Texts in the History of Political Thought. Cambridge: Cambridge University Press, 1996, p. 149. Hobbes famously thought that "there was never any thing so deerly bought" as the "learning of the Greek and Latine tongues," reasoning that "by reading of these Greek, and Latine Authors, men from their childhood have gotten a habit (under a falseshew of Liberty,) of favoring tumults, and of licentious controlling the actions of their Sovereigns; and again of controlling those controllers, with the effusion of so much blood." Ibid., p. 150.
5. See on this N. Urbinati, Mill on Democracy. From the Athenian Polis to Representative Government. Chicago: The University of Chicago Press, 2002. See also the review of this book in BMCR 2003.06.04 and Urbinati's exchange with the reviewers in BMCR 2003.06.51.
6. For an account of the discipline of ancient history in Nazi Germany, see Beat Näf, Von Perikles zu Hitler? Die athenische Demokratie und die deutsche Althistorie bis 1945. Bern, 1986.
7. This point may be illustrated by the subtitle, which promises an account of the "Begründung" of democracy in Athens and in modern times. Now "Begründung" can mean substantiation, in the sense of justification by giving reasons, or it can mean creation, in the sense of bringing something into existence. With regard to democracy, its Begründung could mean the creation of democratic institutions in Athens in the period between 508 and the middle of the fifth century, or it could refer to the normative endeavor of justifying democracy in political thought.
8. See Quentin Skinner, Liberty before Liberalism. Cambridge: Cambridge University Press, 1998. For Grotius' use of the Roman tradition, see Benjamin Straumann, 'Is Modern Liberty Ancient? Roman Remedies and Natural Rights in Hugo Grotius' Early Works on Natural Law', Law and History Review 27, 1 (2009, forthcoming); id., Hugo Grotius und die Antike. Römisches Recht und römische Ethik im frühneuzeitlichen Naturrecht. Baden-Baden: Nomos, 2007.
9. See, e. g., for the Spanish neo-scholastics and their notion of liberty and rights Annabel Brett, Liberty, Right and Nature. Individual Rights in Later Scholastic Thought. Cambridge: Cambridge University Press, 1997. For a recent account of property rights in the history of political thought with due attention to the Roman background, see Peter Garnsey, Thinking About Property. From Antiquity to the Age of Revolution. Cambridge: Cambridge University Press, 2007.
10. Indeed, many of the writers concerned with the constitutional source of sovereignty, e.g. Vitoria, Bodin, Grotius or Hobbes, took the view that Rome too was a democracy--not unlike Fergus Millar today.