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Collective Rights and the Ancient Community

Published online by Cambridge University Press:  09 June 2015

Moshe Berent
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Extract

The principle of national self-determination asserts the collective right of the nation for self-government. This principle is now a corner-stone of modem political thought. The idea of “home rule” or the ideal of a self-governed political community is a very old one which originated in classical Greece. Yet the modern idea of the free self-governed community differs in some important aspects from the old one.

National sovereignty, or the community’s collective right of “home rule”, means today the right of the political community to its own State. The State, at least the modern liberal democratic Nation-State, is conceived as an instrument by which sovereignty is constituted and national interests are promoted. In this way antiquity poses an interesting problem, since the State is a product of the modern era and was hardly known in the ancient world. The absence of State was not accidental to the ancient community; it was accompanied by an adequate system of ideas concerning the nature of the political community.

Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 4 , Issue 2: Collective Rights , July 1991 , pp. 387 - 399
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 1991

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References

1. Emest, Barker, Greek Political Theory: Plato and His Predecessors, 5th ed. (London: Methuen $ Co., 1960) at 6.Google Scholar

2. By this I mean especially the contribution of the Aristotelian theory of “sovereignty of law”, which will be discussed later, to the medieval trend towards constitutionalism. See Emest, Barker, ed., The Politics of Aristotle (Oxford: Oxford University Press, 1958) at 61 Google Scholar. See also Michael, Wilks, The Problems of Sovereignty in The Later Middle Ages (Cambridge: Cambridge University Press, 1964) at 2 Google Scholar, and Hayek, F.H., The Constitution of Liberty (London: Routledge & Kegan Paul, 1960)c 11.Google Scholar

3. Thomas, Hobbes, Leviathan, Macpherson, C.B., ed. (Baltimore: Penguin Books, 1968) at 231.Google Scholar

4. Ibid. at 365.

5. Ibid Hayek, supra, note 2, and see Lindsay, A.D., The Modern Democratic State (London: Oxford University Press, 1943) c. IX.Google Scholar

6. Ibid Henry, Maine, Ancient Law (New York: J.M. Dent & Sons, 1917) at 17–18.Google Scholar

7. Ibid Hinsley, F.H., Sovereignty, 2d. ed. (Cambridge: Cambridge University Press, 1986) at 69.Google Scholar

8. Ibid Jeremy, Bentham, An Introduction to the Principles of Moral and Legislation (New York: Hafher Press, 1948) at 3.Google Scholar

9. Lindsay, supra, note 5 at 214–15.

10. This problem has been dealt with extensively in Joseph, Agassi, Towards a Rational Philosophical Anthropology (The Hague: Martinus Nijhoff, 1977) at 290–319. This book is an overall attack upon reductionism, and both schools—methodological individualism, or psychologism, and collectivism- -are rejected as reductionist (at 304). Agassi suggests that instead of reducing society to its members, like psychologists do, or deriving the individual from society, as collectivists do, to accept both individual and society as ‘real’ and to speak of the interactions between two ‘real’ non-reducible entities (305–06).Google Scholar

11. I took the idea of liberal nationalism from Joseph, Agassi, Religion and Nationality: Towards an Israeli National Identity (Tel Aviv: Papyrus, 1984)Google Scholar. The book which, unfortunately, has not been published yet in English, distinguishes clearly between the idea of liberal democratic nationalism and the idea of romanticist collectivist nationalism. While the former sees the State as an instrument which ought to respond to national interests which are determined by liberaldemocratic institutions, the latter put the state above the nation and above democracy.

12. Supra, note 1 at 44.

13. Hinsley. supra, note 7 at 5–69. See also Giovanni, Sartori, Democratic Theory (Detroit: Wayne State University Press, 1962) c.12 at 250–77, and Andrew, Vincent, Theories of the State (Oxford: Basil Blackwell. 1987) at 10–19.Google Scholar

14. Modem interest in non-State political systems and their connection to the ancient world has been stimulated probably by the anthropological evidence concerning contemporary primitive stateless societies, see Fortes, M. & Pritchard, E.E.Evans, eds, African Political Systems (London: Oxford University Press, 1940)Google Scholar. In their introduction to this volume the editors define a stateless society as a political system which lacks a “centralized authority, administrative machinery, and judicial institutions—in short a government” (at 5).

15. Exceptions were the Spartan army, the Athenian navy and wherever tyrants were in control. However, while the Spartan army and the Athenian navy were standing armies, they still remained popular armies and were not used as instruments for internal law-enforcement. See Finley, M.I., Politics In The Ancient World (Cambridge: Cambridge University Press, 1983) at 18–20.CrossRefGoogle Scholar

16. Ibid. at 24.

17. Finley, M.I., The Ancient Greeks, rev’d ed. at 75.Google Scholar

18. Ibid.

19. Though direct democracy tends to be stateless, it is not a necessary condition for statelessness. The primitive stateless political systems which are discussed in African Political Systems (supra, note 14), are tribal societies.

20. Foster, M.B., The Political Philosophies of Plato and Hegel (Oxford: Clarendon Press, 1935) at 1.Google Scholar

21. Deborah, Baumgold, Hobbes’s Political Theory (Cambridge: Cambridge University Press, 1988) at 11.Google Scholar

22. Barker, supra, note 2 at 1275a.

23. Barker, supra, note 1 at 12. See also Mcllwain, C.H. Constitutionalism: Ancient and Modern, rev’d ed. (Itacha, N.Y.: Cornell University Press, 1940) at 37, and Sartori, supra, note 13 at 258.Google Scholar

24. Barker, ibid, at 6.

25. Karl, Popper, The Open Society and Its Enemies, vol. 1, 5th rev’d ed.(Princeton, N.J.: Princeton University Press, 1966) at 105.Google Scholar

26. African Political Systems, supra, note 14 preface at xvi. The consolidation of such public sentiment distinguishes the Greek polis from the contemporary primitive stateless societies which are discussed in African Political Systems. Those societies are based upon self-help, that is on individuals who seek redress whenever they think their rights are violated (see introduction by the editors at 14). These private actions are supposed to be regulated by custom but, as Evans-Pritchard points out, the situation could easily get out of hand: see Evans-Pritchard, E.E., “The Nuer of The Southern Sudan” in African Political Systems at 283–84.Google Scholar Thus, in its extreme form such society is on the constant verge of a civil strife. See also Lucy, Mair, Primitive Government (Baltimore: Penguin Books, 1962) at 36–60 Google Scholar. It is obvious that the classical Greek polis, oral least Athens and Sparta which were stable for two hundred years, had managed to decrease the amount of private violence in favor of a strong public sentiment. Nevertheless the amount of self-help which was exercised in the ancient stateless city-state was considerable when compared to the modern nation-state. See Andrew, Linton, Violence, Civil Strife and Revolution in The Classical City: 750-330 BC (London: Croom Helm, 1982) at 26.Google Scholar

27. Supra, note 15 at 28.

28. Supra, note 1 at 6.

29. Sartori,supra, note 13 at 253.

30. Barker, supra, note 2 at Iv.

31. Supra, note 17 at 59. For the idea that the law was superior to the community see supra, note 7 at 29–30

32. Supra, note 25 c.5 at 57–85.

33. Supra, note 1 at 323–24.

34. Hinsley, supra, note 7 at 29–30.

35. Barker, supra, note 2 at 1269a.

36. Ibid, at Iv.

37. It should be noted that the Athenian Assembly was not a legislative body. See supra, note 1 at 323–24.

38. Mcllwain, supra, note 22 at 26–27. Also Barker, supra, note 2 at Iv, and supra, note 1 at 323.

39. See supra, note 1 at 44 and at 323–24.

40. Ibid, at 323–24.

41. Barker, supra, note 2 at xlviii.

42. Ibid, note 1 at 6.

43. Ibid, note 1 at 237.

44. Supra, note 1 at 14.

45. Crossman, R.H.S., Plato Today, 2nd rev’d ed. (London: George Allen & Unwin Books, 1963) at 167–68Google Scholar. See also Popper, supra, note 24 at 121–22.

46. Supra, note 20 at 23–25.

47. Cross, R.G. & Woozley, A.D., Plato’s Republic (London: Macmillan, 1964) at 103.CrossRefGoogle Scholar

48. Supra, note 1 at 201.

49. To say that the tripartite division is based upon consent and not upon state-force does not mean that Plato was a liberal. I am using the term “consent” only to distinguish it from physical coercion, thus consent can be a result of moral or educational coercion as well (which is the case of Plato’s tripartite division). See supra, note 47 at 106-09.

50. Supra, note 1 at 238.