Harmonization of Law and Legal History (Roman Law) Lecture 1 PDF

Prof. Cardilli Harmonization of Law and Legal History (Roman Law) Lecture 1: 22nd October Difference between harmonization and unification of la...

Prof. Cardilli Harmonization of Law and Legal History (Roman Law) Lecture 1: 22nd October Difference between harmonization and unification of law methods of finding a common law: Harmonization of law = more democratic instrument to build a common law to a community The different rules have to be built from the bottom to the top àthere is not a power from the top that can impose a rule. àeach country has to work together to create a common rule that can be good for everyone from the bottom. e.g. in Europe if we need to build a rule for every European country, in the single states we have different rules, so how can we find a common rule for everyone? If we use the harmonization of law, we don’t impose a rule from the top to the bottom but we try to build a common rule for everyone, and the national system should work to change their national laws, adapting them to the common one. Unification= model in which there is a legal power on the top (=effective law for all the countries)èform the top to the bottom (common rule is imposed) à”less democratic” method e.g. the European commission that imposes a rule and no country can do anything to object Harmonizing is more difficult than unifying (that seems to be easier) but it suits more a globalized world since we have built a unified economic and social world but every country kept its legal rules. The aim is to create international law instead of national law. In reality the unification doesn’t reach the target in the last fifty to build a common lawà it’s a false mirror: every country is going to apply this “false” common rules in different ways. èIt’s easy to build a common economy/coin (like Euro) but it’s not easy to find a common law (in marriage, family or contract law) because each country has its own rules and its own jurisdiction. The international law is not enough, we didn’t reach the target from a legal point of view. àWe should build our legal tradition to build a common law (e.g. Eurasia tradition). In Europe we have national sovereignty, national jurisdiction and national law. Why we didn’t reach a European common law? For a lot of decades Europe moved to the unification of law but it never happened completely.  Difference between Nation and State (legally politically and socially) Nowadays we don’t have any king of universal power/political structure (=supernational powers) èwe have national superpowers Nation= used to explain the political form of community and power of the State. When we think about the ancient culture, we use the world “State” but it not correct, because is a modern concept unapplicable to the ancient culture. èIt’s an historical-political notion that came out after the fall of the Roman Empireà idea of fragmentation of supernational power in a national jurisdiction. The only country where the notion of nation came before the notion of State is France. àin other states the state was an instrument to create the concept of nation The idea of nation was actually born before the Westphalia Peace (= first historical moment when the political form of State had more power than the fallen Roman Empire) Nation+ state= needed to give to the state a fundamental ideological tool èit’s not possible to change the history, the state is a nation and a nation is a state NATION STATE « Political legal form « Modern idea, not present in Ancient Age « Ideological tool that justifies the (political notion born with the fragmentation state (àgives to the state a after the fall of the Roman Empire, but the fundamental ideological root) modern State idea starts with the Peace of « It refers to a group of people united Westphalia, 1648) by origin, history, culture, ethnicity, « Can be created consciously or language. « Cannot exist without sovereignty àcommunity that shares the dame « Independent political entity with fixed language, culture, religious believes geographical boundaries « Socio-cultural entity ‘’rex in regno suo est imperator’' « Cannot be created consciously « Not as stable as a nation « No fixed territory « United by laws and regulations « Can exist without sovereignty « May consist of one or more nations of people « More stable than a state E.g. Italy: doesn’t exist as a nation The Italian doesn’t exist as a language, it is the dialect of Tuscany, the same thing same for the Romansà Italy and Italian people are a political creation to unify the Italian territories against the other states of Europe. Our history is artificial, we are not a nation. The idea of nation is too small for a globalized world èwe need to follow the economic globalization with a legal law as globalized as the economy. è Building common values in society through LAW is the only way to maintain peace and avoid violence. International law is not enough, we need to think ‘’supernational’’ Universal law: 1) Roman law= Ius gentium (III b.C.) = supernational legal system with universal vocation 2) Ius commune= law common in Europe (Middle Ages to the XI a.D.) èCivil law + Canonic law =together in the Middle Ages Lecture 2: 29th October Ancient models of harmonization of law Roman ancient law= IUS GENTIUM (legal supranational system with universal Vocation/ law of nation – in many translations). It is not: - Public international law - private international law - international commercial law/ lex mercatoria Is not a public international lawàlaw of treaties and international agreements àproblem is the modern idea of national law (territory, people, sovereignty= elements of political idea of nation stateàmake clear that the national law should produce effects in that specific territory) How is possible to national law to go outside the borders of the territory? By having an agreement with another country and creating an inter-national law (lit. between two or more nations). èThe ius gentium exists independently from international agreements (the Romans new foedera (international agreements)). èIus gentium was a law common to citizens and foreigners not depending on the existence of an international/ political agreement. Is not a private international law= answer that the international law would like to give to international problem (which law is going to rule?) àis not useful to make harmonization of law èIus gentium is not the ius of a specific national law, is a law common to all human beingsètherefore is not an international private law. Is not ancient international commercial lawàtoday the legal framework is trying to build a common commercial rule for all over the world called lex mercatoria (the law of the commercials). àSome legal scholars would like to emphasize that the ius gentium was a lex mercatoria of the Mediterranean area=mistake: it was created by the Romans (before them didn’t exist) ènew creation of the Roman thinking (àdid not exist in the Mediterranean area) Justinian (482-565 A.D) Digest: from the Corpus Iuris Civilis by Justinian (Divided in 3 parts: Code, Digest, Institutes) àcontent: fragments from books of ancient famous jurists. àIt is the only way to know the ancient classical Roman law for us. E.g. Ulpianus, liber I, Institutes (the Emperor respected the ancient jurists). Fragment 9, Gaius, Institutes, Liber Every people (populus) that is governed by statutes and customs (leges et mores) observes partly its own peculiar law and partly the common law of all mankind. That law which a people established for itself is peculiar to it and is called ius civile (civil law) as being the special law of that civitas (state), while the law that natural reason establishes among all mankind is followed by all peoples alike, and is called ius gentium (law of nations, or law of the world) as being the law observed by all mankind. àit explains the difference between ius civile and ius gentium èIus Civile (City=civitas)=the civil law of the particular city (Rome in this case) èIus Gentium= LAW OF NATION o Common to all men (all human beings)ànot law of a single nation but that all nations employ o This idea is Roman to create a common law for all human beings (not only romans) How did they reach this target? - Roman law is also a unification of law - Rome didn’t exist as a national or ethnic realityàit was a sort of an artificial process and so was their law (èthey took some customary law from Sabinians, Latins, Etruschian) èworked with a complexity of legal rules and they try to harmonize them. - I century b.C. Rome became the center of EuropeàRomans tried to create a law common to all human beings with the maximum universal vocation. E.g. Sale contract (sell a good=pay money)àstructural pillar of the trade. I. Roman Law Mancipatio =In Rome in the Civil law there was a very formal act (=you have to have a balance 5 witnesses, a functionary with the good and with the money, together they had to pronounce solemn Latin words and movements to transfer a good from one man to another for money) II. Greek Law Prasis =In Greece the act was less formalàyou had to change good and price at the same time (written acts to testify the sale). III. Ius Gentium The roman contract was called Emptio Venditio (contract of sail) èIs a model of sail that can be used by everyone: what is the most universal model to close a sale for two people that don’t share the same language, religion, law and culture? o Agreement: first point=agreement without any written act or formal words, the most important thing is that the people reach a consensual agreement, on the good and on the price. o Bilateral obligation (“Synallagma”): function of the agreement of sale. àthe transfer of the good or the price can also be given to another person in the future but the important thing is that they are both bounded by an obligation to sell and buy (also in the future to reach the function of sale). àvery important in commercial trade: it legitimates the trade from a long distant (from Rome to all over the Empire). o Principle of good faith: it was a fundamental moral element of the roman communityàthe respect of the words pronounced was very important. àThe Romans were not sure that the other cultures shared with them this principle, so they had to explain it and fix it as a fundamental principle in the contract of sale of ius gentium èprinciple of justice for everyone, moral obligation to pay/ sell the good. àidea of a universal contract of sale (great capability of adaptationàtoday we use the same contract of sale) Ius Gentium: - not internationalè but supernational Ius Gentium: SUPERNATIONAL LEGAL SYSTEM - not legal orderè but legal system - Universal Vocation= open to everyone Personal universal vocationàeveryone can use it (the Chinese legal culture understood in the 18th and 19th century, they wanted to understand roman law as a common cultural and legal heritage of the world) Historical universal vocationàwhen the romans created ius gentium they couldn’t imagine the fact that after 2000 years Europe would adopt it. The big heritage of roman law is not the civil law but of ius gentium à because its content was the most universal one. Lecture 3: 12th November Middle age common law in Europe What happened in the legal thinking between fall of Roman Empire and XI century? Fall Roman Empireàfragmentation of the universal powerèeach territory started to develop an own law exercising its sovereignty èbeginning of an idea of National law (=territory law) End of 11th Century and start a renaissance of legal science (Justinian decodification àreappeared in Bologna and Florence) 12th century (Middle Ages): The content of Codification of Law of Justinian started to become the new common law all over Europe. Iura Singularia (first typical idea of national law) + Sussidiary law (law common to all Europe)èstarted to become the new common law = IUS COMMUNE of the Middle Ages A new kind of ius communeà similar content but different from Roman universal law (=open also in content) èthis one (Middle Ages) was already codified in Justinian codificationècompletely closed èonly way to develop law= through interpretation (àlegal science became important) Different kinds of interpretation in Middle Ages (XII-XVII A.D.) 1. GLOSSATORS (from “glossa”) = name comes from the technique of interpretation “glossa”àthe legal science could only interpret word by word the codification èjurists can only explain words inside the codification. àthe interpretation is written all around the excerpt of the code and in the same page. èfirst type of interpretation working on Corpus Iuris Civile In the roman law interpretation is inside the law (àa tool to create new law) ≠ In the mentality of Middle Ages is inside the material of the written law with the glossator è interpretation closed to the words of the codification 2. COMMENTARY (XIV-XV century): mos italicus (Italian costumery technique of interpretation) and mos gallicus (French one) èinterpretation goes outside the written law (material expression of law àlegal scholar/jurist/interpreter writes his own book/work with the legal rules of the codification (èinterpreation=private affair) Important jurists: Bartolus a Saxoferrato, Cino da Pistoia, Baldo degli Ubaldi 3. LEGAL HUMANISM = (XVI cent.)ànew sensibility for history and the centrality of man in the world (àtime of the Renaissance in Europe= people sought a new birth of society) àbelief in a return to the eternal principles underlying classical society. àBefore legal humanism, scholars misunderstood the Greek writing (e.g. understanding π as ff) àThe Islamic culture/Arab translations were useful for the translation of Greek culture, brought by Arab intellectuals in Spain (thanks to Averroè and Avicenna mainly, XII cent.) 4. SCHOOL OF NATURAL LAW (XVII-XVIII century): start of a new systematic legal structure of private law that could be used forever though the use of logic (àutopist thinking, because law should change society and mirror it) àGrotius, Pufendorf, Thomasius, Wolf Corpus iuris civilis - Ius commune 14th/15th century: period of very strong dissemination of universities in Europeàgained importance èphenomenon of travelling students all over Europeèchange of mentality àthey learnt the Codification of Justinian (ius commune) = idea of a unified law in all Europe àbook “Derma” spoke of a “Legal Revolution”è idea of a national jurisdiction cancelled èbeginning of a new open-minded jurisdiction based on a same unified law Ius civile and ius canonicumàmethod of codification during Justinian. Canonic law: brought all the religious content of Christianity into law (through the interpretation by glossators and commentary). èthe individualistic relationship between God and Cristians became a very strong tool for the control of the mass/the people (also from a political point of view) ègives more importance to the role and the will of the individual àbrings to the 18th century: not anymore the role of community but of individuals. è individual perspective brought to a change in the legal mentality and relationship between individual and State (social structure and State) àthe Church used the legal instruments to create together with civil law, the common law Ius civile + ius canonicum = ius communeè UTRUMQUE IUS àscholar Calasso, book: “Il Medioevo del Diritto”àexplained the intellectual tool of ius commune for the spread of the legal culture in all Europe and to create a bridge to modernity. New legal systematic structure of private law that could be useful for ever, even if is a utopist thinking in this period because the law should evolve with the society. 4 pillars: 1) Homo—persona—subject of law àindividualistic view who is subject of law (question of moderns) who can act producing legal effect? àsubject of law: not only to the human person but also to other realty (company law, association law, etc.) 2) Res—things—(juridical) goods àabstract things that cannot be considered an actual thing, but they can be considered juridical goods (term to include them) Romans did not consider the difference between juridical and non-juridical goodsànow, for example, the sea could be a property of a state to exercise power over. Law now tells the reality of things, not vice-versa. We can say, for example, if the air could be a subject of law (while for Romans was an abstract common concept, not an individual property) 3) typicity of human acts—will—juridical act àa lawful act or expression of will intended to have legal consequences àact where the juridical effects go in the same direction of the will (tort: the juridical effects go against the will). 4) typicity of relations—juridical relationsàall the relation between humans (governed by private law) and subject of law (existing juridical content of the relation) à deals with the rights and duties of parties. All the relations between humans and subject of laws, the existing juridical content of relation. The legal content changes with the idea of community and society. èthis systematic structure= reason why in the 19th cent. every single nation in Europe started to think of a national codification (possibility to create a national civil code for each nation) In Europe, our culture has 3 pillars: « Greek culture « Roman culture « Christianity  Lecture 4: 19th November The law is constantly moving toward new fact and new society, but the base is still roman law created to be a universal law for a universal society. European civil codes despite having different languagesàthey have the same material at the base (àharmonization of law for this material) Democracy of Moderns ≠ Democracy of Ancients Luciano Canfora, “Ideology of Democracy” (à we can change our prospective of democracy if we look at democracy throughout history) Democracy of Moderns = indirect democracy /representative democracy àpeople that vote their representatives in the Assembly. In Europe (fundamental treaty of democracy): Formal political structure of the State= representative/indirect democracy èIdea that it’s impossible to create a direct democracy in the dimension of a Nation-state (the number of citizens is too large ≠ Greek polis) Democracy of Ancients (àsame idea shared by Rousseau after the French Revolutionàhe = direct democracy was for the new birth of roman model/wanted the renaissance of à”Kratos of demos” the roman model (àroman republic) In order to do soà 2 models: (=power of the people) 1) liberalism (defense of interests of middle capitalistic class); 2) democracy (new strong equality among citizens) èpeople do not vote the àproblem of incapability of a society to have direct democracy in representatives, but the dimension of a nation state. statutory law/ the president/ èright dimension to realize the direct democracy for him is the the chief of the government. city/town) Today, in Europe, democracy is encoded in constitutions and international treaties The individual people don’t play an important role in the European policy (àdone by nation states’ governments) èDemocracy deficit: most important problem in EUèthe only way to exercise the sovereignty on people is to elect an assembly èneed to break the cage of national perspective  Aristotle “La Politica” (4th century) But inasmuch as ‘constitution’ means the same as ‘government,’ and the government is the supreme power in the state, and this must be either a single ruler or a few or the mass of the citizens, in cases when the one or the few or the many govern with an eye to the common interest, these constitutions must necessarily be right ones, while those administered with an eye to the private interest of either the one or the few or the multitude are deviations. For either we must not say that those who are part of the state are citizens, or those who are part of the state must share in the advantage of membership. Our customary designation for a monarchy that aims at the common advantage is ‘kingship’; for a government of more than one yet only a few ‘aristocracy’ (either because the best men rule or because they rule with a view to what is best for the state and for its members); while when the multitude govern the state with a view to the common advantage, it is called by the name common to all the forms of constitution, ‘constitutional government’ (politeia). [...] Deviations from the constitutions mentioned are tyranny corresponding to kingship, oligarchy to aristocracy, and democracy to constitutional government; for tyranny is monarchy ruling in the interest of the monarch, oligarchy government in the interest of the rich, democracy government in the interest of the poor, and none of these forms governs with regard to the profit of the community. In ‘’La Politica (Politics)’’, Aristotle analyzes over 150 forms of government (since every polis had its own type) to produce this very in-depth work of classification. The focus is not on the form of government, but on whether the government governs in the interest of all people (good forms) or based on the interests of just a part of the people, the ruling class (deviations) è relativism in judging a good/bad form of government àif who governs, governs with an eye on common interestàconstitution must necessarily must be a good one (≠if the governs with private interestè bad government) He describes 6 main forms of government: Government of one Government of few Government of many Good forms Kingship/Reign Aristocracy Politeia (Constitutional Government) Deviations Tyranny Oligarchy Democracy Aristotle says that the best form is Politeia = government of the middle class, based on law, which should have granted socio-political stability. (note: Aristotle sometimes uses this same word not to refer to a specific form of government, but to refer to ‘’constitution’’ in general) Democracy = negative deviation of the good model, politeia, because it is the government of many people (the poorest ones) going against the other ‘’classes’’ (like it happened in the bolshevik revolution). After Aristotle, there was a change: democracy became the word to describe the good form, while the bad deviation is ‘’ochlocracy’’ (different words, same ideas). è≠ Today, Democracy is the value, the default.  Polybius (206-118 BC) “The Historia” (àfocuses on the rise of the Roman Empire) Polybius (Greek historian) is important for his analysis of the mixed constitution or the separation of powers in government, which was influential on Montesquieu's The Spirit of the Laws. Greek perspectiveàown interpretation of Roman government àfor him was strange that Rome conquered all the Mediterranean area, that had the chance to conquer the world because of the particular constitution of roman republic. àin his opinion Rome reaches its great target to unify Europe thank to its mixed government “Triple element in the Roman government” As for the Roman constitution, it had three elements, each of them possessing sovereign powers: and their respective share of power in the whole state had been regulated with such a scrupulous regard to equality and equilibrium, that no one could say for certain, not even a native, whether the constitution as a whole were an aristocracy or democracy or despotism. And no wonder: for if we confine our observation to the power of the Consuls, we should be inclined to regard it as despotic; if on that of the Senate, as aristocratic; and if finally one looks at the power possessed by the people it would seem a clear case of democracy. What the exact powers of these several parts were, and still, with slight modifications, are, I will now state. Roman Constitution: 3 elements/parts in the exercise of poweràdifferent competences: - Consuls: despotism=MONARCHY (magistrates elected by people) - Senate= ARISTOCRACY - People (public assemblies) = DEMOCRACYàthey all work for the interest of Rome Values= equality and equilibrium of parts èPolybius mixed the role of plebs, trubuni, censors with the religious elements àtheory of degeneration of Constitution Lecture 5: 26th November Cicero (106-43 BC) “De Republica” Cato used to say that our constitution was superior to those of other States on account of the fact that almost every one of these other commonwealths had been established by one man, the author of their laws and institutions ; for example, Minos in Crete, Lycurgus in Sparta, and in Athens, whose form of government had frequently changed, first Theseus, and later Draco, Solon, Clisthenes, and many others ; and last of all, when the State lay bloodless and prostrate, that learned man of Phalerum, Demetrius, revived it again. On the other hand, our own commonwealth was based upon the genius, not of one man, but of many, it was founded, not in one generation, but in a long period of several centuries and many ages of men For, said he, there never has lived a man possessed of so great genius that nothing could escape him, nor could the combined powers of all the men living at one time possibly make all necessary provisions for the future without the aid of actual experience and the test of time. èin Cicero’s view the Roman Republic differs the democratic model of the Greek polis (something that instead Polybius did by applying Greek ideals to the Roman society) Civitas→ fundamental element of modernization and development of the human culture Cicero follows the theory of Cato the Censor (II century B.C., lived in Monte Porzio Catone) who used to say that roman constitution is superior to the one of other cities, called civitates. The political structure of the polis in Greece came from the genius of a single founder (protagonism of a political ruler or myth), and it was done though statutory law. ex. MinossàCreta / LicurgusàSparta / Theseus, DracoàAthens ≠ Romeàdoesn’t have founders and the judicial/political structure didn’t come out from the political idea of a mythical ruleràinstead, from customary law, from the use of institutions and from generation by generation. Res publica = Commonwealth → Cicero stressed that the Roman Republic was based on the will of many (=the genius of many not just one) and was developed in time (not in one generation but during the years) Greek model Roman model Genius of one founder Genius of the community Statutory law (instrument of the Customary law (which role is much foundation of polis). bigger than legislation) Of course, also in Rome there was statutory law (as Cato said in his work Origines) èROMAN HISTORY as: Time and centuries Costumes and traditions Common values Roman Republic = Collective effort (product of the PEOPLE and their COSTUMES) Roman PerspectiveèWestern perspective Soviet Union was aimed at constructing a new common and shared form of government This shows us how long Roman voice/idea has lasted throughout the centuries ROMAN CONSTITUTION: Not a “professional”/written one, not a material constitution èchanges through the centuries, improves and develops Even during the Empire period, emperors (as Augustus) didn’t deny the res publica and acted to protect it ètestimony of republic not only as a form of government, but as a fundamental idea “Res Publica” (Cicero retakes Scipio’s idea) RES PUBLICA ßàRES POPULI (not res senatus/consulis) COMMONWALTH ßàPROPERTY OF PEOPLE Greek model Roman model The problem in the political forms of The problem is the political reality government is the power shared and agreed by the people èprotagonism of one èprotagonism of the people* àwhat we have today is very similar to àin fact, res republic persists also in single Greek idea (Aristotle) forms of government (monarchy/ aristocracy) *res is not power but the center of reality, that should belong to the people. There isn’t any kind of relativismàfor the romans the only way to think about politics is to think about the political structure of the res publica (meaning of res populi)ècentrality of people “Populus/People” Not an assemblage of human being = NOT A NATION ègroup of associated people/agreement in respect of justice =voluntary collective moment à(People is not a nation, there is a will principle, the agreement/ the choice to stay together. Voluntary act, brought together not because they speak the same language, have the same believes etc., but only because they WANT to gather together) Roman Republic Nation State Defense of the will of the community Involves the concept of oppression (of people) (independent from every form of government) and domination (of rulers) =what should exist in EUèunique political reality =what exists in EUèsingle nations collaborating that respects the common will èThe idea of nation state has a lot of problems to survive in the post capitalistic society and the capitalistic one. The nation states have the problem of the globalization. So, the idea of Scipio’s res populi: 1. agreement, association of the members through their free will 2. to share the law, the common law for all of them 3. the common target, the utility for everyone Lecture 6: 1st December Concepts of Liberty -Benjamin Constant- (1767-1830) [Swiss-French political activist and writer on political theory and religion. A committed republican during the French Revolution. He refined the concept of liberty, defining it as a condition of existence that allowed the individual to turn away interference from the state or society.] “The Liberty of Ancients Compared with that of Moderns” (1819) Liberties have to be compared to the society and to the period we are referring. Constant underlines the difference between the liberty of the ancients and the modern idea. ---Moderns--- When we think of liberty, we think about an individualistic liberty First ask yourselves what an Englishman, a Frenchman, and a citizen of the United States of America understand today by the word ‘liberty’. For each of them it is: the right to be subjected only to the laws, and not to be arrested, imprisoned, put to death or maltreated in any way by decision of one or more individuals the right of each person to express his opinion, choose a profession and practice it, dispose of his own property and even to misuse it; the right to come and go without permission, and without explaining what one is doing or why; the right of each person to associate with other individuals—whether to discuss their interests, or to join in worship, or simply to fill the time in any way that suits his fancy; and each person’s right to have some influence on the administration of the government—by electing all or some of the officials, or through representations, petitions, or demands that the authorities are more or less obliged to take into consideration. èindividualistic perspective= the right of every single person to do something free without asking permission. èthe center of everything is the individual We lost our capability to see reality in social relations à The liberty of today is seen as a reality of a single human person, and not of the community ---Ancients--- In the ancient political reality of the polis the liberty was of the communityècollective freedom The liberty of the ancients consisted in carrying out collectively but directly many parts of the overall functions of government, coming together in the public square to: - discuss and make decisions about war and peace; - form alliances with foreign governments; - vote on new laws; - pronounce judgments; - examine the accounts, acts, and stewardship of the magistrates; - call the magistrates to appear in front of the assembled people; - accuse the magistrates and then condemn or acquit them. But while the ancients called this liberty, they saw no inconsistency between this collective freedom and the complete subjection of the individual to the authority of the group. All private actions were strictly monitored. [...] The individual is nearly always sovereign in public affairs but a slave in all his private relations (freedom of opinion, religion, work) Element of Slavery: Liberty ≠ Slavery (contrary) In the modern time slavery doesn’t exist anymore, all human beings are free The ancients had slavery èslavery, in Constant’s opinion, allowed free men to have an active participation in political life (àdirect democracy) (citizenships= the citizen is the protagonist of the political) Ex. if a father had a hundred slaves/people working for him, he has time to travel, participate to assemblies and participate to the political life of the polis Note: In the ancient world, the political entities were the CITIES (still small compared to modern states, no matter how populous and rich). Driven by necessity against one another, these cities fought or threatened each other constantly. èWAR was the price the free city-states had to pay to purchase their security, their independence. As a necessary result of this mode of existence, all states had slaves. The modern world looks totally different from that. The smallest states of our day are incomparably larger than Sparta or Rome were. Even the division of Europe into distinct states is more apparent than real, thanks to the spread of enlightenment (at Constant’s time - even more now because of globalization). “War precedes commerce, because they are merely two different ways of achieving the same end. If I want something that you own, commerce is simply my tribute to your strength, i.e. my admission that I can’t just take the thing I want. Commerce is an attempt to get through mutual agreement something that one has given up hope of acquiring through violence. [...] What leads us to resort to commerce is our experience that war exposes us various obstacles and defeats. When we turn to commerce, we are using a milder and surer means of making it in someone else’s interests to agree to what we want. War is impulse, commerce is calculation; and for just that reason a time must come when commerce replaces war. We have reached that time.” ‘’Finally, thanks to commerce, religion, and the moral and intellectual progress of the human species, there are no longer slaves among the European nations. All the professions, all provision for the needs of society, must be done by free men”. Consequences on the modern state: - The bigger a country is, the smaller is the political importance allotted to each individual. - The abolition of slavery has deprived the free population of all the leisure they used to have when slaves did most of the work - Commerce doesn’t leave intervals of inactivity in men’s lives, as war does. The free people of antiquity would have languished under the weight of miserable inaction if it hadn’t been for the constant exercise of political rights. All of that would now only cause trouble and fatigue to modern nations, where each individual - occupied with his speculations, his enterprises - doesn’t want to be side-tracked from them. - Commerce inspires in men an intense love of individual independence. It supplies their needs, satisfies their desires, without any intervention from the authorities. Was it better to be free in ancient times or is it better today? To be free in the ancient times was better but it was possible only because of the existence of a big inequality in the society (slavery=key to participate in political life) èimpossibility of comparison According to Constant, we cannot make a comparison with today because slavery does not exist anymore (in most places). Nowadays liberty has gained a different and abstract meaning that relates to a single person, without taking into account his role in the community. Constant, as a Republican and witness of the French Revolution, refers to POLITICAL liberty as freedom from the impositions of the kingàprinciple of libertè, egalitè, fraternitè Then, this liberty became the single liberty of the individual against the state → we have lost the meaning of liberty as the responsibility of each citizen to realize the “res publica’’ as “res populi’’ (in Cicero’s words). “But the individual does not live alone, freedom must be considered within the community, not only as individual rights” Marxist view of liberty (Karl Marx- 19th century) Capitalistic society divided in 2 classes: 1. the capitalists 2. workers/the proletariat 1. Capitalists are the business owners (who organize the process of production and who own the means of production such as factories, tools, and raw material, and who are also entitled to all profits). 2. Working class: much larger classàcomposed of labor àthey do not own or have any claim to the means of production, the finished products they work on, or any of the profits generated from sales of those products. àRather, proletarians work only in return for a money wage, and they need work to survive. Because of this uneven arrangement, capitalists exploit workers, also by taking advantage of the “surplus value’’. Marx argued that slavery had not been abolished at all, it had only taken another name in modern society. èMan is free, but he is only free to be a slave The only way to stay alive is to work hard in the interest of someone who exploits you. Role of the state in Marxist theory: it should grant the equilibrium between these 2 clashing classes. But in history, the state has taken the side of the capitalist class. èSupranational capital over the stateàsupernational economic power is everyday stronger. With the advent of the mass society (20th century), in which only market and consumers exist, the dualistic idea of Marx changed. The only meaning of our existence is that of potential consumers. We are a mass of easily influenceable and predictable people, making it easy to maximise the profits. àThe individual perspective is an advantage to capitalism. àThe consumer is the next stage of the workerèthe conflict of class that Marx imagined does not exist anymore as he intended it. Lecture 7: 3rd December Ideological precondition of capitalism: private property as the paradigmatic liberal right Code Napoléon [the French civil code established under the French Consulate in 1804 and still in force, although frequently amended] is built around the private property principle. àthe liberal thinking of that time thought that was the only way to come out of the feudal society of the Middle Ages. In the 19th century, the old models of collective property were thrown away because they were against the ideological principle of private property. Commerce between individuals was the core model. The owner had the possibility to buy, sell, and dispose of the property however he liked. [≠ today, the idea of debt/obligation is the fundamental element of capitalism] In the 19th century, public property was that of the nation. It is more an extension of private property since the owner is not an individual but the state [≠ collective property, which could only be found in a communist society àThe cooperative model is another idea to develop collective property. Italy is one of the most developed countries of the world regarding the cooperative model, especially in Emilia Romagna, because of the great influence of the Italian Communist Party. Benefits of the cooperative model: all the owners can share the risks and the advantages; they are not only workers but also partners] 20th century mass society uses links to the social rule (political body) individualistic approach, the man is only a consumer. Individual perspective helps the distribution of the material goods. Back to the principle of liberty... Epictetus (50-135 AD) àhe was born a slave. Early in life, he acquired a passion for philosophy and, with the permission of his wealthy owner, he studied Stoic philosophy which allowed him to rise in respectability. àhe obtained his freedom after 30 years of slavery, and he began to teach philosophy in Rome. About 93 AD Emperor Domitian banished all philosophers from the city, and Epictetus went to Greece, where he founded a philosophical school. The work of Epictetus focuses on a single topic: freedom. (We find these concepts also in other stoic philosophers: Seneca, for example) He has an individualistic way to look at freedom (àconsequence of the Hellenistic culture) The first use of the Latin word libertas was the libertas of roman people from the period of the Etruscan kings. Epictetus says that liberty (ἐλευθερία) means political liberty (just like in the French Revolution it was liberty from the impositions of the king) Insight: [Stoicism: a school of Hellenistic philosophy founded by Zeno of Citium in Athens in the early 3rd century BC. It is a philosophy of personal ethics informed by its system of logic and its views on the natural world. According to its teachings, as social beings, the path to εὐδαιμονία (happiness) is found in accepting the moment as it presents itself, by not allowing oneself to be controlled by the desire for pleasure or by the fear of pain, by using one's mind to understand the world and to do one's part in nature's plan, and by working together and treating others fairly and justly. It was one of the most revolutionary movements in philosophy and in society, both Greek and Roman oneàThe stoic thinking paved the road for Christianity] [Hellenism: the name of this period is justified by the extent of the Hellenic culture in most of these areas, due to the Greek political presence especially in Asia after Alexander's conquests, but also to a new wave of Greek colonization. In consequence, the Hellenistic Period is usually accepted to begin in 323 BC, with Alexander's death, and ends in 31 BC with the conquest of the last Hellenistic kingdom by Rome, the Lagid kingdom of Egypt. Politically, the Hellenistic Period is characterized by divisions from Alexander's former empire, with endless wars between the διάδοχοι and their successors. The model of the city-state which dominated before was replaced by the different kinds of kingdoms, with more centralized power. People, therefore, were not active citizens of their community anymore. In this political climate, Hellenistic philosophers went in search of goals such as ataraxia (un-disturbedness), autarky (self-sufficiency), and apatheia (freedom from suffering), which would allow them to wrest well-being or eudaimonia out of the most difficult turns of fortune. This occupation with the inner life, with personal inner liberty and with the pursuit of eudaimonia is what all Hellenistic philosophical schools have in common.] Epictetus Diss. 4. About freedom He is free who lives as he wishes to live; who is neither subject to compulsion nor to hindrance, nor to force; whose movements to action (ὁρμαί) are not impeded, whose desires attain their purpose, and who does not fall into that which he would avoid (ἐκκλίσεις ἀπερίπτωτοι). Who then chooses to live in error? No man. Who chooses to live deceived, liable to mistake, unjust, unrestrained, discontented, mean? No man. Not one then of the bad lives as he wishes; nor is he then free. And who chooses to live in sorrow, fear, envy, pity, desiring and failing in his desires, attempting to avoid something and falling into it? Not one. Do we then find any of the bad free from sorrow, free from fear, who does not fall into that which he would avoid, and does not obtain that which he wishes? Not one; nor then do we find any bad man free. If then a man who has been twice consul should hear this, if you add, ‘But you are a wise man; this is nothing to you’: he will pardon you. But if you tell him the truth, and say, ‘You differ not at all from those who have been thrice sold as to being yourself not a slave, what else ought you to expect than blows?’. For he says, ‘What, I a slave, I whose father was free, whose mother was free I whom no man can purchase: I am also of senatorial rank, and a friend of Caesar, and I have been a consul, and I own many slaves’. In the first place, most excellent senatorial man, perhaps your father also was a slave in the same kind of servitude, and your mother, and your grandfather and all your ancestors in an ascending series. But even if they were as free as it is possible, what is this to you? What if they were of a noble nature, and you of a mean nature; if they were fearless, and you a coward; if they had the power of self-restraint, and you are not able to exercise it. ‘And what’, you may say, ‘has this to do with being a slave?’. Does it seem to you to be nothing to do a thing unwillingly, with compulsion, with groans, has this nothing to do with being a slave? ‘It is something’, you say, ‘but who is able to compel me, except the lord of all, Caesar?’. Then even you yourself have admitted that you have one master. But that he is the common master of all, as you say, let not this console you at all: but know that you are a slave in a great family. So also the people of Nicopolis are used to exclaim, ‘By the fortune of Caesar, we are free!’. However, if you please, let us not speak of Caesar at present. But tell me this: did you never love any person, a young girl, or slave, or free? ‘What then is this with respect to being a slave or free?’ Were you never commanded by the person beloved to do something which you did not wish to do? Have you never flattered your little slave? Have you never kissed her feet? And yet if any man compelled you to kiss Caesar's feet, you would think it an insult and excessive tyranny. What else then is slavery? Did you never go oat by night to some place where you did not wish to go, did you not expend that you did not wish to expend, did you not utter words with sighs and groans, did you not submit to abuse and to be excluded? But if you are ashamed to confess your own acts, see what Thrasonides says and does, who having seen so much military service as perhaps not even you have, first of all went out by night, when Geta (a slave) does not venture out, but if he were compelled by his master, would have cried out much and would have gone out lamenting his bitter slavery. Next, what does Thrasonides say? ‘A worthless girl has enslaved me, me whom no enemy ever did’. Unhappy man, who is the slave even of a girl, and a worthless girl. Why then do you still call yourself free? and why do you talk of your service in the army? Then he calls for a sword and is angry with him who out of kindness refuses it; and he sends presents to her who hates him, and intreats and weeps, and on the other hand having had a little success he is elated. But even then how? Was he free enough neither to desire nor to fear? - Epictetus shows us the traditional mentality: - Starts by analyzing the legal distinction between liberty and slavery. - Then he proceeds to show the ethical point of view. èthere are some men free from a legal point of view, but slaves from an ethical view, and vice-versa. - Everyone is under the will of the emperor àpolitical judgment: the Roman Empire= despotic system/power (the Roman emperor is the master of the world and everyone one in the empire is not really freeàalso the free are claves from a political point of view)  Cardilli docet: “La schiavitù giuridica non può coincidere con la libertà naturale. È molto più dirompente la presenza della libertà naturale in una società schiavistica che una società libera che non rispetti la libertà naturale.” = Juridical slavery cannot coincide with natural freedom. the presence of natural freedom in a slave society is much more disruptive than a free society that does not respect natural freedom. Now consider in the case of animals, how we employ the notion of liberty. Men keep tame lions shut up, and feed them, and some take them about; and who will say that this lion is free? Is it not the fact that the more he lives at his ease, so much the more he is in a slavish condition? And who if he had perception and reason would wish to be one of these lions? Well, these birds when they are caught and are kept shut up, how much do they suffer in their attempts to escape? And some of them die of hunger rather than submit to such a kind of life. And as many of them as live, hardly live and with suffering pine away; and if they ever find any opening, they make their escape. So much do they desire their natural liberty, and to be independent and free from hindrance. ‘And what harm is there to you in this?’ ‘What do you say? I am formed by nature to fly where I choose, to live in the open air, to sing when I choose: you deprive me of all this, and say, what harm is it to you?’. For this reason we shall say that those animals only are free, which cannot endure capture, but as soon as they are caught they escape from captivity by death. So Diogenes also somewhere says that there is only one way to freedom, and that is to die content: and he writes to the Persian king. ‘You cannot enslave the Athenian state any more than you can enslave fishes’. ‘How is that? cannot I catch them?’. ‘If you catch them’, says Diogenes, ‘they will immediately leave you, as fishes do; for if you catch a fish, it dies; and if these men that are caught shall die, of what use to you is the preparation for war?’. These are the words of a free man who had carefully examined the thing, and, as was natural, had discovered it. But if you look for it in a different place from where it is, what wonder if you never find it? Concept of natural liberty= most important concept ancient culture gave us. The model is the natural freedom of the animalsèconnatural principle of wild animals àwild animals are free by nature, they are not meant to live in captivity. àMen can put them in captivity, but that does not mean that they are not free anymore (èthey maintain their natural freedom, that’s why they try to escape from captivity). This concept came from stoic thinking. [Animals are important also in Roman culture: eagle, wolf - wild and free animals= symbols] “I’m formed by nature to fly where I choose […]”  Ulpianusàprominent Roman jurist (170 - 223 ca AD) 1. Ulpianus, Book I, Institutes àfrom the Digest (534 A.D.) of Justinian (482-565 A.D.) Those who apply themselves to the study of law should know, in the first place, from whence the science is derived. The law obtains its name from justice; for (as Celsus elegantly says), law is the art of knowing what is good and just (ius est ars boni et aequi). (1) Anyone may properly call us the priests of this art, for we cultivate justice and profess to know what is good and equitable, dividing right from wrong, and distinguishing what is lawful from what is unlawful; desiring to make men good through fear of punishment, but also by the encouragement of reward; aiming (if I am not mistaken) at a true, and not a pretended philosophy. (2) Of this subject there are two divisions, public and private law. Public law is that which has reference to the administration of the Roman government; private law is that which concerns the interests of individuals; for there are some things which are useful to the public, and others which are of benefit to private persons. Public law has reference to sacred ceremonies, and to the duties of priests and magistrates. Private law is threefold in its nature, for it is derived either from natural precepts, from those of nations, or from those of the Civil Law. (3) Natural law is that which nature teaches to all animals, for this law is not peculiar to the human race, but affects all creatures which deduce their origin from the sea or the land, and it is also common to birds. From it proceeds the union of male and female which we designate as marriage; hence also arises the procreation of children and the bringing up of the same; for we see that all animals, and even wild beasts, appear to be acquainted with this law. (4) The Law of Nations is that used by the human race, and it is easy to understand that it differs from natural law, for the reason that the latter is common to all animals, while the former only concerns men in their relations to one another. 4. Ulpianus, Institutes, Book I. Manumissions also, are part of the Law of Nations, for manumission is dismissal by the hand, that is to say the bestowal of freedom; for as long as anyone is in servitude he is subject to the hand and to authority, but, once manumitted, he is liberated from that authority. This takes its origin from the Law of Nations; since, according to natural law all persons were born free, and manumission was not known, as slavery itself was unknown; but after slavery was admitted by the Law of Nations, the benefit of manumission followed, and while men were designated by one natural name there arose three different kinds under the Law of Nations, that is to say freemen, and, in distinction to them, slaves, and as a third class, freedmen, or those who had ceased to be slaves. Law of Nation (Ius Gentium) Manumission is the liberation of a slave (judicial act to make a slave free) àThe name of the act comes from the perspective of the owner. èThis concept does not exist in natural law, because, according to natural law, all men are free. àHere the legal distinction between slavery and liberty does not matter anymore. The slave, from a natural point of view, is free even when he is a slave (according to legal one) èpowerful idea (natural freedom used for Natural law) Our current society is based on substantive slaveryàeven though there isn’t a formal one that can be defended in tribunal, like it was in ancient times. àwe struggle to imagen our real natural freedom (=fundamental element of human nature) Equality and Liberty= oxymoronsèthey are impossible to realize together (either the countries follow one direction or the other) èall communities should defend the liberty (not only the individual one)