This capricious arbitrary aspect of law was a thing which much impressed
the Greeks. They contrasted the varying, artificial arrangements made by
mankind with the constancy and simplicity of nature. We speak of nature
and convention; they contrasted things that are by nature with things
that are by law. It was a contrast that bore fruit later on.
Now law, whose arbitrariness and variety so much impressed the Greeks
was the law not so much of this place or that, as of this or that
community and its members. This is a conception quite different from
that of the modern world. We may paraphrase 'English law' by saying the
law of England, because it is the law which will be applied (with, it
may be, some exceptions or modifications) by the English courts to all
persons, be they English or aliens, who come before them. But Athenian
law is not in this sense the law of Athens, nor, to begin with, is Roman
law the law of Rome. What we find is a law of Athenian or Roman
citizens. The stranger to the city is a stranger to its law. As a matter
of principle he is without rights by that law. His life is not protected
by the blood-feud which his family can pursue, or by the compensation
with which it may be bought off. His marriage with a citizen will be no
marriage, or at best a sort of half marriage. He can acquire no land
within the city's territory, and what goods he brings with him are
pretty much at the mercy of the first taker.
Such, at any rate, is the theory of the 'law of citizens'.
We need not, it is true, believe that it was logically formulated in
primitive times and ruthlessly applied. Some of its applications were
the result of positive legislation due to a growing consciousness of the
self-sufficiency of the city state and of the privileges of citizenship,
as when Athens passed a law excluding from citizenship the offspring of
citizens who had married foreign wives. But in its broad outlines the
principle is sufficiently borne out by the exceptions which were
necessary to make human intercourse possible. The stranger within your
gates is protected just because he is within your gates, and you throw
your protection about him, as is indeed your duty, for suppliants and
strangers come from Zeus. The foreigner, even at a distance, may have a
citizen as representative who can and will defend his rights. A stranger
may be allowed to take up a permanent residence in the city, and by the
mediation of a patron or guardian enjoy private rights not much inferior
to those of a citizen. His legal position will not be very different
from that of a woman citizen, who needs the like mediation. Cities may,
again, by treaty confer on each other's citizens reciprocal rights of
legal protection.
Public-domain text, read in full here on John Shaqi.
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