Ethics, politics and law in ancient Greece
and contemporary South Africa
George Bizos S.C
Legal Resources Centre, Constitutional Litigation Unit
Abstract
This article juxtaposes ancient Greek and contemporary South
African notions of democratic constitutions and just laws. Solon
and Cleisthenes' democratic reforms are thus compared with the
new South African constitution, whereas Plato's hierarchical
proposal for an ideal state was influential on some apartheid
verligtes. A crucial question concerns the relationship between
law and ethics, i.e. whether unjust laws are to be obeyed by
citizens. On the one hand is Socrates, who insists on respecting
the laws of Athens in facing his death sentence; on the other
hand is Bram Fischer, who refuses to obey laws that are unjust.
The difference between just and illegitimate laws is further
illustrated with examples from Pericles' Funeral Oration in
Thucydides and Sophocles' Antigone.
I find myself as a guest of the South African Society for Greek Philosophy
and the Humanities (SASGPH). I am a lawyer, not a philosopher. I will
therefore speak about ethics, politics and law in ancient Greece and
contemporary South Africa.
Former President Nelson Mandela recorded a message to mark two
and a half thousand years of democracy in Greece in which he said:
“Greece is the mother of democracy and South Africa is her youngest
daughter.”
The fundamental law of any society, particularly a democratic society,
is its Constitution. The South African Constitution was adopted by an all
white parliament in 1910, and was often amended to secure power for a
white oligarchy until the end of the apartheid regime in 1994. A
democratically elected Constituent Assembly adopted the present
Constitution1 which was certified by the Constitutional Court of South Africa2
as being consistent with the 34 fundamental democratic principles3 agreed
upon by all parties at CODESA4. According to the post amble of the new
Constitution, the apartheid Constitution was “characterized by strife, conflict,
untold suffering and injustice”. The Democratic Constitution expressly
aspires to provide a transition from the grossly unacceptable features of the
Phronimon, Vol 9 (2) 2008 __________________________________________________
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past to a conspicuously contrasting “future founded on the recognition of
human rights, democracy and peaceful co-existence and development
opportunity of all South Africans irrespective of colour, race, class, religion
or sex.”
The late Ismail Mohamed, a justice of the Constitutional Court, later
Chief Justice of South Africa, and well-versed in philosophical matters wrote:
All Constitutions seek to articulate, with differing degrees of intensity and
detail, the shared aspirations of a nation; the values which bind its people,
and which discipline its government and its national institutions; the basic
premises upon which judicial, legislative and executive power is to be
wielded; the constitutional limits and the conditions upon which that power
is to be exercised; the national ethos which defines and regulates that
exercise; and the moral and ethical direction which that nation has
identified for its future. In some countries the Constitution only formalizes,
in a legal instrument, a historical consensus of values and aspirations
evolved incrementally from a stable and unbroken past to accommodate
the needs of the future. The South African Constitution is different: it retains
from the past only what is defensible and represents a decisive break from,
and a ringing rejection of, that part of the past which is disgracefully racist,
authoritarian, insular, and repressive, and a vigorous identification of and
commitment to a democratic, universalistic, caring and aspirationally
egalitarian ethos expressly articulated in the Constitution. The contrast
between the past which it repudiates and the future to which it seeks to
commit the nation is stark and dramatic. The past institutionalized and
legitimised racism.5
If Greece was indeed the mother of Athenian democracy, Solon was the
father and Cleisthenes the godfather.
What is known from fragments of writings and reconstructions by
ancient writers from Herodotus to Plutarch correspond in some respects to
the provisions of the Democratic Constitution of South Africa.
In Plutarch’s Solon we read:
Athens was torn by recurrent conflict about the Constitution. The city was
divided into as many parties as there were geographical divisions in its
territory. For the party of the people of the hills was most in favour of
democracy, that of the people of the plain was most in favour of oligarchy,
while the third group, the people of the coast, which preferred a mixed
form of Constitution somewhat between the other two, formed an
obstruction and prevented the other groups from gaining control.6
According to K. R. Walters:
“The new picture which emerged was one of strife between regional
groups, united by local loyalties and led by wealthy landowners. Their goal
was control of the central government at Athens and with it dominance over
their rivals from other districts of Attika.”7
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According to Walters, because an Athenian belongs not only to a phyle or a
tribe but also to a clan or genos, the interconnecting units of kinship
reinforced hierarchic structures with aristocratic clans at the top. This led to
rivalries between aristocratic clans that engaged all levels of society
irrespective of any regional ties. The struggle between rich and poor was the
struggle between powerful aristocrats and the weaker affiliates of their rivals,
or perhaps even their own rebellious affiliates.
The whites in South Africa and particularly the Afrikaaners who
ascended to power in 1948 exploited racial, tribal and ethnic divisions by
making laws to keep groups apart, sub-dividing the country into Bantustans
and creating a form of domestic colonialism instead of a united democratic
republic.
Solon, by changing the character of the ekklesia under the control of
the nobles and having a portion of it sitting as a jury, is giving people the
power not only to elect officials but also to call them to account. This, and
other reforms, established the foundations of a true democracy. Even so,
some financial and social qualifications were required for election to public
office. The reforms were nevertheless, at the very least, a radical anticipation
of democratic government. Some say that some of the provisions in his
Constitution established a plutocratic and aristocratic regime.
A complaint is voiced by various South Africans that this is true within
our shores, despite the equality clause in our Constitution. Even the
provision for socio-economic rights in our Constitution are to be found in
part in Solon’s laws in support of rural economy and the nascent
commercial sector.8
Cleisthenes’ reforms called isonomia (equality of political rights),
which is a development of demokratia (direct democracy), are the right to
remove the archon (ruler) by popular vote, freeze his assets, and send him
into exile for a period of ten years. These reforms were not well received by
all Athenians. It is said that Cleisthenes himself may have been exiled for
having ambitions to set himself up as a tyrant. A considerable body of
scholars would argue that modern day western politics were shaped by
Cleisthenes’ reforms.
But not all ancient philosophers agreed with the notion of isonomia.
Plato wrote:
“It was indeed appropriate,” I said. “All the same, hear out the rest of the
tale. ‘All of you in the city are certainly brothers, we shall say to them in
telling the tale, but god in fashioning those of you who are competent to
rule, mixed gold in at their birth; this is why they are most honored; in
auxiliaries, silver, and iron and bronze in the farmers and other craftsmen.
So, because you’re all related, although for the most part you’ll produce
offspring like yourselves, it sometimes happens that a silver child will be
born from a golden parent, a golden parent from a silver parent, and
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similarly all the others from each other. Hence the god commands the
rulers first and foremost to be of nothing such good guardians and to keep
over nothing so careful a watch as the children, seeing which of these
metals is mixed in their souls. And, if a child of theirs should be born with
an admixture of bronze or iron, by no manner of means are they to take
pity on it, but shall assign the proper value to its nature and thrust it out
among the craftsmen or the farmers; and, again, if from these men one
should naturally grow who has an admixture of gold and silver, they will
honor such ones and lead them up, some to the guardian group, others to
the auxiliary, believing that there is an oracle that the city will be destroyed
when an iron or bronze man is its guardian.’ So, have you some device for
persuading them of this late?”9
Some verligtes, relying on Plato, thought that apartheid was a social
experiment that should have been given an opportunity to prove itself as a
political theory. All of us in the struggle, and most people of the world,
accused them of clutching at straws in order to give some legitimacy to a
policy that was condemned as a crime against humanity throughout the
world.
There was, and still is, a debate whether all laws should be obeyed
whether they are legitimate or not. Nelson Mandela, Walter Sisulu, Govern
Mbeki and others charged with capital offences at the Rivonia Trial did not
plead guilty even though they admitted that they established and supported
Mkhondo we Sizwe, The Spear of the Nation, to commit acts of violence
against symbols of apartheid, taking care that there should be no loss of
human life. They contended that there comes a time in the life of a nation
that the people are no longer prepared to submit to oppression. They are
then not obliged to submit.
Bram Fischer succeeded Nelson Mandela as one of the leaders of the
underground struggle and echoed their words at his own trial:
My Lord, there is another reason, and a more compelling reason for my
plea [of not guilty] and why even now I persist in it. I accept, my Lord, the
general rule that for the protection of a society laws should be obeyed. But
when the laws themselves become immoral, and require the citizen to take
part in an organized system of oppression – if only by his silence and
apathy – then I believe that a higher duty arises. This compels one to refuse
to recognize such laws.
The law, my Lord, under which I have been prosecuted, was enacted by a
wholly unrepresentative body, a body in which three-quarters of the people
of this country have no voice whatever. This and other laws were enacted
not to prevent the spread of Communism, but, my Lord, for the purpose of
silencing the opposition of the large majority of our citizens to a
government intent upon depriving them, solely on account of their colour,
of the most elementary human rights: of the right to freedom and
happiness, the right to live together with their families wherever they might
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choose, to earn their livelihoods to the best of their abilities, and to rear
and educate their children in a civilized fashion; to take part in the
administration of their country and to obtain a fair share of the wealth they
produce; in short, my Lord, to live as human beings.
My conscience, my Lord, does not permit me to afford these laws such
recognition as even a plea of guilty would involve. Hence, though I shall be
convicted by this Court, I cannot plead guilty. I believe that the future may
well say that I acted correctly.
My Lord, it was to keep faith with all those dispossessed by apartheid that I
broke my undertaking to the court, that I separated myself from my family,
pretended I was someone else, and accepted the life of a fugitive. I owed it
to the political prisoners, to the banished, to the silenced and to those
under house arrest not to remain a spectator, but to act. I knew what they
expected of me, and I did it. I felt responsible, not to those who are
indifferent to the sufferings of others, but to those who are concerned. I
knew, my Lord, that by valuing above all their judgement, I would be
condemned by people who are content to see themselves as respectable
and loyal citizens. I cannot regret any such condemnation that may follow
me.10
Later, when he became Chief Justice, Ismail Mohamed had this to say:
What these statements amount to is this: there must be a rational and
purposive relationship between law and morality and particularly between
law and justice. The law must have a morally defensible content. It is that
which compels my fidelity to it. Your laws do not have that content. They
are immoral. I am therefore not obliged to obey them. Indeed I am entitled
to defy them with the object of causing other laws to be enacted which are
ethically purposive and which can therefore properly compel my fidelity.11
Bram Fischer was struck off the roll of the Johannesburg Bar of Advocates
shortly after his trial in 1966. In 2004 the application of his daughters, Ruth
and Ilse, supported by the General Council of the Bar, and the very
Johannesburg Council that had moved for his removal from the roll, agreed
that an injustice had been done to him. It took little arrangement from us on
behalf of his daughters to persuade a court of three High Court judges to reinstate Bram Fischer on the roll of Advocates.
Aeschylus, in his play Prometheus Bound, questioned the gods’
authority to deprive the people of the right to use fire. He stole it for the
benefit of mankind. He did not deserve his punishment.
By way of contrast Solon, Cleisthenes, and most certainly Socrates and
Plato, believed that the laws should be obeyed. The following dialogue takes
place in Socrates’ prison cell, where he awaits execution. He is visited before
dawn by his old friend and pupil Criton, who has made arrangements to
smuggle Socrates out of prison to the safety of exile. Socrates seems quite
willing to await his imminent execution, and so Criton presents as many
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arguments as he can to persuade Socrates to escape. On a practical level,
Socrates’ death will reflect badly on his friends – people will think they did
nothing to try to save him. Also, Socrates should not worry about the risk or
the financial cost to his friends; these they are willing to pay, and they have
also arranged to find Socrates a pleasant life in exile. On a more ethical
level, Criton presents two more pressing arguments: firstly, if he stayed, he
would be aiding his enemies who wanted him to die, and secondly, he
would be leaving his sons without a father.
Socrates is not prepared to disobey the laws of Athens in which he
lived for seventy years. What has become known amongst philosophers ever
since as the “social contract” between the citizen and the state must not be
broken.
The possible answer may be that where the rule of law prevails the law
must be obeyed. A number of judgments of our Constitutional Court have
defined what is meant by the “rule of law”. Justice Ngcobo in a recent
judgment Masetlha v President of the Republic of South Africa and Another
2008 (1) SA 566 (CC) said:
The rule of law principle requires that the actions of all those who exercise
public power must comply with the law, including the Constitution. It is
central to the conception of our constitutional order that those who exercise
public power including the President, are constrained by the principle that
they may exercise only those powers and perform only those functions
which are conferred upon them by the law. Their sole claim to the exercise
of lawful authority rests in the powers allocated to them under the law.12
Laws as enacted by Parliament be faithfully executed by officials; that
orders of court should be obeyed; that individuals wishing to enforce the
law should have reasonable access to court; that no person should be
condemned unheard; and that power should not be arbitrarily exercised.13
Our Constitution uses “reason”, “reasonable”, and “reasonably” on no less
than 31 of its provisions.14
However, it does not follow that the mere use of the word “reason”
signifies a benevolent intention. “Reason of State” is defined by the Oxford
Dictionary as “A purely political ground or action on the part of a ruler or
government especially as involving some departure from strict justice,
honesty or open dealing.” Hardly a meaning acceptable to democrats.
Didcott J., when dealing with a piece of apartheid legislation, said:
When the commissioner has finished with you [the accused], the papers in
your case go on review to a Judge of the Supreme Court. He is expected, if
everything is in order, to certify that what happened to you appears to him
to have been “in accordance with justice”. The trouble is that it was not. It
may have been in accordance with the legislation and, because what
appears in legislation is the law, in accordance with that too. But it can
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hardly be said to have been “in accordance with justice”. Parliament has
the power to pass the statutes it likes, and there is nothing the Courts can
do about that. The result is law. But that is not always the same as justice.
The only way that Parliament can ever make legislation just is by making
just legislation.15
Plato’s Reason and Temperance, logos and sophrosyne, play a vital part in
government: the rule of law, the social contract and the doctrine of
separation of powers.
In order to write a democratic Constitution political leadership is
needed. Nelson Mandela, shortly after his release from prison, met the
African National Congress‘s Legal and Constitutional Committee. His
mandate was– “Let us have a Constitution good for all South Africans –
favouring not only our Party.”
What distinguishes a just law from an illegitimate one is an ethical
question. We can do no better than look to Pericles’ Funeral Oration
reported by Thucydides’ The Peloponnesian War (Book 2.34-46):
Our Constitution does not copy the laws of neighbouring states; we are
rather a pattern to others than imitators ourselves. Its administration
favours the many instead of the few; this is why it is called a democracy. If
we look to the laws, they afford equal justice to all in their private
differences; if no social standing, advancement in public life falls to
reputation for capacity, class considerations not being allowed to interfere
with merit; nor again does poverty bar the way, if a man is able to serve
the state, he is not hindered by the obscurity of his condition. The freedom
which we enjoy in our government extends also to our ordinary life. There,
far from exercising a jealous surveillance over each other, we do not fell
called upon to be angry with our neighbour for doing what he likes, or
even to indulge in those injurious looks which cannot fail to be offensive,
although they inflict no positive penalty. But all this ease in our private
relations does not make us lawless as citizens. Against this fear is our chief
safeguard, teaching us to obey the magistrates and the laws, particularly
such as regard the protection of the injured, whether they are actually on
the statute book, or belong to that code which, although unwritten, yet
cannot be broken without acknowledged disgrace.
The security of the State is the frequent excuse for illegitimate laws. Creon, in
Sophocles’ Antigone, is relied upon by tyrants throughout the ages even by
some who claim to be democrats:
Yet ‘tis no easy matter to discern the temper of a man, his mind and will, till
he be proved by exercise of power; and in my case, if one who reigns
supreme swerve from the highest policy, tongue-tied by fear of
consequence, that man I hold, and never held, the basest of the base…
And I condemn the man who sets his friend before his country…
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If I perceive some mischievous design to sap the State, I will not hold my
tongue; now would I reckon as my private friend a public foe, well knowing
that the State is the good ship that holds our fortunes all: farewell to
friendship, if she suffers wreck…
Such is the policy by which I seek to serve the Commons and conformably I
have proclaimed an edict as concerns the sons of Oedipus…
For Polyneices ‘tis ordained that none shall give him burial or make mourn
for him, but leave his corpse unburied, to be meat for dogs and carrion
crows, a ghastly sight…
So am I purposed; never by my will shall miscreants take precedence of
true men, but all good patriots, alive or dead, shall be by me preferred and
honored…
By way of contrast let us remember the words by Diodotus against the
proposal to put to death all male Mytilenians as a punishment for their revolt
against Athens:
And we should recognize that the proper basis of our security is in good
administration rather than fear of legal penalties.
The Mytilenians were not put to death, but others who rebelled against
Athens were not as fortunate. This led Thucydides to write:
Indeed it is true that in these acts of revenge on others men take it upon
themselves to begin the process of repealing these general laws of
humanity which are here to give a hope of salvation to all who are in
distress, instead of leaving those laws in existence, remembering that there
may come a time when they, too, will be in danger and will need their
protection.16
Freedom of speech was respected in Athens as we do in South Africa.
Aristophanes ridiculed Socrates and his philosophy in his play The Clouds. It
probably influenced the jury that convicted Socrates. He was not charged
with contempt of court. The wise final words of the Chorus in Antigone that,
of the world’s virtues, moderation surpasses all, was not always heeded.
Euripides, in Trojan Women, went too far and was punished by having
Hecuba proclaim that the Greeks did not go to Troy to restore Menelaos’
honour by taking Helen back. They were foolish men who for the love of
gold left their homes and families and came to destroy her country.
A pity that mighty Presidents do not read the Greeks. If they did, they
would not so readily declare war for suspect motives.
1. The Constitution of the Republic of South Africa, 1996 (Act 108 of 1996), as
adopted on 8 May 1996 and amended on 11 October 1996 by the Constitutional
Assembly.
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2. In re Certification of the Constitution of Republic of S. Afr. 1996 (10) BCLR 1253
(CC) S. Afr. The Constitutional Court of South Africa was established in 1994 by South
Africa's first democratic constitution, the interim constitution of 1993.
3.
See S. Afr. (Interim) Constitution 1993, Schedule IV.
4. The Convention for a Democratic South Africa, a working group of twenty political
organizations that convened to create the transitional and newly constitutional
government.
5.
See The State v T Makwanyane and M Mchunu, 1995 (6) BCLR 665 (CC) at 262.
6.
See Plutarch, Solon [13].
7. Walters, K.R., Geography and Kinship as Political Infrastructures of Archaic Athens
<http://www.uwo.ca/english/florilegium/vol2/walters.html>.
See Plutarch, Solon [24]; and Stanton, G.R., Athenian Politics c800-500BC: A
Sourcebook (Routledge, London 1990), pp. 60-63.
8.
9.
Plato, Republic (415A-C).
10. Stephen Clingman, Bram Fischer, pp. 409-410 and 413.
Snyders, J. in Rice and Another v Society of Advocates of South Africa 204 (5) SALR
(WLD) 2004 (5) SA 537 para 11.
11.
12. Masetlha v President of the Republic of South Africa and Another 2008 (1) SA 566
(CC) at 173.
13. Id at 186, quoting a passage from De Smith, Woolf and Jowell, Judicial Review of
Administrative Action, 5th ed. (Sweet and Maxwell, London 1995) at pp. 14-15.
14. Those provisions are:
•
Section 24(b) guarantees everyone the right to have the environment protected
through reasonable legislative and other measures;
•
Section 25(5) mandates that the state must take reasonable measures, within its
available resources, to foster conditions which enable citizens to gain access to
land;
•
Section 26(2) mandates that the state must take reasonable measures, within its
available resources, to achieve the progressive realization of the right to have
access to adequate housing;
•
Section 27(2) mandates that the state must take reasonable measures, within its
available resources, to achieve the progressive realization of the right to have
access to health care services, sufficient food and water and social security;
•
Section 29(1)(b) guarantees everyone the right to further education, which the state,
through reasonable measures, must make progressively available;
•
Section 29(2) guarantees everyone the right to receive education in the official
language of their choice in public educational institutions where that education is
reasonably practicable and to ensure this, the state must consider all reasonable
educational alternatives;
•
Section 32(2) states that national legislation must be enacted to give effect to the
right of access to information held by the state or by another person that is required
for the exercise of any rights and may provide for reasonable measures to alleviate
the burden on the state;
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Section 33(1) guarantees everyone the right to administrative action that is lawful,
reasonable and procedurally fair;
Section 35(1)(f) guarantees everyone who is arrested the right to be released from
detention if the interests of justice permit, subject to reasonable conditions;
Section 36(1) states that the rights in the Bill of Rights may be limited only in terms
of law of general application to the extent that the limitation is reasonable and
justifiable;
Section 37(6)(a) guarantees that whenever anyone is detained without trial, an adult
family member or friend must be contacted as soon as reasonably possible;
Section 37(6)(c) guarantees that the detainee must be allowed to choose and be
visited at any reasonable time by a medical practitioner;
Section 37(6)(d) guarantees that the detainee must be allowed to choose and be
visited at any reasonable time by a legal representative;
Section 59(1)(b) states that the National Assembly must conduct its business in an
open and public manner but reasonable measures may be taken to regulate access;
Section 59(2) states that the National Assembly may not exclude the public,
including the media, from a sitting of a committee unless it is reasonable and
justifiable;
Section 72(1)(b) states that the National Council of Provinces must conducts its
business in an open and public manner and hold its sittings in public but
reasonable measures may be taken to regulate public access;
Section 72(2) states that the National Council of Provinces may not exclude the
public, including the media, from a sitting of a committee unless it is reasonable
and justifiable;
Section 80(3)(b) states that the Constitutional Court may order that all or part of an
Act that is the subject of an application by Members of the National Assembly
challenging its constitutionality has no force until the Court had decided the
application if the application has a reasonable prospect of success;
Section 80(4) states that if such application is unsuccessful, and did not have a
reasonable prospect of success, the Court may order the applicants to pay costs;
Section 103(3)(a) states that whenever the geographical area of a province is redetermined by an amendment to the Constitution, an Act of Parliament may provide
for measures to regulate, within a reasonable time, the consequences of the redetermination;
Section 118(1)(b) states that a provincial legislature must conduct its business in an
open and public manner but reasonable measures may be taken to regulate public
access;
Section 118(2) states that a provincial legislature may not exclude the public,
including the media, from a sitting of a committee unless it is reasonable and
justifiable;
Section 122(3)(b) states that the Constitutional Court may order that all or part of an
Act that is the subject of an application by Members of a provincial legislature
challenging its constitutionality has no force until the Court had decided the
application if the application has a reasonable prospect of success;
Section 122(4) states that if such application is unsuccessful, and did not have a
reasonable prospect of success, the Court may order the applicants to pay costs;
Section 150 states that when interpreting an apparent conflict between national and
provincial legislation or between national legislation and provincial constitution,
every court must prefer any reasonable interpretation that avoids a conflict;
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Section 160(4)(a) states that no by-law may be passed by a Municipal Council
unless all members of the Council have been given reasonable notice;
Section 160(7) states that a Municipal Council must conduct its business in an open
manner and may close its sittings only when it is reasonable to do so;
Section 231(3) states that an international agreement of an executive nature entered
into by the national executive binds the Republic without approval by the National
Assembly and the National Council of Provinces, but must be tabled in the Assembly
and the Council within a reasonable time;
Section 233 states that when interpreting any legislation, every court must prefer any
reasonable interpretation that is consistent with international law;
Section 21(1) of Schedule 6 to the Constitution states that where the new
Constitution requires the enactment of national or provincial legislation, that
legislation must be enacted by the relevant authority within a reasonable period of
the date the new Constitution took effect; and
Section 23(3) of Annexure A, Amendments to Schedule 2 to the previous constitution
states that an Act of Parliament may, within a reasonable period after the new
constitution took effect, be passed in accordance with section 76(1) of the new
constitution to amend this item.
15. In re: Dube 1979 (3) SA 820 (N) at 821F.
16. Both passages quoted by Professors A.S. Mathews and R.C. Albino in a timely article
when detention without trial was enacted in South Africa in 1963. Published in 1966 SA
Law Journal pages 16 and 43 respectively.
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