Some were warriors. Some were lawyers, some historians, some moved by an inner passion so great that they appeared to move against kingly power like moths to the flame, risking, and often giving, their lives. They wrote, cajoled, and sometimes cried out for all to hear that the law is above the king.
This fascinating treatise examines how Western ideals of democracy have evolved and emerged through the ages and across continents. Craig S. Barnes shares the inspiring stories of a diverse group of men and women (whether they be leaders, poets, or peasants) who pioneered due process, habeas corpus, and the balance of powers. Exploring the premise that "democracy is not a given in social evolution," Barnes contrasts the heroic figures of history to those in recent administrations who he argues have ignored the precious nature of our inheritance and have placed democracy at risk. Democracy at the Crossroads is a stirring reminder of the fragility of our rule of law and the need for vigilant protection of our hard-won liberties.
Craig S. Barnes began his career as a public interest lawyer dealing with women's rights and the environment. He was also active in politics and civil rights, running for Congress in Denver as a peace candidate in 1970. He is the author of Growing Up True and In Search of the Lost Feminine.
About the Author
Craig Barnes began his career as a public interest lawyer dealing with women's rights and the environment. He was also active in politics and civil rights, running for Congress in Denver as a peace candidate in 1970.
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Democracy at the Crossroads
Princes, Peasants, Poets, And Presidents in the Struggle For (And Against) The Rule of Law
By Craig S. Barnes
Fulcrum PublishingCopyright © 2009 Craig S. Barnes
All rights reserved.
The Long Life of Lying
I announce that my origin is from Crete.
— Odysseus, deceiving the swineherd upon his return to Ithaca, from Homer's The Odyssey
Cretans always lie.
— Epimenides, sixth-century bc Cretan philosopher
It had taken almost thirty years for Charles Stuart to work himself into that chair in Westminster Hall. England had not gotten to that historic turning point in one lifetime, or, truly, in a dozen lifetimes. No king could be brought to trial without the force of history heaving against him like some great wave pushing the royal craft onto the rocks. No one in Parliament really wanted democracy. But the umbrage, insult, hurt, and sorrow that led the parliamentarians to that day had become an irresistible emotional force. Parliament wanted relief from chaos and anguish and confusion of loyalties and, in its way, the trial of Charles Stuart would justify and resolve their pain.
The English struggle, however — and later the American triumph — cannot be understood in terms of one incident or one man. They are more than the story of John Cooke or Thomas Paine. The progress is not a straight line. The move toward democracy is sometimes reversed. It may be, ironically, that free societies are much easier to lose than to create. Reverting to tyranny is quicker. "Time is the enemy of republics," said former US senator Gary Hart. The senator may have been thinking that it did not take thirty years to get from Pericles to the death of Socrates, put to death by nameless elites. Caesar effectively did away with the Roman Republic in one lifetime. Whatever there was of German democracy was done away with by Hitler in less than a decade. Whatever strides Mikhail Gorbachev and Boris Yeltsin made toward the rule of law in Russia were done away with by Vladimir Putin in less than five years. Whatever was built by Americans over three hundred years was threatened by George W. Bush and Dick Cheney within the first four years of their term. It was clear during the years 2001 to 2009 that some deeper understanding of what was at stake was simply absent. The regime evidently did not understand the tradition that they were putting on the block.
However tempting it might be to turn immediately to the issues raised by the recent US administration, the enormity of the potential loss cannot be understood if the focus is on these defendants alone. The crisis is not truly about them. The rule of law cannot be understood in terms of the US Constitution alone, or international law, or war crimes. The problem is deeper than codes or laws. The rule of law is, as it turns out, about more than law.
So let us begin at the beginning. We have been working on this for some twenty-five hundred years. We would do well to understand what we are made of, and what we are not.
Epimenides was a sixth-century-bc sage who crossed the Aegean Sea to Attica in order to advise the ancient Athenians about how to get along in the world. He was probably right when he said that Cretans lie, and he might well have said the same about strangers in general. Aegean culture was slowly evolving from the chaos today labeled "the Greek Dark Ages," wherein piracy, plunder, and patriarchal murder were givens.
At about this same time, the Greek poet Homer gave to the Western world the story of the warrior hero Odysseus on his journey home from the Trojan War. Odysseus was a wily fox who outsmarted the Trojans with the great hollow horse, then deceived the one-eyed Cyclops (location unknown), the goddess of enchantment Circe on her island, the hospitable Phaiakians on their island, and then the suitors of his wife, Penelope. In general, Odysseus was a capable liar. Homer called him "crafty," and craftiness, for Homer, was a most honorable quality. The trick was to know when to lie. When Odysseus was with his son, he did not lie at all. When he was with his wife, Penelope, he only lied sometimes. She was, however, a female, and thus weaker, and was from different family stock, and therefore a stranger, and lying to the weak or to strangers was usually acceptable. A whole bundle of values were tied up in that one story. But these were not just Homer's values. Epimenides saw the same thing: in an ancient society at the birth of Western civilization, don't trust anybody you don't know very well.
When the Greeks went to war against Troy (about 1220 bc),Agamemnon was the king, leader of all other kings, and Odysseus was a minor ruler of a small island who followed Agamemnon. Agamemnon's power was the final arbiter of right and wrong. Even the great warrior Achilles was a vassal of Agamemnon, because fewer villages followed him and he commanded fewer warriors. The content of Agamemnon's character was largely irrelevant to his position of power. Agamemnon had at an earlier time murdered the first husband of his wife, Clytemnestra, then killed her nursing child by her former husband, and finally sacrificed his own daughter Iphigenia to get a fair wind to sail off to Troy. Whatever Iphigenia might stand for — the sacred feminine, the rights of inheritance, the quality of reproduction, or even just beauty — all that was and would continue to be sacrificed, both literally and symbolically, to the power of the supreme patriarch and the requirements of war.
In Agamemnon's world as Homer described it, the highest social value was clan or family and the assurance of continuation of the patriarchy, the family line through sons. Maintenance of the clan required serious attention to hierarchy, by any means. Secrecy, brute force, cheating, and cruelty might sometimes be necessary. Might makes right, and power, so long as it is successful, contains its own moral justification. Put another way, if someone is more powerful, he must be right. Thereafter, in the train of the king, those who are not the most powerful must use other devices. According to Homer, therefore, Odysseus survives because of his craftiness. These became values by which patriarchy would be maintained for most of history until 1776.
Through the study of Homer by Greek and Roman schoolchildren for a thousand years, deception became a blueprint for heroes and eventually for Western civilization. In external relations, or those matters between clans, raw power became the first moral value; but when such power was not available, clever deception was the next choice. It was at the heart of the patriarchal mind. Lying was accepted by Athena and Zeus and was thus acceptable at the highest levels on Mount Olympus in the transcendent, eternal natural order. What might be called the Odysseus Principle — lying to strangers when necessary — was at the foundation of ancient patriarchy and, as we shall see, of modern feudalism. The dramatic, contrary story of how honesty emerges to have its own economic importance is the remarkable story of the struggle for the rule of law against the traditions of kings.CHAPTER 2
The Short Life of an Honest Man in Rome
Roman Virtue and Roman Liberty expired together.
Some two hundred years after the death of Julius Caesar, Marcus Aurelius came to power in ancient Rome. He was a sort of ideal, a philosopher king. His leadership was benign and forthright and his care of the great empire conscientious and thoughtful. When Marcus died, his son Commodus succeeded him. No father and son could have been more different. Commodus was not interested in philosophy but rather styled himself a great gladiator. He sought out swordsmen and archers as teachers and held games in the Colosseum during which he himself took the field, using his extraordinary athletic ability to shoot at the lions, elephants, zebras, giraffes, and other creatures imported for his sport. Commodus fought and killed people too. He chose for himself the habit and weapons of the Secutor, armed with a helmet, sword, and buckler, and he would take the field against a naked antagonist who might be armed only with a net and trident. The poor prisoner and Commodus then engaged in mortal combat before the roaring multitudes in the Colosseum. And the emperor never lost, of course. According to Edward Gibbon in The Decline and Fall of the Roman Empire, Commodus donned the clothing of Secutor 735 times. That would mean that he personally murdered at least 735 men.
All the limits of stoic philosophy that had been his father's dignity were Commodus's disdain. He proudly called himself the Roman Hercules, prostituting his person and dignity to violence and blood. His model of cruelty spread among the administrators of the empire, and destruction hung over the heads of any who might challenge his authority or whim. This despicable man was at last poisoned in his bed by his mistress, for even she was afraid that he would soon turn on her. His death is an early and telling example of how tyranny turns even apparently loving associates to treachery.
When the word of Commodus's murder raced through the streets of Rome that night, there was at first disbelief and then huge relief. Laetus, commander of the Praetorian Guard, bodyguards who were supposed to protect the person of the emperor, quickly settled upon an ancient senator named Pertinax to replace the murdered man. In his years, Pertinax had risen from the ranks to the first honors of the state. He was known for firmness and patience, prudence and integrity — the exact opposite of Commodus.
Laetus had been one of the conspirators with the dead emperor's mistress, and he now took the old senator to be introduced to the Praetorians. Laetus said to them, This is our new man. They quietly acquiesced, but there was no enthusiasm among them, for Pertinax was not their kind of man. He had more respect for the laws of Rome than they thought necessary.
Pertinax immediately instituted widespread reforms, opening commerce, reducing taxes, replenishing the public treasury, rehabilitating the finances of a regime that Commodus had left in desperate poverty. He remitted all the oppressive taxes invented by Commodus, canceled unjust claims on the treasury, declaring that he "was better satisfied to administer a poor republic with innocence, than to acquire riches by the ways of tyranny and dishonor." At the same time, he turned title to his own private fortune over to his wife and son, to avoid any pretence that his role should bring gain to himself. He also refused to anoint his own son with the title of Caesar, which would have dubbed him successor; rather, he required time for both him and his son to prove themselves. He proceeded steadily to prosecute a band of assassins who had been a part of Commodus's reign, then gave over their process to the orderly forms of justice rather than seek to have them summarily executed. In all this Pertinax yielded nothing to popular prejudice and resentment but kept most high the interests of the whole of Rome and its people. He was the sort of man through whom the rule of law might emerge.
All these virtues in one man were, however, gall to the Praetorians. They had been on the receiving end of the booty of empire for a very long time, through a great many emperors. They were accustomed to controlling military power in the city of Rome at the heart of the state. Over the years new emperors, upon entry to the office, had been wont to pay the Praetorians or to promise them large fees, "donatives," that would vary according to the demands of the bidder and his resources. The Praetorians were thus so powerful that they had to be paid off to allow any new man to come to the head of the empire. Virtue in the person of Pertinax was not in their interest. Virtue was not a substitute for a donative. Virtue, worse, threatened donatives in the future. Virtue, therefore, was good cause for killing Pertinax.
The Praetorians rose in rebellion and, on only the eighty-sixth day of Pertinax's reign, stormed the palace and confronted him. After seeing that he would not run but would only appeal to their sense of justice, they killed him, separated his head from his body, and carried it on a pike through the streets. Those Praetorians still at the palace rushed out to the ramparts and proclaimed loudly that they would make the next emperor that man who would be the highest bidder at public auction. Before the night was over, they sold the empire to one Didius Julianus, a wealthy senator. The senator spent his fortune at the foot of the ramparts and bought the royal purple. Money and money alone purchased the right to lead the world's greatest military power. The great republic of Rome, the state ostensibly bound by law and tradition, or by the restraints of the Roman senate, which had previously been the source of the emperor's nomination, was now for sale. The law had been sold. Justice had been sold. Personal rule akin to that of Agamemnon had been restored.
The Praetorians had by this time, ad 193, evolved into a small, elite class more apt to claim privilege than to do any work. Over long periods they never used their weapons except to install or remove emperors. Praetorians had become parasites on the laurel branch, sucking up to themselves much more than they gave. Thus, Pertinax's crime had been his attempt to subordinate them and the rest of Rome to the law. It may be that during the earlier times of the Roman Republic, the law had held some sway over emperors and consuls, Praetorians and generals. After the murder of Pertinax, the law was more likely to be a prostitute to power.
In the millennium after the fall of the Roman Empire, Europe fractured into a thousand fiefdoms and bishoprics. Kings and popes, dukes and bishops replaced any single emperor. Exceptions to the rule of kings, such as in the republics of Venice or Florence, were rare, but even these produced leaders who manipulated and controlled the law to their personal benefit. For the most part, including within the so-called republics, Europe's territories were ruled by self-proclaimed royals, and not one of these kings, great or small, was forced to bow to, serve, or treat equally the urban poor or peasants or women or slaves or Jews. The law provided to all of these — who must have been the great majority of the population — no protection against royal power, no door to opportunity or protection against the torrents of misfortune.CHAPTER 3
The Miserable Life of a Feudal King
Wherefore we will and firmly order ... that the men in our kingdom have and hold all the aforesaid liberties, rights, and concessions, well and peaceably, freely and quietly, fully and wholly, for themselves and their heirs, of us and our heirs, in all respects and in all places forever, as is aforesaid.
— Magna Carta, par. 63, 1215
As patriarchy grew into feudalism, the law became servant to kings. In Rome, after Pertinax, the established codes did not rule the emperor or his successors but were among many tools by which the rich and powerful sought to maintain hierarchy and inequality, separation and privilege. For at least a millennium, well into modern times, the law served the principle that might makes right, and that principle is bedrock for feudalism. "What the Emperor has determined has the force of a statute" was the principle encoded by the emperor Justinian in the sixth century. The will of the emperor is law.
Following the ancient Roman tradition encoded by Justinian, King John I of medieval England was among those who wielded nearly absolute power: he enforced his own choices for High Church offices, though he was not the head of the church. He meddled with the property rights and inheritance of his barons and liege lords, though he was not a judge. He made war wherever he chose, unilaterally, though he was not by any means the only one to pay for war's exorbitant costs.
In ad 1204, King John insisted upon sailing with an army to attack France, but he was not a good general and his knights were badly defeated. The loss emptied the royal treasury, so the king issued a decree to raise taxes, which he had already done on more than one occasion. Hurt by his defeats, his prestige was declining and his barons and subjects becoming increasingly restless. During the next ten years they tolerated him, but with growing resistance. Dissenters such as Robin Hood were also now taking rebellion to the forests.
Then, in 1214, the king again sailed for France and lost yet another battle. This time he lost all of England's possessions in France. It was a crushing blow, a stunning loss of prestige, dignity, and English treasure. England was now ruled by a despotic and defeated king who saddled his subjects with oppressive taxation for an ill-conceived war. He exacted properties and feudal privileges arbitrarily, sometimes without consideration for widows or the weak and often with no respect for the great landowners. "Send me your son," he ordered William Marshal, Earl of Pembroke, taking the child hostage to ensure the loyalty of Marshal and his wife.
Excerpted from Democracy at the Crossroads by Craig S. Barnes. Copyright © 2009 Craig S. Barnes. Excerpted by permission of Fulcrum Publishing.
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