constitutionalism(2)
CHAPTER II
The Ancient Conception of a Constitution
IN THE Oxford Dictionary, which I have long thought of as the best single
textbook of the history of our peculiar institutions and ideas, several
meanings of the word "constitution" are listed. It may mean the act of
establishing or of ordaining, or the ordinance or regulation so established.
It may mean the "make" or composition which determines the nature of
anything, and may thus be applied to the body or the mind of man as well as
to external objects. In the Roman Empire the word in its Latin form became
the technical term for acts of legislation by the emperor, and from Roman
law the Church borrowed it and applied it to ecclesiastical regulations for
the whole Church or for some particular ecclesiastical province. From the
Church, or possibly from the Roman lawbooks themselves, the term came back
into use in the later middle ages as applicable to secular enactments of the
time. In England the famous Constitutions of Clarendon of 1164 were referred
to by Henry II and others as "constitutions," avitae constitutiones or
leges, a recordatio vel recognitio of the relations purporting to have
existed between church and state in the time of Henry's grandfather, Henry
I. But in substance these were ecclesiastical provisions even though they
were promulgated by secular authority, and this may account for the
application to them of the word "constitutions." The word, however, is often
found in a purely secular use at this time; though scarcely in any technical
sense, for we find other words such as lex or edictum used interchangeably
with constitutio for a secular administrative enactment.1 As just noted, the
Constitutions of Clarendon are referred to in the document itself as a
"record" (recordatio) or a "finding" (recognitio). The author of the Leges
Henrici Primi, who wrote early in the twelfth century, soon after the
appearance of Henry I's well-known writ for the holding of the hundred and
county courts, also refers to that writ as a "record."2 Glanvill frequently
uses the word "constitution" for a royal edict. He refers to Henry II's writ
creating the remedy by grand assize as legalis ista constitutio,3 and calls
the assize of novel disseisin both a recognitio and a constitutio.4 Bracton,
writing a few years after the statute of Merton of 1236, calls one of its
provisions a "new constitution,"5 and refers to a section of Magna Carta
reissued in 1225 as constitutio libertatis.6 In France about the same time
Beaumanoir speaks of the remedy in novel disseisin as une nouvele
constitucion made by the kings.7
At this time, and for centuries after, "constitution" always means a
particular administrative enactment much as it had meant to the Roman
lawyers. The word is used to distinguish such particular enactments from
consuetudo or ancient custom. It is apparently never used in our modern
sense, to denote the whole legal framework of the state. It would require a
very detailed examination of the legal and political writings of several
centuries to enable one to say with any confidence when this modern notion
of a constitution first appears. I cannot claim to have made any such
examination, but I cannot recall from my reading any clear instance of it
before the opening of the seventeenth century. In 1578 Pierre Grégoire of
Toulouse uses the word almost in our modern sense in his De Republica, but
the context seems to me to indicate a somewhat wider and more general sense
of constitutio than the strictly political meaning the word "constitution"
now conveys, for which Grégoire seems to use the older phrase status
reipublicae.8 The first instance given in the Oxford Dictionary of the use
of the word "constitution" for the whole legal framework of a state is a
phrase of Bishop Hall's in 1610, "The Constitution of the Common-wealth of
Israel," and in my first lecture I quoted some words of Sir James
Whitelocke's of the same year, possibly not quite so definite but even more
striking: "the natural frame and constitution of the policy of this Kingdom,
which is jus publicum regni."
This use of the term "constitution" may have been new in 1610, but the idea
it conveys is in reality one of the oldest, if not the very oldest, in the
whole history of constitutionalism. Whitelocke's phrase which I have just
given — "the natural frame and constitution of the policy [i.e., polity] of
this Kingdom, which is jus publicum regni" — in reality includes two
conceptions of a constitution closely connected and at times combined, but
nevertheless distinct in character. One appears in Whitelocke's first words,
"the natural frame of the state," and this idea seems as old as the politeia
of the Greeks, which we usually translate by our word "constitution." The
other conception is expressed by Whitelocke's other phrase, "jus publicum
regni," the public law of the realm. The latter conception may not be as
ancient as the former, but it is very old. Cicero, for example, voices it in
his De Re Publica in a passage which contains the first use that I know of
the word "constitution" in its accepted modern sense. In commending a mixed
form of government, Cicero says, "This constitution (haec constitutio) has a
great measure of equability without which men can hardly remain free for any
length of time."9 Further on he says,
"Now that opinion of Cato becomes more certain, that the
constitution of the republic (constitutionem rei publicae) is the
work of no single time or of no single man."10
It is these two forms of early constitutionalism expressed by the Greek
politeia and by the Latin constitutio, and their interrelations in history,
that I propose to try to trace; and I shall begin with the more ancient, the
politeia of the Greeks.
Of all the varied meanings of which our word "constitution" is susceptible,
the Greek politeia conforms to one of the most ancient. It means above all
the state as it actually is. It is a term which comprises all the
innumerable characteristics which determine that state's peculiar nature,
and these include its whole economic and social texture as well as matters
governmental in our narrower modern sense. It is a purely descriptive term,
and as inclusive in its meaning as our own use of the word "constitution"
when we speak generally of a man's constitution or of the constitution of
matter. As Sir Paul Vinogradoff says:
The Greeks recognized a close analogy between the
organization of the State and the organism of the individual
human being. They thought that the two elements of body and
mind, the former guided and governed by the latter, had a
parallel in two constitutive elements of the State, the rulers and
the ruled.11
There is nothing in the Greek language "corresponding to the Latin jus."12
It is
characteristic of the development of Greek juridical ideas that
the "law of nature," though appealed to as a philosophical
explanation of existing facts, does not serve as a means for
concrete juridical deductions. It was at a later stage — with the
advent of Stoicism, especially in its Roman form — that the law
of nature began to be considered as a source of law in the
practical sense of the term.13 In Athens there was no
consolidated constitution.14
The analogy between state organization and the human organism involved, as
Mr. W. L. Newman truly says,
that which was to a Greek the central inquiry of Political
Science. ... It was thus that in the view of the Greeks every
constitution had an accompanying ethos, which made itself felt in
all the relations of life. Each constitutional form exercised a
moulding influence on virtue; the good citizen was a different
being in an oligarchy, a democracy, and an aristocracy. Each
constitution embodied a scheme of life, and tended, consciously
or not, to bring the lives of those living under it into harmony
with its particular scheme. If the law provides that the highest
offices in the State shall be purchasable or confines them to
wealthy men, it inspires ipso facto a respect for wealth in the
citizens.15
From the Greek political classics instances almost without number might be
given of this conception of a constitution as the ethos of a people, but I
can mention only one or two. "Our whole state," Plato says in the Laws, "is
an 'imitation' (mimesis) of the best and noblest life."16 In the
Panathenaicus Isocrates says that the politeia is the "soul (psyche) of the
polis" with power over it like that of the mind over the body;17 and
Aristotle, in the Politics, calls it "in a sense the life of the city."18
From this conception of the nature of the constitution, in which Greeks of
every philosophical party seemed to share, there followed results of great
importance both theoretical and practical.
As Sir Paul Vinogradoff says, there is nothing in the Greek language which
quite corresponds to the Latin word jus; and there seems to be nothing in
the Greek conception of the state or of its constitution to correspond to
the jus regni of Sir James Whitelocke. The Greeks made no such clear
distinction as the Roman one between jus publicum and jus privatum; their
politics consisted of a philosophical explanation of actual facts rather
than a basis for concrete juridical deductions. Natural law, if admitted at
all, became the criterion merely of the comparative excellence of a state's
form of government; it never became for the Greeks as for the Romans the
test of a government's legitimacy. And by the Sophists of every kind natural
law was not admitted at all. "The tribe of Sophists," as Plato says in his
Sophista, "is not easily caught or defined"; but the subjectivism or
relativity that marked the philosophy of them all precluded even a
comparison of constitutions, because it denied the existence of any values,
or norms, or objective standards, which alone could warrant anyone in saying
that one state's constitution was better or worse than another's. And even
the great opponents of the Sophists, such as Plato and Aristotle, in their
assertion of objective reality and of the possibility of man's apprehending
it, although they believed in a universal law of nature, never went so far
as to say that this was a coercive law. They never could have said as Cicero
did, that states have no power through senate or people to free themselves
from it.19 Natural law meant to them, as to the modern scientist, no more
than the fact of invariability. It carried with it no notion of sanction.
One of the clearest statements of this Greek attitude toward the fundamental
relations of government to law is to be found in the Politicus or Statesman
of Plato, a dialogue whose central theme is the problem of
"constitutionalism" — of all Plato's dialogues the one most directly
concerned with the subject we have now in hand. I have long felt that this
dialogue, though less fundamental, no doubt, than the Republic, has been too
much neglected in our estimate of Plato's real political position and
purpose; and not of his own position alone, but of the normal attitude
toward constitutionalism in the Academy and the Lyceum at least, if not in
Greece generally.
It was mainly with this work, rather than with the Republic, Professor
Jaeger insists, that Aristotle's study of Plato's political doctrines was
concerned,20 and he shows conclusively throughout his remarkable book how
vitally important that study was in forming the political conception which
Aristotle held to the very end. "He had accepted Plato's doctrines with his
whole soul," Professor Jaeger says, "and the effort to discover his own
relation to them occupied all his life, and is the clue to his
development."21
The central question discussed in the Politicus is the perennial one of the
proper relation of government to law. Plato has been claimed as a fellow by
some of the modern proponents of the totalitarian state, but how anyone
could honestly make such a claim after he had carefully pondered the
Politicus is wholly beyond my comprehension. If one should disregard Plato's
plain statements of his purpose in the Republic, it is perhaps conceivable
that one might distort that dialogue into a defense of actual arbitrary
governments; yet the whole discussion in the Politicus plainly shows that
this is not Plato's true position but the very antithesis of it.
It is true that even in the Politicus the defects of constitutional
governments are clearly recognized. In fact they are probably stated with
greater distinctness in this dialogue than in any other of the Platonic
writings. Constitutional government, Plato admits, is to be regarded only as
a "second best" (os deuteron as compared with to proton). But the "first" or
best type of political relations, a government unhampered by law, is, he
declares unequivocally, only an ideal of which actual states can never be
more than an approximation, and usually not a very close approximation.
Limitations of law always do hamper government; and, provided the government
is a good one, there may be good things that such a government can achieve,
if unrestricted, which these limitations of law render impossible of
accomplishment.
The problem that Plato faces here is a practical one that is likely to
persist as long as government itself. A constitutional government will
always be a weak government when compared with an arbitrary one. There will
be many desirable things, as well as undesirable, which are easy for a
despotism but impossible elsewhere. Constitutionalism suffers from the
defects inherent in its own merits. Because it cannot do some evil it is
precluded from doing some good. Shall we, then, forego the good to prevent
the evil, or shall we submit to the evil to secure the good? This is the
fundamental practical question of all constitutionalism. It is the foremost
issue in the present political world; and it is amazing, and to many of us
very alarming, to consider to what insufferable barbarities nation after
nation today is showing a willingness to submit, for the recompense it
thinks it is getting or hopes to get from an arbitrary government. This
great problem is the central one in Plato's dialogue, and Plato's answer to
it cannot but interest the present-day reformer as well as the historian of
constitutional development.
That answer is based on the fundamental distinction, but at the same time
the very close connection, sometimes overlooked or underestimated, between
the ideal on the one hand and the actual or the attainable. Plato's Republic
deals with an unattainable ideal; his Politicus treats of the attainable in
its relation to this, same ideal. The attainable is less perfect than the
ideal, and it is the presence of legal restriction that makes it so; for
law, as Plato says, is
like an obstinate and ignorant tyrant who will not allow anything
to be done contrary to his appointment or any question to be
asked — not even in sudden changes of circumstances, when
something happens to be better than what he commanded for
some one.
The law cannot comprehend exactly what is noblest or more
just, or at once ordain what is best, for all. The differences of
men and actions, and the endless irregular movements of human
things, do not admit of any universal and simple rule. No art can
lay down any rule which will last forever.
A perfectly simple principle can never be applied to a state of
things which is the reverse of simple.
How familiar these objections to constitutionalism sound! Their burden is
always the present insufficiency of law inherited from some "horse and
buggy" era in the past. And of course no one could deny the validity of such
objections. There is a practical recognition of them in the history of our
equitable remedies for the deficiencies of rigid legal rules, and the
entrusting to governments of a discretionary power in exceptional cases to
dispense with law or to pardon a breach of it necessarily implies the
admission that this law, especially if it is an ancient law, can never
secure adequate justice in every particular case. The principal defect of
all law is at the same time its most essential and most valuable
characteristic — its generality.
It was considerations such as these that led Plato to hold that the best
government theoretically or ideally is one based upon the discretion of the
ruler and not upon law; and such a government conforms precisely to the
meaning of our word "despotism" — in this case a perfectly benevolent
despotism, of course. So he asks:
As the pilot watches over the interests of the ship, or of the
crew, and preserves the lives of his fellow sailors, not by laying
down rules, but by making his art a law — even so, and in the
self-same way, may there not be a true form of polity created by
those who are able to govern in a similar spirit, and who show a
strength of art which is superior to the law?22
From this sentence it is evident, as it is from the whole tenor of the
dialogue, that the ideally best rule exists where the ruler is not limited
by law but makes his art a law. But another thing is equally evident here
and equally prominent throughout the Politicus, namely, that this "art" of
the ruler shows "a strength of art which is superior to the law." This
brings up the final and most crucial question of all. Is Plato in this
dialogue insisting on the superiority of despotism over constitutionalism as
a principle of practical politics, or is he trying to illustrate the very
opposite? To put it more concretely, does Plato believe in the actual or
possible existence of any ruler with such "strength of art" that his "art"
should be the only law of the state? He evidently believes such a
philosopher-king ought to rule as a despot if you could only find him. But
does he believe that such an incomparable embodiment of omniscience,
omnicompetence, and utter benevolence could possibly exist except in the
imagination? It is interesting to note the historical tendency of peoples
generally to deify their rulers once they have conceded despotic authority
to them. A divine competence in a ruler is in fact the only real
justification of a despotism; and where there is despotism the apotheosis of
the ruler is likely sooner or later to appear in some form. It is
interesting but not strange to find Cardinal Ballarmine in the sixteenth
century arguing that the Church should have a despotic government because
the Church is divine, while the state ought to have a limited government
because the state is human. The answer to the question whether Plato was
politically an absolutist or a constitutionalist depends then on the answer
to another: Did Plato believe that his philosopher-king had appeared or
could possibly appear in any actual state on earth? Through what seems to me
a misinterpretation of the Republic, some have attributed the latter view to
Plato, but the whole argument of the Politicus is against it; and I cannot
agree with those who find in the Politicus inconsistency with the Republic
or a contradiction of it. Like Cardinal Ballarmine, and on much the same
general grounds, Plato regarded absolute government as the only celestial
one and celestial government as the only one properly absolute.
A godlike ruler should rule like a god, and if a godlike man should appear
among men, godlike rule would and should be gladly conceded to him. This was
Aristotle's view, and he may well have got it from the teachings of Plato.
But I know of nothing in all Plato's writings which indicates a belief in
the actual, or even the possible, existence of a superman like this; and
without such a demigod despotism becomes for Plato, not the best, but the
worst of all possible governments. Between these two extremes lay his
second-best state under constitutional rule. It is of little consequence
that there should be one ruler, or a few or many rulers, in such a state,
provided the government be limited by law; and, in the cases where it is so
limited, Plato finds an approximation of the "art" of the perfect despot
close enough to warrant him in speaking of monarchy, aristocracy, and a
constitutional democracy as forms of government, sadly defective indeed, but
true; in comparison with the three corresponding perverted forms, in all of
which men totally devoid of any "strength of art" superior to the law — the
only justification of despotism — have nevertheless made their own art the
state's sole law.
It may seem a paradox, if not even worse, to say, as Plato does here, that
actual despotisms are less closely akin to the ideal despotism than these
constitutional governments which at first sight seem so much less like it.
But to Plato it is not the external form of a state that differentiates it
from another, but the guiding inner principle of its political life, above
all the presence or absence of justice. In a constitutional government the
laws under which the state is ruled are far inferior to the wisdom of the
perfect ruler, chiefly on account of their rigidity; but these laws are none
the less "imitations" (mimemata) of that perfect wisdom — very faulty
"copies" of the government of the ideal state. They are copies, and copies
which to Plato embody a greater measure of true justice than the arbitrary
will of vicious or ignorant men can ever do; and even the best of men are
more or less vicious and ignorant. Law, as Aristotle says, is "intelligence
without passion."23
For the subject with which we are immediately concerned — constitutionality
in its actual rather than its ideal form — the Politicus seems to disclose
Plato's real opinions more clearly than his description of omniscient
despotism in the unattainable ideal of the Republic. If the Politicus gives
us a true picture of its author's mind, he was certainly no advocate of
arbitrary government in the actual political world. In this dialogue he does
not explain at length just why he thinks national custom a safer guide than
the fiat of government, but he gives unmistakable evidence that he does
think so. His preference for the Rechtsstaat may have been mainly pragmatic.
In the Laws he notes that all other states are "on the highway to ruin,"24
and appeals to that right reason "which the law affirms, and which the
experience of the best of our elders has agreed to be truly right."25 But
whatever the grounds for it may have been, his belief in the superiority of
law over will as a principle of actual government can hardly be doubted.
If then the Politicus gives a true indication of Plato's political beliefs,
and if my hurried summary of it is not inaccurate, there is little comfort
to be derived from him by believers in totalitarianism.
One further point alone I can stop to note about his constitutionalism. In
common with Socrates and Aristotle and in opposition to the Sophists, he
believed in a universal norm of political life to be apprehended through
human reason or "nature," by which the various forms of polity may be judged
and compared; and this norm might be roughly termed a "law of nature." But
there is one striking difference between the conception of a "law of nature"
as he held it — and as did apparently all his Greek contemporaries of every
party — and the one later transmitted by the Stoics to Rome. The law of
nature is to him no more than a basis of comparison. He thinks of this law,
as he thinks of all law, merely as an intellectual standard. Law is nothing
more than the uniformity of nature, and human law is likewise nothing but
the common apprehension of a part of this uniformity by man. It is thus a
common "yardstick" by which one form of polity may be compared on its merits
with another, and even one enactment made within a state with another. The
latter is the distinction between true law in the abstract (nomos) and
particular laws (nomizomena), dealt with in the Platonic dialogue Minos —
Platonic whether by Plato or not. Such particular laws are good when they
embody the true law and not otherwise.
But with this comparison of polities or of laws Greek constitutionalism of
the classical period seems to stop. It goes no further than mere
intellectual assessment or comparison. It may pronounce that a given polity
or particular law is bad; it does not go on to say it is not binding. It may
even say that these bad enactments are not true law at all, but it does not
say they can be disregarded. As Rehm observes, the customary definition of
the state was not a legal definition at all, but a political one;26 the
ancient theorists were concerned primarily with an "ethico-political
appraisal of the relations between the state and other forms of human
association," 27 not with the "sovereignty" which bulks so large in all
modern discussions of political relations. Aristotle's word for the
supremacy in a state corresponding to our "sovereignty," to kyrion, does not
imply supreme constituted authority, as sovereignty does, but a supremacy in
fact only.28 In short, the conception of constitutionalism based on the
notion of law prevailing generally in this period is of a constitution in
the primitive sense noted above, of the whole nature or "composure" of a
thing. Such a conception of law may warrant one in saying that a particular
enactment is bad, but never that it is not legitimate. There is no room
under such a conception for any distinction such as we make between a
provision that is binding because constitutional and one that is void for
unconstitutionality. What this amounts to is that "the law of the
constitution," if we might employ such a phrase, is not coercive but only
normative; and that constitutions have no sanction in our modern sense.
Whatever the phrase "an unconstitutional law" might have meant for Plato or
for Aristotle, if he had ever used it, it would never have meant a law void
on account of unconstitutionality; and, while a "constitutional law" might
conceivably have meant one concerned with the framework of the state, it
could never have been a "fundamental" law in our sense of that phrase.
The difference just noted between our notion of constitutionality and the
antique one is only one aspect of the difference between the modern and the
ancient view of the state in general. Before the Stoics, Greeks apparently
drew no clear distinction between society and the state, between the social
and the civil. But institutions that are thus identical must also be coeval.
Potentially at least, the state must therefore be as old as human
association, there is no science of society apart from politics, and there
can be no natural law older than the laws of actual states. As a
consequence, the Greeks thought of the law in a state only as one part or
rather as one aspect of the whole polity itself, never as something outside
or apart from the state to which that polity must conform, nor even as any
special provision within the state to which other laws are subordinate. If
the Greeks thought of a law of nature as applying to a particular state at
all, they meant by this natural law no more than that portion of a state's
actual laws which in fact happens to be identical in all other states — what
Aristotle in his Rhetoric called "common law" (koinos nomos);29 they had in
mind no "fundamental" principles which must invalidate a municipal law
inconsistent with them; in short, they thought of law in terms of the state,
not of the state in terms of law, as the Roman and the medieval man
invariably did. It was only after the appearance of a notion of a higher and
an older law, out of which the laws of particular states are fashioned and
to which they must conform in order to be valid, that the modern conception
of constitutionalism could replace the ancient one. The change, however, has
come when Cicero can define a state as a bond of law (vinculum juris); for
here by law he means no law of the state itself, but an antecedent law, and
one antecedent in time as well as sanction. He says expressly in his De Re
Publica that this law is as old as the mind of God, existing long before
there were any states in the world. But more important still, he adds that
no state can ever enact any binding law in derogation of this law of nature,
a statement that no Greek of the fifth or fourth century B.C. could have
dreamt of making, even supposing that he could have understood it. There is
probably no change in the whole history of political theory more
revolutionary than this, and certainly none so momentous for the future of
constitutionalism. From this great difference between the ancient and the
modern conception of constitutionalism some very important practical results
may be traced. Since, under the older conception, the politeia, or
constitution as we may call it, included not merely a jus publicum regni but
the whole life of the state, two or three great practical differences
between ancient and modern states seem to be logically incident to it,
differences that even a slight comparison of ancient and modern
constitutional history clearly discloses. First, in the ancient regime there
is no remedy for an unconstitutional act short of actual revolution.
Secondly, such revolution, when it occurs, is usually no mere modification
of the "public law," such as Whitelocke's jus publicum regni, but a complete
overturn of the state's institutions, a change in its whole way of life. It
is a social as well as a merely "political" revolution in our modern
narrower sense of "political." Aristotle refers to such revolutions as a
dissolution of the polities in which they occur; the "constitutions" and
with them the states themselves are destroyed, or rather, actually
"dissolved" (lyontai).30 Thirdly, it is this fundamental and far-reaching
character of most actual revolutions in Greece, in so many cases touching
everything in the state, social, economic, and intellectual, as well as
governmental; changes usually carried out by violence, proscription,
ostracism, and even death, in ways very similar to the proceedings so
familiar to us in parts of Europe today and with much the same underlying
causes — it is this wholesale character of so many contemporary revolutions
that accounts for the Greek fear of stasis and the nervous desire to risk
almost anything that might prevent it. For stasis is a lack of equilibrium,
a condition of disharmony in a state, which is almost sure to entail unrest
and eventual revolution with all its usual horrors. Nothing less than such
revolution and the constant dread of its results could have led Aristotle,
for example, to advise tyrants how to prolong a type of government which he
admits to be the most oppressive in the world as well as the shortest-lived;
and Aristotle's attitude toward stasis indicated in the Politics is
reflected in most of the political writings surviving from Aristotle's time
in Greece. The Greek states were notoriously unstable, and this situation
led to a desire to preserve the status quo which to us seems at times almost
reactionary. The analysis that Aristotle gives of the causes of sedition is
as keen as the remedies are often cynical. One has to pinch himself to
realize that he is not reading from some resume of recent events in Europe
when, for example, Aristotle says:
It is as little possible to create a state in any arbitrary period of
time as to create it of any arbitrary population. Accordingly the
great majority of states to which a number of alien colonists have
been admitted at the time of their foundation, or at a later date,
have been the scenes of violent sedition.31
Or this:
Polities generally are liable to dissolution not only from within but
from without, when there is a state having an antagonistic polity
near to them or distant but possessed of considerable power.32
Or take the following summary he gives of the measures usually adopted and
actually necessary to preserve a tyranny:
The practice of cutting off prominent characters and putting out
of the way the high spirits in the state; the prohibition of common
meals, political clubs, high culture and everything else of the
same kind; precautionary measures against all that tends to
produce two results, viz., spirit and confidence; the opposition
offered to literary reunions or any other meetings of a literary
kind, and the endeavor by every possible means to produce the
greatest mutual ignorance among all the citizens, as it is
acquaintance that tends to produce mutual confidence.33
"Another expedient," he says,
is the endeavor to prevent any word or action of any subject
from escaping detection by a system of spies. ... For the citizens
are then less free of speech for fear of the spies and, if they do
speak freely, are more easily discovered.34
And, he adds,
A tyrant is fond of making wars, as a means of keeping his
subjects in employment and in continual need of a
commander.35
The sum of all such measures, Aristotle concludes, is "to prevent mutual
confidence among the citizens, to incapacitate them for action, and to
degrade their spirit."36
From these notions of constitutionalism prevailing in ancient Greece which I
have been trying to summarize, we must proceed next to the character of the
changes which made such notions so radically different when we first meet
them among the Romans some three centuries later; and this change in
constitutionalism seems to be bound up with a change in the definition of
natural law, which must be briefly indicated before the beginnings of Roman
or medieval constitutionalism themselves can be made clear.
