A federal minister, who keeps bad company, wants us to teach history after the Japanese model – drop the dirty bits and set up a halo. This is not surprising since this is the modus operandi of the minister’s chosen media for contemporary politics – at least as politics are practised, if that is the word, by those of the minister’s persuasion. A mild comment on the difficulty in that case was met by a storm of dogma that was sadly identifiable. I had thought that the argument, if that is the term, had gone the way of the flat earth – or the position of our coal mining brethren on the environment.
I set out below some remarks about civilisation and the rule of law from a book I wrote some years ago now.
Even Oxbridge has given up on calling ancient Greece and Rome ‘civilised’. Each was based on empire and slavery. Each treated women as doormats and each buggered their boys. Each arrogantly regarded outsiders as barbarians. Each practised primitive religions not yet informed of the sanctity of life or the dignity of humanity. They could not be part of the Judaeo-Christian tradition because they both had flowered, and one had died, before Christ was born, and if they had heard of the Jews, they regarded them with contempt. The most you could say of Athens and Rome is that they might be seen as stepping stones on the way to civilisation. Like neolithic man. Or the apes.
The discussion is even sillier in the context of our democracy. We subscribe to what is called the ‘Westminster system’ – or we did before we started to dismantle it in my lifetime. That, as the name suggests, is British. Our constitution derives from that of Britain.
It in turn derives from the common law and its history. And the critical point of departure for the common law is its explicit rejection of Roman law.
Our whole political mindset is alarmingly Anglo-Saxon. If you want to go beyond England for the source of our laws, you go not to Athens or Rome, but to Germany. Indeed, as a great American historian of our laws remarked, they are more German than those of Germany.
And, by a quirk of history, our constitutional laws are more Protestant than those of Germany. Neither England nor Australia can have a Catholic head of state; and only someone quite unbalanced would refer to a Muslim or Jew in that position. This is a source of amusement to those who wish to change that disposition for us – and who meet bitter opposition from among those who are excluded.
Finally, may I come back to civilisation? As indicated below, I do not think you can describe a nation as civilised if it tolerates slavery. Almost all of the positive action to contain that evil, the very denial of civilisation, came from Britain – and from the Quakers and the Church of England. This was their triumph, and one for which all mankind can be grateful.
The Church of Rome was not up for that fight – for reasons its more vocal supporters may care to ponder.
The Oxford English Dictionary defines ‘civilize’ as ‘to make civil; to bring out of a state of barbarism, to instruct in the arts of life; to enlighten and refine’. People who extol ancient Greece and Rome as ‘civilised’ obviously use the word in this final sense. They see ‘enlightenment’ and ‘refinement’ as being enough to outweigh the barbarity of slavery or their many-godded naturalistic religions. They see civilisation even though neither Greece nor Rome had then been blessed with the respect for the dignity of each human life that is at the foundation of the Judaeo-Christian tradition and which is elemental to our concept of ‘civilisation’. Unlike Hamlet, the ancients had notheard the beautiful notion ‘that there is a special providence in the fall of a sparrow.’
In his wonderful TV series and book, Civilisation, Kenneth Clark asked what civilisation is. He said: ‘I don’t know. I can’t define it in abstract terms – yet.’ He then compared a tribal African mask to a sculpture of the 4th century B C, the Apollo of the Belvedere. He said ‘I don’t think that there is any doubt that the Apollo embodies a higher state of civilisation from the mask.’ He supported that claim in this way.
There was plenty of superstition and cruelty in the Graeco-Roman world. But, all the same, the contrast between these images means something. It means that at certain epochs man has felt conscious of something about himself – body and spirit – which was outside the day-to-day struggle for existence and the night-to-night struggle with fear; and he has felt the need to develop these quantities of thought and feeling so that they might approach as nearly as possible to an ideal of perfection – reason, justice, physical beauty, all of them in equilibrium. He has managed to satisfy this need in various ways – through myths, through dance and song, through systems of philosophy and through the order that he has imposed on the physical world. The children of the imagination are also the expressions of an ideal.
It is curious that Clark made no reference to ‘the arts’, ‘enlightenment’ or the ‘refinement’ of the OED – they are most emphatically what his series and book were all about. We find there very few references to myths, music, dance, or philosophy. Instead, we now hear of a quest for ‘an ideal of perfection’ which will apparently do enough to balance ‘the superstition and cruelty in the Graeco-Roman world.’
There are at least three issues with the notions identified in the OED or by Kenneth Clark. First, most people could not give a hoot about and do not appreciate the kinds of enlightenment or refinement referred to; indeed, most people in a pub would have trouble in following just what Clark was saying.
Then the relative terms are in any event very plastic. Views may differ on what is art, what is refined, or what is enlightened, or what might be seen as an attempt to reach the ideal of perfection. What if a member of the tribe represented by the African mask did not think much of the Apollo of the Belvedere? By what criteria might a product of the Western Establishment say that the black man was wrong? What might we say about the adverse reaction of a slave from the sweat of whose brow the Apollo was wrought? I might say that if I were choosing art for my home or place of work, I would much prefer the African mask to the Apollo of the Belvedere; but, then, I like aboriginal art, which would have been foreign to Clark, and pop art, which would have appalled him. The fact that the Apollo is a ludicrously idealised and stylised portrait of a vain pagan god that Napoleon looted from the Vatican does not add to its charms.
And, finally, it is not much good having a refined ear for Mozart’s Requiem if you can be murdered in your bed, or your having a Ph D for analysing the downward smile of the Mona Lisa of Da Vinci if you can be cast into prison forever on the mere say so of a prince or a bishop – or if you just cannot get enough food or water to live.
In my view, most people in the West now have a different view of what the word ‘civilised’ should mean. They would, I believe, go along with something like the following. In my view a nation or people cannot call itself civilised unless each of the following five criteria is met.
- It has a moral code that respects the person and the dignity and the right to property of each person in the group.
- It has a mature and stable form of democratic government that is willing and reasonably able enforce that respect and those rights, and to preserve its own democratic structure. (I have opted for democracy because it seems to be the fairest mode of government and to be the best able to deliver the other objectives.)
- It observes the rule of law – as described below – and it seeks to protect the legal rights of its members.
- Its working is not clogged or threatened by corruption.
- It seeks to allow its members to be able to subsist and, after providing for their subsistence, to have sufficient leisure to pursue happiness or improvement in such ways as they may choose, provided that they do not harm others.
Put differently, a group of people may be said to be ‘civilised’ to the extent that its members are ‘civil’ to others.
You will have seen that my definition makes no reference to refinement or enlightenment or to ‘the arts’ or the ‘ideal’. This is because I view government much like I view education. The object of education is to teach people reading, writing, and arithmetic – any grace, taste, or faith they may get from that source will be a bonus. I see government as there to protect us from each other and from itself – any refinement or enlightenment is, for the most part, a matter for us and not government.
On the other hand, I can imagine people wanting to refer to religion in their criteria – historically, at least, the first of my criteria is based on religion – and also to some kind of social equality and a refuge or safety net for those who do not do so well, but I am conscious of the difficulty in getting agreement at these edges. The requirement of ‘legal equality’ does, however, come in under the rule of law, below.
If a definition like that set out above were to be applied, then no state could have been regarded as civilised until about the beginning of the twentieth century, and then only in the West. I do not think that such a suggestion would seem odd to men and women in the street today in London, Paris, Berlin, or New York. I think that public opinion in the West has moved on since the Holocaust and Hiroshima, and that we attach more weight to the protection of human rights and dignity, and from our own annihilation, than some impossibly enlightened and refined works of art whose real secrets are not revealed to the unwashed.
In any event, you can make up your own mind on when in your view any nation ought or ought not to be able to call itself ‘civilised.’ No historian can play God. But you may wish to bear in mind the different meanings of civilisation, or the weights to be given to its parts, and you might ask this question – did either ancient Athens or ancient Rome satisfy any of the five criteria set out above? How many do you think that either satisfies now?
‘Rule of law’
The first element identified by the English jurist A V Dicey for the rule of law was the absolute supremacy of regular law over arbitrary power. This was the supremacy of law over people. Aristotle had, after all, said that ‘the rule of law is preferable to that of any individual.’ Any king or dictator or Roman emperor who was above the law therefore did not preside over a state that was subject to the rule of law.
The second aspect of Dicey was equality before the law, or the equal subjection of all classes to the ordinary laws of the land. Slavery and imperial subjection are equally out of the question.
The third part is characteristic of the common law, the general law in large part based on precedents in the courts. We see the constitution as the result of the ordinary law of the land. The constitution is not the source, but the consequence, of the rights of individuals. The constitution is itself part of the common law. The Europeans tend to see it the other way around – they see private rights deriving from public institutions. Dicey said, ‘Our constitution, in short, is a judge-made constitution, and it bears on its face all the features, good and bad, of judge made law’