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Posts Tagged ‘law’

Free and Easy

I don’t really have time for this post – I’m off to Berlin tomorrow for a research fellowship with the TOPOI Exzellenzkluster, and so desperately scrambling to get everything sorted out before abandoning my duties – but there are times when the only reasonable response to something is to say, very loudly, ‘¡No pasarán! Like this:

For too long, we have been a passively tolerant society, saying to our citizens: as long as you obey the law, we will leave you alone. (David Cameron, 13/5/2015)

I imagine that this is coincidental – as Liz Sawyer has charted, in her contribution to the Handbook to the Reception of Thucydides, British politicians (unlike US ones) are not prone to quoting Thucydides in speeches – but this does seem like a direct response to, or repudiation of, some of the sentiments of Pericles’ Funeral Oration (especially Thuc. 2.37).

Just as our political life is free and open, so is our day-to-day life we do not get in a state with our neighbour if he enjoys himself in his own way, nor do we give him the sort of black looks which, though they do no real harm, still do hurt people’s feelings… We are free and tolerant in our private lives; but in public affairs we keep to the law.

Of course this isn’t a completely new and dramatic lurch into illiberal policies when it comes to civil liberties, but it does seem like a shift: not just an explicit intent to intervene in the private sphere, but also a change from passing more and more laws to criminalise additional areas of behaviour to announcing, apparently, that illegality is now irrelevant if the authorities decide that they don’t like something, and encouraging everyone else to pile in. And of course Cameron then goes on to include freedom of speech, democracy and the rule of law among the British values that his government will seek to promote by, erm, ignoring them when it comes to certain people.

“Our constitution is called a democracy… We abide by the rule of law.” Not any more.

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The things you stumble across with a poorly-calibrated Google search… The Courthouse News Service, which reports and comments on civil litigation in the USA, reported on 30th April that “A former customs officer convicted for employing an illegal immigrant as a maid can get a new trial, a federal judge ruled, saying it was ‘overkill’ for the government to pursue felony prosecution instead of administrative sanctions.” (http://www.courthousenews.com/2012/04/30/46091.htm). Why is this worth mentioning on a Classics blog, whose terms of reference may be nebulous and highly subjective but are not entirely non-existent? Because U.S. District Judge Douglas Woodlock joins the long list of people who think that quoting bits of Thucydides (or alleged Thucydides) makes their argument better:

“I am satisfied there is no question that those instructions were erroneous because they were too open textured and did not require the jury to find substantiality to any encouragement or inducement,” Woodlock said Wednesday, relying on 3rd Circuit precedent.
“With proper instruction, the jury could readily have found that Bitencourt or an illegal alien in her position would have resided in the United States irrespective of Henderson’s employment and advice, and that Henderson’s employment or advice did not make it more likely that she would continue to reside in the United States,” he added.
Quoting ancient Greek historian Thucydides, Woodlock said, “Of all manifestations of power, restraint impresses men most.”
Prosecutors must re-examine their motives, he added.
“The lessons of proportionate restraint while pursuing measured judgment, in the face of unreasoning outrage, require careful calibration of the level of culpability for modest misconduct,” the decision states. “These are lessons often difficult to accept, master, and deliver. Their application begins in the criminal context with the prosecutor’s charging decision and, if necessary, end with such judgment as the courts are permitted to exercise. In the absence of some greater exercise of restraint by the prosecution in this case, it is necessary to conduct a new trial to assure proper judgment by the court.”

I am putting the final touches to an article on the quotation and misquotation of Thucydides, including this classic line – depending on whether any journals take the bait, I hope this will appear in the next year or so – but I’m not going to be discussing this particular example at any length. It is worth stressing that in his written judgement, Woodlock states expressly that the line is ‘attributed’ to Thucydides and almost certainly apocryphal – but he uses it anyway. Clearly, as with many dubious quotations, the idea is too useful and powerful to be discarded simply because its origins are somewhat obscure, and it is scarcely going to hurt its persuasive power if it’s attached to an authoritative figure like Thucydides. I’ve come across a few examples of Thucydides being quoted by lawyers in the US, and find myself wondering whether there’s a special handbook of useful lines, or one influential figure in legal tradition who quoted Thucydides a lot, or whether they just imitate one another the whole time…

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