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Tuesday 2 December 2008

Ancient and Modern

Peter Jones compares ancient and modern

We are happy that terrorist suspects be held for 28 days without charge. So there is no problem about the principle. But the government now wishes to extend this to 42 days, and all hell breaks loose. But on what grounds? Since the principle of holding without charge has been established, the time-scale is neither here nor there. Or is it?

Though there was no such thing as a state-controlled prosecution service in the ancient world — all actions were brought privately — there was intense discussion about what the law was for and how it should be applied. As we saw two weeks ago, Cicero was in no doubt about what its main purpose was — security. ‘Our ancestors wrote laws whose sole aim was the stability and interests of the state. The state is best off when governed according to laws, but all laws should be interpreted in the light of that goal. Epaminondas of Thebes (who extended his military command longer than the law permitted) rightly passed over the letter of the law, thinking it sheer madness not to interpret in terms of the stability of the state a law that had been enacted for that stability. By assuring the stability of the state and looking to the common interest, he could not possibly fail to obey the laws.’

Cicero would have had no problem with a 42-day period. Julius Caesar, however, might have offered a different view. When Cicero, as consul, wanted to execute citizens involved with Catiline in a state conspiracy, Caesar argued that citizens faced with the death penalty had the option of going into exile. He went on, according to the historian Sallust: ‘These men deserve their fate, but you must consider the precedent it will set. Bad precedents all emerge from measures good in themselves. When power passes from you into the hands of unworthy and ignorant men, the precedent you will have established by imposing an extraordinary punishment on men who deserve it will be used against the innocent, who do not deserve it.’

That, surely, is the point. Since even 28 days have never yet been needed, there can be no case for extending them to 42 days. It is bad law, setting a bad precedent with serious implications for all future legislation. If more than 28 days is ever needed, it passes belief that it is impossible to provide for it ad hoc. Then, if necessary, legislate.

Peter Jones’s Vote for Caesar has just been published.

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