Liberalism after the Revolution: The Intellectual Foundations of the Greek State, c. 1830–1880 1009254650, 9781009254656

Table of contents :
Cover
Half-title page
Series page
Title page
Copyright page
Contents
Acknowledgements
Note on Transliteration
List of Abbreviations
Introduction
The Setting and Its Historians: ‘Failed’ Liberalism and the Power of Tradition
Statehood, Civilisation, Jurisdiction
Questions of Intellectual History
Liberalism(s) in Context(s)
Who Were the Jurists?
Structure of the Book
Chapter 1 Mind the Legal Gap: The Polizeistaat, ‘Enlightened Reforms’ and Their Liberal Critics (1832–1844)
Introduction
Building a Polizeistaat in Southern Europe: ‘Enlightened Reforms’ in the Nineteenth Century
Translating the European Legal Ideal
Challenging Universalism through History, or Introducing Roman Law Scholarship
Consolidating the Historical School of Law: The ‘German’ Edward Gibbon
Intellectual and Political Implications of Legal Discourse
Conclusion
Chapter 2 ‘Romanist’ Jurisprudence: Liberty, Property and the Virtues of Agrarian Societies (1830s–1850s)
Introduction
Romanist Jurisprudence and Its Political Implications in Nineteenth-Century Europe
The Greek Civil Jurists in the 1840s
Roman Law and the Greek State: The Political/Social Agenda
Occupation, Sovereignty and Private Property
Conclusion
Chapter 3 ‘It’s More Than Economics, Stupid’: Political Economy and the Limits of ‘Industrial’ Economics (1840s–1860s)
Introduction
Political Economy after Adam Smith
Political Economy, Civilisation and Manners in South-Eastern Europe
Public Economy, Industrial Virtues and the Police State
Ioannis Soutsos and the Limits of Industrial Political Economy
Economics as the Social and Political Science of Civil Society
Conclusion
Chapter 4 ‘Let’s Talk about the Nation and the State’: Constitutional Liberalism, Sovereignty and Statehood (Late 1840s–1860s)
Introduction
Constitutional Liberalism after the French Revolution, or How to Bring the Revolution to a Close
Early Greek Constitutionalism between Revolution and Absolutism (c. 1830–1844)
Public Law as the Science of Individual Liberty in a Constitutional Nation-State
Individual Liberty and National Sovereignty: Constitutional Law and the Domestic Primacy of the State
Conclusion
Chapter 5 The Law of Nations, Sovereignty and the International Autonomy of the Greek State
Introduction
Liberalism and International Law in the Nineteenth Century
The View from the Periphery
Sovereignty, Protection and the Greek State
Greek International Thought and the Shifting Meanings of Protection
Conclusion
Chapter 6 Ideas into Practice: The ‘Lawful’ Revolution and the Building of a New Constitutional Order (1860s–1870s)
Introduction
The ‘Lawful’ Revolution of 1862: Crisis, Failure of Reforms and the Rise of Political Opposition
The Constituent Assembly of 1862–1864 (I): National Sovereignty, the King and Individual Rights
The Constituent Assembly of 1862–64 (II): Balancing and Mixing the Powers
The ‘Lawful’ Rearrangement: The Political Crisis of 1874–1875 and the Consolidation of Parliamentarism
Conclusion
Conclusion: Placing Greek Liberalism within a Europe-Wide Perspective
Bibliography
Primary Sources
Archival Material
Newspapers and Periodicals
Published Sources
Treatises, Articles, Memoirs and Other Publications of the Jurists
Other Translations
Unknown Authors
Other Primary Sources
Reference Works
Published Secondary Sources
Index

Citation preview

LIBERALISM AFTER THE REVOLUTION

How is a new state built? To what ideas, concepts and practices do authorities turn to produce and legitimise its legal and political system? And what if the state emerged through revolution and sought to obliterate the legacy of the empire that preceded it? This book addresses these questions by looking at nineteenth-century Greek liberalism and the ways in which it engaged in reforms in the Greek state after independence from the Ottomans (c. 1830–1880). Liberalism after the Revolution offers an original perspective on this dynamic period in European history, and challenges the assumptions of Western-centric histories of nineteenth-century liberalism and its relationship with the state. Michalis Sotiropoulos shows that, in this European periphery, liberals did not just transform liberalism into a practical mode of statecraft, they preserved liberalism’s radical edge at a time when it was losing its appeal elsewhere in Europe. Mich a l is Sot iropou los is currently the 1821 Fellow in Modern Greek Studies at the British School at Athens. He is a historian of modern Europe specialising in the intellectual history of the Mediterranean and the Greek world in the long nineteenth century. His publications include studies of the Greek Revolution of 1821, on law and the formation of states, and on the historiography of the Age of Revolutions.

Ide as In Conte x t Edited by David Armitage, Richard Bourke and Jennifer Pitts The books in this series will discuss the emergence of intellectual traditions and of related new disciplines. The procedures, aims and vocabularies that were generated will be set in the context of the alternatives available within the contemporary frameworks of ideas and institutions. Through detailed studies of the evolution of such traditions, and their modification by different audiences, it is hoped that a new picture will form of the development of ideas in their concrete contexts. By this means, artificial distinctions between the history of philosophy, of the various sciences, of society and politics, and of literature may be seen to dissolve. A full list of titles in the series can be found at: www.cambridge.org/IdeasContext

L I BE R A L I SM A F T E R T H E R E VOLU T ION The Intellectual Foundations of the Greek State, c. 1830–1880 M ICH A L IS SOT IROPOU LOS British School at Athens

University Printing House, Cambridge cb2 8bs, United Kingdom One Liberty Plaza, 20th Floor, New York, ny 10006, usa 477 Williamstown Road, Port Melbourne, vic 3207, Australia 314–321, 3rd Floor, Plot 3, Splendor Forum, Jasola District Centre, New Delhi – 110025, India 103 Penang Road, #05–06/07, Visioncrest Commercial, Singapore 238467 Cambridge University Press is part of the University of Cambridge. It furthers the University’s mission by disseminating knowledge in the pursuit of education, learning, and research at the highest international levels of excellence. www.cambridge.org Information on this title: www.cambridge.org/9781009254656 doi: 10.1017/9781009254700 © Michalis Sotiropoulos 2023 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2023 A catalogue record for this publication is available from the British Library. isbn 978-1-009-25465-6 Hardback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

Contents

Acknowledgements Note on Transliteration List of Abbreviations

page vi ix xi

Introduction 1

1

Mind the Legal Gap: The Polizeistaat, ‘Enlightened Reforms’ and Their Liberal Critics (1832–1844)

25

2 ‘Romanist’ Jurisprudence: Liberty, Property and the Virtues of Agrarian Societies (1830s–1850s)

70

3 ‘It’s More Than Economics, Stupid’: Political Economy and the Limits of ‘Industrial’ Economics (1840s–1860s)

96

4 ‘Let’s Talk about the Nation and the State’: Constitutional Liberalism, Sovereignty and Statehood (Late 1840s–1860s)

132

5 The Law of Nations, Sovereignty and the International Autonomy of the Greek State

166

6 Ideas into Practice: The ‘Lawful’ Revolution and the Building of a New Constitutional Order (1860s–1870s)

194

Conclusion: Placing Greek Liberalism within a Europe-Wide Perspective Bibliography Index

244 254 297

v

Acknowledgements

This book has been a long time in the making. As a project, I first put it into words in 2017 when I was a post-doctoral researcher at the Seeger Center for Hellenic Studies at Princeton University. I want to thank the staff of the Center, my colleagues Foteini Dimirouli, Tracy Rosen, Nikolas Kakkoufa and Karen Emmerich – all now good friends – and of course its director, Dimitri Gonticas, for creating the conditions in which the book was first conceived. Dimitri’s ‘parental’ care, and the familial atmosphere he has always sought to create at the Seeger Center, are as natural to him as they were contagious to others. From then onwards, the book’s progress depended on my many professional obligations and the precariousness that goes hand in hand with life in academia. The initial draft was produced during the first lockdown in 2020 – a strange period, but one that also revealed how significant a ‘retreat’ is to what we do, however compulsory and stressful the retreat may have been in this instance. The second and final draft owed a lot to two anonymous Cambridge University Press readers. I thank them for their comments and suggestions, and for the overall thoroughness with which they went through the book. That they could focus on the text without worrying about lapses in language was the result of the amazing work of Martin Thom, a scholar in his own right, who apart from polishing the text stylistically also occasionally introduced highly insightful comments on my arguments. At Cambridge University Press, I thank Liz Friend-Smith for her delicate handling of our exchanges and for tolerating my (sometimes naïve) queries. Most of all, I want to thank the editors of the Ideas in Context series – David Armitage, Richard Bourke and Jennifer Pitts – for the many ways in which they supported this project throughout. A part of Chapter 2 was previously published in ‘Liberty, property, and the foundations of the Greek state, c. 1830–1870’, Modern Intellectual History, 18, 1 (2021), pp. 1–22. I thank the journal for giving me permission to reproduce the material here. Conception and production aside, in writing and thinking about this book I incurred many debts. Firstly, and most importantly, to Georgios vi

Acknowledgements

vii

Varouxakis and Maurizio Isabella. Once my PhD supervisors at Queen Mary, Georgios and Maurizio set for me an example of what being a good scholar means. But they also showed me that academic mentorship can be more than just a professional relationship: that it can translate into a deep friendship and a genuine care for one another. It was Georgios who encouraged me to try the Ideas in Context series. And it was Maurizio who has followed the book’s journey closer than anyone else ever since – he has been the book’s closest reader, as well as my interlocutor and most severe critic, an intellectual συνοδοιπόρος (fellow traveller). I can only hope that they are both satisfied by the result. My second debt is to many friends and colleagues who were generous enough to offer comments and suggestions on earlier drafts of my work: Mark Mazower, Michael Lobban, Konstantina Zanou, Sakis Gekas, Joanna Innes, Mark Philp, Ada Dialla, Aristeidis Hatzis, Antonis Liakos, Antonis Hadjikyriacou, Foteini Dimirouli, Dimitris Kousouris, Daphne Lappa and the members of the Group for the Study of Justice and Crime (and in particular its heart and soul, Efi Avdela) have all offered critical insights. Mark Philp read and commented on the Introduction, raising points and making suggestions with a generosity that was only matched by that of Joanna Innes. In fact, my debt to both of them for the way they treated a young, aspiring scholar, ever since we first met, is difficult to put into words. I hope they understand how much they did for me. To Konstantina Zanou the debt is slightly different. What I (and others like me) owe her is the fact that she showed us that we can dare walk that extra (academic) mile and take our chances with institutions that seemed so out of reach when we first embarked on our academic journeys. On this, I would also like to thank my ‘old’ professor, Georges B. Dertilis. Probably unbeknownst to him, he is responsible for inculcating in me a way of standing my ground in front of different academic audiences. In addition, I would like to thank three institutions and their people. The first is the Research Centre for the Humanities in Athens; its core members, Despoina Valatsou, Athena Bozika, Eleni Stambogli and Ioulia Pentazou; and of course its director, Ada Dialla – all by now good friends. The second is the (Greek) State Scholarship Foundation, which funded part of the research for the book and made its completion a reality. The third is the Department of the History and Philosophy of Science at the University of Athens, which hosted the funded research project. Aristeidis Hatzis was an invaluable host, supervisor and supporter of this project – in fact, he was much more of a friend than a supervisor. He is also the only self-described liberal I have ever met who tries so hard to live his

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Acknowledgements

life according to his principles. Both he and Ada Dialla are rare examples of scholars who, notwithstanding the tremendous problems Greek public universities have been facing for some time now, have devoted their hearts and souls to them while being genuinely generous, kind and intellectually curious. Last but not least, my greatest debt is to my support network: my family (mum, dad and Maria and her family), and in particular my sisters and brothers in arms. Indeed, this book would not have been written if it weren’t for Hara Kouki, Haris Malamidis, Reggina Mantanika, Giorgos Tsiropoulos (and family), Nikos Odubitan, Costas Douzinas, Elena Psyllakou, Dionysis Mitropoulos, Alkisti Tsampra, Kostis Gotsinas, Thodoris Athanasiadis and τα παιδιά της Πολιτείας (friends at the Politeia bookstore). With some of them I share the precariousness that goes with being an early career scholar. It is to this social group that I dedicate this book, and especially to those of us (probably fewer than expected) who still stand tall and believe that good scholarship matters, and that by pursuing it we are making our societies better.

Note on Transliteration

The only standard system for the rendering of Greek names and references into languages written in Latin characters is that used for the transliteration of classical Greek. This, however, poses a lot of problems when attempting to transliterate modern Greek. The system adopted in this book has been based largely on modifications that have been proposed by scholars such as Paschalis Kitromilides in recent publications, mainly by Edinburgh University Press and Harvard University Press. These modifications are the following1: (i) Diphthongs have generally been retained, except in those cases where the modern pronunciation of Greek requires a consonant to be adequately rendered. (ii) The Greek vowels ‘η’ and ‘ι’ have been uniformly rendered with ‘i’, and similarly ‘ο’ and ‘ω’ have been rendered with ‘o’. The Greek ‘υ’ has been rendered with ‘y’ except when it forms part of a diphthong; then it is rendered by ‘u’ (e.g. ‘tou’). (iii) Consonants have generally been rendered phonetically. Thus the Greek ‘β’ has been rendered by the Latin ‘v’ rather than ‘b’. ‘Φ’ is rendered by ‘ph’ in all words with an ancient Greek root. Conversely, Greek names with Latin roots (e.g. Constantinos) have been transliterated as closely as possible to their original form. Exceptions to the general rules were made in the case of names, places and areas that have a standard English form (e.g. Piraeus and Thessaloniki); otherwise they have been transliterated following the general rules mentioned earlier. Accordingly, the names of modern Greek authors appear in the form used by the authors themselves, if they have published work

1

Partially extracted from Paschalis M. Kitromilides, Enlightenment and revolution: The making of modern Greece (Cambridge, MA: Harvard University Press, 2013), pp. xv–xvi.

ix

x

Note on Transliteration

in a foreign language (e.g. Aristides Hatzis or Kitromilides). Inevitably some inconsistencies will remain, but I hope the reader will show some understanding for a book of this nature. In footnotes, author names and publishers are transliterated according to the system described, while titles are given in the Greek alphabet (whereas in the Bibliography the title is followed by an English translation). I have decided to do the same for the titles of journals that are given in their original form (in the footnotes, not in the text).

Abbreviations

ΒΒΕ ΕΕΣ ΦΕΚ ΓΑΚ FO

Βιβλιοθήκη της Βουλής των Ελλήνων (Library of the Hellenic Parliament) Επίσημος Εφημερίς της Συνελεύσεως (Official Gazette of the (National) Assembly) Φύλλο της Εφημερίδας της Κυβερνήσεως (Government Gazette) Γενικά Αρχεία του Κράτους (General Greek State Archives) Foreign Office

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Introduction

How is a new state built? How do authorities produce its legal and political system? Indeed, how do they claim to be ‘authorities’? Where do they turn – to what ideas, concepts and practices – to legitimate their judgements and conduct? And how are they to do so in the case of a state that was born by way of revolution and secession from an empire, the legacy of which they seek to obliterate? This book answers these questions by looking at nineteenth-century Greek liberalism and the ways in which it engaged in state-building and institutional reforms in the Greek state after independence from the Ottomans (from the 1830s and up to the end of the nineteenth century). In so doing, it addresses questions that have only recently been posed by historians about the nature and origins of the liberal visions of statehood formed in the nineteenth century and about the political and intellectual context – domestic and international – in which they flourished. The book concentrates on the theoretical contributions, the public activism and the politics of a small but very active and influential group of legal scholars – the jurists, as they will be referred to here – who flocked to the new state after its establishment. This was no ordinary group of law scholars. Born within empires, and displaced (most of them) on account of the outbreak of the Greek Revolution, they were scholars whose life experience and education (in numerous European universities, Heidelberg, Berlin, Göttingen, Munich, Paris, Geneva, Bologna among them) linked the Ottoman Empire with the Adriatic Sea, Western, Central and Southern Europe, and the Eastern Mediterranean. As we shall see, the consequence of this experience and cosmopolitan training was a broad intellectual universe, which permitted them to be eclectic in their formulations and the sources upon which they drew. After coming to Greece – ruled by a Bavarian-born monarch who had been installed in 1832 by agreement with the guarantor powers of Greek independence (Britain, France and Russia) – these highly trained lawyers took up important posts at the 1

2

Liberalism after the Revolution

bar, the bench, the university, in the legislative committees, the Council of State, the civil service, the parliament, as well as in the government. Convinced as they were of their moral duty to forge the new state and educate the nation, scholars such as Pavlos Kalligas, Nikolaos Saripolos, Petros Paparrigopoulos, Georgios Rallis, Markos Renieris, Diomidis Kyriakos and  Ioannis Soutsos, among others, contributed to the formation of a number of liberal concepts and ideas that served to define the social and political order, the role of the people in state and society, as well as sovereignty and the conditions of independent statehood. This book argues that in order to grasp the meaning and significance of these commitments, we need to locate them within the global liberal debates on law and politics taking place at the time, thus further developing the notion of a transnational intellectual history. In so doing, it engages with and contributes to a growing body of literature that has enhanced our understanding of nineteenth-century political thought, and of liberalism in particular. This literature has not only shed new light on French, British and German liberal thought.1 It has also challenged the older, diffusionist interpretative frameworks, according to which some core liberal ideas were first formed in some ‘leader’ European countries before being diffused to the South, the Atlantic rim, South-East Asia and more generally to the ‘periphery’. Indeed, scholars studying the periphery have highlighted the richness and originality of liberal debates in their case studies and the capacity of local intellectuals to use ideas for their own purposes.2 Those who have reassessed European liberalism have generally concentrated on the turbulent first decades of the nineteenth century and examined its relationship with the political movements of the age. Although most scholars have shown that liberals were a broad church, there seems to be an agreement that liberal values during this time involved a commitment 1

2

See for example P. Rosanvallon, The demands of liberty: Civil society in France since the Revolution (Cambridge, MA: Harvard University Press, 2007); L. Jaume, L’individu effacé ou le paradoxe du liberalisme français (Paris: Fayard, 1997); E. Biagini, ‘Neo-Roman liberalism: “Republican” values and British liberalism, ca. 1860–1875’, History of European Ideas, 29 (2003), pp. 55–72; H. Rosenblatt, The lost history of liberalism: From ancient Rome to the twenty-first century (Princeton, NJ: Princeton University Press, 2018). See also the discussion in D. Bell, ‘What is liberalism?’ Political Theory, 42, 6 (2014), pp. 682–715. Indicatively, R. Brena, El primer liberalismo espanol y los procesos de emancipacion de America, 1808– 1824 (Mexico: El Colegio de Mexico, 2006); M. Isabella, Risorgimento in exile: Italian émigrés and the liberal international in the post-Napoleonic era (Oxford: Oxford University Press, 2009); J. L. Simal, Emigrados: España y el exilio internacional, 1814–1834 (Madrid: Centro de Estudios Políticos y Constitucionales, 2012); C. A. Bayly, Recovering liberties: Indian thought in the age of liberalism and empire (Cambridge, UK: Cambridge University Press, 2012); G. Paquette, Imperial Portugal in the age of Atlantic revolutions: The Luso-Brazilian world, c. 1770–1850 (Cambridge, UK: Cambridge University Press, 2013).

Introduction

3

to constitutions and the rule of law, to the protection of individual liberties (in particular life and property), to freedom of the press and sometimes to imposing limits on state power, at least in its despotic versions.3 At the same time, many liberals, in particular on the Continent, saw the state not as something against which liberty is held, but as something that had a crucial role to play in the construction of liberty.4 Another common assumption, more implicit in this case, is that after this period, when states were recast or had consolidated their power, and indeed when liberals gained power (as in France, Britain, Spain and Portugal in the 1830s), liberalism lost its critical edge, narrowed its commitments and became gradually more conservative. This was particularly true for the period after 1848, when more nationalist, elitist and conservative strands of liberalism gained in prominence. Post-1848 European liberals, some scholars have argued, became obsessed with character, with how they might educate the public and change its morals, at the expense of more overtly political and economic reforms.5 This book tells a somewhat different story. In so doing, it pushes the chronological boundaries so as to examine how liberals thought about and ‘did’ politics long after the 1840s, when institutionalisation and statebuilding were well under way. It also enlarges the geographical scope of our understanding of nineteenth-century liberalism by bringing into the discussion the perspective of the Greek world, which, notwithstanding some very recent works, has been neglected by this new literature.6 As the book shows, in the Greek case liberalism did not retreat, nor did it lose its critical edge. It did change of course, as a result of having to address certain concrete questions about political organisation and the state – its nature, its political legitimacy and what it could do to foster progress. Although largely ignored by European historiography, there are three features that stand out in the history of Greek liberalism. The first has to do with the content of liberal thought. As the book shows, in framing their theoretical formulations and the projects for cultural and material improvement they helped to implement, liberals in Greece were more attentive to the revolutionary tradition, and had more positive views of 3

4 5 6

M. Philp and E. Posada-Carbo, ‘Liberalism and democracy’, in J. Innes and M. Philp (eds.), Re-imagining democracy in the Mediterranean, 1780–1860 (Oxford: Oxford University Press, 2018), pp. 179–204. L. Siedentop, ‘Two liberal traditions’, in R. Geenens and H. Rosenblatt (eds.), French liberalism from Montesquieu to the present day (Cambridge, UK: Cambridge University Press, 2012), pp. 15–35. Rosenblatt, The lost history. K. Zanou, Transnational patriotism in the Mediterranean: Stammering the nation, 1800–1850 (Oxford: Oxford University Press, 2018).

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Liberalism after the Revolution

the people and of popular sovereignty than many of their counterparts in Northern Europe. In fact, like many liberals in the periphery, including colonial and post-imperial settings, they combined an emphasis upon individual rights, and in particular property, with equality and with liberties that were public oriented or ‘communitarian’. And for Greek scholars, these rights and liberties – which they understood as part of a long historical tradition that the Greek nation had preserved despite its subjugation by the Byzantines and the Ottomans – originated in law and political institutions and not against them. They thus embraced the state and the monarchy, seeking to transform both rather than to do away with them. At the same time, they did seek to eradicate those elements of the Ottoman past that they saw as detrimental to the nation’s progress and to their (very Christian) understanding of the geography of civilisation. This was in fact in stark contrast to the period of the Greek Revolution, when, as I have argued with Antonis Hadjikyriacou elsewhere, Ottoman legal and political notions were blended with novel ones, prominent also in European and American discourses, to produce both the revolutionary language and the first governing institutions.7 Notwithstanding, however, the very conscious and radical move away from the legacies of the Ottoman Empire – a despotic and lawless empire, as the jurists saw it – in the period after independence, in both cases Greek liberalism was developed as a language of statehood, an idiom that legitimised the state and did not seek to place limits upon its exercise of power. That it did so, even after the 1840s when this conception was subject to more of a battering elsewhere in Europe, should encourage us to revise our view about the relationship between liberalism and the state. The second feature that stands out in Greek liberalism is the multiple sources of these formulations. As this book demonstrates, Greek liberals were conversant with a wide array of eighteenth- and nineteenth-century intellectual and political currents – Montesquieu, the monarchiens, natural law, the German Historical School of legal science, the Doctrinaires’ and Benjamin Constant’s liberalism, Giandomenico Romagnosi’s jurisprudence, J. B. Say’s and Sismondi’s republicanism, to name but a few. But they did not just ‘receive’ these currents. They fused them together and they did so, as we shall see, in an original and creative way. This syncretic nature of Greek liberalism was not a source of weakness but of strength, 7

Μ. Sotiropoulos and A. Hadjikyriacou, ‘Patris, ethnos, and demos: Representation and political organization in the Greek world, 1750–1860’, in Innes and Philp, Re-imagining democracy in the Mediterranean, pp. 99–124.

Introduction

5

and was largely determined by the ways in which liberals attempted to accommodate these idioms in the Greek setting and turn them into viable political projects. Last but not least, the book shows that, as in very few other cases across the world, Greek liberals made jurisprudence into an alternative mode of practical statecraft that stood against the police state (Polizeistaat) espoused by the royal authorities and the king. To be sure, this was not initially the case. Indeed, during the 1830s and early 1840s, liberals facilitated to a great extent the royal authorities’ efforts to replace the fluid legal pluralism of the Ottoman Empire with a state-dominated legal order. This is also why they supported the autonomisation of the Church of Greece from the Patriarchate of Constantinople and, more importantly for them, the end of the use of canon law in civil affairs. Yet, in light of changing political circumstances during the 1850s – both domestic and international – the jurists turned to a sort of juridical activism against the monarchy. Not only did they lay the groundwork for a number of significant reforms that they themselves helped implement, as judges, ministers or members of law committees, but more importantly they paved the way for the ‘long revolution’ of the 1860s (1862–1875), a ‘context-breaking liberal moment’ that featured a revolution, a Constituent Assembly, a change of dynasty, a new constitutional system and a crisis over defining the scope of parliamentary jurisdiction. Indeed, as Chapter 6 shows, they were active participants in the legitimacy crisis (producing the revolutionary texts and later the constitutional draft, in the case of Nikolaos Saripolos) and in the constitutional and political developments that followed. But more significantly, most actors involved in these processes were building on the moderate liberal ideas that the jurists had developed in the preceding years. In other words, in the fluid circumstances of Greece, liberalism was endowed with a peculiar strength, rendering it a profoundly transformative force. To make sense of these features, we need to take into account the political context in which Greek liberalism was formed. This was a complicated context, to say the least. At a domestic level, it was defined by the need to replace the fluid legal pluralism that had existed during Ottoman times with that of a state-dominated legal order. At a cultural and international level, it was defined to a great extent by the peculiar position of Greece in the European imagination – seminal due to its past, but problematic due to its present – and in particular by its incorporation, on unequal terms, into the European political system. Indeed, poised between being a protectorate and an independent state, the Greek kingdom developed within a staunchly hierarchical international order that was shaped by the Great

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Liberalism after the Revolution

European empires – three of which were, according to the foundational treaties of the establishment of the state, the protectors of its independence. All these contextual factors raised practical issues of governance, but also questions about political legitimacy and ideology. Initially the tone in the transition from empire to the new state was set by Ioannis Kapodistrias and mainly – from 1833 onwards – by the ‘rational enlightened’ reform programme that the Bavarian authorities put into effect: a programme from above and with no popular participation. But from the late 1840s, as reforms foundered and international politics put a question mark on Greece’s status as a sovereign state, liberals started questioning the legal and political order envisioned by the authorities. In contrast to the latter, liberals saw the state as the potential agent of an alternative liberal governmentality that would ‘produce’ laws, institutions and knowledge; in short, a technology of statehood. It was in light of their success in this project that I argue that liberalism provided the intellectual foundations upon which the modern Greek state was built. At one level, then, this is a work of practical intellectual history that traces the formation and transformation of that cluster of ideas associated with liberalism, nationalism and state-building through which Greek society attempted to come to terms with the problems of modernity. It emphasises the fact that nineteenth-century liberalism was not just a corpus of ideas discussed by armchair scholars, but in fact constituted an active political and administrative language that was used by scholars in the realm of politics and underpinned the formation of the Greek state. This is also a history of the processes by which a new state emerging from a premodern multi-ethnic empire was built. As such, the book weaves together and contributes to two flourishing historiographical fields that rarely meet: one explores the transition from empire to the modern territorial state, the other the history of liberalism. But before we get to these two fields, a few words on the setting, and how historians have explored it, are in order.

The Setting and Its Historians: ‘Failed’ Liberalism and the Power of Tradition The Greek state was a direct outcome of the Greek Revolution (1821–28). But it was also a product of one of the first instances of an international intervention in Europe, when the combined fleet of the Great Powers destroyed the Ottoman fleet in the Navarino bay (1827), thus enabling the success of the revolution. To be sure, the future and the exact character of

Introduction

7

the new state remained in doubt. An initial attempt at state-building was pursued under the governorship of Ioannis Kapodistrias (1827–1831). His assassination in 1831 and the civil discord that ensued led the Great Powers to intervene once again, this time with the added intention of settling the domestic affairs of the new state. By the London Convention of May 1832, the guarantor powers of Greek independence (Britain, France and Russia) agreed to make the 17-year-old Prince Otto of Bavaria the monarch of Greece. The Greek monarchical state, initially in effect absolutist, was reshaped by two moments of revolt: 1843, when the king was forced to grant a constitution sanctioning a national parliament; and 1862, when he was forced to abdicate, opening the way for a new constitutional process that resulted in the election of Prince Vilhelm of Denmark as King Georgios of the Hellenes, and in a new, remarkably liberal constitution. In the following decade several less acute political crises took place, with that of 1874–1875 providing some partial answers to difficult political questions, the most important being the attempt to consolidate the jurisdiction of the parliament in the political system. Thus Greece, having been an ‘enlightened absolutist’ state, with weak finances and with an irredentist foreign policy it proved incapable of implementing, turned into a monarchy under constitutional and eventually parliamentary rule that, from the mid-1870s onwards, could proceed more consistently with modernising policies under the premiership of Charilaos Trikoupis. Greek historiography has generally explored these developments in the context of the ‘Age of Revolutions’, understanding this as the period when the institutions of the ancien régime broke down, and when traditional political and commercial relations unravelled and new polities and connections came to the fore.8 Influenced very much by ‘modernisation’ theories, this framework fitted the priorities of several historiographical agendas – national, Marxist, liberal.9 This was particularly so both for those studying political thought and for those who focused on political developments, and in particular on the formation of the Greek state. In either case the emphasis has been put on the ways in which political ideas and institutions that were first formed in the rest of Europe – usually in the Anglo-French and German worlds, the centre of modernities – were transferred to and

8

9

R. R. Palmer, The age of democratic revolutions: A political history of Europe and America, 1760–1800, 2 vols (Princeton, NJ: Princeton University Press, 1959). For a reappraisal see D. Armitage and S. Subrahmanyam (eds.), The age of revolutions in global context, 1760–1840 (London: Palgrave, 2010). Every chapter contains a discussion of historiography. Here, I confine the analysis to the latest trends within Greek historiography.

8

Liberalism after the Revolution

received by the Greek world. To be sure, historians of ideas have shown that this was a dynamic process through which men of letters accommodated creatively European philosophical and political thought.10 But, as these scholars have also argued, this process became somewhat messy after the creation of the Greek state, not least because of the complicated domestic political context and the state-building that ensued. Although this is a rich and ongoing literature, it has focused on writers, poets (the literary world) and historians, and much less on lawyers or other scholars. What is more, it has done so by putting the emphasis on how this creative reception shaped national consciousness and ‘mentalities’.11 Although they do recognise that liberalism continued to be relevant, its reception could not but be incomplete because Greek political culture was deemed to be backward, conservative and traditional. That liberalism was feeble and without roots in Greek intellectual life was usually evidenced by how easily it had been replaced after the revolution by a romantic nationalism that also underpinned the irredentist politics of the nascent Greek state.12 Thus, the history of post-independence Greek liberal thought has been told mainly as a history of a failure. To be sure, in the last ten years or so these interpretations have come under close scrutiny. Some scholars have begun to put more weight than in the past on the wider political context, on the richness of philosophical thought, as well as on the role of liberal and democratic ideas in driving political change.13 That said, many of these works still treat nineteenthcentury political changes teleologically, as gradual steps towards parliamentarism and the eventual triumph of a liberal and democratic order. Other scholars have challenged the vague ideal types upon which earlier

10

11

12

13

C. Dimaras, La Grèce au temps des Lumières (Geneva: Droz, 1969); R. Argyropoulou, Νεοελληνικός ηθικός και πολιτικός στοχασμός. Από τον Διαφωτισμό στον Ρομαντισμό (Athens: Vanias, 2003); R. Argyropoulou, Η φιλοσοφική σκέψη στην Ελλάδα: Ευρωπαϊκές επιδράσεις και προσπάθειες για μια εθνική φιλοσοφία από το 1828 έως το 1922, 2 vols (Athens: Gnosi, 1995); P. Kitromilides, Enlightenment and revolution: The making of modern Greece (Cambridge, MA: Harvard University Press, 2013). For a classic account see C. Dimaras, ‘Ιδεολογική υποδομή του νέου ελληνικού κράτους: η κληρονο μιά των περασμένων, οι νέες πραγματικότητες, οι νέες ανάγκες’, in Ιστορία του Ελληνικού Έθνους, edited by Andreas Christopoulos and Ioannis Bastias, 17 vols (Athens: Ekdotiki Athinon, 1970–2000), vol. 13: Νεώτερος Ελληνισμός από το 1833 ως το 1881, edited by Andreas Bagias, pp. 455–84; see also C. Dimaras, Ελληνικός ρωμαντισμός (Athens: Ermis, 1984). S. Petmezas, ‘From privileged outcasts to power players: The “romantic” redefinition of the Hellenic nation in the mid-19th century’, in R. Beaton and D. Ricks (eds.), The making of modern Greece: Nationalism, romanticism and the uses of the past, 1797–1896 (London: Ashgate, 2012), pp. 126–39. R. Argyropoulou, Diversité des Lumières dans la pensée grecque: Idées et innovations, XVIII–XIX siècles (Paris: Honorés Champion, 2014); Kitromilides, Enlightenment and revolution; N. Alivizatos, Το σύνταγμα και οι εχθροί του στη νεοελληνική ιστορία, 1800–2010 (Athens: Polis, 2011).

Introduction

9

interpretations were predicated, trying thereby to understand power politics in their own terms and to discern on each occasion what actors, both at the local and the national level, sought to accomplish and what motivated their actions.14 This revisionism has certainly enhanced our knowledge of power politics in the nineteenth century, drawing it closer to the actual political experience of historical actors. And in fact, my research draws much sustenance from these studies by treating, for example, the Bavarian Regency (which ruled Greece until the young king came of age) and then Otto’s rule in their own terms. It also subscribes to the view shared by this approach, that it was only later in the century (from the 1870s onwards) that a significant change occurred in the nature of the Greek state.15 At the same time, this book departs to a significant degree from this revisionist strand, both because the latter still subscribes to a conventional modernising framework and because it has been mainly a story of institutions, and one that places greater emphasis on the outward manifestations of authority than on political beliefs, ideology and theories of government.16 In addition, most, though not all, revisionist accounts have treated political claims as instruments of other motives, and constitutional and other public documents as offering no evidence as to why people acted as they did. Some historians, for example, explain the adoption of constitutional and representative claims by the local elites as the means through which they attempted to take part in the exercise of political power and thus preserve their old privileges – when they did not see them simply as a result of diplomatic pressures.17 But such arguments raise more questions than they answer. Why did these elites adopt such novel practices in the first place? How certain were they of the outcome? And how did these practices become available? The issue here is how we study the choices 14

15

16

17

K. Kostis, ‘The formation of the state in Greece, 1830–1914’, in M. Dogo and G. Franzinetti (eds.), Disrupting and reshaping: Early stages of nation-building in the Balkans (Ravenna: Longo Editore, 2002), pp. 47–64; K. Kostis, Τα ‘κακομαθημένα παιδιά της ιστορίας’: Η διαμόρφωση του νεοελληνικού κράτουs, 18ος–21ος αιώνας (Athens: Polis, 2013), pp. 270–75. From an administrative mechanism that worked mainly as the executive branch of the Bavarian royal authorities (a governing model that has been defined as the Greek version of ‘cameralism’ for the period 1833–1862), from the 1860s onwards, the state’s role expanded significantly through the modernisation of the army, investment in infrastructure, the introduction of tax reforms and its incorporation into the international financial markets; see the introduction and the chapter by K. Kostis ‘Δημόσια οικονομικά’ in K. Kostis and S. Petmezas (eds.), Η ανάπτυξη της ελληνικής οικονομίας το 19ο αιώνα (Athens: Alexandreia, 2006), pp. 21–37 and 293–335 respectively. For criticisms see S. N. Eisenstadt (ed.), Multiple modernities (New Brunswick and London: Transaction, 2005); J. Robertson, The case for the Enlightenment: Scotland and Naples, 1680–1760 (Cambridge, UK: Cambridge University Press, 2005); G. Paquette (ed.), Enlightened reforms in southern Europe and its Atlantic colonies, c. 1750–1830 (Farnham and Burlington, VT: Ashgate, 2009). Kostis, Τα ‘κακομαθημένα’, pp. 344–56.

10

Liberalism after the Revolution

that actors make, and how monolithic we take the socio-political system in which they make such choices to have been. By treating political crises and their outcome as natural developments of past struggles or of vested interests, such accounts fail to examine and explain what events meant to contemporaries, and how and why they unfolded as they did. To recall a comment made by François Furet about the French Revolution: it is astonishing that for events that were so extraordinarily political – in the case of Greece, constitutional and other political crises, revolution, the dethronement of a king – scholars should have persisted in wishing to see a narrative of social transformation, the emergence of capitalism or power games among elites.18 This is all the more strange given that intellectuals of the period under consideration, such as Konstantinos Paparrigopoulos and Pavlos Kalligas – writing from rather different perspectives – had stressed the primarily political nature of the transformative events of their era.19 This book takes its cue from a rather commonsensical view among intellectual historians: namely, that political ideas cannot be studied just as epiphenomena of other processes. It contends that in order to understand and explain political change, we need to combine an analysis of power politics with an assessment of the transformation of thought that took place around this time. We need in other words to delve into the details of the political ideas of the period, through which a new conception of politics was forged – of what the state was, what it should do and how the political community was to be organised. We then need to examine the ­relationship between the intense political thinking that ensued and the era’s political transformations. This is why the book concentrates on the intellectual motivations and the political thought of those who facilitated the process of change and have suffered a degree of neglect: the Greek jurists. It argues that in order to understand their formulations we need to restore them both to the immediate socio-political context – which includes the specific institutions in which at one time or another they served (judiciary, 18 19

F. Furet, Interpreting the French Revolution (Cambridge, UK: Cambridge University Press, 1981). K. Paparrigopoulos, ‘Τα κατά την αναγέννησιν της Ελλάδος, ήτοι συλλογή των περί την αναγεννωμένην Ελλάδα συνταχθέντων πολιτευμάτων, νόμων και άλλων επισήμων πράξεων από του 1821 μέχρι τέλους του 1832 υπό Ανδρέα Μάμουκα’, Πανδώρα, 21 (1860), pp. 284–88. All texts by Pavlos Kalligas were collected, edited and reprinted by G. Kalligas. See P. Kalligas, Μελέται νομικαί κλπ., 2 vols (Athens: A. Konstantinidou, 1899). All references are therefore taken from this publication. They will include both dates, the title, the pages in these volumes and the original publication if deemed necessary. In this case P. Kalligas, ‘Ιστοριογραφικές σκέψεις’, in Kalligas, Μελέται νομικαί, pp. 1–57 (Πανδώρα, 9 (1858), pp. 206–8). I have also kept the titles of books of the period to a minimum (they are usually rather long). The reader can find the full title in the bibliography, in the section on primary sources.

Introduction

11

university, cabinet, legislature) – and to the intellectual context of nineteenth-century political thought.20 As for this latter, the point is not to just acknowledge it and then trace the influences on actors – the approach habitually employed by scholars of nineteenth-century Greek political ideas. It is to understand how and why actors, in this case the jurists, used, adopted and reinvented these political languages. That process was in an evolving engagement with pressing events and with how collective political institutions were constituted, negotiated and contested. My concern is to understand what that language meant at each juncture, and what it ‘did’ to the political community and its political structures. In so doing, the book also challenges the reluctance of some historians of liberalism to link political thought to political change. That is why I have chosen to focus upon those areas of legal thought in nineteenth-century Greece that had the most profound impact either upon domestic political debates, or else upon the history of legal and political ideas in their wider international constituency.21

Statehood, Civilisation, Jurisdiction How can the Greek case contribute to our understanding of the history of modern statehood? This is a complicated question, not least because understanding the transition from a world of empires to a world of nationstates – that ‘most momentous but least widely understood development in modern history’ – is a challenge.22 Older and conventional accounts of state-building almost invariably associate the introduction of legal forms and procedures (codes, statutes and the physical structure of a justice system) with modern statehood.23 Others have placed more emphasis on the discourses and practices (produced in specific sites, such as the bar, the bench, the parliament, and the university and disseminated to the public 20 21

22 23

Q. Skinner, Visions of politics, vol. I: Regarding method (Cambridge, UK: Cambridge University Press, 2002). This basically means that criminal law and canon law have been set aside. This is not to deny their importance, but they were never politicised as strongly as the fields of jurisprudence with which the book is primarily concerned. In fact, most of the jurists analysed in this book sought to end the role that canon law and the Church had in civil affairs during Ottoman times. That is why they supported to a great extent the monarchical policies on the Church issue (see later discussion). David Armitage, Foundations of modern international thought (Cambridge, UK: Cambridge University Press, 2013), p. 191. This is the most usual approach among historians of Greece. Dertilis, Ιστορία του ελληνικού κράτους, 1830–1920 (Athens: Estia, 2009). For the ‘civilising’ mission of law in the Bavarian vision of politics, see M. Tsapogas, ‘Η ανακαίνιση του δικαίου. Επίσημο δίκαιο και τοπικά έθιμα, 1833–1871’, in V. Panagiotopoulos (ed.), Ιστορία του νέου Ελληνισμού, 1770–2000, 10 vols (Athens: Ellinika Grammata, 2003), vol. IV, pp. 52–63 (pp. 52, 54).

12

Liberalism after the Revolution

via the press, the state apparatus, the administration) that sought to legitimise state authority.24 The problem with these approaches is that they take law to be an inherently structured and coherent ideological mechanism, driven by the needs of and controlled by the state – a term that is usually reified and rarely analysed. More importantly, they simplify what was a rather complex period. As global historians have argued, in terms of the organisation of political power, the nineteenth century was a transitional stage: one that went from an unprecedented peak in political diversity by the middle of the century to a subsequent gradual political convergence towards our familiar, territorially defined nation-states.25 This scholarship on global and transnational history has revised our understanding of modern statehood in two ways.26 Firstly, it has shown that, contrary to teleological narratives that saw the French Revolution as inaugurating a world of nation-states, imperial visions did not fade away. European empires expanded significantly after Napoleon, and did so by devising new technologies of rule and repertoires of legitimacy both within and between them. Indeed, as scholars have demonstrated, most domestic political orders – of empires, post-imperial states and other entities – were to a great extent based on hybrid legitimacies that combined earlier imperial governmental and legal practices and dynastic notions with new ideas of constitutionalism, rights, sovereignty and independence.27 What is more, as evidenced by the Vienna system, the role of imperial visions was more pronounced in the shaping of the post-Napoleonic international political order. The international system based on political territoriality and sovereign states took time to develop and characterised mostly the second half of the nineteenth century. The second way in which scholars have revised our understanding of statehood is by showing the extent to which this restructuring of the world and the drive to administer polities and territories in novel ways stirred up tensions and resistances, both in theory and in practice, around 24 25

26

27

An example: J. Starobinski, ‘La chaire, la tribune, le barreau’, in P. Nora (ed.), Les Lieux de mémoire, 7 vols (Paris: Gallimard, 1997), vol. II, pp. 2009–62. J. Osterhammel, The transformation of the world: A global history of the nineteenth century (Princeton, NJ: Princeton University Press, 2014), p. 573. See also C. Clark, ‘After 1848: The European revolution in government’, Transactions of the Royal Historical Society, 6th series, 22 (2012), pp. 171–97; J. Breuilly, ‘Nationalism and national unification in nineteenth-century Europe’, in J. Breuilly (ed.), The Oxford handbook of the history of nationalism (Oxford: Oxford University Press, 2013), pp. 149–74. C. Aydin, ‘Regions and empires in the political history of the long nineteenth century’, in S. Conrad and J. Osterhammel (eds.), An emerging modern world, 1750–1870 (Cambridge, MA: Harvard University Press), pp. 35–247 (pp. 58–60). C. Bayly, The birth of the modern world, 1780–1914 (London: Blackwell, 2004), pp. 139–43; Aydin, ‘Regions’, p. 83.

Introduction

13

boundaries, identities, rights, institutions, forms of representation and so on. More often than not, these struggles took the form of sharp conflicts over jurisdiction and the structure of the legal order. The outcome depended on historical contingencies and regional frameworks. To the extent that these conflicts were about the legal foundations of statehood, they raised, implicitly or explicitly, questions about sovereignty and the nature of political power, as well as about the state itself, including its relation to other states. Historians of law and empire have argued that during the first half of the nineteenth century such disputes were part and parcel of the expansion of the European empires to the extra-European world and took place with particular force on imperial borderlands.28 Greece was one such case. This book shows how these conflicts over jurisdiction played out by taking into account the larger geopolitical context, that of the Eastern Mediterranean, where empires met and interacted and where many states and polities had an ambiguous international status.29 There, as in the colonial world, the attempt by imperial ­powers – in particular Britain, France, Austria and Russia – to accumulate and maintain power and to assert greater legal hegemony prompted states and other polities, Greece included, to ratchet up their claims to control affairs within their territories.30 This intensified already existing internal conflicts, themselves usually the result of attempts by central authorities to consolidate state power. As historians have shown, three factors were important in shaping the outcome of these processes: developments at the local level; the articulation of alternative legal projects that informed and were informed by these developments; and the role therein of legal intermediaries.31 To be sure, Greece was not a colony. Yet it was a post-imperial state that shared many of the problems of other polities in the colonial and post-­imperial world. Indeed, the state had been established in a space characterised by a plurality of legal and administrative orders that stemmed from Ottoman times, different spatial imaginaries and widely varying social and economic 28

29

30 31

L. Benton, Law and colonial cultures: Legal regimes in world history, 1400–1900 (Cambridge, UK: Cambridge University Press, 2002); L. Benton and R. J. Ross (eds.), Legal pluralism and empires, 1500–1850 (New York: New York University Press, 2013). Innes and Philp, Re-imagining democracy in the Mediterranean; K. Zanou and M. Isabella (eds.), Mediterranean diasporas: Politics and ideas in the long nineteenth century (London: Bloomsbury, 2016); J. Clancy-Smith, Mediterraneans: North Africa and Europe in an age of migration, c. 1800–1900 (Berkeley: University of California Press, 2010); I. K. Makdisi, The eastern Mediterranean and the making of global radicalism, 1860–1914 (Berkeley: University of California Press, 2010). See J. Innes, ‘Popular consent and the European order’, in Innes and Philp, Re-imagining democracy in the Mediterranean, pp. 271–99. Benton, Law and colonial cultures.

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Liberalism after the Revolution

characteristics (islands, mountainous regions, coastal areas etc.). These differentiations gave rise to sharp conflicts over the transition from this fluid legal pluralism to that of a state-dominated legal order.32 Those conflicts were informed by the secondary status of Greece within the European family of nations and the anxiety to catch up and measure up to the European standard of civilisation. Legal scholars were the most important intermediaries in this process. And as in other cases of post-imperial states, they saw themselves as makers of states as well as nations, who wished to distance the country as much as possible from the imperial past. Thus, for them law would create citizens through state power, rather than serving primarily to defend them from state encroachment. To paraphrase Jeremy Adelman’s arguments about the Iberian Atlantic, the challenge for the jurists was to make the state the foundation of nationhood, re-territorialising sovereignty in former Ottoman provinces that were to be filled with a nation in the making.33 This led the jurists to confront the key issue of sovereignty: who within the political order is to be invested with what power and who decides about the allocation of authority? It was when questions about legal jurisdiction, understood as a right to decide and therefore to rule, were raised from the 1840s, not least because of worries about the international status of the country, that arguments about sovereignty emerged.34 In the process, and as circumstances were changing, these questions were turned into alternative notions of sovereignty that ran counter to that of the monarchical state and the Polizeistaat ideas informing it. As elsewhere in the Mediterranean, this tension fed into a battle between ‘liberal’ and ‘monarchist’ or ‘absolutist’ forces.35 Thus, jurisprudence in Greece was not only a technical/administrative language that would act as a transitional mechanism to more rational forms of social organisation. It functioned primarily as a critical political language through which the jurists, but also others, politicised discontent, challenged existing social and political arrangements and imagined new ones.36 In other words, it did not act only as an ‘apology’ for political power, but also as a ‘utopia’, an attempt to expand the ‘horizon of expectation’.37 32 33 34 35 36 37

K. Barkey, ‘Aspects of legal pluralism in the Ottoman Empire’, in Benton and Ross, Legal pluralism and empires, pp. 83–108. J. Adelman, Sovereignty and revolution in the Iberian Atlantic (Princeton, NJ: Princeton University Press, 2006), p. 345. For a framework on international thought, see Armitage, Foundations of modern international thought. Innes, ‘Popular consent’. C. Maier, Leviathan 2.0: Inventing modern statehood (Cambridge, MA: Harvard University Press, 2014). M. Koskenniemi, From apology to utopia: The structure of international legal argument (Cambridge, UK: Cambridge University Press, 1989); R. Koselleck, Futures past: On the semantics of historical time (New York: Columbia University Press, 2004), pp. 255–75.

Introduction

15

What was distinctive in all these initiatives was that the theory and practice of liberal jurisprudence in Greece were unusually bound up with the successive transformations in the structure of the legal and political order. Moreover, jurists were central actors in the political and intellectual processes that culminated in the political struggle against the king and in the most serious domestic political crisis, the revolution of October 1862. In fact, they were active participants in the prelude to the crisis (producing the revolutionary texts of the provisional government, in the case of Nikolaos Saripolos) and in the events that followed, as members of the National Assembly and key players in the drafting of the constitution (with Saripolos again being the rapporteur). But, as already mentioned, the important point is that this moment built on and gave political expression to the moderate liberal ideas that had preceded it. In that sense, the book puts to the test some recent and very important works that take the establishment of the Greek state – the first instance in Europe of an attempt to create a state out of an empire – to signify the completion of the transition process and the passing on to a new era defined by the nation-state.38 Its argument is that what would come was unknown at the outset and was experienced as open to a range of possibilities. Instead of exploring the ‘roads not taken’, this study focuses on what finally emerged from the revolution. It argues that this depended on the choices actors made, and that these choices drew extensively on a liberal language. This language was not prescriptive. It was a toolkit, not a roadmap. It offered a common frame of reference, embodying a distinctive understanding of modernity and the political institutions appropriate to it, although there were, as we shall see, disagreements as to the type and the exact nature of these institutions. The book then offers a lens, through which to explain the political changes of the period and the making of Greek statehood.

Questions of Intellectual History Liberalism(s) in Context(s) What liberal ideas did the jurists develop? What was original and distinctive about them? And what can the Greek case tell us about the meanings of liberalism in the nineteenth century? To answer such questions, I draw on the ways in which, during the last two decades or so, intellectual historians have complicated and enhanced our understanding of 38

K. Zanou, Transnational patriotism, pp. 207–14.

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Liberalism after the Revolution

nineteenth-century liberalism.39 Indeed, these studies have shed new light on the richness of liberal thought, severely criticising in the process the conventional transhistorical accounts of ‘classical’ liberalism that usually associate it with certain core traits (rights, constitutionalism, the rule of law, freedom as an absence of interference and a suspicion of state power). As recent works have shown, not only did liberals refrain from putting the emphasis exclusively on rights and self-interestedness as the basis of a political community, but, at least until 1848, they supported generosity, moral probity, civic values and connectedness to other citizens. Seeking to enhance these values, they promoted reforms to be generated by the state.40 Despite this new picture, there is nevertheless still a tendency among scholars to allocate the key roles to French, British and to a lesser degree German thinkers. As recent literature on regions such as Latin America, South-East Asia, Southern Europe and Russia has shown, this focus on a narrow Western European liberal canon obscures the plurality of meanings that liberalism acquired as it came to be employed in different political settings across the world in the long nineteenth century.41 Indeed, scholars have demonstrated the syncretic nature of ideas in these regions, and the extent to which liberals combined local traditions with external influences, used foreign ideas for their own purposes, and did so by drawing on multiple intellectual traditions.42 This has also led many historians to ask whether we should start looking for alternative, ‘hidden’ or ‘parallel’ histories of liberalism, which belie the Western European focus of earlier but even recent studies.43 Be that as it may, this recent scholarship has a tendency to focus more on extra-European spaces, and less on Europe itself. And although Southern Europe and the Mediterranean more generally have played a significant role in accounts that hinge on Europe, many regions such as Southern Italy and the Greek-speaking world (a term that encompasses the Greek-speaking populations of the 39 40 41

42 43

Indicatively: Rosanvallon, The demands of liberty; Jaume, L’individu effacé; A. Ryan, The making of modern liberalism (Princeton, NJ: Princeton University Press, 2012); Bell, ‘What is liberalism?’ P. Berkowitz, Virtue and the making of modern liberalism (Princeton, NJ: Princeton University Press, 1999); Rosenblatt, The lost history, pp. 1–7, 88–115. Adelman, Sovereignty and revolution; Bayly, Recovering liberties; Paquette, Imperial Portugal; E. Pravilova, A public empire. Property and the quest for the common good in imperial Russia (Princeton, NJ: Princeton University Press, 2014). See in this regard Isabella, Risorgimento in exile; Zanou, Transnational patriotism; Simal, Emigrados; see also the Introduction in Zanou and Isabella, Mediterranean diasporas, pp. 1–24. G. Paquette, ‘Introduction: Liberalism in the early nineteenth-century Iberian world’, History of European Ideas, 41, 2 (2015), pp. 153–65.

Introduction

17

Eastern Mediterranean) remain relatively neglected. The book fills this gap by bringing into the discussion the perspective of this latter region. A central feature of Greek liberal debates was their reliance on and blending of different European legal and political traditions. In doing so, Greek liberals moved in their own music, both in terms of what they said and when and how they said it. To a great extent this was the case because they took into account local socio-economic and political realities, as these had been formed during Ottoman times. This syncretism was evidenced, as the book shows, in the variations that characterised Greek liberal thinking. One very important current was expressed by the civil lawyers (the ‘contractual’ or the ‘Romanist’ current, as Chapter 2 calls it). Another, more radical current was developed by the ‘constitutionalists’. Although not sharply distinguished, the two currents differed in the intellectual sources they drew upon, the language they used, as well as the kind of political engagement they espoused. The Greek case then reveals a liberalism that was constantly in flux. It also demonstrates that, notwithstanding the general setback suffered by liberalism after 1848, the liberal position was not totally lost in the post-revolutionary crossfire. On the contrary, in the case of Greece it triumphed, as the aspirations of the jurists were to a large extent fulfilled. It is mainly the content of what they said that reveals their difference. And it is by recovering the specific formulations of Greek liberals that the book contributes to our understanding of nineteenth-century liberalism. It does so by addressing some of the long-standing questions in the existing literature. The first has to do with the relationship of liberalism with republicanism. Some historians have contended that there was a paradigmatic rupture between the two, while others maintain that they were in constant flux.44 Although this discussion has centred on British and French sources, the case of Greece shows that the relationship was not one of complete estrangement. In fact, scholars such as Ioannis Soutsos and Nikolaos Saripolos drew extensively upon modern republicanism when they argued in the 1850s for the importance of public-oriented virtues and of a robust public life for the well-being of the political community. And, as we shall see, the changing international context led Saripolos to turn to a language of ‘non-dependence’ in his international thought. 44

See Q. Skinner, Liberty before liberalism (Cambridge, UK: Cambridge University Press, 2012 [1998]), p. 84; A. Kalyvas and I. Katznelson, Liberal beginnings: Making a republic for the moderns (Cambridge, UK: Cambridge University Press, 2008), pp. 4–5; Biagini, ‘Neo-Roman liberalism’; Philp and Posada-Carbo, ‘Liberalism and democracy’.

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The second debate among historians of liberalism has to do with the vexed relationship between liberalism and Enlightenment thought. I argue that, as with Italian, Spanish and Portuguese liberalism, Greek liberal thought drew extensively on Enlightenment intellectual and political traditions. This was the case with scholars such as the Romanists, who conceived of the royal power of the monarch as the centre and origin of all political decision-making, while drawing on liberal private law doctrines to undermine monarchical policies. But it was also the case with the constitutionalists such as Nikolaos Saripolos, one of the most vocal advocates of national sovereignty – a revolutionary tradition that had little to do with the Enlightenment – and a loyal follower of Benjamin Constant, a scholar who drew a strict line between Enlightenment and liberalism. Be that as it may, Saripolos had no hesitation in turning to the monarchiens or Montesquieu when addressing the role of the king.45 Such examples show that Greek legal thought was diverse and that its liberalism was a broad and open system of values and ideas. They also undermine historiographical interpretations of Greek liberal thought that make a simplistic connection between the intellectual movement of the modern Greek Enlightenment and a vaguely defined liberal nationalism, which would be replaced after independence by romantic conservatism. This last point brings me to the third question that recent studies of liberalism have reassessed (although maybe less than one would expect): that of the relationship between liberalism and nationalism. This book demonstrates that in the case of Greece, nationalism, understood as the self-­ determination of a national people, was a foundational liberal principle that permitted the articulation of novel notions of sovereignty, which at times were critical of those espoused by monarchical and imperial elites. Instead of looking at the ways in which intellectuals conceptualised the nation as a cultural community – the usual focus of historians of Greece – the book argues that Greek nationalism was forged in and through disputes and debates about jurisdiction, sovereignty, representation, property, liberty, rights, the nature of the state and above all the best form of government – key themes in Europe-wide liberal discussions. It was in such disputes, for example, that criticisms against the monarchy first played out, either in the form of defending the right of peasants to land against the state, or in the form of questioning the legal sovereignty of the monarchy in court cases. In so doing, the book demonstrates the crucial role that the 45

Paquette, ‘Introduction’, p. 157.

Introduction

19

language of law played in the political representations of the nation and in what historians have called the ‘internationalization of nationalism’.46 Last but not least, the book revises our understanding of the relationship between liberalism and the state. As we will see in the following chapters, underlying all the debates and differences of opinion from the 1830s onwards was a fundamental question that the jurists, the royal authorities and the senior officials within that state – few in number though they were – had to answer: what role should the state play, what function should it perform in relation to that fundamental and natural interplay of private interests? In so doing, the Greek case puts to the test what historians have seen as the central paradox of nineteenth-century state-building: that as the state was accumulating power, doctrines of the strong state were losing ground to theories that mistrusted it, such as liberalism. In fact, the juridical liberal language that came to complement and eventually criticise the doctrines that informed Bavarian policy-making developed as a language of statehood, as an idiom that sought to legitimise the state. To be sure, liberals elsewhere debated the state.47 But to a great extent they did so, especially in Western Europe, in terms of setting limits to its exercise of authority – in particular after 1848. Discussions in Greece went beyond this debate. They were not only about the amount of government or about the agencies to which political authority would be granted. They were also, if not more, about the form of government and about how much of the political authority of the nation would be granted to the agents of government. In the context of Greece, liberals saw the state as an agent of an alternative governmentality that they increasingly set against the political technology of the police state (Polizeistaat). And interestingly enough, they triumphed, as many of their aspirations were to a large extent fulfilled. Overall, then, the book offers a view of Greek intellectual history that is not static but dialogical, processual and responsive to events both domestic and international. Who Were the Jurists? It is not my intention to provide a social history of nineteenth-century Greek academics, a task that is still to be addressed by historians. In fact, 46 47

Bayly, The birth, pp. 199–243. See also C. Bayly and E. Biagini (eds.), Guiseppe Mazzini and the globalization of democratic nationalism, 1830–1920 (Oxford: Oxford University Press, 2008). For the case of France, see H. S. Jones, The French state in question: Public law and political argument in the Third Republic (Cambridge, UK: Cambridge University Press, 1993) and P. Rosanvallon, L’ état en France de 1789 à nos jours (Paris: Seuil, 1990). For Britain, see J. Meadowcroft, Conceptualizing the state (Oxford: Oxford University Press, 1995). For a comparative perspective see C. Laborde, ‘The concept of the state in British and French political thought’, Political Studies, 48 (2000), pp. 540–57.

20

Liberalism after the Revolution

this gap in our knowledge about the period under consideration does not concern only academics in the strict sense, but the ruling elites more generally. I will thus simply note that if one were to look at the post-­ independence intelligentsia, the following picture emerges: on the one hand, literati (men of letters, savants) and teachers who had played an active part in the pre-revolutionary educational institutions; and on the other hand, much younger graduates, who had been born in the wider region of the Eastern Mediterranean during the early 1800s and had subsequently studied in various European universities during the first decades of the nineteenth century. The scholars who dominated legal science after independence came from this last group. Socially, they were either sons of merchants coming from Cyprus, the Ionian Islands, Crete and regions that later were included in the territory of the Greek kingdom (Nikolaos Saripolos, Pavlos Kalligas, Vasileios Oikonomidis, Emmanouil Kokkinos, Georgios Rallis, Markos Renieris) or descendants of Phanariot families, who were related somehow to those in the upper echelons of Ottoman administration and who after the outbreak of the Greek Revolution found their position (and indeed their life) threatened (Ioannis Soutsos, Petros Paparrigopoulos, Georgios Mavrokordatos, Periklis Argyropoulos). So it was mainly young, highly trained and sophisticated intellectuals, mostly heterochtones – that is to say, born outside the borders of what would become the Greek state – who had arrived in Greece in the first few years after independence who came to dominate the scientific, intellectual and cultural scene. After their settlement in Greece – or their ‘return’ as they themselves put it, although very few came from lands that were included in the Greek state – most of them immediately became lawyers and judges, while the most prominent of their number were appointed to posts at the University of Athens, in the legislative committees and in the Council of State. Some of them enjoyed political careers, longer or shorter as the case may be, as ministers, deputies in the parliament and at times advisors to prime ministers and the king. In addition, they were among the best-known intellectuals of their time, intervening regularly in public debates. The pivotal position they enjoyed, both as observers and as primary agents of change, can thus provide us with privileged access to that critical moment in modern Greek political and intellectual history. Structure of the Book Chapter 1 explores the structures of power of the Bavarian-led monarchical state and the ideas that informed the state-building process headed

Introduction

21

by the Regency, until King Otto came of age, and then by the king himself (that is, between 1833 and 1843). It does so by emphasising not the normative institutional framework but the goals, the ideas, the organisation and the exercise of absolutist state power. These latter were deeply informed, as Chapter 1 shows, by the Polizeiwissenschaft, the theory or technology of the police state and the administrative techniques of cameralism – both eighteenth-century theories of statehood that were associated with ‘enlightened absolutism’ and aimed at enhancing the ‘happiness of the state’. The chapter thus situates the Greek case within a Europewide process of ‘enlightened reforms’ from above that, as historians have recently shown, was much less Western centric, less narrow in scope, less absolutist in character and more state centred than has generally been supposed. That said, the Greek case also testifies to the need to expand the chronological boundaries of reforms from above, as well as the legacy of the Enlightenment, and to move them well into the nineteenth century. It also explores the role in this process of the young, Western-educated jurists who flocked to the nascent state. Although they initially welcomed the reforms, they came gradually to raise concerns about the type of state and law that the Bavarians were attempting to establish. By contextualising their interventions in the most important public debates – such as the civil code debate – Chapter 1 aims at understanding what this initial, even if still unsystematic, liberal project consisted of, how it facilitated the appearance of the ‘intellectual’ and its role in the formation of a language of opposition in the lead-up to the pronunciamento of 1843 and the convocation of the First National Assembly. It was the following decades that constituted the golden years of nineteenth-century Greek jurisprudence. From the 1840s onwards, not only did the scholarly publications of the jurists proliferate, their public and political role was enhanced significantly. Chapter 2 explores the ‘Romanist’ or ‘contractual’ liberal current that was endorsed from the mid-1840s onwards by a mix of Bavarian and Greek (mainly) civil jurists – professors at the law school, members of the legislative drafting committees and judges at the Supreme Court (Pavlos Kalligas, Georgios Rallis, Petros Paparrigopoulos and others). After exploring the intellectual sources they drew upon (the German Historical School of jurisprudence, the French Doctrinaires, as well as the Idéologues) and their massive impact on legal thought and civil law, Chapter 2 discusses what they tried to achieve and why they turned to Romanist jurisprudence. As it shows, property – private and public – had a central importance for this current, as the material foundation of a strong and independent society. This strong emphasis on private property makes

22

Liberalism after the Revolution

sense only if we take into account the issue of the ‘national lands’, former Turkish property that, after the revolution, had been transformed into a Greek state domain and was to be distributed to the peasants. This was a key issue for liberals because it was strongly related to the transition from a pluralistic legal order (which centuries of Ottoman rule had imposed) to that of a modern and civilised state. Chapter 2 discusses how, for reasons both economic and cultural/political, the Romanists subscribed to a subversive legislative agenda that sought to facilitate private ownership. This agenda also comprised a different perception of statehood, conceptualised in the theory of the Rechtsstaat. Chapter 2 explores what this consisted of and how it differed from the Polizeistaat. It shows that apart from recording, registering and taxing private property, enforcing contracts and subjecting everyone, even royalty itself, to the law, a crucial ingredient of this administrative mechanism was fixing people in place and disciplining social deviance. Then the book turns to exploring the ‘constitutionalist’ liberal current. Chapter 3 focuses on Greek political economy. It starts by discussing the diffusion in the Greek world, during and after independence, of an economic idiom, inspired by J. B. Say and Saint-Simonism, that concentrated on values such as industriousness and frugality as the organising principles of economy and society. It shows how this idiom complemented the idiom of ‘public economy’ that informed Bavarian policies. It then turns to Ioannis Soutsos, discussing how, from the 1840s onwards, he raised concerns about the obsession with economic virtues at the expense of civic virtues and argued for the benefits of institutional change and political participation. Drawing on the republican thought of Simonde de Sismondi and Pellegrino Rossi, Soutsos related industrie to political rights, called for large-scale economic and social reforms (including far-reaching land redistribution) and associated political economy with the science of government. These calls increasingly targeted the monarchy, in particular during the Crimean war and after (from 1854 onwards), as reforms ground to a halt and the issue of land took on explosive dimensions. Chapter 3 shows that, where state-building, establishing liberal institutions and economic development were intellectual concerns and political objectives that came together, ideas about state intervention in the economy and the view of economics as a science of government remained in fashion long after 1848, when they had lost their appeal elsewhere. Chapter 4 demonstrates that these recommendations were coupled with a different way of thinking about political power – its nature, its sources and its organisation. The intellectual éminence grise behind this

Introduction

23

was Nikolaos Saripolos, who, after coming to Greece and being elected to the law school in 1846, was to become the country’s leading constitutional and international law scholar. Being mindful of the revolutionary tradition and fusing together several different intellectual currents (Rousseau, Doctrinaires, monarchiens, Benjamin Constant), Saripolos changed the terms of constitutional thinking by drawing on the revolutionary idioms of natural rights and national sovereignty. This was a liberal governmental discourse that spoke in terms of sovereignty as self-rule and of the state as a moral person with rights in the international arena. And as Chapter 4 demonstrates, for Saripolos – as well as for Soutsos – the state in the form it then took had become an obstacle to the formation of the nation and was undermining social cohesion. Chapter 5 shows that such claims were further radicalised when scholars, and in particular Saripolos (once again), took on international law and addressed directly the curtailed sovereignty that the Great Powers had imposed on Greece. Chapter 5 argues that if we want to understand the Greek discussions on international law, we need to take into account two things: first, the regional legal order that had been formed in the Eastern Mediterranean since the 1830s and the place of the Greek kingdom within it; and second, the many ways in which from the late 1840s onwards (and especially during the Crimean war) this order was being redefined by European powers and in particular by Great Britain. It was in this context that events such as the Don Pacifico affair, the occupation of Piraeus by Anglo-French forces during the Crimean war or the imposition of financial control made people like Saripolos realise that the fictions on which the international position of Greece was based had to be revised. In the eyes of many, the moves by imperial powers and the failure of monarchical policies were jeopardising the already precarious place of Greece in the geography of civilisation, and possibly its very political existence. Chapter 6 is more ambitious. By paying due attention to ideas as drivers of political change, it attempts to offer an explanation of a rather understudied subject in Greek historiography – the revolution of 1862. This was the beginning of a long liberal moment, which saw the king abdicating and the new Constituent Assembly electing a new monarch and promulgating a new constitution, while holding all legislative powers until 1864. During and after this moment, which ended with a minor crisis in 1875 when the jurisdiction of the parliament in the political system was consolidated, the way of doing politics was radically transformed. Chapter 6 starts by focusing in on the period before the revolution. As it shows, what ultimately made this crisis one of legitimacy – and indeed gave the revolution

24

Liberalism after the Revolution

its language – was the way in which the king’s rule increasingly came to be seen as a de facto usurpation of power that had unsettled the balance of the constitution and was breaking the contract with the nation. By ‘walking backwards into battle’, the critics of the monarchy and eventually the revolutionaries were building on the moderate liberal ideas developed in the preceding years. Faced with a hardening of the king’s stance, contemporaries were gradually radicalised, turning against what they called Otto’s system. Chapter 6 shows the key role that liberals played, not only intellectually but as active participants in the revolution itself (producing its texts in the case of Saripolos) and in the constitutional debates. It does not, however, focus exclusively on them. It recovers through them the intense political debates of the period and provides insight into the political changes that reconfigured the political institutions, altered the character of the state and put the monarchy on a new institutional footing. The book closes in the Conclusion with a critical assessment of Greek liberalism. It does so by discussing the main features of the two currents of Greek liberalism and the reasons for their differences. More importantly, it offers a comparison with other liberal agendas across Europe, advancing an argument regarding the long-term effects of this liberal moment even after its end.

chapter 1

Mind the Legal Gap

The Polizeistaat, ‘Enlightened Reforms’ and Their Liberal Critics (1832–1844)

Introduction In 1832, following the Greek Revolutionary War and lengthy ensuing diplomatic negotiations, the Greek kingdom was formally established. According to the Treaty of London, the Bavarian Prince Otto was recognised as the first incumbent of the Greek throne and sovereign of the state under the guarantee of the Great Powers (Great Britain, France and Russia).1 Immediately after their establishment, the central authorities – the monarchy and the political elites – set out to build what historians have conventionally and rather abstractly called a European-style centralised state, a key aspect of which was the establishment of a national legal system. This chapter explores what this state-building process initially entailed, the ideas that informed it and the role that the young, Western-educated jurists who flocked to the newly born state had in this process. The historical context is limited to what is usually called in Greek historiography the era of absolutism (1832–1844), during which the Regency, which governed the country until the young prince came of age (1835), and later Otto himself introduced the first state institutions. Although the main work of the jurists was developed later, it was at this juncture that they made their first public interventions. And, as we shall see, they initially endorsed the authorities’ reform agenda by producing the discursive armoury with which they would be legitimised – at the bar, on the bench, within the university, through the press and by translating books. Increasingly, however, they came to raise concerns about the effects and the content of the reforms; concerns which in light of the political and international situation were couched in anti-despotic language. By focusing on these early criticisms, the present chapter shows that the scholars who 1

What this arrangement meant from an international and constitutional point of view will be examined in Chapters 4 and 5.

25

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Liberalism after the Revolution

were involved in these debates were neither ‘democrats’ nor advocates of authoritarianism. Influenced by currents within contemporary European jurisprudence, and without questioning the role of the monarchy as such, they would forge a liberal legal and political project different from and, to some extent, critical of the type of state and law that the Bavarians had attempted to introduce. A central aim of this chapter is to understand what this initial liberal project of the jurists consisted of, what drove it and the impact it had. Modern Greek historiography has stressed the critical role that the transfer or transplantation of a European legal institutional framework had in the Bavarian political agenda.2 Most accounts of the period have dealt with the institutional aspect of this transfer process, focusing on legal reforms (especially the drafting of the legal codes) and the introduction of the physical structure of a justice system during the Regency years and under the guidance of the regent, Georg Maurer, in his capacity as viceroy (he was dismissed in 1834).3 At the same time, legal historians have emphasised the part played by the practice of translation in this early transfer process. Recent scholarship has, for the most part, remained loyal to the ‘diffusionist’ framework, even though it has somewhat complicated the picture by expanding the comparative aspect and by showing that instead of exclusively Bavarian or German influences, the legal formation of the state stemmed from an elaboration of diverse European legal models and ways of thinking about law.4 It is worth noting that older and more recent historiographies have each drawn attention to both the civilising mission of law – a means used by the monarchical state to bring the ‘European’ civilisational standard to Greece and thus facilitate the transition to political modernity – and the 2

3

4

The historiography is voluminous. For a general overview see G. B. Dertilis and K. Kostis, Θέματα νεοελληνικής ιστορίας (Athens: Ant. Sakkoulas, 1991). The work of J. A. Petropulos, Politics and statecraft in the kingdom of Greece (Princeton: Princeton University Press, 1968), remains indispensable for the political history of the era. Recently, Dertilis reconceptualised the process as building the state ‘ex nihilo’: G. B. Dertilis, Ιστορία του ελληνικού κράτους, pp. 66–68, 187–329, 405–34. From 1833 to 1835, four codes were published: the Criminal Code, the Code of Civil Procedure, the Code of Criminal Procedure and the Commercial Code. The statute organising the system of justice was likewise promulgated in 1834. Simplifying the picture: reforms in law followed the Napoleonic ones, but with several adjustments. The scholasticism of the new codes and the role accorded to customs reflected the influence of the Bavarian and other codifications from German-speaking lands. See Alivizatos, Το σύνταγμα, pp. 44–47. For the complicated history of European legal forms and in particular codification, see O. F. Robinson, T. D. Fergus, W. M. Gordon et al. (eds.), European legal history: Sources and institutions (London: Butterworth & Co., 1994), pp. 242–60. For the politics of each case, see P. Berg, The politics of European codification: A history of the unification of law in France, Prussia, the Austrian monarchy and the Netherlands (Groningen: Europa La Publishing, 2007).

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centrality of transfers in the accomplishment of this aim.5 This emphasis on institutional legal transfers, however, has a number of shortcomings. As already mentioned in the Introduction, one drawback arises from the procrustean use of models in the analysis of the Greek state. For Greek historians, the transfer and adoption of ‘Western-like’ institutions were the key points in the establishment of a modern ‘national state’. What this state-building process meant and how it was put into effect, however, were rarely analysed; rather, the process was (and still is, in many studies) usually conceptualised quite vaguely, as if the adoption of a number of key institutions from the ‘West’ resulted in an ideal type of state; that is, modern and centralised. This approach is best represented by studies of law, in which the process of legal formation was restricted to studying the building of institutions. However, although no one would deny that legal forms and procedures (courts, codes, statutes) are important in their own right for state-building, such an institutional approach to the phenomenon of law has many limitations. To quote a classic study by E. P. Thompson, ‘modern law cannot be subsumed in these institutions. The law may also be seen as ideology, or as particular rules and sanctions which stand in a definite and active relationship (often a field of conflict) to social norms’.6 As Jean Starobinski has shown for the case of France, in order for this to happen, an appropriate discursive power has to be produced in a variety of sites, such as the bar, the bench, the parliament and the university, and disseminated to the public also through books and the press.7 Both these arguments stand for the case of post-revolutionary Greece, where, as most historians have observed (in what could be called an ‘unexplored commonplace’), political and public rhetoric was saturated with the notion of law. One way thus to explore law and in particular legal discourse is to see it as being a key ingredient of the process by which political power and, in this case, the state and the monarchy attempted to acquire legitimacy. Such an approach would require analysis of the institutional process of state-building along with the legal ideas (powerful forms, as they are, of the state’s discursive power) that underpinned this process. But this approach, too, has its limitations. As argued in the Introduction, the main constraint is that it takes law to be an inherently structured and coherent ideology, driven by the needs of, as well as elaborated and expressed 5 6 7

For the ‘civilising mission’ of law in the Bavarian vision of politics, see Tsapogas, ‘Η ανακαίνιση του δικαίου’. E. P. Thompson, Whigs and hunters: Origin of the black act (New York: Pantheon Books, 1975), p. 260. Starobinski, ‘La chaire, la tribune, le barreau’.

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by, some kind of collective agent, be it the monarchical authorities, the bourgeoisie, the ruling classes, the nation or the people. This chapter, and indeed the book as a whole, argues that the relationship between law and state-building is far more complex. And also – to repeat some arguments put forward in the Introduction –, historians of law and empire have shown that the attempt by states to accumulate power and assert greater legal hegemony during the nineteenth century provoked sharp conflicts over the structure of the legal order.8 In the extra-European world especially, three factors were important in shaping the outcome of these conflicts: developments at the local level, the articulation of alternative legal projects that informed and were informed by these same developments, and the role therein of legal intermediaries. That was the case also for Greece. Indeed, as already demonstrated, the space where the Greek state was established was characterised by a plurality of legal and administrative orders, a range of different spatial imaginaries and widely varying social and economic characteristics (islands, mountainous regions, coastal areas etc.). These differentiations gave rise to sharp conflicts over how to establish modernity and state ‘hegemony’. In the process, alternative projects on how to achieve these were articulated. The turn of the jurists – the intermediaries – to Roman law was such a project. As elsewhere outside the core European world, this was a project that rejected European universalism and argued that the push to modernising reforms, if they were to succeed, should always take into account local conditions.9 But in order to understand what the jurists’ intentions were, and what they were ‘saying’ and trying to ‘do’, we need to understand the specific issues they were responding to, and more generally the political projects they were complementing, criticising or reacting against. With this in mind, we need first and foremost to take into account what the Bavarians sought to accomplish and what kind of ideas regarding the state and the government informed the state-building process that they initiated. It is only very recently that an attempt has been made to understand this. By putting his emphasis not on the normative institutional framework but on the goals, the organisation and the exercise of state power, Kostas Kostis has argued that if we wish to analyse the formation of the Bavarian state we need to comprehend – along with international 8 9

Benton, Law and colonial cultures; Benton and Ross, Legal pluralism and empires. Zanou and Isabella, Mediterranean diasporas; Innes and Philp, Re-imagining democracy in the Mediterranean, pp. 127–52; S. Gekas, Xenocracy: State, class and colonialism in the Ionian islands, 1815–1864 (New York and Oxford: Berghahn, 2016).

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and local politics – the Polizeiwissenschaft, the theory or technology of the police state, that informed it.10 It was this theory, along with cameralism, the science of the economics of government, that informed the state policies of the Bavarians.11 Although this has been an important contribution to our understanding of the early history of post-revolutionary Greece, it is still premised on a state-centred perspective that pays little, if any, attention to those intermediaries who facilitated the transfer process, complemented the implementation of state policies and, more importantly, at some point raised significant and critical concerns over the process.12 This is a crucial limitation because the thought and action of these intermediaries can shed light on some of the key issues of the state-building process – the underlying ideas that informed monarchical reforms, the reasons why some reforms were altered or dropped in light of mounting criticisms, the underlying logic of these criticisms – as well as when, why and how these criticisms came to develop into rival discourses. As we will see, the jurists came gradually to realise the shortcomings of the translation process and the tension between abstract principles and the propensity of these principles to stand above, and to fail to reflect, national aspirations – the tension, in other words, between cosmopolitanism and cultural particularity. The tension came to the fore in the mid-1830s when the most controversial issue in European legal affairs at the time was addressed by the royal authorities: the drafting of the Civil Code. For several reasons – confusion with respect to the meaning and authority of the legal sources and the essence of legal concepts, disagreements among key Bavarian administrators, growing pressure from the champions of French law – the authorities now planned to bring the French Civil Code into force. The result was a ‘battle over codification’. This battle was the crucial first step in the turn of Greek civil jurisprudence towards the German Historical School of law, a turn that was to dominate civil jurisprudence in the years to come, and away from French law and the Code civil that influenced other parts of Europe and the Eastern Mediterranean more generally. This is not to say that the jurists turned to particularistic versions of law. Claiming that Greece was a newcomer and not yet a full member of ‘European civilisation’, they approached Greek law as a national/local 10 11 12

Kostis, Τα ‘κακομαθημένα’, pp. 248–54. A. W. Small, The cameralists: The pioneers of German social polity (New York: Franklin, 1909), p. viii. For a theoretical framework for the role of intellectuals in transferring processes, see C. Charle, ‘Introduction to Part II’, in C. Charle, J. Schriewer and P. Wagner (eds.), Transnational intellectual networks: Forms of academic knowledge and the search for cultural identities (Frankfurt: Campus Verlag, 2004), pp. 197–204.

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variant of a common European legal language, which they identified with Roman law scholarship. Because of that turn towards Roman law, a part of Greek historiography has depicted the jurists involved in the debate as conservatives who wanted to turn the clock back. This chapter shows that this is to misapprehend their thought and that in fact, and at least at this stage in their careers, they were liberal reformers and modernisers who sought to promote gradual legal reforms that would express the national will. It also shows that the Civil Code debate of the late 1830s was important for three reasons. First of all, through their contributions the jurists laid claim to a wider public role, thus gradually becoming public intellectuals. Secondly, it initiated the articulation of a critical juridical discourse. Although this was in tune with the authorities’ reform agenda – with which they sought to ‘regenerate’ Greece and catch up with ‘Europe’ – it also articulated an alternative vision, even if not yet an altogether consistent one, of state power and its territorial order, of the legal and political system, as well as of what ‘Europe’ meant. Thirdly, this discourse had significant implications, as it came to inform in large measure the political language of constitutionalism and anti-absolutism that played a crucial role in the convocation of the First National Assembly (1843–1844) and the political transformation of the regime into a constitutional monarchy in 1844. Thus, from this period onwards, jurisprudence began to play an active part in the formation of legal and political culture and subsequently in political developments. Apart from detailing the complexities of the jurists’ politics, an equally important objective of the chapter is to show the impact that ideas and in particular liberal legal thought had upon the process of state-building. The chapter opens by discussing the structures of power of the Bavarianled monarchical state and the ideas that informed their formation. In so doing and by situating the Greek case within a Europe-wide perspective, it expands the chronological boundaries of ‘enlightened’ reforms from above, as well as the legacy of the Enlightenment itself, moving them well into the nineteenth century. It then turns to the role that the jurists – both of an older and a younger generation – had in this process. It focuses on how the jurists initially complemented the reform agenda of the royal authorities by transferring to Greece European legal scholarship, before moving on to show how and why they came to raise concerns about the type of state and law that the Bavarians were attempting to establish. As this section shows, in responding to the challenge of drafting a Civil Code, the jurists were forced to address both the prospect of modelling it on the French Code civil, as the royal authorities wished, and the role of the Byzantine legal tradition. In so doing, they introduced the Historical School of Law to Greece. Although the long-term impact of the accommodation of this school will be

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explored in the Chapter 2, the very last section of this chapter discusses the wider political implications of the jurists’ claims during the 1840s.

Building a Polizeistaat in Southern Europe: ‘Enlightened Reforms’ in the Nineteenth Century In order to understand the criticisms levelled by the jurists after 1837, it is imperative to appreciate how the Bavarians had organised power and the role of legal codification in this process. According to conventional understanding, in the eyes of the royal authorities every source of power and legitimacy emanated from the king as the divinely ordained sovereign. Especially after the first two years of the Regency (1833–1835), it was the king himself who managed power through the regulation and control of the contradictory interests of the political parties or, to put it more accurately, the political factions. In other words, power constituted a personal right and its exercise was facilitated by working with specific social groups, the co-optation of which constituted a basic priority for the royal authorities. The main governing organs were the Ανακτοβούλιο – a sort of Royal Privy Council made up of Bavarian bureaucrats and other appointed civil servants – and the Cabinet. The former had extensive powers, being the main mechanism through which the king ruled the state. The latter was controlled by the king but had a rather circumscribed executive role. This political arrangement, which lasted until 1844, has been characterised as absolutism without, it has to be stressed, much further elaboration or comparative reference to other European cases and the Restoration more generally. The same lack of explanatory force characterises the interpretations of the two revolts that reshaped the structure of the monarchical state in 1843 and 1862 (more on this later in Chapter 6) – usually portrayed as steps towards democratisation and the triumph of Western values within a developmentalist framework. This is to be regretted, not least because the case of the Greek kingdom can add to our knowledge of state-building during the first half of the nineteenth century, a period during which, as global historians have argued, monarchies and dynastic legitimacy were significantly recast and reshaped and did not, as is conventionally claimed, decline in the face of a democratic ascendancy. The Greek kingdom was part and parcel of this last (in all likelihood) wave of ‘monarchisation’.13 If it had any special traits, it was that it was a completely new state that had been formed in the wake of a revolutionary movement while lacking a monarchical tradition. 13

Osterhammel, The transformation, pp. 579–93.

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This gave rise to a number of tensions, in terms of both the actual institution-making and the legitimation of the monarchical institutions. In order to understand this process – the goals of the monarchical authorities, the means they used to implement these goals, as well as why the jurists, along with others, endorsed or raised concerns about the reforms and the type of state the authorities sought to put into effect – we need first to understand the theoretical structure of the monarchy. And in order to do this, we need to locate it within a Europe-wide perspective, not least because European powers played a major role in the establishment of the monarchy. One point to note is that the royal authorities and the king perceived the monarchy and the government as having strong affinities with the ‘enlightened’ monarchies of the ancien régime. Another is that the monarchy derived its legitimacy from the foundational treaties with which the political structure of the Greek state had been established and according to which the king was recognised as the single and supreme sovereign of the kingdom.14 At the same time, as the Treaty of London made clear, the delegates of the Great Powers, who had offered the crown to the Bavarian prince, had acted as mediators upon a power granted to them by the Greek nation.15 Even though this could and later did complicate things – as we will see in Chapters 5 and 6 – for the Bavarians it meant that the monarch, in his own person, represented the Greek nation and that he alone was capable of expressing its permanent and common interests. His power, however, was not arbitrary but was based on several fundamental premises. The first was the dynastic right to the Greek throne, according to which the succession was secured not by election but through the direct male line and later through the Orthodox faith.16 The second was that the person of 14

15

16

These included the several international treaties and legal Acts between the Great Powers, the treaties and legal Acts between the Great Powers and the Bavarian monarchy, and the legal Acts between the Bavarian monarchy and the Greek monarchy. ‘Το Πρωτόκολλο του Λονδίνου, 3 Φεβρουαρίου 1830’ [Protocol of London, 3 February 1830], and especially ‘Συνθήκη του Λονδίνου της 7η Μαϊου 1832 για την εκλογή του Όθωνα και επικύρωση της από τον Λουδοβίκο της Βαυαρία’ [Treaty of London, 7 May 1832 for the election of Otto and its legalization by King Ludwig of Bavaria], both in T. Gerozisis, A. Pantelis and S. Koutsoumpinas (eds.), Κείμενα συνταγματικής ιστορίας, 1821–1923, 3 vols (Athens: Sakkoulas, 1993), vol. I, the first on pp. 136–37, the second on pp. 148–53 (especially pp. 148–49). Article no. 1 of the Treaty: see Gerozisis et al., Κείμενα, p. 149. See also ‘Ερμηνευτικό και συμπληρωματικό άρθρο της Συνθήκης του Λονδίνου, 18 Απριλίου 1833’ [Interpretative and complementary article of the Treaty of London, 18 April 1833], ibid., pp. 156–57. In 1852, a treaty was signed between Bavaria and Greece, according to which Otto’s successor was to profess the Orthodox faith; if he was a minor, Queen Amalia would act as regent: ‘Συνθήκη του Λονδίνου περί διαδοχής εις τον θρόνον της Ελλάδος και περί αντιβασιλείας της βασιλίσσης Αμαλίας, 8/20 Νοεμβρίου 1852’ [Treaty of London on the succession in the throne of Greece and on the regency of Queen Amalia, 8/20 November 1852], ibid., pp. 240–41.

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the king was distinct from the institution of the state. Indeed, the king, as the supreme and sovereign authority, embodied the public dimension of the state and stood above particularistic interests, although he was not the proprietor of the state domain. This integrative/unitarian role of the monarchy was further enhanced after the experience of the periods of civil strife that had engulfed Greece during the Revolution and after the death of Kapodistrias. Thus, for many commentators, not least for members of the Senate at the time, only monarchical power could provide effective protection against divisive tendencies.17 In that situation, the king’s main preoccupation was to render royal power ‘more truly’ public and to secure civil peace. The third premise of the Bavarian understanding of the monarchy saw the state as a mechanism that would act in accordance with its own laws and do so for the greater good and welfare of the kingdom. That is to say, it was seen as a critical agent of change and instigator of reform from above. In this sense, even though the primary focus was on the welfare of the state, the authorities were not altogether unconcerned with the securities and liberties of the population. As already mentioned, in order to understand the theoretical structure and the goals of the Bavarians upon their arrival, as well as the reforms they set out to put in force, we need to understand the German science of Polizeiwissenschaft – the administrative science of the ‘police state’ (Polizeistaat) – that informed them. Indeed, as Kostas Kostis has argued, the term ‘Αστυνομία’, which the Bavarians frequently used – and many studies on nineteenth-century Greece confuse references to the term with what ‘police’ means today – designated this specific science of government, which was the administrative equivalent of mercantilism.18 But what exactly was Polizeiwissenschaft? In fact, it was not a novel idea. Part of a set 17

18

This anxiety was expressed by both the Senate and the Provisional Government. As the former stated in a letter it sent to King Ludwig of Bavaria after the news of his son’s election to the Greek throne: ‘The Senate, informed of the election of his highness Prince Otto to be the sovereign of Greece, did all it could to put an end to the riots and anarchy; but as things stand now, the situation cannot take any more delays and it is only upon the coming of our venerable sovereign or his surrogate that the rehabilitation of civil (common) order and peace depends’ (my emphasis). See ‘Επιστολή της Γερουσίας προς το βασιλέα της Βαυαρίας Λουδοβίκο, 13/25 Απριλίου’ [Letter of the Senate to the King Ludwig of Bavaria, 13/25 April 1832], in Gerozisis et al., Κείμενα, pp. 145–46; and ‘Επιστολή της προσωρινής κυβερήσεως προς το βασιλέα της Βαυαρίας Λουδοβίκο, 14/26 Απριλίου’ [Letter of the Provisional Government to the King Ludwig of Bavaria, 14/26 April 1832], in ibid., pp. 147–48. Kostis, Τα ‘κακομαθημένα’, pp. 179–98, 248–54; T. Barlagiannis, Η υγειονομική συγκρότηση του ελληνικού κράτους, 1833–1845 (Athens: Εstia, 2018). On the Polizeiwissenschaft, see P. Napoli, Naissance de la police moderne. Pouvoir, normes, société (Paris: La Decouverte, 2003) and K. Tribe, Strategies of economic order: German economic discourse, 1750–1950 (Cambridge, UK: Cambridge University Press, 1995).

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of administrative techniques that made up Kameralismus or Cameralism – the theory of administration (and university course) that focused on statistics and mercantilism – its origins lay in the reform agenda, in the spirit of rationalism and uniformity, which was undertaken in the German lands at the end of the eighteenth century and was associated with enlightened absolutism.19 These reforms had broken with the older absolutist tradition, which was based on the unlimited sovereignty of the ruler, his personal or dynastic advancement and the pre-eminence of raison d’état.20 Historians have long grappled with the question of ‘enlightened reforms’, and in particular with the extent of the influence of Enlightenment thought on state action and the reform programmes inaugurated in the eighteenth century.21 Although some scholars have questioned whether there was any sort of influence whatsoever, others have countered that not only did the Enlightenment offer the broad intellectual context within which political reforms were fashioned, but its nature and its influence were far more homogeneous than has generally been asserted.22 Indeed, scholars of the latter opinion have also widened the scope of ‘enlightened reforms’, by referring not just to modifications in fiscal, legal and trade policies but also to the creation of academies, universities, investments in infrastructure and the equipping of scientific expeditions. As Gabriel Paquette has argued, this renewal of the debate on enlightened reforms has given rise to new ways of approaching the issue, the most important of which are a lesser emphasis on the absolutist character of reforms – authority involved compromises and negotiations with elites and ‘civil society’ institutions – and a greater emphasis on the role of governments and crowns not just as incubators of Enlightenment ideas, but also as engines of reform.23 19

20

21 22

23

For Cameralistics, or Cameralwissenschaft, as these were developed from the seventeenth century in the ‘chambers’ of the princes, see M. Stolleis, Histoire du droit public en Allemagne, 1600–1800 (Paris: PUF, 1998), pp. 556–58. See also Small, The cameralists. Keith Tribe has shown how the meaning of both concepts and their relation changed in the course of the late eighteenth and early nineteenth centuries: Tribe, Strategies, pp. 8–31. For Foucault, the genesis of the ‘political knowledge’ of ‘police’ did not mean the substitution of the territorial state (associated with raison d’état) with a new kind of state, but signified a ‘shift of emphasis and the appearance of new objectives’: M. Foucault, Security, territory, population: Lectures at the Collège de France, 1977–78 (London: Palgrave, 2009), p. 363. For an illuminating discussion, see D. Beales, Enlightenment and reform in eighteenth-century Europe (London and New York: I. B. Tauris, 2005). For criticism regarding the validity of the concepts of ‘enlightened despotism or reforms’, see as an indicative example M. S. Anderson, Historians and eighteenth-century Europe, 1715–1789 (Oxford: Oxford University Press, 1979). For the counterargument, see H. M. Scott (ed.), Enlightened absolutism: Reform and reformers in late eighteenth-century Europe (Ann Arbor: University of Michigan Press, 1990) and Robertson, The case for the Enlightenment. Paquette, Enlightened reforms, p. 11 and more generally his ‘Introduction’.

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What  this implies, although the point has been somewhat neglected, is that these attempts at reform were accompanied by novel discourses about the state and its role in generating prosperity. Thus, the Polizeistaat was an example of a novel theory of the state, or a novel ‘technology of government’. In its eighteenth-century understanding, it had two main objectives: externally, to improve the position of the state in the competition among European states, and internally, to guarantee and enhance the domestic order through fostering the welfare of the population (or through public ‘happiness’ or ‘well-being’, two key terms in its political vocabulary). In the words of one of its eighteenth-century theoreticians, ‘police’ meant ‘the set of means that serve the splendour of the state and the happiness of its citizens’.24 Given that the common man was deemed incapable of understanding what was harmful and what was useful, it was entirely up to prudent and wise authorities to regulate and guide the actions of the population and promote its happiness. This conception of happiness was not construed in terms of individual self-realisation but in terms of good government. Hence, the reforms focused on managing public hygiene, on education and on introducing a new administrative and institutional framework. It was thus through reforms in those fields that the Polizeistaat, conceived by its adherents as a highly disciplined school, could bring the population to a ‘higher degree of development’. This perception of the state’s goals included novel ways of thinking about a number of key issues in the administration of the state. In the field of religion, the Polizeistaat was to be neutral and offer an institutional framework wherein various denominations could flourish. More importantly, the land was no longer considered to be the patrimony of the dynasty but was regarded as state property, while the ruler was a ‘servant of the state’ who received revenue from the state. Last but not least, aiming to control the municipal authorities and disregard regional administrative traditions, state authorities sought to create a new administrative division of the realm according to a uniform and rational scheme, conceived and carried out from the centre.25 Legal reforms were an integral part of the formation of such a centralising state. Based on the criticisms levelled against arbitrariness and inequality before the law that stemmed from Enlightenment thought, legal reforms sought to subject people to a uniform law, bring justice closer to the citizen, ensure legal security and enhance political unification. These objectives 24 25

See generally Foucault, Security, pp. 311–28. The quotation is from p. 313. R. C. Caenegem, An historical introduction to western constitutional law (Cambridge, UK: Cambridge University Press, 1995), pp. 126–39.

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were to be fulfilled by the creation of a generally understood legal system that would be accessible to all and by new legislation and in particular codification.26 The latter was guided primarily by the principles of natural law, which enlightened reformers, such as Frederick the Great, did not see as an ideal of justice with a significance greater than the positive legal order, but as a body of basic principles from which positive law ought to be directly derived. Although constitutions were not necessarily included in these reforms, the codes were supposed to be binding not just upon the subjects/ citizens but also upon the governments. To be sure, cameralism and the tendency to treat legal affairs in camera declined at the end of the eighteenth century. The importance, however, of legal reforms carried on into the nineteenth century, when bureaucrats and policy-makers attempted to come to terms with the problems of the post-Napoleonic age. For many scholars, the Napoleonic Code was a step in the same direction, the difference being of course that, at least in theory, it was an outcome of the Revolution and not of the policies of an ‘enlightened ruler’ (even though the role of Napoleon himself had rendered things more complex). After all, the most essential feature of all these modern codifications (revolutionary or ‘enlightened’) was the establishment of the monopoly of the state over the making of law within its territory.27 In the case of Greece, the wide influence of Polizeiwissenschaft on the Bavarian understanding of the state was manifested in the speed and decisiveness with which the authorities undertook their two main political/civilisational projects. One sought to inculcate the virtues of industriousness and productivity in the population. As we will see in later chapters, this process was also influenced by Saint-Simonian discourses and was implemented through various channels, one being the establishment of the University of Athens.28 The other project consisted in fostering administrative, legal, military and judicial uniformity in the state. Its primary aim was to consolidate the state as the sole source of political power. This project took a variety of forms. One was the drafting and the enactment of four legal codes (criminal and commercial codes, codes of penal and civil procedure) and a justice system (all between 1833 and 1835). With these measures the authorities sought to secularise the law, removing it from the authority 26 27 28

R. C. Caenegem, An historical introduction to private law (Cambridge, UK: Cambridge University Press, 1992), p. 116. Caenegem, An historical introduction to private law, p. 125. M. Isabella, ‘Liberalism and empires in the Mediterranean: The view-point of the Risorgimento’, in S. Patriarca and L. Riall (eds.), The Risorgimento revisited: Nationalism and culture in nineteenthcentury Italy (London: Palgrave, 2012), pp. 232–54.

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of the church and thereby ensuring the firm control of the government over legal developments.29 These initiatives were followed by consistent attempts to organise and control the military forces (and thus monopolise legitimate violence) and the educational system (and thus monopolise symbolic power), and gradually to settle formally the relationship with the Orthodox Church. This project also involved drafting of the administrative map of the country. While this reproduced Ottoman administrative divisions to some extent, it also included important innovations: the top administrative entity was the nomarchia (literally: ‘rule of law’), which was divided into eparchies (singular: eparchia, literally: hinterland), themselves divided into demoi (plural of demos, town or a collection of villages). The appointment of the officers administering the two highest entities was a crown prerogative; the dimarchos (mayor, literally: he who rules the demos) was also chosen by the king, but in conjunction with an indirect and mediated system of elections, whereby the highest-taxed members of the demos voted for a council that in its turn nominated three candidates.30 What all these initiatives indicate is that the Bavarian reforms should be seen as a mixture of eighteenth century–inspired ‘enlightened reforms’ and nineteenth-century innovations at the level of local policy. As historians working on other parts of Europe have shown, this was hardly exceptional. But incorporating the Greek case into this broader sphere of scholarship is important for a number of reasons. Firstly, it further undermines the Western Europe–centred approaches to ‘enlightened reforms’ and to statebuilding, which have conventionally neglected, or downplayed, the experience of Southern Europe (and, in fact, even in the recent treatments of Southern European ‘enlightened reforms’, Greece is consistently absent). Secondly, it shows that ‘enlightened reforms’ survived the demise of the ancien régime, thus forcing historians to expand the chronological boundaries of reforms from above and move them well into the nineteenth century (and even beyond 1830). In this sense, the Greek case falls into the more flexible periodisation that global historians have proposed for the transition from the early modern to the modern world – one that usually sees the period between 1750 and 1850 as a time of transition to modernity and to novel 29

30

The institutional framework was developed in six months during 1833, and the succeeding reforms were simply amendments to the existing basic framework: Kostis, Τα ‘κακομαθημένα’, p. 196. For a brief sketch of the most basic reforms, see Alivizatos, Το σύνταγμα, pp. 79–81. For the administrative reforms, see A. Couderc, ‘Structuration du territoire et formation des élites municipales en Grèce (1833–1843)’, in P. Aubert, G. Chastagnaret, and O. Raveux (eds.), Construire des mondes. Elites et espaces en Méditerranée, XVI–XX siècle (Aix-en-Provence: Presses universitaires de Provence, 2005), pp. 163–84 (pp. 175–76).

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forms of statehood.31 Thirdly, it demonstrates, as already mentioned, that the state was an important agent of change that, in its efforts to accumulate and consolidate power, had at times to negotiate and respond to challenges to its rule. In the case of Greece this was all the more complicated because of the previous absence of princely rule of the Western type and the persistence of connections between the old Ottoman world and the new world of the Greek state. That meant that in practice state authorities had to somehow confront alternative political orders of the sort that Jurgen Osterhammel has called ‘systems of allegiance’ – systems in which legitimacy rested on the qualities of local powerholders (the focus for the symbolic unity of the community) and on the protection they offered, but also on processes whereby members of the community deliberated on and evaluated these qualities, which at times took the form of elections or acclamation.32 The existence of such alternative political orders played a key role in the perception of Greece as backward, and in the related anxiety to catch up and, indeed, measure up to the European standard of civilisation. The Bavarians responded by designing a sort of ‘power of authority’ system (based on communicating commands within a hierarchy of subordination), while adopting structures that ‘dispersed power’ at the local level in order to render power less perceptible as a relationship of obedience. In trying, in other words, to tame the centrifugal forces and the local frameworks of belonging, the Bavarians did not exclude local elites but instead sought to co-opt them by giving them significant responsibilities at the local level – making to an extent the local subdivision (demos) and its dimarchoi the territorial pillars of the regime.33 It is worth noting that these reforms employed for the first time a democratic administrative language in the country at large.34 This mixture of old and novel administrative practices was the core of the reform agenda with which the authorities sought to ‘regenerate’ Greece. And these efforts were complemented, at least initially, by those of men of letters both of an older and a younger generation, prominent among whom were the jurists. Indeed, the word ‘regeneration’ became a shared rallying cry among the authorities and the novel elites of the ­kingdom.35 For all these actors, references to ancient Greece notwithstanding, ‘regeneration’ meant first and foremost 31 32 33 34

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A global Sattelzeit for Osterhammel, The transformation, p. 58–63. See also Maier, Leviathan 2.0. Osterhammel, The transformation, p. 575–78. Kostis, Τα ‘κακομαθημένα’, pp. 189–97. Sotiropoulos and Hadjikyriacou, ‘Patris, ethnos, and demos’. A similar system was employed in France (and indeed authorities in Greece drew upon it), which historians have called ‘guided democracy’: see Osterhammel, The transformation, p. 590. For a comparative Mediterranean perspective, see the editors’ introduction in Innes and Philp, Re-imagining democracy in the Mediterranean, pp. 1–22.

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following the lead of European civilised states. That said, and as to an extent their reform agenda bears out, ‘Europe’ for the Bavarians meant primarily the post-revolutionary ‘Europa Christiana’ – the one that was expressed politically at an international level by the Concert of Europe and the Holly Alliance. It would be this last point – and the content that authorities would gradually seek to give to ‘regeneration’ in the face of it – that would lead the jurists to gradually raise concerns about the Bavarian reform agenda.

Translating the European Legal Ideal To be sure, the anxiety over ‘regeneration’ – what it meant and how to achieve it – was not a new concern among men and women of letters belonging to the Greek world. Indeed, as scholars of the ‘Modern Greek Enlightenment’ have maintained, one of the major sources of anxiety among these men and women from the late eighteenth century onwards was the place of Greece within the ‘civilised’ world.36 This concern persisted in most cultural and political debates within Greek society in the course of the nineteenth century and the early decades of the twentieth, if not up until today. As Georgios Varouxakis has argued, commenting on the period immediately following the establishment of the Greek state, at the time in question and at an increasing rate as the century progressed, statehood itself as well as the state’s relative position in the international arena were closely connected with cultural achievements and each nation’s ‘progress in civilization’. Therefore the Greeks’ assertion that they were Europeans was crucial for the plausibility of their claims to independence initially, to the expansion of their state subsequently.37

Unlike other domains of cultural production, such as history and literature, where the abiding intent was to prove to Europeans that the modern citizens of Greece were descendants of the glorious ancient Greeks, in legal studies and scholarship, as in legislation, the criterion and the validating principle were mainly conformity and proximity to the patterns of ‘civilised Europe’.38 If the new state had always to be measured against 36

37 38

See P. Kitromilides, ‘Europe and the dilemmas of Greek conscience’, in Ph. Carabott (ed.), Greece and Europe in the modern period: Aspects of a troubled relationship (London: Centre for Hellenic Studies, King’s College, 1995), pp. 1–15. Varouxakis, ‘The idea of Europe in 19th century Greek political thought’, in Carabott, Greece and Europe, pp. 16–37 (p. 18). E. Skopetea, Το πρότυπο βασίλειο και η ‘Μεγάλη Ιδέα’ (Athens: Polytypon, 1988); I. Drosos, Δοκίμιο ελληνικής συνταγματικής θεωρίας (Athens: Sakkoulas, 1995), p. 142; D. Dimoulis, Ο νόμος της πολιτικής: Μελέτες συνταγματικής ιστορίας και ερμηνείας (Athens: Εllinika Grammata, 2001), pp. 410–73.

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both ancient Hellas and modern Europe, claiming as it did to be both Hellenic and European, for legal practitioners and theorists the criterion was primarily, if not exclusively, conformity to European jurisprudential standards. Admittedly, the presence of ancient Greek writers in their writings was a constant, but serving mostly as a reference intended to prove deep learning and philosophical erudition.39 The extent to which European legal and political theory was authoritative was demonstrated by the process of translation that continued uninterrupted during the years after liberation from the Ottomans – a process that complemented earlier efforts that had seen the translation of texts such as Cesare Beccaria’s On Crime and Punishments, Destutt de Tracy’s Commentary on Montesquieu’s Spirit of Laws, Jean-Jacques Rousseau’s Discourse on Inequality and his Social Contract, as well as constitutional and other texts from the United States of America and other polities.40 In a way the pace of translation intensified with independence. Indeed, during the early post-revolutionary period even ideological disputes revolved around the precise choice of the foreign texts to be translated. And in most translations it was European liberal legal thought and practice that chiefly preoccupied the Greek jurists. In their Prologues, the jurists almost unanimously stressed the importance of European political theory and jurisprudence for the political development of their still immature nation. As P. Argyropoulos – a liberal jurist and one of the first professors to be elected to the law school of the University of Athens (in the Chair of Administrative Law) – argued: ‘within European scholarship and languages, ideas have taken root, they have become clear and transparent after all the doubts have been set aside; doubts that still blur our vision’.41 However, within legal circles there was an underlying distinction that reflected a generational difference and also the relevant degree of participation in political decision-making. On the one side stood an older generation of jurists, who had exerted significant political influence since the 39 40

41

Drosos, Δοκίμιο, pp. 129–48. See the Bibliography and in particular the section of translated works. See also P. Kitromilides, Η Γαλλική Επανάσταση και η νότιο-ανατολική Ευρώπη (Athens: Diatton, 1990) and P. Kitromilides, Νεοελληνικός Διαφωτισμός: Οι πολιτικές και κοινωνικές ιδέες, 3rd edition (Athens: MIET, 2000), pp. 381–427. K. Makarel, Στοιχεία του δημοσίου δικαίου, μεταφρασθέντα παρά των Μ. και Π. Αργυρόπουλων (Athens: Typ. Ralli, 1836), p. 8. Argyropoulos (1801–1860) was born in Constantinople into a renowned Phanariot family, which moved to Athens for fear of reprisals after the establishment of Greek independence. After studying in Paris, he returned to Greece, becoming a lawyer at first and then a professor at the university. A member of the National Assembly of 1843–1844, Argyropoulos held a number of public offices in the 1850s (minister of foreign affairs, of economics and of ecclesiastics). He was also elected to the parliament in 1859.

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Greek Revolution and for whom French jurisprudence, and especially French codification, remained a constant point of reference. This generation functioned, in a way, as a bridge between the revolutionary patriotism of the ‘Modern Greek Enlightenment’ period and the early liberalism of the period after 1820. On the other side, the younger jurists, not yet full participants in politics and law-making, focused their interest largely on the introduction of legal scholarship, privileging natural law theories. Both groups were influenced by political languages based on liberalism and on moral arguments centred on the ‘civilising mission’ of law. Regarding the former group, Christodoulos Klonaris (1788–1849) deserves to be mentioned since he had a key role in political and legal developments. Born in Zagori (in the Pindus mountains), Klonaris received his education at Abelakia in Thessaly – a major educational centre of the period – before moving to Paris, where he became a disciple of Adamantios Korais, the Smyrna-born but Paris-based Greek intellectual and founding father of the movement of the ‘Modern Greek Enlightenment’. After making significant contributions in French journals of law on the legal status of Greeks under Ottoman law, Klonaris left for Greece in 1825 in order to participate in the Revolution. In fact, in 1827 he played an important role in the drafting of the third revolutionary constitution in Troezina.42 After the establishment of the Greek state, Klonaris held important public offices until his death in 1849 (public prosecutor in the Kapodistrias Administration, and during Otto’s rule president of the Supreme Court, professor at the law school and president of the Legislative Committee; more on this in subsequent chapters). Klonaris was heavily influenced by eighteenth-century natural law theories of the Enlightenment and liberal currents of the nineteenth century. In 1829 he published his first and only treatise, entitled Criminal Procedure (‘Εγκληματική Διαδικασ ία’). This relied heavily on the French Code d’instruction criminelle, many parts of which were translated and incorporated into his treatise.43 Being at the time a close collaborator of the Governor Kapodistrias, Klonaris was  trying  to present progressive liberal legislation and to supply some 42

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D. Seremetis, ‘Ο Χριστόδουλος Κλωνάρης (1788–1849) και η συμβολή του στην αναγέννησιν της δικαιοσύνης’, in Επιστημονική Επετηρίς Σχολής Νομικών και Οικονομικών Επιστημών Αριστοτελείου Πανεπιστημίου Θεσσαλονίκης (Μνημόσυνον Περ. Βιζουκίδου) (Thessaloniki: Aristoteleio Panepistimio, 1962), pp. 363–406, and also Μ. Stasinopoulos, Τινά περί Χριστόδουλου Κλωνάρη, πρώτου προέδρου του Αρείου Πάγου (Athens: Νοmiki Scholi Athinon, 1961). An example of his publications: Chr. Klonaris, ‘Coup d’oeil sur la legislation qui gouverne aujourd’hui le Grecs sujets de l’empire ottoman’, Themis ou Bibliotheque du Jurisconsulte, v. 1 (1819), pp. 185–95. Chr. Klonaris, Εγκληματική διαδικασία (Aegina: Εthniki Typografia, 1829).

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kind of legal foundation for the nascent Greek state. It must be noted that he remained a strong advocate of French legislation throughout his career. Two years later (1831), the younger generation made its first contribution to the transfer process by translating into Greek a seminal work of European international law or, more appropriately, of the ‘Law of Nations’: Emerich de Vattel’s Droit des gens; ou, Principes de la loi naturelle appliqués à la conduite et aux affaires des nations et des souverains. The translation also marked the first appearance in the Greek world of letters of Georgios Rallis, a key figure in the formation of legal theory and institutions in Greece.44 Born into a Phanariot family in 1804, Rallis moved from Constantinople to Vienna after his father – a long-serving and prominent diplomat in the Ottoman administration – had been executed, when news of the Greek insurrection reached the Ottoman capital. After studying in Vienna and Paris, Rallis went to Greece in 1829. He there enjoyed an illustrious career: initially judge and district attorney (Argos), then professor at the law school in 1837 (and its first dean), rector of the university during 1838–1841, minister of justice (1841, 1848–1849, 1857), of foreign affairs (1848–1849) and of economics (1843), as well as president of the Supreme Court (Areios Pagos) in 1849 (a position he held for 12 years). Although his second translation – of F. Mackeldey’s treatise on Roman law – was destined to become more widely known, his version of Vattel has gone largely unmentioned.45 The reception and dissemination of Vattel’s translation made it, however, the first among many to show that Greece was touched in these years by emerging global currents of liberal thought, in this case by what E. Di Rienzo has called a ‘Vattel Renaissance’ in Restoration Europe.46 Although in the Anglophone world Vattel had been a longstanding authority since the very first translation into English in 1759, his work had been neglected during the Napoleonic era, re-emerging subsequently when European liberals used it to challenge the Vienna settlement.47 44

45

46

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E. de Vattel, Το δίκαιον των εθνών, ή αρχαί του φυσικού νόμου, προσηρμοσμένου εις την διαγωγήν και εις τα πράγματα των εθνών και των κυριάρχων, παρά Ε. Βαττέλ, ελευθέρως μεταφρασθέν εις την απλοελληνικήν γλώσσαν υπό Γ. Ράλλη, 2 vols (Nafplion: Typ. K. Tompra, K. Ioannidi, G. Athanasiadou, 1831). Later on, he co-translated with Markos Renieris the work of F. Mackeldey, Εγχειρίδιον του Ρωμαϊκού Δικαίου, μεταφρασθέν εκ του γερμανικού υπό Γ. Α. Ράλλη και Μ. Ρενιέρη (Athens: Typ. K. Ralli, 1838). E. Di Rienzo, ‘Decadenza e caduta del cosmopolitismo: Francia/Europa, 1792–1848. Note per una rircera’, in L. Bianchi (ed.), L’idei di cosmopolitismo: circolazioni e metamorfosi (Naples: Liguori Editore, 2002), pp. 419–55. For the authority of Vattel in the Anglophone world and especially in America, quoted by James Madison, Judge Marshall and others, see C. Fenwick, ‘The authority of Vattel’, American Political Science Review, 7 (1913), pp. 395–410.

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As Maurizio Isabella has argued, Vattel was quoted and used extensively by the liberal Italian exiles and in particular by Alerino Palma di Cesnola, an Italian exile from the revolutions of 1820–1821, who came to be directly involved both intellectually and politically in the Greek Revolution.48 In a treatise published after 1825, Palma had already used the anti-despotic implications of Vattel’s arguments in order to argue for the lawfulness of the intervention of the European nations against the Ottomans in support of the Greek cause.49 In the same vein, by deploying Vattel, Greek liberals challenged the reluctance of the Concert of Europe to intervene in favour of the Greeks. But there was also a more profound criticism of the international order that the Vienna settlement had established. This was related to the treatment of the Greek issue after the Revolutionary War.50 For Vattel, the international community was made up of equal sovereign states with bonds that made them a ‘sort of a republic’, and ‘since the sovereign is he to whom the nation has entrusted the empire and the care of the government, it does not, then, belong to any foreign power to take cognizance of the administration of that sovereign, to set himself up for a judge of his conduct, and to oblige him to alter it’.51 For many liberals, diplomatic settlements in the late 1820s had taken the opposite direction, undermining Greek statehood and sovereignty. Some – including the Governor Kapodistrias – claimed that Ottoman domination had been replaced, to a certain extent, by a kind of European hegemony.52 The international treaties, which had been signed by the Great Powers and in which Greek state authorities had never been asked to participate, were the legal expressions of this state of affairs (we will 48 49

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Isabella, Risorgimento in exile, pp. 99–100. In later years, Palma became a lawyer and a judge in the Supreme Court. A. Palma, Συλλογή των αρχών του πρωτότυπου και εκ του συνθήκης της Ευρώπης δικαιώματος των εθνών περί των θαλάσσιων λειών και της ουδετερότητας (Hydra: Τυπ. Ύδρας, 1825/26). See also A. Palma, Difensa dei Piemontes inquisti: A causa degli avvenimenti del 1821 (Brussels, 1829). For Vattel and the right to war, see S. Zurbuchen, ‘Vattel’s law of nations and just war theory’, History of European Ideas, 35 (2009), pp. 408–41. At the time of publication Greece’s military and economic condition was desperate and could be dealt with only through foreign assistance: see W. P. Kaldis, John Capodistrias and the modern Greek state (Ann Arbor, MI: Edwards Bros, 1963), p. 101. E. de Vattel, The law of nations, οr principles of the law of nature applied to the conduct of nations and sovereigns (edited by B. Kapossy, R. Whatmore and K. Haakonssen), new ed. (Indianapolis, IN: Liberty Fund, 2008), p. 290. On Vattel, see N. G. Onuf, The republican legacy in international thought (Cambridge, UK: Cambridge University Press, 1998). According to Kapodistrias ‘The insistence of the Great Powers to curtail the territorial expansion of Greece indicates their willingness to relegate the country into a colony or, in other words into an avenue accessible only to France and England.’ Quoted in P. Petridis, Ιωάννης Καποδίστριας, 1776–1831: o κορυφαίος Έλληνας Ευρωπαίος (Athens: Govostis, 1992), p. 123.

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see more about this in Chapter 5).53 The liberals thus used Vattel in order to support the idea that Greece was entitled to participate as an equal and independent member in the Congress of London and in this way consolidate Greek statehood. In his short Introduction, Rallis alluded to the liberal ideals of ‘humanity’, ‘citizenship’ and ‘freedom’. That he saw this publication as complementing Governor Kapodistrias’ foreign policy is borne out by his dedication of the work to the governor himself.54 Vattel’s translation initiated an important intellectual current in Greek jurisprudence, namely natural law scholarship. This was manifested in the translation of treatises by J. J. Burlamaqui, K. Makarel and Albert Fritot.55 Natural law theories were premised on the belief that there are certain ethical principles that are independent of human artifice and applicable to all irrespective of time and place; principles that should and could serve as the basis for positive laws and codes. In introducing natural law, the Greek jurists had three objectives, all related to the ‘civilising role’ they accorded to jurisprudence. The first was to diffuse in Greece what they saw as a significant part of modern European legal scholarship, and thereby to develop the civic virtues of their fellow citizens. The second, which stemmed from the first, was to undermine by way of legislation some traditional practices of social inequality that they thought were characteristic of pre-revolutionary Greek society.56 The third was to facilitate the process of legal codification, which they also viewed as crucial for achieving these goals. This last point was of major importance for the jurists, because natural law was an important source of inspiration for legal reforms and especially codification. The latter, in particular, was likewise presumed to be an index of membership in the ‘European’ family. It was for this same reason that Jeremy Bentham’s On Civil and Penal Legislation was translated.57 Although Bentham was not a natural law theorist, he was a strong advocate of law codes. Thus, during the very early years after independence, the jurists, through their legal expertise, their linguistic 53

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J. A. Petropulos and A. Koumarianou, Η θεμελίωση του ελληνικού κράτους, 1833–1843 (Athens: Papazisis, 1982), p. 12; Drosos, Δοκίμιο, pp. 149–67. Τhe treaty of London that established the Greek kingdom in 1832 read: ‘La Grèce sous la souveraineté du prince Otton de Bavière et la garantie des trois Cours formera un État monarchique indépendant (article 4)’; in Gerozisis et al., Κείμενα, p. 23. De Vattel, To δίκαιο των εθνών, pp. 1–2. Apart from Makarel, Στοιχεία, J. J. Burlamaqui, Στοιχεία φυσικού δικαίου (Ermoupolis: Typ. Panteli Panteli, 1939); A. Fritot, Διδασκαλία περί του φυσικού δικαίου, του δημοσίου, του των πολιτειών, του κοινού, και του συνταγματικού (Athens: Typ. Andreou Koromila, 1836). See the Introduction by P. Argyropoulos in Makarel, Στοιχεία, pp. 1–20. J. Bentham, Περί νομοθεσίας ιδιωτικής και ποινικής (Athens: Typ. Andreou Koromila, 1834). Vol. 2: Περί νομοθεσίας των δικαιωτικών και ποινικών νόμων (Athens: Typ. Ilia Christofidou, 1842).

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abilities and their scholarly preoccupations, complemented the attempts of the authorities to implement what everyone saw as modern legal rule. Their efforts bore fruit, since, as we saw earlier, within the space of a few short years the structure of a novel legal system had been completed. However, the complementary role played by the jurists was not to last. Not only did they come to raise criticisms against the codification process, they also started increasingly to voice concerns about the royal reform agenda at large. Although the criticisms of the legal reforms were initially rather mild, these took a new turn after 1837. The prospect of codifying civil law – the heart of modern law – posed a challenge to the jurists, revealed the limitations of the transfer process and ultimately brought about a change of course in Greek jurisprudence. This was in a sense to be expected. In the context of a newly established kingdom that lacked a monarchical tradition, it was only natural that the efforts of the Bavarian authorities to consolidate the power of the central state would be challenged. Indeed, as historians have argued, such challenges were a major characteristic of the first decades of Bavarian rule. But the focus of most studies has been on the political and military resistance of local elites or, in more nuanced works, on the confrontation between the Bavarian political dispensation and the alternative local political orders, especially in the countryside.58 At the same time, the intellectual challenges to Bavarian rule have rarely been scrutinised. This is an important omission, not least because the intervention of the jurists against the attempts of the royal authorities to draft a Civil Code, and the codification debate that ensued, aimed rather directly at the mode of governance and the ‘enlightened reforms’ of the Bavarians. And, as we shall see in the chapters that follow, this was just the beginning. But what was it that triggered the civil law debate? Before proceeding to a more detailed examination of the argument of the jurists, a brief sketch of the policies of the Bavarians regarding civil law is needed. The aim of the monarchical authorities was to settle the issue by presenting a modern code of law. A royal decree of 1835, set in force as civil law the so-called Exavivlos (‘Six Books’), a digest of Byzantine laws drafted in 1345 by Konstantinos Armenopoulos and essentially a summary of Basilica.59 58 59

Kaiti Aroni-Tsichli, Αγροτικές εξεγέρσεις στην παλιά Ελλάδα, 1833–1881 (Athens: Papazisis, 1989). Βασιλικό διάταγμα [Royal decree], 23 February 1835, in ΓΑΚ, Οθωνική περίοδος, K-Αστική Δικαιο σύνη, α. Αστική Νομοθεσία [General State Archives, Archives of the period of King Otto, K-Civil Justice, a. Civil Legislation, 1. 1834–1836]. Armenopoulos was a Byzantine legal scholar and a justice in the Supreme Court in Constantinople. His book was very popular among Greeks during the Ottoman era, being considered the best synopsis of an immense body of legislation; see A. Hatzis, ‘The short-lived influence of the Napoleonic Civil Code in 19th century Greece’, European Journal of Law and Economics, 14 (2002), pp. 253–63.

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The latter (‘the laws of kings’) was a bulky elaboration and Hellenisation of Justinian Juris Civilis (AD 534), the cornerstone of European civil law. At the same time, and according to the same royal decree, a Legislative Committee was set up, headed by the French-educated Christodoulos Klonaris, with the task of drafting a Civil Code. In short, with this royal decree, Byzantine law (Armenopoulos’ digest) was provisionally set as the civil law in force until a new Civil Code had been published. More importantly, in the following two years, several actions of of the period the royal authorities disclosed their willingness to adopt a Civil Code modelled on, if not copying, the French Code civil. Historians have seen the debate that ensued as the decisive first phase in a long period of intellectual and ideological strife within the law school as well.60 But in so doing, they have by and large presented the debate schematically, as one between Frencheducated liberals and German-educated Romantics, the latter often also being seen as conservative nationalists. At the same time, they have set the political context aside.61 The same in a way goes for more recent accounts. Even though scholars have now approached the period with a keener eye for the political context that shaped the mid-nineteenth-century ideological trends and the political language used by the jurists, they still insist on using binary models of conflict (liberals vs. conservatives), while downplaying doctrinal issues and subtle ideological differences.62 By and large, such interpretations have failed to acknowledge the broader ideological context in which the debate took place. The focus on political divisions has overshadowed shared common understandings and cultural perceptions among the jurists, which were not confined to jurisprudence. To take the most obvious example, the French code was highly respected in 60

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S. Troianos and I. Velissaropoulou-Karakosta, Ιστορία του δικαίου: Από την αρχαία στην νεότερη Ελλάδα (Athens: Αnt. Sakkoulas, 1997), pp. 355–56. See also Hatzis, ‘The short-lived influence’, pp. 255–61. Some commentators have seen the failure of the introduction of the French Code civil as a failure of liberal ideas to take root in Greek political culture. See, for example, Th. K. Papachristou, ‘Ο γαλλικός αστικός κώδικας στην Ελλάδα’, Νόμος, 3 (1991), pp. 133–40; Chr. G. Dimakopoulos, ‘Η Νομική επιτροπή του 1835: Σύσταση, αποστολή, έργο’, Μνημοσύνη, 12 (1993), pp. 125–44; see also K. Lappas, ‘Πανεπιστήμιο Αθηνών: Θεσμοί και οργάνωση, ιδεολογική λειτουργία’, in Panagiotopoulos, Ιστορία, vol. IV, pp. 151–60 (pp. 152–55) and Hatzis, ‘The short-lived influence’, p. 261. Socrates Petmezas has also inserted a geographical dimension to the division between liberals and romantics/phanariots (those who came from Constantinople and who drew their experience from Ottoman administration). Although during the 1850s some liberal professors did in fact use this designation for their rivals within the university, for the period under question it seems excessive. See S. Petmezas, ‘From privileged outcasts’, pp. 126–29; C. Argyriadis-Kervegan, ‘Byzantine law as practice and as history’, in D. Ricks and P. Magdalino (eds.), Byzantium and the modern Greek identity (Aldershot: Ashgate, 1998), pp. 35–47; Alivizatos, Το σύνταγμα, pp. 135–45.

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legal circles, but most liberals, even the most ardent admirers of French jurisprudence, were reluctant to adopt the Code civil uncritically. As A. Polyzoidis, a liberal member of the Legislative Committee of 1835 and advocate of French legislation, had argued even as early as 1824, instead of an unthinking and exact transfer of foreign political models, what Greeks had to do was to ‘imitate and transfer within our own polity what is transferable, imitable and implementable’.63 The supposedly French-influenced Legislative Committee took a similar line in its first report on the Civil Code after the publication of the royal decree. It argued that local customs and habits should be taken into consideration. The redaction and editing of customs would be assigned to judges. This was a clear indication of two things: firstly, that justice should have a direct legislative dimension, with the judge becoming a potential lawmaker – in what became in the later twentieth century a dream of liberal jurisprudence (and, in the case of Greece, a ‘paradise lost’64); and secondly, that for the appointed drafters of the Civil Code, imitation of a foreign model was not the best way to proceed in undertaking legal reforms.

Challenging Universalism through History, or Introducing Roman Law Scholarship It was in the aftermath of these initial reactions that the jurists intervened in the public sphere.65 The younger ones among them took issue with both the Byzantine legal tradition and more crucially with the advocates of the Code civil. Their stance was certainly related to the difficulties they had encountered in everyday legal practice as lawyers and judges.66 These had also been officially acknowledged in 1835 by the minister of justice, Georgios Praidis, who had proposed the translation and introduction of the French law of 63 64 65

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An. Polyzoidis, Προσωρινόν πολίτευμα της Ελλάδος (Messolonghi: Typois kai Analomasi D. Mestheneos, 1824), p. iv. Alivizatos, Το σύνταγμα, p. 140. During 1836–37, a translation of the Code civil was published. The ‘Code of Nationality’, modelled on the French equivalent, had been promulgated, while the royal authorities had ordered the Legislative Committee to model the Civil Code as closely as possible upon the Code civil. See Hatzis, ‘The short-lived influence’, p. 256. Hatzis has also argued that ‘the very fact that the drafting of a Code was considered necessary was an indication of the influence of French legal theory’ (p. 260). Additionally, as he noted, from the 1850s onwards this influence was overtaken by that of German legal theory. This leaves unexplained the fact that legislative committees were set up to draft a Civil Code and that it was mainly German-educated professors who participated. In practice, courts were using at times Armenopoulos’ compendium, other Byzantine sources, French law, Roman law (as this was made known through scholarship) and also customary law. Argyriadis-Kervegan, ‘Byzantine law’, pp. 37–39.

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contracts in order to address a yawning gap in the Exavivlos.67 Yet the series of articles, pamphlets and books published by the jurists reveal that beneath practical considerations lay new ways of thinking about law. To see these publications as an indication that political Romanticism was taking over from liberalism as the hegemonic political ideology in Greek society, as some scholars have claimed, would seem to be missing the point.68 The same goes for seeing them as indicative of a conservative turn and the jurists as the spokesmen of this turn (one that is usually rather abstractly defined). In fact, if there was one trait that the jurists appeared to have in common it was that they were all ardent reformers. But, as this does not make them conservatives, it also does not in itself make them in any way exceptional or radical liberals either (as other theoretical approaches would have us believe).69 In essence, and as we shall see in the remainder of this book, they were moderate liberals who were very much concerned with state-building and the development of institutions.70 And indeed, nationalism was a key factor in their legal project. In fact, from this point onwards, the principal questions for them concerning legal codification were bound up with giving expression to the national will, and with finding a balance between cultural particularity and cosmopolitanism. By so doing, they did also indirectly at least raise questions about sovereignty: where it was located and how it was exercised. That is not to say that their criticisms had anti-monarchical overtones. Yet it was the first challenge of its kind mounted by those known to Greek historiography as ‘Westernised elites’ who, as one would expect, were supposed to rally to and reinforce state policies. Apart from the importance of the issue per se, this debate also offered the jurists the opportunity to address wider public issues in their capacity as legal experts, thus introducing a characteristic to Greek intellectual life that would have significant repercussions in subsequent years. 67 68 69 70

K. Pitsakis, ‘Καλλιγάς και Αρμενόπουλος: μια σχέση έρωτα και μίσους’, Τα Ιστορικά, 27 (1997), pp. 259–97 (p. 273). A classic book for the period is A. Politis, Τα ρομαντικά χρόνια, 1830–1880 (Athens: ΕΜΝΕΜnimon, 1980). For example, the chapter entitled ‘A liberal who came too early’ in M. Masson-Vincourt, Ο Παύλος Καλλιγάς και η ίδρυση του ελληνικού κράτους (Athens: MIET, 2009), pp. 711–18. Scholars and in particular Constantine Dimaras do in fact see the jurists as being among those intellectuals who, compared to others, held on to what he calls Enlightenment principles (by which he means liberal). Although Dimaras takes the jurists to be scholars rather than intellectuals (with the distinction being somewhat vague), he also argues that their liberalism was on the retreat, not least because they were outnumbered by the ‘romantic nationalists’ – mainly novelists, poets, historians etc. Apart from the problematic distinction between liberals and romantics, what is also not clear in such accounts is why these romantics were more relevant to, and more representative of, what they called the national collective consciousness; see Dimaras, ‘Ιδεολογική υποδομή’, p. 472–76.

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But what was the wider importance of the debate? Conventionally, we suppose that liberal criticisms serve to place checks on power. Although this was an integral part of the liberal critique, at this juncture the jurists tended to argue for a more controlled and gradual transformation in legal affairs, while being at the same time very sympathetic to the accumulation of state power. The reason was that their programmes were based on a strong association between state and nation. This led to the jurists shifting the basis for the legitimation of state power: in place of the rightful claims of the princely dynasty, usually translated into a paternalist bond between ruler and subject, they put the interests of the nation, which they rendered in terms of a programme of ‘national regeneration’. In other words, in the jurists’ understanding – and this was a major difference with the Bavarian understanding of the term – ‘regeneration’ was very similar to what French revolutionaries such as Sieyès had called ‘adunation’. As Pierre Rosanvallon has argued, this term designated a process that would forge national unity, so as to allow the members of the nation to forget their differences and see each other as one.71 Hence the extreme importance revolutionary authorities in France accorded to erasing the former administrative, geographical (provincial, regional) distinctions. In the same way, jurists in Greece emphasised the role of reforms in forging national unity and in taming centrifugal forces. For this project to take hold, reforms in administration, as well as in civil law and in particular in contractual relationships, property rights, family and inheritance law, were crucial. This is why, although the jurists initially agreed with legal reforms and the territorial politics of the Bavarians, they gradually came to challenge them. And the Civil Code was the trigger. One reason for this change of tone was disappointment at the monarchy’s failure to deliver the promised reforms.72 Yet behind this disappointment lay strong ideological differences. For, according to the jurists, the administrative politics of the Bavarians – and the territorialisation it produced – was giving rise to the tangible differences that actually existed among people from different localities. In so doing, the Bavarians were undermining the prospect of national unity. This is where, at least initially, the significance of Roman law scholarship lay, as it offered, according to the jurists, a consistent and methodologically systematic tool with which to ‘produce’ Greece’s legal and political transformation. And this is why they introduced a strand of legal thought 71 72

P. Rosanvallon, Democracy: past and future, edited by Samuel Moyn (New York: Columbia University Press, 2006), pp. 86–97. Kostis, Τα ‘κακομαθημένα’, pp. 204–12.

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that was to dominate nineteenth-century Greek legal science.73 Historians of modern Greece have discussed this dominance in two ways, which correspond to two different narratives about the course of modern Greek history, to two different disciplinary priorities and to two successive periods in Greek historiography. First came the lawyers and legal historians. Writing in the aftermath of World War II, these scholars explained this ‘German’ influence in terms of foreign domination (the role of the Bavarians here is of course crucial), which ever since the foundation of the Greek state had been distorting, or so they contended, the organic harmony of the democratic customs of the Greek communities.74 In what is still a highly influential view, Roman law was condemned for its anti-national character, but also for the materialistic, commercial and individualistic values it fostered.75 Later on, political scientists and historians offered a somewhat different explanation. Influenced by ‘modernisation’ theories and constructivist theories of nationalism, this current was highly sceptical about the continuity of the Greek nation, and the democratic character of the pre-independence communities. It also saw the Greek Revolution and the establishment of the Greek state as radical breaks, which had set the country on the path to modernity, progress and Westernisation. Compared, however, to a putative European model, the Greek state was deemed backward and underdeveloped. This gave rise to a clash between conservative forces (i.e. traditional nationalist elites that forged Greek irredentism) and progressive/moderate forces (i.e. the modernising, Western-educated liberal intellectuals and professors). Because of its veneration of the past and its role in ensuring the non-adoption of a Civil Code – a ‘symbol’, by definition, of progress – Romanist jurisprudence belonged on the conservative side of the equation.76 Paradoxically, however, some of the most 73 74

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Hatzis, ‘The short-lived influence’. Nikolaos Pantazopoulos, who was elected in 1953 to the Chair of Roman and Greek law at the University of Thessaloniki, played a key role here. Although up to the 1950s Greek law was seen as a part of the greater Roman legal corpus, Pantazopoulos and his disciples attempted to reformulate the history of Greek law. The literature on civil law is voluminous, but it is mainly based on the original arguments by Pantazopoulos, first published in 1947. See the essays in N. Pantazopoulos, Νεολληνικό κράτος και ευρωπαϊκή ταυτότητα: Ο καταλυτικός ρόλος των Βαυαρών (Athens: Parousia, 1998). P. Petridis and E. Prontzas (eds.), Δίκαιο, ιστορία και θεσμοί: Τιμητικός τόμος αφιερωμένος στο Νικόλαο Πανταζόπουλο (Thessaloniki: University Studio Press, 2000). Interestingly, these arguments were adopted by scholars who have studied the case of Greece from a post-colonial perspective: see St. Gourgouris, Dream nation: Enlightenment, colonization and the institution of modern Greece (Stanford, CA: Stanford University Press, 1996), pp. 53–64. For a criticism, see Tsapogas, ‘H ανανέωση του δικαίου’, pp. 52–63. N. Mouzelis, Modern Greece: Facets of underdevelopment (New York: Holmes and Meier, 1978); C. Tsoukalas (1981), Κοινωνική ανάπτυξη και κράτος. Η συγκρότηση του δημόσιου χώρου

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authoritative Romanist scholars were treated as liberals and modernisers par excellence. Even though these approaches have come to rather different conclusions, they do have much in common. First of all, they have both highlighted the importance of the study of political and legal institutions. Secondly, in place of a linear, smooth and triumphalist national narrative, they have both perceived the establishment of the Greek state as a radical rupture that had repercussions for and created tensions within Greek society. Thirdly and most importantly, they have both been narratives of failure, driven by a concern to explain the tensions within Greek society and the allegedly authoritarian course of modern Greek history. But neither succeeded in producing a clear assessment of the broader status of Romanist jurisprudence in nineteenth-century Europe, in delving into its more recondite meanings and political implications, or in elucidating the reasons why the jurists themselves chose to endorse it. Indeed, this turn to Roman law scholarship was hardly exceptional in the nineteenth century. In fact, the contrary was the case. But why was this so? What lay behind the renaissance of Roman law scholarship in the nineteenth century? Although the political implications of Romanist jurisprudence were rather complicated – and will be discussed in more detail in the next chapter – historians seem to agree on what it stood for as a theory of law. Indeed, for jurists all over the world at the time, Romanist jurisprudence, as it had been refined by Friedrich Carl von Savigny – its leading figure – and his disciples in the early part of the century, offered a historically informed and sound method for thinking about law and for law-making.77 And more importantly, its point of departure was that law and its principles should reflect the Volksgeist. Savigny had an intellectual understanding of the relationship between the two, the historical origins of which lie in Roman law – that ‘reason on paper’ (ratio scripta) based on the highly abstract ideas of right and freedom of human will, a sign also of civilised nations. At the same time his vision was positivist, in that it sought to offer solutions to contemporary problems, in particular in private law.78 This was evidenced, by and large, in the ‘battle over

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στην Ελλάδα (Athens: Themelio, 1981); N. Diamandouros, Πολιτιστικός δυϊσμός και πολιτική αλλαγή στην Ελλάδα της μεταπολίτευσης (Athens: Alexandreia, 2000). For a criticism, see the Introduction in A. Triandafyllidou, R. Gropas and H. Kouki (eds.), The Greek crisis and European modernity (London: Palgrave, 2013), pp. 1–25. P. Stein, Roman law in European history (Cambridge, UK: Cambridge University Press, 1999), pp.  115–21; and J. Q. Whitman, The legacy of Roman law in the German romantic era: Historical vision and legal change (Princeton, NJ: Princeton University Press, 1990), pp. 3–40. M. Reimann, ‘Nineteenth-century German legal science’, Boston College Law Review, 31/4 (1990), pp. 893–97 (p. 847).

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codification’ (the Kodifikationsstreit) that ensued after Anton Thibaut, a law professor at Heidelberg, proposed in 1814 the immediate codification of law along the lines of the Code civil.79 Savigny’s response to this challenge exerted an enormous influence on the development of German legal studies and on the theory of codification. Arguing that law was bound by time and place, Savigny criticised those who called for codification in 1814–1815 for making the same mistake as eighteenth-century advocates of natural codes: they exaggerated the potential of legislation as a source of law.80 Without rejecting codification as such, and though searching for a set of systematically organised basic legal principles that would respect local peculiarities, Savigny and his disciples turned to historical studies and in particular the learned Roman law, which they saw as the source of the European legal tradition (German law being a part of it). This historical legal science (geschichtliche Rechstwissenschaft) required the laborious collection and study of legal sources and material in order to do justice to local variations.81 In this understanding, Roman law was viewed as supranational law, which could no more be considered an exclusive national possession than could religion or literature.82 And in fact, the most prestigious years of Roman law were those that had precipitated the Justinian codification. During this ‘classical period of Roman law’, according to a formulation advanced by Edward Gibbon, the jurists enjoyed huge prestige and steered the development of law. In the following years, the Pandect scholarship – as the nineteenth-century German historical approach to Roman law texts came to be called – became the leading model for thinking about law, method and law-making all over the world. Its prestige and 79

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In fact, the debate and its influence were global. For continental Europe, see Robinson et al., European legal history, pp. 261–75; R. Zimmermann, Roman law, contemporary law, European law: The civilian tradition today, Clarendon Law Lectures (Oxford: Oxford University Press, 2001), pp. 1–49. For its influence on English legal thought even if only by way of contrast, see M. Lobban, ‘The varieties of legal history’, Clio@Themis: Revue electronique d’histoire du droit, 5 (2012), pp. 1–29 (pp. 4–8). For the British colonial context, see S. den Otten, ‘“A legislating empire”: Victorian political theorists, codes of law, and empire’, in D. Bell (ed.), Victorian visions of global order: Empire and international relations in nineteenth-century political thought (Cambridge, UK: Cambridge University Press, 2007), pp. 89–112 (pp. 94–95). For the USA, see M. F. Hoeflich, ‘Savigny and his Anglo-American disciples’, American Journal of Comparative Law, 37 (1989), pp. 17–37. For a general overview of the discussion on the Civil Code and the impact of the Historical School, see R. C. Caenegem, European law in the past and the present: Unity and diversity over two millennia (Cambridge, UK: Cambridge University Press, 2002), pp. 90–103, 134–43. See also Chapter 2. F. C. von Savigny, ‘Vom Berufunserer Zeit fur Gesetzebung und Rechtswisseschaft’, in Hans Hattenhaurer (ed.), Thibaut und Savigny: Ihre programmatischen Schriften (Munich: Franz Vahlen, 2002), pp. 95–192. Stein, Roman law, pp. 115–21. Ibid., pp. 115–18.

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that of its guardians – the law professors – exceeded the bounds of the German-speaking world and came to include even places where law had been formed according to rival models.83 In responding to the attempts of the royal authorities to draft a civil code in the late 1830s, Greek civil lawyers drew extensively upon the Historical School and on analogous doctrinal battles elsewhere. By so doing, they gradually came to see the development of law as a slow process of accumulation of manners and customs, refined by juridical reasoning. Indeed, conforming to the standards set by Savigny and his disciples, the Greek jurists were not only engaged in the development of Roman law scholarship, they also attempted to implement a legal method, a way of proceeding in legal scholarship. By doing so, they also claimed a different and more active role for their profession. This was the beginning of the turn of Greek legal thought towards Romanist jurisprudence – one that was to have a long life. Although, as we shall see in more detail in Chapter 2, the historical method was elaborated much more thoroughly in the years to come, gradually turning into an alternative and moderate oppositional discourse vying with that of the Bavarians, at this stage the civil lawyers’ criticisms were more scholarly and theoretical. Their main question was whether it might in fact be possible to legislate without taking into account the historical context. The jurists first took issue with Byzantine law – a corpus of laws that was also close to ecclesiastical law. They realised its importance for legal security as it was the only existing and effective law. Yet, even when tolerated, Byzantine jurisprudence was disparaged as a product of a corrupt empire, which in some cases was identified with the Greek Middle Ages. This also explains why Byzantine legal tradition was not a major concern for the jurists. The French Code civil posed more difficult problems, as it was highly respected within legal circles. Even when it was dismissed, it was viewed as a distortion stemming from Napoleonic times and not to be confused with the great French legal and philosophical tradition. The arguments opposing French law coincided with images of Greece as an immature child within the European family. In essence, for the jurists, Greece, while not barbaric or oriental, was reckoned to be not yet of an age to claim full membership of ‘European’ civilisation. Criticising the ahistorical claims of natural lawyers, liberal nationalists, such as Pavlos Kalligas and Markos Renieris, asked whether it was possible to legislate without taking into account the historical context. 83

Reimann, ‘Nineteenth-century German’, p. 838. See also Whitman, The legacy, pp. 3–40.

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The first to take issue with the proposal to adopt the French Code was indeed Markos Renieris. Renieris had been born and raised in Trieste, where his family had moved after the outbreak of the Greek Revolution (from Constantinople). He studied in Padua and then moved to Greece in 1835, where he became in turn a lawyer, a judge, a professor at the law school, as well as vice-governor and later governor of the Bank of Greece. Renieris also held public office, becoming an ambassador of Greece to the Ottoman Empire in 1861, while he had from early on a very active public presence. He established and directed the Spectateur de L’Orient, a Frenchlanguage journal; helped to establish and presided over the Greek Red Cross Society; and in 1866 presided over the Commission of the Cretans, which aimed at the unification of Crete with Greece. It was in 1837 that Renieris made his first public contribution in a series of articles on the Civil Code, arguing that the translation process should be selective.84 He opposed the implementation in Greece of ‘French law’, which he perceived as a collection of artificial rules that were foreign to the Greek nation and its essential Roman law tradition. For Renieris, reiterating arguments made earlier by Adamantios Korais, Hellas by ‘her nature and her history’ was part of the West. The nation, he further said, had made this choice during the revolutionary period by translating ‘into the language of Demosthenes the liberal principles of the French Assembly’.85 Yet for Renieris, the French legislation of the era of Napoleon was not compatible with European civilisation and liberal principles. Core elements of European civilisation was Roman law and statecraft, which were also a part of Greek civilisation: ‘the Roman law had been grafted into the Greek civilisation, became a part of it and of the popular customs, and was salvaged, along with the Church, from the shipwreck’ (i.e. the fall of the Eastern Roman Empire).86 As for those few adherents of Byzantine ideas, their cause was deemed hopeless. It deserves to be mentioned here that Renieris’ work, as well as that of other scholars writing in this vein, was instrumental in the formation of a philosophy of history, the most appropriate term for which would be ‘institutional historicism’. In trying 84

85 86

M. Renieris, ‘Περί του ρωμαϊκού δικαίου’, Εφημερίς Νομική, 6 (1837), pp. 49–50; M. Renieris, ‘Περί του νόμου της ανθρωπότητας’, Ευρωπαικός Ερανιστής, 2 (1840), pp. 317–27; M. Renieris, ‘Τι είναι η Ελλάς? Ανατολή ή δύση?’, Ερανιστής, 15 (1842), pp. 187–213; M. Renieris ‘Περί της σχέσεως λόγου και πίστεως’, Ερανιστής, 16 (1842), pp. 693–704. Renieris, ‘Τι είναι η Ελλάς?’, p. 212. Renieris, ‘Περί του ρωμαϊκού δικαίου’, pp. 49–50 and Renieris, ‘Περί του νόμου της ανθρωπότητας’, p. 320. Generally, he did not change his opinion about the nature of Roman law in subsequent works.

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to answer the question of how and why the historical continuity of the Greek nation was made possible under Ottoman rule and of proving that Greece was part of European civilisation, scholars had turned (even before the Greek Revolution had actually broken out) to the institutions through which Greeks across the Mediterranean and beyond had formed a distinct socio-political entity. Some had focused on the Orthodox Church, the educational system and especially the schools, or on the armed groups and their organisational forms. Others, such as Renieris, turned to law and to the local or communal administrative systems. In 1839, Pavlos Kalligas contributed to the debate, but in a manner much more critical of the past and forward looking.87 Kalligas was born in Smyrna into a merchant family. After an impressive educational itinerary that took him in turn to Trieste, Geneva, Munich, Berlin (where he attended Savigny’s lectures) and Heidelberg, he went to Greece, where he initially practised law before being appointed a judge, and then a professor of law at the university. In time he would be so highly respected within legal circles (of his time and after) that he would come to take the unofficial title of the ‘doyen of civil law’ in Greece. Kalligas would also in the 1850s become minister (of justice) and later on a member of the parliament. Notwithstanding his young age when the question of the Civil Code was tackled, Kalligas was already a member of the Legislative Committee for the Civil Code. He addressed the issue in two separate pamphlets.88 From his first sentence he makes a direct connection between national sovereignty and the right to legal formation: ‘Whoever denies a nation the right to constitute itself, denies that nation its right to be sovereign. It is only when the nation is not dominated by foreign legislation that it can lay claims to self-ownership.’89 But at that stage, so he argues, the nation lacks not only the institutions through which to transfer this kind of power, but also legislators equipped for such a task: ‘In Greece every year they say to us: your Code is almost ready, and they have never asked us, if we are ready […] Where are the treatises on law? Where are the teachers of law and their pupils?’90 For Kalligas, while cultured nations – those ‘of old age 87

88 89 90

Pavlos Kalligas had made his first intervention in Greek public affairs in 1837 after the publication of a law that prohibited writing against the king and royal power. Kalligas saw the statute as a potential imposition of severe and dangerous censorship and strongly defended the freedom of the press. See P. Kalligas, ‘Η Νεαρά, περί εξυβρίσεως εν γένει και περί τύπου’ (1837), in Kalligas, Μελέται νομικαί, vol. I, pp. 158–71 (p. 158). See also Alivizatos, Το σύνταγμα, p. 80. P. Kalligas, ‘Περί συντάξεως πολιτικού κώδικος εις την Ελλάδα’ (1839), in Kalligas, Μελέται νομικαί, vol. Ι, pp. 443–63 (p. 443). Ibid., p. 443. Ibid., pp. 448–49.

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in civilized life’ – have been preoccupied with legal transformations and the advancement of legal scholarship for centuries, for Greece this was the first century of its legal life.91 Imitating and copying the French Code, a practical achievement of a great nation, would undermine the Greek nation’s potential for self-constitution. Kalligas emphasised that the only European countries to have succeeded in promulgating civil codes were those in which Roman law had been studied by scholars over the course of centuries. Indeed, the ‘civilised’ nations of Europe could offer guidelines on how to proceed in this process.92 To support his argument, he depicted the nation as a young student: Roman law will be of use to us as a school, as preparatory class, through the French law we give away our capacity to obtain national legislation, or in other words we become legally castrated. […] how is it possible to have French legislation without blind submission to [the] education produced there? […] But if we want to get rid of Roman law now, in order to form our own, while we are not conscious of ourselves, our endeavour will be like the anarchic spirit of young students, who want to get rid of the teacher in order to proceed to all kinds of mischievous actions.93

For Kalligas, only by synthesising Roman law and local conditions would the nation be able to proceed in the codification of civil law and produce the necessary legal forms that, above all else, had to be ‘Greek’ in essence.94 Only then would the Civil Code reflect the spirit of the national body politic for which it was drafted. While Kalligas admired classical Roman law, he was full of scorn for Byzantine law and for the Byzantine Empire, which he identified as a ‘decomposed body’. In his view, the preference occasionally shown for Byzantine law was an error, originating perhaps from the idea that modern Greece ought to replace the Byzantine Empire.95 All in all, these jurists argued that in order to gain access to the ‘standard’ of European civilisation, the Greek nation should eschew explicit reliance on universalistic and normative frameworks such as natural law 91 92

93 94 95

Ibid., p. 448. He identified these with France, Prussia, Austria and Bavaria. Sweden and England, although highly esteemed, were characterised by a legal system that resembled a ‘labyrinth’: Kalligas, ‘Περί συντάξεως πολιτικού κώδικος’, p. 446. Ibid., pp. 451–52. For an analogous image, see the Introduction by P. Argyropoulos in Makarel, Στοιχεία, pp. 18–19. Kalligas, ‘Περί συντάξεως πολιτικού κώδικος’, pp. 445–45, 449. ‘What is it that they envied in the history of Byzantium, in this sad amassing of crimes and profane acts, where murder sits on the throne and disease forms political art, what is that they envied, I say, in the humiliation of the heroic glory of resurrected Greece before that decomposed body. Let the dead bury the dead’: Kalligas, ‘Περί συντάξεως πολιτικού κώδικος’, p. 447.

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and codes that reflect a different scale of civilisation. Most of their arguments were based on the assumption that institutional patterns were not of universal applicability but had to conform to the nature, character and history of a nation or state. Yet that is not to say that they believed in particularistic legal systems based on local customary law, nor that the process of translation and legal transfers should be drastically curtailed. Although they appealed to popular ideas of national identity, they did not dismiss codification in favour of customs or pure national law. For the jurists, law was indeed a product of history and should reflect the spirit of the Greek national community. But its source and guiding principles lay in a common legal language that bounded the socio-geographical space identified as Europe.96 That common language was Roman law. What is more, in this view of law as a gradual process, liberal institutions were seen as a vehicle for the diffusion of civic virtues.97 It is important to note that the scholars mentioned issued a kind of ‘call to arms’ to their colleagues and in general to the educated elite. Their overall message was that intellectual elites and pedagogic institutions would have to rise to the task, educate the body politic and gradually incorporate Greece within the European family of nations. What is more, this was a different ‘Europe’ from that of the Bavarians. It was the ‘Europe’ of European liberals, the Kulturnationen – a space defined by Christian states, which, no matter what their cultural differences may have been, shared a number of liberal norms and values.98 Even if modern Greek intellectual historiography often tends to treat men of letters as heroic figures, the development of legal discourse and by the same token the development of a novel understanding of ‘Europe’ were a much more collective enterprise than scholars have hitherto appreciated.

Consolidating the Historical School of Law: The ‘German’ Edward Gibbon From 1838 onwards, the jurists’ interventions and translation initiatives took on a far more cohesive and engaged form. One could argue that the foundations of a cultural and political programme were laid in this early period. At the heart of this programme – which was also enhanced by the 96

97 98

R. Lessafer, European legal history: A cultural and political perspective (Cambridge, UK: Cambridge University Press, 2009), pp. 466–69; C. Schmitt, ‘The plight of European jurisprudence’, Telos, 83 (1944), pp. 35–70 (p. 65); Zimmermann, Roman law, pp. 6–11; Caenegem, European law, pp. 90–103. Makarel, Στοιχεία, p. 16, and Kalligas, ‘Περί συντάξεως πολιτικού κώδικος’, pp. 440–42. Osterhammel, The transformation, pp. 87–88.

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foundation of the University of Athens and its law school (1837), where many jurists lectured either as professors or as Υφηγητές (tutors)– lay the historical method in the study of law and the revival of Roman law scholarship. As Chapter 2 will demonstrate, in the years ahead this kind of legal reasoning would come to dominate Greek civil jurisprudence. The key moment in the introduction of Roman law scholarship into Greek jurisprudence is considered to be the translation, in 1838, of Ferdinand Mackeldey’s Handbook of Roman Law by Georgios Rallis and Marκos Renieris. Up to that point, the most important legal publications by the jurists were again works on Roman law: Emmanouil Kokkinos’ doctoral dissertation on the Roman Twelve Tables, published in 1836, and the translation, by Georgios Rallis, of the work on Theophile Antikinsor, a Byzantine jurist of Roman law who had written an authoritative book on Justinian’s Institutes.99 Yet it was Mackeldey’s book that proved crucial, and this for two reasons. First of all, it became the first handbook of Roman law in a long while to be used by scholars and law students.100 Secondly, it served practitioners and judges, since the two translators incorporated into the treatise excerpts from sources of Roman law written in Greek and essentially taken from Byzantine sources like the Basilica or Armenopoulos. Their aim was to prove that Byzantine legal sources were simply part of the greater tradition of Roman law. In that way, they tried to overcome the tensions between Byzantine jurisprudence, which was still in force in several parts of Greece but was rather underdeveloped theoretically, and the latest refinements in European legal theory.101 It was also a way of dealing with the arguments of rival advocates of legal codification, for whom the lack of a single and practical source of law was the main reason behind the complicated and fragmented state of everyday legal practice. From the perspective of legal method, the most comprehensive attempt was made in 1840 with the translation by Emile Herzog and Petros 99

100 101

Th. Antikinsor, Τα ινστιτούτα (Athens: Typ. K. Ralli, 1836). In the Prologue, Rallis explains his decision to translate Theofilos as an attempt to close the gap between Greece and the ‘enlightened’ nations of Europe regarding Roman law scholarship. Em. Kokkinos, Δοκίμιον ακαδημαϊκής διατριβής περί της επιρροής επί της ρωμαϊκής δωδεκαδέλτου (Heidelberg: I. K. B. Morio, 1836). Kokkinos was born in Chios and moved to Trieste after his father and brother had been executed by the Ottomans during the massacre of Chios. He then attended courses at the universities of Munich, Göttingen and Heidelberg, where he was awarded his doctorate. After coming to Greece in 1839 he became a lawyer and then professor at the law school. He was also elected to the Hellenic parliament in 1861, and then to the National Assembly, while from the 1860s onwards he served repeatedly as counsellor of the Greek government. The next complete and multivolume treatise of Roman law was published nine years later by Pavlos Kalligas. Tsapogas, ‘Η ανακαίνιση του δικαίου’, p. 54; Troianos and Karakosta, Ιστορία του δικαίου, p. 355.

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Papparigopoulos of Edward Gibbon’s chapter on Roman law.102 Herzog was a Prussian jurist who had accompanied Otto to Greece, and who later became professor of Roman law at the university, but was dismissed after the constitutional change of 1844. Compared to Herzog, Papparigopoulos was a more typical case of a scholar at the law school. He was born in 1817 in Constantinople and had spent his youth in Odessa, where his family fled after the outbreak of the Greek Revolution. After studying in Munich and Heidelberg, he moved to Athens, where he became a lawyer, and then pursued an impressive career both at the law school of the university and in the Judiciary. As we will see later on, as a member of the Legislative Committees he played a key role in the formation of civil law in Greece. In fact, Papparigopoulos’ contributions to Roman law scholarship started during these early years.103 The Gibbon translation was the first to introduce coherently the concept of the essential historicity of law and thereby functioned as an exemplification of the historical legal method. The two professors actually translated Gibbon through the German translation of his work by Gustav Hugo, German professor of law in Göttingen. Gibbon, Gustav Hugo argued, by delineating the development of Roman law in epochs, of which the middle, or classical, was the most important, had abandoned the prevalent antiquarian method of describing law. Instead, he favoured Montesquieu’s method, in which legal institutions were seen in relation to the actual conditions of society. Hugo was well aware of the programmatic aspect of his translation; for the first time, he argued, Montesquieu’s examination of the spirit of the laws had been applied in a contextual manner to a comprehensive material source, namely Roman law, thus advancing awareness of its historical dimension.104 In translating Gibbon through Hugo, Herzog and Papparigopoulos had two objectives. In the first place, they were attempting to translate a form of argument – a form of thinking about law – into historical terms. This historical concern went beyond legal studies, and the 102

103

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E. Gibbon, Ιστορίας της παρακμής και πτώσεως του Ρωμαϊκού κράτους, κεφάλαιον ΜΔ, περιέχον την Ιστορίαν του Ρωμαϊκού Δικαίου ω προσετέθησαν αι σημαιώσεις του Ούγωνος, Βαρνκοινίγου και τινες των μεταφραστών Αιμιλίου Έρτσογ και Πέτρου Παπαρρηγοπούλου (Athens: Filolaou Typografias, 1840). At the time, both translators were teaching courses related to Roman law at the university. P. Paparrigopoulos, Δοκίμιον περί της επιρροής της τύχης εις τα συναλλάγματα κατά το ρωμαϊκόν και βυζαντινόν δίκαιον (Athens: Typ. K. Ralli, 1839); P. Paparrigopoulos, Εισαγωγικός λόγος εις το μάθημα της ‘Περί της σπουδής της ιστορίας του ρωμαϊκού δικαίου’ (Athens, 1840). S. Katz (ed.), The Oxford international encyclopedia of legal history, 6 vols (Oxford: Oxford University Press, 2009), vol. V, pp. 158–59.

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jurists themselves were involved in several attempts in the early 1840s to encourage historical thinking and scholarship. This recommendation was not based on an interest in the past as such, but on an interest in the future and on a historically informed building of institutions.105 In the second place, they also tried to transmit a preference for the classical period of Roman law (second century AD). During this period, the main agency of legal development was not legislation but debate among jurists. They were the ones with the authority to offer opinions on legal disputes and, ultimately, were vested with the responsibility for making laws.106 By turning to such authoritative works of the Historical School, the jurists’ aim was to develop thoroughly this scholarly tradition and to construct gradually and through Roman scholarship a consistent, rational law that would reject formal abstractions and take into account local/national peculiarities and aspirations. For a young nation like Greece, this process presupposed the experience of rational and free institutions and the study of the country’s past. The end point would be a proper codification for the emerging nation. In this process the role of the jurist was deemed vital and was not confined to disciplinary restraints. Indeed, one could argue that the vision of the moral role of the jurists expressed through Gibbon was the doctrinal equivalent of the process that the Civil Code debate had instigated.

Intellectual and Political Implications of Legal Discourse The public interventions of the jurists and their subsequent scholarly preoccupations had two wider implications. First of all, by ‘speaking out’ they could lay claim to a wider public role as legal scholars, gradually transforming themselves into intellectuals in the cultural sense.107 105

106 107

Georgios Rallis, in his lecture as a rector of the University in 1841, argued that university research and teaching should focus on the three pillars: ‘Mathematics, Greek philosophy and general European history’: G. Rallis, Διατριβή υπό Γ. Α. Ράλλη, Πρύτανη του Πανεπιστημίου Αθηνών, κατά την ανάληψιν των καθηκόντων του (Athens: Ethniko Typografeio, 1842), pp. 6–9. At the same time, Renieris’ Philosophy of History in 1841 marked the reception of novel ideas of history with a special emphasis on the ideas of Giambattista Vico: M. Renieris, Φιλοσοφία της ιστορίας. Δοκίμιον (Athens: Filolaou Typografias, 1841). In 1842, Pavlos Kalligas, by translating Leopold von Ranke’s Die Venezianer in Morea 1685–1715, sought to relate the Venetian administrative reforms to the contemporary situation in Greece: see P. Kalligas, ‘Η βενετική εξουσία στην Πελοπόννησο, 1685–1715’, Πανδώρα, XII (1842), in Kalligas, Μελέται νομικαί, vol. II, pp. 58–139. He also repeatedly called for the writing of the history of Greece from the Ottoman period onwards, as a means towards self-knowledge: see Masson–Vincourt, Ο Παύλος Καλλιγάς, pp. 266–71. Stein, Roman law, p. 116. Οn this I am following the formulations in S. Collini, Absent minds: Intellectuals in Britain (Oxford: Oxford University Press, 2005), pp. 45–68.

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This role would be expanded more actively in subsequent years, but the foundations were laid in this critical period. Characteristically, in 1842 Pavlos Kalligas published another pamphlet, this time anonymously, which is well known in Greek intellectual and political historiography.108 In this publication, Kalligas addressed political issues directly. He praised the role played by the enlightened Greeks of the Diaspora, such as Rigas Feraios and Adamantios Korais, in introducing liberal and republican concepts and ideals from Europe and especially from France. At the same time, he argued that these transfers would prove a dead letter if the intellect of the body politic, for which they were made, was not cultivated enough for their reception.109 More importantly and in strongly moralising tones, he urged his fellow citizens and the nation to stop being involved politically through political parties and to move on, so as to gain knowledge of the collective self of the ‘multitude’ (‘του πλήθους’).110 The nation, according to Kalligas, must set priorities, the first of which was to be industrious and develop its own economic and commercial capacities.111 Underneath his attack on party politics and on any other determinations or distinctions that separated people was the threat that such alignments posed to national unity. For Kalligas, it was vital to implement a political project that would erode these differences, the most threatening of which was the attachment of most people to their localities and the local political orders. No wonder that he chose to publish in 1845 a series of articles in which he traced Greece’s problem to the fact that society was conceived ‘not according to an attachment to the nation but according to local regional bonds; the Peloponnesians, the people of central Greece, the Islanders’.112 The second implication was that by going public and by criticising the Bavarian reform agenda, the jurists were mounting an implicit challenge to monarchical rule, at least as this was being practised at that particular juncture by the king and his entourage. This had a wider political impact. The diffusion of legal discourse and the claims put forward by the jurists informed, in large measure, the constitutional and anti-absolutist claims 108 109 110 111

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P. Kalligas, Η εξάντλησις των κομμάτων, ήτοι τα ηθικά γεγονότα της εποχής μας (1842), in Kalligas, Μελέται νομικαί, vol. I, pp. 483–505. Ibid., pp. 487–88. Ibid., p. 505. Ibid., pp. 499–500; see also Masson-Vincourt, Ο Παύλος Καλλιγάς, pp. 260–61. Kalligas was also involved with the English party (since he deemed English constitutionalism to be genuine) and was related politically to the liberal statesman Alexandros Mavrokordatos (see also Chapters 5 and 6). P. Kalligas, Μελέται και λόγοι, 2 vols (Athens, 1882), vol. II, p. 503.

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that were becoming prominent in the late 1830s. In other words, there came to be formed a close relationship between the claims of the jurists and more formal modes of political discourse. Indeed, as early as 1837 the claim that law-making and administrative measures should take into account local conditions was articulated in a legal Act that the prefecture of Athens not only voted for, but also published in one of the bilingual (Greek–German) newspapers circulating at the time. According to the Act, the way out of the deadlock that had been caused by measures ‘inspired probably by ignorance of things Greek’ was the convocation of a national assembly and the publication of a constitution as a ‘means of uniting the King and the Greek people’.113 Gradually such claims gained ground in intellectual and political circles, as well as at a popular level. Early criticisms reflected the fact that old problems had persisted during the first decade of the monarchy: reforms ground to a halt, brigandage and local disorder abounded, and the standing army and police existed only on paper.114 Constitutionalism especially (which will be discussed at greater length in Chapters 4 and 5) became a widespread political slogan, used by a variety of political forces.115 As the situation deteriorated, criticism by liberals took on a more precise form, not least because for its exponents stagnation would have jeopardised the civilising process in Greece. That is not to say that they had radical claims. The arguments and slogans against kamarila (καμαρίλα) were not in any sense anti-monarchical, but turned against the Bavarian bureaucratic model and the forms of governance and the ideas that informed it.116 Thus criticism was framed – at least at the level of high politics – in terms of efficiency, rights, the rule of law, with the more vociferous objecting to the lack of deliberation and accountability. At the same time, most critics argued for the importance of taking local conditions seriously as a way out of the deadlock suffered by the reform process, and for a system of mixed government supported by intermediary 113 114 115

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‘Πράξις του Δημοτικού Συμβουλίου Αθηνών’ [Act of the Municipal Council of Athens], in Ελπίς, 27/12/1837. Kostis, Τα ‘κακομαθημένα’, pp. 204–12. For anti-absolutism, see L. Bower and G. Bolitho, Otto, King of Greece: A biography (London: Selwyn and Blount, 1939), p. 118; A. Soutsos, Η μεταβολή της 3ης Σεπτεμβρίου (Athens: Typ. Mnimosynis Ch. Nikolaidou Philaldelpheos, 1844), p. 18. For the issue of ‘constitutionalism’ as a political slogan, see I. Mavromoustakou, ‘To ελληνικό κράτος, 1833–71: Πολιτικοί θεσμοί και διοικητική οργάνωση’, in Panagiotopoulos, Ιστορία, vol. III, pp. 27–50. Mavromoustakou examined the political uses of the slogan of ‘constitutionalism’ in the context of Greece, but the question of why and how it existed in the first place is left unanswered. Petropulos, Politics and statecraft, pp. 422–34 for the opposition to the regime and especially to kamarila.

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bodies as a means to temper the exercise of royal power and to render government more efficient.117 Interestingly enough, this was also the language employed by the French prime minister, François Guizot, who took a close interest in Greek affairs in the context of his efforts to rebuild France’s position in the international arena, in a memorandum discussing Greek governmental ‘weakness’ and ‘inaction’.118 Even more importantly, such concerns were made into a specific moderate political agenda in 1841 in what has been called the ‘Mavrokordatos incident’.119 In light of fiscal problems and pressures from within Greece, but more importantly from the Great Powers – in which François Guizot played a key role – King Otto asked Alexandros Mavrokordatos, whom he had already nominated minister of foreign affairs, to preside over the Cabinet. Born in Constantinople into a Phanariot family, Mavrokordatos had come to prominence during the Revolutionary War. During Otto’s time he became leader of the English Party, which favoured a British-style constitutionalism. Mavrokordatos would become prime minister during the Crimean war – as we will see in Chapter 5 – but at this juncture, and after Otto’s invitation, he replied with a blueprint for political reforms, stating that its implementation was the precondition for his acceptance of office. This moderate proposal, which has gone down in Greek historiography as a plan to introduce a ‘mixed monarchy’ (συγκερασμένη μοναρχία), was intended to serve as a transitional plan for the establishment of a constitutional monarchy. It featured two main reform agendas: a more open political deliberation (abolition of the Ανακτοβούλιο, gradual replacement of Bavarian bureaucracy, extension of the role of the Council of State) and the establishment of a measure of accountability for Cabinet ministers, with the proviso that they would be more independent in their prosecution of state policies. Mavrokordatos’ proposal was rejected. In addition, royal authorities started opposing more strictly any discussion whatsoever of constitutional 117

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Even radicals such as Alexandros Soutsos – who was to be imprisoned later for his attacks against King Otto – called for reforms towards a temperate and constitutional parliamentary monarchy, conformable to law and accountable to the public; see Soutsos, Η μεταβολή. Francois Guizot, ‘Εγκύκλιος προς τις Μεγάλες Δυνάμεις περί του ελληνικού πολιτεύματος, 11 Μαρτίου 1841’ [Memorandum to the Great Powers on the Greek political system, 11 March 1841], in Gerozisis et al., Κείμενα, pp. 203–6. P. Argyropoulos, ‘Ο Αλέξανδρος Μαυροκορδάτος και η συνταγματική προσπάθεια του 1841’, Ελληνικά, 8 (1935), pp. 247–67; Petropulos, Politics and statecraft, pp. 344–407; Pavlos Petridis, Σύγχρονη ελληνική πολιτική ιστορία, 1821–1862: από τα δημοκρατικά πολιτεύματα στην κατάλυση της οθωνικής μοναρχίας, 2 vols (Athens: Govostis, 1994), vol. I, pp. 182–85; Kostis, Τα ‘κακομαθημένα’, pp. 192–94.

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reforms. In such an atmosphere, constitutionalism as an agenda of institutional reforms became increasingly an oppositional political language.120 Tensions came to a head in September 1843, when the National Guard of Athens petitioned the king for a constitution, claiming to express the grievances that had inspired a massive popular rally. After some hesitation, the king called for elections to the First National (Constituent) Assembly, its task being to draft a constitution. After some months, in 1844, the first constitution of the modern Greek state came into force, transforming the kingdom into a constitutional monarchy. This constitutional change has traditionally been interpreted as the first attempt after the Revolution of 1821 to constitute a liberal and democratic order. More recently, however, social historians have criticised this ‘liberal’ reading, on account of the closer attention they have paid to local politics. They have argued that the adoption of constitutional claims was the means through which the local elites attempted to take part in the exercise of political power and thus preserve their old privileges. In light of its financial and infrastructural deficiencies, the monarchical regime saw this as a chance to eliminate the oppositional potential of the local political elites by integrating them into the central political structures.121 Although this line of argument has rightly emphasised the role of power politics in nineteenth-century constitutional change, thereby undermining the conventional teleological accounts, it does not explain why the local elites chose this particular language and practice in the first place. This is all the more puzzling given that a national parliament differed from, and was not as easy to control as, the local assemblies of the notables of the Ottoman period.122 It also implies that there is an ideal path towards genuine liberal parliamentarism, to which the Greek case did not conform, treating political claims as merely instruments in the service of other motives, and constitutional and other public documents as supplying no evidence whatsoever as to why people acted as they did. But the criticisms and political proposals prior to the convocation of the Assembly and the prominent role played by moderate liberals during the drafting of the constitution tell a different story. Political historians of an earlier generation have actually pointed to the crucial role of a small 120 121 122

I. Mavromoustakou, ‘Το αίτημα “Σύνταγμα” και ο τύπος της απολυταρχίας’, Το Σύνταγμα, 20 (1994), pp. 25–45. Kostis, Τα ‘κακομαθημένα’, pp. 270–75. Even those scholars who were critical of the role of ideologies explained the introduction of universal manhood suffrage in terms of ‘the egalitarian ideology of the War of Independence, from which the constitutional claims derived their legitimacy’: Kostis, Τα ‘κακομαθημένα’, p. 279.

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group of very active Western-educated liberals.123 As J. A. Petropulos has argued, the main cleavage in the Assembly was along political lines: on the one hand the moderates, who supported a strong monarchy under a constitution, and on the other the ‘left Septembrists’ (named after their role in the revolt of September), who sought a liberal constitution with extensive powers granted to the people.124 But this political interpretation has not gone beyond that level of analysis. In fact, it is impossible to make sense of the political transformation if an analysis of power politics and the aspirations of elites are not combined with an analysis of the emerging claims about deliberation, accountability and the rule of law, and more generally of the changing perceptions of how politics should be conducted. To give but the most characteristic example of the role of the jurists and the language they had developed: at the beginning of the revolt, when the National Guard rebelled in September 1843, the revolutionaries’ first action was to file a claim legitimising their actions to the Council of State, the highest monarchical legal institution. The Council, which was composed of several jurists, subsequently published two ‘national Acts’, as its members decided to call them. With these Acts not only did the Council accept the claims of the revolutionaries for the convocation of a National Assembly and the drafting of a constitution, but in addressing the king it also claimed, in what was an altogether unprecedented move, that it was acting as representative of the Greek nation – ‘as a translator of its wishes and its needs before his majesty’.125 The juridical discourse was even more pronounced in the constitutional process itself. Indeed, from the king’s opening speech to the Assembly, the idiom of rights and the rule of law dominated, conjoined with a conception of the constitution as a contract between king and nation. To be sure, the king hoped to be seen as unilaterally granting a ­constitution to his subjects, a point that he did not fail to point out in his royal address.126 But the Assembly for its part lent its weight to the proposition that ‘the representative political system, as a pact between 123

124 125 126

Giorgos Anastasiadis, Η πρώτη εν Αθήναις Εθνική Συνέλευση (Thessaloniki: University Studio Press, 1997), in which the author argues that this group, headed by Mavrogordatos, focused on consolidating a more tempered monarchy through liberal institutions. In other words, they were not anti-monarchists but favoured a strong monarchical power under the rule of law. Petropulos, Politics and statecraft, pp. 471–73. ΦΕΚ, 31 (3/9/1843) for the first Act. ΦΕΚ, 32 (9/9/1843) for the second, where the quotation is from. A. Mannesis, Deux etats nés en 1830. Ressemblances et dissemblances constitutionnelles entre la Belgique et la Grèce (Brussels: Maison Ferdinand Larcier, 1959), pp. 48–50; Mavromoustakou, ‘Το ελληνικό κράτος’, pp. 37–45; Alivizatos, Το σύνταγμα, pp. 89–95. For the text of the royal address, see Gerozisis et al., Κείμενα, p. 215.

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the nation and the king, would irrevocably consolidate the rights of the Greeks and the prerogatives of the king’.127 Be that as it may, the leading moderate liberals who articulated the juridical claims also favoured a strong monarchical principle. In the words of François Guizot, always abreast of Greek affairs, this was ‘in order to contain reactionary ideas and [also] certainly the radical tendencies of the country’.128 Ioannis Kolletis, a Francophile who was to become the first prime minister of Greece, shed light on these ‘radical tendencies’ when he said that it was crucial to ‘prevent the Assembly […] from taking a tendency towards republicanism which will lead to the disorganisation of our homeland’.129 Such liberal fears harked back to early parliamentary discussions that linked political rights to indigeneity (entopiotita), as evidenced by petitions to the Assembly, by virtue of which regions such as Mani and Psara demanded special rights of representation. In the eyes of Kolletis and others, such petitions threatened the unity, if not the existence, of the state and indeed of the nation.130 The moderates’ achievement was to tame centrifugal forces by means of a constitution that accorded wide-ranging executive powers to the monarch as the symbol of unity, and stated that all sovereign power emanated from him, while guaranteeing basic civil and political liberties, introducing trial by jury and also a form of ministerial accountability. By dividing legislative power between the king, the Chamber of Deputies (Vouli) and the Senate, the constitution aimed to provide for the orderly participation of the nation (howsoever conceived) in government.131 At the same time the Assembly introduced two novelties, which constitute further evidence of the influence the juridical discourse exerted regarding the

127

128 129 130

131

ΒΒΕ, Πρακτικά της πρώτης εν Αθήναις Εθνοσυνέλευσης [Proceedings of the First National Assembly], 17th session (6 December 1843), pp. 72–77, and 17th session (8 December 1843), pp. 93–95 (the quotation on p. 94). Guizot’s letter to Eynard, quoted in M. Economopoulou, Parties and politics in Greece (1844–1855) (Athens: M. Economopoulou, 1984), p. 49. Economopoulou, Parties and politics in Greece, p. 50. To forestall the break-up of the nation, a little later Kolletis articulated as prime minister the ‘great idea’ of an irredentist political project. The ‘great idea’ was thus not only about expanding the external borders of the state, but also about consolidating the state as the supreme domestic authority and an active agent of national unity. This is only implied in studies of the great idea: see Dimaras, ‘Ιδεολογική υποδομή’, p. 467. The text is in Gerozisis et al., Κείμενα, pp. 209–45. A French translation was published in Revue de droit français et étranger, 1 (1844), pp. 859–78. See also Alexander J. Svolos, ‘L’assemblée de 1843 et l’institution du Senat’, Revue d’histoire politique et constitutionelle, i, 4 (1937), pp. 738–55 (pp. 740ff). On the constitution from a legal perspective, see Ioannis Aravantinos, Ελληνικόν συνταγματικόν δίκαιον, 2 vols (Athens: Sakellarios, 1897–1904 [1897]), ii, pp. 378–423.

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proper organisation of the state and society. One was the conception of the constitution as a fundamental political law that stipulated the duties and rights of each party (king and nation) and the form of their authority. The other was the organisation of political and social life according to achievement – which reflected on the one hand values of ‘active citizenship’, on the other hand the politicisation of industriousness. Several laws and decrees linked citizenship rights and state appointments to participation in the Revolution, while the electoral law, which established something close to direct universal male suffrage, nonetheless limited voting rights to those ‘with property in the district where they reside, or practising therein any profession or independent labour’, excluding those in a state of ‘dependency’.132 What all these provisions indicate is that the revolt did not signify a crisis of legitimacy for the monarchy, nor was the constitution any sort of radical document; rather, it was a political text that was in theory a contract, but one that had been technically granted by the king in order to satisfy the opposition. It was supported by the local elites because it gave them access to central power. In that way, it did consolidate the power of the king by gradually eliminating the political factions that had taken shape in the years of ‘enlightened absolutism’. But it also satisfied basic moderate liberal demands by adding political legitimacy to monarchical power, by giving political backing to the process of ‘adunation’ and by introducing some basic tenets of civilised political life. The latter was very important for liberals because it was associated with the place of Greece in the family of civilised nations. In that sense, the constitution was also a contract from a political point of view, as it moderated the monarchy while satisfying and helping to foster compromises between the different political groups eager to play their part in power politics. And yet, for all its moderation, the political transformation of the regime into a constitutional monarchy was to have considerable long-term effects. First of all, it changed the rules of the political game by introducing a new political framework and novel political practices such as voting.133 In addition, the establishment of two chambers altered the way in which political power was exercised. Even if both chambers were in practice controlled by the king through the manipulation of the electoral process, the 132 133

ΦΕΚ, 7 (25 March 1844). Petropulos, Politics and statecraft, p. 472. Although Kostis had a somewhat different view on how the existence of an elected house affected politics – arguing that it was in fact a way in which to institutionalise Ottoman political practices – he did go on to stress that the old party lines and cleavages collapsed after 1843: see Kostis, Τα ‘κακομαθημένα’, pp. 270–75.

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introduction of an elected lower house (members of the Senate were chosen by the king) opened up a new space for political activity and created new possibilities for public life. Gradually, deputies came together into organised caucuses representing different political tendencies, even if the lines of demarcation at the beginning were somewhat blurred. There is probably no better evidence of the role of the jurists, and in particular of their claims in the constitutional transformation, than the fact that a few months after the promulgation of the constitution and the establishment of the new government, several professors at the University of Athens, including law professors such as Kalligas, were dismissed on political grounds.134

Conclusion An attempt has been made in this chapter to delineate the changing role of the jurists during the era of ‘enlightened’ absolutism. These Westerneducated legal scholars considered the transfer of European models of thought essential for the development of the Greek state and its bid to be admitted into the family of ‘European noble nations’. Although early in their careers they welcomed and endorsed the reforms undertaken by the monarchical authorities, from the late 1830s onwards they came increasingly to criticise them. Their motivation was a highly practical but nonetheless important issue, the drafting of a civil code, which the royal authorities wished to model upon the Code civil. By introducing the Historical School of law – law bound by time and place – these liberal nationalists were trying to reconcile the tension between a civilising project that placed Europe at the pinnacle of a putative hierarchy, and the specific national aspirations of a state that was deemed a latecomer in the development of European civilisation. The pathway to the European standard, according to the jurists, was to apply the historical method gradually to legal studies and develop Roman law scholarship. As we saw, an important effect of their ‘speaking out’ and addressing public opinion was that they were progressively transformed into intellectuals. Their case is thus a good example of the role that the circulation of ideas in nineteenth-century Europe played in the formation of academic cultures. Their example also represents a test for what historians have seen as the paradox of nineteenth-century statebuilding: that as the state was accumulating power, doctrines of the strong state were losing ground to theories that mistrusted it, such as liberalism. 134

‘Περί πανεπιστημιακών εκλογών’, Αναμόρφωσις, 97, 20/06/1845.

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In fact, the juridical liberal language that came to complement and eventually criticise (more on this in Chapter 2) the doctrines that informed Bavarian policy-making were by and large concerned with statehood, even when not explicitly talking about the state as such. More importantly, the chapter showed that by so doing, the jurists, by and large, produced an intellectual and political counterweight to monarchical rule. That is not to say that they questioned monarchical rule as such, but that they raised concerns about the way the authorities proceeded in law-making and the type of state they sought to establish. Their influence in political developments took the form of the framing (in terms of rights, the rule of law, the creation of consultative bodies and the taking into account of local conditions when promoting administrative efficiency) of the pro-constitutional and anti-absolutist claims that nurtured to a large extent the revolt of 1843. Yet it is important to note that this anti-despotism was not designed to make the political system more inclusive, but was directed more against the practices that seemed to undermine the expression of the national will. Political participation through parties and other contingent determinations that gave tangible flesh to differences were the primary examples of such practices. In that sense the chapter has demonstrated the extent to which nineteenth-century European languages of law were intertwined with the emerging languages of nationalism and sovereignty. By thus associating legal discourse with political change, what the Greek case shows is that even at that early moment, state-building was as much an intellectual and ideological process as it was an institutional one. That said, the interplay of law and national particularity did not pose a challenge to monarchical rule, nor did it pose a serious sovereignty problem. All it did was to pose a challenge to dynastic politics, where it hoped to contribute to the establishment of liberal institutions. As I have already hinted, these years were in the main transitional. It was in subsequent years that the jurists took on an even more committed role in intellectual and political affairs; a role that would have significant implications for Greek political theory and practice.

chapter 2

‘Romanist’ Jurisprudence

Liberty, Property and the Virtues of Agrarian Societies (1830s–1850s) Introduction Chapter 1 argued that during the era of absolutism (1834–1844) the Greek jurists had attempted to lay the foundations for a cultural and political programme that would facilitate the incorporation of the emerging Greek nation within the European family of nations. This chapter traces how this programme unfolded and its implications. Ιt does so by concentrating on a number of Greek civil jurists, who succeeded in commanding the confidence of politicians and political groups, in controlling the legal commissions that were created for the purpose of drafting a civil code, in influencing the law-making process and in participating in the political administration. The most apt term for this liberal current that came to dominate legal and political life from the 1840s onwards would be ‘contractual’ or better still ‘Romanist’ because of its association with Roman law scholarship and civil law jurisprudence. As already mentioned, although historians have conventionally acknowledged the importance of this legal current for the formation of law and jurisprudence in nineteenth-century Greece, they have been reluctant to delve into the details of Romanist jurisprudence and in particular to take into account its intellectual complexity, as well as its spread after the defeat of Napoleon across Europe, the Americas, parts of the colonised world and indeed Japan. More importantly for the discussion in this chapter, they have also not explored in depth the wider political implications of Romanist jurisprudence, which, given its role in shaping the civil law, were rather pronounced. This chapter breaks with the existing literature by drawing on the ways in which historians have recently reassessed nineteenth-century liberalism and, in particular, on how core liberal ideas such as property law played out in the legal encounter between the European and the non-European world.1 At the same time, it adds to this literature by bringing into the 1

Rosanvallon, The demands of liberty; Bayly, Recovering liberties; Isabella, Risorgimento in exile; Paquette, ‘Introduction’; and Benton, Law and colonial cultures.

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discussion the subversive manner in which the Greek jurists used Roman law. In doing so, it treats Romanist jurisprudence both as a corpus of ideas and as a form of political organisation. The scholarly consensus on Roman law would seem to be that for most scholars at the time Romanist jurisprudence was both a highly elaborate legal method with which to proceed in law-making and a legal doctrine that was founded on freedom of property and contract. As historians writing from a global perspective have argued, ways of thinking about property rights were bound up with land issues and a determined pursuit of material improvement in a mixture that was central to the making of the modern world. As Christopher Bayly put it, ‘liberal political theory was based on the idea that rights, particularly rights concerning land, predated government and in a sense provided the basis of society’.2 Because of its tendency to assign ownership rights to one party, most scholars associate nineteenth-century Roman law with the establishment of absolute property rights. Thus, a part of the historical literature portrays it as central to the development of a bourgeois conception of civil society.3 But another part of this same literature links the advocacy of absolute property rights to the exercise of state power.4 This is particularly true for studies that explore European expansion to the non-European world and the jurisprudential tensions this created. To be sure, Greece was not formally a colony. Yet the problem of the extension of property and contract law presented itself with notable force in the kingdom, not least because this was a new state and was in the process of transition from the fluid legal pluralism of the Ottoman Empire to that of a state-dominated legal order.5 The problem lay in the fact that under the Ottomans, lands had been held under forms of tenure that did not comport with property absolutism. In this setting, the Greek jurists used Romanist jurisprudence in two ways: as a highly coherent method for law-making that would facilitate the state’s claim to paramount legal authority; and as a mechanism with which to transform land possession 2

3

4

5

Bayly, The birth, p. 299, and more generally his comments on pp. 289–300; see also J. C. Weaver, The great land rush and the making of the modern world (Quebec: McGill-Queen’s University Press, 2003). Stein, Roman law; F. Wieacker, A history of private law in Europe (Oxford: Oxford University Press, 1995). See also Whitman, The legacy; S. Vogenaurer, ‘An empire of light? Learning and lawmaking in the history of German law’, Cambridge Law Journal, 64, 2 (2005), pp. 481–500. Zimmermann, Roman law, pp. 1–14; D. Kelley, ‘Historians and lawyers’, in G. Stedman Jones and G. Claeys (eds.), The Cambridge history of nineteenth-century political thought (Cambridge, UK: Cambridge University Press, 2011), pp. 147–70; M. John, Politics and the law in late nineteenthcentury Germany: The origins of the civil code (Oxford: Oxford University Press, 1989). Barkey, ‘Aspects of legal pluralism’.

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or rights of use into the juridical state of proprietorship. The elaboration of Roman law and of liberal values was not confined to scholarly debates but was disseminated in the wider public arena through newspapers and periodicals and, later, by learned societies. In order to make sense of this and the interventions of the Romanists, it is imperative to take into account the political context of Greece and the interaction of civil law jurisprudence with the central socio-political debate of the era: the issue of property and the ‘national lands’ and how to convert them into private holdings. Although this had been a significant issue ever since the Revolutionary War, it was after the mid-1830s that problems such as the incomplete forms of land tenure and the distribution of the national lands became a central concern for both the authorities and the intellectual and political elites. As we will see, the situation was complicated somewhat by the Bavarian perception of these lands as essentially state property. In consequence, the Greek advocacy of absolute rights assumed a highly distinctive form. It constituted neither a campaign for bourgeois values nor a campaign in the interests of the Bavarian state and the theory of the police state (Polizeistaat) that informed it. Instead, Greek civil jurists framed their arguments in support of the property rights claims of cultivators against the monarchical state. As historians of law and empire have shown, such sharp conflicts were hardly exceptional during the nineteenth century, when empires and emerging states sought to assert greater legal hegemony over local jurisdictions. But as there was no universal plan leading to modern statehood, state-like institutions were shaped in response to developments on the ground, which to a great extent were the outcome of struggles over the structure of the legal order. What is more, historians have argued that in colonial settings this struggle was defined by two forces: the challenge posed by legal intermediaries and disputes over property and its legal definition.6 The Greek case bears witness to this wider process. Indeed, it was in response to the Bavarian authorities’ legal and land policies that Greek jurists – the intermediaries – turned to Roman law, formulating in the process an original project to establish modernity and state ‘hegemony’. As elsewhere outside the core European world, this was a project arguing that, if modernising reforms were to stand any chance of succeeding, authorities should always have to take into account local conditions.7 What is more, for the jurists (as well as for royal authorities) this struggle was not about property per se; it was about the type of agrarian society they 6 7

Benton, Law and colonial cultures; Benton and Ross, Legal pluralism and empires. Zanou and Isabella, Mediterranean diasporas; Innes and Philp, Re-imagining democracy in the Mediterranean.

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envisioned. In a way, the question was rather simple: would Greek society be one of tenants on state land or of landowners? The jurists opted for the latter, not least because they saw it as a key factor in the nationalisation of society and the state. In doing so, they shifted the basis for the legitimation of sovereign power from the claims of the royal dynasty to the interests of the nation. In that sense, and as elsewhere in the colonial world, struggles over property were transformed into struggles over sovereignty, liberty and the state – its role and its nature. For the jurists, this was not just a legal issue but had strong ideological implications, related as it was to the transition from the Ottoman to a modern European legal and social order. The incomplete understanding of private property, and of its function, obstructed the material prosperity of Greece, or so the jurists held, and was another example of the gap between their own society and European civilisation. The formalisation of individual property rights in land and the transformation of land into a commodity were perceived as the preconditions for ‘progress’ and the peaceful transition to a liberal order. What the Greek case highlights is that in this process, intellectual factors played an equal role to institutional or material factors, if not a larger one. For its advocates, Roman law could not only offer the legal technicalities needed for the making of contracts, but could also facilitate the development of a modern commercial mentality that was deeply intertwined with individualism. Their social vision was that of a society of property owners based not on social equality but on equality before the law. In their arguments, however, they not only employed the language of efficiency – property rights as the means for creating a laissez-faire economy and society based on individualism – but also used moral arguments related to civilisation and liberty. In other words, moral preoccupations interacted with material ones. In order to demonstrate the growing political significance of Romanist jurisprudence, this chapter will refer to several legal reforms that were implemented, for the most part towards the end of the 1850s. These reforms were almost all connected with the task of facilitating contracts and exchanges among individual proprietors. One additional point should be made. The Romanist political agenda neither remained the same nor was undifferentiated throughout the period in question. Although this chapter presents Romanist jurisprudence as a much more collective enterprise than has been the case thus far in Greek historiography, it does not suggest that there were no disputes and disagreements among the jurists. On the contrary, from the early 1850s and especially during and after the Crimean War, there was a significant polarisation within the legal milieu. This ideological strife,

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encompassing intellectual life as well, marked a significant departure from the previous consensus among the jurists regarding their political agenda. The rift between different groups of Greek liberals revolved around the means through which Greece might hope to pursue material and cultural progress. One group, centred around the journal Spectateur de L’ Orient, under the editorial direction of Markos Renieris, was increasingly using an imperialist language and urging the state to take action against the Ottoman Empire.8 Other jurists, like Pavlos Kalligas, without rejecting irredentist claims, insisted that territorial expansion should not be at the heart of the state’s policies at that time. In some cases, the arguments employed were also anti-imperialist. One could argue that the rift was between liberal imperialists and liberal nationalists and reflected equivalent European processes.9 Nevertheless, the strife never went so far as to undermine one of the basic premises of the Historical School of law to which they adhered and according to which law should be both a reflection of society and the foundation of the state. According to the teachings of Roman law, the ‘impartial’ guardians of this Rechtsstaat – the nineteenthcentury legal and political theory of the state that became widespread after the 1830s when it had been popularised by R. von Mohl – were none other than the professors themselves.10 In the next section, this chapter addresses briefly the political implications of Romanist jurisprudence in the first half of the nineteenth century and considers how historians and lawyers have explained this broad and complex ­phenomenon. It then turns to the case of the Greek scholars, discussing how their initial reaction against the royal authorities’ attempt to draft a civil code was transformed, during the 1840s–1850s, into a legal and socio-political agenda. After exploring what this consisted of, and the kind of political language it helped to forge, the chapter concentrates on the social and political implications this agenda had for the nineteenth-century Greek state and Greek society at large.

Romanist Jurisprudence and Its Political Implications in Nineteenth-Century Europe As I have argued en passant in Chapter 1, the significance of Romanist jurisprudence went beyond the law proper. It had significant political connotations, 8 9 10

Petmezas, ‘From privileged outcasts’. M. Fitzpatrick (ed.), Liberal imperialism in Europe (New York: Palgrave, 2012). R. von Mohl, Die Polizei-Wissenschaft nach den Grundsatzen des Rechtsstaat, 3 vols (Tübingen: Laupp, 1832–1834). See also Caenegem, An historical introduction to western constitutional law.

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which were rather complicated, as it came to be associated with a variety of European ideological currents. Additionally, its meaning changed over time, especially during and after the crisis of the 1840s.11 Conventionally, historians and lawyers have interpreted it as strongly anti-Napoleonic, nationalistic and, ultimately, a conservative political force associated with Romanticism. Others have seen it as a liberal effort to make European societies ‘bourgeois’, based on the centrality of property in Romanist legal thought and the ways in which its adherents used it when trying to define ‘bourgeois’ property, to eliminate feudalism and to transfuse a sort of ‘possessive individualism’.12 This last, ‘functionalist’ interpretation, which has focused on the German and French cases, has associated jurisprudence with the rise of entrepreneurial societies.13 Nevertheless, historians and lawyers have shown more recently that such explanations have failed to properly contextualise Romanist legal thought or to take into account the variety of the Romanists’ own motivations. They have contended that the Historical School was not a reactionary intellectual movement but a sort of ‘ancient constitutionalism’ – a reformist movement that sought to revive the pre-absolutist constitutional tradition that had begun in the eighteenth century but had stalled because of Napoleon.14 Its origins lie in the scientific renewal that began with the Humboldtian educational reforms at the beginning of the nineteenth century, which strengthened the institutional basis for scholarship (and saw invitations to Barthold Georg Niebuhr, Karl Friedrich Eichhorn and Friedrich Carl von Savigny to participate in the new university of Berlin).15 In terms of its political implications, and without downplaying the role of nationalism and anti-French feeling, Romanist jurisprudence and the related Rechtsstaat theory constituted an impartial alternative to the contentious politics of the Restoration, a sort of third way between absolutism and republicanism. By using law as a tool for social change, the German Romanists sought to avoid a revolution by way of reforms in the Agrarfrage (agrarian question). Changing property law would end the tensions of the largely feudal countryside, through what was a sort of ‘unpolitical’ process; that is, the elaboration by professors of law of doctrinal principles that would find their way into legislation and the administration of justice. 11 12 13 14 15

Whitman, The legacy, pp. 200–28. Ibid., pp. xi–xii, 165. For a classic view, Wieacker, A history of private law in Europe, pp. 67–155. Zimmermann, Roman law, pp. 6–12; see also Kelley, ‘Historians and lawyers’, p. 158; Whitman, The legacy, pp. xiv, 98; John, Politics and the law. A. Daum, ‘Wissenschaft and knowledge’, in J. Sperber (ed.), German history, 1800–1870 (Oxford: Oxford University Press, 2004), pp. 137–61.

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Thus, the political and social implications of this doctrinal battle were potentially rather disruptive. The professors’ answer to the question ‘To whom does the soil belong?’ was that property could have only one exclusive owner and that the feudal rights of the lords were actually servitudes – legal interests attached to the land and not related to personal status.16 By subjecting rights to land or any kind of obligation whatsoever to the Roman rules of possession and prescription, they undermined the conception of noble property as dominium directum. The law of prescription in particular, by which a title to land was acquired or lost through possession over a certain period of time, could be used both as an acquisitive and as an extinctive right – as such, it was used increasingly by the peasants against the rights of the landlords. In essence, the Romanists’ vision was one of free property owners with exclusive rights to their own land. One could say that the Romanists were conservative reformists mindful of the principle of laissez-faire. But in the early nineteenth century, their formulations were influenced by the historical works of Niebuhr on Rome, which he depicted not as a commercial society but as a model society in which a free, sturdy peasantry had established its rights and become the foundation of the state – a sort of agrarian republic.17 The Romanists’ policy proposals failed. By virtue of the 1848 revolutions and the politicisation they provoked and enhanced, new versions of legal reasoning emerged.18 The most important at the time was the split between the Romanists and the Germanists, who for their part were associated with left-wing nationalist politics and considered Roman law to be alien to the customs of the German people. As a response to this critique, scholars such as Carl J. A. Mittermaier or Karl Geib, alert as they were to calls for constitutional reform, developed an alternative liberal moderate position, arguing in other words that it was possible to accept Savigny’s theories on the origins of law while rejecting his negative views about legislation.19 To cut a long story short, the legacy of Romanist jurisprudence was not limited to its methodology and the political theory of the Rechtsstaat – a state based on a lawful order of freedom and standing above party interests. It was also important in shaping the ways in which the relationship between the state and individual freedoms was considered in Germany 16 17

18 19

E. Laboulaye, Histoire du droit foncière en occident (Paris: A. Durant, 1839), p. 62. B. G. Niebuhr, Romische Geschichte (Berlin: Realschulbuchhandlung, 1811–1812); Whitman, The legacy, p. 198. Scholars such as Rudolf von Jhering, Bernard Windsheid and Theodor Mommsen saw Roman law as being in line with modern materialism, individualism and commercialism. Whitman, The legacy, pp. 200–28. John, Politics and the law, p. 31.

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and in developing a type of non-participatory, ‘statist’ liberalism, the origins of which did not reflect economic developments.20 Although the French political and social context was different, historians have shown that the issue of national lands (biens dits nationaux) and the social chaos of the Restoration had rendered the property law defined in the Code civil seriously inadequate regarding disputes over land. During the 1830s, works on the issue of property multiplied, and jurists such as Eugène Lerminier, Edouard Laboulaye and others inaugurated an intellectual current inspired by Romanist jurisprudence that underscored disputes over property and possession.21 Holding to the view that property received legitimacy only by cultivation and the intention to keep what is possessed, the jurists turned to Romanist tools and especially prescription as devices with which to transform physical occupancy into the juridical state of proprietorship. In light of the criticisms raised against property voiced by a wide array of republicans, radicals and ‘industrialists’, French civil lawyers combined elements of the Historical School with the view that property is a natural extension of a person’s personality, the foundation of individuality and humanitas and indeed a national ideology.22

The Greek Civil Jurists in the 1840s It was Savigny’s legacy, the Pandectist science, that dominated Greek legal thought. But in order to explain its dominance, we need to understand the intentions and motivations of the jurists who endorsed it. As we have already seen in Chapter 1, for many jurists Roman law offered both a consistent legal method with which to proceed in the legal formation of the state and a novel perception of the state. This was a programmatic vision that, after the mid-1840s, they communicated to the Greek intellectual community and to the wider public sphere through published scholarship (treatises, university lectures and translations of French and German jurisprudence), public interventions, as well as non-legal narrative forms such as history. Most, if not all, of these interventions concerned, by and large, the sources and history of Roman, Byzantine and French law, and 20 21 22

Ibid., pp. 1–14. Also L. Krieger, The German idea of freedom: History of a political tradition (Boston, MA: Beacon Press, 1957). D. Kelley and B. G. Smith, ‘What was property? Legal dimensions of the social question in France (1789–1948)’, Proceedings of the American Philosophical Society, 128, 3 (1984), pp. 200–30. For Laboulaye, crimes against property constituted sacrilege against ‘le Dieu Terme’, Laboulaye, Histoire, p. 69; see also J. Michelet, The people, trans. G. H. Smith (New York: Appleton, 1846), pp. 89–90.

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drew heavily on the method of the Historical School of law.23 Although conventionally legal historians tend to focus on a small number of prominent figures (and in particular Pavlos Kalligas – see the discussion that follows), Romanist jurisprudence in Greece was a much more collective and cooperative enterprise than has been appreciated up until now. In any case, by the 1850s the Greek Romanists dominated the field of law, to the detriment of those few scholars who had initially supported the introduction of the Code civil. The jurists’ principal vehicle was the legal journal Themis, which was launched in 1845 – an initiative neglected by modern Greek historiography, and one that testifies to the existence of a burgeoning juridical International.24 By publishing this journal, the jurists had three aims: (1)  to bridge the gap between Greek and ‘European’ (in their terms) culture, history and law; (2) to communicate their legal ideas and the historical method – ‘the safest guide in solving legal problems and disputes’ – to the public; and (3) to legitimise their own involvement in law-making and the role of legal writing as a source of law.25 In addition, as the editors argued, the state of the judiciary and the lack of informed legal practitioners in Greece made it necessary to find additional ways to develop jurisprudence. Without rejecting codification, what was needed, the jurists reckoned, was the development of a corpus of historical investigations into national institutional practices, juridical traditions and customs, through which it would be possible to uncover, distil and turn into law the legal principles and institutional traditions of the Greek people, always in accordance with Roman law principles. In this way, 23

24

25

Indicatively: R. J. Pothier, Η δωδεκάδελτος (Athens, 1845); A. Thiers, Περί ιδιοκτησίας (Athens: Typ. F. Karabinou and K. Vafa, 1848); R. Troplong, Πραγματεία περί της ενεργείας και των αποτελεσμάτων του Χριστιανισμού επί του αστικού των Ρωμαίων δικαίου (Athens: Typois Ch. Nikolaidou Philadelpheos, 1858); E. Lagrance, Σύνοψις της ιστορίας του ρωμαϊκού δικαίου (Athens: Typ. N. Passari, 1865); J. P. Molitor, Η περί νομής και το κατ’ αυτής αγωγών κατά το ρωμαϊκόν δίκαιον (Athens, 1861). The translated subtitle was initially Review of the Greek civil, commercial and administrative legislation and then (vol. II) became Review of Greek legislation. Themis lasted from 1845 to 1861 (eight volumes, with eighteen special supplements), with each issue running to approximately 400 pages. The journal was part of a trend that swept Europe after the publication of Zeitschrift für Geschichtliche Rechtswissenschaft in 1814 by Savigny and Eichhorn. Modelled on this were in France, La Themis (published from 1819 onwards and sponsored by a distinguished international committee including Victor Cousin, Dupin and Isambert, etc.), Revue Foelix (from 1834 onwards), Revue Wolowski (from 1835 onwards) and Revue de Legislation et de Jurisprudence (published from 1851); in Switzerland, the Annales de legislation et de jurisprudence (from 1819, backed by Sismondi, Pellegrino Rossi and Etienne Dumont). See D. Kelley, Historians and the law in post-revolutionary France (Princeton, NJ: Princeton University Press, 1984). Θέμις, 1 (1845), pp. i–iv.

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jurisprudence became a vehicle – one neglected in Greek historiography – for historical scholarship and the main agent of the convergence of history and law.26 With its very practical orientation, the journal offered critical reportage on local customs and on court decisions, especially of the Άρειος Πάγος (the Supreme Court) and the Courts of Appeal. It was thus simultaneously a law review, a court reporter and a quasi-official legal journal for the kingdom, with private law issues accorded primacy – contracts, transactions, inheritance and so forth. The publication of Themis was followed by the publication between 1848 and 1852 of Pavlos Kalligas’ System of Roman law – the most impressive, consistent and authoritative account of the Romanist method and research agenda that set the stage for the understanding of civil law in Greece, remaining in print until the 1930s.27 Kalligas had two principal preoccupations: namely, to define the object of civil jurisprudence and to work out how to analyse it. Following the practical concerns of Pandectist science, he was concerned with ‘what was and what is’ and not with ‘what ought to be’.28 And, as evidenced by Byzantine legal sources like Exavivlos, the origins of ‘what was’ in Greece was Roman law.29 Kalligas reckoned that although Exavivlos was a legal source of the decadent Byzantine era, it was nonetheless a source that connected Greece with Roman law, the matrix of law of the ‘civilised nations’.30 But this could only be temporary because, in order for the nation to be legally formed, ‘law and its matrix [Roman law] had to be understood completely […] so that [national law] [would] combine the direction and the mode of foreign legislation with everything that subsists in its own character’.31 In other words, as a newcomer to European civilisation, the Greek nation had to gradually adjust to the demands of that civilisation by combining an understanding of Roman law principles with its own (national) distinctive characteristics.32 Kalligas did not dismiss codification per se, being attentive to the criticisms directed by the Germanists at those who subordinated legislation to 26

27 28 29 30 31 32

Indicatively the articles in Θέμις, 1 (1845), by P. Papparigopoulos, ‘Ιστορία του ρωμαϊκού δικαίου’, pp. 195–200; G. Maurogordatos, ‘Ιστορία του δικαίου’, pp. 295–300. And in Θέμις, 2 (1846), the articles by K. Papparigopoulos, ‘Ιστορία δικαίου: Ρωμαίων προς Ελλάδα πολίτευμα’, pp. 339–55; K. S. Zachariae, ‘Ιστορία βυζαντινού δικαίου υπό Κ. Μortreuil’, pp. 186–224. P. Kalligas, Σύστημα ρωμαϊκού δικαίου, 3 vols (Athens : Typ. Andreou Koromila, 1848–66). Kalligas, Σύστημα, vol. I, pp. 1, 3. Ibid., vol. I, pp. 3–4. K. Pitsakis, ‘Καλλιγάς και Αρμενόπουλος’, pp. 259–97. Kalligas, Σύστημα, vol. I, pp. 3–4. Ibid., pp. iv, 14–17. His references are Thibaut, Mackeldey, Muchlenbruch, Wening-Ingelheim, Goeschen, Puchta, Savigny; ibid., vol. I, pp. i.

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learned treatises, because that would be detrimental to the nation’s present situation and a justification for inaction.33 In a lengthy article published in Themis, he addressed the role of customs and whether civil law should be based on them or on entirely novel legislation. He adopted an intermediate position.34 Rejecting recourse to absolute novelty, Kalligas also deemed customs (a ‘collection of mythologies’), which the Ministry of Justice had collected after 1835, to be a far from satisfactory resource. Such collections could, however, prove useful as a springboard for further research. But his key argument was that even a proper collection did not automatically create customs; rather, it constituted evidence of customs. It was the expertise of civil lawyers that would transform this evidence into law. Echoing arguments formulated by Mittermaier during these same years in Germany, Kalligas argued that successful codification required a satisfactory collection of preparatory material, an understanding of popular perceptions of law, a high level of legal expertise and attempts to codify particular parts of laws. Arguments such as these set the tone, and gradually the jurists started addressing specific issues of private law. After the creation of the Legislative Committee in 1849, this became the focus for a sort of legislative activism.35 Although similar committees in other European countries consisted of judges, lawyers, professors of law and politicians, in Greece the members of the Legislative Committee were all professors of the Faculty of Law (Georgios Rallis, Pavlos Kalligas, Markos Renieris, Petros Papparigopoulos, Ioannis Soutsos, Vasileios Oikonomides and Diomidis Kyriakos) plus one lawyer (Giorgos Vellios). Entrusted with the task of drafting a civil code, the Committee rejected codification based on foreign models because it would compromise national individuality. It also rejected an exclusive reliance on customs, without however dismissing their validity outright since they were key sources for knowing the national popular character. Yet customary law was deemed inadequate for law-making because it was intellectually and conceptually underdeveloped and had to be analysed along with Roman law principles. This is why the Committee did not produce a comprehensive civil code, but tried to deal only gradually and in part with civil law issues. It would be an error, nevertheless, to dismiss the members of the Legislative Committee as conservatives who rejected 33 34 35

Ibid., pp. 13, 17–20 (for the Historical School criticism). P. Kalligas, ‘Περί εθίμων’, Θέμις (supplement, 1847), in Kalligas, Μελέται νομικαί, pp. 266–305. A good example is P. Kalligas, ‘Περί τόκου’, Νομική Μέλισσα, XV (1861), in Kalligas, Μελέται νομικαί, vol. I, pp. 53–66. For the Committee see K. Triantafyllopoulos, ‘Ιστορία των σχεδίων ελληνικού αστικού κώδικα’, Αρχείο Ιδιωτικού Δικαίου, 4 (1937), pp. 433–49.

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liberal codification. Nor should they be described as doctrinaire liberal modernisers who had turned their back on local traditions. They were essentially liberal nationalists within a European world of nation-states, who saw Greece as a new and still immature state and society that had to reform itself by taking into account legal traditions, customs, social norms and so on. At least during this period, this was a programmatic choice and not a failed attempt to foster liberal reforms.

Roman Law and the Greek State: The Political/Social Agenda But what kind of liberals were the jurists exactly? As already noted, their political and social agenda envisioned a liberal social order resting upon two main pillars – Κράτος Δικαίου (i.e. the law-based state) and a society of property owners. During the 1850s–1860s this agenda increasingly ran counter to other forms of social and political organisation, including the one favoured by the monarchical authorities. The reason is that the jurists’ vision went beyond the field of law proper, being in fact a powerful political and social ideology. Conventional wisdom has it that the Romanists’ conception of the state was founded on the formal equality of citizens and the elevation of individual freedoms to the status of fundamental norms; on the inviolability of such freedoms; and on holding the state to account if it failed to protect them. This is too narrow an interpretation, not least because the conception transferred into Greek legal thought the Rechtsstaat theory. This was indeed a state that combined two fundamental principles, the state and the law, whereby the law built the very structure of the state instead of being just an external limitation to it. We are in other words concerned here with a state that was subordinated to its own positive laws in the form of a written constitution and legal codes.36 But for all its novelty, historians have argued that the origins of the concept lay in eighteenth-century ‘enlightened’ reforms, and that it shared a great deal with the Polizeistaat theory – a major feature of which was a commonly understood rational legal system, within which the administration and the government were expected to operate and in which royalty was supposed to serve the state. Both theories ascribed special importance to law as a system with a strong internal structural coherence; both disregarded natural rights as the 36

For the contested meanings of the Rechtsstaat, see P. Praet, ‘Prolegomena to the post-sovereign Rechtsstaat’, in H. Kalmo and Q. Skinner (eds.), Sovereignty in fragments: The past, present and future of a contested concept (Cambridge, UK: Cambridge University Press, 2010), pp. 169–85.

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foundation of politics; and both subscribed to a holistic view of society at the expense of any perception of it as a space of harmony between different interests. In that respect, the Rechtsstaat theory was a nineteenthcentury version of the governmental theory of the Polizeistaat, articulated as a response to revolutionary and Napoleonic political experiences. As such, it was an ideological alternative – and a non-political one at that – to the state based on absolutist or arbitrary rule and to the state based on the popular will (Volksstaat) associated with Rousseau and Robespierre. For Donald Kelley the juridical statecraft advocated by scholars such as K. S. Zachariae suggested a middle path between progress and reaction.37 Yet this interpretation underplays both the novelties of Rechtsstaat thought and the fact that when the jurists referred to ‘arbitrary rule’ they meant something very specific. As the German jurist Friedrich J. Stahl, among others, put it, the Rechtsstaat stood in opposition to the Volksstaat, but above all ‘to the patriarchal, to the patrimonial, to the mere police state, in which the authorities are bent on realising ethical ideas and utilitarian goals according to a moral and therefore arbitrary valuation of every given case’.38 It stood, that is to say, between the Jacobin model and the Polizeistaat. The Greek case testifies to this, as the opposition of the Romanists to the Polizeistaat brought them into conflict with the Bavarian perception of the state. When Kalligas argued that ‘the first interest of society is to form permanent and entrenched laws, which would not be transformed according to the will and pleasure of the rulers’, he was targeting the methods of monarchical rule.39 Such views do not make the Romanists anti-monarchists, as most of them would have agreed that the monarchy as sovereign power was the centre and origin of all political decision-making (which was also, as Kalligas argued, what the constitution of 1844 had established).40 But the laws that were produced by this sovereign power had a higher status and could not be formed at will, they had to express the ‘general will’. One of the reasons for this opposition was the political failure of the Bavarians to fulfil the expectations of Greek liberals as far as the construction of the state and the legitimisation of its authority before its subjects were concerned. Although the authorities had taken decisive measures 37

38 39 40

Kelley, ‘Historians and lawyers’, p. 161. Works by K. S. Zachariae in Themis: ‘Ιστορία βυζαντινού δικαίου υπό K. Mortreuil’; ‘Εσωτερική ιστορία του βυζαντινού δικαίου (οικογενειακόν δίκαιον)’, Θέμις, 7 (1856), pp. 327–82. Fr. J. Stahl, Philosophie des rechts, 2 vols (Heidelberg: J. C. B. Mohr, 1830–37), vol. I, p. 106. Kalligas, Σύστημα, vol. I, p. 83. Ibid., vol. I, p. 72.

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against challenges to the state’s authority in the guise of local resistance, from the mid-1840s onwards and for a number of different reasons, not least financial, the Bavarians were forced to resort to negotiating with local elites and to governing through local intermediaries in order to ensure the allegiance of local populations.41 As a consequence, brigandage and local disorder abounded, while the standing army and police existed only on paper. Seeking to reactivate the liberal reform agenda, the Greek Romanists thought that their theories would enhance the control of the state over its territories, legitimise its authority and thus complete the establishment of the strong central state that the Bavarians had compromised.42 But the differences between the Bavarians and the Romanists were first and foremost ideological. For the Rechtsstaat thinkers, law, and by extension the exercise of sovereign power, was not about attaining ethical ideals, like the happiness of the population and the well-being of the state, but about expressing and satisfying what they called the ‘general will’, which should be understood as a loosely (if at all) defined public interest and not in Rousseau’s way. This will of the whole (mainly identified with the nation) existed on a higher plane, one that was different from, and always threatened by, private or group interests; these latter, however, ‘should not be crushed’.43 In fact, herein lies a theoretical paradox. No matter how much it was centred on the state, Rechtsstaat thinking did not entail a theory of political power or any kind of moral or political philosophy to justify the role of the state. In other words, the Romanists never explored the practical implications of their ‘general will’ theory. This was a formal concept that captured the preponderance of public interest over everything else. The state, accordingly, was basically an organisation of law that sought to enforce its legal rules and to uphold the legal rights it had granted to individuals as subjects of the state. The reason for this was that in essence, the subject of the law for the Romanists was the person or the citizen, even though there was no place for individual natural rights.44 Their political thought was thus characterised by a strong, even if undertheorised, individualism. The state they envisaged was a monarchy – complemented by the separation of powers, a constitution or sometimes a 41 42

43 44

Kostis, Τα ‘κακομαθημένα’, pp. 248–54. Kalligas, ‘Περί εθίμων’; see also P. Argyropoulos, Η δημοτική; G. I. Angelopoulos, Περί τοπικής διοικήσεως εν Ελλάδι εν συγκρίσει προς την εν Γαλλία και Αγγλία (Athens: Typ. Paliggenesias, 1879), pp. 18–19; Petmezas, ‘From privileged outcasts’. Kalligas, Σύστημα, vol. I, p. 200. Ibid., pp. 200–30, for the rights of persons. He also argued that even the persons who are not recognised by civil law have the right of security owing to their status as subjects of ius gentium.

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parliament – through which a benign policy of self-restraint was supposed to help ‘persons’ (natural or legal; they rarely used the word ‘citizens’ in their treatises) realise their wills by protecting their rights. Although liberty and security were among these rights, the idea of property lay at the heart of this political agenda.

Occupation, Sovereignty and Private Property It is difficult to overemphasise how central the notion of property was to the Romanists’ writings. In the Greek case, as in others, property was a problem that, from the Revolution onwards, represented a major intersection of practical and theoretical concerns. In the background was to be found the most controversial issue of the time, namely the issue of the ‘national lands’. According to the decisions of the Conference of London and the pronouncements of the revolutionary governments, all former Turkish property in Greek-held areas had been transformed into Greek state domain. The status of these national lands or national property was temporary since, in the minds of many, it was supposed to be distributed to the peasants.45 Yet, there was something more at stake than simply distributing the lands. In Ottoman times, occupants were considered tenant share-croppers on Ottoman lands (which belonged to the Sultan) or holders of a tassaruf – a right of servitude/occupation – which could not be formally equated with an absolute property right. Although the forms of land tenure were particularly complex, during the first years of Bavarian rule the authorities recognised as private property any holding supported by a title deed. Nevertheless, land tenure was hopelessly confused, there being habitually several overlapping claims to land.46 Landholders could not by and large furnish proof of ownership since titles were lost, destroyed or most commonly non-existent. In any case during the process and until 45

46

National property included the lands and the personalty – moveable property (Ethnika ftharta ktimata) – that belonged to the Ottoman state, the Muslim-Ottoman subjects who had left the country after the Revolution and the confiscated land of the monasteries. Where a right of usufruct on the part of a tenant could be authenticated, ownership was split into two and the state acquired half of the property (roughly around 60% of the arable land): see W. McGrew, Land and revolution in Modern Greece, 1800–1881: The transition in the tenure and exploitation of land from Ottoman rule to independence (Kent, OH: Kent State University Press, 1985); S. Petmezas, Η ελληνική αγροτική οικονομία το 19ο αιώνα: η περιφερειακή διάσταση (Heraclion: PEK, 2003), pp. 25–26; E. Karouzou, ‘Θεσμικό πλαίσιο και αγροτική οικονομία’, in Kostis and Petmezas, Η ανάπτυξη, pp. 179–95. As Friedrich Thiers observed, there was a ‘multitude of ill-founded and conflicting claims, usurpations and a paucity of valid documentation’; quoted in McGrew, Land and revolution, p. 115.

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the future settlement of the issue, the monarchical regime treated this major category of cultivators as tenants on state land and obliged them to pay an onerous usufruct tax.47 As a consequence, arbitrary occupation of uncultivated fields, including of course the national ones, was commonplace. The situation became more complicated with a royal decree of 1835 that gave customs the same legal status as laws. Although many customs recognised the right to private property, this was at the same time compromised by various local practices and conflicting claims on property, such as the ‘right of preference’ – which accorded priority to relatives and neighbours in case a landholder put up for sale his/her land, and the ‘right of implantation’ (emphitefsis), a right similar to usufruct.48 In 1843, state authorities did recognise the right of cultivators with no title  – mainly holders or squatters on state land – to remain undisturbed in their holdings, thus granting them a kind of legal security for their possessions, but not actual ownership rights.49 Be that as it may, in the 1840s legal disputes around property ownership were proliferating and gaining wider publicity. It was in this social and political context that the issue of property became a central theme in legal circles. Historiography on the land issue has concentrated predominantly on its empirical content, the policies of the Bavarians, the alleged social interests behind the struggle for land, and the effects that land policies had upon the economy and the society as a whole. In general, the idea is that the property situation was a hindrance to the capitalist-enhancing legal framework that liberals wished to establish, and that the reluctance of the authorities to distribute land or recognise ownership rights was due to their concern to preserve the state monopoly on land and prevent its concentration in the hands of possible rival elites.50 Irrespective of the analytical problems arising from such interpretations, most accounts have taken as a given what for the Romanists was no such thing: namely, that the understanding of private property was settled and common for all, and that the land issue was only about property titles. As the Romanists among others saw it, the problem was that in Greece there was a limited and highly problematic understanding of private property. 47 48 49 50

McGrew, Land and revolution, p. 215. Karouzou, ‘Θεσμικό’, pp. 188–89; P. Zepos, Modern Greek law: Three lectures delivered at Cambridge and Oxford in 1946 (Athens: Sideris, 1949), p. 57. This law concerned the family holdings of cultivators, see E. Karouzou, ‘Ζητήματα κατοχής των εθνικών γαιών (1883–1871)’, Μνήμων, 12 (1989), pp. 149–61 (p. 152). Petmezas, H ελληνική αγροτική, p. 28.

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It would be hard to find a more succinct statement on the issue than that made by George Finlay: In Greece there is no clear and definite idea of the sacred right of property in land. The God Terminus is held in no respect. No Greek, from the highest to the lowest, understands the meaning of that absolute right of property which, as Blackstone says, ‘consists in the free use, enjoyment, and disposal by every Englishman of all his acquisitions, without control or diminution, save only by the laws of the land’.51

Historians have paid scant attention to this ideological dimension of the land issue, the gist of which was to consolidate private property and a commercial society of private owners. By addressing the mechanisms and the meaning of private property – what leads to it and how – the Romanists turned theoretically and by way of legislation against both the ideas espoused by monarchical authorities and the systems of social organisation pertaining to local rural societies, such as those based on the already mentioned customs, or others based on rights of use or on the communal ownership of land. Thus, the Romanists held that transforming such customary rights (of use, communal or any other) into legally binding property rights would turn land into a commodity, enhance its productivity and facilitate market transactions, investments in land, as well as fiscal policies and taxation.52 Given its sophistication as a theory of property, Roman law would function as a mechanism of transition to a liberal property regime. The technical application of its principles, even when simply implemented in the courts, would complement the building of smoothly functioning commercial institutions and, by extension, help to forge an adequate social morality. This claim, as James Whitman has argued, ‘was based on an undoubted, if slippery, truth in the history of European law: Roman law tended to assign “ownership” rights to some single “owner”, both in the case of real property and in the case of personalty (i.e. movable assets and things, including animals) which are not real property, money or investments’.53 This was turned into an intellectual project, as evidenced by the numerous publications from the late 1840s onwards that were concerned with technicalities relating to the making of contracts (loans, mortgages, property transfers, 51

52 53

G. Finlay, ‘The actual condition of the Greek state’, Blackwood’s Edinburgh Magazine, 55 (1844), pp. 785–96 (p. 703). See also G. Finlay, ‘The euthanasia of the Ottoman empire’, Blackwood’s Edinburgh Magazine, 89 (1861), pp. 571–94. Karouzou, ‘Θεσμικό’, pp. 178–79. J. Q. Whitman, ‘The moral menace of Roman law and the making of commerce: Some Dutch evidence’, Yale Law School, Faculty Scholarship Series, Paper 654 (1996), pp. 1841–89 (p. 1846), accessed from http://digitalcommons.law.yale.edu/fss_papers/65.

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inheritances), the safety of transactions and the administrative processes that would formalise and complement these contracts.54 Yet this does not mean that the Romanists were market fundamentalists or legal positivists. Even though they saw contracts as key ingredients of a modern social order, they were contractualists of a certain kind, as evidenced by their social vision, the qualifications they put on contracts in order for them to be valid, as well as by the theory of occupation they employed. In doing so, they blended their nineteenth-century historicist theories with eighteenth-century intellectual traditions. A case in point is the argument advanced by Kalligas in favour of the use of the right of prescription. Kalligas held that occupation was one of the means – in Greece the fundamental one, given the absence of contracts – of creating a property title.55 According to prescription, which, as he claimed, had been recorded in Greece since Byzantine times if not before, an occupied or ‘possessed’ land or asset could be transformed into private property by a lapse of time or a penalty, especially if the possession was undisputed. In case of a conflicting claim, the case should be decided in court. But the key in his argument was that in this latter circumstance the burden of proving the claim should rest on the one who disputed the right of occupation and prescription. Transferring this argument to the case of the disputed national lands – the target of the article – the burden of authenticating property rights in occupied lands should rest with the state and not with the squatters. In the same way, Kalligas argued against farmers being obliged to have a registered permanent residence in order to be eligible for claiming or indeed buying state land.56 This use of Roman law had strong resemblances to the situation in Germany, where it was used for the benefit of the peasants. It was not, however, used to undermine the power of the feudal lords but the policies of the Greek monarchical state. The reason was that there were fundamental ideological differences between the Romanists and the Bavarian 54

55 56

G. Maurogordatos, Διατριβή περί γάμου, περί διαζυγίου και περί ληξιαρχικών βιβλίων (Athens, 1846); P. Argyropoulos, Δημοτική διοίκησις εν Ελλάδι, 2 vols (Athens: Filolaou Typografias, 1843); Kalligas, ‘Περί τόκου’; G. Rallis, Ερμηνεία του ελληνικού εμπορικού δικαίου, 3 vols (Athens: Typ. Chartofylakos G., 1848–1851). The first volumes of Themis included articles ‘On prescription’, ‘On possession’, ‘On easement and mortgages’, ‘On succession’, ‘On liability’, ‘On endowment’, ‘On loans’, ‘On debt’ etc. P. Kalligas, ‘Περί παραγραφής’, Θέμις, 1 (1846), pp. 1–8, 94–117, 176–88, and Θέμις, 2 (1846), pp. 239–69. He advanced the same arguments in his Σύστημα. One example was the law on the endowments of Greek families of 1835. On the law and its failure, see Karouzou, ‘Θεσμικό’, p. 184. See also P. Kalligas, ‘Περί κατοικίας’, Θέμις, 6 (supplement, 1852), in Kalligas, Μελέται, pp. 280–92.

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authorities. These were differences that in other contexts played out in the debates about empire.57 In the case of Greece it was the land issue that was the crux. As the Romanists perceived it, the Bavarian understanding of political power was based on an association of sovereignty with occupation. According to that logic, he who possessed sovereignty also possessed property, unless it were proved otherwise. The only way to prove a right to property was through a deed – a contract. In this understanding of contracts, occupation followed law. As we have seen, the Romanists took a different view. Being open to historicism, positivism and natural law, they had a dynamic understanding of law that reflected social change. Indeed, their whole political theory – which as mentioned earlier never addressed the issue of sovereignty – was based on dissociating sovereignty from occupation. Occupation created title, and by so doing gave rise to law. The Romanists did not justify all these points in material terms alone, as a means for the establishment of a commercial mentality. In actual fact, they primarily used civilisational, moral and socio-political arguments. To begin with, they all associated the transition from the stage of occupancy and possession to that of a legal system based on property with historical progress. This logic – which identified proprietorship with the higher state of European civilisation and, indeed, saw modern revolutions as its drivers – permeated the works of the Greek Romanists, but also those of François Guizot, Adolphe Thiers and his juridical counterpart Raymond Troplong, which were translated and much cited.58 Writing about the distinctiveness of modern societies, Kalligas argued that ‘slavery has been eliminated, family is based on more moral foundations [compared to the past], public credit needs different guarantees […] the contracts [regarding ownership] cannot be cancelled at will but are founded on consensus’.59 This last quotation is evidence of the Romanists’ qualified contractualism and their eclecticism. As I have already noted, by promoting private property and the distinction between mine and thine, Roman law presupposed a sense of self-consciousness and individuality. But to own (something and/or yourself) was not for the Romanists an end in itself. It was a requirement for individual liberty. And in order for this liberty to be real and not just formal, law should attend to the form of an agreement and the conditions under which it was reached. In what could be seen as 57 58 59

A. Fitzmaurice, Sovereignty, property, and empire, 1500–2000 (Cambridge, UK: Cambridge University Press, 2014). Thiers, Περί Ιδιοκτησίας; Troplong, Πραγματεία. For Guizot’s influence on Kalligas, see MassonVincourt, Ο Παύλος Καλλιγάς, pp. 143–45. Kalligas, Σύστημα, vol. I, p. 18. This is something that permeated the thought of most jurists.

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a neo-Roman understanding of liberty, the Romanists argued that for a contract to be legally binding, it could not stand only on the mere existence of a formal agreement between free wills or the unilateral promise of one or both parties. It should be based on the mutual consent of the parties and should somehow conform to social norms or, in Kalligas’ words, the ‘general will’. In fact, Kalligas made this argument when anticipating and dismissing the criticism that societies resembled commercial companies. As he put it, ‘society is above individual opinion’ and individuals, ‘by assimilating social bonds, administer the social whole according to its spirit, which resides in all the individuals and through which individuals’ feelings are fulfilled’.60 Indeed, one of the greatest influences on Kalligas was the French jurist Pothier, who advanced a conception of agreements based on mutual consent, and for whom succession and donations came before contracts.61 These ideas about property and contracts were complemented by a socio-political project that promoted a far-ranging land distribution. For the jurists, the notion of the need for security of property was as powerful as the objection to its concentration. The commodification of land as a means of boosting economic activities made sense only to the extent that it secured small-scale ownership. Their liberal Rechtsstaat was thus based on the transformation of the majority of Greek citizens into landholders. That is why they criticised both the Greek and the German systems of prescription, according to which prescriptive action in non-state lands had to be certified by public authorities, because in both cases ‘the procedure oppresses small ownership, so that it becomes disposable only to big landowners who wish to complement their property even with high cost’.62 These criticisms and claims were not made only on paper. Because of the Romanists’ prominence in the country’s intellectual and political life – as law professors and judges, and after the late 1840s as ministers, civil servants, advisors to the government, members of the Legislative Committee, of savings banks and of insurance societies – they came to form part of a subversive legislative agenda that transformed Romanist jurisprudence into a means of ‘practical statecraft’. This took place in two ways. The first was through the reconceptualisation, reorganisation and reform of private law rules in a process that the jurists themselves understood to be an apolitical rationalisation project. The role of the Legislative Committee was crucial in this. To name 60 61 62

Ibid., p. 137. Ibid., p. 13. Ibid., vol. II, p. 742.

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but the most important legislative acts it produced, firstly in 1856 it established the Roman–Byzantine legal rule of usucapion, with which the inalienability of land was reversed.63 Resembling the recommendations advanced by Kalligas some years previously, the rule stipulated that a squatter could legitimately own the land after thirty years of occupancy. It thus opened the way to ownership for anyone who could prove continuous and unchallenged occupancy, while indirectly stipulating that henceforth it would be the state, not the squatter, that would have to prove its rights to the land.64 Secondly, in that same year the Committee published the Greek Civil Law – the most coherent attempt to address the question of property rights. By stating in its second article that a custom cannot suspend a law of the state, the law eliminated the equality of legal sources and established the primacy of laws, thus removing the most important legal obstacle relating to the consolidation of private property. The law also included several rules relating to technical but extremely important issues for the property regime, including the acquisition, exercise and loss of civil rights; the registration of births, marriages and deaths; and nationality.65 Other important laws included the registration of conveyance of all property in one’s lifetime (crucial in light of the lack of a land register), those on compensation and so on.66 The second way in which the Romanists influenced the formation of the state was by providing an overarching discursive and ideological framework that found its way both into the courts and into politics. In the myriad disputes around property, local officials and courts frequently supported the squatters’ efforts to conceal the nature of a holding or to represent it as a freehold, usually in favour of small farmers. In doing so, they progressively undermined the state’s broad presumption that all property not demonstrably private must be public, shifting the burden of proof from the citizen to the state.67 What is more, the liberal 63 64 65 66

67

ΦΕΚ 35 (7 Απρ. 1856), article 60; Karouzou, ‘Θεσμικό’, p. 181 and Petmezas, Η ελληνική αγροτική οικονομία, p. 46. McGrew, Land and revolution, pp. 216–17. ΦΕΚ, 75 (15 November 1856), pp. 399–405; see also Zepos, Modern Greek law, pp. 57–58. ‘Περί μεταγραφή της κυριότητας των ακινήτων και των άλλων επ’ αυτών πραγματικών δικαιωμάτων’ [Law on transferring the possession of immovable property and other obligations upon such properties], ΦΕΚ 70 (6 November 1856), pp. 375–76; ‘Περί τέκνων, κηδεμονίας κλπ. κηδεμόνων’ [On infants, guardianship etc.], ΦΕΚ 42 (23 August 1856); ‘Περί ναυαγίων και ναυαγιαιρέσεων’ [On wreckages and related issues], ΦΕΚ 71 (7 November 1856), pp. 379–84; ΦΕΚ 67 (10 August 1861). See also the two important laws on land distribution published in 1871: ‘Περί διανομής και διαθέσεως της εθνικής γης’ [On the distribution and disposition of the national lands], ΦΕΚ 25 (16 June 1871), pp. 163–67, and ‘Περί των γενομένων εμφυτεύσεων’ [On the already made emfytefseis], ΦΕΚ 29 (9 July 1871), pp. 195–97. McGrew, Land and revolution, p. 216.

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ideological formulations of the Romanists, based as they were on a strong relationship between the farmer as cultivator and the farmer as citizen, were gradually transformed into criticisms directed at the king. This culminated in the Revolution of 1862 and informed the subsequent political processes: the election of a new king, the proceedings of the Constituent Assembly (in which some of the Romanists were key members) and the new constitution promulgated in 1864. In fact, the constitution included an article that called on future governments to proceed with a widespread land distribution. By so doing the Constituent Assembly transferred the land issue from the authority of the palace to that of the parliament – an action tantamount to a transfer of political authority. This had long-term effects, as a few years later, in 1871, the first comprehensive legislation on the national lands was voted in by the Greek Parliament. With this new legislation, which sought to keep the prices of the land parcels and of possible mortgages to a range affordable for those who were poorer, families were given the opportunity both to secure firm legal ownership of their land and to purchase national lands that were still unoccupied. All told, the 1871 land distribution scheme increased by over one-third the area of arable land under cultivation.68 In addition to getting more families settled on national lands, the government after the 1870s also sought to expand the area of arable land available in the country. That said, the vision of a society of property owners managed and provided for by the Rechtsstaat also had an exclusionary dimension, based as it was on fixing people in place and disciplining social deviance. This was again a wider phenomenon. As Christopher Bayly has argued: The idea that property was the basis of civil government applied only to forms of property which seemed to nineteenth-century rulers to be subject to proof and also ‘useful’ to the idea of improvement. Nomads, herdsmen, hunter-gatherers, or even peasants who moved around frequently or indulged in practices such as ‘slash and burn’ cultivation were a nuisance to colonial states and other emerging political authorities which wanted regular taxation.69

In the case of Greece, this was evident in the arguments addressing the issue of banditry, which from the very first of the relevant reports 68

69

A. Franghiadis, ‘Réforme agraire et développement de la propriété individuelle en Grèce au XIXe siècle. La distribution des domaines nationaux 1871–1887’, in St. Woolf (ed.), Espaces et familles dans l’Europe du Sud à l’âge moderne (Paris: Éditions de la Maison des Sciences de l’ Homme, 1993), pp. 53–75. See also A. Franghiadis, ‘Η διανομή των εθνικών γαιών του 1871: Απόπειρα συνθετικής προσέγγισης’, Νεοελληνικά Ιστορικά, 4 (2016), pp. 191–213. Bayly, The birth, p. 299.

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was related to land.70 The problem intensified in the 1850s. In almost all accounts, the lack of attachment to land, and the logic of collective ownership or use of it that characterised the lifestyle of the nomadic shepherds, was deemed a threat to legality and social order. The issue also became a priority for the Ministry of Justice in 1857 (with Georgios Rallis, a jurist, at its head) when the local courts were asked to file reports on the causes of banditry. The main issue was how to eliminate the ‘parasitic economic activities’ that were complemented by a parallel legal order based on customary law and communal habits.71 Interestingly enough, the jurists also addressed this same issue in nonacademic literary forms. Once again it was Kalligas who did so, in the only novella he ever wrote, Thanos Vlekas, published in 1855–1856.72 The central themes of the book and the putative cause of Greece’s stagnation were brigandage and the unresolved issue of the national lands. Their perpetuation was due to what the author saw as a conflict between two sets of values, which were expressed by the two main protagonists of the novella, who were in fact brothers. One brother was loyal to the heroic code of the pallikaria, prone to corruption and indifferent to ‘domestic matters, concerned [as he was] mainly with being promoted and acquiring honours and distinctions’. The other was industrious and frugal, a hard-working and gentle farmer committed to thrift and usefulness.73 Being less popular than his brother, he was unable to convince him and his entourage to change and make them see that their true interests lay in the interests of the whole. The reason for this was the lack of common sense and sound principles among the Greeks, which, in the words of an American missionary in the novel, formed the basis of the American policies on the land issue and, by extension, of American prosperity.74 The second reason was the incompetence, impracticality and venality of state authorities, which had managed to create a ‘land without

70

71 72

73 74

ΓΑΚ, ‘Υπουργείον των Εσωτερικών’ [Ministry of the Interior], folder 176 (16 November 1835). See also G. Finlay, History of Greece from its conquest by the Romans to the present time, B.C. 146 to A.D. 1864, 7 vols (Oxford: Clarendon Press, 1877), vol. VII, pp. 156–57; I. Koliopoulos, Η ληστεία στην Ελλάδα, 19ος αιώνας (Athens: Epikentro, 1996), pp. 31–33, 217–67. Koliopoulos, Η ληστεία, pp. 221–24 and Petmezas, Η ελληνική αγροτική οικονομία, p. 28. See also the forgotten classic work by Paolo Grossi, Un altro modo di possedere (Milan: Guiffre, 1977). It was published in Πανδώρα during 1855–1856 and then republished as a book. It has remained in print ever since: P. Kalligas, Θάνος Βλέκας (Athens: Ιdryma Kosta and Eleni Ourani, 1991 [1855]). For critical appreciations, see I. M. Konidaris, ‘O Θάνος Βλέκας του Παύλου Καλλιγά. Μια ιστορικονομική θεώρηση’, in (no ed.) Αφιέρωμα στον Ανδρέα Γαζή (Athens-Komotini: Ant. Sakkoulas, 1994), pp. 291–312. Kalligas, Θάνος Βλέκας, pp. 68, 227. Ibid., pp. 115–16. Here Kalligas alluded to American policies (probably the Donation Land Act of 1850), comparing their effectiveness with the counter-example of Greece.

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people and a people without land’.75 Thus, it should come as no surprise that the first law on the distribution of land went hand in hand with the first comprehensive campaign against brigandage (also put into effect in 1871).

Conclusion A challenge when studying the transition from the legal pluralism of empires to more state-centred legal orders is to refrain from employing the overly teleological narratives informing modernisation theories and to seek rather to explain how and why a new legal order is formed, as well as its intrinsic nature. In order to understand these matters, especially in cases such as the Greek kingdom where the European world encountered the non-European world, legal politics and conflicts over jurisdiction, as well as the role of intermediaries, are crucial.76 This chapter has shown how this legal politics played out in the case of Greece, and the crucial role the civil lawyers had in shaping it. Although the jurists initially welcomed the reforms introduced by the Bavarian authorities, they gradually came to level criticisms at the type of state and law that the Bavarians had attempted to establish. In doing so, they were influenced by certain of the liberal formulations of their own time and in particular by European jurisprudence (the Historical School of law), which they creatively adapted to the Greek case. By contextualising their legal ideas, and their public interventions, the chapter has explored what the Romanists’ liberal project entailed and what the jurists tried to achieve by turning to Romanist jurisprudence. Roman law offered them a consistent method with which to ‘produce’ a Greek corpus of legislation and consolidate a ‘state under the rule of law’. This they imagined to be an administrative state that would enforce contracts, punish fraud, maintain order and safeguard peaceful economic activity. And it was to do so by being, as Kalligas put it, the protector and guarantor of the ‘general will [or interest]’. According to the teachings of Roman law, the ‘impartial’ guardians of this ‘state of law’ were none other than the professors themselves. Both of these ideals were deemed progressive and partly complemented the efforts of the central authorities to establish a modern state. In other words, liberals of the Romanist variant tried to reconcile order with progress under a strong central government through Roman jurisprudence. This agenda was to have serious political implications. Although during the 1830s–1840s debates among lawyers and state authorities had focused on the extent to which civil law should take into consideration existing legal 75 76

Ibid., pp. 115–16. Benton, Law and colonial cultures.

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norms, customs and practices, or rather impose a completely new framework (in the form of the Code civil), they gradually became politically charged. The reason was the issue of the national lands – the most controversial issue of domestic policy – and took the form of legal struggles over property and private law. For the jurists the main issue was to find the most efficient way to reconfigure the rights and practices of an older order into a grid of private property rights. Roman law would function as the transition mechanism to a liberal property regime. But this vision ran counter to monarchical policies that treated the national lands as potentially state property. The jurists’ response was to develop gradually a subversive socio-political agenda that supported the rights of cultivators against the monarchical state and any policy that did not advance a social order based on fixed private property. This they did by reforming private law rules, by providing the discursive framework that would facilitate the operation of these rules and by outlining changes to the administration of justice. In doing so, they were equally preoccupied with protecting civil liberties, with establishing a society of property owners and with advocating a degree of national self-determination compatible with the presence of the non-Greek authorities in the country. In that sense, these struggles over property and liberty were actually struggles over sovereignty, the social order and the state. During the 1840s, they addressed these issues consistently in a scholarly fashion, trying to diffuse a language of law into the public sphere. From 1850 onwards, however, their efforts became more politically oriented. Through legislation and the administration of justice, they managed to facilitate the formalisation of property rights, contributing in their own way to the major result of nineteenth-century social struggle: the large-scale distribution of land. Their vision was that of a classless nation under a legitimate sovereign authority in which law not only expressed the will of the people, it also constrained that of their rulers. But what can the Greek case tell us about the wider question of the relationship between liberalism, law and property in the context of transition to a state-dominated order? One thing to note is that, as historians studying the early modern period have maintained, Roman law was more a resource than a map – its use depended on the context. In general, for European jurists, Roman law was both a consistent method for law-making and a powerful political ideology, one that linked private property to personal liberty and to equality of conditions. In the Greek case, it was part of the attempt to formulate liberal demands in the context of semi-colonial sovereignty and hegemony; one that represented both an opportunity and a challenge to the principle of national sovereignty. A second point is that, as in several other colonial and post-imperial settings, in Greece Romanist jurisprudence developed as a language of statehood and a ‘territorial’ programme

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that associated sovereignty with the reorganisation of space within the state. The chapter has thus shown that the Romanists played a key role in the restructuring of space – in both conceptual and practical terms – within the borders of the state, thereby laying the foundations for two features of Greek political culture with a long life: small ownership and an egalitarian political ideology that measures equality by ownership of land. A third point is that, as in other similar contexts where such legal intermediaries had potentially a large field of action, the Greek Romanists drew from a number of European ideological currents of their time. And they did so in a highly creative way. In fact they revised them at will, mixing ideas from different traditions and adapting them to their own aspirations. In that sense, not only were their liberal formulations not backward, they were actually rather original. Indeed, whereas languages of property and in particular claims of possession drawn from Roman law were very attractive to colonial agents, in Greece they became a means of practical statecraft, which the jurists turned against these agents and the type of state they sought to establish. This point should act as a reminder that Roman law, as any liberal theory at the time, was by no means simply a tool for claims of colonial consolidation. It could also be used to undermine colonialist policies. Last but not least, as the Greek Romanists saw it, scholarly interventions and changes in law are not enough, if one seeks to inculcate a different social vision. Thus, their interventions included several non-legal narrative forms – history and novels – with which they fashioned an ‘integral’ subjectivity, which every individual would need to possess, if s/he were to become a ‘subject’ of (any) system of law, morality or property. This vision had winners (farmers, capitalists and generally owners) and losers (nomads and others who preferred to use land in their own fashion, move around and remain ‘unregistered’ and ‘unknown’ to the state). These latter were gradually placed outside the law and related to the illegalities of banditry with their presumed lawlessness. The larger story being told here might be told in relation to almost any other case where the European world encountered the non-European world. The point, however, is that local circumstances do matter. It is the combination of these circumstances with wider processes and geopolitical pressures that defines to a great extent how such encounters unfold and indeed how states come to be built. But then a question that needs to be asked is whether the Romanists were indeed as dominant as a part of Greek historiography would have it. Did they converse with or were they opposed to other liberal political visions? Although Greek historiography has never seen Greek legal thought as imbued with different versions of liberalism, this book will now turn to the emergence of other, partly different liberal idioms that were formed and diffused in the same period as the Romanist ideas.

chapter 3

‘It’s More Than Economics, Stupid’

Political Economy and the Limits of ‘Industrial’ Economics (1840s–1860s)

Introduction Chapter 2 argued that the Romanist jurists envisaged a society with small property owners, and that they focused their interventions on consolidating private property, which they saw as a prerequisite of liberty. Although as public moralists they were suspicious of the latent individualism of civil law and did think of society in national terms, their vision of the overall goal of the national polity remained intellectually rather abstract, while their political ideals focused on the preconditions that would facilitate a virtuous private life. Based on the Rechtsstaat, their discussions on the state and the sources of political legitimacy were rather limited. Nevertheless, discussions on the state and public institutions and their role in Greek society gradually became a concern for the jurists. As we will see in Chapters 4 and 5, it was mainly the political economists and the constitutional law scholars who addressed the issue most consistently. By so doing, they initiated a process of transformation in ideas about government. This matched the reforms in the structure of politics that were introduced from 1844 onwards. The most important outcome was a novel perception of the ‘state’ and public institutions as political agents and sources of initiative in their own right, rather than as mere arrangements that complemented the exercise of monarchical power. This chapter explores the role of political economists in this process, before turning to the constitutional lawyers. The former initiated and participated in a number of fruitful debates on taxation, commerce, public debt and agriculture. Partly because of these debates, the appropriate policies that the Greek state should follow for its development gradually came to take centre stage in nineteenth-century Greek politics, contributing substantially to the articulation of novel perceptions of the role of the state and the government. The chapter focuses on Ioannis Soutsos, the first economics professor at the University of Athens. In a university 96

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system where long-term continuous tenure was rare, Soutsos remained in his appointment at the law school for most of the nineteenth century. But as we will see, the title of his chair did not go unchanged, and this for a reason. Soutsos also held important posts within the Council of State and the Ministry of the Interior, as head of a bureau that was to all intents and purposes the state’s statistical service. Despite these last appointments, he rarely deviated from his scholarly preoccupations with political economy or, as he characteristically came to call it, ‘Ploutology’– the science of wealth.1 The only seeming exception to his mainly economic writings was his first public contribution: a constitutional draft published during the proceedings of the First National Assembly in 1843 that was meant to serve as a platform for discussions on the form of the constitution. As will be shown, this exception should not be treated as an early political transgression, but as a constituent part of his disciplinary vision of economics and its association with political concerns. Greek economists of the early and mid-twentieth century were generally very critical of the accomplishments of nineteenth-century Greek economic thought. This negative evaluation went hand in hand with a negative assessment of the development of the Greek economy.2 Although economists like Ioannis Soutsos were credited with producing, diffusing and popularising an economic vocabulary, the Greek political economy was dismissed as being underdeveloped, analytically defective and yet another proof of the backwardness of Greek liberalism.3 These were generally studies that ignored the theoretical foundations and the moral underpinnings of nineteenth-century political economy and the broader European intellectual context in which it developed. Historians of Greek economic thought have recently revised these simplistic interpretations. This revisionism has been part of a wider project within Greek economic historiography that has challenged – rather consistently compared to other fields of historiography – conventional wisdom and the perception of the 1 2

3

I. Soutsos, Πλουτολογία, 2 vols (Athens: Typ. N. G. Passaris, 1868–1869). Indicatively G. Charitakis, ‘Οικονομική γεωγραφία: Εισαγωγή’, in Μεγάλη Ελληνική Εγκυκλοπαίδεια Πυρσός, 28 vols (Athens: P. Drandaki, 1937), vol. X, pp. 71–73. See the comments made in M. Psalidopoulos and Y. Stasinopoulos, ‘A liberal economist and economic policy reform in nineteenth-century Greece: The case of Ioannis Soutsos’, History of Political Economy, 41, 3 (2009), pp. 491–517. For example, X. Zolotas, Θεωρητική οικονομική (Athens: Papazisis, 1942), p. 216. Andreas Andreadis – a prominent Greek economist and professor of economics at the Law School in the inter-war period – counted him as a follower of Sismondi without any further elaboration: A. Andreadis, ‘Griechenland’, in H. Mayer et al. (eds.), Die Wirtschaftstheorie der Gegenwart, 2 vols (Vienna: Springer, 1927), vol. I, pp. 236–46.

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Greek state and the economy as monolithic and of nineteenth-­century Greece as backward and underdeveloped in comparison to Western European countries. New studies on nineteenth-century Greek economic history have shown that the Greek economy developed substantially, albeit slowly, during the nineteenth century: production increased, and the economic role of the state changed considerably.4 In the same way, historians of economic ideas have reassessed the diffusion, production and role of economic ideas in nineteenth-century Greece. The innovation here has consisted of locating debates on free trade, industrialisation and private property both in the local political and economic context and in Europe-wide debates as these were developed after Adam Smith. In so doing, these historians were influenced by a more general trend among economists and intellectual historians studying economic thought, who from the 1970s onwards turned to exploring the rhetoric and language of economics, and to situating it in its intellectual context.5 According to this revisionist strand, Greek economists were influenced by the eighteenth- and nineteenth-century British and especially French economists, with J. B. Say prominent among them. They were very well informed about economic developments in Europe and beyond, while their economic thought and political ideas were consistently liberal.6 In other words, Greek economists were not only conversant with Western European trends in political economy. They also elaborated their own 4

5

6

See K. Kostis, ‘Δημόσια oικονομικά’, in Kostis and Petmezas, Η ανάπτυξη, pp. 293–335 and the editors’ Introduction, pp. 21–37. See also Petmezas, Η ελληνική αγροτική οικονομία, as well as the characteristic volume on ‘less developed Europe’, M. Psalidopoulos and M. E. Mata (eds.), Economic thought and policy in less developed Europe (London: Routledge, 2002). For example, A. Sen, On ethics and economics (Oxford: Blackwell, 1987); M. Nussbaum and A. Sen (eds.), The quality of life (Oxford: Oxford University Press, 1993). For the reappraisal of Smithian and post-Smithian economic thought, see D. Winch, Adam Smith’s politics: An essay in historiographic revision (Cambridge, UK: Cambridge University Press, 1978); D. Winch, Riches and poverty: An intellectual history of political economy in Britain, 1750–1834 (Cambridge, UK: Cambridge University Press, 1996); D. Winch, Wealth and life: Essays on the intellectual history of political economy in Britain, 1848–1914 (Cambridge, UK: Cambridge University Press, 1999); I. Hont and M. Ignattief (eds.), Wealth and virtue: The shaping of political economy in the Scottish Enlightenment (Cambridge, UK: Cambridge University Press, 1983). Psalidopoulos and Stasinopoulos, ‘A liberal economist’; M. Psalidopoulos, ‘The Greek Society for Freedoms of Trade (1865–67): Rise, activities, decline’, Journal of the History of Economic Thought, 27, 4 (2005), pp. 383–98. See also M. Psalidopoulos, ‘Οικονομική σκέψη και πολιτική’, in Kostis and Petmezas (eds.), Η ανάπτυξη, pp. 337–77; M. Psalidopoulos, ‘Aristides Economos and the “Oikonomiki Epitheorissis”: The rise and fall of an economic journal in 19th century Greece’, History of Economic Ideas, 4, 3 (1996), pp. 149–67; Y. Stasinopoulos, ‘Economic thought and monetary policy in nineteenth-century Greece’, in Psalidopoulos and Mata (eds.), Economic thought, pp. 172–86; and P. Hionidis, ‘Greek responses to Cobden’, in A. Howe and S. Morgan (eds.), Rethinking nineteenth-century liberalism: Richard Cobden bicentenary essays (Aldershot: Ashgate, 2006), pp. 161–73.

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views in light of the local state of economic affairs. Indeed, the revisionists contended that Say and other French and British economists were relevant to Greece because of their textual accessibility and their identification with political and economic liberalism.7 They thus challenged an old historiographical indictment that deemed Greek liberalism after the foundation of the state to have been intrinsically defective and defeated by the rise of Romanticism. This chapter will follow this revisionist line of argument by concentrating on the crucial periods between the establishment of the Greek state (1832), the institutionalisation of political economy at the Law School (1837) and the early 1860s. It will concentrate on two interrelated issues: the scope of economics as a discipline and its moral and political concerns. By so doing, it will also challenge some of the interpretations advanced by the revisionist scholars, not least because of the rigid distinction they have drawn between loosely defined liberal economic thinking and a popular strand of conservative or Romantic economic thought. The former was identified with classical political economy and reason and the latter with a combination of Christian–Byzantine ‘communitarian’ values (anti-individualism, communal attachment), Romantic values such as prudence and austerity, and some – again loosely defined – liberal values.8 In that way, recent scholarship has simplified both currents of thought, and in particular the former, by downplaying the way in which political economy was transformed after the Restoration and came to use a moral language. The chapter will thus put a stronger emphasis on the European intellectual and political context of which Greek economic thought formed a part, and from which it drew its major influences. This was a much more complicated context than Greek historians have asserted, and this is where this chapter departs from previous accounts. To be sure, political economy in Greece, as elsewhere in Europe, was built upon the foundations provided by the work of Adam Smith. But, as will be shown in the next section, intellectual historians have maintained that the diffusion of Smith’s teachings resulted in divergent readings, with the difference between Britain and  continental Europe being especially marked. This divergence was related both to the propositions of political economy and to the associated 7 8

Psalidopoulos and Stasinopoulos, ‘A liberal economist’, p. 496; Psalidopoulos, ‘Aristides Economos’, pp. 149–67. Psalidopoulos called this economic tradition ‘διαχειριστική’ (operational), but he refrained from recognising it as a school of thought: Psalidopoulos, ‘Οικονομική σκέψη’, p. 342.

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issue of its nature as a science.9 As the chapter shows, Greek economic thinking was attentive to these different readings and the intellectual traditions that were formed in the process and drew to a large extent upon older economic idioms – as evidenced especially by the case of Italian and German scholars. Initially, academic and popular works published in Greek disseminated an economic language that rejected mercantilism and state intervention and advocated the inculcation of virtuous manners such as industriousness and frugality. Interestingly, Greek economists combined this focus on private economic virtues with the notion of ‘public economy’ that informed the economic and administrative policies of the Bavarians, influenced as these were by the science of Polizeiwissenschaft. From the early 1840s, however, concerns were raised about the dangers emanating from an exclusive focus on economic virtues at the expense of the benefits of institutional change and political participation. This was a conflict between a vision of economics strictly limited in its subject matter and that of a science that was more attentive to public morals and politics. Soutsos was at the centre of these intellectual and political transformations. According to modern Greek historiography, he was a convinced liberal economist who learned economics through French liberals, and especially J. B. Say.10 Indeed, Soutsos shared with Say both the central role the latter accorded to free trade, individual liberty and private property for economic growth and the republican emphasis on equality and a mode of public life moulded by industriousness and frugality.11 In other words, it was not only Say the economist that Soutsos cherished but also Say the political moralist, who recognised political economy as a part of moral and political sciences that had the task of inculcating republican manners. But, as the chapter argues, in many respects Soutsos also departed from his master’s teachings and turned to the republican thought of Simonde de Sismondi and his professor at Geneva, Pellegrino Rossi. Going against 9

10

11

K. Tribe, ‘Continental political economy: From the physiocrats to the marginal revolution’, in T. M. Porter and D. Ross (eds.), The Cambridge history of science, 8 vols, vol. VII: The modern social sciences (Cambridge, UK: Cambridge University Press, 2003), pp. 154–70. For Say’s influence on Soutsos, see Psalidopoulos and Stasinopoulos, ‘A liberal economist’, pp. 493–95. For Say’s general influence in the Greek-speaking world, see T. Sklavenitis, ‘O Σπυρίδων Βαλέτας και η μετάφραση της πολιτικής οικονομίας του J. B. Say’, in Η Επανάσταση του 1821. Μελέτες στη μνήμη της Δέσποινας Κατηφόρη (Athens: Etaireia Meletis Neou Ellinismou, 1994), pp. 107–56. For Say and republicanism, see R. Whatmore, ‘The political economy of Jean-Baptiste Say’s republicanism’, History of Political Thought, 19, 3 (1998), pp. 439–56, and R. Whatmore, Republicanism and the French Revolution: An intellectual history of Jean-Baptiste Say’s political economy (Oxford: Oxford University Press, 2000), pp. 17–36 and, for the way his thought developed after the restoration, see pp. 189 and thereafter.

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the view that freedom is accomplished only through the exercise of individual liberty and that the state is a hindrance to society, he argued that governmental action and a sound institutional set-up are also crucial in producing freedom and moral and material welfare. His concerns emanated both from the socio-economic conditions in Europe that had led to the attack on property in 1848 and from the unchanged state of Greece’s economy and society that had jeopardised its place in the geography of the ‘civilised nations’. These intellectual and political conditions demanded a different economic and political idiom. This concern of course was not restricted to Greece. It echoed a long Europe-wide debate about the role of political economy and the obsession with economic virtues at the expense of civic virtues, institutional change and political participation.12 By thus turning to the republican thought of Simonde de Sismondi and Pellegrino Rossi, Soutsos related industrie to political rights, and called for large-scale economic and social reforms (including widespread land distribution). He also advocated an economic science attuned to governmental action and to the importance of taking local conditions seriously. In this way, political economy gradually acquired a wider political and moral dimension associated with the science of ­government.13 By so doing, Soutsos turned against both the ‘public economy’ school of thought – as this was understood at least by the monarchical authorities – and those thinkers who viewed the state as just a legal mechanism and protector of rights, with no role to play in promoting culture and moral and social welfare. The primarily political nature of his economic thinking was not only important from a theoretical point of view, but informed political thinking and found its way into constitutional reforms. What the Greek case thus shows is the ways in which economic thought in the nineteenth century fused liberal and republican languages and combined an idiom of economic analysis with the idiom of political rights and modernisation. From this perspective, Ioannis Soutsos imposed a new twist on an old idiom, illustrating the institutional and organisational inventiveness of political economy.14 There was nothing exceptional in 12

13 14

S. Collini, D. Winch and J. Burrow (eds.), That noble science of politics: A study in nineteenth-century intellectual history (Cambridge, UK: Cambridge University Press, 1983); see also Winch, Riches and poverty and Isabella, Risorgimento in exile. Soutsos, Πλουτολογία, vol. II, p. 173. See also the comments by Andreadis, ‘Griechenland’, p. 237. Kalyvas and Katznelson, Liberal beginnings, pp. 1–17; H. Rosenblatt, ‘Re-evaluating Benjamin Constant’s liberalism: Industrialism, Saint-Simonianism and the Restoration years’, History of European Ideas, 30 (2004), pp. 23–37. For an overview of the history of this inventiveness in the nineteenth century, see E. Rothschild, ‘Political economy’, in Jones and Claeys, The Cambridge history, pp. 748–79.

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this since, as various scholars have shown, the discourse on civic virtues in the nineteenth century was constantly reinvented according to varying contexts and problems, especially in the case of intellectuals coming from parts of Europe where state-building, the establishment of liberal institutions and economic development were intellectual concerns and political objectives that came together.15 Whereas in countries such as Britain liberal political economy was to a large extent a means of containing the state, in many continental countries it was linked to the formation of the state. If there was any particularity to the Greek case, it was that this role of liberal economics as a form of legitimisation of the state was even more pronounced. This was partly due to the fact that liberalism had emerged as the historical starting point of national independence and statehood. In the fluid post-revolutionary political context, it continued to be associated with the process of national regeneration and with European progress, finding its way into claims for political reforms and eventually into institutions. The case of Greek economic thought and in particular that of Soutsos is thus a reminder that the forms of organised knowledge relevant to the consideration of political questions were not always to be found in studies of an explicitly political character. What is more, the Greek case shows that, where state-building, establishing liberal institutions and economic development were intellectual concerns and political objectives that came together, ideas about state intervention and the view of economics as a science of government stayed in fashion long after 1848, when they had lost their appeal elsewhere. Indeed, in the wake of the revolutions of that year, the threat posed by socialist ideas and the free trade movement, state intervention or the idea of economics as a science of government became very unfashionable among liberal economists, not least in other parts of Southern Europe – although the case of Italy was for its part rather complicated.16 The next section of the chapter discusses the diffusion of an economic idiom during and after independence that was informed by Restoration political economy and concentrated on the importance of economic virtues such as industriousness and prudence as the organising principles of economy and society. It shows how this idiom complemented the economic logic of Bavarian policies, which was to a large extent informed by 15 16

For the case of Italy, see Isabella, Risorgimento in exile, pp. 182–85; R. Romani, ‘The Cobdenian moment in the Italian Risorgimento’, in Howe and Morgan, Rethinking, pp. 117–40. R. Romani, ‘Reluctant revolutionaries: Moderate liberalism in the Kingdom of Sardinia, 1849– 1859’, Historical Journal, 55 (2012), pp. 45–73.

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the older idiom of ‘public economy’. It then shows how from the 1840s onwards, concerns were raised about the obsession with economic virtues at the expense of civic virtues and the benefits of institutional change and political participation.

Political Economy after Adam Smith As already mentioned, political economy after Adam Smith was a rather complicated phenomenon. In light of the industrial and economic success of Britain, especially after the Napoleonic wars, economists like Nassau Senior, David Ricardo and Ramsay McCulloch seemed to agree that economic growth, social progress and even the eradication of poverty could be achieved by the establishment of a basic legal framework and an emphasis on economic virtues such as self-restraint and industriousness. Even if these arguments had stern moral connotations and were influenced by religious discourses, their diffusion ran at the expense of an older language of political virtue.17 In addition, political economy had come to be conceived as a highly specialised social science with its own scientific status, the objective of which was to facilitate economic progress. In this way, although still regarded as a science of government early in the nineteenth century, it was gradually dissociated, to a large extent, from constitutional thought and from other moral and political sciences.18 On the Continent, however, the development of political economy was a more multifaceted phenomenon. To be sure, many of the British formulations (by Senior et al.) discussed earlier about the value of the English economic model of development and the belief that society had an economic foundation were shared by numerous continental writers, even if they deployed other ideological languages. At the beginning of the Restoration, several writers (Idéologues and Saint-Simonians among them), such as Charles Dunoyer, Charles Comte, Charles Dupin, Melchiorre Gioja and Michel Chevalier (to name but a few), employed an ‘industrial’ language and claimed that the most effective way to establish order and freedom in European societies – often taking England as their model – was to inculcate moral and economic values like productivity and

17

18

S. Collini, Public moralists: Political thought and intellectual life in Britain, 1850–1930 (Oxford: Oxford University Press, 1991), especially the chapter ‘The Idea of character: Private habits and public virtues’, pp. 106–38. For the religious background, see B. Hilton, The age of atonement: The influence of evangelicalism on social and economic thought (Oxford: Oxford University Press, 1988). See Winch, Riches and poverty; Winch, Wealth and life; Collini et al., That noble science.

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industriousness.19 This language, which deemed commerce and industrie to be the most effective forces of change and dismissed the role of republican virtues, was disseminated not just in France but also in the Low Countries, Italy and the Mediterranean in general (Greece included, as we shall see). Compared to British economics, however, and notwithstanding the emphasis on economic virtues, this ideological current had a more pronounced interest in policy issues, a more marked pedagogical character and a broader, larger concern with social stability. There were several reasons for this differentiation. One was that in many continental countries those preoccupied with economic matters perceived the application of economic laws as the proper route to national power and progress. For them, in other words, political economy acted as a theory of nation-building and modernisation. Another reason was the rise of the ‘social question’, which would turn political in 1848. In light of this, in France the economists who gathered around the Journal des économistes and the Société d’Economie Politique placed more emphasis, compared to the British, on the importance of scientific investigations, ‘virtuous industry’, free trade and state neutrality in private economic affairs.20 But this French divergence, which was rather influential on the Continent, was only one among many. In fact, many continental intellectuals went a step further by raising concerns about the negative effects of an English-style commercialisation and what they saw as the extreme poverty and erosion of the social fabric caused by industrial growth. These criticisms made such writers equally sceptical about the separation of economics from politics and from other moral and political sciences. The threat that an exclusive focus on private virtues posed to the stability of societies led them to mix the new economic discourse with older economic and political idioms in order to reconcile private virtues with public life. This was highlighted by the continuing use of a language of republicanism, or at least by the way they sought to adapt republicanism to the political framework of the Restoration. This they saw as the only way to guarantee the morality of public life and reconcile commerce and virtue. Two names stand out in this tradition: Simonde de Sismondi and J. B. Say. The former 19

20

C. B. Welch, Liberty and utility: The French Ideologues and the transformation of liberalism (New York: Columbia University Press, 1984); B. W. Head, Ideology and social science: Destutt de Tracy and French liberalism (Dordrecht: Kluwer, 1985). R. Romani, ‘Political economy and other idioms: French views on English development, 1815– 48’, European Journal of the History of Economic Thought, 9 (2002), pp. 384–401; Romani, ‘The Cobdenian moment’, pp. 113–17. The Société d’Economie Politique was a sort of think-tank with an imposing public profile that followed the establishment of the Journal. See later in the chapter.

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provided the most consistent and influential republican political economy in the post-Napoleonic period. He did so by turning against Ricardian political economy and by criticising especially its obsession with production and its lack of interest in civic participation.21 The case of J. B. Say was more complicated and in the long term probably more important and influential. Historians have long ago shown that Say did not only make original doctrinal contributions to economics (Say’s law, the utility theory of value and a greater attention to consumption). He also played a key role in the dissemination of Smithian economics on the Continent. More recently, however, historians have argued that Say was not just a populariser of Adam Smith, and that in fact it was he who offered the analytical tools to the Idéologues and others for disparaging idlers and especially for making industrie the organising principle of society. Other intellectual historians have further complicated the picture by contending that Say was an unorthodox political economist whose main preoccupation, from the early nineteenth century onwards, was how to reconcile commercial values with republican principles. In trying to do so, he did not rule out taxation or other immediate reforms as means of promoting equality and combating poverty. But gradually his emphasis came to be on the importance of upbringing and education. By contextualising his thought, historians have maintained that after 1814 especially, when he attained wide popularity, Say remained faithful to his republican principles and the idea of liberty by adapting his republican claims to the conditions of monarchy. He did so by insisting on the inculcation of a secular moral discourse based on the republican virtues of industriousness, frugality and enlightened selfinterest. This has led historians to argue that Say opposed the liberal creed, as popularised by Benjamin Constant, François Guizot and others.22 In contrast to these latter, Say criticised the British example and the corrupting effects of mercantilism, proposing instead the ‘promotion of free trade, the abolition of aristocratic forms of monopoly in commerce and in politics, and the fostering of a republican morality of frugality and industriousness, as taught by political economists as public moralists’.23 As his contemporaries perceived it, the civic 21

22 23

S. de Sismondi, Nouveaux principes d’économie politique; ou de la richesse dans ses rapports avec la population (Paris: Delaunay, 1819). See also R. Romani, ‘The republican foundations of Sismondi’s Nouveaux principes d’économie politique’, History of European Ideas, 21 (2005), pp. 17–33; Biagini, ‘Neo-Roman liberalism’, pp. 55–72. G. St. Jones, An end to poverty? A historical debate (London: Profile Books, 2004), pp. 119–25. R. Whatmore, ‘War, trade and empire: The dilemmas of French liberal political economy, 1780– 1816’, in R. Geenens and H. Rosenblatt (eds.), French liberalism from Montesquieu to the present day (Cambridge, UK: Cambridge University Press, 2012), pp. 169–91 (p. 190). See also Whatmore, Republicanism, pp. xiii, 189–216.

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arguments he formulated during these years through his public involvement and his teaching at the Collège de France concerned the means with which to attain cultural enlightenment, rather than the best form of government.24 As historians of political thought have recently argued, by so doing Say removed discussions of industrie from a specifically republican framework and rejected the view that economic affairs should be related to politics. Such a view, in Say’s judgement, was an obsolete legacy of the ancients. What is more, they have shown that this sort of republicanism exerted a profound influence upon post-revolutionary liberalism and, that even though Say’s work was read in different ways by different scholars and publicists, it left an important legacy.25 Firstly, it construed economic virtues in moral terms; and secondly, it possessed an institutional dimension in the sense that a republican patrie would, it was argued, engender a virtuous citizenry through education and, to some extent, economic equality through agrarian laws, confiscations and progressive taxation. Writing in this vein, Pellegrino Rossi, Say’s successor in Paris, argued that economic policies should take into account moral principles when dealing with social questions, even when they seemed to go against free competition. But he also accorded an even more prominent role, compared to Say, to a sound institutional set-up for promoting these moral principles and economic growth.26 Although Rossi was close politically to the Doctrinaires, his economic thinking was similar to that of (the republican) Sismondi, in the sense that he thought that the state and public institutions should play an enhanced economic and moral role in fostering modern commercial nations. Yet this sort of commercial republicanism was not the only economic idiom to be employed in the wake of the British economists’ and French industrialists’ obsession with productivity and economic efficiency. Many continental economists resorted time and again to the widely shared eighteenth-century European economic idiom of ‘public economy’. Exemplified by several French, German and Italian scholars in the eighteenth century, not least by Jean-Jacques Rousseau in his entry on 24 25

26

Whatmore, Republicanism, pp. 191–94. Jones, An end, pp. 110–32; Whatmore, ‘War, trade and empire’; and R. Romani, National character and public spirit in Britain and France, 1750–1914 (Cambridge, UK: Cambridge University Press, 2002), p. 94. See also the introductory essays by P. Steiner and J.-P. Potier in J. B. Say, Traité d’économie politique ou simple exposition de la manière dont se forment, se distribuent et se consomment les richesses, edited by Claude Mouchot, 2 vols (Paris: Variorum, Économica, 2006 [1803]); M. Guidi, T. Maccabelli and E. Morato, ‘Neo-Smithian political economy in Italy (1777–1848)’, Economies et sociétés, Serie Oeconomia, ‘Histoire de la pensée économique’, 2 (2004), pp. 217–65; R. Romani, L’economia politica del Risorgimento (Turin: Bollati Boringhieri, 1994). P. Rossi, Cours d’Economie Politique, 4 vols (Brussels: Société Typographique Belge, 1838–54), vol. I, pp. 30–31, 35–37, 284–90.

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‘Economie (Morale et Politique)’ in the Encyclopédie, public economy was considered to be an administrative science associated with the Polizeistaat and cameralist doctrine.27 As already mentioned in Chapter 1, cameralism and its literature had blurred the distinction between economic thinking, state policies and statistics and determined the ways in which the state might interfere in economic matters through far-reaching and prudent administrative action. Τhis theory and the policies it underpinned were closely linked to the idea that a government’s objectives and moral imperatives were to improve the ruler’s domain, construct and control social order and guarantee public happiness – the greatest possible happiness shared by the greatest possible number.28 Although public economy was attacked by the Physiocrats, not least for its artificiality and impeding of natural economic activities, its legacy remained strong in many continental countries. This was also a result of the way political economy entered university education; that is, as one of the compulsory lecture subjects for law students, many of whom would later enter public administration (in German states, Italy and Greece).29 In the German states, even though in the early nineteenth-century economic doctrine underwent a slow transformation towards self-guiding human action and a new doctrine of human needs, it continued – in the form of Nationalöconomie – to stress a close correspondence between economic life and the broader life of the nation. Statistics could lead to a total knowledge of the population’s needs, and the economic action of the state could form a strategy on how to satisfy them without necessarily taking into account the subjective attributes of the population.30 In the case of Italy, this perception was strongly defended by Gian Domenico Romagnosi, his pupils and especially Giuseppe Pecchio. Critical of Ricardian economics, these Italian scholars argued in favour 27

28

29

30

See ‘Discourse on political economy’ in J.-J. Rousseau, The social contract and other later political writings, edited by V. Gourevitch (Cambridge, UK: Cambridge University Press, 1997), pp. 3–38; Tribe, ‘Continental political economy’, pp. 155–61. For ‘cameralism’ see K. Tribe, Governing economy: The reformation of German economic discourse 1750–1840 (Cambridge, UK: Cambridge University Press, 1988), and T. W. Hutchison, Before Adam Smith: Emergence of political economy, 1662–1776 (Oxford: Oxford University Press, 1988). For the concept of public happiness see Isabella, Risorgimento in exile, p. 154; S. Patriarca, Numbers and nationhood: Writing statistics in nineteenth-century Italy (Cambridge, UK: Cambridge University Press, 2003), p. 54. Political economy was established as an autonomous subject in educational institutions of continental Europe in the early nineteenth century. But up to approximately the 1870s, its practitioners were trained in law. In fact, this legal training was both a common element in their educational background and a common professional interest. For economics as a university discipline in Britain, see P. D. O’Brien, The classical economists revisited (Princeton, NJ: Princeton University Press, 2004), pp. 9–12. Tribe, Strategies.

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of reconciling civic virtues, public life and industrie, supporting the role of the state and a close relationship between economics and politics in its definition of public economy. This Italian economic thinking made political economy an essential component of a national intellectual tradition, and thus of national pride, and established a link between economic aspirations and the Risorgimento as a political and intellectual endeavour. This was exemplified by the emblematic work of Giuseppe Pecchio – Storia dell’economia pubblica in Italia (1829) – in which he linked political economy and liberal reforms, defining the former as ‘another name for liberty’ and the ‘scienza dell’amor patrio’. As Maurizio Isabella has argued, the uniqueness of this book lay in its propensity to defend economic progress in the English vein while forestalling its negative social effects by incorporating certain aspects of the eighteenth-century public economy approach.31 In the wake of these debates, which were not solely about economic issues narrowly defined, Greek economic thinking combined several different economic idioms and did so in an original fashion.

Political Economy, Civilisation and Manners in South-Eastern Europe Books on economic thought were available to the Greek-speaking public of South-Eastern Europe long before the creation of the state and the academic institutionalisation of political economy at the University of Athens in 1837.32 The first such books were not on political economy per se, but were commercial handbooks that were financed by wealthy merchants and dealt with arithmetic, weights, measures and tables for the conversion of foreign currencies. An interesting and influential example was N. Pappadopoulos’ The gainful Hermes: Encyclopedia of commerce (5 volumes published in 1815 in Venice), where the first depiction in Greek of Adam Smith’s pin factory and the division of labour is to be found.33 Increasingly, the classical economists and their works were widely cited and read within 31 32

33

Isabella, Risorgimento in exile, pp. 159–69. It is important to note that in the nineteenth century it was difficult to draw precise distinctions in this regard, since many academic subjects cut across disciplines. That being said, economic texts in this chapter include publications that explored issues of production and circulation of goods, distribution of incomes, public economics and the theory and history of economics. T. Sklavenitis, Εμπορικά εγχειρίδια κατά τη διάρκεια της βενετοκρατίας και της Τουρκοκρατίας και η εμπορική εγκυκλοπαίδεια του Νικολάου Παπαδόπουλου (Athens: Etaireia Meletis tou Neou Ellinismou, 1991). See also M. Psalidopoulos and N. Theocharakis, ‘The diffusion of economic ideas in Southeastern Europe in the 19th century’, in H. D. Kurz, T. Nishizawa and K. Tribe (eds.), The dissemination of economic ideas (Cheltenham: Edward Elgar, 2011), pp. 161–91 (p. 166).

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Greek intellectual circles in France, Austria and the Danubian principalities. Adamantios Korais and his circle in Paris, eager to transfuse – a process that he called metakenosis – European ideas of rationalism and of liberty into Ottoman Greece, turned to the British economists (A. Smith, D. Ricardo and T. R. Malthus) and later on to the economic writings of the Idéologues and especially J. B. Say.34 At the same time, learned Greeks in Vienna turned to economic publications.35 The wider relevance of this trend towards political economy was not lost to Ottoman observers of the time, who, as Yusuf Karabicak has shown, were quick to associate it with the development of Greek nationalism and the country’s deliverance and liberation from the Ottomans.36 This interest became much more intense during the revolutionary decade when books on political economy proper were published. Inaugurating a trend that was to have a long presence in Greek economic thought, intellectuals turned to translations of French economic texts and in particular J. B. Say. The first incomplete attempt among learned Greeks to champion Say’s works was the translation of the fourth edition of his Traité d’ économie politique.37 Immediately after Greek independence in 1828, Say’s Catéchisme de l’économie politique was translated, followed some years later by Jacques Droz’s Economie politique: ou principes de la science des richesses in 1833.38 These last two translations were not merely the two key economic texts of French economic thought to be published in newly independent Greece. They also had a direct political relevance because their translators – the liberals Giorgos Chrissiidis and Anastasios Polyzoidis, respectively – were deeply involved in post-revolutionary politics and the administration of the state.39 The two authors deemed these 34 35

36 37 38

39

C. P. Baloglou, ‘The diffusion and reception of the ideas of economic liberalism in Greece during the period 1828–1837’, Σπουδαί, 51 (2008), pp. 16–35 (p. 18). Indicatively: D. Darvaris, Αληθής ευδαιμονία (Vienna: Typ. Iosif Vaoumaisterou, 1796); P. Spanopoulos, Εμπορική Aριθμητική (Trieste: Typ. Kontzaki, 1803); J. Novawk, Ιστορία του εμπορίου (Vienna: Typ. Georgiou Vendotou, 1808); Anon., Διδασκαλία εντελής συστηματική άπασης της εμπορικής επιστήμης (Jassy: Elliniko Typografeio, 1817). For more details Sklavenitis, Εμπορικά εγχειρίδια. There were also references in the journal Ερμής ο Λόγιος, published in Vienna between 1811 and 1821. See Baloglou, ‘The diffusion’, p. 20; Psalidopoulos, ‘Οικονομική σκέψη’, pp. 345, 350–51. Y. Karabicak, ‘Ottoman attempts to define the rebels during the Greek War of Independence’, Studia Islamica, 114, 3 (2020), pp. 316–54. See Sklavenitis, ‘Σπυρίδων Βαλέτας’, pp. 107–56. J. B. Say, Πολιτικής οικονομίας κατήχησις (Aigina: Ethniki Typografia, 1828), and J. Droz, Πολιτική oικονομία ήτοι αρχαί της επιστήμης του πλούτου (Nafplion: Typ. K. Tompra, K. Ioannidi, G. Athanasiadou, 1833); see also Baloglou, ‘The diffusion’, pp. 16–35. Giorgos Chrissiidis was Supervisor of Government Printing and a close associate of Kapodistrias. For the multifaceted intellectual role of Anastasios Polyzoidis, see Chapter 2.

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works important for economic thinking and practice in the new state. In his opening lines, Chrissiidis argued that ‘a science which has such a direct application to man’s needs and which is so relevant to political society […] has remained uncultivated by our forefathers’.40 In the years to come, the diffusion of economic thought through translations continued at a slow but uninterrupted pace.41 In assessing this period, which is somewhat neglected, Greek scholars have made two observations. The first is that the purpose of most such translations was to popularise political economy for the needs of a wider public. This was also evident in the choice of texts to be translated, many of which, Say’s Catéchisme and later Suzanne’s Principes among them, had a didactic, anti-dogmatic and dialogical character.42 The second observation is that although Adam Smith was hailed as the founder of political economy, Greek scholars of the time tended to turn to the French liberal school and especially to J. B. Say. This preference was not limited to Greece. Say’s popularity, both as a political economist and as an opponent of Bonaparte during and especially after the latter’s fall, was not confined to France but was a Europe-wide phenomenon. As has long been argued, Say – owing to his writing in a language and a style that were considered more accessible to educated Europeans – played a critical role in disseminating throughout the Continent the teachings of a classical political economy that rested upon the foundations provided by Adam Smith’s Wealth of Nations.43 Recent studies have enriched our knowledge of this process by widening the geographical scope of Say’s influence. In a comparative study of SouthEastern Europe, M. Psalidopoulos and N. Theocharakis have shown that Say’s impact as an author and public figure was immense. It rested on the one hand on his being identified with ‘French Enlightenment ideals and national revival’ and on the other on the originality of several of his doctrinal economic contributions, such as his theory of value, his law on 40 41

42 43

In the ‘Prologue’ of Say, Πολιτική, p. 1. For a catalogue of the translations up to the inter-war period, see M. Psalidopoulos, Πολιτική οικονομία και Έλληνες διανοούμενοι: Μελέτες για την ιστορία της οικονομικής σκέψης στην Ελλάδα (Athens: Typothito, 1999), pp. 11–38. P. H. Suzanne, Γενικαί αρχαί της δημοσίας και βιομηχανικής οικονομίας (Athens: Typ. K. Antoniadou, 1849). See also Psalidopoulos, Πολιτική οικονομία, p. 29. In total, fifty-three translations of his works appeared between 1807 and 1836. See P. Steiner, ‘L’économie politique comme science de la modernité’, in J. B. Say, Cours d’économie politique et autres essais: Présentation, chronologie, bibliographie par Philippe Steiner (Paris: Flammarion, 1996), pp. 16–17, and Tribe, ‘Continental political economy’, p. 162. Say also displayed a strong interest in the Greek War of Independence, see J. B. Say, ‘Notions sur la Grèce, pour l’intelligence des événements qui se préparent dans cette portion de l’Europe’, Revue Encyclopédique, 24 (1824), 257–74.

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economic crises and the basic principles about production, exchange and distribution discussed in his Traité.44 But, as mentioned earlier, intellectual historians have also shown that Say’s significance lay in the elaboration of a rather distinct political project that was influenced by republicanism and increasingly based upon the formation of a secular moral discourse built on the virtues of industriousness (industrie) and frugality (frugalité).45 The moral and pedagogical character of Say’s works has tended to elude Greek historians, even though this aspect was clearly grasped by Greek liberals at the time. Indeed, almost all writers of the translated works praised prudence and abstention from consumption in order to save capital for future productive activities. Free trade and the involvement of all in commercial activities would elevate the population both morally and economically, while there was no mention whatsoever of the role of the state in the economy. In the case of Greece, this focus on manners was all the more important given the liberals’ perception of Greece’s moral and cultural backwardness, which they attributed to the long period of corruption under the rule of the Byzantines and the Ottomans. What was needed for the attainment of a higher civilisational level in the post-revolutionary context  – when Ottoman rule had been abolished, independence won and basic political institutions formed – was moral education and industriousness. Characteristically, in his introduction to his translation of Catéchisme, Chrissiidis viewed Say as an opponent of mercantilism and envisaged the overcoming of corruption in Greece through the diffusion of the ‘true principles’ of Adam Smith.46 Polyzoidis, in a very conscious attempt at the metakenosis of ‘European’ values into Greece, understood political economy to be a vehicle for social progress and happiness. Also echoing the formulations of Say, Polyzoidis held that it was ‘free labour’ that would elevate Greece above its tyrannical past, which he identified not only with the Ottoman Empire but also with ancient Greece.47 Polyzoidis’ 44

45 46 47

Psalidopoulos and Theocharakis, ‘The diffusion’. See also Psalidopoulos and Stasinopoulos, ‘A liberal economist’, pp. 496–500. J. B. Say himself acknowledged his wide geographical influence in a letter to D. Ricardo: ‘it is a pity: half of the audience is composed of foreigners: English, Polish, Russian, Greek, Spanish, Portuguese and American’. Say to Ricardo, 1 May 1822, in David Ricardo, The works and correspondence of David Ricardo, edited by P. Sraffa with the collaboration of M. Dobb, 11 vols (Cambridge, UK: Cambridge University Press, 1953), vol. IX, pp. 191–92. Jones, An end, pp. 119–25. ‘Introduction’ in Say, Πολιτική. ‘Introduction’ in Droz, Πολιτική. Say formulated a similar argument in the post-1814 edition of his Traité, by adding a chapter entitled ‘Of the independence born out of the Progress of Industry among the Moderns’, in which he criticised the ancients in both economic and political terms, sharply contrasting them with the moderns. See Jones, An end, pp. 134–35.

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role in promoting a view of society that was economically determined and founded on industrious men and the exchange of the products of free labour was evident also in his earlier translation of Destutt de Tracy’s Commentaire sur l’Esprit des Lois de Montesquieu.48 The emphasis that the two translators put on the dissociation of political economy from a republican political framework is evidenced by the fact that they addressed rulers and not citizens, dedicating their works to the sovereigns of Greece at the respective times of their publication, namely Kapodistrias and King Otto. This focus on manners was not confined to learned scholarship but gradually became a wider phenomenon. During the 1820s and 1830s, a series of translations of B. Franklin’s Poor Richard’s Almanack appeared and became popular among the Greek educated public.49 Although Greek historians have acknowledged this fact, they have related it to the conservative and Romantic version of Greek economic thinking.50 But, as the Greek title of Franklin’s work suggests (The Science of Good Richard), these translations were those made by J. B. Say. As already mentioned, seeking to instil the virtues of industriousness and frugality in the public, Say turned to the translation of Benjamin Franklin’s Poor Richard’s Almanack of 1733–1758 under the title La Science du bonhomme Richard.51 Say argued that he was especially interested in the life of a man who had performed only good deeds in his life and who thus provided a model for simple republican manners.52 In the same vein, one of the Greek translations presented both Franklin and Adamantios Korais as models for private lives – conducted according to the moral virtues of frugality and industriousness and dedicated to the public good – to be followed by young Greeks. These concerns with a virtuous life reflected a wider movement of ideas and went hand in hand with a civilisational discourse that recognised European cultural and political supremacy in the world and gave 48

49

50 51 52

D. de Tracy, Σχόλιον εις το Πνεύμα των Νόμων του Μοντεσκίου (Messolonghi, 1823). Recent scholarship has stressed the role of the Idéologues in the shift from republican virtue to an emphasis on travail and on industrie as organising principles of society. They were also highly influential in the most clearly noticeable replacement of republican virtue with economic enterprise in SaintSimonianism. See Romani, National character, pp. 109–17; T. E. Kaiser, ‘Politics and political economy in the thought of the Ideologues’, History of the Political Economy, 12 (1980), pp. 141–60; Welch, Liberty and utility; and Head, Ideology and social science. B. Franklin, Η επιστήμη του καλού Ριχάρδου (Paris: Typ. Firminou Didotou, 1823); B. Franklin, Τρόποι του πλουτίσθαι (Trieste, 1831); Βίοι του Β. Φρανκλίνου και Α. Κοραή και η επιστήμη του καλού Ριχάρδου: Δια τους ελληνικούς παίδας, υπό Χ. Α. (Ermoupoli: Typ. Georgiou Polymeri, 1839). Psalidopoulos, Οικονομική σκέψη, p. 342. Jones, An end, pp. 119–25. See the discussion in Whatmore, Republicanism, p. 117.

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prominence to the spread of European values in the Mediterranean. As several scholars have noted, from the 1820s onwards ‘industrialist’ and Saint-Simonian discourses circulated in the Mediterranean and were instrumental in producing a geography of civilisation that endorsed a dichotomy between European–Christian civilisation and Oriental culture. Being profoundly hierarchical, this civilisational language was based on the assumption of the superiority of Western European values and saw the Mediterranean as the space where the antithesis between West and East would be overcome.53 French Saint-Simonians, such as Michel Chevalier, suggested that this would be achieved by Western expansion eastwards and by the diffusion of industrialist principles. Such ideas informed the political thought and national projects of several Italian intellectuals of the Risorgimento, even though they rejected, to a greater or lesser degree, the French role in these Mediterranean projects. The role of Saint-Simonianism in Greece has rarely been assessed.54 Although Saint-Simonian ideas were circulating among Greeks of the Korais circle, they were not systematically disseminated to Greece until after the establishment of the Greek state. The main vehicle of this process was the journal Ilios and the central figure Frangiskos Pylarinos – a disciple of Korais, student of Auguste Comte and member of the Société Hellénique, which had been established in Paris by Greeks close to SaintSimonianism.55 In a series of articles he wrote for the journal, under the title ‘Political Courses’ (‘Πολιτικά Μαθήματα’), Pylarinos argued that a modern society is founded on industrie and self-knowledge and, more importantly, that prosperity and the formation of representative institutions would emanate from the inculcation of these principles and changes in attitudes to work.56 Announcing the inauguration of a new journal, Progress, Pylarinos, just like Chrissiidis and Polyzoidis, stated that the ruler, King Otto, provided the best guarantee for achieving this ‘industrial’ society.57 53

54

55 56 57

Isabella, ‘Liberalism and empires’, pp. 232–41; Romani, National character, pp. 109–17. See also A. Picon, ‘L’Orient saint-simonien: Un imaginaire géopolitique, anthropologique et technique’, in M.-N. Bourguet, D. Nordman, V. Panayotopoulos and M. Synarellis (eds.), Enquêtes en Méditerranée. Les expéditions françaises d’Egypte, de Morée et d’Algérie (Athens: ΕΙΕ, 1999), pp. 227– 38. See also M. Morsy (ed.), Les saint-simoniens et l’Orient. Vers la modernité (Aix en Provence: Edisud, 1989). K. Lappas, ‘Ο σαινσιμονισμός στην Ελλάδα’, in Αθήνα – πρωτεύουσα πόλη (Athens: Ypourgeio Politismou, 1985), pp. 44–55; C. Agriantoni, ‘Ο σαινσιμονισμός στην Ελλάδα’, epilogue in A. Picon, Οι σαινσιμονιστές: Ορθός λόγος, φαντασιακό, ουτοπία (Athens: PIOP, 2007). Κ. Pylarinos, ‘Πολιτικά μαθήματα’, Ήλιος, 17 (18 August 1833), pp. 69–70; Ήλιος, 20 (29 August 1833), p. 98; Ήλιος, 32 (24 October 1833), pp. 128–29. Pylarinos, ‘Πολιτικά μαθήματα’, Ήλιος, 25 (26 September 1833), pp. 90, 101. Pylarinos, ‘Πολιτικά μαθήματα’, Ήλιος, 32 (24 October 1833), pp. 125–26.

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What all of this indicates is that an important body of ideas informed by Say’s thought was diffused in Greece by scholarly and other more popular works. It rejected mercantilism and state intervention and favoured virtuous industrial manners, which were to be inculcated through moral education. It was formed, as Gareth Stedman Jones has argued, ‘upon a notion of industrie that was removed from a specifically republican framework and directed attention to the centrality and global emancipatory promise of a modern economy based upon freedom and independence of labour’.58 Even King Otto has been quoted as saying in 1835 that ‘free enterprise, respect for private property and unrestricted trade will open up inexhaustible sources of national wealth’.59

Public Economy, Industrial Virtues and the Police State Whether King Otto uttered these words or not, we do not know. But the statement and its reproduction ever since are indicative of a process initiated after the establishment of the Greek state and the advent of the Bavarian authorities. Industrialism and its emphasis on economic virtues were not confined to the realm of ideas but also informed the state-building process. In this way, industrialism was conflated with Bavarian ideas on the economy and the state, and it helped set up several economic and political institutions of the monarchical state. As already mentioned, Polizeiwissenschaft (the theory or technology of the police state) and cameralism (the science of the economics of government), which informed the policies of the Bavarian authorities, had two main objectives: to improve the position of the state in the competition between European states and to guarantee the internal order through the welfare of the population (or through public happiness). This last objective (conceptualised in the relevant literature as the development of the Wolhlfahrt state; that is, one of wealth–tranquillity–­happiness) made the population–wealth dyad of central concern to the exercise of police. The doctrine of public economy (which, as already noted, was widely accepted among nineteenth-century European economists) was closely associated with the police state and the objective of public happiness. It entailed a perception of economics as a broader branch of administration that embraced all the possible economic policies a government might adopt in order to ensure the country’s prosperity.60 58 59 60

Jones, An end, p. 131. Quoted in C. Agriantoni, Οι απαρχές της εκβιομηχάνισης στην Ελλάδα το 19ο αιώνα (Athens: Emporiki Trapeza tis Ellados, 1986), p. 23. Tribe, ‘Continental political economy’, p. 158.

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As mentioned in Chapter 1, the notion of police embraced a number of policy concerns and had strong moral overtones. In terms of its economic theory, it entailed three modes of governmental regulation: (1) to control and increase the size of the population in relation to the territory of the state and its natural resources; (2) to secure and control the marketing of the basic necessities of life and the circulation of both men and goods; and (3) to ensure the cultivation of land and the preservation of different types of professional activity (and that entailed a moral and practical rejection of idleness).61 Statistics was the main practical instrument with which to acquire an exact knowledge of the territory and of the living conditions of the general population. These concerns, which sought to bring about public happiness and centred on state regulation of economic activity, management of the population and promotion of active or industrious activities, resonated with the ‘industrial’ ideas that were already circulating during the same period. The first illustration of the conflation of the two sets of ideas took place in 1834 when the minister of the interior, Ioannis Kolletis, established as part of the ministry a Bureau of Public Economy (Γραφείο Δημόσιας Οικονομίας or Staatswirthschaftliches Bureau) that was staffed with Saint-Simonians and backed by a member of the Regency, Georg von Maurer. The Bureau, which according to one of its members, Gustav d’Eichthal (disciple of August Comte and a dedicated Saint-Simonian), was of his own making, boasted an extremely ambitious programme that was very close to the idea of the Chambre d’industrie propagated by Saint-Simon in his Du Système industriel. Kolletis, who signed the law, highlighted its significance by comparing it to the Board of Trade and the Bureau de commerce. Its primary task was to draw up extensive statistical observations on Greek rural properties and agricultural production. The aim of these statistics was not restricted to facilitating taxation and the military organisation of the state, but had a wider economic role related to the growth of production and the enhancement of industrie (βιομηχανία).62 Rather controversially, the members of the Bureau rejected the distribution of the national lands and advocated keeping the lands as state holdings that were to be cultivated by European settlers. Although the Bureau did not realise the aims of its ambitious 61 62

Foucault, Security, pp. 323–26. See also Chapter 2. ΦΕΚ, 18 (22 May 1834). See also M. Chouliarakis (ed.), Στατιστικαί μελέται, 1821–1871 (Athens: EKKE, 1972), especially the chapter ‘Ιστορική εξέλιξη της κρατικής στατιστικής εν Ελλάδι’. See also Petmezas, Η ελληνική αγροτική οικονομία, pp. 11–19.

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programme, the focus on industrie did not subside. In 1837, a Committee for the Encouragement of National Industry (Επιτροπή Εμψυχώσεως της Εθνικής Βιομηχανίας) was set up with a very detailed plan to boost industrial economic activities. Its scope, apart from economic initiatives, included several educational instructions and the distribution of reading material. It was deeply informed by Say’s thinking as it merged agriculture, manufacture and commerce within a composite notion of industrie.63 In addition, a Chair of Public Economy (Δημόσιας Οικονομίας) was established at the Law School of the University of Athens as early as 1837. As already mentioned, the university was an important agency as regards the modernising policies of the central authorities and the needs of the ‘police state’. But the thought behind its establishment was also influenced by, or at least resonated with, industrialism.64 Indeed, the establishment of a Chair of Public Economy was aimed at teaching basic economic principles to future civil servants, facilitating statistical observations and inculcating in the student body, and by extension in the nation, productivity and industriousness as the main sources of morality and public order. It was thus one among a series of policy measures with which policymakers linked economic science to the state and directed it to the production of statistics and the inculcation of an industrial morality. In this way, economic thinking was salvaged from its political connotations and from any calls for legal and political reforms that would complement the development of private economy and economic growth. Yet this does not mean that it was politically neutral. On the contrary, it played a key role in the formation of a new political vision within society. Indeed, as Gareth Stedman Jones has argued, ‘by making Industrie the sole legitimate activity in modern society, the industrieux – the “savants”, “entrepreneurs”, and “ouvriers” associated with the process of production – became its sole legitimate members’. They were counterpoised to the oisifs, widening in this way the moral and economic breach between those who worked and those who did not.65 In Greece this was exemplified intellectually by the production of a discourse mainly through newspapers and periodicals – such as the already mentioned Ilios but also Epochi – and institutionally by the criminal legal code.66 This latter was published and promulgated in

63 64 65 66

ΦΕΚ, 5 (9 February 1837). C. Dimaras, Εν Αθήναις την 3η Μαίου 1837 (Athens: Ερμής, 1987), pp. 21–22. Jones, An end, p. 135. See Εποχή, 13 (8 November 1834), pp. 49–50; 21 (6 December 1834), pp. 81–82; 24 (16 December 1834), pp. 94–95; 25 (20 December 1834), pp. 98–99. The criminal code in ΦΕΚ, 35 (17 September 1835).

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1835 and was, as has been observed, based on the concept of the ‘ethics of work’ or, in other words, on ‘industrial’ morality. Idleness (φυγοπονία) was made a criminal offence and put into the same category as mendicity (επαιτεία) and pauperism (αγυρτία).67

Ioannis Soutsos and the Limits of Industrial Political Economy It was in this intellectual and political context that Ioannis Soutsos was selected as associate (έκτακτος) professor at the university. The significance of his intellectual trajectory during the 1840s and 1850s lies in his ambitious revision of the scope of political economy and the strong claims he made for the political relevance of economics. In his first public contributions he showed that, for him, the role of the discipline was not limited to the economic sphere and to complementing the needs of the state, but extended to intervening in the sphere of politics. This change of vision, which departed to a significant extent from the conception of public economy as this was advocated by the authorities, became at least in part symbolically manifest in 1842 when Soutsos was elected full professor to the renamed Chair of Political Economy. This, as well as the title of his magnum opus, Ploutology, published in 1868–1869, indicate that Soutsos followed Adam Smith in seeing economics as a contribution to the theory of aggregate wealth generation or retardation, and not as catallactics based on the free exchange of pre-existing forms of property. In addition, for Soutsos economics was an empirical science, which could lead to ‘objectivist’ positions and thus provide a basis for interventionist state policies. As Winch and Haakonsen have shown, both of these features were characteristic of Smithian economics. In fact, Soutsos is reminiscent of that rich legacy of Adam Smith, which in the twentieth century was to a large extent forgotten.68 Be that as it may, Soutsos drew deeply upon the ‘industrialist arguments’ that focused on the transformation of manners. After his election to the Chair of Public Economy, he also served as a member of the Committee for the Encouragement of Greek Industry. But, as will be shown in more detail in what follows, for Soutsos social transformation and welfare would come from a combination of industrial virtues and civic participation. This could 67 68

M. Mavris, ‘Το σύστημα απονομής δικαιοσύνης στην Ελλάδα το 19ο αιώνα’, Τα Ιστορικά, 26 (1997), pp. 53–76. K. Haakonsen and D. Winch, ‘The legacy of Adam Smith’, in K. Haakonsen (ed.), The Cambridge companion to Adam Smith (Cambridge, UK: Cambridge University Press, 2006), pp. 366–94.

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only be achieved through constitutional reforms that would facilitate the exercise of political freedom. This entailed a definition of political economy as part and parcel of the political and social sciences of good government. Being thus defined it would not limit itself to statistical descriptions of reality and to giving a helping hand in the administration of the state. Soutsos embraced this definition, which differed from the one defended by the royal authorities, though without theorising it as such, in his first public contributions in the 1840s. In the aftermath of the revolt of 1843 and the convocation of a national assembly, Soutsos published a constitutional draft with the intention of encouraging public discussion on constitutional issues, which could then be integrated into the final draft.69 It was chiefly inspired by the 1830 French charter and the Belgian constitution, and it was designed to reconcile monarchical rule with the existence of republican institutions. Although he referred to a number of different issues, his primary focus was on the political reforms necessary for the economic progress of the nation. For Soutsos, the new constitution should first provide the necessary guarantees of political liberty. These he exemplified as the establishment of the rule of law (general rules that would apply to political and fiscal management), equality before the law and respect for and legal recognition of individual rights.70 But what is more, the constitution should create the conditions that would ‘invigorate public opinion’ and allow people to ‘exercise their rights unrestrained’. In order to do so, according to Soutsos, discussions of issues of public interest should not be confined to the two chambers, which he saw as representative of the nation.71 The political system should see the ‘establishment [of such discussions] in markets and squares’, which Soutsos viewed as ways to enhance active political participation.72 This latter he envisaged as more than just voting. In addition, each of the two chambers should not only have a complementary role to that of royal power, but should also keep in check the executive and legislative power, by which he essentially meant the king, and in part the other chamber. Directly challenging the policies of the royal authorities, Soutsos laid special emphasis on the inadequate assignment of property rights to rural cultivators as the most important impediment to economic development.73 As in most of Soutsos’ writings,

69 70 71 72 73

Ioannis Soutsos, Σχέδιον πολιτικού Συντάγματος της Ελλάδος (Athens: Mantsarakis, 1843). Ibid., p. 7. Ibid., pp. 35–45. Ibid., pp. 12–13. Ibid., pp. 10, 57.

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the virtues of industriousness, frugality and prudence had a central role to play in the effectiveness of his constitutional proposals. The extent to which Soutsos’ ideas informed the discussions on the constitution during the formal proceedings is open to debate. Still, the fact is that this was the only text of its kind circulating at the time. In any case, several of his proposals did find their way into the final draft that was voted on by the Assembly (bicameralism, control of the budget by the Parliament, publicising of legal procedures). However, in one respect his republican constitutional claims were implemented in full. This was the electoral law. This stated that eligibility to vote would be enjoyed by all those (male by default) ‘with property in the land [of the state] or practising therein any profession or independent labour’ (or industrie, in other words).74 By using a language based on industrie, the law opened political participation to all ‘industrious’ men – the only ones excluded being those in a condition of ‘dependency’. As many historians have argued, the practical application of this articulation of voting rights established universal male suffrage. What these historians have not acknowledged, however, is that in the political context of Greece, where the revolutionary legacy and constitutional claims remained strong, it was the combination of the idiom of industrial political economy with notions of political participation that transformed industrial virtues into attributes of voting rights.75 This combination of idioms continued to feature prominently in Soutsos’ public contributions. In one of his lectures at the university in 1847, he reminded his audience that the satisfaction of the people’s ‘passion for the good life’ and their ‘need for a comfortable and restful living’ depended on the inculcation of industrial virtues by a prudent and patriotic government. But at the same time, wondering about the reasons for the splendour and the civilisation of ancient Greece, he emphasised that this was the result of the citizens’ ‘preoccupation with public affairs’. It was because of ‘the podium, the market, the battleground as sites of (civic) courage, political exercise, and intellectual competition that freedom was established among the Greeks’. It was not, he added, material supremacy ‘but virtue and intellectual competence that had caused the Greek victory over Asian despotism’.76 74 75 76

ΦΕΚ, 7 (25 March 1844). This is one of the least studied issues relating to the question of political reform in Greek historiography. See Alivizatos, Το σύνταγμα, pp. 92–95. Ioannis Soutsos, Λόγοι εκφωνηθέντες την 5η Οκτωβρίου 1847 (Athens, 1847), pp. 24–26.

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Economics as the Social and Political Science of Civil Society Soutsos’ Treatise on the Production and Distribution of Wealth (Treatise hereafter), his first systematic text on economic science, was published in 1851. This was also the first text of its kind to be published by a Greek academic. It launched a publishing career that culminated in what is generally considered to be his magnum opus, the two-volume Ploutology, published in 1868–1869. Although this is the work most usually associated with Soutsos, the first volume was in fact a revised and extended version of the Treatise. In the intervening years between 1851 and 1868, Soutsos published a small number of articles and two books. Most of these texts concerned economic reforms and policy recommendations. Although they were more practically oriented than his Treatise, they were all largely informed by his first theoretical work. In essence, the Treatise is a key text for understanding Soutsos’ thought, but also for assessing what Greek political economy stood for in those years. In general, the tone of political economy in Greece, at least in its scholarly version, was set by Soutsos, who remained widely respected and honoured until late in his life. Two interrelated themes that raised two relevant sets of questions ran through Soutsos’ work. The first concerned the definition and scope of political economy as a science – was it an enquiry into the causes of economic growth or was that too limited a concern? And what was its relevance for modern commercial societies? The second concerned the causes of prosperity and social welfare – was it due to the application of economic laws and the inculcation of virtues, or did the government have a role to play in bringing about prosperity? In attempting to answer these questions, Soutsos was indeed influenced by Say, as Greek historians have shown. Both the first book of his Treatise and, later, the first volume of Ploutology were structured along the basic principles of production, exchange and distribution, which Say had formulated initially in his Treatise of 1803. Soutsos also followed Say in the analysis on value, stressing utility, and in his emphasis on industrial mores to be inculcated by an appropriate institutional environment as a key factor in the creation of wealth.77 By so doing, he broke with the view that economics was limited to statistical observations necessary to meet the needs of the monarchical state and its cameralist policies. Soutsos argued that the way statistics had been developed ever since the major work of Gottfried Achenwall, the 77

D. D. Ithakissios, ‘J. I. Soutsos: Greece’s first academic economist’, Quaderni di storia dell’economia politica, 2 (1992), pp. 136–48; Psalidopoulos and Stasinopoulos, ‘A liberal economist’, pp. 496–97.

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German professor of Statistik, in the mid-eighteenth century obscured our subjective experience of the world and rendered it impossible to describe reality in qualitative terms.78 In other words, it described the people as a whole – with regard to numbers and physical and mental ­characteristics – in increasingly mathematical language. But ‘in general, the moral concepts and the human sentiments, passions or beliefs, given that they cannot be subsumed into arithmetic measurement and thus into quantities eligible for comparisons and mathematical precision, escape the jurisdiction of statistics’.79 That is not to say that Soutsos rejected the importance of statistics. On the contrary, he deemed it to be an important descriptive science, the ‘sister’ science of ‘Ploutology’ (‘science of wealth’, i.e. his characterisation of political economy).80 Influenced by Say, he argued that in order to be effective, statistics would need to be subordinated to political economy.81 But Soutsos went further. Quoting the Italian scholar Gian Domenico Romagnosi, who was also very critical of industrialist thought, Soutsos associated the effectiveness of statistics with the form of the polity: ‘without an ideal and well constituted Polity, it is impossible for statistics to achieve its objectives since it lacks criteria and guiding principles’.82 This reference to Romagnosi is just a minor example of the variety of continental sources that influenced Soutsos’ thought. In fact, Soutsos blended several intellectual traditions; prominent among these were the economic thought of Rossi and Sismondi and the French political economists of Soutsos’ generation grouped around the Journal des économistes. The reference is also evidence of his emphasis on the importance of government for economic affairs and, by extension, for political economy. This idea ran through Soutsos’ thought and constituted a significant departure both from Say’s thought and from that of the Saint-Simonians and other ‘industrialists’ in the country, who were collaborating with the monarchical authorities and focused exclusively on economic virtues at the expense of large-scale political reforms.83 One of the chief inspirations behind this 78

79 80 81 82 83

Gottfried Achenwall, professor of law and politics in Göttingen, put the term Statistik into general circulation after 1750. He derived the name from the Italian statista, ‘statesman’, and ragione di stato, ‘reason of state’, referring to the knowledge of a state’s strengths and weaknesses that a statesman was required to possess. Soutsos, Πλουτολογία, vol. II, p. 689. Ibid., p. 694. Say first expounded his views in the first edition of his Traité d’économie politique in 1803 and repeated them in all later editions. Soutsos, Πλουτολογία, vol. II, p. 695. In that respect he was very close to the criticisms of the Saint-Simonians made by Benjamin Constant, although there is no mention of the latter.

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insistence on the enhanced role that the state ought to have in the economy and in the welfare of society was the persistent European commercial crises. Although Soutsos was rather optimistic about the potentialities of modern commercial societies, he saw overproduction as the cause of these crises, which, along with mercantilist policies and uneven global competition, resulted in deflation and rising unemployment.84 Soutsos underlined the deteriorating living conditions and pauperism that characterised many Western European countries, especially those in the process of industrialisation such as Great Britain and Belgium.85 These problems had acquired urgency in light of the revolutions of 1848. As he wrote in 1848 itself and again in 1851 and 1853, the need to understand and counteract those ‘socialists’ and other radicals who had attacked the sacred ‘European’ principles of freedom, property and family in 1848 made the study and the development of political economy vital.86 He was thus mindful of the intellectual criticisms that were developed initially by Sismondi and radicals like Owen against Ricardian political economy, which had ultimately caused what Adolphe Blanqui would call the ‘social turn of continental political economy’. In France, this was exemplified in the work of a new generation of French economists, who, during the July monarchy, gathered around the Journal des économistes.87 The Economistes criticised the ‘English’ economic school for sacrificing all social considerations to the creation of wealth and paying only lip service to the well-being of the workers. By asserting that science was the model for any kind of genuine knowledge, they deemed political economy to be the science that, by applying the methods of the natural sciences to society and the economy, could address the problems created by mechanisation and industrialisation. The remedies proposed by the Economistes for the ‘social question’, which had turned political in 1848, rested on education, industrial virtues and judiciously formulated legislation. Political economy would offer the scientific investigations to complement this 84 85 86

87

I. Soutsos, Πραγματεία περί της παραγωγής και διανομής του πλούτου (Athens: Typ. Koromilas, 1851), pp. xxi–xxii. For the case of Britain, ibid., pp. 471–79. Ibid., p. 101; Soutsos, Λόγοι εκφωνηθέντες; see also I. Soutsos, ‘Εισαγωγική ομιλία εις το μάθημα της Κοινωνικής Οικονομίας’, Πανδώρα, 6, 86 (1853), p. 349. For the Société see P. Steiner, ‘Competition and knowledge: French political economy as a science of government’, in Geenens and Rosenblatt, French liberalism, pp. 192–207 (pp. 192–93, 198–99). Soutsos’ relation with the Journal was manifested in 1861 when he contributed an article presenting the economic developments in Greece after independence: I. Soutsos, ‘Faits économiques qui se sont produits en Grèce de 1833 à 1860’, Journal des économistes, 29, 3 (1861), pp. 373–86. Jones, An end, pp. 163–70.

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legislation without any call for full-scale government intervention. Soutsos did agree with the Economistes that political economy was the social science par excellence – he referred to the method as ‘social physiology’ – and stressed that there existed a deep connection between industrial development on the one hand and cultural and political progress on the other. Yet he departed from the Economistes and from Say by criticising both the deductive approach of economic doctrine and the lack of interest in the political dimension of political economy. This was exemplified by his use of Sismondi and Pellegrino Rossi. Following the criticism levelled by Sismondi at Ricardian economics in the Nouveaux principes d’économie politique, Soutsos argued that ‘Industrial’ (‘Βιομηχανική’) political economy had focused too much on the perfection of the means of production at the expense of the producers.88 For Soutsos, political economy split into two schools: (1) the ‘Industrial’ or ‘Pecuniary’ (‘Χρηματιστική’) school, which analysed the mode of production or, in other words, the mechanisms of private economy (the division of labour, wages, savings, accumulation, modes of exchange, monetary issues and credit); and (2) the ‘Science of revenues’ or the ‘Administration of wealth’ (‘Προσοδονομία’ or ‘Πλουτονομική’) school, for which the mode of production was secondary.89 This second approach focused on the issue of the distribution of wealth by posing three questions: what is to be distributed, who has the right to what is distributed, and by what means is wealth to be distributed?90 In order to understand a modern economy, the two approaches should be combined. But the second was more important. This was because it held a place commensurate with the theory of [the circulation of the] blood in physiology. Soutsos’ approach was a reaction against the enthronement in political economy of exclusively economic criteria. This distinction was not only a difference in method; it also signified a different political and social vision. 88

89

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Soutsos, Πραγματεία, pp. xxiii–xxiv, 5. Although his Nouveaux principes d’économie politique was not translated into Greek, Sismondi’s Etudes sur les constitutions des peuples libres was translated in 1846: S. de Sismondi, Μελέται περί των συνταγμάτων των ελευθέρων λαών (Athens: Typ. Nikolaidou Philadelpheos, 1846). But the influence of his economic texts was also widespread, at least in the works of Soutsos. ‘Ploutonomiki’, i.e. ‘the administration of wealth’, was the term he used in his text of 1851: see Soutsos, Πραγματεία, p. xxiii. The term ‘Ploutologiki’, i.e. ‘science of wealth’, was used for the first time in his text of 1853 to designate the subject of his lectures for the upcoming year: see Soutsos, ‘Εισαγωγική ομιλία’, pp. 346–49. Sismondi also used the word ‘Chrématistique’ to designate the political economy of Ricardo, McCulloch and Say. On Sismondi’s case, see Romani, ‘The republican foundations’, pp. 17–33. For a clearer formulation, Soutsos, ‘Εισαγωγική ομιλία’, p. 348.

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The industrial approach focused on self-interest at the expense of social interests. It also took the mode of production in Britain as an example, at the expense of different local circumstances and historical developments. But, as Soutsos argued, ‘the application of the principles (of political economy) is not always possible [… and] in practice, the application of these absolute theories is suspended or altered by the elements of nationality, time, distance, etc.’. For example, the British economists argued that large ownership combined with mechanisation and the expansion of manufacture boosted production. But, while this might be the case in Britain, it was not necessarily true for other places, including Greece. In general, Britain was not exactly an ideal model. If Soutsos had a model, that would be North America, where more equal social conditions and welfare went hand in hand with large prospects of economic growth.91 But, notwithstanding the advantages of such other cases, any sort of idealisation also missed the point. Because Soutsos (resembling in a way the Romanists but in a much more pronounced fashion) did not base his arguments on normative theories of obligation to be found in contractual accounts of society. In place of such abstract economic theories, he argued for policies that would conform to and respect the actual historical and anthropological record to be found in the everyday experience of ‘common’ life. The role of economic science was to explore the exact and locally sensitive ways in which an equal distribution of wealth could be attained, without of course jeopardising private property and individual liberty (the two features that for Soutsos differentiated the moderns from the ancients). In this way, Soutsos also deemed political economy to be a political science that manifested a strong interest in the role of the state as a moral agent in enhancing equality, liberty and moral improvement. Deviating thus from his French influences, he considered that ‘political economy, especially today, is indeed a political science [that is] justly regarded as the most drastic remedy for the misgovernment and the misrule of public affairs’.92 As Rossi had argued, economic relations could not function in the absence of a sound institutional set-up, and only a government committed to guaranteeing the smooth functioning of economic transactions could establish and supervise the economy.93 Government intervention was thus deemed necessary in order to establish an economic environment compatible with liberty. 91 92 93

Soutsos, Πραγματεία, pp. 466–80. Ibid., pp. 3, 349. Rossi, Cours d’économie politique, pp. 190–206.

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In other words, for Soutsos, the inculcation of manners should be combined with institutional change, the aim of which was the ‘reconciliation of social interests with economic or financial interests, the preponderance of social interests over individual aims and the benefits of specific social groups, the realization of the doctrine of liberty and equality and the expansion of the principle of solidarity and cooperation’.94 The call, in short, was not only for interference on the part of the government, but for large-scale reforms applied by the state as a political and moral agent. Reforms should not be limited to education but should address all social and economic issues such as the difficulties posed by underemployment, casual and seasonal labour, underinvestment, improper taxing, the lack of credit to farmers and especially the lack of ownership rights. Accordingly, political economy had a moral and political role that was not limited to the dry material empiricism of statistical observations. The main reason why Soutsos diverged from the Economistes and turned to Sismondi was the dire economic and political developments in Greece. The modernisation of the Greek political system, which most liberals expected after the introduction of constitutionalism in 1844, had become a dead letter. The distribution of the national lands to the peasants and the prudent administration of public finances – both basic prerequisites for economic growth according to most liberals – had failed almost completely. What is more, free trade was being undermined by the royal authorities, who had introduced a bill for the increase of duties on grain, a decision that occasioned a heated debate.95 The decision had implications that went beyond the economic performance of the country, since it jeopardised the place of Greece in the Mediterranean and endangered the country’s claims to a ‘European identity’. This was becoming all the more important – as Soutsos acknowledged in his inaugural lectures during the 1850s – because of the advent of the Eastern Question and the increasing preoccupation of Western European powers with the Orient. In this context, orthodox political economy seemed to be an obstacle to enacting the kinds of economic changes that were necessary in Greece, especially in landholding. The role of economic science should thus extend from an analysis of the means of production and labour to exploring the ‘best Governmental form that would enhance common interests and protect the rule of law, private property, and individual rights from external and internal threats’.96 94 95 96

Soutsos, Πραγματεία, p. xxii. Hionidis, ‘Greek responses’, p. 163 and thereafter. Soutsos, Πραγματεία, p. 6.

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His Treatise was supposed to be accompanied by a volume addressing the subject of ‘Governmental economics’, which would deal with political institutions.97 Although it was finally published as the second volume of his Ploutology in 1868–1869, from 1851 onwards Soutsos became very vocal in his calls for reform and for state intervention. In 1853, his lectures at the university concentrated on the administration of public finances and on institutional changes in education that would foster the citizens’ ‘industrial manners’.98 At the same time, from 1849 onwards Soutsos was a member of the Legislative Committee that, as we saw in Chapter 2, played a significant role in passing legal reforms that consolidated private property and the rule of law. Greek historians have argued that Soutsos was a liberal economist who advocated reforms that would free the economy from government supervision and crowding-out effects. But they have failed to highlight that Soutsos turned against a specific version of the state, the Polizeistaat, and its mutation, the Rechtsstaat, and that in his economic thought there lay not a rejection of the state as such, but a different conception of the state. This sort of thinking was very close to what Michel Foucault has called the liberal modification of the technology of the state that was introduced by economists in the late eighteenth century. According to Foucault this was a way of thinking about government that set out from an altogether original perspective. It was, he argued, ‘a governmental reason which did not start from the existence of the state, trying to find the means for enhancing its strength and the happiness of its population as a collection of its subjects. Instead, it started from a problematic of “society”, of “civil society”, as something that could not be thought of as simply the product and result of the state’.99 Soutsos echoed this different perspective when he argued that ‘the role of social economics is not to teach how man isolated from the world, like Adam in paradise, produced utility, or how one class of people prospers and develops its productive forces, but the ways in which […] political (civil) society by acting out its productive energy, develops the plurality of its social interests advancing liberty, equality, cooperation and fraternity’.100 Ibid., p. 469. Soutsos, ‘Εισαγωγική ομιλία’, and Ι. Soutsos, ‘Περί της δημόσιας παιδεύσεως, σχετικός προς τας παραγωγικάς δυνάμεις των εθνών’, Πανδώρα, 4, 87 (1853), pp. 375–83. 99 M. Foucault, The birth of biopolitics: Lectures at the College de France, 1978–79 (New York: Palgrave, 2008), pp. 317, 347–51. 100 My emphasis: Soutsos, Πραγματεία, p. 5. 97

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At the same time, Soutsos criticised those thinkers, among them John Stuart Mill, Edouard Laboulaye and the French economists of the beginning of the century, who, in his opinion, had seen civil society as a counterweight to the state. As Soutsos argued: Many political economists emphasized the accomplishments of individual liberty, leaving the polity inconspicuous. In that way, government and administration were presented as forces hostile to society. […] but their opinion was excessive. Many today point in the opposite direction. By so doing they are not totally wrong. Indeed, as I wish to try to prove by assessing Political Ploutology, the jurisdiction of the Polity is not limited to its police function, to the prevention and prosecution of culpable actions, to the protection of everyone’s rights and to the establishment of public security, but, by removing obstacles against freedom of action, it extends to anything that can contribute to moral and material betterment.101

The state, in other words, was correlative to civil society, not antithetical to it, and should have a role in its prosperity. In light of the Crimean War and the failure of the Greek state to play a political role in the Eastern Mediterranean, Soutsos’ tone acquired a more direct political relevance. From the pages of the Spectateur de l’Orient, he criticised government policies on the land issue and proposed novel ones.102 He also published several articles on the economic state of the Ottoman Empire using extensive statistical observations. This was again a call for government action in light of the intervention of the Western powers in the Eastern Mediterranean. Soutsos believed that Greece had a significant role to play in this changing geopolitical environment. Even more characteristically, in 1858, on the occasion of the celebration at the university of the King’s birthday, Soutsos once again highlighted the importance of reforms and civic virtue in fostering industriousness and social welfare. Talking about the Athenian Republic, he did not concentrate on the philosophical thought or the cultural achievements of the Athenians, but instead focused on the way in which the rule of law, equality and liberty had been consolidated after the great reforms of Solon.103 For Soutsos, Solon’s wide-ranging administrative and legal reforms did not 101 102

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Soutsos, Πλουτολογία, vol. I, pp. 172–73. I. Soutsos, ‘Notice sur les finances de la Grèce de 1833 à 1843’, Spectateur de l’Orient, 37 (10 February 1855), pp. 371–83; I. Soutsos, ‘Etudes economiques sur l’Orient’, Spectateur de l’Orient, 38 (25 March 1855), pp. 54–71 (first part); second part in Spectateur de l’Orient, 39–40 (10 April 1855), pp. 91–112; I. Soutsos, ‘Sur la question et sur la population de la Turquie’, Spectateur de l’Orient, 42–43 (25 May 1855), pp. 165–87 (first part); second part in Spectateur de l’Orient, 44 (July 1855), and 45 (25 June), pp. 257–73. I. Soutsos, Περί πολιτείας Αθηναίων: Λόγος εκφωνηθείς εν τω Πανεπιστημίω Όθωνος κατά την 20η Μάϊου 1858, επέτειον των γενεθλίων του Μ. Βασιλέως και της ιδρύσεως του πανεπιστημίου (Athens: Typ. Lazarou D. Vilara, 1858).

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only foster industriousness and productivity, but also had a wider political aim: namely, the consolidation of democracy and the diffusion of the liberal spirit throughout the bulk of the Athenian population.104 The relevance of these observations for the politics of his time was difficult to miss. It is important to note that Soutsos turned these formulations into a policy agenda in his capacity as head of the Bureau of Public Economy. This was reconstituted in the late 1850s as a result of the deterioration of Greece’s public finances. Indeed, as successive governments failed to balance the budget and met growing expenditure with loans from the banking sector, the state was unable to meet its obligations towards its international creditors. It also failed to present a clear picture of its public finances and to respond to the pressing demands made by Western European powers, which were also, by and large, the international creditors.105 In 1860, Soutsos became head of the renewed Bureau and stayed until 1862. This was in effect the Bureau’s most productive period since its instigation, as evidenced by the production and publication of two major statistical surveys: the first statistics of agricultural production and a population census.106 What distinguished these statistical surveys was the scientific method used for the collection and elaboration of the material.107 In addition, later on, in the early 1880s, Soutsos had the opportunity, as a member of the committee for the taxation of agriculture, to implement his ideas on taxation, which resulted in the passing of long-awaited reforms. His tenure at the Bureau resulted in two books that were published during 1863–1864 amid great political upheaval. The king had been expelled, a new one had been selected and a national assembly had been convened and had debated democratic changes. For Soutsos, the time was ripe for the necessary policy reforms as expounded by him in his work Essay on Economic Reforms.108 Addressing the political transformation of 1862, 104

105 106

107 108

‘Solon by attempting to turn the citizens towards crafts had also a political intention which was related to preparing the way for the peaceful triumph of the democratic regime’: ibid., p. 8, and on p. 13: ‘what is remarkable is that the liberal (φιλελεύθερο) spirit of this legislation prevailed in all aspects of the life of the Athenians and unchanged was preserved from the times of Solon to the times when crafts and political art reached their heyday’. L. Kallivretakis, Η δυναμική του αγροτικού εκσυγχρονισμού το 19ου αιώνα (Athens: ΜΙΑΤΕ, 1990). Chouliarakis, Στατιστικαί, p. 18. For Soutsos’ role, see pp. 23–25. The two surveys were G. Mpafounis (ed.), Στατιστική της Ελλάδος. Πληθυσμός του έτους 1861 (Athens: ΕΤΒΑPolitistiko Technologiko Idryma ETVA, 1991 [1862]) and S. Spiliotakis, Στατιστική της γεωργίας, Γραφείον Δημοσίου Οικονομίας (Athens: Ethniko Typografeio, 1864). Petmezas, Η ελληνική αγροτική οικονομία, pp. 16–19. I. Soutsos, Δοκίμιον περί οικονομικών μεταρρυθμίσεων (Athens: Typois N. G. Passari and L. G. Kanariotou, 1863). His second was more theoretical: I. Soutsos, Εγχειρίδιο δημοσιολογίας: Η θεωρία του προϋπολογισμού (Athens: Typois N. G. Passari and L. G. Kanariotou, 1864).

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Soutsos argued that it had been prepared by the spread of education, the disrespect shown towards the rule of law by the royal authorities and the violation of individual rights. The aims of the revolution should be dual: it should be conservative in politics in the sense of reconstituting the principles that had been violated, but it should also be radical in economics. That was an understatement that probably included a note of caution. Soutsos’ proposals included, among others, radically reforming the tax system (universal proportional taxation), distributing the national lands, investing heavily in infrastructure and rationally reorganising the public finances with the intention of meeting the international debt obligations of the state. All these reform proposals that presupposed an enhanced role for the state were addressed to the National Assembly and employed two idioms: an economic idiom that centred on private property and unimpeded economic activity and a political idiom that was based on a language of justice, fairness and the common good.109

Conclusion This chapter has sought to demonstrate that the history of Greek economic thought was a much more complicated phenomenon than modern Greek historiography has acknowledged. It has done so by locating Greek economic thinking in two different contexts. In the first place, it has situated it at the heart of Europe-wide debates on the scope of political economy and the extent to which economic virtues and commercial societies could be reconciled with civic virtues and moral improvement. By so doing, it has demonstrated that the characterisation of Greek economic thought as inadequate or backward seems rather misleading. On the contrary, the latter was conversant with a wide array of liberal theories that centred on economic virtues, free trade, individual rights and private property. Nevertheless, it was equally concerned with the important role that civic virtues and republican notions of freedom had to play in the economic and political sphere. In the early decades after independence, economic thinking was primarily influenced by the diffusion of a body of ideas that was based on the notion of industrie and emphasised manners and economic virtues. This vision was endorsed by the royal authorities and informed several administrative policies and attempts at reform. Gradually, however, owing to economic and political stagnation, doubts were expressed about this economic reasoning and the view of 109

Soutsos, Δοκίμιον, pp. i–xiii.

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economics as a specialised, technical and therefore strictly delimited discipline. Ioannis Soutsos, the first and only holder for several decades of the Chair of Political Economy at the University of Athens, left an important legacy that ran counter to this view of political economy. Influenced by continental political economists, Soutsos criticised the increasing specialisation of political economy and its dissociation from politics and other social and moral sciences. His contributions also signified a partial – and, after 1850, increasingly radical – departure from the emphasis on private manners and economic virtues. To be sure, for Soutsos, economic qualities like industriousness and frugality were crucial attributes for economic and cultural progress, but it was their combination with civic virtues, common values and public institutions that he considered most effective in fostering both wealth and social well-being. Underlying this formulation was the fact that the pursuit of production and economic growth was not, he judged, an end in itself but a tool for social prosperity. State intervention was legitimate and necessary, not simply in order to ease economic deficiencies but also in cases where economic forces threatened social and political values, such as liberty, equality and justice, which were above economic development. So in essence Soutsos combined two idioms. On the one hand, he used the tools of the Smithian school to describe the way in which wealth was created and to analyse the benefits of mechanisation, free trade and the causes of overproduction. On the other hand, he used Sismondi’s version of republican political economy as a criticism of economic virtues and as an attempt to reconcile wealth and morality and the formation of an equal society. The result was a liberal formulation that was quite sensitive to local circumstances. The reason for this, as this chapter has suggested, was that political economy was profoundly involved in attempts to articulate the underlying dilemmas, political and moral, that Greece faced during this period. At the heart of these dilemmas was what was considered to be the slow pace of modernisation. For Western-educated scholars, this signified a wider cultural anxiety because it questioned the membership of Greece in the family of ‘civilised European nations’. In other words, the primarily political nature of economic thinking and its consideration of local circumstances could be explained by the fact that economic reforms in Greece were always seen as an essential element of a larger political and cultural programme. There was nothing peculiar about all these themes, since they had featured again and again in the writings of continental political economists and were hotly debated there. In general, the solutions proposed by

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Soutsos were similar to those put forward by economists who perceived themselves as coming from peripheral European regions and who were engaged in progressing and reforming society – such as Italian and, to an extent, German scholars. If there was any peculiarity in the Greek case, it lay in the role of liberal political economy as a language of opposition to the police state that informed the thought of the Bavarians. What is more, contrary to the widespread perception of liberalism as a language of individual rights and of civil society – both opposing the state – in the Greek context liberal political economy did not reject the state as such, but worked as a critical reflection of governmental practice. Ultimately, it came to form an alternative language of statehood that saw the state as complementary to civil society, and advocated governmental intervention in implementing legal, political and economic reforms. In addition, these debates about the economy that combined an economic idiom with an idiom of civic participation, large-scale reforms and state intervention left a lasting political and social impression. The establishment of quasiuniversal male suffrage in 1844, the large-scale land distribution of 1871 and the reform of the tax system in 1881 were all reforms that were somehow related to political economy debates.

chapter 4

‘Let’s Talk about the Nation and the State’ Constitutional Liberalism, Sovereignty and Statehood (Late 1840s–1860s)

Introduction As we saw in Chapter 3, in Greece political economy was central to the articulation of a consistent agenda of political reforms. From the 1850s and especially during the 1860s, these calls for reform underpinned a novel conception of the role of government and the state. The language of political economy, however, was rather technical, based as it was on economics. It was the emergence of constitutional liberalism that from the mid-1840s onwards conceptually enhanced ideas about the political organisation of the new state, redefining the question of the foundations of government and obligation within the political community. This chapter concentrates on the formulation of the key ideas of Greek constitutional liberalism from the late 1830s to the 1870s – the ‘golden age’ of nineteenth-century Greek constitutionalism. Not only did constitutional reflections flourish during this period, but, more importantly, these reflections coincided with radical political transformations, by which Greece was gradually transformed into a monarchical regime under constitutional and eventually parliamentary rule. By focusing on the scholarly publications and the debates that ensued in the course of the period, the aim of this chapter is to explore firstly the nature of Greek constitutional legal thought – its sources of inspiration and its conceptual innovations – and secondly its impact on the perception of what the constitution and the nation-state are and what they should do. As this chapter (as well as Chapter 5 on international law) shows, this period had long-term and largely unexplored consequences for Greek political thought: namely, the legalisation of political discourse and the politicisation of legal and especially constitutional discourse. Chapter 6 will go a step further by relating these conceptual innovations in the field of law to the political and institutional transformations that were initiated from the 1840s onwards. Greek historiography has studied constitutional thought as a non-­ central part of the history of constitutionalism (understood both as 132

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political claim and as actual practice). The literature is extensive since it is a meeting point for a range of different disciplines, law, legal/constitutional history, political history and the history of ideas among them. Most studies by lawyers and legal and political historians have focused mainly on the constitutional texts themselves – promulgated during and after the Greek Revolution – and on the major influences exerted upon them by other European constitutions of the time. At the risk of oversimplifying the issue, two approaches can be discerned. Firstly, constitutional texts and, by extension, constitutionalism were treated from a national perspective as reflections of the shared values and aspirations of a pre-existing Greek nation. In this reading, Greek constitutional thought was seen as the natural outcome of the ‘renaissance’ or ‘regeneration’ of the Greek nation.1 Secondly, in more recent and more refined studies, constitutionalism has been treated as the institutional process by which a modern nation-state was forged. In this version, Greek constitutional lawyers and historians saw Greek constitutional thought as derivative of Western European liberal political thought.2 Both of these readings and especially the second version often refer to 1789 and unfold in a narrative arc that suggests the gradual emergence of claims of national identity within an overall liberal frame. So the revolutionary constitutions were characterised as the liberal and democratic foundational texts with which the Greek nation as a self-determining national community declared its political existence and independence to the world.3 In the same way, the hesitations and retractions of the years immediately after the Revolution were treated as minor aberrations from an essentially linear path. The constitutional developments that followed in 1844 and especially in 1864 supposedly ‘corrected’ these diversions. These approaches are problematic for two reasons. Firstly, they lack analytical force, as they are histories written backwards. By asking how we got to the present, they have treated constitutional developments as gradual 1

2

3

There are numerous older works by lawyers; as an indicative example, see D. Petrakakos, Κοινουλευτική Ιστορία της Ελλάδος, 1453–1843 (Athens: Ethniko Typografeio, 1935). This kind of historical interpretation remains dominant in official discourses. See K. Svolopoulos, ‘Κοινοβουλευτισμός και η Μεγάλη Ιδέα’, in Evanthis Hatzivasiliou (ed.), Πολιτικοί προσανατολισμοί τoυ νέου ελληνισμού (Athens: Idrima tis Voulis ton Ellinon, 2012), pp. 65–74. See N. Kaltchas, Introduction to the constitutional history of Modern Greece (New York: Columbia University Press, 1940), and especially A. Mannesis, Deux états. The most recent study is Alivizatos, Το σύνταγμα. Alivizatos, Το σύνταγμα, pp. 60–65. See also N. Alivizatos, ‘What, if any, is the contribution of modern Greece to today’s European identity?’, MGSA Bulletin, XXXV (16–18 October 2003), pp. 19–24.

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steps on a path towards parliamentarism, the construction of a national state and the final triumph of democracy. Accordingly, the political ideas that complemented this process are inserted into broad, predetermined teleological categories such as ‘enlightened patriotism’, ‘modernity’ or the ‘rise of democracy’. Quite characteristically, Nikos Alivizatos, the most prominent of the Greek constitutional historians, argued in one of his early works that the ‘general characteristic of modern Greek constitutional history is the claim of democratization’.4 The second limitation is that, as in other cases we have already seen, they pay scant attention to the language and ideological frameworks used by the protagonists. Even when they do, they take these to be inspired by a monolithic nineteenth-century Western European liberalism against which they always compare and contrast Greek political ideas and culture. Even those social historians who have been highly critical of the ‘Whiggish’ line of argument – by emphasising the ways in which constitutionalism was used as a tool by the local social elites of the Ottoman ancien régime in their struggle to take part in the exercise of political power – have fallen into the same trap. They have taken the adoption of liberal institutions and especially parliamentarism to be insignificant since, in the words of an important revisionist account, there was ‘a political consciousness far removed from the conception of the citizen of Western Europe and a practice that has nothing to do with the modern state’.5 To be sure, both the conventional and the more recent revisionist accounts have enhanced our knowledge of nineteenth-century developments in Greece by according due attention to the local political context. But as mentioned in the Introduction, they have failed to take into account the role that ideas about government – the core of constitutional thinking – played in the emergence of new conceptions of the state, of what it should do and how the political community should be organised. This is a telling omission. It is impossible to explain the significant 4

5

N. Alivizatos, Εισαγωγή στην συνταγματική Ιστορία (Athens: Ant. Sakkoulas, 1981), p. 18. In his latest work, Alivizatos has characterised the years from 1974 up to the present – years of political stability – as the period that after the interlude of 1914–1974 continued and normalised the process of establishing a modern liberal political and social order: Alivizatos, Το σύνταγμα, pp. 26, 107–46. Although Petropulos, Politics and statecraft, and Gunnar Hering, Τα πολιτικά κόμματα στην Ελλάδα, 1821–1936 (Athens, MIET, 2006), have referred to the role of local politics, it was Kostas Kostis who recently interpreted more consistently the constitutional developments of 1844, 1864 and 1875 as the final triumph of the old political elites against the centralising tendencies of the royal authorities: Kostis, Τα ‘κακομαθημένα’, pp. 23, 344–56. Nikos Alivizatos, in his late work, anticipated some of the arguments made by Kostis, but argued at the same time that constitutions and political institutions should be studied as factors in themselves and not according to an ‘instrumental conception’ that considers them ‘as techniques through which the ones in power impose their dominance’: Alivizatos, Το σύνταγμα, pp. 27–28, 93–95.

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political transformations set in motion in Greece during the nineteenth century if an analysis of local politics is not combined with an assessment of changes in the prevailing ideas about government. Thus, by contrast with the literature already mentioned, this chapter treats the period under discussion as having a dynamic of its own. In doing so, it treats Greek constitutional thought as a body of ideas that restated the problems of organising, exercising and legitimising political power. Changes within that body of ideas were interconnected with changes in the structure of politics. In order to make sense of these changes, the chapter situates them not just within the Greek political and intellectual context, but also within the intellectual context of post-Restoration constitutional liberalism. In so doing, it draws on the ways in which during the last two decades intellectual historians have enhanced our knowledge of nineteenthcentury constitutional liberalism and of what constitutional ideas did to political communities. Although the centrality of the American and the French Revolutions in laying the foundations of subsequent European constitutional thought remains undisputed, historians have shown that there was great variation in how constitutional thought developed, in particular during and after the Napoleonic wars. And this variation, which was global in reach, was a source of strength for liberals across the world, as evidenced by the emergence of a liberal international public sphere from the 1820s onwards, one that cut across many political, intellectual and social phenomena unfolding in the transatlantic world, the Mediterranean and South-East Asia.6 As Christopher Bayly has argued, this liberal sphere – and liberals at this date at least were a broad church – was unified not so much by coherent intellectual influence as by political affect.7 Greek constitutional thought has been excluded from this renewed interest in the global debates about constitutions and wider political reforms that emerged after the 1820s. This chapter seeks to rectify this omission by locating Greek constitutional thought in the context of postNapoleonic European liberalism. It will focus mainly, but not exclusively, on Nikolaos Saripolos, the first holder of the Chairs of Constitutional Law and the Law of Nations at the University of Athens and one of the 6

7

Isabella, Risorgimento in exile, pp. 21–31; Bayly, Recovering liberties and C. Bayly, ‘Rammohan Roy and the advent of constitutional liberalism in India, 1800–30’, Modern Intellectual History, 4 (2007), pp. 25–41; V. M. Uribe-Uran, ‘The birth of a public sphere in Latin America during the age of revolution’, Comparative Studies in Society and History, 42 (2000), pp. 425–57. On Spanish and SpanishAmerican constitutionalism, see Brena, El primer liberalismo español; E. Posada and I. Jaksic (eds.), Liberalismo y poder: Latinoamerica en el sigo XIX (Mexico: Fondo de Cultura Economica, 2011). Bayly, ‘Rammohan Roy’, p. 28.

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most prolific jurists of his generation.8 His contributions were not confined to an impressive scholarly output but extended to pamphlets, articles in journals, periodicals, lectures to learned societies and so on. He was also the first Greek jurist to become a member of those international legal societies that emerged from the late 1860s onwards.9 Greek historians have characterised Saripolos and the other figures of nineteenth-century constitutional thought as liberals without usually spelling out what they mean.10 By looking more closely at the constitutional jurists’ ideas, this chapter complicates this picture and identifies the precise nature of their claims and the principal intellectual influences by which they were formed. As it will demonstrate, it was Saripolos who, by and large, set the terms of the debate and departed from previous conceptions of constitutionalism. Although rooted in natural law (and rights) theory, Saripolos was engaged in an eclectic conversation with several strands of moderate liberalism (Montesquieu, Constant, the Doctrinaires and also the monarchiens). At the same time, by locating sovereignty in the nation, he was attentive to the revolutionary tradition, which he saw as culminating in the Greek Revolution. In other words, Saripolos was a moderate liberal whose constitutional language sought an accommodation between individual rights, national sovereignty and monarchical power. What he mainly attempted to do was to renovate the ideological foundations of the constitutional monarchy and transform it into a political system that would express the common (national) interest and stand between divine-right monarchy and popular sovereignty. These ideas largely informed the calls for constitutional reform that emerged in the 1850s. As already mentioned, the lack of such reforms had not only led to political and economic stagnation, but was jeopardising the place of Greece in the geography of civilisation. Increasingly, the problem for Saripolos and others was not so much the failure of monarchical policies but the policies themselves and the very ideas behind them. This was because these latter limited the scope of government and went hand in hand with the curtailed sovereignty that the European powers According to his autobiography the chair of constitutional law was created for him. See N. Saripolos, Αυτοβιογραφικά απομνημονεύματα (Athens: P. Sakellarios, 1889). 9 In the Institut de Droit International. See the obituaries in the Annuaire de l’Institut de Droit International (Brussels, 1888), IX–X années. He was also elected to the Académie des Sciences Morales et Politiques of the Institut de France and to the Institut Royal des sciences, des lettres et des beaux-arts of Belgium. 10 G. Daskalakis, Ελληνική συνταγματική ιστορία 1821–1935: Πρός χρήσιν των φοιτητών (Athens: To Nomikon, 1948); Alivizatos, Το σύνταγμα, pp. 141–43; P. Kitromilides (ed.), Νικόλαος Ιωάννου Σαρίπολος (Athens: Idryma tis Voulis ton Ellinon, 2011). 8

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had imposed on Greece. Saripolos’ constitutional language thus included a novel perception of the state that put emphasis on its autonomy as a moral being and on its role as an instigator of reforms. This was also made evident at the end of the 1850s when constitutional lawyers turned to the law of nations and the language of the absolute sovereignty of the state in the international arena, by the same token turning against the policies of the Great Powers. The study of Greek constitutional liberalism and its location within its European context is important for three interrelated reasons. The first is that it helps capture the nature, complexity and richness of political moderation by seeing it at work within a concrete historical example.11 The case of Greece offers a combination of a textual and a contextual analysis, since the conceptual innovation held a reciprocal relationship with successive transformations in the structure of politics.12 What is more, given the general setback suffered by constitutionalism as political practice after 1848, Greek thought constitutes a significant moment in European constitutional thinking in itself, as it shows that the liberal position was not lost in the post-revolutionary crossfire. This should act as a reminder that shifting attention away from Western liberals and reconstituting the agency of their non-Western counterparts can enhance our understanding of nineteenth-century liberalism. The second reason why the Greek case is important is because it indicates that for liberals at the time the language of constitutionalism was not only about individual rights and freedom, but equally, if not more strongly, about statehood. The distinctiveness of scholars such as Saripolos lies in their conception of constitutional thought as a theory of governance and the way they related it to novel ideas of what the state is and what it should do. This should be seen in the light of Christopher Bayly’s proposition that ‘before the modern state became a reality it was also an idea, which represented an aspiration for complete power and territorial sovereignty, whether in the name of “the people”, or “the nation”, or despite them’.13 And, as scholars have recently argued, the concept of sovereignty 11

12 13

In the European historiography of nineteenth-century political thought, the case of Greece is usually referred to in relation to the Greek Revolution and its role in the formation of Philhellenism and its liberal connotations. The period that followed has hardly been explored. For the Philhellenes in relation to constitutional issues, see F. Rosen, Bentham, Byron and Greece: Constitutionalism, nationalism and early liberal political thought (Oxford: Clarendon Press, 1992). A. Craiutu, A virtue of courageous minds: Moderation in French political thought, 1748–1830 (Princeton, NJ: Princeton University Press, 2012), pp. 6–7. Bayly, The birth, p. 247.

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played a key role in this, as it was closely related to the powers and capacities of states. In Greece, it was when questions about legal authority, understood as a right to decide and therefore to rule, were raised from the 1840s onwards that arguments about sovereignty emerged. Herein lies the third reason for the importance of the Greek case (which will be explored in more detail in Chapter 5): in Greece, as elsewhere on the European periphery but also in the colonial world, questions about sovereignty and the nature of political power went hand in hand with questions about the nature of the Greek state in relation to other states, and its position within the international community. Greek constitutional thought, in other words, had almost by default an international dimension. Its development may therefore shed light on international law and on what David Armitage has called international intellectual history.14 The rest of the chapter begins by assessing past and more recent historiography on constitutional liberalism, as this was formed after the French Revolution and in particular after Napoleon. In so doing, it also sets out the wider intellectual and political context in which Greek liberalism was formed. It then explores the constitutional ideas that developed in the Greek kingdom during the era of absolutism. In this section, the role of the complicated constitutional legacy of the Revolution is briefly addressed, because it exerted an influence (smaller than usually assumed) over subsequent developments. As this section also shows, the period witnessed a combination of ideas of the state that complemented constitutional transformations, not least the political transformation of 1844. This will be followed by an analysis of the methodology and the constitutional thought of Nikolaos Saripolos, as well as its political implications.

Constitutional Liberalism after the French Revolution, or How to Bring the Revolution to a Close Although the historiography on constitutional liberalism is long and complicated, historians would seem to agree on one thing: it was during and after the American and French Revolutions that the foundations of subsequent European constitutional thought were laid. They also appear to agree that it was especially in the heated discussions during the French Revolution that a dramatic transfer of power took place. The view that the king was the sole embodiment of the sovereign will was at that time rejected and replaced by the claim that the sole source of legitimate power was the 14

Armitage, Foundations of modern international thought.

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nation or the people. From that point onwards, the terms of the discussion changed radically and concerned the institutional form through which that power would be expressed. Debates thus concentrated on three questions: the way in which sovereignty would be represented, whether and how it would be divided and the way in which individual rights would best be preserved.15 Although different answers were given to these questions during the course of the Revolution, there was a shared belief that the fundamental principles that would spring from the exercise of the constituent power of the nation should be articulated in a clear and coherent form – that is, a constitution.16 In trying to interpret revolutionary events, historians such as François Furet have linked the instability and violence of the Revolution to the fact that revolutionaries located all ultimate authority in the sovereignty of the people or the nation.17 The Terror was seen as nothing but a consequence of that understanding of sovereignty. The reason, as they saw it, was that once the ultimate source of authority was located in the wholly abstract and untouchable entities of the ‘people’ or the ‘nation’, a seemingly never-ending struggle to be recognised as the legitimate representative of that entity was unleashed. What is more, as is the case with divine-right authority, this sort of sovereignty was understood as being absolute, thus making it possible to contest all exercises of authority as usurpations. These two concepts – absolute sovereignty and usurpation – and the threat they posed to social peace and order remained dominant issues for generations after the Revolution, especially when the rhetoric of revolution and constitutionalism spread across the globe. Although these were widespread concerns, it was indeed French liberals of the Restoration who produced the most complex meditations on constitutional subjects in their efforts to understand the past, eliminate the threat of radical excesses reminiscent of the Terror and move France towards the establishment of a more enduring regime. In trying to oppose the arbitrary governments of democracy and of individual dictatorship identified with the French Revolution and Napoleon, respectively, their main concern was how to conceptualise sovereignty in more modest terms and translate it into a workable form of government that would secure freedom and political stability. The conventional view among historians was that the liberals, in their attempts to eliminate the dangerous instability of popular sovereignty, 15 16 17

J. Jennings, ‘Constitutional liberalism in France: From Benjamin Constant to Alexis de Tocqueville’, in Jones and Claeys, The Cambridge history, pp. 349–73 (pp. 349–54). Caenegem, An historical introduction to western constitutional law, pp. 174–93. Furet, Interpreting.

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introduced the notion of representative government. According to this interpretation, the liberal response represented a reaction against the people’s power and an effort to balance democratic principles with aristocratic or oligarchical ones. Although the question of whether there was a distinct French liberal paradigm is still open to debate, scholars have shown that the picture was much more complicated than previously thought and that during the Restoration a number of different liberal strands were produced that were, at times, incompatible.18 Scholars such as Annelien de Dijn and Lucien Jaume have thus examined the emergence of elitist or ‘aristocratic’ liberal currents. For de Dijn this was associated with a rereading of Montesquieu and was based on intermediary bodies, while for Jaume it was related to an anti-individualist ‘liberalism of the notables’, headed by the Doctrinaires.19 In addition, historians studying Italian political thought have shown that such ‘aristocratic’ liberal strands did also exist there, and that Italian liberals were in fact conversant with French thinkers, the Doctrinaires prominent among them.20 Other scholars, however, such as Aurelian Craiutu and Pierre Rosanvallon in their works on the Doctrinaires, have played down these sharp distinctions, emphasising the political moderation of the latter.21 What all of these studies have shown is that the significance of the Doctrinaires should not be underestimated given the prominent role they played in European politics for more than three decades. They shared a language of civilisation and progress that, according to François Guizot’s Histoire de la civilisation en Europe, was identified with the emergence of nation-states and the emancipation of the individual.22 The problem for the Doctrinaires was thus to find a system of government that would resolve the tension between the two. It was the science of constitutional government that would elucidate the answer and on which the Doctrinaires placed a great deal of emphasis. At the same time, historians have shown that another important liberal strand was represented by the political thought of Benjamin Constant, 18

19 20 21 22

For a debate as to whether there was a distinct French liberal paradigm or not, see R. Geenens and H. Rosenblatt, ‘French liberalism: an overlooked tradition?’, in Geenens and Rosenblatt, French liberalism, pp. 1–14. See also in the same volume Siedentop, ‘Two liberal traditions’, and L. Jaume, ‘The unity, diversity and paradoxes of French liberalism’, pp. 36–56. A. de Dijn, French political thought from Montesquieu to Tocqueville: Liberty in a levelled society? (Cambridge, UK: Cambridge University Press, 2008); Jaume, L’individu effacé. Romani, ‘Reluctant revolutionaries’; M. Isabella, ‘Aristocratic liberalism and Risorgimento: Cesare Balbo and Piedmontese political thought after 1848’, History of European Ideas, 39 (2013), pp. 835–57. A. Craiutu, Liberalism under siege: The political thought of the French Doctrinaires (Lanham, MD: Lexington, 2003); P. Rosanvallon, Le moment Guizot (Paris: Gallimard, 1985). F. Guizot, Histoire de la civilisation en Europe: Depuis la chute de l’Empire Romain jusqu’à la Révolution Française; suivie de philosophie politique: De la souveraineté (Paris: Pichon et Didier, 1846).

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which, although rooted in individual rights and the revolutionary tradition, underwent significant transformations, coming at times to encompass opposing principles of legitimacy – that is, democratic, traditional and liberal.23 Yet Constant articulated a liberal current that did not deny the revolutionary principle that legitimacy derived, in one form or another, from the people. And, probably more importantly, his liberalism arose not so much from a fear of democracy, but from a fear of leaders who could potentially usurp that sovereignty. This was also a central preoccupation of Guizot’s political thought. As Benjamin Constant and François Guizot argued in De l’Esprit de conquête et de l’usurpation dans leurs rapports avec la civilisation européenne (1814) and Du Gouvernement de la France depuis la Restauration et du ministère actuel (1820), respectively, usurpation occurred when someone assumed the mantle of an authority to which they did not have a legitimate claim.24 In that sense, this current of French liberalism endeavoured to find a way to bring the Revolution to a close without jettisoning its achievements.25 In other words, liberals of this persuasion sought to turn sovereignty into a form of government that would not collapse into a cascade of usurpations. Their major enemy was not popular sovereignty as such, but the assertion that this sovereignty was absolute. Constant resolved the apparent tension by simply arguing that sovereign power was not absolute, that it was not a ‘power without limits’.26 Attempting to give institutional expression to this formulation, Constant and other French liberals turned to representative government and a complex institutional structure that was based on distinguishing between sovereignty and rule (see the later discussion). The influence and political preoccupations of the French liberals extended beyond the frontiers of France or, more accurately, the liberal responses to the questions raised by them came in a variety of forms. This was logical since, in the context of Restoration Europe, these problems were not unique to France. Indeed, it was in the years during and

23

24

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B. Fontana, Benjamin Constant and the post-revolutionary mind (New Haven, CT: Yale University Press, 1991); Rosenblatt, ‘Re-evaluating’; Kalyvas and Katznelson, Liberal beginnings, pp. 146–75; A. Jainchill, ‘The importance of republican liberty in French liberalism’, in Geenens and Rosenblatt, French liberalism, pp. 73–89. B. Constant, ‘The spirit of conquest and usurpation’ (Paris, 1814), in B. Constant, Political writings, edited by Biancamaria Fontana (Cambridge, UK  : Cambridge University Press, 1988), pp. 44–169; F. Guizot, Du Gouvernement de la France depuis la Restauration et du ministère actuel (Paris: Ladvocat, 1820). Rosanvallon, Le moment Guizot, pp. 16–25. In his Principes de politique applicables à touts les gouvernements first published in 1815: B. Constant, De la liberté chez les modernes. Ecrits politiques, edited by Marcel Gauchet (Paris: Livres de Poche, 1980), pp. 269–78.

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especially following Napoleon’s defeat that constitutions were introduced gradually, not just in Europe but in other parts of the world and especially in Latin America. Accordingly, this was the moment when constitutional liberal thought came to be formed.27 To be sure, people perceived the term constitution in different and at times conflicting ways. It was not only seen as ‘the fundamental regulation that determined the manner in which public authority should be regulated’, as it had been defined by Emmerich de Vattel, whose work, as we have seen, gained new life in the 1820s. Older notions of the constitution as fundamental law survived as well. Although conventionally this latter was understood as a body of laws that derived from royal authority, in the debates that ensued from the late eighteenth century onwards it was also perceived as an ‘ancient constitution’ that placed limits on that authority.28 In any case, historians working on post-Napoleonic Mediterranean Europe have shown that in the liberal debates about the ways to form constitutions and forge legislation that would combine progress and reform without disrupting social peace and jeopardising individual freedom, the influence of the French intellectual tradition with all its novelties held centre stage. Even the perception of British constitutionalism was in many cases informed by the diffusion of French political literature. What is more, these intellectual relations were reciprocated. Italian, Genevan/Swiss, Spanish and even British intellectuals were not just influenced by, but were active participants in, a dialogue with French political thought.29 But what about Greek intellectuals? Where did they stand in all these debates about constitutional reforms and the meaning of constitutionalism?

Early Greek Constitutionalism between Revolution and Absolutism (c. 1830–1844) As has been noted in Chapter 1, 1844 represented the first turning point in the constitutional developments of the Greek kingdom, as in that year the first constitution was promulgated and the era of absolutism formally 27 28

29

For Napoleon’s legacy, see David Laven and Lucy Riall (eds.), Napoleon’s legacy: Problems of government in Restoration Europe (Oxford: Berg, 2000). J. Jennings, Revolution and the republic: A history of political thought in France since the eighteenth century (Oxford: Oxford University Press, 2011), p. 67. For the view of the constitution as ‘fundamental law’ and the debates around it in the case of Portugal, see Paquette, Imperial Portugal, pp. 117–34. I. Castells, ‘Le libéralisme insurrectionnel espagnol (1814–1830)’, Annales historiques de la Révolution Française, 76 (2004), pp. 221–23; Isabella, Risorgimento in exile; Isabella, ‘Aristocratic liberalism’; Romani, ‘Reluctant revolutionaries’.

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came to an end. But, according to the conventional line of argument, this moment did not signify the birth of Greek constitutionalism. Those origins lay rather in the first decades of the nineteenth century, in the numerous constitutional developments that took place in the Ionian Islands from 1797 onwards and, much more importantly, in the constitutional texts produced during the revolutionary decade of the 1820s.30 These were then followed (after the creation of the state) by the constitutional changes of 1844 and 1864. Before discussing historiography, it is important to mention briefly the major constitutional developments of the 1820s. Even if the relation is not as linear as is usually claimed, the revolutionary constitutional experience had important implications for the subsequent conception of constitutionalism when it emerged as a major political discourse from the early 1840s onwards. After the outbreak of the Greek Revolution in 1821 and in the midst of military episodes that lasted less than a decade, four successive national assemblies were convened. All four of them elaborated the principles according to which the political life of the country should be conducted. All produced constitutional texts in an atmosphere at times of triumph, intense political struggle, military agony and defeat, even civil war. To cut a long story short, and as several scholars have argued, the first three constitutions voted by the revolutionary assemblies (1822 in Epidavros, 1823 in Astros, 1827 in Troizina) articulated the aspirations of the revolutionaries to introduce into the political culture of the country the institutions and values of liberal constitutionalism.31 The last one, promulgated by the Third National Assembly in Troizina, was noted for its articulate ‘democratic’ spirit expressed in the proclamation of the principle of popular sovereignty (article 5) and its mention of individual rights and civil liberties.32 A common characteristic of these celebrated texts was that they were destined never to come into force. 30

31 32

For the Ionian Islands, see A. Manitakis, ‘Η εξαρτημένη από διπλωματικές συμφωνίες μετάβαση από το "παλαιό, βενετικό καθεστώς" της διοικητικής αυτονομίας στην εθνική και δημοκρατική ενσωμάτωση’, and Sarantis Orphanoudakis, ‘Συνταγματικά κείμενα στα Ιόνια νησιά: Mελέτημα’, both in Aliki Nikiforou (ed.), Συνταγματικά κείμενα των Ιονίων νήσων (Athens: Idryma tis Voulis ton Ellinon, 2008), pp. 23–28 and pp. 29–60, respectively. For a survey of the historical background of the growth of representative institutions and parliamentary government, see D. Dakin, The unification of Greece, 1770–1922 (London: Benn, 1972); Mannesis, Deux états. See also George Finlay, A history of Greece, edited by H. F. Tozer (originally published in 1877), 7 vols (Cambridge, UK: Cambridge University Press, 2014), vol. VI, pp. 212–44 and VII, pp. 49–51, 74–76, 177–83, and especially pp. 262–33, for the constitutional developments and the emergence of representative institutions in Greece. Alivizatos, Το σύνταγμα, pp. 42–65; P. Kitromilides, Η γαλλική επανάσταση. For the constitutional texts see Gerozisis et al., Κείμενα, pp. 28–73.

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The fourth constitution, the one that was finally implemented – promulgated by the National Assembly convened in Epidavros in 1828 – was in fact a retraction of the liberal principles of its predecessors. By granting wide-ranging and special executive powers to the governor, this constitution simply approved and legitimised the powers that had been assumed in the meantime by the then governor, Ioannis Kapodistrias.33 Consequently, when Greece formally became an independent state in 1830 with the Treaty of London, signed by the Great Powers and the Porte, the government was modelled upon a mixture of liberal politics and the centralised absolute monarchies favoured by the conservative powers of Restoration Europe. A significant change occurred after the governor’s death when a new treaty was signed between the Great Powers and Bavaria, by virtue of which Greece was to become a hereditary monarchy. The treaty was also a potential blow to the liberal politics of the revolutionary period, since there was no mention of or reference to the monarch granting representative institutions, consultative bodies or a constitution.34 By far the most common treatment of these constitutional developments has been the one described in the introduction to this chapter; that is, as successive, gradual steps on a linear path towards the establishment of an independent state, democracy and national self-determination.35 But the impact of the revolutionary constitutions was far less straightforward. This was in fact evident in the very decision of the assembly that was convened in 1843 to call itself the First National Assembly, thereby effectively bracketing out the revolutionary period. Indeed, for contemporary authors, the revolutionary constitutional developments did not function in any way as legal sources or as guidelines for subsequent constitutional practice. In fact,

33 34

35

Ibid., pp. 83–96. On the period of absolutism, see Petropulos, Politics and statecraft, pp. 270–343, 408–44; and P. Pipinelis, Η μοναρχία εν Ελλάδι, 1833–1843 (Athens: Typois I. Vartsou, 1932). For a Marxist account Nikos Svoronos, Επισκόπηση της νεοελληνικής ιστορίας (Athens: Themelio, 1989), pp. 51–53. As an indicative example, see P. Petridis, Νεότερη ελληνική πολιτική ιστορία, 1828–1843 (Thessaloniki: Paratiritis, 1981); D. Petrakakos, Κοινοβουλευτική ιστορία, 7 vols (Athens: Ethniko Typografeio, 1935–1944), vol. II. More recently, Antonis Manitakis, in a revisionist account that sought to criticise the ‘national’ reading of the Ionian constitutions, argued that these latter were not constitutions because they did not organise the Ionian state as a ‘modern’ and ‘unified’ state, but only regulated the relations of dependency between the Islands and their external sovereigns and protectors. This is a highly normative and historically problematic thesis, since it ignores the various definitions of constitutionalism, especially in the early nineteenth century. See Manitakis, ‘Η εξαρτημένη’, pp. 23–29. For an alternative view see M. Sotiropoulos, ‘“United we stand, divided we fall”: Sovereignty and government during the Greek Revolution, 1821–1828’, Historein, 20, 1 (2021), https://doi.org/10.12681/historein.24928.

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many commentators saw them as products of a bygone age. As the author of the first treatise on constitutional law to be published in Greece remarked, in 1847 ‘they [the revolutionary constitutions] are sketches raised against the past, not monuments looking towards the future’.36 At the same time, however, the constitutional experience of the revolutionary period did leave a legacy, not least by putting constitutionalism in the air of political life. This legacy consisted of three interrelated, fundamental ideas. First of all, a constitution had come to be perceived as a written document that clearly defined the scope and nature of the political obligation of each component of the community. Secondly, the constitutions of the 1820s, at least in theory, had been made by and for the nation or the people (during the Revolution the two were usually identified). Thus for writers, both of the 1820s and of the 1840s, the constitutions were closely associated with the language of nationalism and the national struggle against foreign (Ottoman) despotism and were consequently, to some extent, antiabsolutist. Thirdly, this anti-absolutism was increasingly related to the theory and practice of a mixed type of government headed by a king; that is, a constitutional monarchy. According to the first treatise on constitutionalism to be written in Greek and published in Paris during 1828–1829 by Ioannis Kokkonis, a constitutional polity ‘mixes [elements] of democracy, aristocracy and monarchy securing thus the royal principle’. Its virtue lay in its propensity to compromise and balance out different political outlooks within society, and this it did by separating the powers. To quote Kokkonis again, Political kingship [or civil kingship, i.e. a constitutional regime] is the one where royal power is determined by law; where the king rules not only according to his own will, but also according to that of the citizens whom the law defines as participants of the state. The citizens do not come only from the classes of the best or the nobles but also from the body of the demos.37

Constitutionalism was thus understood as an institutional process that purported to blend various social interests, to compromise and to prevent any political groups from imposing their will over others. But what has to be emphasised – because Greek historians tend to downplay it – is the almost 36

37

N. Pappadoukas, Ιππόδαμος. Ιππόδαμος. Αρχαί του συνταγματικού δικαίου ή το ελληνικόν σύνταγμα σχολιασμένον, περιέχων τεμάχιον του Ιπποδάμου, συνοπτικήν πολιτικήν ιστορίαν των συνταγματικών εθνών της Ευρώπης και το ελληνικό σύνταγμα άρθρον προς άρθρον σχολιασμένον (Athens: Typois Ch. Nikolaidis Philadelpheos, 1847), p. xxii. My emphasis. For the constitution as a balancing act, Kokkonis wrote: ‘Because under the Constitution, the state is divided into several powers […] each tempering and controlling the other […] so that no system of rulers gains an advantage, nor does any one power harm another’; see I. Kokkonis, Περί πολιτειών. Περί των εις σύνταξιν και συντήρησιν αυτών, και περί πολιτικής κυβερνήσεως, 2 vols (Paris: Typ. K. Evevartou, 1828–1829), vol. I, pp. 356–57.

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undisputed association of constitutionalism with a higher authority, which increasingly meant a monarch. The reason for this was the way in which constitutionalism was politicised. The revolutionary constitutions were produced after fierce political struggles, which in some cases included armed confrontation. Because of this heightened politicisation and because the first three constitutions never came into force, a strong executive in the form of a monarch was seen as a safeguard against political strife and the threat posed by opposing political factions. In the long run, probably the most important outcome of all these revolutionary legacies was that the constitutional texts were seen as fundamental political laws of the state, but not as binding in all circumstances. They were thus liable to change as part of an open-ended political process. As we saw in Chapters 1 and 2, in the post-revolutionary decades of the 1830s and 1840s this understanding of constitutionalism as a stage-by-stage construction of a modern political order was complemented by a novel legal language: the theory of the Rechtsstaat (i.e. the law-based state). According to this theory, not only private individuals but also bearers of public authority, including royalty itself, were subjected to legal norms. In its more constitutional variants, this signified a new style of centralised monarchy, which stood somewhere between the arbitrary/authoritarian state and the radical French republican model. And its heart was the separation of powers and a constitution or a parliament. Indeed, jurists such as Ioannis Kokkonis, Nikolaos Pappadoukas and Pavlos Kalligas perceived constitutionalism as the political theory of a monarchy, mixed and bound by the law, arguing that ‘where order and laws do not bind power, a [constitutional] polity does not exist’.38 Chapters 1 and 2 also showed that, since this process was understood to be gradual and progressive, most jurists welcomed and supported the initial phase of the ‘enlightened’ administrative and legal reforms of the Bavarians. The aims of these reforms, with which the jurists sympathised, were the consolidation of central power and the breaking up of local structures of power, or at least their minimisation at the local level.39 38 39

Ibid., pp. 356. The need to subordinate local centres of power to the central state was a constant concern for many jurists. Periklis Argyropoulos, one of the administrative law experts in the period, argued that ‘The government in its attempt to form better municipalities than the already existing ones [sought] to overturn all communal relations’; P. Argyropoulos, Δημοτική διοίκησις εν Ελλάδι, 2 vols (Athens: Filolaou Typografias, 1843), i, p. 179. Georgios Angelopoulos, later a professor of administrative law, was even clearer: ‘the unity of the nation was [put] in danger by the old institutions (of the communes), which had developed a narrow conception of patriotism […] There was then a need for unification in legislature, unity in administration, the submission of local bodies to central government’: Angelopoulos, Περί τοπικής, pp. 18–19. See also Kostis, Τα ‘κακομαθημένα’, pp. 188–91, 198–203.

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After the first attempts at state-building, the liberal jurists expected further political reforms and the gradual development of Bavarian absolutism towards a more tempered Rechtsstaat-like constitutional order. This was not just related to their political visions but was considered a condition for membership of the ‘civilised community of nations’. Establishing this sort of legal process was perceived as the transition mechanism by which Greece would enter the modern world, civilisation and progress. The jurists saw the establishment in 1835 of the Council of State as a consultative body for the legislative power exercised by the Regency and later by the king as such a step towards a ‘civilised’ life. Its establishment was also informed by the belief that, as already mentioned in Chapter 1, Greece was a newcomer to the family of civilised nations. But this consensus between liberal constitutional jurists and the state authorities was not destined to last. Although it was during the 1850s that the split was articulated more thoroughly, the first cracks between liberal claims and the policies of the royal authorities appeared in the late 1830s. As Chapter 1 argued, from this period onwards the Romanist jurists criticised the ways in which the state proceeded in the construction of the legal order. But these reflected more general liberal concerns regarding the failure of central authorities to pursue further the process of reform. The restructuring of education, justice, bureaucracy and tax collection had frozen; brigandage and local riots abounded; and the formation of a standing army and police forces remained on paper alone.40 As already mentioned in Chapter 2, increasingly for many jurists this failure was not only due to the political inefficiency of the Bavarian bureaucracy to formulate and implement state policies. It was also due to the forms of governance that had been implemented from day one of Bavarian rule and had hardly changed in the years since the king had come of age in 1835. As already mentioned, underpinning these forms was Polizeiwissenschaft. For liberals, this understanding of government was inadequate and jeopardised the civilising process in Greece. That is not to say that they had radical demands. The shift towards more modern governing practices in the form of a mixed government and the rule of law was primarily seen as a way to break the deadlock where reform was concerned. What the liberals mainly criticised was the lack of deliberation, of respect for the law and of some sort of accountability.41 As we also saw in Chapter 1, these concerns 40 41

Kostis, Τα ‘κακομαθημένα’, pp. 204–12. Soutsos, Η μεταβολή.

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had important political implications that fed into a moderate political agenda (the Mavrokordatos incident). In light of the failure of the king to respond, constitutionalism as an agenda of institutional reforms became increasingly an oppositional political language.42 This process culminated in the revolt of 3 September 1843 when the king agreed to the convocation of the First National Assembly, its task being the drafting of a constitution. After some months, in 1844, the first constitution of the modern Greek state came into force, transforming the kingdom from an absolute into a constitutional monarchy. Although the revolt did not signify a crisis of legitimacy for the monarchy, the constitution was not any sort of radical document either – it was in fact a constitution-contract that the king had granted to his subjects. And yet its promulgation had important implications. It consolidated the power of the king by gradually eliminating the political factions that had crystallised in the years of ‘enlightened absolutism’. At the same time, it satisfied some of the demands of the local elites because it gave them access to central power. It also satisfied basic moderate liberal demands by adding political legitimacy to monarchical power and by introducing certain basic tenets of civilised political life. The latter was very important for liberals, because it was associated with the place of Greece in the family of civilised nations. In other words, and as already noted in Chapter 1, for all its moderation the political transformation of the regime into a constitutional monarchy was to have considerable long-term effects, as it changed the rules of the political game by introducing a new political framework and novel political practices.43 In addition, the establishment of two chambers opened up a new space for political activity and created new possibilities for public life. This was evident even during the proceedings of the First National Assembly, when a new political cleavage appeared between natives/indigenous (or ‘autochthones’, i.e. Greeks born within what became the Greek state) and non-natives (or ‘heterochthones’, i.e. Greeks born outside the territories of what was then the Kingdom of Greece). Of equal, if not greater, importance was the fact that this change in the structure of politics opened up new possibilities for discussing and thinking about governance and the state, representation and the body politic, political power and sovereignty. In the years to come, it was mainly constitutional scholars who addressed these issues most thoroughly and consistently. 42 43

Mavromoustakou, ‘Το αίτημα “Σύνταγμα”’, pp. 25–45. Petropulos, Politics and statecraft, p. 472.

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Public Law as the Science of Individual Liberty in a Constitutional Nation-State The years that followed the constitutional transformation of 1844 witnessed the ‘golden age’ of nineteenth-century Greek constitutionalism, both as a political practice and as a way of thinking about politics. Characteristically, from the mid-1840s onwards, the literature on representative institutions and on constitutional law flourished. As Paschalis Kitromilides has argued, ‘opposition to Ottonian absolutism and the clamouring for political change since the 1840s had nurtured an ideological climate which was expressed in the symbolic vocabulary of political liberalism’.44 It was not just general works on liberal political thought that were translated and published, but also literature on constitutional and parliamentary practice.45 Even the translation of Tocqueville’s Democracy in America was accompanied by the New York Constitution, which had been promulgated in 1821 at Albany and included a number of additional amendments.46 Much more importantly, this intense interest in constitutional thought was accompanied by the establishment of the Chairs of Constitutional Law and the Law of Nations at the University of Athens in 1846. The first holder of the Chairs, Nikolaos Saripolos, came to dominate these fields for more than three decades. Saripolos was born in Cyprus into a merchant family, which moved to Trieste after the outbreak of the Greek Revolution. Although the family did return to Cyprus in the early 1830s, Nikolaos left shortly afterwards for Paris. He was to have studied medicine but turned eventually to law – after receiving advice, or so he claimed, from Ioannis Kolletis, then the Greek ambassador to Paris and first prime minister of Greece after the political transformation of 1843–1844. Upon his coming to Greece, Saripolos was elected to the Law School, where he occupied both aforementioned Chairs. Indeed, through his scholarly writings, his public engagements and his role in the judiciary 44

45

46

P. Kitromilides, ‘European political thought in the making of Greek liberalism: The second national assembly of 1862–1964 and the reception of John Stuart Mill’s ideas in Greece’, Parliaments, Estates and Representation, 8, 1 (1988), pp. 11–21 (p. 14). The former included Sismondi, Μελέται; M. F. Landremont, Σύντομος ιστορία της τελευταίας γαλλικής επαναστάσεως (Athens: Typ. Vlastou, 1848); D. de Hauranne, Το περί βουλευτικής και εκλογικής μεταρρυθμίσεως σύγγραμμα (Athens: E. Antoniadis, 1848); A. Thiers, Περί ιδιοκτησίας; A. de Tocqueville, Περί της Δημοκρατίας κατά την Αμερικήν (Athens: Typ. Alex. Garpola, 1849); Thomas Jefferson, Εγχειρίδιον περί του βουλευτικού δικαίου (Athens: K. Antoniadis, 1848). For the publishing conditions of this era, see M. V. Sakellariou, ‘L’hellenisme et 1848’, in F. Fejto (ed.), 1848 dans le monde. Le Printemps des peuples, 2 vols (Paris: Minuit, 1948), vol. II, pp. 319–54. This constitution expanded the suffrage by removing property qualifications, granted limited suffrage to African-Americans and abolished the Councils of Appointment and Revision.

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and the bar, Saripolos framed to a large extent the general perception of both branches of law.47 During the late 1850s and early 1860s, he was a key member of the political opposition to King Otto, contributing significantly to the Revolution of 1862. He was elected to the Constituent Assembly and was instrumental in its lengthy proceedings and the drafting of the new constitution in 1864. Up until 1875, when he retired from the university, Saripolos remained a central figure in the public life of the country and politically active. Saripolos was a highly prolific writer. His publications include a great number of scholarly treatises, articles, pamphlets and hundreds of journalistic articles, reviews, brief surveys, obituaries and so on.48 My analysis will focus on his main theoretical works on public law and on other publications dealing with political matters, including his interventions on issues of public policy. Sometimes these latter publications help make his political thought clearer.49 Although his first publications appeared immediately after the beginning of his tenure at the university, it was the appearance of his sophisticated treatises that established him as the pre-eminent public lawyer of his generation and set the standard for subsequent generations.50 His first treatise was on constitutional law and was published in 1851. It remained constantly in print for several decades, with a new edition appearing in 1874–1875.51 His second major work, which has been somewhat neglected by legal historiography, was his treatise on the law of nations, published in 1860. For Saripolos, these two fields belonged to the same branch of public law. This part of the chapter will focus on his method and the main themes of his thought, before turning to a closer analysis of his theory of constitutional government and his international thought. 47 48

49

50

51

Alivizatos, Το σύνταγμα, pp. 141–43 and, more generally, Kitromilides, Νικόλαος Ιωάννου Σαρίπολος. For an extensive presentation based on Saripolos’ own archive, Kitromilides, Νικόλαος Ιωάννου Σαρίπολος, pp. 291–375. For his main scholarly books and articles, ibid., pp. 281–85. A part of his archive was published in M. Stasinopoulos (ed.), Προσωπικό αρχείο Νικολάου Ιωάννου Σαριπόλου (Athens: Kleisiounis, 1963). Saripolos consciously used many archaic forms of Greek in his scholarly writing style. He justified this practice in terms of the need to form constitutional concepts and words in a scientific and precise way that would reflect the complexity of modern life, whereby it became necessary to innovate linguistically: N. Saripolos, Πραγματεία συνταγματικού δικαίου, 2 vols (Athens: Νικολαΐδου Φιλαδέλφεως, 1851), vol. I, p. v. His first published works were his inaugural lectures: N. Saripolos, Η ιδέα της ελευθερίας, λόγος εκφωνηθείς την 14η Οκτωβρίου 1846 κατά την έναρξιν της διδασκαλίας του ‘Συνταγματικού δικαίου’ (Athens: Typ. Nikolaidou, 1846); N. Saripolos, Λόγος εκφωνηθείς την 22η Ιανουαρίου 1848 κατά την έναρξιν της διδασκαλίας τoυ ‘Δικαίου των εθνών’ (Athens: Filolaou Typografias, 1848). N. Saripolos, Πραγματεία του συνταγματικού δικαίου, 2nd amended ed., 5 vols (Athens: Typ. Michail N. Aggelidou, 1874–75). All quotations are from the first edition.

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The case of Saripolos marked a significant conceptual transformation in Greek constitutional thinking. He shared many of the convictions of his (few indeed) domestic predecessors in the field of constitutional thought, such as the importance of establishing a mixed type of monarchical government bound by the law and a progressive view of history and civilisation, which he saw as culminating in his own constitutional era. But he also departed significantly from his predecessors, by pushing further existing constitutional ideas and articulating novel ones. In order to understand Saripolos’ thought and the changes of emphasis it underwent during the course of those thirty years, the Greek political context is certainly important, but the origins of his thought lay in the intellectual context of his time, in the subtle and complex field of post-Restoration European constitutional liberalism. Saripolos spent the greater part of his long student life in Paris and first came to Greece in 1846, the year he was elected to the university and delivered his first lectures. He was thus informed to a marked degree by the rich and diverse exchange of ideas on constitutionalism, representation and the science of government that characterised post-Napoleonic France. Indeed, Saripolos sustained an eclectic conversation with a number of intertwined intellectual traditions, all somehow related to the French Revolution. The chief inspirations included natural law philosophy, Montesquieu’s theory of mixed and blended government, the Doctrinaires’ method and theory of progress, Benjamin Constant’s neutral power and the way in which the Girondins and the monarchiens (a group that Aurelian Craiutu has called the radical moderates) tried to reconcile the rights of man with the rights of the nation and the prerogatives of the monarch.52 The impact of the moderate ideas of the last two groups on Saripolos’ views regarding bicameralism and the powers of the monarch has been for the most part neglected. Through this eclectic conversation, Saripolos developed a particular version of moderate liberal thought, while at the same time keeping a keen eye on the radical revolutionary tradition. By so doing, he transformed the terms of constitutional debate in Greece. He removed the study of law from a positivistic science of administration and turned it into a political and normative science of civilised states and free citizens. His conception thus combined an individualistic language of natural rights with a language of the collective rights of states. For Saripolos, a constitutional state was not only a legal and political order where both the general population and public authorities had to 52

Craiutu, A virtue, pp. 69–112.

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operate  within the law (a claim that lay at the heart of the Rechtsstaat theory). It also connoted a mixed government with a strong executive that could not but respect individual rights. The way to achieve this was not by separating the powers, but by distinguishing them and blending their jurisdictions. But, as we shall see, it was the principle of political representation and Saripolos’ theory of national sovereignty that underpinned these statist claims. Here we have to do with the Greek participation in that historical moment when the ‘contagion of sovereignty’ swept the world.53 And, as in other cases, this was a language of statehood that included a commitment both to a particular internal structure of authority and to the external independence or international autonomy of the state. This moment of sovereignty thus also signified the moment when Greek scholars realised that formal independence was not in itself a sufficient criterion for statehood. This became a central concern towards the late 1850s, when interference in the domestic affairs of the Greek state and direct financial pressure from the Great Powers showed up the precarious position of Greece within the international system and its vulnerable status as a semi-protectorate. Some important initiatives in the field of international law thus ensued, which emphasised the need to move from independence and self-determination as the ultimate criteria of statehood to those of sovereign autonomy and equality in the international arena.

Individual Liberty and National Sovereignty: Constitutional Law and the Domestic Primacy of the State For Saripolos, the nineteenth century was the product of a long progressive evolution of European society. Following the Doctrinaires and more particularly François Guizot’s Histoire de la civilisation en Europe, he associated the progress of civilisation with the advance of individual freedom and the emergence of constitutional nation-states. Christianity, it should be noted, was a defining feature of Guizot’s notion of civilisation. In his discussion of constitutional developments, Saripolos referred to almost every country within the Christian world, according a special place, by virtue of their constitutional development, to England, the Scandinavian nations, the United States, France and Latin America.54 His numerous 53 54

Armitage, Foundations of modern international thought, p. 230. Saripolos gave a brief – compared to his treatise – comparative account of these constitutional developments in his inaugural lecture: Saripolos, Η Ιδέα της ελευθερίας, pp. 13–30.

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historical references were used to illustrate the distinctiveness of the modern era and the sense he had of living in a time of great change.55 This transformation had been inaugurated, Saripolos reckoned, in the three centuries before the climactic moment of the great French Revolution, ‘the greatest and most beautiful outcome of [the] human mind’.56 The new order required a novel political system, both domestic and international. Public law – constitutional and international – was the political science that would elucidate the principles and practices of government for this new civilisational stage. As he stated in his first lecture, ‘the science of organizing polities, the science of law, […] is necessary to a free nation. The study of other sciences makes scientists or technicians, but the study of law makes free citizens’ and ‘political science by teaching the citizen that which is lawful, that which promotes his well-being on earth makes him better, makes him perfect’.57 Following the Doctrinaires, Saripolos’ approach amounted to an exposition of the fixed and general principles of the ideal, the good or the ‘best’ form of government. But this ‘political science’ consisted ‘in studying the nature of humanity, following its laws and needs, studying life, the language of societies, and combining the two extremes, the principle and the aim of society; this is law’.58 In other words, it aspired to be a middle ground between founding science on purely abstract principles and using history as the foundation for political science.59 Both of his scholarly works started with the general principles upon which public law and its subfields were based, followed in the second volume by more concrete historical examples, a sort of comparative exposition of different case studies where the principles of ‘good’ government were applied.60 In addressing the principles upon which the ideal form of government was built, the influence of the Doctrinaires began to lessen. That was because Saripolos’ thought was heavily influenced by naturalism and especially by Leibniz’s theory of the divine origin of law and Condorcet’s theory 55

56 57 58 59

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His view of the stadial progress of civilisation was also along the lines proposed by Guizot. Criticising the ancients and especially the Greeks, he praised Christianity for establishing equality. Its failure, however, to reform the political system resulted in the bloody Dark Ages (Byzantium included). According to this view, government by divine right had invited constant disputes about who represents God and accusations of usurpation of divine authority. By contrast, the Reformation and late Enlightenment heralded the dawn of the new constitutional era. Ibid., pp. 2–6. Saripolos, Λόγος εκφωνηθείς την 22η Ιανουαρίου 1848, pp. 22–23. Saripolos, Η ιδέα της ελευθερίας, pp. 32, 1–2. Saripolos, Λόγος εκφωνηθείς την 22η Ιανουαρίου 1848, p. 6. Saripolos, Πραγματεία, pp. 3, 153 and thereafter. His method had many affinities with Guizot’s: see A. Craiutu, ‘The method of the French Doctrinaires’, History of European Ideas, 30 (2004), pp. 39–59 (pp. 42–46). See also Drosos, Δοκίμιο, pp. 21–71.

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of legislation.61 This superior natural or divine law was eternal and inaccessible to human manipulation or interference. Its moral and political norms, upon which human society was constituted, according to Saripolos, were virtue, justice, reason and the rights of man. Because of their natural capacities for reason and freedom of conscience, humans were capable of making sense of these norms and applying them to legislation. From this perspective, Saripolos rejected theories that founded modern states on principles other than natural rights, such as interest (Hobbes) or utility (Bentham).62 He was also critical of Montesquieu’s theory according to which natural law was merely one of several categories of laws by which people should be governed.63 For Saripolos, man-made legislation could not but conform to the hierarchically superior, divine, eternal or natural law (all used interchangeably). At the same time, he criticised ‘the paradoxical’ Rousseau, claiming that humans were indeed social animals and that their inalienable natural rights were therefore only enjoyed within society.64 Saripolos had a complex perception of these rights. The highest was liberty, a multifaceted principle that was defined as preservation of the self (‘η εαυτού συντήρησις’) and consisted also in the right to life and security. The second was property, which had the sense of self-possession (‘η διά της ιδίας κτήσεως διάσωσις’).65 The exercise of both made equality a necessary condition for human relationships. With the advance of progress and civilisation, political (or civil) society was constituted based on these principles, thus facilitating the well-being and the good life of its citizens.66 What distinguished this stage were the distribution of powers (legislative, juridical, executive) and the framing of three sets of laws: domestic public law (or constitutional law, regulating relations between the state and its citizens), external public law (regulating relations of states with other states) and private law (regulating relations among citizens). In that stage, the natural rights of man were complemented by more tangible forms of rights such as freedom of conscience and of faith, freedom to govern and to be governed.67 61

62 63 64 65 66 67

Condorcet is not mentioned by name in this part, but Saripolos did quote Destutt de Tracy’s work on Montesquieu’s theory of legislation, in which Destutt de Tracy used Condorcet’s arguments: see Saripolos, Πραγματεία, pp. 3–12; N. Saripolos, Τα των εθνών εν ειρήνη και εν πολέμω νόμιμα, μετά προεισαγωγής ιστορικής περί των αρχών και των προόδων της επιστήμης, 2 vols (Athens: Τύποις Π. Α. Σακελλαρίου, 1860), vol. I, pp. 479–80. Saripolos, Πραγματεία, vol. I, pp. 20–26. Montesquieu was a thinker whom he had in the utmost admiration: ibid., pp. 28–29. For Montesquieu’s theory of the good legislator, see Craiutu, A virtue, pp. 54–60. Saripolos, Πραγματεία, vol. I, pp. 26–28. Ibid., p. 16. There was a strong unacknowledged influence of Locke in this point. Ibid., pp. 15–17. Ibid., pp. 62–64.

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The next issues were by whom, how and in what ways or institutions was political (or civil) society to be constituted. These were key issues for a great number of public lawyers and more generally for European liberals, concerned as they were with one of the fundamental problems of modern political thought, that of sovereignty – its nature and its location. Certainly, as James Sheehan has argued, the concept of sovereignty was much older. But by the middle of the eighteenth century the role of law in making sovereign claims had increased significantly. This process was closely connected to the state’s territorial consolidation in its endeavours to create a uniform political space, open to state authority and unencumbered by competing claims. From the late eighteenth century onwards, nationality joined law and territory as a principal element of statehood.68 This engendered a tension between the king and the nation or the people as to which was the source of political power. Most nineteenth-century liberals opted for the nation even when they were supporting a king. But then the fundamental question – one that has troubled liberals ever since – became that of who speaks for the nation and under what form of government. In his answers to these two key issues of constitutional thought – the source of political power and how power is organised – Saripolos was largely informed by analogous answers given by that broad church of liberal political thinkers whom Aurelian Craiutu has called the ‘moderates’. Regarding the first issue, Saripolos maintained that sovereign power emanated from the nation (‘έθνος, a word he used interchangeably with polity, πολιτεία’). The nation was thus defined in political terms as a unity of laws and public authority: ‘a group of a society, which sharing sovereignty, subjects itself to common laws, having as its aim the [general] well being and accepts to be governed by its own chosen governors’.69 By giving this answer (which seems easy only in retrospect) to the question of who possesses sovereignty, Saripolos turned against both the Rechtsstaat thinkers and the Bavarian understanding of the king as sovereign. His solution to the second issue – which in his case, as for many other liberals across the world, became who speaks for the nation and how – was much more complex. The reason was that, in the aftermath of the eighteenth-century revolutions and the experience of the Terror and the Napoleonic Wars, 68 69

J. Sheehan, ‘The problem of sovereignty in European history’, American Historical Review, 111, 1 (2006), pp. 1–15 (pp. 7–9). Saripolos, Πραγματεία, vol. I, p. 150. In this part he also criticised Royer-Collard and the rest of the Doctrinaires because, as he argued, they had not specified who was supposed to express the sovereignty of reason.

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the issue had itself become much more complex. As mentioned in the introduction to this chapter, it was the theory of absolute sovereignty and the problem of its usurpation that lay at the heart of the liberals’ concerns. Saripolos was alert to these concerns. Following Montesquieu, he argued that the criterion for the best government was not the form but the manner in which authority was exercised. Yet he qualified Montesquieu’s insight by stating that this depended on three conditions that would limit the chance of sovereign power violating individual rights and usurping power. Firstly, in order to ‘guarantee’ that ‘freedom and the citizens’ rights will not be violated’, it is imperative to make sure that ‘none of the powers is absolute’; secondly, it will be ‘recognised that sovereignty belongs to the entire nation, so that the state authorities cannot usurp it’; and thirdly, authority will be ‘divided and not concentrated in one power’ and ‘the limits of those powers will be clearly delineated so that the work of each is independent from and not hindered by another’.70 The advantage of a ‘constitutional regime’ (‘κατά Σύνταγμα πολιτεία’) was that it was more efficient in fulfilling these criteria because it clarified and determined more clearly the manner in which the institutions of the state and public authority operated, thus forestalling usurpation.71 It was not by accident that Saripolos criticised the theories of both Hobbes and Rousseau. Although quite different, as he acknowledged, both lead to despotism, ‘under one despot’ in the case of Hobbes, ‘under a myriad of despots’ in the case of Rousseau. The reason was that, as Constant had in fact acknowledged, both were theories of absolute sovereignty.72 Saripolos argued that the best way to deal with the problem of excessive power was to fashion a complex institutional arrangement in the form of a constitutional monarchy that would mix the powers of the monarch, the parliament and the judiciary. His sketch was very close to Montesquieu’s mixed government, where the balance of the three powers prevented any particular one from gaining precedence over the others. That was why he criticised the unlimited sovereignty of the English parliament – by quoting De Lolme’s Constitution of England – and the potential danger this posed to individual liberty.73 Strictly speaking, the system he proposed 70 71

72 73

Ibid., pp. 99–101. ‘Man-made political law, such as a constitution (“το μεταβλητόν ή ποιητόν”), is secondary in terms of importance compared to the divine and natural law. This superior law must not be put on paper, but legislation has to follow its principles’: ibid., pp. 115–19. Ibid., p. 28. Saripolos spent much more space criticising Rousseau and especially his theory of absolute sovereignty: ibid., pp. 39–41. Saripolos, Η ιδέα της ελευθερίας, p. 8.

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was a ‘moderate’ or representative government headed by a king. As a political system, it had several institutional advantages that secured individual rights: publicity and especially freedom of the press, independence of the judiciary, trial by jury, judicial and municipal authorities as secondary powers, accountability of administration and a respect for due procedure.74 But there was more to the system of representative government than just constitutional procedures guaranteeing individual freedoms. As Bryan Garsten has argued, by devising this system, post-revolutionary liberals sought to institutionalise the distinction they had come to draw between sovereignty and government.75 Indeed, for Saripolos, the nation as sovereign did not necessarily rule, except at extreme moments. Although he stressed that national sovereign power was indivisible (‘αδιαίρετον’), non-expropriated (‘αναπαλλοτρίωτον’), inalienable (‘απαράγραπτον’) and unaccountable (‘ανέυθυνον’, from a legal, not a moral, point of view), it could never legislate against the natural, divine law. In other words, Saripolos asserted that sovereignty was never unlimited nor constantly in action and that there were spheres of life that should always be protected from infringement by a strong set of rights. From this stemmed also the way he confronted what scholars have called the paradox of sovereignty. If sovereignty is defined as the highest authority in a given domain, then immediately the question arises as to who gets to say which is highest and on what grounds.76 Saripolos, like many other constitutional lawyers, addressed this paradox by drawing a distinction between ruling, which is exercising authority within a legal order, and founding, which is establishing such an order. For him, the exercise of sovereignty was restricted to those foundational and critical moments when it is transformed into and performed as a constituent power.77 This transformation could not but take the form of a special representative convention (constituent assembly). For Saripolos, the principle of representation was almost a natural outcome of his theory of sovereignty. It was during these moments that the ‘state’ (the ‘political body’, as he put it), its laws and the three powers were constituted. After that constituent moment, the sovereign nation would turn into a community of private subjects (‘κατ’ άτομον υπήκοο’) 74 75

76 77

Saripolos, Πραγματεία, vol. I, pp. 106–8. For the principle of publicity, he referred also to Bentham: ibid., pp. 395–97. B. Garsten, ‘Representative government and popular sovereignty’, in I. Shapiro, S. C. Stokes, E. J. Wood and A. S. Kirshner (eds.), Political representation (Cambridge, UK: Cambridge University Press, 2010), pp. 90–110. Terry Nardin, ‘The diffusion of sovereignty’, History of European Ideas, 41 (2015), pp. 89–102 (p. 4). Saripolos, Πραγματεία, vol. I, pp. 40–41, 50–58.

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and the state authorities would take charge. But that would not mean that the sovereign went to sleep or that its power dissolved, as Rossi and Portalis respectively had argued. It was on constant alert, not only to bring back to order any sort of constitutional deviation, but also to reconstitute the political community, if need be.78 In normal times it was the government and the state that exercised sovereignty – including the king. Saripolos defended a representative government with two chambers: one elected by an electoral body, the other containing the ‘best’ members of the nation and selected by the king. This model was a qualified version of the English representative system. In his advocacy of bicameralism, Saripolos made reference to Constant but rejected the hereditary principle, which Constant had defended by referring to the example of England.79 Although Saripolos did not acknowledge their influence, his theory and justification of bicameralism was very close to that advanced by the monarchiens in the way in which he defended the ‘prudence’ of life magistracies. His criteria for electoral participation were for their part very close to Guizot’s arguments. He argued that voting rights should not depend only on property but on ‘capacity’ (‘αξία’), which Saripolos construed in a much broader sense than the French statesman had done.80 However, it is important to note that Saripolos, probably following Rousseau but without acknowledging it, maintained that this system did not mean that sovereignty was delegated or represented. As he stated, ‘the state authorities are just authorized’ (‘εντολοδόχοι’), while the ‘electoral body can never be so large as to comprise the whole nation’.81 In other words, for Saripolos the representatives were not to be taken as having an incontestable legitimacy – they were not to be mistaken for the bearers of the citizens’ sovereignty. In his modest version of sovereignty, the 78

79 80

81

In order to illustrate his point Saripolos likened the nation to a mechanic and the constitution to a machine. The mechanic puts the machine to work, supervises it and does not interfere as long as it works properly. But when its function fails, the mechanic repairs it: ibid., pp. 55–56. Saripolos did not quote Rossi directly, but a member of the French assembly, Duc de Broglie, who was influenced by Rossi and who argued in 1842 that there is a part of the government that is ‘sommeillant dans un lointain mysterieux, mais toujours prêt à se reveiller’. Regarding Portalis’ theory, Saripolos used a direct quotation where the French jurist had argued that ‘Quand la constitution d’un people est établie, le pouvoir constituent disparait’, cited from Le Moniteur, 20 August 1842, p. 1832. Constant, De la liberté, pp. 314–16. Saripolos, Πραγματεία, vol. II, pp. 307–14. For the English case, pp. 284–95 and pp. 22–136. See also his more general comments in Saripolos, Λόγος περί ελευθερίας, pp. 21–24. A more extensive discussion of Constant can be found in the 1874–1875 edition of his Πραγματεία, vol. II, pp. 504–7. For Guizot’s theory on electoral rights, see Jennings, Revolution and the republic, pp. 364–65. Saripolos, Πραγματεία, vol. I, p. 52.

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sovereign was not an active ruler but an authority distinct from the rulers and entrusted with the task of evaluating them. It thus manifested itself in keeping in check the government and in according the rulers an always temporary and provisional consent. By so doing, it required the citizens to be watchful and to nurture their critical capacities in civil society, a realm outside of but related to politics. The key capacities of the sovereign were those of ‘supervision’ (‘επίβλεψη’) and ‘monitoring’ (‘εποπτεία’). This was, according to Saripolos, the meaning of the last clause of the constitution of 1844, which stated that ‘The observance of the constitution rests on the patriotism of the Greeks’. At the same time, Saripolos accorded extensive powers to the king. In conventional accounts, Saripolos has gone down as a true, indeed a heroic, liberal and member of the (liberal) opposition to King Otto. But what many historians usually underplay is that he was a strong advocate of royal power and remained so throughout his life. His final resignation from the university in 1875 was due to his support for the king in the political crisis of 1874–1875 (see Chapter 5). His refusal to oppose the king has usually been seen either as the caprice of an old liberal turned royalist owing to political frustrations or simply as an inconsistency.82 Neither of the two explanations is convincing. As a matter of fact, Saripolos’ understanding of executive and legislative power was rather consistent in being influenced by moderate liberals, from Montesquieu and the monarchiens to the Restoration liberals and especially Benjamin Constant. His main concern – which he shared with Constant – was how to limit the chances of the sovereign power being usurped. Attempting to deal with this danger, Saripolos turned to Constant’s idea of royal power in his 1815 edition of the Principes de politique applicables à tous les gouvernements représentatifs et particulièrement à la Constitution actuelle de la France. For Constant, royal power was perceived as a neutral power, distinct from the others, the role of which was to maintain order and liberty. As he argued: The executive, legislative and judicial powers are three competences which must cooperate, each in their own sphere, in the general movement. When these competences, disturbed in their function, clash with and hinder one another, you need a power which can restore them to their proper place. This force cannot reside within one of these three competences […]. It must be external to it, and must be in some sense neutral […]. Constitutional monarchy creates this neutral power in the person of the head of state.83 82 83

Alivizatos, Το σύνταγμα, pp. 142–43. Constant, Political writings, p. 184. For Constant’s neutral power, see Craiutu, A virtue, pp. 198–236.

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Saripolos was inspired by Constant and also by the monarchiens and in particular by Clermont-Tonnerre in his perception of royal power as a special power. But he disagreed with them in seeing it as distinct from the executive power.84 And, somewhat paradoxically, he accorded a much more active role to the monarchy both through its participation in executive power – which it should hold in total – and through its role in legislative power, in which it participated along with the two chambers.85 By exercising the executive power and participating in the legislative power, as a ‘complementary’ (‘συμπληρωματική’) and ‘moderating’ (‘μετριαστήν’) authority, the monarch would ensure that the balance of powers was not disturbed and that liberty would be preserved.86 By so doing, Saripolos was probably acting in a more realistic fashion than Constant, who had tried to present the monarch as being ‘above human anxieties’ and hence a neutral power.87 Although Saripolos maintained that, in theory, the king ‘can do no wrong’, his understanding was that the king participated as a higher authority in the exercise of power without any pretence that he was not ruling. On the contrary, the king ‘rules, governs but does not administer’.88 In other words, he was not to be involved in the everyday affairs of administration. In this way, Saripolos sought to put royal power not as an exterior provision to good government but as a balancing power within the interior structure of the government. And yet the power of the king was not unchecked. In fact, Saripolos unequivocally rejected the idea (common in Greece at the time of writing his treatise) that the constitution of 1844 was a pact between the king and the nation. The reason was that for Saripolos the legitimacy of the former stemmed from his being the ‘first ruler of the state’ or ‘representative’ of the nation.89 This was an important departure from Constant. As Jeremy Jennings has argued, in the debate that originated in the French revolutionary decade about whether it was the monarch or the people who spoke for the nation, Constant took an intermediary position, denying any one person or category this exclusive privilege.90 This was not the case with Saripolos. Nor was he in any way in 84 85

86 87 88 89 90

Saripolos, Πραγματεία, vol. I, pp. 189, 200. Ibid., p. 189 and thereafter. For his reference to Constant and Clermont-Tonnerre for royal power as a fourth power: pp. 189, 200, 203–5. For a criticism of Saripolos’ reading of Constant, see I. Mavromoustakou, ‘Ο Ν.Ι. Σαρίπολος ως επιστήμονας του δικαίου’, in Kitromilides, Νικόλαος Ιωάννου Σαρίπολος, pp. 129–38. Saripolos, Πραγματεία, vol. I, pp. 158–59. Constant, Political writings, p. 187. Saripolos, Πραγματεία, vol. I, p. 203. Ibid., pp. 158, 192. For his representative quality, pp. 158, 543. Jennings, ‘Constitutional liberalism’, p. 354.

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agreement with the English doctrine of ‘the king in parliament’ (discussed by De Lolme in La Constitution de l’Angleterre). In fact, in a long footnote in his treatise on the controversial idea of whether a king can or cannot be dismissed by the nation, Saripolos clearly supported the idea of his putative dismissal, referring both to Blackstone’s Commentaries on the laws of England and Vattel’s Law of Nations.91 The logic behind Saripolos’ formulation stemmed from his theory of sovereignty. Since the government did not represent the nation, in the sense of bearing its sovereign authority, it would be safer to have a government that would contain more than one authority commissioned by the nation and working simultaneously in its name. In order to avoid any concentration of power, Saripolos sought to impart a degree of instability to the government by allowing contestation about who spoke for the nation (as in the case of a contest between the king, the senate and the parliament). This was an idea that also drew upon the tradition of the mixed constitution: the division of authority between a monarch and a parliament establishes offices of authority without specifying which is highest. This was also why Saripolos was very keen on the monarchical right to dissolve the parliament, whereby the king could refer the matter of choosing representatives back to the nation. And this was also why he was an ardent spokesman for the importance of a free press and the right of assembly. These were forums where people explored different interpretations of the national will, trying to persuade others. Saripolos’ later insistence on rendering the revision of the constitution an easy process should be understood in light of this desire to have a politics of contestation and persuasion and not in light of his being a monarchist. For Saripolos, representative government was not confined to choosing anew only officeholders and deputies, but included discussion of the constitutional form of government. Yet what did these formulations mean in the Greek context? By making the monarch the ‘first servant of the nation’ and by stating that citizens of the nation have only rights, whereas the rulers have only duties to perform, Saripolos, at least theoretically, subsumed the monarch within the sovereign nation and the dictates of natural law. What that meant was that, notwithstanding his constitutional theory’s moderation, it had significant and potentially radical political implications. Or at least, that was the way it was read and criticised by an anonymous reviewer in Pandora in the 1850s. As the reviewer in question very correctly pointed out, Saripolos’ theory of sovereignty as the supreme ‘social’ power subsumed the political 91

Saripolos, Πραγματεία, vol. I, p. 187.

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laws under the nation and natural law. This implied both that it was legitimate for the nation to disobey unjust laws and that the constitution was legally binding only when the constituent power was not in action. If and when the nation exercised that power, even the king had to comply. And if there were a violation of the fundamental laws, the constituent power then had to convene to correct it, if need be by revolution (thus legitimising violence, as the reviewer argued), the last and most extreme, but still legitimate, means of correction. Although the review was written as a rather unsympathetic critique and provoked an angry reply from Saripolos, it was not far from having grasped some of the most important implications of Saripolos’ constitutional ideas.92 Indeed, by tacitly going against absolute sovereignty – which he saw as prone to arbitrariness – Saripolos was in effect calling sovereignty into question, envisaging a different form of political association. This vision of a constitutional order was not a projection into the future, a dream of a time yet to come. He argued that such an order existed already in the configuration of the state, but in order to secure this immanent structure it needed to be put on a different constitutional footing. By so doing, he attempted to reconsider the basic principles of state authority. This state was no longer conceived as a royal state or as a legal mechanism, but as a moral being that derived its authority from the nation. In the context of Greece, this version of constitutional monarchy and Saripolos’ perception of the state were radical departures from the ideas of government that underpinned the monarchical state. What is more, his theory was rather radical when compared to the liberalism of the Rechtsstaat thinkers, because he did not seek only to legitimise state power as a legal authority but also to extend and consolidate it as the supreme political authority. Conventionally, mixed representative governments have been seen as elitist, based as they are on incorporating oligarchical and monarchical elements in their attempt to curb popular sovereignty. But in Saripolos’ formulation, a mixed representative government was the best means for curbing absolute sovereignty and for limiting the chances that sovereign power could be usurped. With this end in mind, he tried to reconcile a language of individual rights with an advocacy of a much more enhanced role for the state, framed as this was by a complex internal institutional structure. 92

‘Βιβλιοπαρουσίαση της Πραγματείας συνταγματικού δικαίου υπό τον κ. Σαρίπολο’, Πανδώρα, 22 (1851), pp. 542–49. In his reply Saripolos, who contributed regularly to the journal Πανδώρα, refused to answer to the specific criticisms because of the decision of the reviewer not to supply his real name: his answer in Πανδώρα, 25 (1851), pp. 579–80. For Saripolos’ view of revolution as an undesirable but still legitimate form of political action, see Saripolos, Πραγματεία, vol. I, pp. 67–69.

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Conclusion This chapter has sought to demonstrate that the period between the establishment of the Greek state and the 1860s witnessed significant developments in Greek constitutional ideas. Thinking about political organisation and the sources of its legitimacy became central concerns both for Greek jurists and for Greek politicians, especially in light of the failure of the Greek state to reform and to play a role in the Mediterranean. What is more, the chapter has shown that Greek constitutionalism was conversant with a wide array of political traditions. It was Nikolaos Saripolos who came to dominate the field by drawing upon a number of late eighteenthand nineteenth-century European sources of moderate political thought. In broad political terms, Saripolos’ ‘good’ constitutional government was a middle way between monarchical absolutism and unchecked parliamentary sovereignty. The reason was that these modes of politics were susceptible to usurpation, because both were prone to an absolute understanding of sovereignty. He believed that a mixed government based on a plurality of powers and a continuing contest about who speaks for the nation provided the best safeguard for guaranteeing the preservation of natural individual liberties and the advancement of national well-being. Saripolos’ theory of sovereignty underpinned these formulations. It was premised on a triple conceptual transformation. The one was the transformation of the idea of authority as a right to decide particular issues and its understanding as a generalised right to decide issues or to rule within a particular jurisdiction. The other was the migration of the idea of sovereignty from the conceptual domain of authority to the domain of power, understood as the right to decide about the allocation of authority and the ability to realise that decision. Last but not least, Saripolos located sovereignty in the nation. His main domestic preoccupation was to put the kingdom on a new constitutional footing and thus arrive at an accommodation between national sovereignty and monarchical power. His theory thus turned against – at least indirectly since he did not, initially, challenge monarchical rule – what he saw as the limited understanding of both the Bavarian conception of the state and the legal Rechtsstaat version of the Romanists. By so doing, Saripolos tried also to reconceptualise the principles of state authority, turning to an understanding of the state as ‘a moral being’. In other words, the state lay at the heart of Saripolos’ analysis. This preoccupation with the state, its character and its relationship to the individual was not restricted to Greek liberals. As Christopher Bayly has argued, one of the most controversial issues of the Restoration

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was how to deal with the new and invigorated state that had emerged in Europe after the French revolutionary wars. Its style of governance and its centralising tendencies had raised practical issues of government, but also questions of political legitimacy and ideology, which were matched by an increasing propensity to theorise about it and about the progress it might foster.93 The constitutional thought of the time was a manifestation of this efflorescence of interest in statehood. The response of European liberals to the tension created between individual liberty and a centralising state took many different forms. With regard to French liberalism, Lucien Jaume has distinguished between three different liberal responses: Catholic liberalism, the ‘liberalism of the subject’ and the dominant liberalism of the Doctrinaires that subordinated the individual to the state.94 Saripolos took an intermediate position by creatively using and adapting these French liberal traditions to his own concerns and context. For him, Greece may have been a latecomer in the process of political modernity, but both the Revolution and the later political and constitutional reforms (1844) had opened up a path for it leading into the modern era. In a way, just like his counterparts – constitutional liberals in France (Guizot, his fellow Doctrinaires and Benjamin Constant) – Saripolos sought to institutionalise the revolutionary tradition by establishing a moderate juste milieu based upon ‘order, legality, and constitutional liberty’.95 And, actually, compared to liberal proposals in France and across the Channel, Saripolos did not seek to reduce royal prerogatives but on the contrary to extend them. The reason for this was the idea (somewhat old but granted a new lease of life by Benjamin Constant) that, as the king stands above particularistic interests and in fact unites in his person the nation, he can counterbalance any act of parliament that usurps the sovereignty of the nation and legislates against its will. In Saripolos’ understanding, therefore, the royal prerogative was not just compatible with liberty and national sovereignty, but a crucial component for their exercise. It should come then as no surprise that his constitutional vision implied a complex institutional structure that placed great emphasis on the benefits of a strong state with the king (the neutral power) at its head. A state such as this could respect individual rights, but also create the institutions that would enhance their protection and their exercise. In short, for Saripolos, a language of individual rights and claims for a strong central power were not mutually exclusive. 93 94 95

Bayly, The birth, pp. 108–9, 143. Jaume, L’individu effacé. Jennings, Revolution and the republic, p. 365.

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At the same time, what seemed to be a very important element of his theory of mixed government was that the sovereign nation was entitled to regain its sovereignty in the face of abuse, no matter the source of this abuse. This could very well be the king, but, as already mentioned, it is important to remember that for Saripolos, as for many liberals of his time, monarchical tyranny was not the sole criterion of legitimate resistance. This could also come from the exercise of popular power or from the legislative despotism of a parliament. Be that as it may, as we will see in more detail in Chapter 6, in Greece it would be the actions of the king that would give these ideas an immediate political resonance.

chapter 5

The Law of Nations, Sovereignty and the International Autonomy of the Greek State

Introduction Chapter 4 demonstrated that the period between the establishment of the Greek state and the 1860s witnessed significant developments in Greek constitutional ideas. This chapter shows that in formulating these ideas, scholars, and in particular Saripolos, who gave Greek constitutional theory its shape, realised that any attempt at assessing the constitutional structure of the state could not but take into account the status of the Greek kingdom vis-à-vis other states. They realised, in other words, that the problem of consolidating the political authority of the state was not just internal but also external: it was about making assertions of autonomy within the international order. In such circumstances, constitutionalism as a language of statehood came to include a commitment both to a particular internal structure of authority and to the external independence or international autonomy of the state. It came, that is, to address international law. This international dimension of Greek constitutional thought – and indeed of Greek legal thought in general – has rarely been considered, and this omission is all the more glaring given the precarious position of the Greek state in the post-Napoleonic states system, and especially the framework of ‘protection’ that was offered to, but also imposed upon, Greece by the Great Powers. This framework was not just an interpretation of the Powers’ intervention – diplomatic and military – in favour of Greek independence and against the Ottomans – an intervention that had ensured the founding of the Greek state, especially after the crushing of the Ottoman–Egyptian fleet by the allied forces in the Navarino bay in 1827. It was also a framework that assumed an institutional expression in the guise of the international treaties that established the Greek state (and the Greek monarchy), beginning in 1830. In such a situation, one that had left a question mark on Greece’s sovereignty (with the kingdom poised somewhere between being a protectorate and an independent state), the attempts by imperial powers 166

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(and in particular by Britain) from the 1840s onwards to consolidate their power in the wider region of the Eastern Mediterranean transformed these treaties into a point of contention between Greek authorities and the Great Powers, generating in the process disputes over law and jurisdiction. As we shall see, these disputes gradually led Greek scholars to inquire into the entire protection status and raise questions about its meaning, as well as about who had the authority to allocate authority and about who ruled and how. In so doing, they drew in an original way upon the lively debates on international law taking place across Europe at the time. But in order to understand their specific views on international law, which did not necessarily entail a rejection of the framework of protection (at least initially), we also need to understand the degree to which they were responses to a specific regional legal order. This order was to be found in a part of the Eastern Mediterranean and was shaped by the existence of a plurality of legal regimes and territorial/jurisdictional orders (empires, states, state-like entities and protectorates with uncertain sovereignty, etc.); and it was one that went through many changes from the late 1840s onwards, and especially after the Crimean war when power relations in the area changed significantly – as we shall see in greater detail in this chapter. To be sure, although this regional order had its own characteristics, it was not exceptional. Indeed, scholars have argued that, as the diffusion of sovereignty as a legal idea during the nineteenth century proceeded within a context of imperial expansion, more and more peoples and their lands came into contact with, if not under the authority and jurisdiction of, European empires.1 Instead of a world of nation-states, this literature has shown that imperial forms of legal authority and the relevant ideas and principles of imperial sovereignty continued to frame relations within and across states. It has also demonstrated that it was out of disputes and legal conflicts over the nature of such forms of authority that modern nation-statehood emerged. But this transition from a world of empires to a world of nation-states – that ‘most momentous but least widely understood development in modern history’ – was a process that took some time to unfold.2 Although the focus of a large part of this literature has been on the extra-European and colonial world, and in particular on imperial 1 2

For details of the relevant literature, see the next section of this chapter. Armitage, Foundations of modern international thought, p. 191; see also Armitage and Subrahmannyam, The age of revolutions; Adelman, Sovereignty and revolution; Paquette, Imperial Portugal; K. Fullagar and M. A. McDonnell, Facing Empire: Indigenous experiences in a revolutionary age (Baltimore, MD: Johns Hopkins University Press, 2018); S. Sivasundaram, Waves across the south: A new history of revolution and empire (London: Collins, 2020).

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borderlands in this world – places where empires met and interacted and where many states and polities possessed an ambiguous international status – this chapter shows that the same processes took place in ‘peripheral’ regions and on the European margin such as the Eastern Mediterranean. This was a region that was almost by default a malleable and liminal space of contact, encounter and interaction of empires and other polities, and one where after Napoleon imperial powers and their agents employed several legal strategies in order to consolidate their power.3 While historians have recently shed light on how some of these processes played out in the region, they have not adequately explored local responses and the legal-political struggles that was an integral part of the encounters between imperial powers and the new entities that emerged in the region after the 1820s. The chapter focuses on such responses – intellectual but also institutional – by Greek liberal scholars. As it shows, forced to confront the ambiguous status of the Greek state, Greek scholars engaged in debates about the status of protectorates, and more importantly about the meanings of protection and the conditions of independence. At the heart of the matter was whether protection meant the cession of sovereignty, as the British authorities seemed to claim, or a political framework that secured and guaranteed the freedom, independence and self-rule of small states in the international arena, as the Greek side understood it. By turning to international law, the aim of scholars such as Saripolos was not just to criticise what, in light of imperial interventions in the domestic affairs of the Greek state, they increasingly saw as an institutional anomaly (external interventions in what was nominally an independent state). It was also to forge an alternative understanding of international law that went beyond formal independence and international recognition as the criteria of sovereign statehood. This was a view that was to have significant repercussions in Greek politics, as it came to inform public policies and a political strategy of self-reliance. By recovering this international moment of Greek constitutional thought, the chapter has two wider goals. One is to expand the geographical focus of what David Armitage has called international intellectual history in order to include voices from the European periphery.4 The other 3

4

Zanou, Transnational patriotism, pp. 7–13; K. Zanou and M. Isabella, ‘Introduction: The sea, its people, and their ideas in the long nineteenth century’, in Zanou and Isabella, Mediterranean diasporas, pp. 1–23. See also Peter Hill, ‘How global was the age of revolutions? The case of Mount Lebanon, 1821’, Journal of Global History 16, 1 (2020), pp. 65–84; Benton, Law and Colonial Cultures; Benton and Ross, Legal pluralism and empires. Armitage, Foundations of modern international thought.

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goal is historiographical. The fact that the dynamic of a case study of a small state on the European periphery was similar to that of many extraEuropean and colonial settings puts a question mark on the conventional divide between the European peripheral and the extra-European worlds that still characterises a significant part of the relevant historical scholarship. The chapter opens with a discussion of this scholarship and in particular of that on the relationship between imperialism, nationalism and liberalism during the nineteenth century. It then turns to the Greek world itself, exploring the many ways it was caught up in the processes of imperial restructuring that followed the fall of Napoleon. After detailing the complex and ambiguous international status of the Greek state, the last part considers the ways in which Greek scholars responded to the attempts by British authorities to specify and interpret this ambiguous status before, during and after the Crimean war.5

Liberalism and International Law in the Nineteenth Century Recent scholarship on the history of nineteenth-century political thought has paid particular attention to the relationship between imperialism, nationalism and liberalism. The conventional view – the one that deemed liberalism and imperialism to be mutually exclusive – has come under severe criticism. Indeed, many scholars have argued that while in the eighteenth century there was a more universalistic understanding of justice and equality, with respect shown for cultural diversity, by the middle of the nineteenth century liberals embraced ideas of cultural superiority and imperial conquest as a means of consolidating freedom at home and disseminating it abroad.6 What is more, scholars have emphasised the importance of international law in this process, when it actually expanded both as theory and as practice. For too long the narrative on international law and politics, popular among mainly legal scholars, was that an international system of states emerged in Europe and then expanded 5 6

D. Armitage, The Declaration of Independence: A Global History (Cambridge, MA: Harvard University Press, 2007). Among others see U. S. Mehta, Liberalism and empire: A study in nineteenth-century British political thought (Chicago: Chicago University Press, 1999); J. Pitts, A turn to empire: The rise of imperial liberalism in Britain and France (Princeton, NJ: Princeton University Press, 2005); A. Fitzmaurice, ‘Liberalism and empire in nineteenth-century international law’, AHR Forum, American Historical Review, 117, 1 (2012), pp. 122–40; J. Pitts, Boundaries of the international: Law and empire (Cambridge, MA: Harvard University Press, 2018).

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when non-European states were admitted as new members in the international legal order.7 And indeed, Greece was, according to this view, one of the very few states to be admitted into the new international system after Vienna (along with Belgium).8 This narrative, however, ignores the profound role that extra-European developments played in the evolution of the law of nations. As a consequence, it has come under severe criticism that has fed into a thought-provoking and still growing literature on the history of international law. This literature, which seeks to overcome Eurocentrism, entails a shift away from looking at states, rules and institutions to exploring historically how the law of nations evolved over time – as an intellectual phenomenon, as a discipline (and therefore as a profession), but also as practice. Although the view that international law was forged through European interactions with extra-European states and societies was not entirely new (if one takes into account for example the work of C. H. Alexandrowicz), the critical argument of this literature is that international law developed in the context of European commercial and imperial expansion. In other words, it expanded when international legal rules and ideas were imposed outside Europe to enable imperialism.9 This ‘imperialist’ thesis has challenged the emancipatory scope of international law and has been partly sustained by the argument that in the fifty years around the turn of the eighteenth to the nineteenth century, the natural jurisprudential foundations of the law of nations gave way to a positive conception of international law. According to this view, not only did the emerging discourse of legal positivism challenge the authority of natural law for the law of nations, but, more importantly, it emphasised that shared customs and legal conventions formed the basis of law and that rights were guaranteed only by state-made law and could not therefore exist outside of civil authority.10 More importantly, scholars have shown the strong relationship between legal positivism, the law of nations as a political discourse and the notion of ‘European civilisation’. Although Europe as a ‘state system’, worthy of analysis in its own right, was an older formulation, ‘European civilisation’ In general, the literature for these debates is voluminous. For this view, see indicatively the classic W. Grewe, The epochs of international law (Berlin: De Gruyter, 2000). 8 Mannesis, Deux états. 9 See the classics: A. Anghie, Imperialism, sovereignty and the making of international law (Cambridge, UK: Cambridge University Press, 2005); M. Koskenniemi, The gentle civilizer of nations: The rise and fall of international law, 1870–1960 (Cambridge, UK: Cambridge University Press, 2001). 10 For the earlier period see R. Tuck, Natural rights theories: Their origin and development (Cambridge, UK: Cambridge University Press, 1979). See also J. Pitts, ‘Boundaries of Victorian international law’, in Bell, Victorian visions, pp. 67–80. 7

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became the fundamental concept of the international order that emerged after the defeat of Napoleon and of the new techniques of international rule that were formed and applied in the following years.11 As Martti Koskienniemi has argued, international law, not least in the way it was forged within liberal international legal institutions such as the Institut de Droit International (established in 1873), was a key factor both in the liberal apology of empire and in the division of the world according to the European standard of civilisation. Thus, the discussions among international lawyers over the limits of the ‘government of the world’, at least within Europe, were framed by a hierarchical language in which a small number of European states – the ‘civilised community of nations’ – were considered subjects of international law.12 Accordingly, through the doctrine of international recognition, states could only join as new members once they had been brought by the advance of civilisation within the realm of law. And in fact, Greece was such a potential new member. As Mark Mazower has argued, the ‘protection’ offered to the Greek kingdom was devised in order to bring the state up to the standard of civilisation and eventually to the family of nations – a notion of protection that was preserved for semi-civilised states and was employed after Greece in the colonial world.13 Nevertheless, the ‘imperialist’ accounts of the history of international law have themselves also come under increasing scrutiny. This criticism has taken several forms. Some legal scholars and intellectual historians have shown that international law continued to have some sort of universalist aspirations and to draw from natural law well into the nineteenth century.14 Others have gone a step further, claiming that the ‘imperialist turn’ thesis does not do justice to the many divisions within international legal thought. In doing so, they do not deny the role of the law of nations as a powerful political discourse in the context of European imperial expansion. But they contend that it played a variety of roles and that it was subjected to different readings and uses depending on the context. As Jennifer Pitts has argued, ‘it [the law of nations] did supply justifications for the actions of the imperial states and their agents. But it also furnished resources for the criticism of abuses of power by imperial states.

11 12 13 14

M. Mazower, Governing the world: The transformation of an idea (London: Penguin, 2012). Ibid, pp. 6–10, and M. Mazower, ‘An international civilization? Empire, internationalism and the crisis of the mid-twentieth century’, International Affairs, 82, 3 (2006), pp. 553–66 (pp. 554–59). Mazower, ‘An international civilization?’, pp. 556–57. Pitts, Boundaries, pp. 118–47.

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In other words, it had both imperial and “counter-imperial”, critical, or emancipatory dimensions’.15 Indeed, recent works have shown that debates about the civilising mission of law, the status of states and the sources of international law were vigorous; and that they nurtured, in large measure, liberal critiques of empire and the standard of civilisation, but also of the very notion of absolute sovereignty, which some liberals saw as detrimental to the establishment of international institutions.16 Thus, by recovering such critiques, which in many cases were made into alternative accounts of international law, scholars have come to question the conventional view, according to which the period was characterised by the rise of positivism. What is more, many works have made the case that alternative perspectives were coming both from the European/Western world and from the extraEuropean world – a fact that the imperialist narrative and indeed many of its critics tend to neglect. Attempting to fill this gap, scholars have turned to exploring the intellectual footprint of non-Western international lawyers, the way they appropriated international law, and the distinctive character and role this acquired in extra-European contexts.17

The View from the Periphery This chapter draws much sustenance from these last accounts, not least because Greek liberals did not read and use international law in the same way as other liberals in the core ‘European civilised community’. In doing so, it contributes to and expands the part of this literature that has contended that international law became international when jurists from the periphery or the semi-periphery – those regions that were not clearly within or outside the ‘civilised’ community of states but occupied a place in between civilisation and barbarism – appropriated it. Indeed, as mentioned throughout this book, the Greek kingdom (and the Greek world more generally) was such an in-between case, at least in the minds of Western European authorities of the time, but also those of many politicians, authors, intellectuals and others, including Greek scholars. In fact, this sense of ‘in-betweenness’ was not novel for members of the Greek 15 16 17

Pitts, Boundaries, p. 3. Pitts, A turn to empire, pp. 69–70; Fitzmaurice, ‘Liberalism and empire’, pp. 122–40. M. Koskenniemi, ‘Histories of international law: Dealing with eurocentrism’, Rechtsgeschichte: Zeitschrift des Max-Planck-Instituts für europäische Rechtsgeschichte, 19 (2011), pp. 152–76; M. Koskenniemi, ‘A history of international law histories’, in B. Fassbender and A. Peters (eds.), The Oxford handbook of the history of international law (Oxford: Oxford University Press, 2012), pp. 943–71.

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world. And the same went for the interest in questions relative to international law. In reality, long before the establishment of the Greek state, many Greek subjects of the Ottoman, Venetian and later on the Russian, French or British empires (these last ones primarily in the Ionian islands, but also elsewhere) had taken a strong interest in international law, usually in their capacity as members of the imperial service; an interest that took off with the French revolutionary and Napoleonic wars because of the destabilising impact these had on power relations in the Eastern Mediterranean. Indeed, some of them, such as Ioannis Kapodistrias and Alexander Stourtza to name but the most prominent, would come to play an important role as members of the Russian delegation at the Congress of Vienna, in the setting up of the Holly Alliance and later on in the negotiations that led to the establishment of the Greek state – in all cases trying to address the issue of how to accommodate small states next to or within imperial powers.18 Unsurprisingly, this interest in international law continued unabated after the Revolution. In fact it intensified, not least because the creation of the Greek kingdom and the precarious position this had in the international arena rendered these old questions more pertinent than before. This interest from scholars of the periphery was actually part of a wider phenomenon. Indeed, in his seminal comparative study Arnulf Becker Lorca has argued that with the emergence of new states and the expansion of Europe in the nineteenth century, a number of non-European and semi-peripheral scholars took a strong interest in international law and came to study in Western European universities.19 He maintains that contrary to conventional wisdom, these scholars did not adopt Western international legal norms; rather, by reframing them, they came to form a distinctive legal paradigm – what he has called ‘particularistic universalism’ – transforming international law in the direction of equality. This paradigm was based on three features: positivism, an absolute notion of sovereign autonomy and the internalisation of the standard of civilisation. These were the attributes whereby international legal subjectivity was held to be granted.20 What was probably more important was that peripheral jurists developed different political and legislative 18

19 20

Zanou, Transnational patriotism, pp. 83–108; P. K. Grimsted, ‘Capodistrias and a “New Order” for Restoration Europe: The “liberal ideas” of a Russian foreign minister, 1814–1822’, Journal of Modern History, 40, 2 (1968), pp. 166–92. A. B. Lorca, Mestizo international law: A global intellectual history 1842–1933 (Cambridge, UK: Cambridge University Press, 2014). See also A. B. Lorca, ‘Universal international law: Nineteenth-century histories of imposition and appropriation’, Harvard International Law Journal, 51, 2 (2010), pp. 476–552.

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projects in their attempts to overcome unequal treatment in international law and render the international community more inclusive of peripheral and non-Western states.21 That is not to say, of course, that the imperial powers of the time were not left considerable leeway in their exercising of informal power over semi-peripheral states, including direct force if necessary. But it is to say that many semi-peripheral lawyers, like their counterparts in the colonial world, did use international law as a tool to narrow the scope of the power that empires could legitimately wield over their territory. By so doing they were able to prevent or resist direct or indirect subjugation. Jurists from these countries thus did more than simply formulate theoretical contributions to the debates about international law. They also contributed to the transformation of international legal norms, institutions and rules, reconceptualising in the process state sovereignty so as to make room for international organisations. And as Lorca himself has pointed out in his comparative analysis, Greek scholars played a significant role in these developments. Even though Lorca has focused on the late nineteenth century, his point that Greek lawyers had a different take on international law if compared to liberals in Western Europe holds also for earlier decades – with some important differences between the two generations, however. To be sure, Greek scholars of both earlier and later decades of the nineteenth century did not reject outright the civilisational language with which Western Europeans defended and justified imperialism. In fact, they used this language themselves against the Ottoman Empire, even if, as we shall see, they clung more than was usually the case among international lawyers at the time to an older notion of unified Christianity as the organising category of the international order. What is more, just like their counterparts in other semi-peripheral contexts, Greek scholars used international law to defend the rights of a small nation and the principle of equality, at least for those states that fulfilled the criteria of independent statehood and could claim membership in the international legal order. And they also experienced a certain disillusionment when they saw that their efforts to obtain inclusion within the international community of states were failing to curb European states’ disproportionate power and the tension between the universalist law of nations and the particular interests of different states. Was there anything distinctive about all of these formulations? In fact there was, and the reason was that the Greek jurists’ theoretical formulations were as much intellectual responses to debates about international 21

Ibid., pp. 476–83.

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law as they were political responses to a particular regional legal order. It was in light of the changing nature of this order that a critical assessment of international law came to be made. This assessment would ultimately entail an enquiry into the relationship between the Greek state and the Great Powers, with some such as Saripolos eventually deeming this relationship to be a form of servitude and a violation of international law. But then the key question, sometimes insufficiently addressed by historians of international law, is what exactly was this regional legal order the jurists were responding to? How did contemporaries perceive its nature and its basic characteristics? And what was the particular place of the Greek kingdom within it? The usual answer is that this international order and the techniques of international rule that went with it were shaped by the interests of (as well as the conflicts of interest between) the Great Powers of the era, prominent among which was the British Empire. Indeed, as scholars have argued, the support by the Great Powers for Greek independence was justified as a means to remove it from Ottoman rule, and to avoid complications in regard to the post-Napoleonic international order.22 Historians who study law from a global perspective have, however, painted a more complex picture. In doing so, they start by questioning what they see as the ‘myth of Westphalia’, according to which, from the seventeenth century onwards, medieval patterns of divided sovereignty were transformed into a system of sovereign states. Contrary to that teleological picture, they have depicted the international order as one shaped by relations between multijurisdictional and web-like empires, within and beyond Europe, which yielded only slowly to the idea of such a system. Hence, the notions of ‘legal pluralism’ and of ‘interpolity law’ as concepts that better capture the complexity of the legal landscape, one that was defined by a multiplicity of interimperial (or interpolity) zones of overlapping and shifting political and legal power.23 But this complexity was not synonymous with chaos. Indeed, as Lauren Benton and Adam Clulow have argued, there were up to 1800 widely existing ‘categories or rubrics of legal practices’ that organised ‘interactions and settled expectations’.24 Although these categories did not translate into an inclusive and comprehensive law 22 23 24

Mazower, ‘An international civilization?’ L. Benton and A. Clulow, ‘Empires and protection: Making interpolity law in the early modern world’, Journal of Global History, 12 (2017), pp. 74–92. L. Benton and A. Clulow, ‘Legal encounters and the origins of global law’, in J. H. Bentley, S. Subrahmanyam, and M. E. Wiesner-Hanks (eds.), The Cambridge world history, vol. vi: The construction of a global world, 1400–1800, Part 2: Patterns of change (Cambridge, UK: Cambridge University Press 2015), pp. 80–99.

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of nations, they did generate ‘a regional or global legal order’. Three in particular were of the utmost importance for structuring interpolity interactions: ‘protocol’, which organised diplomatic interactions; ‘jurisdiction’, which facilitated the sustainability of connections across regions; and ‘protection’, which constituted the substance of these interpolity relations. To be sure, scholars agree that the nineteenth century brought important shifts in this highly ritualised and multijurisdictional legal order, as states increasingly claimed supreme legal authority within their own borders. And yet, as these scholars have also pointed out, such changes took time to develop, and were characterised by sharp conflicts over jurisdiction that were closely linked with shifts in ideas about sovereignty. As empires consolidated and expanded, states and other polities were prompted to ratchet up their own claims to control over legal affairs within their territories. During the first half of the nineteenth century such conflicts played out with particular force on imperial borderlands – places with an ambiguous international status, where empires and other polities met and interacted – and were activated to a large extent by questions about ‘protection’. The Greek world was an integral part of this process, with many of its constituent parts being just such borderlands. In fact, one could argue that the Greek kingdom was, to a great extent, established in order to serve as such a borderland. Undoubtedly, the kingdom was nominally an independent state. But, as already mentioned and as we will shortly discover in more detail, this was an independent state with uncertain sovereignty that was to be ‘protected’ in order to be civilised. Although domestic issues and in particular opposition to the Bavarian monarchy would ignite a sort of anti-colonial oppositional language – which deemed Greece a Bavarian protectorate – it would be in light of the Great Powers’ interventions in the domestic affairs of the state and the way they justified them by recalling the framework of protection that these claims would assume a more consistent form.

Sovereignty, Protection and the Greek State What exactly was the legal framework of ‘protection’ imposed upon Greece by the European powers? How did it play out in the Greek world? And how did this world understand and cope with it, in particular after 1830 when it became a foundational principle of international politics? To be sure, ‘protection’ was not an unknown concept (and of course practice) in the Greek world. In fact, it was a basic currency of its political imagination, from at least the eighteenth century onwards, as it pervaded the

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language of diplomatic relations, domestic politics, treaties, petitions and so on. Indeed, to a large extent the Ottoman imperial constitution was founded on the premise that the Sultan offered protection to his subjects in exchange for their submission – an agreement of sorts that played out in different ways according to the specific context. More importantly for the purposes of this chapter, the language of protection found its way into international agreements that were important for Greek-speaking populations in the Eastern Mediterranean: the 1774 Treaty of Küçük Kaynarca between the Ottoman and Russian empires contained clauses that offered legal protection by Russia to Christians living in Ottoman territories (and that could and did include Greeks); and the 1815 Treaty of Paris made Britain the ‘protecting sovereign’ in the Ionian islands.25 The importance of these developments in the Greek world and the Ottoman Empire for the international order in the first half of the nineteenth century has not been lost on historians. And yet, in studying the meanings and the legal politics of protection in the region, there is a tendency to focus on the point of view of the ‘protecting partner’, usually the imperial powers, leaving the ‘protected’ out of the picture. When these latter do enter the frame, the focus rests on cases that are more organically related to imperial frameworks such as the Ionian islands or later Cyprus. And even these are almost by definition portrayed as resisting protection.26 But, as already mentioned, a somewhat similar ‘protectionist’ legal framework lay at the heart of the foundational international treaties through which the Greek state was formally established. This was a detailed, but at the same time rather complicated and ambiguous, framework – one that was saddled with direct and indirect mechanisms of protection and indeed of future interventions. According to the Protocol of the London Conference of 3 February 1830, Greece would ‘enjoy all the rights […] attached to complete independence’. At the same time the treaties made clear that these advantages had been ‘granted to the new state’ and were ‘guaranteed’ by the Great Powers.27 More importantly, the Convention of London of 1832 stipulated that the ‘Courts of Britain, France and Russia offered the Sovereignty of Greece to Prince Otto of Bavaria’ (with Greece 25

26

27

Sotiropoulos and Hadjikyriakou, ‘Patris, ethnos, and demos’; D. J. Konstantaras, ‘Christian elites of the Peloponnese and the Ottoman state, 1715–1821’, European History Quarterly, 43 (2013), pp. 628–56. L. Benton and L. Ford, Rage for order: The British Empire and the origins of international law, 1800–1850 (Cambridge, MA: Harvard University Press, 2016). For a recent exception see Gekas, Xenocracy. House of Commons, Parliamentary Papers Online, A. Papers relative to the affairs of Greece. Protocols of conferences held in London, 1830 (001), pp. 315–34.

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recognised as a ‘monarchical’ state). In doing so, they claimed to be authorised by the Greek nation. But further on, the text states that the contracting party to the future treaty with the Ottoman Porte would be the king of Greece (not the court of Greece, or the Greek state). This distinction between sovereigns and states is indeed one made several times in the text. And interestingly enough, when specifying the terms of the repayment of the loan contracted by Prince Otho and guaranteed by the powers, the text draws a distinction between the sovereign of Greece and the Greek state, implying that these were two different entities with the same (probably) responsibility to repay the debt. If that were not complicated enough, the treaty also stipulated that receipts of the treasury were to be devoted, first of all, to the repayment of the loan, with the representatives of the courts in Greece in charge of watching over the procedure. There is probably no better proof of the ambiguous status of Greece as a state with limited sovereignty and subjected to protection than the idiom used by the Ottoman authorities in referring to the new kingdom. As evidenced by Ottoman diplomatic documents, when characterising the Greek kingdom, the Ottomans deployed terms they usually applied to polities that were tributary to the Ottoman Porte, such as the Danubian Principalities, Serbia or Samos. Characteristically, they never used the word ‘state’. Instead, they talked of the ‘country of the Greeks’, of the ‘Greek government’ or more often of the ‘Greek authority’ – one that had been actually granted to the Greeks.28 What that meant is that the legal responsibilities and the political structure that stemmed from this framework were difficult to discern. And that was the case even with the rather detailed clauses on the supervision of state economics by the guarantor powers.29 This ambiguity and the language that framed it should come as no surprise. As scholars studying interpolity relations up until the early nineteenth century have argued, what guaranteed protection’s pervasive appeal was exactly its imprecision – an attribute that made it legally flexible and a means of preventing conflict.30 This was also true for the case of Greece. There, as elsewhere, the imprecision left a number of key issues unclear: about the terms of the relationship between the Great Powers and the new 28

29 30

M. Sariyiannis, ‘Η πολιτειακή ορολογία στα οθωμανικά έγγραφα της Ηγεμονίας Σάμου’, in S. Laiou (ed.), Συνταγματικά κείμενα της Ηγεμονίας Σάμου (Athens: Idryma tis Voulis ton Ellinon), pp. 187–211 (pp. 193–98). For a relatively different view see K. Gardika, Προστασία και εγγυήσεις: στάδια και μύθοι της ελληνικής εθνικής ολοκλήρωσης, 1821–1920 (Thessaloniki: Vanias, 1999). Benton and Clulow, ‘Legal encounters’.

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kingdom, the nature of the protection offered to the new state, its international status, as well as about sovereignty and the constitutional structure of the monarchy. It would not be long before Greek scholars and authorities had to confront the implications of this framework, whereby the new state had been left in an indefinite position, somewhere between a protectorate and an independent state. In such a context, any attempt to define this ambiguity, or raise questions about it and in particular about protection, would result in the raising of difficult-to-answer questions about sovereignty. This meant that domestic constitutional questions might have the character of international legal questions, as it was uncertain who was going to address such questions and in what capacity. Indeed, as Great Powers in the region (with Britain prominent among them) were trying to consolidate and expand their jurisdiction, jurists in Greece were forced to grapple with questions about legal jurisdiction and the meaning of protection. That said, and although protection was an indispensable tool for European expansion, it did not always function as such. Or at least this was the way in which lawyers in the semi-periphery saw it, to the extent that for them it did not necessarily connote a cession of sovereignty. As Benton and Clulow have claimed, protection claims cast shadows of sovereignty, but there was a great deal of movement within the shadows. The Greek case shows that it was when such claims shifted away from languages of alliance and some sort of reciprocity to discourses of subjecthood and submission that the shadows darkened.31

Greek International Thought and the Shifting Meanings of Protection Greek legal thought had developed an interest in international law from the early years of independence by turning to Vattel (see Chapter 1). As already noted, in 1846 a Chair of the Law of Nations was founded, and in 1848 Nikolaos Saripolos delivered the first inaugural lecture in which he identified the foundations of international legal thought with natural law. But it was only from the mid-1850s onwards that this interest intensified, and with great rapidity. It came to fruition in 1860 when Saripolos published his lengthy treatise, ‘On the law of nations in peace and in war’. Diomidis Kyriakos (another law professor whom we will also meet in Chapter 6) translated Auguste Wilhelm Heffter’s Das europäische Völkerrecht der Gegenwart and another legal scholar translated the part on 31

Benton and Clulow, ‘Empires and protection’.

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the Law of Nations from Louis Auguste Eschbach’s Cours d’introduction générale à l’étude de droit, ou manuel d’encyclopédie juridique.32 The motivation behind these theoretical choices stemmed from what was increasingly perceived as the ‘incomplete’ or ‘curtailed’ sovereignty of the Greek state. A case in point is the work of Heffter, who was also a founding member of the Institut de Droit International. In his celebrated Das europäische Völkerrecht, Heffter deemed the constitutional state to be the highest form of European political development and the opposite of the oriental state. More importantly, he rejected force in the conduct of empire and dismissed civilisation as the criterion for membership in the international arena. But why this critical stance against empire? In fact, this stance had been crystallising for more than a decade. There could hardly be a better starting point than the celebrated Don Pacifico affair. A British subject who was a Sephardic Jew, Don Pacifico was living in Athens when in 1847 an anti-Semitic mob attacked and looted his home. Pacifico demanded compensation by asking the British government to intervene on his behalf – which the British government finally did. The Greek government replied that Pacifico had not bothered to seek redress through Greek tribunals. An exchange between the two governments ensued that ended about a year later, when Lord Palmerston ordered the blockade of Athens. Such challenges to state authority took a more direct form during the Crimean war – a war that marked the end of the era of Great Power cooperation that had kept the peace in post-Napoleonic Europe. In light of the Russo-Ottoman hostilities, Greek military and paramilitary groups backed by the government had started operating on the borders with the Ottoman Empire. Not only did these groups fail, but the Anglo-French alliance, in trying to preserve the integrity of the Ottoman Empire, enforced a naval blockade upon Piraeus and, in May 1854, dispatched troops to the Greek capital.33 As was noted in Chapter 1, following this humiliating occupation King Otto was forced to ignominiously give up his irredentist policy against the Ottoman Empire and accept an administration selected by the foreign legation – the 32

33

Saripolos, Τα των εθνών; A. W. Heffter, Αλληλεθνές της Ευρώπης δίκαιον (Athens: Typ. tis Athinas, 1860); L-A. Eschbach, Στοιχειώδης πραγματεία περί του δικαίου των εθνών (Athens: Typois P. A. Sakellariou, 1858). In Athens, the problem of pauperism was prevalent before the cholera outbreak. The latter was brought by the French and British occupation forces and lasted from June 1854 to January 1855, causing the death of some 3,000 people. See M. Korasidou, Οι ‘Άθλιοι των Αθηνών και οι θεραπευτές τους. Φτώχεια και φιλανθρωπία στην ελληνική πρωτεύουσα το 19ο αιώνα (Athens: EIE, 1995), pp. 58–60. See also T. Sakellaropoulos, Οι κρίσεις στην Ελλάδα: οικονομικές, κοινωνικές και πολιτικές όψεις, 2 vols (Athens: Kritiki, 1994), vol. II, pp. 159–61.

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‘occupation cabinet’ (‘Yπουργείον Kατοχής’) – and tasked with implementing a series of important institutional reforms.34 The condition for lifting the blockade was the first informal financial control to be imposed upon a single country that reiterated the harsh terms of the 1833 loan agreement: the Greek government would have to honour the annual payment obligation before spending for other purposes. The end of the war was another and more long-term blow to the Greek irredentist movement. Not only did the Treaty of Paris, signed in March 1856, guarantee the territorial integrity of the Ottoman Empire, it also affirmed its inclusion in the Concert of Europe and its sovereignty over Moldavia, Wallachia and Serbia, but now under the protection of the Great Powers rather than Russia alone (assuring also the neutrality of the Black Sea). By thus blunting Russia’s ambitions and its role as protector of the Christian population in the wider region, the war altered power relations in the Eastern Mediterranean and caused the Eastern Question to enter a new phase.35 Developments in Greece over the next few years only made matters worse, as the kingdom entered a severe and long economic, financial and social crisis that the monarchical state was unable to address. Thus, the Greek state had not only failed to play a political role in the Eastern Mediterranean but, in light of the financial control that the protecting powers imposed on the country in 1859, it was also becoming, in the words of some scholars, a debt colony.36 What has not been appreciated by historians is that these challenges to the authority of the Greek state by the Great Powers primarily took the form of claims over law and jurisdiction. And in fact, they fed into conflicts over law and jurisdiction that were shaped by the articulation of alternative understandings of protection and more generally of the nature of the Greek state and its place in the international legal order. 34

35 36

S. Gekas, ‘The crisis of the long 1850s and regime change in the Ionian state and the Kingdom of Greece’, The Historical Review/La Revue Historique, 10 (2013), pp. 57–84 (p. 60). Several humiliating events, instigated by the occupying forces, took place during the occupation. Apart from military parades through the streets of Athens, journalists such as Ioannis Filimon – editor of Αιών, a proRussian newspaper – were arrested and imprisoned. C. Badem, The Ottoman Crimean war, 1853–1856 (Boston: Brill, 2010); O. Figes, The Crimean war: A history (New York: Metropolitan Books, 2010). Gekas, ‘The crisis’, pp. 62–67, 76–77; E. Driault and M. Lheritier, Histoire diplomatique de la Grèce de 1821 à nos jours, 5 vols (Paris: PUF, 1925), vol. II, pp. 406–13, 417 and thereafter; J. Kofas, International and domestic politics in Greece during the Crimean war (New York: East European Monographs, 1980). In 1859, the British–French–Russian financial commission forced the country to pay 900,000 francs every year, an amount that was supposed to increase when revenues allowed. With the exception of economic historians, this incident has received little attention. See for example A. Frangiadis, Ελληνική οικονομία, 19ος–20ος αιώνας: Από τον αγώνα της ανεξαρτησίας στην οικονομική και νομισματική ένωση της Ευρώπης (Athens: Nefeli, 2007), p. 75.

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The Don Pacifico affair is a case in point. In defending Britain’s interference, Palmerston delivered a lengthy speech to the House of Commons, in which contemporaries, and later historians, saw Britain’s articulation of an expansive and limitless right to protect its subjects (as well as interests), if need be by military intervention. As Benton and Ford have suggested, however, such a reading neglects the colonial context of protection and in particular the mounting complaints about the Greek government’s treatment of citizens of the Ionian state (a state under British protection). By setting the affair in this context and more generally in relation to the legal reform project with which the British authorities during the first half of the century sought, however hazily, to render disorderly law compliant with imperial legal standards, they have shown that Palmerston’s speech was not about imperial might in general. It was instead about the authorisation of British intervention in foreign jurisdictions by law. Indeed, by seeking to determine when a limited right to intervene might be justified, Palmerston defended the right of the British government to both define despotism and determine to whom different levels of protection might extend.37 These claims, they argued, were designed to position the British Empire as international arbiter. Although Benton and Ford are no doubt correct to refer to the Ionian case and its role as a sort of subtext to the Pacifico affair, they seem to downplay the more immediate context, that of the Greek kingdom and its international status as a protected and quasi-sovereign state. The intervention was justified, or so the British authorities claimed, because Greece lacked the institutional set-up through which subjects of the empire (including those under British jurisdiction, such as the Ionians) might seek redress in case of an alleged wrongdoing against them. But this claim could be articulated by virtue of the kingdom’s status and the precise manner in which the British interpreted the regime of protection. Just as in the Ionian case, so too here the British claimed that Greece was part of a regional legal order in which imperial authorities had the right to extend their jurisdictional reach and, in case of local denial, the power to intervene. In other words, the British were indirectly claiming that protection, in the case of Greece, meant the cession of its sovereignty, or a part of it. In fact, gradually British demands ceased to be limited to putting pressure on the Greek government but came to include territorial claims – as when British authorities maintained that the islands of Elafonisos and Sapienza were Ionian territory.38 37 38

Benton and Ford, Rage for order, p. 115. E. Kyriakidis, Ιστορία του συγχρόνου ελληνισμού: Aπό της ιδρύσεως του βασιλείου της Ελλάδος μέχρι των ημερών μας 1832–1892, 2 vols (Athens: Igglesi, 1892–1894), vol. I, pp. 584–90.

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For many in Greece these claims exposed some of the problematic fictions that went along with ‘protection’, or at least with the way imperial authorities at this juncture were interpreting it. In response, Greek lawyers and authorities started raising significant questions about what protection consisted of, and who possessed the power to define it. Such concerns had two interrelated consequences. One was to sharpen and intensify controversies over jurisdiction, in the process of which extraterritoriality, long a feature of interpolity law, was associated with the rise of imperial power and with Greece’s quasi-sovereign status. Indeed, the willingness even to raise such issues over jurisdiction assumed institutional form in 1854, when the post of ‘Councillor for disputes relative to the Law of Nations’ was established in the Ministry of Foreign Affairs. In 1856 the Greek authorities went a step further by establishing a ‘Council for disputes relative to International Law’ as a consultative body to the king – note the change in executive importance and of definition, from Law of Nations to International Law. In both cases, Nikolaos Saripolos, in his capacity as Professor of Constitutional and International Law at the University of Athens, served as Councillor initially, as a member of the Council later. Another consequence was to make scholars turn to international law, which they related to claims about the sovereign rights of states in the international arena. For them, this was a way to fill the gap constituted by what they perceived as an institutional anomaly. On the one hand, Greece was formally an independent state, and on the other, it was politically unable to exercise the rights and duties that stemmed from this independence. The aim of the ‘international’ turn among Greek scholars was to criticise this anomaly by forging an alternative strategy towards self-reliance. With his writings and especially his treatise, Saripolos sought to offer an authoritative theoretical denunciation of the injustice and unnaturalness of this international practice and to supply the necessary legal vocabulary with which to address its shortcomings.39 He did so by construing the Law of Nations as a normative science that was based on natural law and by emphasising the rights of states and the doctrine of national sovereignty. The latter was deemed a criterion of independent statehood and of integration into a system of sovereign equals. At least on a theoretical level, therefore, and in contrast to other scholars from 39

Saripolos did acknowledge in the prologue to his book that he was strongly motivated by the need to translate and transfer into Greek the key concepts and theories of international legal theories: Saripolos, Τα των εθνών, p. xi.

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semi-peripheral European and non-European countries, Saripolos was not a positivist.40 In addition, this naturalism, which included a progressive view of modern civilisation, went hand in hand with a legal geography that limited the application of the ‘common’ public law to the ‘Christian and civilised powers’, excluding the Ottoman and other ‘barbarian’ states.41 In other words, at least initially Saripolos did not explore the implications of his emphasis on natural law. Instead of having this emphasis push him towards universalism, he entertained a localised understanding of natural law, as its principles came to be identified with those of a Christian and European civilisation. In that sense he, like many other scholars in similar cases (in Latin America or the Mediterranean), subscribed to the European standard of civilisation and its decisive features: respect for the individual as a unique legacy of Christianity; a distinctive appreciation for the rule of law as a legacy of Rome; and a varied geography of a plurality of states that were equal and almost exclusively Christian. The difference was that whereas Western European publicists utilised the idea of civilisation to justify colonialism over non-civilised peoples and special rights over ­quasi-sovereign nations, lawyers in Greece, as elsewhere, appropriated the standard to overcome their precarious position and to justify the recognition of their countries as sovereign states. This is what motivated Saripolos to publish his first pamphlet on the international affairs of Greece under the characteristic title Pro Graecia in 1853.42 Written in French, the first part of the pamphlet presented a general argument in favour of the Greek cause in the Eastern Mediterranean, in which Saripolos attempted to justify the claim of Greece to sovereignty and civilisation. The second part provided some solid foundations for these claims in the form of statistical data. In general, in his efforts to prove that the Greek kingdom was a civilised state, Saripolos emphasised what he saw as the shared cultural roots of Greece with the West and Europe. What is more – just like the jurists around the Spectateur de l’Orient cited in Chapter 2 – he constructed his arguments in contradistinction to the Ottoman Empire and Muslim civilisation. More importantly, Saripolos saw nothing problematic in protection, as long as this meant the domestic 40

41 42

Lorca quotes Stephanos Streit, minister, jurist and professor of international law at the Law School of Athens, who was indeed a positivist. But Streit wrote late in the nineteenth century and his thought constituted a break with the previous naturalism of Saripolos’ international thought: see Lorca, ‘Universal international law’, pp. 491–92. Saripolos, Τα των εθνών, p. 307. N. Saripolos, Pro Graecia (Athens: J. Angelopoulos, 1853).

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supremacy of state authority but under the regulating power of the protecting powers. Gradually, however, he became critical of some of the implications of the notion and legal framework of protection, especially when Britain started using it to justify its imperial intervention. The contrast between his early pamphlet and his later treatise is a case in point. That is not to say that he challenged the understanding of international law at the time or the standard of civilisation as such. But he did challenge the way in which the international legal norms that went with it were implemented. His case thus shows that theories of legitimate sovereignty, critiques of despotism and notions of proper jurisdictional ordering informed both imperial reformers and peripheral (or semi-peripheral) jurists and lawmakers. As the former started to impute novel content to traditional international practices such as protection, the latter responded by formulating covertly dissenting understandings of international law. In this context, Saripolos argued that European powers ought to regard their relations with states and societies everywhere as bound and constrained by law. And that they ought to respect their own legal commitments in dealing with extra-European and peripheral societies.43 The problem for Saripolos was that the principles of international law, which for him stemmed from natural law, were constantly violated by modern European powers, both within Europe (as when England turned against the French Republic) and outside it, in the colonial world. But, more crucially, this state of affairs was evident closer to home. As he asked in the Introduction: ‘Under what right of the Law of Nations and without declaring war, did England impose a blockade and sanctions upon Greece in 1850 and a military occupation of Piraeus, along with France, in 1854?’ This was one more sign of the ‘disrespect (ασέβεια) with which the fathers of the peoples of Europe treated the common Law of Nations’.44 The way he saw it, in their efforts to introduce some sort of order into the international arena, imperial powers had transformed protection into a framework for claiming sovereignty, treating those protected as their subjects, if not as subjugated. As scholars have argued, at this juncture the proxy for protection was becoming tutelage. No wonder that later on Saripolos would take issue with protection by invoking this very equation. From a European perspective, Saripolos’ response shows that the struggle between the older universal and natural conception of the law of nations and the new positivist conception that regarded the law of nations as the exclusive 43 44

Pitts, Boundaries, p. 8. Saripolos, Τα των εθνών, pp. xxiii–xxv.

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province of Europe and its daughter states had not subsided and that the ‘Vattelian moment’ had not been totally eclipsed.45 As already mentioned in Chapter 1, this ‘Vattelian moment’ had to do with the revival of interest in Vattel’s positive conception of independence that took place in the late eighteenth and early nineteenth centuries, and in particular during the 1820s. As we saw there, Vattel’s theory, rooted as it was in natural law theories, gained popularity because of the prominence of independence in its definition of statehood. By proposing an analogy between human beings living under the law of nature and the existence of states in a similar condition, Vattel gave the concept of independence a new political meaning: it connoted the ‘autonomy of a political community’ among other political communities and ‘the ability to prevent other nations from interfering in one’s own business and to fend off insults, blocking whatever might be prejudicial to one’s interests’.46 Saripolos, in a way, pushed these Vattelian formulations further, by arguing that formal independence was not in itself a condition of the state’s sovereignty. In other words, his theory signified the transition of the law of nations from being a language of statehood based on independence to being a language of statehood based on sovereignty. In this vision any sort of dependency upon, or interference by, a foreign power, ‘protecting’ or not, connoted, or at least could potentially connote, servitude. The state lay at the heart of Saripolos’ treatise on the law of nations. As a descriptive category, the state referred to a particular genus of political unit – a unit distinguishable (ideally) from empires, regions, colonies, cities, counties, provinces and simple political societies. It was not, however, conceived of as simply a mode of political organisation, but increasingly as one that articulated a moral purpose in the eyes of its proponents. For Saripolos, whereas constitutional law studied the relations between the citizens and the government, international (or external) public law studied the relations among polities (i.e. states) perceived as ‘moral persons, that is whole nations’, which were equivalent to individuals in their autonomy, rationality and duty to obey the dictates of natural law.47 This theorisation of the state was not so much about the degree to which state institutions should intervene in society and the economy, but about the assumptions regarding the necessary and sufficient conditions of statehood. 45

46 47

The origins of this theoretical struggle lay in the second half of the eighteenth century: see C. H. Alexandrowicz, ‘Doctrinal aspects of the universality of the law of nations’, British Yearbook of International Law, 37 (1961), pp. 506–15. Armitage, Foundations of modern international thought, p. 224. Saripolos, Λόγος εκφωνηθείς την 22η Ιανουαρίου 1848, p. 3. An ‘element of the social and political group is in both the individual citizen’: Saripolos, Τα των eθνών, p. 1.

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As Saripolos asserted, a state was rendered a subject of international law when it was ‘a self-governed or autonomous national political community living in its own territory’.48 Although this was more of a definition of sovereignty in domestic terms, Saripolos stated that it had also an external dimension: namely, ‘the absolute independence of the state from any kind of foreign will’.49 As is well known, the international law of recognition in the nineteenth century was a contested field. Some jurists argued that a state could exist, legally speaking, when other states formally acknowledged its independence. Others argued that any entity that had the objective attributes of a state was in fact a state whether or not other states had formally recognised it. Saripolos opted for the latter, arguing that recognition by other states was an important but not a necessary condition for a state to be sovereign.50 The sources of international law were structured hierarchically by Saripolos: natural law, legal science, positive law and customs. The last two were accorded a lower status because no treaties or customs that ‘­violate the rights of states and aim at reducing them are valid’.51 His naturalistic foundations of the law of nations aimed at proving that ‘the law of nations is not the will of the strongest’.52 One of the reasons for the prevalence of this theory was, for Saripolos, the insistence of the ‘classical’ international thinkers (since Grotius) that the law of nations be studied as the law of war. He maintained that instead he would follow the method of the ‘­physiologist’ who, ‘in order to prevent disease, needs to observe first the condition of the body in its healthy condition; in the same way, before  the study of the unnatural and deformed condition of states we need to study the natural and healthy condition, the peaceful life of the nations, the sovereign rights of each nation’.53 In the state of peace, sovereign states had three rights. The first was the right to self-preservation (‘δικαίωμα της ιδίας συντηρήσεως’). This was a complicated right and signified the ‘right of self-defence against any kind of foreign military attack’, but also the right to ‘withstand any kind of pressure against the state’s decency and honour’.54 Saripolos was very clear about the political implications of this natural right. In a lengthy passage 48 49 50 51 52 53 54

This is a concise distillation of a long argument: Saripolos, Τα των eθνών, pp. 12–22. Ibid., pp. 22–23. Ibid., pp. 24–25. Ibid., pp. 209–10. Ibid., p. 3. Ibid., p. 26. Ibid., p. 94.

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from the book, he criticised the principle of intervention when it served to preserve the balance of power.55 That said, he did not deny the right to intervention as such. In fact, this right was a social duty that derived from an interdependent international community that had to respect the basic natural law foundations of international law. In other words, while he agreed with liberal critiques of absolute sovereignty, he was also conscious of the tension between this critique and the proliferating interventions by Western powers in various parts of the world. For Saripolos, interventions that were based on selfish reasons and on treaties that were putting inequality into law could not claim validity as international law. His arguments against such interventions were both moral and political, since they ‘violate the nations’ autonomy and harm humanity by advancing war’.56 But Saripolos went a step further, claiming that any ‘intervention or influence whatsoever in the internal organization of the form of government was illegal’.57 In other words, the exerting of any sort of economic, political or diplomatic pressure was a violation of the state’s right to independence and because of that a violation of international law. Τhe second complementary right was the ‘right to self-possession’ or ‘self-government’ (‘δικαίωμα αυτοτελείας’), which resulted in the ‘freedom to act’ and the ‘unreserved use and possession of things’.58 These rights were specified as freedoms ‘to choose the form of government, to policing, to supervise religions, to organize education, to be economically self-­governed’.59 Last but not least, sovereign states had the natural right to equality in the international arena. For Saripolos, the exercise of these rights of sovereign statehood had a number of implications. He went to great lengths to show that their application undermined the widespread legal practices of Western powers at the time, and in particular ‘­extraterritoriality’ (‘ετεροχθονία’), the ‘exemption of local jurisdiction’ (‘ετεροδικία’) and ‘immunity’ (‘ασύμβολον’). The unlawfulness of the exercise of these rights had already been addressed by Saripolos in court cases, such as the celebrated case of the Argyrocastritis family, which went to the Supreme Court in 1858. 55 56 57 58 59

Ibid., pp. 96–100. Ibid., p. 97. Ibid., p. 97 (my emphasis). Ibid., p. 105. For the ‘freedom to choose the form of government’ (‘ελεύθερη επιλογή του πολιτεύματος’), ibid., pp. 107–8; for ‘policing jurisdiction’ (‘αρμοδιότητα της αστυνομεύσεως’), pp. 154–56. For the ‘supervision of religions’ (‘επιτήρησεως των θρησκειών’), pp. 156–58; for ‘organising education’ (‘οργάνωσεως της εκπαιδεύσεως’), pp. 160–62; and for ‘economic autonomy’ (‘οικονομική αυτο­ τέλεια’), pp. 163–71.

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In fact, the case reached a wider public, as evidenced by the publication of Saripolos’ court addresses in the press and then almost immediately as a pamphlet both in Greek and in French.60 The case was related to a specific incident that took place in Greece when the Ottoman ambassador, on the basis of a treaty signed between Greece and the Porte, enforced an Ottoman court ruling on an Ottoman subject who was in Greece at the time. The subject was brought before a Greek lower court, which simply approved the indictments of the Ottoman authorities and convicted the accused. In the Supreme Court, Saripolos, defending Argyrokastritis, first argued that only a Greek court had the jurisdiction to take action and proceed to a trial. In his second address, he refuted arguments concerning international law made by the litigant, Pavlos Kalligas, by stating that ‘a sovereign nation cannot tolerate within its territory any kind of power which is exercised in the name of a foreign sovereign’. And this, he continued, ‘is an absolute right’, a principle that should apply irrespective of the state or power concerned.61 In other words, he turned against any positive law that violated the state’s legal jurisdiction, while criticising the Greek officials for accepting the limitation upon their own legal authority. By questioning the validity of this positive law, Saripolos was also implicitly questioning the way in which such treaties were interpreted by both signatories and by juridical and political authorities. If taken to its logical conclusion, such questioning could have amounted to a challenge to the authority that had signed these treaties in the first place – that is, to the king as sovereign (at least as the foundational treaties of the Greek kingdom had it). No wonder that Saripolos was dismissed from his post as a member of the Council for disputes relative to International Law and later on by the University of Athens. In the years to come, Saripolos was even more explicit and forthright in his rejection of the context of protection. In so doing, he advanced arguments that once again went beyond formal independence by turning against the state of tutelage of Greece under the Great Powers. Even after the Revolution of 1862 and the drafting of a new constitution in 1864, through which the Greek nation, in Saripolos’ eyes, asserted its sovereignty (see Chapter 6), Greece’s international position remained precarious. In his pamphlet Le passé, le present et l’avenir de la Grèce, published in 1866, 60

61

N. Saripolos, Δύο αγορεύσεις ενώπιον του δευτέρου τμήματος των εν Αθήναις Εφετών, προς υποστήριξιν της εφέσεως του Αθανασίου Δημ. Λέκα ή Αργυροκαστρίτου (Athens: Typois F. Karampini kai K. Vafa, 1858). See also Saripolos, Αυτοβιογραφικά, p. 52. Saripolos, Δύο αγορεύσεις, p. 24.

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he reiterated his concerns by claiming again something more than independence – namely, the end of tutelage and paternalism: Pour que la Grèce se forme une politique à elle, il faut qu’elle s’affranchisse de la prétention exorbitante que s’arroge sur elle chacune des trois puissances protectrices de la traîner comme un simple satellite dans l’orbite de sa politique. La Grèce ne doit pas vouloir ni accepter la condition humiliante d’être traînée à la remorque de qui que ce soit. Parce qu’on est un faible esquif – c’est une raison de ne pas naviguer avec sa boussole, mais de se mettre bon gré mal gré à la remorque d’un gros vaisseau?62

And later in the same text, referring to the collective Great Powers’ protection of Greece, he asserted: ‘Et puis: si cette protection collective a quelque forme qui ressemble à une tutelle, il est évident que comme il y a une fin à toute tutelle, il devra y avoir aussi une fin à cette protection.’63 For Saripolos’ theory of sovereignty, protection was tolerable only insofar as it meant the securing of the state’s self-rule and its non-dependence from any of the Great Powers. As he saw it (and this was becoming a rallying cry for liberals during the late 1850s and early 1860s) any sort of dependence, direct or indirect, political or economic, moral or military, was a violation of statehood. This again was underpinned by a conception of the state, in moral terms, as something more than just a legal mechanism that would enforce and respect the law.64 These arguments increasingly came to inform the claims made by state authorities during the 1860s–1870s. But the reality of diplomacy was a different matter. The fact was that the state continued to have an ambiguous international status, as evidenced by the absence of Greek authorities from (and non-invitation to participate in) the international diplomatic meetings and conferences that were of particular interest to the international affairs, if not the jurisdiction, of the kingdom. In fact, even in those few cases in which Greek authorities were actually invited, they had only a right of attendance and not the right to vote. This was for example the case with the international conference on the fate of Crete that took place in 1869 and that followed a lengthy uprising of the Christian population of the island (starting in 1866); an uprising during which, as the Greek ­authorities claimed, the Cretans had proclaimed their wish for unity with Greece. It would be only after this period and after a series of political 62 63 64

N. Saripolos, Le passé, le présent et l’avenir de la Grèce (Trieste: Shubart & Dase, 1866), p. 174. Ibid., p. 175. For his stance towards Europe, see also Varouxakis, ‘The idea of Europe’, pp. 24–25. See also G. Tertsetis, Λόγος της 20ης Μαϊου 1860: Περί κράτους (Athens: Typ. Philadelpheos, 1860); D. Kyriakos, ‘Introduction’, in Heffter, Αλληλεθνές, pp. a–b.

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crises during the 1870s (which we will rehearse in some detail in Chapter 6) that the political and administrative elites, as well as the new king, Georgios I, would realise the need to assert the state’s sovereignty more vocally. They would also realise that in order to do so and to stand some chance of success, sweeping reforms would have to be instigated – in the military, the economy, the administration and more generally in the country’s infrastructure. This is indeed what happened during the 1880s–1890s, especially under the premiership of Charilaos Trikoupis. Historians have generally shown the extent to which these reforms were the key part of a novel political agenda: one that held that pursuing the ‘great idea’ – the irredentist political project to unite the nation – in an aggressive manner was fruitless and that a more peaceful and internationally cooperative policy would be more effective. But what historians have failed to acknowledge is that this agenda was part and parcel of an attempt to break the bonds of protection and assert the sovereignty and indeed the territorial integrity of the Greek state – a point that Trikoupis himself made to Lord Russell in 1875. ‘I spoke to [Lord Russell] about our policy,’ recounted Trikoupis, ‘[…] that our goal is to realise [“the great idea”] by way of peace and of setting a good example, something that the king himself articulated [in his address to the nation] by saying that he will make Greece a type of free state in the Orient’ (my emphasis).65 Even this vision, however, would be dealt a blow in 1897 when Greece unilaterally declared war against the Ottoman Empire and lost it in a humiliating way. This episode, which was followed by another deep economic, political and financial crisis and the imposition of financial supervision by the state’s international creditors, may be said to have brought the nineteenth century prematurely to a close.

Conclusion This chapter showed that it is impossible to understand Greek constitutional thought if we do not take into account the international ­context – intellectual as well as political – within which it was formed, and in particular the precarious position of the Greek kingdom within the international order of the day. Ιn other words, it contended that the language of sovereignty that Saripolos but also other scholars employed during these years can be fully understood only if we realise that it was as much about the internal 65

Quoted in Kostis, Τα ‘κακομαθημένα’, p. 365.

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political authority of the state as it was about its external authority and therefore about its international position – a position that was defined by the ‘protection’ offered to Greece by the Great Powers. Indeed, the key conceptual formulations of Saripolos’ theory of sovereignty – the idea that sovereignty lay in the nation and was meant to endow national authorities not just with a right to decide on particular issues, but with a generalised right to rule and to decide about the allocation of authority within the borders of the state – are rendered incomprehensible if this international context is not taken into account. For Saripolos, for other Greek scholars, and indeed, with the passage of time for the state authorities, these were not purely theoretical issues; nor did they understand this international context in an abstract way. In fact, for all partners involved (including the Great Powers), the international context of which Greece was a part was identified with an emerging regional order in the Eastern Mediterranean in which newly independent but semi-sovereign nation-states stood alongside other political configurations – empires, protectorates, autonomous provinces, state-like entities and so on. The question then was about the status of Greece and the ambiguity of this status within this legal order. As we saw, it was in light of attempts by the British authorities to give content to this ambiguity that Greek scholars and authorities realised that formal independence was not in itself a sufficient criterion for statehood and that the foundational treaties of the Greek kingdom could be interpreted in ways detrimental to the interests, if not the very survival, of the state. Although such attempts started in the late 1840s onwards (with the Don Pacifico affair representing an initial face-off), they became more systematic and consistent during the Crimean war and took a dramatic turn towards the end of the 1850s. It was during this same period that interference in the domestic affairs of the Greek state and direct financial pressure from the Great Powers left no doubt as to the precarious position of Greece in the international system and its status as a semi-protectorate. In light of these and the failure of the Greek state to reform and to play a role in the Mediterranean, Greek scholars and in particular Nikolaos Saripolos (the most vocal exponent of the theory of national sovereignty) took issue with international law, relating his argument to claims regarding the sovereign rights of states in the international arena. In so doing, Saripolos directly criticised the ways in which the Great Powers had curtailed or limited Greece’s sovereignty. As a remedy, he emphasised the need to move from independence and self-determination as the ultimate criteria of statehood to those of sovereign autonomy and equality in the international arena. As he saw it, this was a way to ‘correct’ what he saw as Greece’s institutional

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‘anomaly’ – the fact that even though it was formally an independent state, it was politically unable to exercise the rights and duties that stemmed from this independence. The aim of his ‘international’ turn was thus to form an alternative strategy towards self-reliance. But what was also crucial in the long run was how this might be related to a very important element of his constitutional theory of mixed government: namely, that the sovereign nation was entitled to regain its sovereignty in the face of abuse, no matter the source of this abuse. If these two formulations were taken together and to their extreme conclusions, then anything that jeopardised the sovereignty of the nation could lead to legitimate claims of redress. And this included moves by the person deemed by the Great Powers (which had created the institutional anomaly in the first place) to be the sovereign of the kingdom. In other words, notwithstanding Saripolos’ views about the monarchy, the position of the king could legitimately be put into question. As we will see in Chapter 6, in the early 1860s this would gradually become the key political question to be resolved.

chapter 6

Ideas into Practice

The ‘Lawful’ Revolution and the Building of a New Constitutional Order (1860s–1870s)

Introduction The previous chapters located the emergence of post-independence Greek legal thought in a number of different European intellectual contexts, thus further developing the notion of a transnational sphere of intellectual history. As these chapters have shown, the terms of Greek debates were set both by the peculiar position of Greece in the European imagination and by its incorporation, on unequal terms, into the European political system, which was dominated by the Great Powers. At the same time, the specific liberal ideas that developed were largely determined by the ways in which a generation of jurists attempted to accommodate them in the Greek setting and turn them into viable political projects. In the 1840s and 1850s, concepts such as the ‘constitution’, ‘sovereignty’, ‘individual rights’, ‘private property’ and the ‘rule of law’ and their practical application were of central concern to Greek liberals. Far from being restricted to scholarly debates – although these were important in their own right – this intellectual production was disseminated to the public sphere, informed the configuring of policies and consolidation of policies and institutions, and was made by and large into law, not least through legal politics. Notwithstanding the disagreements we have seen, most jurists agreed that the authorities should give priority to a thorough but gradual legal transformation and to the inculcation of liberal manners through education. Thus, through their works and their participation in the judiciary and the civil service, at least initially, the jurists complemented the attempts made by the monarchical state to rationalise administration, facilitate the unhampered possession of private property and generate sound economic policies and material prosperity. Nevertheless, by the 1850s, this process had ground to a halt. After a succession of failed attempts on the part of the king and the central authorities at financial and institutional reform, Greece entered a period of crisis that 194

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exacerbated social and political discontent. What is more, short-sighted foreign policy initiatives during the Crimean war jeopardised the already precarious position of the state in the family of civilised nations. From the late 1850s, a political struggle against the king gradually culminated in the most serious domestic political crisis the country had faced during its early life.1 In October 1862, a full-blown and bloodless revolution broke out. As a result, the king was forced to abdicate the throne and a Provisional Government was set up to call for national elections. The primary task of the newly convened National Constituent Assembly, which was to have a long life (1862–1864), was to promulgate a new constitution and elect a new king. At the same time, it held all legislative and executive power, thus making this period a sort of provisional republican interregnum (from Otto to George I).2 By 1864, after intense constitutional debates and political turmoil, Greece had a new king and, more importantly, a constitution that has been appraised as one of the most ‘democratic’ of its time and, in the context of Balkan political history, as an act of ‘absolute theoretical purity’ (that is to say, a text in which liberal principles were articulated in a pure form).3 Yet it took a decade of political instability and a relatively small-scale political crisis in 1875 to settle (partially, as we shall see) the crisis by consolidating the jurisdiction of the parliament.4 This chapter will focus on this long crisis, treating it as a clearly distinct period in Greek political development. It will do so not only because of the conventional boundaries of political history, but because this period contained the seeds of subsequent political developments. It was, in other words, one of those particular constitutional moments when the way of doing politics was transformed.5 In this 1

2

3 4

5

For a general overview, see T. Gallant, The Edinburgh history of the Greeks: The long nineteenth century (Edinburgh: Edinburgh University Press, 2014), pp. 138–143; Dakin, The unification, pp. 87–89. See also Kofas, International and domestic. Neither contemporaries nor historians characterised the period as republican. In theory, Greece remained a kingdom in search of a new king. In practice, however, the country lacked a head of state and was governed by cabinets elected directly by the Parliament. For the first time since the War of Independence, the Parliament had extensive legislative and executive powers. Alivizatos, Το σύνταγμα; G. Sotirelis, Σύνταγμα και εκλογές στην Ελλάδα, 1864–1909 (Athens: Themelio, 1991). For its appraisal in the Balkan context, see Kitromilides, ‘European political thought’, p. 13. Although in the British political system the Parliament includes both the House of Commons and the House of Lords, in Greece, even when two chambers existed, they were always considered two different legislative institutions. From 1862 onwards, when the Senate was abolished, the Assembly of Deputies has gone by the name Βουλή, which is officially translated as Parliament. As Paschalis Kitromilides argued, ‘The 1864 constitution ushered in a long period of parliamentary government. The major constitutional changes in the 20th century, the revision of the constitution in 1911 were premised on the constitutional principles and formulations of 1864’: Kitromilides, ‘European political thought’, p. 13.

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section, therefore, the focus shifts from the intellectual formation of legal ideas and political arguments to a discussion of a political conjuncture during which these ideas took on a very acute political relevance. Although this period represented a key moment in the history of political institutions in nineteenth-century Greece, it has received surprisingly little attention from historians.6 Most commonly, the Revolution of 1862 (which has gone down in history as the ‘October’ Revolution) and its aftermath have been treated from a diachronic and often teleological perspective as important steps in a process that had begun with the Greek War of Independence. For legal historians, the Revolution of 1862 was just another episode (after the Revolution and the constitutional change in 1844) in the conflict between authoritarianism and the ‘national democratic’ ideas of emergent liberal forces. The final triumph of the latter, exemplified in the constitution of 1864 and in the acceptance of majority rule by the king in 1875, is simply held to have consolidated this path to parliamentary democracy.7 Recently, social historians have tended to deny the influence of political ideas or ideology, preferring to focus instead on the interests and role of local social groups. In the more consistent of these revisionist accounts, the 1862 Revolution was seen as the process by which the landed elites demanded a share in political power, turning against the centralising tendencies of the monarchical authorities. According to this reading, the Revolution and the dethronement of the king were – implicitly, it has to be noted – not so much a revolution as the outcome of a conservative movement. They was wrought by elites who sought to consolidate their local power in a struggle that had started during the revolutionary war against the Ottoman authorities.8 Although they come from different perspectives, 6

7

8

Some of the few attempts include D. Michalopoulos, ‘Vie politique en Grèce pendant les années 1862–1869’, PhD thesis, University of Athens (1981); A. Skandamis, Σελίδες πολιτικής ιστορίας και κριτικής: Η τριακονταετία της βασιλείας του Όθωνος 1832–1862 (Athens: A. Skandamis, 1961); Kyriakidis, Ιστορία του σύγχρονου ελληνισμού, vol. II. See also F. Lenormant, La révolution en Grèce, ses causes et ses conséquences (Paris: C. Douniol, 1862). This is the most common approach of general constitutional or political histories of modern Greece. Indicatively, see Kaltschas, Introduction and Mannesis, Deux états. Others have followed the same line of argument by focusing on the indecisiveness and incompetence of King Otto or the royal authorities’ lack of respect for parliamentary democracy. See T. Couloumbis, J. A. Petropulos and H. J. Psomiades (eds.), Foreign interference in Greek politics: A historical perspective (New York: Pella Publishing, 1976); J. V. Kofas, Financial relations of Greece and the Great Powers, 1832–1862 (New York: Columbia University Press, 1981). Kostas Kostis argued that the origins of the Greek Revolution lay in the political claims of the ‘marginal’ elites of the Greek mainland – local Christian landlords who were not participating in the Ottoman administration and were thus either outside the political game or just controlling areas in which the Ottoman authorities had a scant presence, or perhaps none at all. The 1862 revolution, according to Kostis, was their final triumph: Kostis, Τα ‘κακομαθημένα’, pp. 344–56.

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both accounts suggest that the political developments of 1862–1875 served to round off the political struggle of the War of Independence. They thus share some common limitations, being examples of how historians may too hastily conclude that they have understood something when they have identified vested interests or reified ideological doctrines lurking behind it. By treating the revolutionary crisis and its outcome as natural developments of past struggles, they have failed to take into account what the events meant to contemporaries. It was only recently that Sakis Gekas revisited the period and emphasised its historical contingency. Comparing the Ionian state and the kingdom of Greece, Gekas located the formation of anti-establishment politics and the ensuing regime change in both cases in the severe, long-lasting and multifaceted crisis of the 1850s. The failure of the authorities to deal with the crisis and the lack of reforms increased discontent among old and new social groups (army officers, lawyers, students, merchants, etc.), resulting in a crisis of legitimacy that turned revolutionary. But again, he treated the ‘liberal and democratic’ claims of the revolutionaries as merely instrumental, and the political change that followed as natural and inevitable.9 This chapter builds upon this latter approach insofar as it privileged contingency, but by adopting a different perspective. It suggests that the Revolution of 1862 was primarily an ideological, constitutional and political struggle, and not only a controversy between social groups seeking to force through changes in the organisation of society or the economy.10 In the very early, preliminary stages of the Revolution lay a deeper reality that would prove crucial for its course and outcome: the king’s and his government’s version of affairs had ceased to be convincing, the command over public opinion had been lost and the whole regime had begun to appear illegitimate in the eyes of its subjects. Thus, from the outset, it was a revolution about the principles and practice of government. And by its very success, which culminated in the Constituent Assembly and the constitution it promulgated in 1864, it transformed significantly, if not radically, the practice of and the way of thinking about politics. In order to make sense of the Revolution and subsequent events, we need to understand what the revolutionaries sought to achieve. We need, in other words, to explore the main political claims made by the revolutionaries and situate them against the backdrop of contemporary debates and disputes. 9 10

Gekas, ‘The crisis’. Gekas, however, studied the crisis precipitating the outbreak of revolution, not the Revolution itself. This is something that Gekas also partially admits by arguing that ‘the change of regime in both states focused and was expressed ultimately in the field of political institutions’: ibid., p. 72.

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This immediately raises several questions. Why and how did attitudes towards the king and the monarchy change? Or, to be more precise, why and how did moderate calls for a reformed monarchy, which existed, as we have seen, from the early 1850s, turn into claims that justified the dethronement of constituted authority and the remaking of the political structure on a new constitutional footing? To what extent can these claims help us make sense of the political change and the political disputes within the Constituent Assembly and thereafter? If this change and the claims against the king were not natural and inevitable, how did they come to be articulated? In answering these questions, political languages and ideas are important and have to be studied alongside social or economic changes, because it is the intimate relationship between political thought and the circumstances of life and public action that gives revolutions their political form. Furthermore, as is often the case, the political thought of the Revolution was not created ad hoc. The Greek case thus bears out the argument advanced by Quentin Skinner that it is the ‘rhetorical re-­ inscription’ of existing modes of political discourse, the remodelling of political vocabularies to meet or accommodate specific goals, that is the key to political transformation – at least in the absence of violence. Or, as he put it more succinctly, ‘all revolutionaries are […] obliged to walk backwards into battle’.11 As the previous chapters argued, just such a mode of political discourse had been developed in Greece from the 1840s onwards, in the form of a complex and diversified liberal political language that the jurists had played a crucial role in forging. The importance, however, of this political discourse and the individuals who articulated and propagated it was enhanced at this moment of crisis when existing political arrangements and the ideas that sustained them were challenged. This chapter will focus on the ways in which the legal and, more generally, the political thought of the jurists played out during this crisis. It will look at how ideas about representation and the constitution, sovereignty and the nation and individual rights and the state found their way into the language and claims of the revolutionary texts, the constitutional proceedings, the constitution itself and the subsequent debates. The jurists’ influence was not just intellectual. They were extremely active participants in the events themselves. To some extent the emphasis has been placed on 11

Skinner, Visions, vol. I, pp. 149–50, 175–88. See also R. Geuss, History and illusion in politics (Cambridge, UK: Cambridge University Press, 2001), pp. 159–62. The quotations are in D. Bell, The idea of Greater Britain: Empire and the future of the world order (Princeton, NJ: Princeton University Press, 2007), p. 120.

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Nikolaos Saripolos because of his key role in formulating the revolutionary texts of the Provisional Government and his capacity as rapporteur of the constitutional draft. But others, such as Pavlos Kalligas, Diomidis Kyriakos, Emmanouil Kokkinos and Ioannis Soutsos, were also involved, either as members of the Assembly and the drafting committee or as commentators in the public sphere. What is more, Pavlos Kalligas held several ministerial posts during this interregnum period, and Diomidis Kyriakos became prime minister for a short period. That is not to say of course that in the process of drafting the constitution they merely tried to implement ideas worked out in their field of study; rather, their interventions were products both of their theorising and of the heated political debates in which they participated. In fact, within the Constituent Assembly itself, they came to form a loose political grouping called the ‘Eclectics’ (‘Εκλεκτικοί’), the significance of which in the drafting process surpassed its limited size.12 Thus, they played an important role in setting up the terms of the constitutional discussions and in articulating a varied but distinctive political agenda. For most of them this political experience was so important that in subsequent publications of their works they included their speeches and interventions in the Assembly as evidence both of their political thought and of their services to the nation. During this constitutional crisis, the jurists combined a moderate political agenda with more radical positions. Although they turned against the king and his system of government, they did not seek to destroy the political and constitutional system, but rather to recast it as a political structure that would respect the rule of law and the individual rights of citizens, which had been previously guaranteed only on paper. At the same time, they also had more ‘communitarian’ concerns redolent of democratic nationalism. Some of their number, and Nikolaos Saripolos in particular, were amenable to the idea of a strong national state and sought to change its basis of political legitimacy. Yet their liberalism did not lead them directly to democratic government, as evidenced by their views on the franchise and the democratic ‘excesses’ of the new constitution. During the proceedings of the Constituent Assembly, their views carried the day on many issues, but were rejected on others. A point of general agreement and probably the most important outcome of this complicated process was the emergence of a new conception of representation and sovereignty, one 12

Sotirelis, Σύνταγμα.

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that gave a more prominent role to the legislative power and the parliament and considered the nation as the source of political power. The key issues then for the Assembly were to renegotiate the relationship between the nation and the (new) king and to establish the constitutional monarchy on a new footing. Accordingly, the meaning of the constitution changed, as it was no longer perceived as a contract granted by the king to the nation. In this way, the Constituent Assembly, at least in theory, created a new system of power and reconfigured the structure of politics. For one thing, it constrained royal power by transforming the accepted and lawful forms of governance, obedience and resistance. Accordingly, it enhanced the role of parliament and in the long term laid the foundations for mass politics. And yet many issues remained controversial, in particular the relationship between the executive and the legislative power. In order to avoid the concentration of power in one authority, the deputies established a complex constitutional system, delegating the power of the nation to different political authorities – both the king and the parliament. Thus, by institutionalising competing claims about who speaks for the nation, they introduced a degree of uncertainty into the exercise of political power. This opened the possibility of a constitutional impasse in the event of a disagreement between crown and parliament. A partial solution was achieved during the ensuing constitutional crisis of 1874–1875. In this sense, this was a long constitutional crisis – or revolutionary moment of over a decade – that had significant repercussions. In the following decades, Greek political life was stabilised, political parties were formed, the economy started growing and the modernisation of the state was systematised. But notwithstanding these long-term benefits, the constitutional structure left a tension between the political authorities that was to play out in the twentieth century. This tension, the origins of which lie in 1864, has never been conceptualised as a constitutional tension. The reason for this is that for most historians the problems that followed the promulgation of the 1864 constitution were due to the antinomy between imported liberal and democratic models and a society that was traditional and conservative, if not millenarian and populist, in its outlook. Thus, by praising the 1864 constitution as an idealised product of Western liberal ideas, Greek historiography has failed to read it closely, situate it in its intellectual and political context and therefore to understand the impact it had upon the political life of the kingdom. The ambition of this chapter, therefore, is to propose a survey and an explanation of an intense intellectual and political conflict and of the concomitant crisis of legitimacy that caused a radical political transformation.

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By so doing, it has three aims. First of all, like the previous chapters and the book in general, it seeks to undermine the treatment of the case of Greece as peripheral or anomalous and integrate it instead within the fruitful and ongoing discussions about liberalism in the nineteenth century. From the perspective of the continuing debates among historians about liberalism in this period, what the Greek case shows is that liberal contributions were not just about protecting individual rights against the state, but equally, if not more so, about the state itself and the role of the monarchy in that state.13 It should also be noted that, generally speaking, both of these features of liberal thinking have been downplayed by European historiography. Secondly, the chapter seeks to reinforce an old argument about the perceived association between theory and public action. As Alasdair Macintyre argued long ago: There ought not to be two histories, one of political and moral action and one of political and moral theorizing, because there were not two pasts, one populated only by actions and the other by theories. Every action is the bearer and expression of more or less theory-laden beliefs and concepts; every piece of theorizing and every expression of belief is a political and moral action.14

Thirdly, by relating political thought to the high political context of the time, the chapter aims to challenge accounts that take liberal ideas as abstract concepts that were just used incidentally and instrumentally by elites with specific social interests. Although hardly an exception, the Greek case does require a conception of liberal ideas as active political doctrines more closely related to practice than appears in numerous conceptions of liberalism and in the writings of many historians of ideas. Greek legal thinkers were not, in other words, only spokesmen for moderate liberal politics that centred on reforms and mainstream political processes. They were also instrumental in how these politics actually played out, and indeed in the ways in which this long revolutionary moment escalated. The next section of the chapter opens with a discussion of the political crisis that precipitated the outbreak of the Revolution of 1862, before going on to take a closer look at the revolutionary texts. Then, the focus moves to the Constituent Assembly, the proceedings of which lasted for almost two years. Last but not least, the chapter will examine briefly the next constitutional crisis, that of 1874–1875, through which parliamentary rule was consolidated. 13 14

Rosenblatt, The lost history. Quoted in S. Hazareesingh, Intellectual founders of the republic: Five studies in nineteenth-century French political thought (Oxford: Oxford University Press, 2001), p. 14.

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The ‘Lawful’ Revolution of 1862: Crisis, Failure of Reforms and the Rise of Political Opposition The Revolution of 1862 is generally understudied. The most conventional interpretations view it as an outcome of a combination of popular discontent and the rise of a radical intellectual opposition that came to express ‘higher’ democratic claims against the regime of King Otto. And primarily the emphasis has been placed on the latter. As Douglas Dakin stated long ago, it was the ‘intelligentsia’ that produced, albeit on a smaller scale, the kind of political opposition to government that had faced Charles X and Louis-Philippe in France and that supplied many of the political figures of the new post-revolutionary constitutional regime.15 According to Paschalis Kitromilides, this opposition turned increasingly to liberal thought as an ideology of political criticism and a language that would foster the struggle for civil liberties and political freedom.16 What is more, these ideas were diffused by a flourishing press, which, by the beginning of the 1860s, numbered over twenty newspapers, to say nothing of periodicals, pamphlets and occasional broadsheets, all of which had transformed the role of public debate.17 Even though this contribution of the intellectuals and the role of the printed word have been generally acknowledged by modern Greek historiography, the precise nature of the claims against King Otto remains unclear. In other words, what needs to be explored if we wish to understand subsequent developments are the specific grievances against the monarch and how they were justified. By and large, contemporaries turned against what they called ‘Otto’s system’. What did that mean and why did people turn against it? As already noted in Chapter 1, the theoretical structure of the monarchy, at least for the royal authorities, had strong affinities with the ‘enlightened’ monarchies of the ancien régime. What is more, the monarchy derived its legitimacy from the foundational treaties with which the political structure of the Greek state had been established and according to which the king was recognised as the single and supreme sovereign of the kingdom.18 At the same time, and as already mentioned in Chapter 1, the Treaty of London made clear that the delegates of the Great Powers, which had offered the crown to the Bavarian prince, had acted as mediators upon a power granted to them by 15 16 17 18

D. Dakin, Η ενοποίηση της Ελλάδας, 1770–1923 (Athens: MIET, 2012), p. 95. Kitromilides, ‘European political thought’, pp. 11–21. Dakin, Η ενοποίηση της Ελλάδας, p. 95. These included the several international treaties and legal acts between the Great Powers, the treaties and legal Acts between the Great Powers and the Bavarian monarchy, and the legal Acts between the Bavarian monarchy and the Greek monarchy.

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the Greek nation.19 For the Bavarians this meant that the monarch, in his own person, represented the Greek nation and alone was capable of expressing its permanent and common interests. His power, however, was not arbitrary, but was based on several fundamental premises. The first was the dynastic right to the Greek throne, according to which s­uccession was secured not by election but through the direct male line and later through the Orthodox faith. The second was that the person of the king was distinct from the institution of the state. The king, as the supreme and sovereign authority, embodied the public dimension of the state and stood above particularistic interests, but he was not the proprietor of the state domain. This national and unitarian role of the monarchy would be enhanced still further after the experience of the periods of civil strife that had engulfed Greece during the Revolution and after the death of Kapodistrias. Thus, for many commentators, not least for members of the senate at the time, only monarchical power could provide effective protection against fissiparous tendencies.20 In that situation, the king’s main preoccupation was to render royal power more truly public and to secure civil peace. The third premise of the Bavarian understanding of the monarchy, influenced as it was by the Polizeiwissenschaft, saw the state – as already mentioned – as a mechanism that would act in accordance with its own laws and do so for the greater good and welfare of the kingdom. That is to say, it was seen as a critical agent of change and instigator of reform from above. In this sense, even though the primary focus was on the welfare of the state, the authorities were not wholly unconcerned with the security and liberties of its population. The constitutional arrangement of 1844 had in fact solidified this understanding of the monarchy. At the same time, it had introduced some new elements that were to prove important. By virtue of its very language, the 19

20

‘Το Πρωτόκολλο του Λονδίνου, 3 Φεβρουαρίου 1830’ [Protocol of London, 3 February 1830], and especially ‘Συνθήκη του Λονδίνου της 7η Μαϊου 1832 για την εκλογή του Όθωνα και επικύρωση της από τον Λουδοβίκο της Βαυαρία’ [Treaty of London signed on 7 May 1832 for the election of King Otto and its ratification by Ludwig of Bavaria], both in Gerozisis et al., Κείμενα, pp. 136–137 and pp. 148–153 (especially pp. 148–149), respectively. As already noted in Chapter 1, this anxiety was made prevalent in the Acts produced by the Senate and Provisional Government and sent to King Ludwig of Bavaria after the news of his son’s election to the Greek throne. As the former stated: ‘The Senate, informed of the election of his highness Prince Otto to be the sovereign of Greece, did all it could to put an end to the riots and anarchy; but as things stand now, the situation cannot permit of any more delays and it is only upon the coming of our venerable sovereign or his surrogate that the rehabilitation of civil (common) order and peace depends’ (my emphasis). See ‘Επιστολή της Γερουσίας προς το βασιλέα της Βαυαρίας Λουδοβίκο’ [Letter of the Senate to King Ludwig of Bavaria], 13/25 April 1832, in Gerozisis et al., Κείμενα, pp. 145–46; and ‘Επιστολή της προσωρινής κυβερήσεως προς το βασιλέα της Βαυαρίας Λουδοβίκο’ [Letter of the Provisional Government to the King Ludwig of Bavaria], 14/26 April 1832, ibid., pp. 147–48.

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constitution of 1844 was basically a contract between the king and the nation. For some commentators, such as the Rechtsstaat thinkers whom we encountered in Chapter 2, the constitution was the foundation of a lawbased state. It put into force a mixed and balanced constitution, with the king as sovereign and ultimate authority and two chambers, one elected and representing the nation, the other representing the ‘best’ among the nation and selected by the king. The crown with its legal rights was perceived as an independent constitutional entity with which the nation bargained collectively. By concluding this contract, the nation could attain a position through which it might protect some of its liberties and participate in government. The representative bodies were the means by which the members of the nation could bargain with the king and put on paper the rule of law. In addition, through some of the basic clauses of the constitution, the two chambers were also the means by which the nation participated in government and protected its liberties or, according to Saripolos’ interpretation spelled out in Chapter 5, the natural individual rights (liberty, security and property) of its members. What all this meant was that contemporaries before the revolutionary crisis perceived the constitutional monarchy as a regime ruled according to some fundamental premises: the king held the sovereign power; the state would promote welfare and instigate reforms; and the national parliament would protect the rights of the nation. The problem was that the exercise of power by the royal authorities and the king himself was challenging this theoretical structure. For one thing, the monarchical state had failed repeatedly in the spheres of material prosperity and civil peace, and in the fostering of reforms. Indeed, as Chapter 5 argued, from the late 1840s concerns were raised in several circles and in particular by the jurists about what they perceived to be failed or half-hearted attempts at further reform. These concerns intensified during the 1850s when the Greek economy and society entered a period of severe crisis. The economic situation of the country was deteriorating, and it eventually became engulfed in commercial downturn and financial instability. Discontent abounded and a series of episodes early in the 1850s served to expose the weaknesses of the monarchical system of government. A number of rebellions in the early 1850s broke out in the countryside over high taxes, debt, foreclosure and increasing immiseration. Even though these rebellions had mainly local origins and did not directly threaten the government and the monarchy, as happened elsewhere in Europe, they clearly highlighted the growing disaffection among the people.21 21

Aroni-Tsichli, Αγροτικές εξεγέρσεις στην παλιά Ελλάδα.

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At the same time, public finances were out of control, and the state was unable to meet its obligations towards its international creditors, to the extent that external borrowing became unavailable. Reform of taxation, which could have eased the effects of a lack of external borrowing, dragged on for years and put the country in a state of permanent debt that resulted in a liquidity crisis. This diminished any possibility of state intervention to rebuild the economy. These financial shortcomings had wider implications for all economic sectors. What is more, during the late 1840s crop failures brought famine, poverty and cholera, causing food riots and, more generally, a humanitarian crisis.22 Developments in the coming years only made matters worse. As we saw in Chapter 5, during the 1850s Greece faced a series of economic, financial, social and political crises. In the eyes of many contemporaries like Saripolos and many others, these challenges did not just undermine national prosperity, but also threatened the place of Greece in the geography of ‘civilised nations’, as exemplified by the humiliating events during the Crimean war (which saw the occupation of Pireaus in 1854 and a naval blockade), the failure of the Greek state to play a political role in the Eastern Mediterranean and, more thoroughly, the attempt of the Western powers to impose financial control in 1859.23 This latter came when the Greek state found itself unable to comply with the terms it had renegotiated for the repayment of the ‘independence debt’. An agreement was reached by which Greece was forced to use revenues from its customs duties to pay off the debt, while a more permanent solution to the debt crisis could be hammered out. Given these circumstances that jeopardised the status of Greece as a sovereign state, many commentators, including the jurists, became more vocal in their calls for reform, employing a moderate language that focused on overhauling state policies and the monarchy. These calls 22

23

P. E. Petrakis, ‘The borrowing requirements of the Greek public sector, 1844–1869’, Journal of the Hellenic Diaspora, 12 (1985), pp. 35–46. See also Gekas, ‘The crisis’, p. 62. For the loans of the Greek War of Independence, M. C. Chatziioannou, ‘War, crisis and sovereign loans: The Greek war of independence and British economic expansion in the 1820s’, The Historical Review/La Revue Historique, 10 (2013), pp. 33–55; S. Petmezas, ‘Foreign trade and capital flows in nineteenth-Century Greece’, in E. Eldem and S. Petmezas (eds.), The economic development of southeastern Europe in the 19th century (Athens: Alpha Bank Historical Archives, 2011), pp. 447–91; Frangiadis, Ελληνική οικονομία, p. 75. The condition for lifting the blockade that had been imposed on Greece was the first informal financial control imposed on one country. The conclusion of the report reiterated the harsh terms of the 1833 loan agreement, stating that the Greek government would have to honour the annual payment obligation before spending for other purposes: Frangiadis, Ελληνική οικονομία, pp. 76–77; Driault and Lheritier, Histoire diplomatique, vol. II, pp. 406–13, 417 and thereafter; Kofas, International and domestic, p. 69 and thereafter; Gekas, ‘The crisis’.

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were in fact backed by the protective powers and in particular by the British, owing to their dissatisfaction with the monarchy’s financial, economic and foreign policy, especially during and after the Crimean war.24 Nevertheless, every attempt at reform, including those related to the pressing issues of landholding and taxation, had largely failed. Things came to a head during 1859–1862 when Otto and his regime faced a mounting crisis of legitimacy that finally brought about their downfall. This was due to several factors. One was the failure of his foreign policy and the frustration this had caused even the supporters of irredentist campaigns against the Ottoman Empire. The crisis was also exacerbated by Otto’s initial refusal to support the Italian unification struggle in 1859, which eroded his popularity with the general public. The support of France and Great Britain for the Italian insurgents gave the public the impression that Otto was the main reason why Greece was not favoured by the Great Powers in its struggle against the Ottoman Empire.25 A second factor was the issue of succession, which had continued to loom large for Otto since the king had proposed no solution to the lack of an Orthodox heir. A third and much more important factor was the rise of a more radical opposition to Otto. Indeed, in light of the monarchy’s stubborn resistance to actual reforms, from 1859 to 1862 opposition to the monarchy became more outspoken and public interventions acquired a more directly oppositional political tone. Discontent spread among a new generation – including people educated at the University of Athens, members of the growing trading, commercial and professional classes and others widely travelled or educated abroad, whose political sympathies were more liberal and democratic. In 1859, political protests and riots involving high-school and university students broke out in Athens.26 In the following years these incidents proliferated, leading to a violent reaction from the authorities in their determination to crush any opposition rally that expressed anti-government sentiments. Symptomatic of the rising opposition to the Bavarian monarchy was the attempt by radical university students to assassinate Queen Amalia in 1861, an attempt that nearly succeeded. 24

25 26

The ‘occupation cabinet’ was rather popular among many Western-educated liberals, since it took several reform initiatives that would have long-term effects, such as the introduction of an efficient public accounts system, gas lighting in the streets of Athens, the building of a railway and many others. See Kostis, Τα ‘κακομαθημένα’, pp. 267–68, and Kofas, International and domestic, pp. 33–34. A. Liakos, Η ιταλική ενοποίηση και η ‘Μεγάλη Ιδέα’ (Athens: Θεμέλιο, 1985). The most famous among them were the ‘Skiadika’ riots and those that followed the imprisonment of Alexandros Soutsos for defamation of the king: see Kostis, Τα ‘κακομαθημένα’, pp. 283–85.

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Yet what ultimately made this a legitimacy crisis – and indeed gave the Revolution its language – was the way in which the king’s rule increasingly came to be seen as usurpation of power. In other words, from the early 1860s onwards contemporaries accused the king of unsettling the balance of the constitution and, in a way, breaking his actual contract with the nation. Indeed, during this period Otto made several attempts to suppress dissatisfaction and bypass parliament by rigging elections and by using his power to appoint his favourites to offices and to the parliament itself. In particular, in 1860 the Miaoulis administration, which was sympathetic to the crown, forfeited parliamentary support and was forced to resign. The king, instead of accepting the resignation, dissolved the parliament immediately. In the rigged elections that followed, opposition supporters and candidates were threatened, Miaoulis won and significant opposition figures, such as Alexandros Koumoundouros, Epameinondas Deligiorgis and Thrasyvoulos Zaimis, were not elected. Not only that, but the parliament was packed with the so-called ‘mayors’ – unpopular local officials close to the crown – whom the king had managed to have elected. In addition, he replaced eighteen senators with others who did not even meet the formal requirements, and he waged a war against the anti-governmental press by way of censorship and the shutting down of newspapers.27 The political crisis deepened during and after the elections of 1861. The opposition demanded free elections, reforms, public works and administrative rationalisation, among other things, but repression from the authorities continued with open, violent clashes and with daily newspapers such as Athena actually accusing the government of rigging the election.28 Thus, by ‘Otto’s system’, contemporaries essentially meant an autocratic system of government in which the king ruled as the head of a royalist faction of sycophantic politicians. Governmental practices had effectively reduced constitutional government to a sham and were corrupting the constitution and undermining the public authority of the state. That is why, initially, the quarrel was not with the monarchy as an institution, but rather with its current practices. There were at least two possible responses to this situation. One was to attempt to prevent this usurpation of power by claiming that the fundamental premises of the constitutional contract should be respected. The second was to reconstitute the principles of the 27

28

E. Deligiorgis, Πολιτικά ημερολόγια. Πολιτικαί σημειώσεις. Πολιτικαί επιστολαί, 2 vols (Athens: S. K. Vlastos, 1896), vol. I, pp. 226–46. See also Kostis, Τα ‘κακομαθημένα’, pp. 284–85; Gekas, ‘The long crisis’, pp. 78–79. See, indicatively, Αθηνά: 9 January 1861, 14 January 1861, 18 January 1861, 2 February 1861.

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political order by breaking the pact with the monarch and putting it on a different footing. The failure of the first solution in 1861 prepared for but did not exactly cause the second response, which came one year later, in 1862. Indeed, the first response came in late 1861 when the king invited the old and highly respectable Konstantinos Kanaris to form a government. The king saw this as a way out of the political deadlock and the mounting opposition. Kanaris responded in January 1862 with a long blueprint for political reforms. In a rather caustic introduction, he went straight to the heart of the problem: History teaches us that there are times in the life of nations when they suffer silently the usurpations of existing fundamental laws and their application and are absorbed instead in their material and moral development, but that these are followed by other times when, from a small episode, symptomatic of a disorderly situation, the nation revolts and asks insistently to sustain its political liberties. In that precarious crisis of nations, it is legally and politically sound for governments to succumb in order to avoid the greater turmoil, which threatens the peace of societies and the security of thrones.29

Kanaris, in other words, was giving the monarch a warning (while making a prediction that was to prove correct). The suppression of political liberties and the usurpation of power by the king were threatening the security of the throne. So, although Kanaris stated that old habits and perceptions would die hard and would tend to resist radical change, he at the same time proposed urgent reforms that he conceptualised as ‘the sweeping and radical reform of the present governmental system, through measures that would guarantee a real return to the constitutional path’. What Kanaris advocated was the genuine and honest application of the fundamental law of 1844, the protection of which rested, according to their respective vows, on both the crown and the Greek nation.30 Kanaris’ proposals focused on high politics and the governmental structure: abolition of the privy council that was advising the king, legal and political responsibility of the cabinet as a body and of each minister separately, respect for the institution of the senate, conduct of free and fair elections, reform of the army and the establishment of a National Guard. But they also included a call for freedom of the press and sound fiscal and economic policies.

29

30

‘Υπόμνημα του Κωνσταντίνου Κανάρη προς τον Όθωνα για τους όρους σχηματισμού από αυτόν Κυβερνήσεως – 12 Ιανουαρίου 1862’ [Memorandum of Konstantinos Kanaris to King Otto for heading a government – 12 January 1862] in Gerozisis et al., Κείμενα, pp. 246–56 (pp. 246–47, my emphasis). Ibid., p. 246.

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The king refused to comply with these suggestions. Thus, people increasingly articulated and contemplated the second response, at least in the sense of a revolt against the king. This potential for revolt was first realised later in 1862 when an armed local uprising in Nafplion broke out. The uprising directly targeted the regime of Otto and, though supported by the liberals of the town, was quelled. Yet discontent spread even further, to the Cyclades, including Syros; this sent a message that, at least at a local level, Otto’s regime was becoming increasingly isolated and ­unpopular. A report on the rebellions drafted by the minister of the interior, Charalampos Christopoulos, showed that the main demands were political: constraints on the king’s power, free parliamentary and local elections, an Orthodox heir to the throne and expansion of the country’s borders.31 In the summer of 1862, Nikolaos Saripolos, in a review of a book on the Girondins published in Pandora, made one of the most direct attempts to justify both theoretically and historically the opposition to constituted authority and, implicitly, a revolt against it.32 His review mainly addressed the threat that monarchical power posed to the constitutional arrangement and, at least implicitly, its gist was a conceptualisation of revolt not against the monarchy or the constitution but on behalf of them. After paying tribute to the French Revolution as the origin of modern civilisation, Saripolos praised revolutions in general as those moments that are created only by great nations. Next, he focused on the attempts of the Girondins to save the monarchy and the constitution of 1791, attempts that proved to be impossible. For, he wondered, what kind of monarchy was to be saved? The ‘divine-right monarchy based on might’ had been crushed by its incompatibility with ‘healthy political principles’ and in particular the doctrine of national sovereignty. For Saripolos, the Girondins had tried to save the monarchy, which had been based on a contract with the nation. Yet the monarchy had refused, by cutting itself off from the source of its existence; that is, the nation.33 For Saripolos, the fundamental problem of the constitution of 1791 was that it had institutionalised two competing and potentially rival authorities – the king and the nation – without clarifying the relationship between them. What the moderate and liberal Girondins had tried to do was to save the nation, not the monarchy as such. 31 32

33

These local uprisings have received surprisingly little attention from historians, see Gekas, ‘The long crisis’, pp. 79–80. N. Saripolos, ‘Μελέτη περί Γιρονδίνων και επί του εξής συγγράμματος υπό Gaudet, Les Girondins, leur vie privée, leur vie publique, leur proscription et leur mort par J. Gaudet, neveu du représentant, vol. I–II, Paris’, Πανδώρα, 13, 296 (1862), pp. 236–48. Ibid., p. 239.

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The turning point of course had been the king’s attempt to flee France. For Saripolos, the lack of prudence shown by the French king, the queen and their advisory council had exacerbated the problem. After the rejection of the Girondins’ proposals for reform, events escalated. Saripolos showed no hesitation in justifying the dramatic storming of the Tuileries Palace, ‘one of those days, during which the long and silent sovereignty of the nation expresses itself tremendously against those who misunderstood or insulted it’.34 Subsequently, during the convention, mob rule may have prevailed, but ultimately this was a result of the king’s conduct. Although, according to the constitution, the king bore no political responsibility, by his actions he had paralysed the forces of France and betrayed its interests. He had thus violated the constitution by constantly usurping his power. He was, therefore, morally guilty. But it had not been in the interests of France or its constitution to have him tried and executed.35 Saripolos’ allusions were difficult to miss, but, if they were missed, his last sentence made them still clearer: ‘a people being in a state of revolution is invincible, the flag of freedom is the flag of victory’.36 The revolutionary moment that Saripolos awaited arrived within a few months. The wave of political opposition against Otto came to a head in a series of revolts that erupted in the countryside in October and spread like wildfire through all the major cities. But it was the uprising and the formation of a Provisional Government in Athens that sealed the king’s fate by turning the revolts into the full-blown ‘October Revolution’. By contrast with the events of 1844, which were only considered a revolution in retrospect, the political events of 1862 were deemed revolutionary from the very beginning and by everyone involved either directly or indirectly, including the representatives of European governments.37 By the end of the month, the king had been ousted and national elections for a Constituent Assembly called. During those first months, the Provisional Government that was set up produced several texts – proclamations, legislative acts and resolutions.38 With these texts, the revolutionaries not only attempted to justify legally the rupture with the king, 34 35 36 37 38

Ibid., p. 242. Ibid., p. 245. Ibid., p. 248. FO, 3073 (1863), Correspondence respecting the Revolution in Greece: October 1862. The first official legislative act of the provisional government abolished the monarchy of King Otto and stated that it would govern the state until such time as a national assembly was convened. Its legitimacy was of course precarious. According to the first two short texts published in the EK, the Revolution derived its legitimacy from the joint action of the nation and the army to abolish ‘Otto’s royalty’: see ΦΕΚ, 1 (15 October 1862).

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but, more importantly and of long-term consequence, they made a radical call to set the political structure of the monarchy on a new constitutional footing. By so doing, they laid the groundwork for future debates on the new constitution. Drawing upon studies of other revolutions – and this revolutionary/constitutional moment did indeed have strong similarities with the American Revolution and the early years of the French Revolution – a point should be made about the revolutionary texts. As is usually the case with texts of that kind, they were consensus-building documents. They used a moderate language that sought to persuade the reader through arguments and not alienate the potential opponents of the Revolution.39 According to his autobiography, Nikolaos Saripolos played a major role in the composition of these texts.40 His inspiration certainly came from his knowledge of other cases, but the discussions and problems of the previous years lay at the heart of the basic claims that went into the texts: the injuries that the king had inflicted on the body politic and the state, the apparent corruption of the constitutional monarchy and the usurpation of the individual rights of the citizens by the king. The very first texts used emotional language while being rather technical in their claims. Addressed to the ‘Citizens’ in a manner resembling French revolutionary texts, they made it abundantly clear that the primary goal of the Revolution was not to overthrow the existing social and political order, nor was it to eliminate the monarchy; it was the election of a new king. And, more importantly, in order to prevent the monarchical government from degenerating again and violating the rule of law and the rights of the nation, the texts called for elections to a new National Assembly, whose tasks would be the ‘constitution of the polity, the election of the new King and the completion of the national project’. Given the corruption, however, which had made inroads into parliament, this National Assembly, according to the revolutionaries, needed to be of a different character. It would have to be elected by voters who ‘would be completely free from any material or moral influence to 39

40

Gordon Wood has argued that we need to be cautious with texts of this kind: ‘There is an old fashioned explanation in this treatment of public documents; an explanation that has been somewhat disparaged in 20th century historiography, namely that formal public documents provide the best historical evidence of why the people acted as they did. An important question is of course whether this is enough as a historical explanation. Did – or do – public documents mean what they say? Should they be taken at face value? Do they convey all the motives for political thought and action?’ See Gordon S. Wood, ‘Dusting off the Declaration: review of American scripture: Making the Declaration of Independence by Pauline Maier’, New York Review of Books, XLIV, 13 (14 August 1997). Saripolos, Αυτοβιογραφικά, pp. 58–68.

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form a pure and perfect choice’.41 The National Assembly needed, in other words, to be based on a different electoral law because the old one was flawed, in that it was liable to infringement resulting in the distortion of the national will. Due to lack of time, however, the old electoral law had to be preserved, although with some changes that were specified in a series of legislative acts. The revolutionaries thus applied reforms that had been discussed during the previous years in legal and political circles: increasing the size of the parliament, equalising representation, putting safeguards in place for the free exercise of voting rights and broadening the suffrage as well as the base of those eligible to be elected.42 All these reforms went to the heart of the concept of representation and the perception of the constitution. In particular, by removing the qualification that the representatives had to be residents of or have property in their specific local electoral district, the revolutionaries ‘nationalised’ the understanding of representation, or at least reduced the influence of locally entrenched magnates. Although locality and elections remained important, the members of the Assembly were expected to be deputies of and represent the nation and not their localities. In addition, they reinvigorated the old idea that a constitution as a fundamental law had to be a special act that could only be promulgated by an assembly with special powers granted by the nation. What all this meant in constitutional terms became clearer with the last proclamation of the Provisional Government. The reason for the proclamation was the critical upcoming elections. Even though it is impossible to verify what Saripolos’ actual role in the composition of these texts had been, his style and especially his political thought permeated this one at least. The proclamation made two important claims. Firstly, it introduced a distinction between the corrupt political form of ‘Royalty’ (‘Βασιλεία’) and the good and sound form of (constitutional) ‘Monarchy’ (‘Μοναρχία’).

41 42

ΦΕΚ, 9 (25 November 1862), ‘Προκήρυξη της Προσωρινής Κυβερνήσεως, 23 Οκτωβρίου 1862’ [Proclamation of the Provisional Government, 23 October 1862]. Ibid. See also in the same ΦΕΚ the Acts and decrees on the elections: ‘Ψήφισμα της Προσωρινής Κυβερνήσεως περί εκλογής των πληρεξουσίων του Έθνους, 23 Οκτωβρίου 1862’ [Act of the Provisional Government for the election of the delegates of the nation, 23 October 1862] and ‘Θέσπισμα της Προσωρινής Κυβερνήσεως περί εκτελέσεως των άρθρων 5 και 6 του από 23 Οκτωβρίου ψηφίσματος περί εκλογής των πληρεξουσίων του έθνους, 29 Οκτωβρίου 1862’ [Resolution of the Provisional Government for the execution of articles 5 and 6 of the resolution of 23 October on the election of the delegates of the nation, 29 October 1862]; see also ‘Ψήφισμα της Προσωρινής Κυβερνήσεως περί καταργήσεως του πολιτικού θανάτου, 31 Οκτωβρίου 1862’ [Act of the Provisional Government on the abolition of ‘Civil Death’, 31 October 1862] in ΦΕΚ, 4 (2 November 1862).

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Secondly, it conceptualised something upon which the previous texts had only glancingly touched, namely a transfer of sovereignty to the nation. In its opening lines, the nation was praised for the orderly Revolution and the respect with which it had observed the citizens’ rights of property and honour. Next, the text directly addressed the injuries inflicted on the body politic during the previous thirty years. This characterisation of the regime, which the author described as ‘Royalty’, was very close to the sustained comparison that Benjamin Constant made in his De l’esprit de conquête et de l’usurpation between usurpation as a novel form of government (with its destructive pathologies) on the one hand, and monarchy on the other.43 As the proclamation argued, this was a period when authorities were ­flouting the law (‘εποχή ασεβείας προς τους νόμους’) and usurping the rights and the morality of the people (‘επιβουλής των δικαιωμάτων και της ηθικής του λαού’). The cause of the Revolution lay in the impossibility of tolerating any longer these ‘backward political conditions which were undermining morality and defying civilization and the material and moral progress of the nation’.44 The role, therefore, of the Constituent Assembly was to overturn the past and establish the system of government of which the nation had been deprived by the ‘fallen Royalty’; to establish, that is, a proper constitutional monarchy. In order to do this, several additional measures had to be taken to prevent any possibility of moral or material pressure on the voters: the National Guard was abolished, and the power of the local governors, the mayors, was suspended. More importantly, and this was very close to Saripolos’ theory of constituent power, the proclamation saw the convocation of the Constituent Assembly as one of those critical moments in the progress of the nation when its sovereignty was expressed and performed, a moment when ‘the Assembly will become the sovereign of the future of the motherland’ (‘[…] η ο κυρίαρχος του μέλλοντος της Πατρίδος’).45

43

44 45

For Constant, England was the exemplar of monarchy, see his ‘De l'Esprit de conquête et de l'usurpation dans leurs rapports avec la civilisation européenne’ in Constant, De la liberté, p. 163. Usurpation, on the other hand, was a system that nothing could modify or soften and that was characterised by ‘the individuality of the usurper’, a single individual in favour of whom it exacted ‘an immediate abdication’. The usurper was routinely required to trample upon principles and to resort to treachery, violence and perjury. For want of legitimacy, he surrounded himself with guards, engaged in ‘incessant warfare’ and was forced to ‘abase’ and ‘insult’ all those around him. In short, usurpation was a system that was based on illegality and injustice: see more generally Constant, De la liberté, pp. 103–261 and in particular pp. 164–71. ΦΕΚ, 9 (25 November 1862), ‘Προκήρυξη της προσωρινής Κυβερνήσεως, 10 Νοεμβρίου 1862’ [Proclamation of the Provisional Government, 10 November 1862]. Ibid.

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In particular, its tasks included rehabilitating the Church and the past and future of the army, securing political rights, preserving the independence and the betterment of the municipalities, satisfying the eternal passions of the nation (an allusion, perhaps, to irredentism) and consolidating political and social morality. Although these tasks were somewhat vague, the text made something clear: even though the old state of affairs was attacked, the revolutionaries did not generally oppose the public authority of the state by asserting private interests or individual rights against it. These had been usurped by an unlawful king who broke the contract with the nation. The Constituent Assembly was thus seen as a special representative convention in which was temporarily vested the exclusive authority to address the problem and put the monarchy on a new and sound constitutional footing. This was manifested also in the choice of terms to denote those elected to the Assembly. From the first revolutionary texts there was a clear distinction between the ‘plenipotentiaries’ (‘Πληρεξούσιοι’) – that is, those invested with full power on behalf of the nation in the specially convened National Assembly – and the ‘deputies’ (‘Βουλευτές’) of the ordinary parliament.46 At the same time, the revolutionaries did not seek to separate the interests of the crown from those of the nation, but on the contrary to integrate the crown into the constitutional and sovereign power of the nation. But, as the documents also stated, these were the only things that the Provisional Government could do. After the free elections, the power to shape these revolutionary claims would rest with the Constituent Assembly.

The Constituent Assembly of 1862–1864 (I): National Sovereignty, the King and Individual Rights The Second National Assembly of Athens, as it named itself, which convened in the last days of 1862 and concluded its proceedings in late 1864, has been considered a landmark in Greek constitutional development. Apart from promulgating a new constitution and electing a new king, for a period it also replaced the crown in Greek political life by holding all legislative and executive power, assuming thus an authority that had never been conceded until then to parliament. Its major importance of course lies in the ways in which it completed the tasks it had set itself and especially in the constitution it drafted following heated discussions. The change of 1864 has been studied primarily by lawyers focusing on the legal 46

Ibid.

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and institutional aspects of the subject or by social historians whose foremost concern was with the social basis of these political developments. In general, however, the evidence provided by the constitutional proceedings has been largely ignored. At the same time, some scholars have attempted to explore the theoretical and ideological sources of the constitutional philosophy that illuminated the discussions and decisively shaped the eventual outcome. As Paschalis Kitromilides has argued, the available sources and most notably the voluminous proceedings of the debates in the National Assembly itself contain a wealth of material for the historian of ideas.47 It is of course impossible to conceptualise all of the discussions that took place within the Assembly. By relating the constitution to the specific political and intellectual context of its time, this section of the chapter will firstly discuss how representatives in the Assembly perceived and discussed basic constitutional notions, such as sovereignty, representation and rights. Secondly, it will examine the ways in which these notions were finally incorporated into the constitution, changing its meaning and the political structure of the kingdom. The outcome was a mixed and balanced constitution that combined monarchical and democratic elements, leaving certain things unresolved and open for the future. One of the most exhaustive accounts of the Second National Assembly was written by Giorgos Sotirelis, who concentrated on the issue of electoral law and the idea of universal suffrage in the Assembly. According to Sotirelis, two large and rather incoherent political groupings were formed in the Assembly: one ‘democratic and progressive’ and the other ‘conservative and royalist’. The former privileged the democratic principle as opposed to monarchical prerogative, advocated rights and self-­ government for the people, detested foreign intervention and was deeply anti-­intellectualist (‘κατά του λογιωτατισμού’). Sociologically, its advocates were members of the rising economic bourgeoisie, lawyers and others who, as students, had been involved in the opposition to King Otto. The delegates of the Ionian islands held a special place among them. The ‘conservative’ grouping comprised members of the old political class and mainly of the ‘Εclectics’ (‘Εκλεκτικοί’), a loosely affiliated grouping that included intellectuals and professors at the University of Athens and that was politically moderate and centrist. According to Sotirelis, they were in 47

Kitromilides, ‘European political thought’, pp. 11–21. Indeed, the Official Gazette of the (National) Assembly is a rich mine of evidence of the ideas and attitudes of those debating and drafting the constitution. See ΕΕΣ, 6 vols (Athens 1863–1864). See also Sotirelis, Σύνταγμα.

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favour of ‘the monarchical principle – according to which the monarch was the source and bearer of power – which they combined with an elementary representative system and the constitutional institutionalization of classic individual rights’.48 It should be noted that these distinctions were not used as such by the protagonists. In addition, and more generally, although Sotirelis’ typology is useful, it can be misleading, not least with regard to the ‘Eclectics’, who were never a completely coherent or unified group and more often than not disagreed with one another.49 Nonetheless, there is some merit in the argument that their political role outweighed their numbers. Most ­important among them were Emmanouil Kokkinos, Diomidis Kyriakos, Pavlos Kalligas (the law professors), and Georgios Milisis, Antonios Kalos and Theodoros Diligiannis. Nikolaos Saripolos was quite idiosyncratic, being both very vocal in his claims and also the rapporteur of the constitutional draft. In short, the members of this group sought to secure what they regarded as the proper application of national sovereignty within a mixed and balanced constitution – a stance that disposed them towards allowing the monarch greater discretion in the use of his power, while ensuring that this was done in a liberal spirit. From the very beginning of the constitutional proceedings, virtually no one challenged the principle of monarchy. On the contrary, the first task that the Assembly set itself was to elect not just a new king but a new dynasty.50 Nevertheless, its actions made it clear that this time the election would be a national affair, excluding any possible interference from the Great Powers, apart from negotiations on the possible candidates. A referendum under universal suffrage was immediately called for, after which

48 49

50

Sotirelis, Σύνταγμα, pp. 112–19. For the characterisation of ‘moderate’ and ‘centrist’, see p. 57. Even though they were ‘moderates’ and ‘centrists’, Sotirelis argued that they had at times excessively ‘conservative’ beliefs; see ibid., p. 57. At the same time, he identified them with the ‘dominant [in mid-nineteenth century Europe] conservative version of bourgeois ideology as this was expressed in the principle of “national sovereignty”’, p. 115. How exactly this was to be reconciled with their endorsement of a monarchical source of power, he does not specify. By one of the first legislative acts, the revolutionaries abolished the dynastic right of the royal house of Bavaria. This was a clear sign sent to certain of the Great Powers, and to Bavaria itself, given their discussion of the possibility of having another member of the Bavarian family upon the throne, ΦΕΚ, 6 (28 February 1863), ‘΄Γ Ψήφισμα της Εθνικής Συνελεύσεως περί καταργήσεως της δυναστείας του Όθωνος, 6/28 Φεβρουαρίου 1862’ [Act of the National Assembly for abolishing Otto’s dynasty, 6/28 February 1862]. Lord Palmerston also ruled that article four of the treaty of May 1832 gave no guarantee to Otto personally, nor to the Bavarian dynasty; what was guaranteed was the nationhood of Greece. He stated that the Greeks had the right to change the dynasty, a principle to which, as Douglas Dakin noted, Queen Victoria, despite her Hanoverian antecedents, subscribed with considerable remorse: Dakin, Η ενοποίηση της Ελλάδας, p. 89.

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Prince Alfred, the second son of Queen Victoria, was declared ‘under the  sovereign will of the Nation, Constitutional King of the Greeks’ (‘κυριαρχική του Εθνους θελήσει, Συνταγματικός Βασιλεύς των Ελλήνων’).51 Firstly, by changing the title, the revolutionaries stated that sovereignty emanated from the nation. Secondly, by making Alfred constitutional monarch ‘of the Greeks’ instead ‘of Greece’, they recognised the king’s political authority, but stripped him of any aspirations to sovereignty. In addition, they added an irredentist implication to the effect that he was named king of all the Greeks and not just of those within the kingdom. But, in this instance, these changes were of little practical significance. The Act of the Assembly clashed with a clause of the foundational international treaties that had established the Greek state and excluded from the Greek throne any member of the royal families of the Great Powers. The Assembly was in effect playing a diplomatic game, trying to take advantage of the new international power politics of the 1860s when the presence of Great Britain in the region was strengthened. In any case, Lord Russell rejected the candidacy out of a sense of caution and respect for the balance of power in the region. By its next move, the Assembly delegated its power to a diplomatic committee, which finally offered the crown to Prince George of Denmark, son of Prince Christian, the heir to the throne of Demark. In order to accept the Greek throne in the name of his son, apart from economic assistance and territorial extension, Prince Christian claimed a right of succession similar to that held by King Otto. These provisions would ensure that the king was free to abdicate, but could not lawfully be deposed. In addition, he asked for the creation of a new Greek army that would take an oath of allegiance not to the constitution but to the king personally.52 Essentially what Prince Christian was trying to secure was that the principle according to which sovereignty resides in the crown would remain intact. The issue of the throne and its power was dealt with in a diplomatic act and an Act of the Assembly. The first one was the Treaty of London of 13 July 1863, which settled its more formal part. According to this, King Frederick of Denmark accepted for the son of his heir the hereditary sovereignty of Greece that was offered by the Greek National Assembly in the name of the Greek nation (art. 1); the Prince would bear the name 51

52

ΦΕΚ, 6 (28 February 1863), ‘Ψήφισμα της Εθνικής Συνελεύσεως περί αναγορεύσεως του Ηγεμονόπαιδος Αλφρέδου ως Βασιλέως της Ελλάδος’ [On the election of the Prince son Alfred as King of Greece]. Dakin, Η ενοποίηση της Ελλάδας, p. 90.

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‘George I, King of the Greeks’ (art. 2); ‘Greece, under his sovereignty and under the guarantee of the three powers, was to form a monarchical, independent, and constitutional state (art. 3); successors must belong to the Orthodox faith (art. 7)’.53 The essential issue was resolved by the Act of the Assembly on the rights of the king (22 October), which followed his long-delayed arrival. By this act, the Assembly provisionally vested in the new king the royal prerogatives and executive power of the old constitution (1844), but it did so – and this was a significant caveat – only insofar as these prerogatives did not clash with the acts and proclamations of the Provisional Government. More importantly, by that same instrument, the Assembly excluded all constitutional matters from the royal veto and the legislative power of the king. In this way, the plenipotentiaries, by holding to the principle of national sovereignty in the name of which the Revolution had been carried out, denied the crown any role in the making of the constitution.54 This argument against the involvement of the king in the constituent power, which was articulated also in the drafting discussions, provoked a reaction from Nikolaos Saripolos. As his theoretical works had made clear, for Saripolos the king, as a significant part of the nation, embodied national political power and thus the Assembly should acknowledge his ‘right to participate in the drafting of the constitution’.55 But the counter-argument prevailed, and with little opposition. As Georgios Milisis put it: ‘The amendment [proposed] by Mr. Saripolos presupposes two powers, two sovereignties coexisting within the polity and co-acting/cooperating (‘συμπραττούσας’) in one and the same entity. Βut this supposition is both false in theory and impossible in practice. Sovereignty is one and indivisible […] the king is the supreme authority of an already constituted polity, but its very constitution is a duty of the Assembly’.56 The young prince accepted this situation in his proclamation of 30 October, when he acknowledged that he had been chosen to be sovereign by the Greek people and had pledged to observe the constitution. After the issue regarding the role of the king within the Assembly 53

54 55 56

This was also the treaty with which the Ionian Islands were to be added to the Hellenic Kingdom when such a union proposed by Great Britain should have been given the assent of the Ionian Parliament and of Austria, France, Prussia and Russia (art. 4). See ‘Συνθήκη του Λονδίνου της 1/13 Ιουλίου 1863 για την εκλογή του Γεωργίου’ [Treaty of London, 1/13 July 1863, for the election of King Georgios] in Gerozisis et al., Κείμενα, pp. 293–95. ΦΕΚ, 38 (31 October 1863), ‘ΞΗ΄ Ψήφισμα της Εθνικής Συνελεύσεως περί ορκωμοσίας και δικαιωμάτων Βασιλέως’, see also ΕΕΣ, vol. III, p. 575 and thereafter. ΕΕΣ, vol. III, p. 585. ΕΕΣ, vol. III, p. 586.

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had been settled, the representatives set out to complete their second and probably much more difficult task: the drafting of a new constitution. The process had three steps: the members of the Assembly elected a special parliamentary committee, the task of which was to produce a constitutional draft. When this was completed, it was brought (May 1864), along with an introductory report, to the Assembly for deliberation. This was concluded in November of the same year. The principle of national sovereignty was, for the representatives, the crucial starting point of the drafting process and of the constitutional change. In fact, during the lengthy discussions in the Assembly, the principle was deemed so self-evident that it was hardly discussed. As Saripolos argued in the introductory report, the principle drew its source from the Revolution: It is an uncontestable principle that Sovereignty belongs solely to the national group, and that it is from this that all power and force emanates. And although it is unnecessary on the morrow of a revolution to write this doctrine as heading of the section dealing with the constitution of the polity, it was deemed necessary to make explicit reference to it [the doctrine] in the Constitution so that the constituted authorities have always in mind the uncontested source from which they derive their powers.57

The Assembly had to give institutional form to this principle; however, its members knew from the very beginning that this was no easy task, as it was related to an old problem that had originated in the French Revolution and that preoccupied European political thought throughout the nineteenth century. As soon as the practical organisation of authority began, the crown had to delegate power, thus jeopardising its own qualities, and this process was becoming even more troublesome given how this delegation was conceived. As article 21 of the constitution stated (and it was the same wording in the draft): ‘All powers emanate from the nation and are exercised in the way prescribed by the Constitution’ (‘Άπασαι οι εξουσίαι πηγάζουσιν εκ του Έθνους, ενεργούνται δέ καθ’ο τρόπον ορίζει το Σύνταγμα’). This meant that the Greek nation surrendered to political institutions not a part of but its full sovereign power, or, in other words, that the delegation of sovereignty was absolute. There was nothing exceptional in this since most European constitutions did the same, yet it ran counter to an earlier Greek understanding 57

N. Saripolos, Έκθεσις της επί του πολιτεύματος επιτροπής της εν Αθήναις Β’ εθνικής των Ελλήνων συνελεύσεως [Introductory report of the constitutional draft committee of the Second National Assembly], ΕΕΣ, vol. V, reproduced in Gerozisis et al., Κείμενα, pp. 300–41 (p. 314).

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of delegation that had been influenced by the American constitution and held that sovereignty resided in the nation (‘ενυπάρχει’), meaning that it was never surrendered entirely.58 The problem with the absolute delegation of sovereignty was that, irrespective of whether sovereignty was delegated to representative institutions or the monarch, it potentially ran the risk of threatening the rights and liberties of the nation and its citizens. So the essential issues for the plenipotentiaries and their next moves were first of all, to sketch out a legitimate form of government that would subscribe to the principle of national sovereignty; secondly, to render that government stable by placing it on more solid institutional foundations than before; and thirdly, and more crucially, to diminish any chance of the sovereign power being usurped. At the heart of many delegates’ and especially the ‘Eclectics’ response to this challenge was the conviction that the only way to accomplish this task would be by placing guaranteed restrictions upon the possible abuse of power, by limiting not a particular form of sovereignty but sovereignty itself; to quote Saripolos again: ‘Only those [regimes] can be named wellgoverned and civilized which have a written constitution which outlines the limits of each power and authority and balances the action of each, so that each one, becoming in itself useful to the polity, remains unified with the others and, complementing them, pursues its own work without encumbering the others.’59 And, in order to outline these limits, he added that there was no need for the drafting committee to ‘innovate’ or to ‘intervene in the theory of what the best form of government is’. It should solely ‘restrict itself to putting the monarchy on better foundations’ in order to prevent any possible ‘transgression from the constitutional path’.60 At least for Saripolos, this inspiration on how to circumscribe sovereignty came, as we saw in Chapter 5, from an eclectic reading of several eighteenth- and nineteenth-century sources. This time he turned increasingly to Benjamin Constant, who had argued most systematically in his Principes de Politique, first published in 1815 (although he had completed a first version by 1806), that no authority, not even that exercised in the 58

59 60

That was the formulation (art. 5) of the third revolutionary constitution that was promulgated by the National Assembly in Troizina (1827) and was the first to have the term ‘Constitution’ on its title (‘Πολιτικόν Σύνταγμα της Ελλάδος’). It was also heavily influenced by the American constitution. For the American understanding of delegation and generally for American constitutionalism, see Gordon S. Wood, ‘The American Revolution’, in M. Goldie and R. Wokler (eds.), The Cambridge history of eighteenth-century political thought (Cambridge, UK: Cambridge University Press, 2006), pp. 599–625. Saripolos, Έκθεσις της επί του πολιτεύματος, p. 313. Ibid., p. 314.

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name of the people, should be unlimited. Just like the power of the monarch, the sovereignty of the people should be ‘circumscribed within the limits traced by justice and by the rights of individuals’ and could be made into a reality ‘through the distribution and balance of powers’.61 And it was of course the excesses of the Terror and the radicalism of the democratic theory of sovereignty associated with Rousseau that Constant had in mind. As we saw in Chapter 5, Saripolos was mindful of these concerns. This became manifest, for example, in his criticisms of the unquestioned sovereignty of the English parliament. But he was equally, if not more, concerned with the usurpation of power by the Bavarian king and his entourage. His solution in the constitutional draft was thus a set of political institutions that would limit the possibility of power being usurped. By drawing on Constant (and directly acknowledging the influence in his sketch of royal power, as we shall see) he proposed two ways through which to limit and control the exercise of sovereignty. The first was by formulating and inserting into the constitution a new and more explicit section on individual rights and liberties that no authority, whatever its source, could call into question. The second was through an institutionally complex distribution and balance of powers, which could prevent the concentration of power in one law-making authority. In essence, the discussion that followed in the Assembly went along with this idea of circumscribing sovereignty even though it qualified several of the committee’s proposals. It was these formulations that were the most innovative in the final constitution. The language of rights occupied an absolutely central place in the proceedings. As noted in the preceding chapters, this was not a novel preoccupation among Greek political thinkers. Indeed, several scholars, the jurists prominent among them, had in previous years concentrated on a language of rights that they had usually defined as those of liberty, property and security. They had also asserted that the sole legitimate limitation upon their enjoyment was the rights of others, and that these limits could only be established by legislation. But these concerns acquired urgency in light of the usurpation of these rights in the last years of Otto’s reign. Rights were thus made into a special chapter of the constitution, being a sort of preamble along with the one on religion (art. 1–2), which was also preoccupied with establishing freedom of faith. Although the constitution of 1844 did have a similar chapter, it was significantly expanded in the draft and the final document of 1864. 61

Constant, De la liberté, pp. 269–78.

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The major difference between this and the older conception, according to Saripolos – who cited with approval the simplicity and wisdom of the American Bill of Rights – was that individual rights drew their source from nature and not the ‘will of the polity’. They were rights of universal validity and application, not limited to Greeks and not eligible to be limited by political authority. Their incorporation into the fundamental law of the state was thus important in order ‘to secure them from any kind of malign influence and put them under the protection of the general will so to speak’. In his report, Saripolos stated that the first and ultimate right was liberty. Owing to opposing voices within the drafting committee, especially that of Pavlos Kalligas and those of others who feared the dangers emanating from an unlimited emphasis on liberty, Saripolos riposted that ‘liberty is either full or it is not liberty; […] liberty is one and indivisible in essence, only through its exercise it takes other names’. But he immediately qualified this statement by arguing that this meant the reasonable, harmonious, organic liberty exercised within a society governed by good laws. For Saripolos – and this view was probably shared by most plenipotentiaries in the Assembly – society was not an aggregate of individuals in which each one was pursuing their own interests and whims, it was an organic whole in which the movement of its parts should follow the movement of the body.62 This conception of liberty was incorporated into the language of rights and specified in a mixture of legal and political liberties. More particularly, these consisted of equality before the law (art. 3); a set of legal liberties, among which was the right to obey only those laws and pay only those taxes authorised by one’s representatives (arts. 3, 7, 8, 9); the inviolability of ‘personal liberty’, specified as the right not to be arrested, detained or restricted in any way other than the one defined by law (arts. 4, 5); the right to freedom of conscience (art. 2); the right to protect and dispose of property (arts. 12, 17); and the right to free speech (art. 14). Saripolos and the delegates in general put particular emphasis on the last two rights because of their continual violation by the previous authorities. This reflected the centrality of property in Greek intellectual debates, which we saw in the case of the Romanists, but what needs to be emphasised is that both the committee and the Assembly did not conceive property solely as a right to be protected, but also as a social condition that the state needed to promote. Therefore, they included in the constitution a special provision 62

Saripolos, Έκθεσις της επί του πολιτεύματος, p. 301.

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(‘διάταξη’) by which they ordered the next government and of course the royal authorities to enact laws for the distribution of land (art. 102). Accordingly, Saripolos stressed that the distribution was justified both in terms of fairness and in terms of the economic benefits that citizens and the state would incur.63 It is also worth noting that it was during the proceedings of the National Assembly that a bill regarding a large-scale distribution of land was discussed. Its implementation would have to wait until 1871.64 What is more, brigandage – which, as we saw in Chapter 2, was related in the eyes of many scholars to the incomplete understanding of property and by extension to a pre-modern economic and political outlook – was dealt a serious blow by the decision of the Assembly to prohibit amnesty for brigands.65 As far as the freedom of the press was concerned, the drafting committee, acknowledging the influence of arguments by Alexis de Tocqueville in his De la Démocratie en Amérique, abolished any sort of censorship or any other measures that could restrict in any way freedom of expression (accepting, nevertheless, after long discussions, exceptions in case of insults against Christianity and the person of the king).66 The point, however, where the committee self-consciously innovated was in the introduction of some ‘collectivist’ liberties, namely the rights to assembly and association (arts. 10–11).67 The discussions in the drafting committee were heated. Most of the Eclectics and especially Pavlos Kalligas and Diomidis Kyriakos argued that these rights would threaten the social order. For Kalligas, it was absurd to expect reason and order to be applied in popular assemblies. On the contrary, they would be forums conducive to the spread of socialist ideas and would jeopardise property and by extension order, given that ‘it is impossible to distinguish the protection of property from the idea of order’.68 In the same vein, Diomidis Kyriakos (both within the Assembly and in his ‘Observations on the constitutional draft’ that he published while the draft was before the Assembly) 63 64 65 66

67 68

Ibid., p. 338. See Sotirelis, Σύνταγμα, pp. 111, 118n. Kostis, Τα ‘κακομαθημένα’, p. 353. Saripolos, Έκθεσις της επί του πολιτεύματος, p. 307. And in the assembly: ‘The nation is ­sovereign – science says so, it is written in the Constitution; therefore the nation must be free to express itself. It must also be free to vote; the sovereignty of the nation, free elections and freedom of expression […] are intertwined. Therefore, it makes no sense to recognize the first two principles while imposing limitations on the press […]. When the sovereign will is expressed through mild means instead of radical ones, the polity is safe […]. What is the mildest means? Is it the free press? […] Do you want to force the people to resort to arms at once, by denying the nation this mild and rational means?’ ΕΕΣ, vol. VI, p. 177. Saripolos, Έκθεσις της επί του πολιτεύματος, p. 304. ΕΕΣ, vol. VI, pp. 111, 153.

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feared that this right would threaten political order by allowing the spread of subversive ideas.69 But the plenipotentiaries in general equated these rights with national sovereignty and, more importantly, with those institutions that stand between the government and the individual, or what Montesquieu and Tocqueville had called intermediary bodies. For both Saripolos and Adamantios Diamantopoulos (a very active member in the drafting process), these rights gave expression to a person’s sociability and complemented free polities.70 Last but not least, the committee, again after heated discussions, preserved from the previous constitution the ‘right to education’ as the only way to foster social and political virtues. So in essence, by individual rights, the plenipotentiaries established in the first place a set of legal rights that they thought would facilitate the pursuit of individual preferences and interests. These were ‘negative’ rights, understood as barriers to abuse on the part of the authorities. Yet in the second place, they complemented these rights by acknowledging everyone’s right to exercise some influence in the life of the nation through actions that the authorities would be more or less compelled to take into consideration. In other words, the Assembly acknowledged ‘positive’ rights (assembly, association, education) with which citizens could develop and expand their individual capacities and interests. No matter how varied the specific understandings of these individual rights might have been, the ultimate intention behind their institutionalisation was the delegates’ attempt to protect citizens from oppressive governments and from the possibility of political institutions usurping their power. Suffrage, one of the most controversial issues that the Assembly addressed, was also related to this discussion on rights. The discussion revolved mainly around whether suffrage should be regarded as a right or a public function, but the issue went straight to the heart of the principle of representation and was closely related to national sovereignty. In the constitutional draft, voting was only mentioned in the section on the parliament and was not specified, but it became central when the draft went to the Assembly. Furthermore, as Giorgos Sotirelis has argued, suffrage was ultimately understood as a right in the context of the National Assembly.71 To be sure, the constitutional recognition of universal suffrage owed much to the influence of the deputies from the Ionian islands, 69 70 71

D. Kyriakos, Παρατηρήσεις επί του συνταχθέντος υπό της επιτροπής της συνελεύσεως σχεδίου του συντάγματος (Athens: Vasiliko Typografeio, 1864). ΕΕΣ, vol. VI, pp. 109–10 for Diamantopoulos’ comment and p. 117 for Saripolos’. Sotirelis, Σύνταγμα, pp. 66–74.

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but the rationale behind the provision that recognised voting as universal, direct and secret was that universal suffrage was the expression and the realisation of national sovereignty, the ‘means through which the supreme will of the people is externalized and activated’. This view was strongly associated with a democratic language that equated democracy with equality. ‘We are a democratic nation’, Alexandros Koumoundouros – plenipotentiary and later on prime minister – argued during the discussion on suffrage, ‘we have tendencies and inclinations of absolute equality’. For most plenipotentiaries, equality meant not only civil equality but also political equality. In essence, this view equated national sovereignty with national representation. As Spyros Antonopoulos, defending universal suffrage, put it: If, gentlemen, you fail to inscribe in the regime the principle of universal suffrage; if you leave pending this most important right of the citizen, I will tell you that your most valuable rights, being at the discretion of others, are not secure, and your liberties may become problematic. You will not have your liberties established, you will not see implemented the voted provisions of the Constitution unless you have good representation; and you will not have good representation unless you have deputies backed by the majority of the nation, unless you have representatives deriving their power from the entire body of this nation.72

Two opposing views were expressed, one by some of the ‘Eclectics’ and a more subtle one by Saripolos. Some of the former, such as Pavlos Kalligas, Giorgos Milisis and Emmanouil Kokkinos, considered voting as a function and supported limited suffrage, usually based on property or the paying of taxes – and indeed Nikolaos Saripolos shared this view. Most of them, it has to be noted, were not against the equating of Greece with democracy and equality, at least in principle, but they disagreed with the constitutionalisation of universal suffrage, pointing out that voting was a political right and not a civil right. Furthermore, ‘political rights’, Kokkinos argued, ‘cannot be regarded as absolute [rights]. Political rights are not rights generally of the human species, they are rights of people living in a specific political society, established and granted for the interest of the polity and not for the interest of the individual’.73 Αt the heart of their arguments was an elitist conception of deliberative institutions and a belief that the ‘active’ citizens (the taxed, the propertied, the educated, the capacitaires) were better equipped to speak for the affairs of the nation. 72 73

ΕΕΣ, vol. V, p. 560 and the discussion thereafter. ΕΕΣ, vol. VI, p. 563.

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In addition, as we saw in Chapters 2 and 3, many of these scholars put more emphasis on the cultivation of manners than on the benefits that political participation and politics more generally could have for citizens. As Kalligas had argued since 1841, ordinary citizens should not deal with politics but should stay focused on their private affairs.74 Diomidis Kyriakos – professor of law and prime minister for a short period during the interregnum – went even further and dismissed universal suffrage outright, arguing that it was ‘incompatible with legal equality’. Kyriakos justified his opinion in a pamphlet he published in the summer of 1864 amid the constitutional proceedings. As he was a sort of Greek Idéologue, Kyriakos drew inspiration from several French thinkers, among whom he reserved a special place for Duvergier de Hauranne, Alexis de Tocqueville and others. His major worry was what he saw as a strong relationship between universal suffrage, majority rule and the forging of a strong central power. This tendency to make the state ‘the master of every man’, as Tocqueville had argued after the Revolution of 1848, jeopardised, according to Kyriakos, the preservation of local independence and could easily turn into despotism. In general, what he recommended was a system of limited government resting on free elections with limited suffrage, civil liberties (including freedom of the press and freedom from arbitrary arrest), legal but not economic equality and a society led by an educated elite.75 It is crucial to point out that Kyriako’s pamphlet did not really target the ‘democratic’ view of the majority that supported universal suffrage, but was published as a reply to the draft and especially to the report that accompanied it. According to Kyriakos, this was Saripolos’ undertaking. Indeed, this made sense, because Saripolos had a different perception of suffrage and representation than both the ‘democratic’ view and that of the ‘Eclectics’. Both these views assumed that voting – whether limited or universal – was the single most important form of political participation and, more crucially, that by way of voting the nation granted its absolute sovereignty to its representatives. Saripolos, as we saw in Chapter 5, had a different understanding of the relationship between sovereignty and government, according to which governing institutions and officers were not sovereign (and did not represent the national will). Only the nation was sovereign, and any claim by an assembly or any sort of institution whatsoever to fully represent or embody the national will was a form of usurpation. 74 75

Kalligas, Η εξάντλησις των κομμάτων, pp. 483–505. Kyriakos, Παρατηρήσεις, in Gerozisis et al., Κείμενα, pp. 341–416.

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So although Saripolos subscribed to the equation of Greece with democracy, since ‘equality is rooted in the bones of the nation’, he could still refuse universal suffrage as a way of preventing the parliament from being considered as sovereign.76 Although this contained an elitist conception of the parliament – its members would be chosen by limiting suffrage to the ‘best’ – it was not anti-democratic. Its elitism arose from an insistence that sovereignty was different from ruling and that the crucial role of the nation as sovereign was to pass judgement on governors, kings, elites and institutions, including representative institutions. It could do this not just by voting but by setting up and participating, as we saw, in intermediary bodies. Yet Saripolos and many others also knew that if they wished to place limitations upon the exercise of sovereignty and restore political stability in Greece, they would have to pay equal, if not greater, attention to the structure of its central institutional arrangements. This they did by establishing a rather complex political system.

The Constituent Assembly of 1862–64 (II): Balancing and Mixing the Powers Probably the most multifaceted discussion in the constitutional proceedings occurred when the plenipotentiaries tried to devise a structure for the political system. The issue was to combine representative government with a constitutional monarch as head of the state and at the same time erect higher barriers against prerogative power, whether of the king or of representative institutions. In a manner similar to their American counterparts in the previous century, they solved this problem by distinguishing the powers, and at the same time balancing them, through mixing and blending their jurisdictions. Saripolos had a key role in this. His starting point was to break with the idea that there has to be one final, indivisible and incontestable lawmaking authority to which all other authorities must be ultimately subordinate – whether this was the parliament or the monarch. He did this because he believed that the possibility of usurpation could be diminished only by having competing powers with the capacity to check each other. Accordingly, he moved away from a strict separation of powers, since one power could check another only if there was considerable overlap between them. This is an idea that one can in fact find in Montesquieu’s theory 76

ΕΕΣ, vol. IV, p. 375.

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of mixed government, but also in the ways with which the American Founding Fathers allowed contestation among the multiple different powers, all of which claimed to act in the name of the people. In any case, these ideas found their way into the final document. The first question the plenipotentiaries had to address was how to delegate national sovereignty and its exercise to three ‘state powers’: legislative, executive and juridical. The issue of the third was dealt with immediately by allocating it exclusively to the courts (art. 28, arts. 87–98). The problem in the drafting committee was now how to allocate the exercise of the other two powers to the three existing political institutions – the parliament, the senate and the king. According to the introductory report, legislative power was the highest in importance because it represented the national will and because of the participation, through the representative institutions, of the people in its exercise. As a result, the discussion about the control and exercise of legislative power was the most controversial and the first and most important test for the Assembly of how to mix and balance the powers. According to the provisions in the draft, legislative power was to be exercised equally by the two chambers and the king. But in the discussion in the Constituent Assembly, the inclusion of the senate was dropped. Almost everyone seemed to agree that Greece did not have the social conditions of other countries that would have made the choice of an ‘aristocratic’ institution more reasonable. Thus, the discussion in the Assembly concentrated on whether the existence of a non-elected upper house was compatible with national sovereignty. As one plenipotentiary put it: ‘in nations where society is divided into classes, there social discourse is also divided […]. But social discourse in Greece is one and indivisible, since Greek society is one and indivisible’.77 Most delegates saw no need to retain the institution and, contrary to the wishes of all the Eclectics and especially of Saripolos, the Assembly decided to exclude the provision for a senate from the new political structure. Saripolos, in his report, had staunchly defended the need for a senate, the members of which would be chosen by the king. Again, his rationale was based on the argument that the political system and the government should include more than one power that would act in the name of the people. That is why he argued that the senate was necessary as a vital intermediary body between the monarch and the parliament.78

77 78

ΕΕΣ, vol. VI, p. 339. Saripolos, Έκθεσις της επί του πολιτεύματος, pp. 314, 330–35.

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The exclusion of the senate left only the other two institutions – the king and the parliament – as the two key players to be mixed and mutually checked in exercising legislative power. According to the draft that was accepted, the king and the parliament would share the legislative power equally (arts. 22–26) while executive power belonged to the king alone (art. 27). The chapters ‘On the king’ and on the ‘Special provisions’ attempted to clarify the relationship between the two and thus strike a difficult balance. The king was not just declared ‘irresponsible and sacrosanct’ (art. 29), he was also accorded the right to appoint and dismiss ministers and to dissolve parliament. The justification for these extended and highly important powers was offered by referring to what for many delegates was the ideal model: the English constitution. If one looked at the English system of government, Saripolos argued, closely following Constant, one would see that the monarch exercised the essential function of ensuring that the whole system worked in harmony.79 ‘In a free country’, Constant argued, ‘the king is a being apart, superior to differences of opinion, having no other interest than the maintenance of order and liberty.’80 Accordingly, for Saripolos, the monarchy was accredited not only with the function of preserving the constitution, but also with acting as the guarantor of all political liberties and as an umpire of divisions and different social interests: ‘The King, possessing the supreme place in the polity, overseeing everything, and re-setting into harmony the governmental structure when it has been in any way disturbed, ought by nature to abstain from the passions which divide the citizens’.81 What is more, Saripolos acknowledged his intellectual debt to Constant by referring in his report to his theory of ‘royal power’ as that which would put an end to any ‘dangerous conflict’ that might take place between the powers. Therefore, if the actions of the executive were unsound, the monarch could dismiss his ministers; should the hereditary chamber be unduly troublesome, the monarch could simply create new peers, and so on. ‘The royal power’, as Constant wrote, ‘is in the middle, yet above the four others, a superior and at the same time intermediate authority, with no interest in disturbing the balance, but on the contrary having a strong interest in maintaining it.’82 Indeed, as we saw in Chapter 4, for Saripolos too the king was that power that would bring harmony and order. But, contrary to Constant, 79 80 81 82

Ibid., p. 319. Constant, De la liberté, p. 282. Saripolos, Έκθεσις της επί του πολιτεύματος, p. 316. Constant, De la liberté, p. 280.

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Saripolos refused to see the king as a neutral power, as an external authority or institution that would police the delegation of powers. Instead, he sought to make the king a significant pole in the interior structure of government and a part of the nation. In essence, what he had in mind was a dualist political system, which required the confidence of both the king and the parliament for the government to be formed and stay in power. This association of the king with harmony and order was shared by most members in the Assembly, and in fact it was further accentuated in light of the escalating events in 1863 that recalled memories of national discord. In February and June of 1863, following strong divisions within the Assembly, clashes erupted in the streets of Athens between the two major political factions, causing several deaths.83 In this context, many members in the Assembly saw the establishment of a strong central government and a strong royal power as the only way to secure political stability. But, still remaining loyal to the idea that in no way should authority reside in just one of the active powers, most of the plenipotentiaries (following Saripolos) attempted to place limitations on the king’s authority. This they tried to accomplish by a number of provisions. One specified how royal power was executed, stating that executive power ‘belonged to the monarch, and is activated through the ministers whom he chooses’ (‘Η εκτελεστική εξουσία ανήκει εις το βασιλέα, ενεργείται δε διά των παρ’αυτού διοριζoμένων υπουργών’, art. 27). This provision was complemented by others that established ministerial responsibility (arts. 29, 30, 79). What these meant was that ministers were no longer seen solely as the monarch’s functionaries. They were responsible for their actions and they could be removed from power if they lost political support (whether that meant the support of a majority in parliament was left unanswered and was only resolved a few years later, as we will see shortly). A second and much more important provision was contained in the two articles through which the king was effectively rendered ‘legally incompetent’ to act alone.84 According to article 44, the king had ‘no other powers than those explicitly conferred upon him by the constitution and the special laws made in pursuance thereto’. According to article 107, the king had no powers of revision and thus no power to initiate or veto constitutional changes. These were vested in specially elected revisionary assemblies. With these provisions, the plenipotentiaries essentially curtailed the powers of the king. By so doing, they were in fact addressing the major 83 84

Kyriakidis, Ιστορία του συγχρόνου ελληνισμού, vol. II, pp. 224–50. Sotirelis, Σύνταγμα, p. 146.

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task they had set for themselves; that is, to erect barriers against any prerogative power and at the same time give institutional form to the transfer of power to the nation. This is why the voting of these two last provisions met with very few objections and was in fact mostly perceived as a measure merely complementing the principle of national sovereignty.85 Interestingly enough, before the end of the process the king attempted to intervene by submitting to the Assembly a revised version of the committee’s draft. The Assembly refused outright to set this draft proposal as a basis for discussion. It accepted some ‘observations’ the king made after the Assembly had sent him the final official draft, but only for deliberation.86 In this way, it restated the mindset of the delegates regarding the constituent process and the role of the king therein. In case there was any lingering doubt, they reiterated the principle when they sent the final constitutional draft to the king. Indeed, when the constitution was launched, the king had no role other than to sign it formally and to swear to abide by it. This he did, and the constitution was promulgated on 17 November 1864. All of these developments fundamentally changed the perception of the constitution. Within the drafting committee, there was a long discussion about the revision process that revealed two different conceptions of the constitution. For some, it was a fundamental law, ineligible for any sort of revision. For others, recalling the example of England, it was a human artifice and, as such, eligible to ‘change and improvement through the progress of the years’.87 The final understanding adopted by the Assembly was a compromise. While the constitution was seen as a human artifice, liable to change, the delegates made the revision process rather long and difficult. Aside from these discussions that revolved around the revision process, the Assembly changed the perception of the constitution in a more fundamental way. By locating sovereignty in the nation and putting its power under the joint jurisdiction of parliament and crown, the delegates were clearly stating that the power of the monarch emanated from the nation. They were thus ultimately subordinating monarchical power to the nation. By so doing, they were breaking with the understanding of the constitution as a contract between the king and the nation. The king was no longer considered an independent constitutional entity with which the people or their 85 86 87

ΕΕΣ, vol. V, p. 40. ΕΕΣ, vol. VI, p. 968 and thereafter. Saripolos, Έκθεσις της επί του πολιτεύματος, p. 340.

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leaders had to bargain and contract. On the contrary, by this reconfiguration of the structure of politics, he was rendered a part of the nation. Yet this mixed and mutually checked constitution was still a contract, although this time it was seen as a contract between rulers and ruled within the nation, in a situation where the former had only duties and the latter only rights.88 Ultimately, what the plenipotentiaries tried to do was to blend and subordinate in a harmonious way the different powers of the realm into a potentially powerful central government. Similarly, even though the need for a strong central power was recognised, the memory and the experience of its abuses were such that the National Assembly sought consistently to reduce the prerogatives, especially those of the executive. Notwithstanding these formulations, the constitution was imbued with a fundamental ambiguity because it accorded legitimacy and an equal standing to two potentially rival bodies, the parliament and the king; or rather it left the relationship in question. Saripolos was aware of this and that is why he had insisted on a senate in his advocacy. In any case, the tension played out in subsequent years. It took another (but lesser) political crisis to clarify the constitutional arrangement, or at least to move it to a more recognisably parliamentary form.

The ‘Lawful’ Rearrangement: The Political Crisis of 1874–1875 and the Consolidation of Parliamentarism In the years following the promulgation of the constitution, the main ambiguity of the constitution with regard to whether the government of the day was responsible to the parliament or the crown – the two rival institutions – was exposed. In fact, Pavlos Kalligas’ contention during the proceedings of the National Assembly, ‘that those cabinets have a constitutional character, which are based on the majority of the parliament, no one doubts’, was proven to be more of a wish than a fact.89 In practice, coalitions in the parliament were scarce after 1864, and when they were formed they were never sufficient to secure a stable majority. Owing to the instability of party coalitions, the king frequently and freely used his right to appoint a cabinet and to dissolve parliament. The result was that the king, though lacking in extensive constitutional powers, enjoyed considerable influence. Not infrequently, in order to apply policies or bring 88 89

Ibid., p. 312. ΕΕΣ, vol. VI, pp. 358.

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foreign policy within limits prescribed by the European powers, the king governed through minority or even extra-parliamentary ministries. There was thus constant horse-trading in order to obtain votes, and this gave credence to allegations – true or false – of corruption. Hence, there were recurrent ministerial crises that produced a state of paralysis. In a sense, stable government, a central demand for many contemporaries, hardly existed.90 In that way, there could be no firm foreign policy, no prospect of reorganising the army or the fiscal system and no chance of carrying out a programme of social, economic and legislative reforms. On top of all these issues, all administrations at the time had to deal with an almost constant financial crisis. In 1867 another round of negotiations with international creditors over repayment of the debt was conducted, but ultimately failed. Greece remained mired in debt and frozen out of Europe’s financial markets (until 1878 when a deal was reached). At the same time as these political problems, the constitutional reforms had opened up spaces of deliberation. Indeed, a characteristic of Greek public life after 1864 was the growth of the public sphere, as clubs, societies and associations of various sorts sprang up in increasing numbers. Some focused on charitable works, while others dealt with matters political, social, secular as well as sacred. Most, if not all, brought men (and some women) together, in effect expanding the forms of sociability at a local but also at a national level. But more crucially for the purposes of this chapter, this emerging public sphere enabled the articulation of a set of political discourses and led to the key political issues being extensively discussed. In fact, as a historian of the period has argued, the governmental deadlock of the period after the constitutional transformation of 1864 brought to the centre of political debates a number of key constitutional questions: who ruled and how, what the system of government prescribed in the constitution was, what the relationship between the powers was, who was checking these powers, what the extent of royal prerogatives was, as well as what the relationship was between the crown and the parliament.91 90

91

See N. Alivizatos, ‘Οι κύκλοι του ελληνικού και ευρωπαϊκού κοινοβουλευτισμού: Συμπτώσεις και ασύμπτωτα’, in (n. ed.) 150 χρόνια ελληνικού κοινοβουλευτικού βίου, 1844–1994 (Athens: Ant. Sakkoulas, 2000), where it is noted that only five out of the twenty-two governmental crises between 1863 and 1875 were due to lack of parliamentary confidence, while the rest were due to discord between the king and the administration: pp. 165–69. N. Maroniti, ‘Η εποχή του Γεωργίου Ά: Πολιτική ανανέωση και αλυτρωτισμός’, in Panagiotopoulos, Ιστορία, vol. V, pp. 9–36 (pp. 10–12). See also Gallant, The Edinburgh history of the Greeks, pp. 147–49.

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Politically, three strands of discourse were prominent in addressing these issues. The first, promoted by politicians with strong ties to the palace and to local elites such as Dimitrios Voulgaris, was in favour of the royal prerogative and saw the parliament as an institution that should have only a limited role, or even no role at all, in the exercise of executive power. In a way, this discourse drew on pre-1862 ‘rational enlightened’ ideas, seeing the king as supreme sovereign and as a political entity that did not only represent the nation but did so by standing, contrary to the parliament, above particularistic politics. This discourse was also in favour of a limited suffrage and of a hierarchical society based on wealth and political capital. The second discourse was endorsed by the most powerful political coalition of the time, which was led by the liberal Alexandros Koumoundouros. This drew on a combination of ideas adumbrated by the jurists in the years before 1862, but also on the ideas developed during the critical period of 1862–1864. Envisioning a society of small independent property owners, it supported the establishment of a strong state and a strong administration, seeing them as means for making an orderly society. Although it deemed the monarchy to have a crucial role in this, it believed that an efficient political system was one in which bearers of public authority, royalty included, were bound by the law and where royal executive power was checked, but also complemented by the parliament. In this conception, the political system devised by the constitution of 1864 was one in which sovereignty stemmed from the nation and was vested in both the king and the parliament. Although most proponents of this discourse were in favour of universal (male) suffrage, they also thought that its combination with the persistence of local systems of allegiance according extreme power to local powerholders was detrimental to the central state’s attempts at reform. They thus sought to undermine these local centres of power by way of a number of reforms, for example on banditry, land distribution, elections and so on, some of which we considered in previous chapters. The third discourse was somewhere between these two. Endorsed by a younger generation of nationalist politicians such as Epaminondas Deligiorgis, this discourse, like the previous one, put the emphasis on national sovereignty and on the significance of political participation for a sound public life. But it also saw the king as the neutral and balancing power that would ensure that national sovereignty was not usurped by the factional politics of the parliament. In other words, this was a discourse that drew on the idea that the sweeping prerogatives of the king were not only compatible with the liberties of citizens, but necessary for their preservation.

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Be that as it may, and as the governmental crises were worsening, all the tensions and differences of opinion came down to one basic question: who was to blame for the deadlock? For some, the ‘democratic’ constitution, the parties and more generally the liberal institutions that it had established were responsible.92 Others increasingly raised criticisms against the royal practice of selecting the prime minister from the parliamentary minority. And, as on previous occasions, these claims were articulated in a blueprint for reforms sent to the king by Alexandros Koumoundouros, where he argued that only a government that was fully independent from the monarchy would be effective enough to formulate a coherent political programme.93 Tensions continued to rise and the political crisis became an even greater threat to political stability in early 1874 when Dimitris Voulgaris tried, with the implicit approval of the king, to distort basic parliamentary rules in order to have the budget voted on.94 In general, the Voulgaris administration, by trying to revise the constitution, sought to turn back the clock, limit the legislative jurisdiction of the parliament and thus leave only one institution with the right to speak in the name of the nation – the king. This it attempted to do by exploiting loopholes in the constitution, which, as we saw previously, had tried to blend the jurisdictions of the powers, but had left unclear the relationship between the two main authorities (the parliament and the crown). Events took a decisive turn in the summer of 1874, when Charilaos Trikoupis anonymously published two articles in the newspaper Καιροί – the first characteristically entitled ‘Tis Ptaiei?’ (‘Who is to blame?’) – which would make him the central political figure for years to come.95 Trikoupis’ intervention did not come out of nowhere. He was a rising and highly respected liberal member of parliament. He also came from a prominent family – his father, Spyridon Trikoupis, had been a leading liberal politician and supporter of moderate, if not elitist, liberal reforms ever since the 92

93 94 95

As Lord Clarendon and Petros Vrailas Armenis (the Greek Ambassador in London) argued in the discussion they had after the murder of English citizens by some brigands in Dilessi. See D. Dontas, Greece and the Great Powers, 1863–1875 (Thessaloniki: Institute of Balkan Studies, 1966), p. 168. For a general overview of the different opinions expressed by the press and by legal scholars, see I. Mavromoustakou, ‘Η Δεδηλωμένη υπό το βάρος των πηγών’, in K. Aroni-Tsichli and L. Tricha (eds.), Ο Χαρίλαος Τρικούπης και η εποχή του: Πολιτικές επιδιώξεις και κοινωνικές συνθήκες (Αthens: Papazisis, 2000), pp. 175–200. ‘Υπόμνημα του Α. Κουμουνδούρου προς το Γεώργιο – 25 Φεβρουαρίου 1874’ [Memorandum of A. Koumoundourou to King Georgios – 25 February 1874], in Gerozisis et al., Κείμενα, pp. 461–63. Kostis characterised this crisis as a crisis of ‘adjustment’: Kostis, Τα ‘κακομαθημένα’, pp. 362–64. ‘Τις πταίει’, Καιροί, 29 June 1874, and ‘Παρελθόν και ενεστώς’, Καιροί, 9 July 1874, both in Gerozisis et al., Κείμενα, pp. 466–71 and 471–79, respectively.

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Greek Revolution (and was also the author of a well-respected history of the Revolution). After spending his early childhood in England, Charilaos went back to Greece where he came to hold important diplomatic posts (leading the Greek negotiating team that hammered out the terms for the accession of the Ionian islands to Greece in 1864) before being elected to the Greek parliament as a follower of Alexander Koumoundouros. Although he was an upcoming politician who would leave his mark on Greek politics, his ascent was not spectacular until around 1874–1875. In fact, although in 1866 he had become foreign minister, he was thereafter sidelined by Koumoundouros and, after some disagreements with him, Trikoupis took the decision in 1872 to found his own party. Thus, one could argue that before the escalation of the crisis in 1874–1875, Trikoupis was something of an outsider where high politics were concerned. This being the case, he intervened in the debate on the political situation and the stagnation of the country by cutting straight to the chase: ‘Who was to blame?’ he asked. Was it the nation, its representatives, the constitution or something else? In responding to this question, Trikoupis argued that the administrations formed since 1868 represented only a minority of the people, lacked parliamentary confidence and owed their power to an erroneous interpretation of the constitution, and especially to the uncontrolled use of the prerogative power of the monarchy. For Trikoupis, it was royal practice that had been violating the constitutional arrangement of 1864. In other words, the answer to his question was a straightforward one: the only agency responsible for this situation was the monarchy because of the way in which it was usurping its power. But Trikoupis went a step further. By drawing on the revolutionary tradition, which had been inscribed on the constitution itself – when, in one of its final clauses, it called upon the Greek people to safeguard its i­mplementation – he voiced a radical dilemma: that between ‘the submission to arbitrariness and revolution’. Trikoupis was thrown into prison and the newspaper was confiscated. The public prosecutor argued that although the offending article spoke of the monarchy, it incited public hatred and contempt for the king. The judicial council, however, ruled that there had been no such violation.96 Its line of argument was striking. The ordinary meaning of Trikoupis’ language, the judges and members of the council said in their memorandum, was irrelevant; what counted was the legal meaning. In his arguments Trikoupis 96

For the judicial dictum on the case of Trikoupis, see Gerozisis et al., Κείμενα, pp. 479–86.

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had targeted the ‘monarchy’. Based on the distinction between the person of the king and the institution of the monarchy and citing William Blackstone and his maxim that the king can do no wrong, the judges argued that it was ‘too strained’ an interpretation to identify the monarchy with the king! In that sense, ‘­monarchy’ meant ‘the ministers’, who, according to the constitution of 1864, were the sole bearers of political responsibility. Just like Trikoupis himself, who had called to mind the Revolution of 1862 and the Constituent Assembly, the judges reached their verdict by invoking and interpreting the constitutional tradition. A further escalation occurred in March 1875, when the Voulgaris administration proceeded to enact what was perceived as a constitutional coup by attempting to undermine constitutional practice and redefine the parliamentary quorum. This created a chain reaction on the part of a range of oppositional forces that included political parties, newspapers of various inclinations (some of which had actually been founded because of the crises), political clubs and associations and also the university. In fact, the involvement of the Law School in the debates was crucial and took the form of a memorandum in which the law professors offered legal authority to the claims of the opposition that the steps taken by the government had been unconstitutional. When the government ignored the memorandum, it was leaked to the press, thereby further inflaming the public outcry against the government and the king. It is important to note here that Saripolos did not agree with the memorandum and held to his contention that the king should be free to select whatever cabinet he chose – an insistence that cost him his post at the university due to public pressures. In light of all these events, an extraordinary move followed when twenty newspapers published on their front page the names of the deputies who had supported the attempted coup, adding a sort of proclamation that called upon the Greek people to take action in the name of the constitution. After declining the advice of his entourage, to the effect that he suspend the constitution and thus resort to a veritable coup, the king took the remarkable decision to appoint Trikoupis as prime minister, with a mandate to lead the country into elections. What is more, in his ensuing royal address in the parliament after the elections (which gave the parties led by Koumoundouros and Trikoupis a significant share of the vote), the king accepted that henceforth he would appoint as prime minister only someone who enjoyed ‘parliament’s proclaimed confidence’, or, in other words, the parliamentary majority – the key claim of the opposition and of Trikoupis personally. The requirement for dual confidence was thus dropped and, for the first time, the vision of the delegates in 1862–1864 for

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a parliamentary system of government was consolidated, at least in principle. This was a landmark in the development of Greek constitutionalism, which led to the formation of a bipartisan political system and to a higher rationalisation of parliamentary life. As Nikos Alivizatos has argued, this combination of one chamber elected by universal suffrage with the principle of the ‘parliament’s proclaimed confidence’ for the appointment of the prime minister was rather exceptional in Europe at that time.97 But how can we explain it? How can we make sense especially of this last move by the king? Historians have generally put the emphasis upon the king’s political instincts and his determination to learn from the mistakes of his predecessor and rule within the powers granted to him by the constitution. The fact that George did not bring with him a large entourage of foreign administrators, that he married an Orthodox, albeit Russian, bride and that he made clear that his children (and heirs to the throne) would be Orthodox has been used as proof of his determination to be modest and to abide by the constitution.98 In general the developments during 1874–1875 have been portrayed as further steps towards the triumph of Western values. But, to judge by what this book in general has sought to show, this developmentalism is too limited an interpretation, not least because it does not explain the king’s role in the constitutional crises that preceded his change of heart and were to a large extent of his own making. To understand why he took those decisive steps in 1875, we should begin by reassessing the governmental crises, and take due note of the fact that only five out of the twenty-two of them were due to lack of parliamentary confidence. In fact, the bulk of the crises may be attributed to discord between the king and the administration.99 Indeed, as both contemporary commentators and later scholars have argued, even though the parliamentary majority clause was not written into the constitution, it had become an informal practice. On the surface, then, the problem was only conjunctural: it had to do with the ways in which, on at least three occasions since 1870, this constitutional practice was breached by minority governments with the support, if not at the instigation, of the king. In other words, at this specific conjuncture the king was unsettling constitutional practice by using (and interpreting) his prerogative power in an expansive way. Realising that these initiatives were ultimately not effective, he decided to change course. Although this seems like a plausible answer, it does not 97 98 99

Alivizatos, ‘Οι κύκλοι’, p. 169. Gallant, The Edinburgh history of the Greeks, p. 147. Alivizatos, ‘Οι κύκλοι’, pp. 165–69.

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explain the invitation to Trikoupis to become prime minister. Why him and not one of the more experienced politicians of the leading parties who also enjoyed the popular vote, for example Alexandros Koumoundouros? In fact, the king’s decision had more to do with how he perceived the problem of government and with the fact that he agreed with Trikoupis on two key points. The first was the realisation that executive power was impaired. The second was the judgement that one of the key reasons for this impairment was the persistence of local networks of power that compromised the implementation of executive orders at the local level. Both Trikoupis and the king, in other words, placed a lot of the blame for Greece’s problems at the door of the factionalism that plagued Greek politics. That said, they disagreed on many other issues, the most important being the role of the palace in this factionalism (which Trikoupis saw as large) and the place of royal power in the constitutional structure. It was in particular over the latter that the lines were more sharply drawn. For whereas the king understood his prerogative executive power to be unchecked, Trikoupis, by drawing on the liberal constitutional tradition of 1862–1864, alleged that discretionary power in a single institution, be it the king or the parliament, was incompatible with a modern constitutional polity and individual freedom. The problem was that, in acting upon his prerogative power in this fashion, the king was concentrating power; indeed, Trikoupis’ texts insist on this theme. But what is important to note is that for Trikoupis this was not only an issue of constitutional principle, it was also a matter of efficiency. As he saw it, to be ruled by a power that is not representative and that concentrates power is detrimental to an efficient modern governmental system, and will lead to deadlock and instability – as indeed it did in the case of Greece from 1864 onwards. That is not to say that he was against royal power and the king’s discretionary powers as such. In fact, he believed – as was borne out by his actions when prime minister during the 1880s to early 1890s – that the key to effective government was a strong royal power, a king in parliament, who would act with the parliament (and through ministers accountable to it) in support of government action. That is to say that although Trikoupis believed in the contestation in politics that the framers had established in 1864, he shared Saripolos’ and other liberals’ conviction that too much contestation would undermine governmental power. That is also why he favoured a British-style two-party system. What was in it then for the king? By accepting the constitutional points made by the opposition, the king managed to shift the debate (and the main political cleavage) from being one over constitutional principle to

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one over effective governance. And by appointing Trikoupis to the premiership, he sought (or made his intention explicit at least) to bypass the old political class and work with a politician who was decidedly vocal in his denunciations of the local networks of power and in his advocacy of sweeping reforms. In fact, things worked out for both of them as the ramifications of the new configuration were far-reaching. From 1875 onwards and especially after 1880 when Trikoupis’ party (the ‘Modern’ party as it came to be called) took power, a number of reforms (on elections, on taxes, on land ownership, on education, to name but a few) were put into effect – all of which signalled a more interventionist state (but necessarily a centralising one). In addition, the previous political system, where each member of parliament was effectively accountable only to his local power base and negotiated his parliamentary allegiance as he saw fit, came gradually to be dissolved. With the new system, where a faction had to have 50 per cent of the seats plus one in order to form a government and where the need for reforms had become a rallying cry across the political spectrum, elected deputies were forced to come together within the framework of parties. As a result new cleavages appeared, based on broad differences regarding economic development and liberalism, and in fact in the 1880s many aspects of Trikoupis’ vision for a two-party political system came to fruition. The one group (dominated by Trikoupis) drew intellectual inspiration from the ‘liberalism of the subject’ (for the distinction see Chapter 5) and tended to support economic growth through industrialisation and government intervention in both social and economic spheres. The other group tended to subordinate the individual to the community and was more conservative in its economic orientation, privileging small ownership and agrarian capitalism. For all their differences, the two groups led the kingdom in the course of almost twenty years of relative stability (in fact during the last twenty-five years of the nineteenth century there were only seven general elections). Nevertheless, tensions between crown and parliament would return with a vengeance in the twentieth century and would preoccupy Greek political thought and practice until the abolition of the monarchy in 1974.

Conclusion This chapter has sought to direct attention to the constitutional crisis of the long 1860s. It has argued that the crisis should be treated as one of those context-breaking moments when what was earlier taken for granted in the perception and practice of basic political concepts was transformed.

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This moment was precipitated by the severe economic crisis of the 1850s, which paved the way for a challenge to the existing system of government. It was further argued that if we seek to understand this political transformation, we need by the same token to understand the political claims and the language used by the various protagonists. The jurists played a major role in the development of this language. The political claims of the revolutionaries were very much informed by legal and political ideas that were already circulating and debated and that the previous chapters have mapped out. As we saw in our earlier treatment of these questions, the legal theorists, having called initially for legal and administrative reforms and the consolidation of the rule of law, turned gradually to aiming criticisms at the political system itself, and more specifically at the king and the way he was using his prerogative powers. In the critical juncture of the early 1860s, these ideas were radicalised and deployed against the monarchical system of government. These claims were not confined to levelling charges against the person of the king, but included claims that located sovereign power in the nation. Contrary to the conventional point of view, these moves were not written on the wall. In fact, as the chapter has shown, it was the intimate relationship between the circumstances of social and political life in the 1850s and early 1860s and the prevailing political ideas that turned discontent into a revolution and endowed the latter with its peculiar strength, rendering it a profoundly transformative event. From the very first documents published by the revolutionary Provisional Government, it became clear that the aim was to reconceptualise the basis of political legitimacy and recast the very structure of politics. Ultimately, the Second National Assembly was endowed with the authority to give institutional form to these claims. Its task was not to destroy the existing political order or the power of the monarchy as an institution, but rather to place the polity on a new constitutional footing, limit monarchical power and rethink the source of legitimacy. By so doing, it transformed the idea of the constitution from a contract between the nation and the king into a contract among members of the same national political community. Power was delegated to the king, but he was now an integral part of the nation. How could the proceedings within the Assembly and their outcomes be summarised? Firstly, from very early on it was established that the nation, acting as sovereign through its representatives, was to be the author of the constitution. Next, although the form of constitutional monarchy was retained, the constitution as finally promulgated in 1864 transferred power to the nation, or, in the eyes of the delegates, put on a sounder

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constitutional footing the principle that power emanates from the nation. Accordingly, the king was denied outright any role in the constituent and revision process of the constitution. But although it was explicitly assumed that the nation was the absolute sovereign, the delegates recognised that this was not a sufficient condition to ensure that individual rights would be protected and that the power of the nation would not be usurped. They thus attempted to devise a system in which powers would be distinguished, mixed and therefore balanced. There was to be one parliamentary chamber, directly elected upon the basis of universal male suffrage. At the same time, the king was granted extensive authority as possessor of executive power and equal partner in the exercise of legislative power. A mistrust of executive power meant that the king found his power weakened and his legislative competences curtailed. Essentially, the delegates constituted competing law-making powers that all drew their authority from the nation. The role of the jurists during this constitutional crisis and especially in the National Assembly was crucial.100 Drawing on a number of sources, among which Benjamin Constant was the most prominent, they combined moderate liberal language with more radical claims. Some, like Pavlos Kalligas, Diomidis Kyriakos and Emmanouil Kokkinos, focused on the language of rights and the inculcation of manners, and envisioned a political system and a state that would be based on the rule of law and governed by the ‘best’. In addition, most of them agreed about the limitation of suffrage, although without questioning the principle that sovereignty stemmed from the nation. Nikolaos Saripolos was the most eclectic and probably the most radical in his views. His radicalism derived from his dissociation of sovereignty from ruling, which he saw as a way of preventing any ruling authority from usurping the power of the nation. Fear of usurpation was indeed at the heart of his thinking about politics, and he tried to mitigate the effects of usurpation by inserting into the political system multiple authorities with competing claims to speak in the name of the nation. Accordingly, this search for more contestation in politics led him to argue that the revision of the constitution should be much more regular, that even the constitutional framework itself should at times change. But this also precluded a different conception of the state, because his was a liberalism that required a state that was not only the protector of right 100

It deserves to be noted here that the discussions within the Assembly were at times astonishing in their use of intellectual authorities from several and diverse sources when supporting an argument.

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and the rule of law, but also a promoter of welfare and of contestation in politics. It was a state where rights would act both as guarantees against the political authority and as ways to enhance participation and promote progress, not just through voting but also through the establishment of intermediary bodies. Placed within the European landscape, in the shape it had assumed after the revolutions of 1848, one could argue that the Greek jurists maintained a rather original position. At one level they were certainly conversant with moderate liberalism as this latter had been developed by liberals such as the Doctrinaires, which even after its political failure informed by and large the thought of the moderates. But at another level they held more radical views, as they insisted on a language of rights, national sovereignty and a more inclusive and widespread political participation (see also the Conclusion). What this all meant in the Greek context was that although in practice this political transformation did not constitute a sudden or radical break with the past, the Constituent Assembly created a new national system of power and reconfigured the structure of politics. At the same time, the new political configuration was not without ambiguities, since the potential for conflicting jurisdictions had not been eliminated. It left many issues open, in particular the relationship between the executive power of the crown and the legislative power of the parliament. This ambiguity, which was established in 1864, was partially dealt with in the subsequent constitutional crisis of 1874–1875.

Conclusion

Placing Greek Liberalism within a Europe-Wide Perspective

By focusing on the political thought of the most important Greek legal scholars of the nineteenth century, this book has attempted to illustrate the ideological breadth, creativity and potency of nineteenth-century Greek liberalism. It has put the emphasis on a wealth of different sources produced by the jurists – books, articles, pamphlets, public utterances, as well as their contributions to parliamentary proceedings – aiming thereby to recover the authentic voices of the intellectuals and to make sense of their discourse in the precise political and ideological contexts of the time. Contextualising the thought of the Greek jurists was crucial in order not to distort their voices and to erect some barriers against teleological readings of nineteenth-century political developments. In addition, the continuing allegiance of many liberal jurists to ideas of internationalism and their engagement with a wide and varied literature on law, history and politics show that to regard liberals and other intellectuals of the nineteenth century exclusively through the prism of the nation-state is to miss out a great many of the constitutive features of nineteenth-century political ideologies. What the case of the jurists thus indicates is that the alleged preponderance of nationalism in the political thought of Greek liberals should be qualified. In addition, the book has focused on the ways in which these scholars put their ideas into practice and more generally on how ideas about law and politics resonated with the political context of the time. The result of this association of political theory with the high political context of the period was to show that a significant transformation of thought took place during these years that largely informed a new way of doing politics. In this way, the book has asserted that jurisprudence provided the intellectual foundations upon which an important part of the edifice of the political transformations of the 1860s and 1870s was built. In other words, it has argued that state-building was as much an intellectual process as it was an institutional one. What is more, it has shown that this intellectual 244

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process was rather diverse, and that this diversity was a product of the firm conviction among the jurists that culture was advanced by interaction and dialogue rather than by isolation and exclusion. This was manifested first and foremost in one of the most striking features of the political thought of the jurists: the eclectic and extremely wide selection – in range and in time – of the intellectual sources that shaped their thought. Although Enlightenment thought loomed large in the writings of the jurists, it was ultimately the ideas of thinkers of the Restoration that were at the heart of their thought. Thus, behind Pavlos Kalligas lay not just Savigny, Windsheid and a number of German Rechtsstaat thinkers, but also Guizot, Montesquieu and an interest in ‘industrial’ virtues. Ioannis Soutsos was not merely a disciple of Say and an adherent of ‘industrialism’, but also one of the latter’s critics, drawing for this purpose on Sismondi, while he was alert to the claims of socialists and other radicals from across the Channel. Nikolaos Saripolos was probably the most complex of all, in that he drew from a rich array of eighteenth- and nineteenth-century French thinkers before turning to Benjamin Constant, but even then with an eclectic eye. And it has further to be noted that the Greek jurists were respectful of their ideological counterparts without being deferential. Indeed, their esteem did not preclude criticism, which at times could go so far as the complete rejection of certain aspects of the thought of their interlocutors. But in overall terms they strove to have a fruitful conversation with other thinkers without losing their intellectual autonomy. In short, while this was a period rich in ideas, it was also rich in the institutional mechanisms through which these ideas could be acquired and maintained. Among the key public means with which these ideas were communicated to a wider audience were the university, which brought the work of legal scholars into contact with students and a rising reading public; the emerging professional and legal networks, which created and sustained close political links among themselves; and intellectual associations such as learned societies, journals and newspapers. One of the contentions of this book has been that Greek legal thought and Greek liberalism were not backward, underdeveloped or derivative of some sort of core liberalism (which in any case did not exist as such). On the contrary, Greek liberals read and used past and contemporary thinkers in an original way and for their own purposes, trying to fit ideas and concepts into the context and needs of Greek politics. The book thus has also shown that the conventional distinction between a rationalist, progressive, optimistic liberal nationalism of the era preceding the creation of the Greek state, and a conservative, nationalistic, Romantic anti-liberalism as

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the dominant force in post-independence Greek political thought, as most accounts of the nineteenth century present it, is misleading. That said, it would be equally simplistic to treat Greek jurisprudence or Greek liberal thought more generally as homogeneous. Within the same generation of jurists, as we saw, there were tensions, ideological differences and all in all an open-endedness. And this diversity was a source of strength, making liberalism a versatile force in nineteenth-century Greek politics. At the same time Greek liberals did hold to a range of central and common ideological concepts and values. What then were the points of convergence and divergence among Greek liberals? And to what extent were the discussions and distinctions in Greek legal thought analogous to those that characterised other cases across Europe? Answering these questions has helped to determine the place of Greek liberalism within the European liberal landscape of the nineteenth century and the ways in which the Greek case can contribute to our understanding of nineteenthcentury liberalism. In what follows, an attempt is made to sum up the answers that have been given throughout the book. To begin with, Greek liberals equated progress with European civilisation and adhered to the shared belief among European liberals in its superiority and its right to rule over ‘underdeveloped’ or ‘uncivilised’ peoples. This was, nevertheless, also a source of anxiety, given that Greece was not considered a full member of the community of ‘civilised’ nations. That is why they put a strong emphasis on gradual progress and on reforms and institutions as the devices that would facilitate moral improvement and the incorporation of Greece into the ‘civilised European family’. Law was extremely important in this respect, because it was seen as the science of free nations and the transition mechanism by which to attain the standard of civilisation and enter modernity. At the same time, Greek liberals were probably more attentive to the revolutionary tradition than were many of their counterparts, especially in France. If French liberals wished to preserve the principles of 1789, for the Greeks the very origins of their liberty lay in the Greek Revolution. Two important political innovations had been introduced by the Revolution that the liberals never questioned: the nation as a collective actor and the state as the central authority that would define, elaborate and enhance the national interest. What all these meant was that firstly, in what seemed to be a widely held feature of liberalism on the Continent, Greek liberalism was sensitive to social and historical conditions, emphasising therefore the social situatedness of human beings and the importance of socialising processes. Secondly and more importantly, it meant that from the beginning Greek

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liberal thinking about politics, society and the individual was coupled with thinking about institutions and in particular about the state. In other words, for Greek liberals, individual rights such as liberty, property and security originated in law and political institutions, not against them. Discussions about the state therefore held centre stage. Thus, the key question the Greek liberals had to answer was very similar to that which French liberals had had to face in the Restoration: how to reconcile the emancipation of society and the individual with the legitimacy of the state. It was in answering this question that the major divergences among Greek liberals occurred. To be sure, the monarchy and a mixed system of government were considered by all as the best form of government, one that would bring social peace and order. In addition, the jurists were broadly united in their staunch advocacy of the rule of law and in their dismissal of arbitrariness. They also advocated liberal institutions that would delineate spheres of public and private life upon which the state could not encroach – for example, the press and private property. These were important means for the release of the talents and capacities of members of society and their self-realisation. But their thinking about institutions and the reforms they held to be central also entailed divergent understandings of the sources of political power, the role of the monarchy and the relationship between the state and the individual. As already mentioned in Chapter 4, in his study of nineteenth-­century French liberalism Lucien Jaume has proposed a typology of three liberal currents. The first and dominant variant was an elitist or aristocratic form of liberalism that favoured the state (expressed especially by the Doctrinaires); the second was the constitutionalist and individualist variant advocated by liberals such as Madame de Staël, Benjamin Constant and Alexis de Toqueville; and the third was liberal Catholicism.1 The first two are relevant here and to a certain extent Greek liberalism seems to confirm the distinction between an elitist and a more constitutionalist variant. Nevertheless, due to the different political context, the ways in which the two principal liberal currents were articulated and played out in the Greek context and the lines of demarcation between them were to a significant extent different. The first and elitist current was the one defended mainly by the civil lawyers (or the Romanists), prominent among whom were jurists such as Pavlos Kalligas, Emmanouil Kokkinos and also Georgios Rallis and Diomidis Kyriakos, commercial and constitutional law scholars, 1

Jaume, L’individu effacé; Jaume, ‘The unity, diversity and paradoxes’.

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respectively. As we saw, this group, which was highly influential politically, drew on the German Historical School of jurisprudence, the Doctrinaires and the Idéologues. As in the case of their French, German and Italian counterparts, these jurists sought to consolidate an administrative state while liberalising its institutions. Indeed, their ‘law-based state’ (Rechsstaat) had two principal traits. In the first place, it was an administrative mechanism that would enforce contracts, punish fraud, maintain order and safeguard peaceful economic activity. In the second place and more importantly for these scholars, and especially for the civil lawyers, the state represented the nation. It was, as Kalligas understood it, the protector and guarantor of the ‘general will [or interest]’. As such, it stood up to local and private interests that the Greek jurists associated with the old local elites. The political vision that the Romanists thus projected was very close to François Guizot’s spirit of ‘generality’. As Pierre Rosanvallon and Lucien Jaume have argued, this ‘culture of generality’ entailed a praise of political unity and centralisation and a rejection of federalism and of intermediary bodies, and in particular of political parties.2 Most of the Romanists embraced these features completely (with the exception of Kyriakos who, being a sort of Idéologue, had more reservations regarding the state). Pavlos Kalligas in particular dismissed political parties as factions that jeopardised national unity, calling upon his fellow citizens to see to their own advancement by developing private virtues such as frugality and industriousness. In addition, he defended the freedom of the press not as a means of controlling power, but as a channel of communication between the state and society that would enhance good government. In other words, this brand of liberalism was based on the belief that the state should limit itself without giving in to particular interests, or facilitating in any way their political articulation. Yet three notes of caution should be sounded here. First, as evidenced by their legislative efforts where they sought to take into account popular customs and habits, the Romanists were not as distrustful of the masses as were many other European liberals of the elitist variety. Second, compared to their German and French interlocutors, these liberals and particularly Kalligas placed a much greater emphasis upon individual rights and especially private property as a prerequisite of liberty. This entailed, in other words, a ‘negative’ idea of freedom – the absence of external interference – and an emphasis on a legal framework that was based on what belonged to each individual, on their rights and personal advancement. Compared 2

Rosanvallon, The demands of liberty, pp. 127–46; Jaume, ‘The unity, diversity and paradoxes’, p. 37.

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thus to the French elitist current, the individual was not ‘erased’ from the Greek version. Third, in the Greek context the Romanists’ thought and political action had a strong anti-despotic overtone, since their vision of the state ran counter to the one implemented by the Bavarians, which was based on the Polizeistaat. The same went for Romanists’ advocacy of a society of property owners, because it entailed a criticism of the monarchical policies regarding the issue of the national lands. That is not to say that the Romanists were in any way radical liberals. It means, however, that, no doubt much like the German Rechtsstaat thinkers of the 1840s and 1850s, they stood to the left of the Doctrinaires. That said, it needs to be stressed that they saw the state as a protector and guarantor of individual rights and the national interest within a commercial society, but not as a promoter of welfare. Being preoccupied with private and commercial reforms, the Romanists were rarely concerned with comprehensive constitutional reforms. When it came to discussions about society and the public good, they were either abstract in their approach or focused on normative ideals of a virtuous private life. This became clear even during the period of the Constituent Assembly of 1862–1864, when they opposed efforts to expand political participation and representation and fell back to advocating very narrow property qualifications in suffrage. Ultimately, they never put into question the sources of political legitimacy of the monarchical state, nor did they seek to place checks on political power apart from those imposed on it by the rule of law. Gradually, however, a constitutionalist liberal variant was formed that did question the sources of political power and of the monarchical state. It was scholars such Ioannis Soutsos and especially Nikolaos Saripolos who introduced a different perception of what the state and the public institutions are, what they should do and what their relationship with the individual should be. Lucien Jaume has argued that the analogous current in France wanted a constitutional order that would curtail the state’s power over society by favouring decentralisation and the rights of the individual.3 The last two and especially the emphasis on individual rights, such as liberty, property and security, were concerns the Greek constitutionalists did indeed share with their French counterparts. For example, both (and especially Soutsos) considered private property a major prerequisite of sound economic development and a condition for liberty. And more generally, they developed a more positive understanding of freedom – the ability of the agent to act. But for the Greeks, the state still held centre stage. 3

Jaume, ‘The unity, diversity and paradoxes’, p. 38.

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The  reason for this state-centred perspective of Greek constitutionalism was of course the economic, political, social and even existential problems that Greece was facing from the 1840s onwards. It was especially Saripolos who, through his constitutional legal thought and public contributions, articulated most consistently this constitutional liberal current. Apart from individual rights, which he located in natural law, three important themes ran through his political thought: the first was that power stemmed from the nation (national sovereignty), the second was how to prevent the usurpation of this power and the third was his conception of the state as a moral being. All these rendered his liberalism a more radical language of statehood compared to that of the Romanists, as did his turn to international law, where he addressed directly the curtailed sovereignty that the Great Powers had imposed on Greece. In essence, Saripolos’ political thought testifies to the ways in which constitutionalism in post-­ Napoleonic Europe attempted to strike a balance between monarchy and representative ­government. As was the case for most constitutionalists, the French prominent among them, his central concern was to give political expression to popular or national sovereignty, at the same time eliminating the chances of this sovereign power being usurped. Saripolos’ response to these concerns was threefold. First of all, by distinguishing between sovereignty and rule, he proposed (and partly devised) a complex political system in which powers were not separated but mixed and checking or curbing each other. There was nothing revolutionary or republican in that. As a radical moderate – probably the best definition for Saripolos but also for Soutsos – he tried to square the circle, so to speak, by seeing the monarchy and any other form of political institution (parliament, senate, civil associations) as having competing claims to represent the nation. In short, for Saripolos the way out of the problem of usurpation was to instil a greater measure of contestation into political power. His second response, which was very much influenced by Constant, was his advocacy of legitimate resistance to unjust laws, especially when individual rights were violated and national sovereignty was usurped. The third response, which he shared with Soutsos, was that in order to avoid such situations, it was important to enrich public life through the development of the institutions of civil society and the articulation of different opinions. In other words, the Greek scholars were not naïve about individual autonomy or the ‘naturalness’ of the individual, but understood that individuals depend on collective institutions. So they did not narrow down liberty to non-­interference or to private advancement, but enriched it by incorporating virtues that were collective, public oriented or communitarian. In their emphasis on the importance of

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political participation, public action and the impact that a robust political life would have on the habits of the nation, the Greek scholars were again largely influenced by the French constitutionalists. At the same time, they departed significantly from their French interlocutors (mainly Constant, the Doctrinaires and Tocqueville) by being more attentive to the revolutionary tradition. This was evident in the first place in the ways in which they sought to expand political participation. The Greek scholars had come to the conclusion that it was only by virtue of political institutions that individuals perceive themselves to be citizens endowed with rights that can be claimed and ought to be respected. They thus argued that public institutions were political agents and sources of initiative in their own right, rather than mere arrangements that complemented the exercise of political power. The state should thus have an enhanced role, they believed, in promoting individual freedoms and ensuring the welfare of citizens. In the second place, although they sought to give expression to and institutionalise different opinions and partial interests, when it came to political representation they were ardent supporters of national representation. And even though they supported censitary suffrage, they saw it as a temporary measure – indeed, Saripolos went even further, advocating the gradual inclusion of women in the electoral body. Thus, if for Constant the body politic was formed by partial and sectional interests, for both Saripolos and Soutsos it was formed by the nation, the interests of which stood in a higher but harmonious relationship with its component parts. What was probably more important and radical in the short run was that, as Saripolos in particular argued, the king was deemed to be a part of the nation. Accordingly, royal power was part of the sovereign power of the nation, not external to it or neutral, as Constant had argued. In that sense, the Greek constitutionalists stood probably to the left of their French counterparts. This became evident in the ways in which these liberal formulations turned increasingly against the monarchical authorities and the king and the logic that underpinned his power. What all this led to, as the book has demonstrated, was a transformation in ideas about government, which were gradually diffused throughout the public sphere and informed the emergence of opposition against King Otto. Several reforms from the 1840s onwards were affected by and large by the proposals and views of the jurists. Increasingly, towards the end of the 1850s it was the more radical ideas of Saripolos that were gaining ground. Chapter 6 showed the extent to which the transformation of thought that the liberals instigated was related to the ‘long’ revolution of the 1860s, with which a new system of power was established.

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Last but not least, this book has asserted that the liberal synthesis that was devised in the 1860s and consolidated in the 1870s left an enduring legacy in Greek political culture. Firstly, the underlying and putative tension between the two political authorities to which the power of the nation was delegated – the parliament and the crown – characterised Greek political life up until 1974, when the monarchy was finally abolished. In fact, one could go even further and argue that this legacy had a longer life reaching well into the twenty-first century. How can we explain for example the almost unchecked power of the executive in the Greek political system after the 1970s, if not as the outcome of the sudden collapse of the tension described here, and the move towards a system that concentrated authority in the parliament? A second legacy is related to the way in which this tension fed into the dividing lines between liberals and royalists from the midnineteenth century to the 1970s. Indeed, during this period the majority of liberals did not oppose the monarchy as such, nor did they object to regal pomp or lineal descent, even if they held to a suspicion of executive power. Their objection was not to the king, but to his discretionary power, a power that they deemed to be incompatible with their egalitarian vision of national sovereignty and the freedom of citizens. The royalists to a great extent argued the opposite: that royal prerogatives were in fact necessary for the preservation of liberty, and that it was the erosion of monarchical power in the wake of parliamentarian authoritarianism that was to be feared. Many a royal battle in twentieth-century Greek history was actually presented as a battle to restore that balance. The third legacy is related to international affairs, as the liberal synthesis gave a number of tools to the coming generations with which to face and negotiate the compromised sovereignty of the Greek state. This was particularly significant after the 1880s, when international protection and tutelage gave way to less straightforward interventions that took the form of stricter and much more elaborate financial controls (from 1897 to today, Greece has gone through a number of credit bailouts, international financial monitoring and micromanagement from abroad). Fourthly, as far as liberalism itself is concerned, the two liberal approaches to freedom and the state themselves had a long life. Indeed, the distinction between freedom as a merely legal/formal quality and a more substantive version, close to the Kantian notion of autonomy, which was to be achieved through the public sphere and in particular through political action, has remained at the heart of Greek political thought until today. The latter version in particular, which developed into an agonistic view of politics and put the accent on social justice, in fact took on a new

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lease of life after 2008, when in light of the ‘Greek crisis’ people took to the streets, formed social and political movements and set up a myriad of local cultural and political initiatives. Last but not least, the liberal synthesis cemented the notion that (to emphasise it once more) ideas make a difference. They make a difference to individual thinkers, to the very actions of political actors and, much more importantly, to the founding moments of wider political communities. As we have seen, for many people examined in this book these founding moments came in the form of crises. At any rate, this is how they were experienced. And to a large extent these crises made people change the way they looked at the world by pushing them to examine their commitments, their value systems, indeed by making them ‘touch the boundaries of their worlds, and at certain points, probe their interiors’.4 To reduce such processes and the intense thinking that went with them to epiphenomena of socio-economic structures, or to being a reflection of social or individual interests, is to make nonsense of thousands of pages of theoretical formulations that these people wrote and that this book has explored. To put it simply, I do not think that we historians have got that right. 4

B. Bailyn, The ideological origins of the American Revolution (Cambridge, MA: Belknap Press, 1967), p. 161.

Bibliography

Primary Sources Archival Material Γενικά Αρχεία του Κράτους, Αθήνα [General State Archives, Athens]   Αρχεία Περιόδου Όθωνα [Archives of the period of King Otto]   Αρχείο Υπουργείου Εσωτερικών, Κεντρική Υπηρεσία, 1833–1862 [Archive of the Interior Ministry, Central Service, 1833–1862]   Κ-Πολιτική Δικαιοσύνη, a. Αστική Νομοθεσία, 1.1834–1836 [K-Civil Justice, a. Civil Legislation, 1.1834–1836] Εφημερίς της Κυβερνήσεως [Government Gazette] Η της Τρίτης Σεπτεμβρίου εν Αθήναις Εθνική Συνέλευσις: Πρακτικά, Βιβλιοθή­ κη της Βουλής των Ελλήνων [Proceedings of the First National Assembly in Athens, Library of the Hellenic Parliament] Επίσημη Εφημερίς της Συνελεύσεως, Βιβλιοθήκη της Βουλής των Ελλήνων, 6 vols, Athens 1863–1864 [Official Gazette of the National Assembly, Library of the Hellenic Parliament] Académie des Sciences Morales et Politiques of the Institut de France Foreign Office: 1863 House of Commons, Parliamentary Papers Online

Newspapers and Periodicals Published in Greek or in Greece

Αθηνά [Athens] Αιών [Century] Αναμόρφωσις [Reform] Ελπίς [Hope] Εποχή [Age] Ερανιστής [Gleaner] Ερμής ο Λόγιος [Hermes, the Savant] Ευρωπαϊκός Ερανιστής [European Gleaner] Εφημερίς Νομική [Legal Gazette] 254

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Ήλιος [Sun] Θέμις [Themis] Καιροί [Times] Καρτερία [Perseverance] Νέα Πανδώρα [Nea Pandora] Νομική Μέλισσα [Legal Bee] Νόμος [Law] Πανδώρα [Pandora] Spectateur de l’Orient

Other

Annales de législation et de jurisprudence Journal des économistes Le Moniteur Revue Foelix Revue Wolowski Revue de législation et de jurisprudence Revue de droit français et étranger Revue encyclopédique La Thémis Thémis ou bibliothèque du jurisconsulte

Published Sources In cases where I have failed to uncover the full name of the author, editor or publisher I have left it blank (or have left the initial in the first case). Treatises, Articles, Memoirs and Other Publications of the Jurists I have chosen to include in this section even those works of the jurists that were not referenced in the main body of the book (including books they translated). Since a reference text with the jurists’ works is lacking, I hope this will be a small contribution to the collection of sources for the history of nineteenth-century Greek legal and political thought and a motivation for further research. For this very reason, I have opted to structure the works of the jurists chronologically and not alphabetically, as I believe this to be a small way to show how their thinking and intellectual interests developed over time. I have excluded, however, the cases of Pavlos Kalligas and Nikolaos Saripolos, because their publications have been covered elsewhere: for Kalligas, see Masson-Vincourt, Παύλος Καλλιγάς, pp. 719–29; for Saripolos, see Kitromilides, Νικόλαος Ιωάννου Σαρίπολος, pp. 281–85 for his books and pamphlets, and pp. 287–375 for his contributions in the press.

256

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Other Translations

Beccaria, Cessare, Περί αμαρτημάτων, και ποινών, πολιτικώς θεωρουμένων. Σύγγραμμα Καίσαρος Βεκκαρίου, Μεταφρασθέν εκ της Ιταλικής γλώσσης, και διά σημειώσεων εξηγηθέν υπό Δ. Κοραή, Ιατρού, και μέλους της εν Παρισίοις Εταιρείας των Ανθρωποτηρητών [On crimes and punishment: Political essay

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Unknown Authors

Διδασκαλία εντελής συστηματική άπασης της εμπορικής επιστήμης [Essay on the science of commerce] (Jassy: Elliniko Typografeio, 1817). Βεριάτου Σαιμπρίξου σειρά πολιτικής δικονομίας: μετά προσθηκών και σημειώσεων αφορωσών την ερμηνείαν της Ελληνικής Πολιτικής Δικονομίας, μεταφρασθείσα εκ του γαλλικού υπό Παυσανίου Θ. Χοϊδά Εισαγγελέως Πρωτοδικών και Κωνσταντίνου Αφθονίδου [Civil procedure by Veriat Sebrix: with additions and notes related to Greek civil procedure, translated from the French by Pafsanias T. Choidas and Konstantinos Afthonidis] (Athens: Typ. Christou Anastasiou, 1845). Βίοι του Β. Φρανκλίνου και Α. Κοραή και η επιστήμη του καλού Ριχάρδου: Δια τους ελληνικούς παίδας, υπό Χ.Α. [Lives of V. Franklinou and A. Korai: For the Greek youth] (Ermoupoli: Typ. Georgiou Polymeri, 1839). Ιστορία του ρωμαϊκού δικαίου [History of Roman law] (Athens, 1855). Σύγκρισις του Ναπολεόντειου κώδικος προς τους ρωμαϊκούς νόμους, περιέχουσα τας αρχάς της ρωμαϊκής νομοθεσίας, τας σπουδαιότερας περί την ερμηνείαν των ρωμαϊκών νόμων ζητήματα και τας παρά την νομολογίαν παραδεδεγμένας θεωρίας των νομιστόρων, του Ονούφριου Τελώνη, μεταφρασθείσα υπό Β. Φλογαϊτη, μετά προσθήκης τον αριθμόν των σχετικών χωρίων των Πανδεκτών υπό τον Ι. Βοετείου [Comparison of the Napoleonic code with Roman law, including the principles of Roman legislation, the most important

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Index

Argyropoulos, Periklis, 20, 40, 256 Bavarian rule, 7, 25, 31–39 opposition to, 14–15, 69, 147–48, 202–14, 240–41 Bentham, Jeremy, 44, 154 Brigandage, 91–93, 223, See also national lands Burlamaqui, Jean-Jacques, 44 Byzantium Byzantine law, 30 Byzantine law and the civil code debate, 53–55 Cameralism, 21, 29, 33–39, 107, See also Polizeistaat Chrissiidis, Giorgos, 109–11, 113 Church of Greece, 5 Civil Code. See Law, Roman law debate in Greece, 45–57, 68–69 Constant, Benjamin, 4, 18, 23, 105, 140, 151, 164, 213, 242, 245, 247 and constitutional liberalism, 140–42 and Nikolaos Saripolos, 151, 158–61, 212–13, 220, 229, See also Saripolos, Nikolaos use in the Constituent Assembly of 1862–64, 227–32 Constituent Assembly of 1862-64, 23, 91, 195, 198–200 and the political system, 227–32 rights, liberties, and national sovereignty, 214–27 constitutionalism in Europe after the French Revolution, 138–42 constitutionalism, Greek, 132–38, 142–65 constitutional developments 1843–44, 63–68 constitutional developments 1862–1875, 194–243, See also Constituent Assembly of 1862–64 historiography of, 132–36 Council of State, 2, 20, 63, 65, 97, 147 crisis of 1874–75, 232–40 De Lolme, Jean-Louis, 156, 161 de Staël, Germaine, 247

Deligiorgis, Epaminondas, 234 Doctrinaires, 4, 21, 23, 136, 140, 151–53, 164, 243, 247–49, See also Guizot, François economic thought after Adam Smith, 103–108 and republican virtues. See republicanism and the Economistes, 122–23 and the theory of ‘public economy’, 106–108, 114–17 economic thought, modern Greek, 22 and Ioannis Soutsos. See Soutsos, Ioannis and republicanism, 99–117 before the establishment of the Greek state, 108–114 historiography of, 97–99 Economidis, Vasileios, 256 Enlightenment and liberalism, 18, See also liberalism enlightened reforms and absolutism, 20–21, 33–39 Enlightenment, Modern Greek, 39–42 historiography of, 6–8, 18–19 Feder, Gottfried, 256 Frearitis, Konstantinos, 256 Georgios I, King, 7, 232–43 Great Powers guarantor powers of Greek independence, 1, 6–7, 25, 166–68, 172–76 Greece, modern historiography of, 6–11 period of Bavarian rule. See Otto, King; Bavarian rule period of King Georgios I. See Georgios I, King sovereignty and international status of, 13–14, 166–69, 176–83, 205–206, See also international law, protection and the Greek state

297

298

Index

Guizot, François, 63, 88, 105, 140, 141, 152, 245, 248, See also Doctrinaires and Greece, 63, 66 and Saripolos, Nikolaos, 158, 164 Herzog, Emile, 58, 59 Idéologues, 21, 103, 105, 248 international law in the 19th century, 166–72 protection and the Greek state, 176–93 view from the ‘periphery’, 172–76 jurists, 19–20, See individual scholars Kalligas, Pavlos, 2, 10, 55, 74, 257 and brigandage, 92–93 public interventions of, 60–63 role in the constitutional developments of 1862–64, 199, 216, 222, 223, 225, 226 Roman law scholarship, 55–57, 79–80, 87–93 views on property, 88–89, See also national lands Kanaris, Konstantinos blueprint for reforms, 208 Kapodistrias, Ioannis, 6, 7, 41, 43, 44, 112, 144, 173, 203 Klonaris, Christodoulos, 41–42, 46, 258 Kokkinos, Emmanouil, 20, 199, 216, 225, 242, 258 Kokkonis, Ioannis, 145, 146 Kolletis, Ioannis, 66, 115, 149 Kyriakou, Diomidis, 2, 179, 199, 216, 223, 258 constitutional views, 226 Laboulaye, Edouard, 77, 127 Law and empire, 11–14, 27–29, 72–73, 166–93 and jurisprudence in 19th Greece, 25–29 canon law, 5 civil law. See Romanist jurisprudence constitutional law. See Constitutionalism; Saripolos, Nikolaos international law. See international law; Saripolos, Nikolaos; Sovereignty, and modern statehood liberalism and Enlightenment. See Enlightenment and liberalism and nationalism, 18–19, 47–57, 67–69, 72–74 and property, 71–73, 84–95 and representation, 139–42 and republicanism, 17, See also republicanism and revolution, 3, 17–18, 136, 138–62, 246–53 and the state, 11–15, 18–19, 74–77 constitutional, 132–65, See also constitutionalism

historiography of, 2–3, 10–11, 15–17, 138–42 liberalism, Greek and property, 70–77, 84–95, See also national lands and the constitutional developments of 1862–64, 194–232, 240–43 constitutionalist liberal current of, 22–23, 96–165, 249–51 contractual or Romanist liberal current of, 20–22, 47–74, 77–95, 247–49, See also Rechsstaat, Romanist jurisprudence historiography of, 7–11 legacies of, 232–40, 252–53 overview, 11–24, 244–53 Maurocordatos, Georgios, 20, 259 Mavrokordatos, Alexandros Mavrokordatos incident, 63–64, 148 Mill, John Stuart, 127 monarchiens, 4, 18, 23, 136, 151, 158–60 Montesquieu, 4, 18, 40, 59, 112, 136, 140, 151, 154, 156, 159, 224, 227, 245 national lands, 22, 71–72, 84–95, 125, 129, 249 nationalism. See also liberalism, and nationalism Otto, King, 21, 63, 112, 113, 114, 150, 180, 202, 217, 251 opposition to. See Bavarian rule, opposition to Ottoman empire, 4, 5, 71, 111, 127, 174, 177, 180, 184, 191, 206 Paparrigopoulos, Konstantinos, 10 Paparrigopoulos, Petros, 2, 20, 21, 260 Pappadoukas, Nikolaos, 146 Pecchio, Giuseppe, 107, 108 Polizeistaat, 5, 14, 19–22, 31–39, 72 and Polizeiwissenschaft, 33–38, 147, 203 and Rechtsstaat, 61–63, 81–84, 249 and the theory of ‘public economy’, 100, 106–108, 114–17 Polyzoidis, Anastasios, 47, 109, 111, 113 Pothier, Robert, 89 Rallis, Georgios, 2, 20, 21, 42, 44, 58, 80, 247, 261 Rechtsstaat, 22, 74–95, 126, 147–48, 152, 162, 203–204, 245, See also Polizeistaat and Rechtsstaat; Romanist jurisprudence regeneration, 38, 39, 49, 102, 133 Renieris, Markos, 2, 20, 74, 80, 262 legal scholarship of, 57–58 views on codification, 54–55 republicanism and Greek economic policies, 114–17

Index and ‘industrial’ virtues, 100–114 and Ioannis Soutsos, 117–31, See also Soutsos, Ioannis Revolt of 1843. See liberalism, Greek, constitutional developments 1843–44 Revolution of 1862, 15, 202–214, See also Constituent Assembly of 1862–64 Romagnosi, Giandomenico, 4, 107, 121 Romanist jurisprudence, 21–22, 29–31, 45–60, 70–95, 247–49, See also liberalism, Greek, contractual or Romanist liberal current Rossi, Pellegrino, 22, 100, 101, 106, 121, 123, 124, 158 Rousseau, Jean-Jacques, 23, 40, 82, 83, 106, 154, 156, 158, 221 Saint-Simonism, 22, 36, 103, 112–14, 121 in Greece, 114–17 Saripolos, Nikolaos, 2, 5, 17, 20, 204, 263, See also liberalism, Greek, constitutionalist liberal current of and his role in the Revolution of 1862, 15, 24, 199, 210–14 and the sovereignty of the Greek state, 17, 23, 151–52, 172–93, 205 constitutional theory of, 18, 132–38, 149–65 international theory of, 179–91 role in the constitutional developments of 1862–64, 15, 199, 209, 214–32

299

views of Revolutions, 209–10 Say, Jean-Baptiste, 4, 22, 98, 100 and political economy, 98–103, 104–106 in South-eastern Europe, 114 Sismondi, Simonde de, 4, 22, 100, 101, 104, 106, 121–23, 125, 130, 245 Soutsos, Ioannis, 2, 17, 20, 22, 23, 80, 96–103, 264, See also economic thought, modern Greek and ‘industrial’ political economy, 117–19 and the state, 126–29 economic thought of, 120–31 sovereignty and modern statehood, 11–15, 23, 48, 55, 69, 72–73, 84–93, 93–95, 136–93, 214–43 Thiers, Adolphe, 88 Toqueville, Alexis de, 247 Tracy, Destutt de, 40, 112 Trikoupis, Charilaos, 7, 191 and the crisis of 1874-75, 232–40 Troplong, Raymond, 88 University of Athens, 20, 36, 40, 58, 68, 96, 108, 116, 130, 135, 149, 183, 189, 206, 215 Vattel, Emmerich de, 42–45, 142, 161, 179, 185–86 Voulgaris, Dimitrios, 234, 235, 237