To Belong Or Not To Belong
139
these issues would basically have to be determined on an individual basis.
Consequently, for an historical encounter, it is necessary to reformulate and
widen the issue of statelessness. The following contribution will address the
issue of belonging, people’s legal and political status, citizenship and the
treatment of foreigners from a legal historical perspective. People not belonging to any community at all will be discussed if there were legal precursors to
the current status of stateless persons that mattered at the time.
2
Citizenship in Ancient Times
It seems to be a recurrent feature of Indo-European peoples that the extended
family is at the basis of their social and political organization: several families
forming tribes and tribes peoples (or nations). In most pre-modern societies,
law used to apply personally. The community, tribe or people a person belonged
to determined what law was to be applied to him. The origins of law are often
to be found in rules and institutions that were exceptions for relations between
people of an in-group to the ‘normal’ situation of self-help and the private right
of retaliation.11 In order to keep peace and order within a community, relations
between its members were regulated and conflicts among them were to be
settled by due procedures, often closely connected to the community’s religious practices. Therefore, law and legal procedures were strictly confined to
community members. This meant that foreigners were either outside the
scope of law or were to be tried pursuant to their own laws.
2.1
Greek Poleis
The ancient Greeks were the first to develop notions of citizenship. Their poleis
were communities of citizens with equal rights and duties.12 They were very
restrictive in recognizing an individual as a group member. Citizenship was
originally connected to kinship and to local cults, although this particularism
was countervailed by religiously sanctioned duties of hospitality towards
aliens.13 In ancient Athens, one could only become a citizen if both parents
11
12
13
Erik Jan Broers, Geschiedenis van het straf- en schadevergoedingsrecht. Een inleiding
(Antwerp 2012) 35-36.
Jochen Bleicken, Die athenische Demokratie (Paderborn-Munich-Vienna-Zurich 1995) 46,
180 and 341; Finer, n4 330-336.
David Bederman, International Law in Antiquity (Cambridge UP 2001) 88-89, 120; Coleman
Phillipson, The International Law and Custom of Ancient Greece and Rome vol. I (London
1911) 122-124 and 132-133.
tilburg law review 19 (2014) 136-152