Social Philosophy and Policy Foundation, Bowling Green, OH, USA
5.1 The Hellenistic Era: A New Political Context for Legal Thought
Between 338 and 323 B.C., the entire eastern Mediterranean region—including Greece, Egypt, and most of western Asia (the remains of the Persian Empire)—fell under Macedonian rule.1 Although the unity of this new empire did not survive the death of its creator, Alexander of Macedon, the various smaller empires into which it had been fragmented continued to dominate the region for centuries to come. This development signaled the end of the independent Greek polis (“city-state”); but since the emergent local empires now had Greek overlords, the new era also extended the influence of Greek language and culture, which soon became dominant throughout the area. Alexander’s conquests thus mark the end of one age (the Classical) and the beginning of another (the Hellenistic), a turning point conventionally dated from Alexander’s death in 323 B.C. The other end of the Hellenistic era is placed by some at the Roman conquest of Greece (146 B.C.), and by others much later, at the Roman conquest of Egypt and western Asia (a gradual process, somewhat arbitrarily fixed around 31–27 B.C.).
The new political conditions of the Hellenistic era naturally had an impact on philosophy in general and on legal philosophy in particular. Unfortunately, few philosophical works from the Hellenistic era have survived intact; as with the Presocratics, Cyrenaics, and Cynics, much of the philosophy of this period is consequently known only through later sources, mostly Roman, and separating the original ideas from their later elaborations (and perhaps distortions) is often difficult—particularly in the case of philosophy of law, where Roman authors might well be particularly prone to introduce, into their discussion of Greek sources, ideas derived from Rome’s own distinctive contributions to legal thought. Roman philosophical works also tend to be aimed at a wider, less technical audience than their Greek counterparts, and so to obscure some of the more precise theoretical details of the originals. In addition, Hellenistic philosophers generally proclaim their allegiance to some particular school or tradition, and it is not always clear whether an author is expressing the orthodox consensus of his entire movement or is in a given instance speaking only for himself. Accordingly, the role of guesswork in interpreting and reconstructing Hellenistic thought is inevitably greater than in studying Xenophon, Plato, or Aristotle.
While Hellenistic philosophy of law must be understood within the political context inaugurated by Alexander’s conquests, the connection should not be exaggerated. According to a still popular interpretation, for which one influential source is Zeller (1903), Hellenistic thought is above all a response to the new shift of power from polis to empire, a shift that leads, on the one hand, to a de-emphasis on political participation (only the imperial dynasties could hope for a share in governance now) in favor of a private, interior life and personal happiness, and on the other hand, to a weakening of local, parochial allegiances in favor of a cosmopolitan identification with the global community. In contrast to Socrates’ attachment to Athens, the Hellenistic era sees increased mobility of intellectuals, as scholars migrate to new centers of learning such as Alexandria. The boundaries of concern, formerly aligned with those of the polis, simultaneously contract inward to the individual and expand outward to the entire world. The accompanying sense of rootlessness and insecurity allegedly moves Hellenistic thinkers to reject abstract, technical philosophy in favor of pragmatic doctrines offering “self-help” paths to contentment and self-sufficiency. The Hellenistic era is accordingly seen in some respects as an era of intellectual decline. There is some truth to this interpretation, but it is more misleading than helpful, for three reasons.
First, the intellectual paths that Hellenistic philosophers followed were not merely an adaptation to social and environmental factors, but were also theoretically motivated; in many respects, Hellenistic theories can be seen as responding to and developing themes from within Classical philosophy.2 This is not to deny that pressures external to philosophy can and do routinely reinforce pressures internal to it; but one-sidedly psychologistic, sociological explanations of philosophical developments are no improvement over one-sidedly ahistorical, decontextualized ones.
Second, the notion of a radical transition from the age of independent city-states to the age of all-engulfing empires is overstated. As Gruen (1993, 341) points out, throughout much of the Classical era itself most Greek cities were already under the hegemony of some empire or other, be it the Athenian, the Spartan, or the Persian, while on the other hand, even during the Hellenistic period most cities still had a fair degree of autonomy. Mobility of intellectuals was nothing new; even in the Classical era, philosophers who kept to their native cities had been the exception, not the rule. Moreover, far from renouncing political participation, many Hellenistic philosophers exercised considerable influence on public policy through their role as advisors to kings and princes.
Third, the suggestion that Hellenistic philosophy is less abstract and technical than Classical philosophy is simply untenable. Some of the most complex and sophisticated developments in logic, ethics, and philosophy of language belong to this era; Chrysippus, for example, is easily the match of any Classical thinker in this respect.
While it is a gross distortion to say that the social philosophy of the Classical period had nothing to say about moral relationships beyond the boundaries of the polis,3 it is certainly true that society within the polis was the primary object of concern for Classical social philosophy. Hence, the Hellenistic era did see a definite shift in emphasis from one’s relationship to one’s fellow citizens to one’s relationship to humanity in general.
Much of Greek social philosophy turns on the differing senses of the concept of phusis (“nature”). This term, in Greek and in English, is ambiguous in (at least) three ways. On the one hand, nature can mean the way things tend to be if nothing is done about them; one might call this nature-as-default. On the other hand, a thing’s natural state can be seen as something that has to be achieved. (This distinction corresponds roughly to Annas’ distinction [1993, 142–58] between nature and mere nature.) But nature-as-achievement can, in turn, be seen in two ways: as scouring off all foreign accretions in order to get down to an original, unsullied simplicity (call this nature-as-recovery), or as developing one’s innate tendencies in order to achieve one’s telos (“end”; call this nature-as-completion).4 From the standpoint of nature-as-default, watering a plant is an artificial intervention that saves the plant from the decay that it would naturally suffer, whereas, from the standpoint of nature-as-completion, watering a plant is working with rather than against the plant’s natural tendencies. Perhaps one reason for the disagreement between Aristotle and the sophists concerning whether or not human beings are naturally social and political is that for Aristotle “natural” signifies human beings at their highest potentiality, while for the sophists “natural” signifies the way that people would turn out if it were not for education and law. The Cynics, with their hostility to artificial conventions and abstract theorizing, may in turn be seen as endorsing a lifestyle according to nature-as-recovery; and the transition from Cynicism to Stoicism is arguably a transition from the ideal of nature-as-recovery to a more Aristotelian ideal of nature-as-completion.
The emerging cosmopolitanism, particularly in its Cynic-Stoic version, tended not to take a specific institutional form. For example, the cosmopolis of the early Hellenistic philosophers was not yet identified, as it would be later, with any specific earthly community, such as the Roman Empire or the Christian Church. Certainly, it was not intended as ideological support for the Macedonian imperialism; few5 would have agreed with Plutarch’s later claim (at Alex. Fort. VI. 329a–c) that Alexander had achieved in action the cosmopolis that philosophers like Zeno had only theorized about. Likewise, the Cynic-Stoic conception of natural law had not yet been brought into connection with actual earthly codes of law (though Xenophon had pointed a way toward the possibility of doing so), and the connection between one’s role as a kosmopolitês (“citizen of the cosmos”) and the specific role in which one finds oneself in the everyday world was not yet clarified. It fell to the practical-minded Romans to work this transformation of Hellenistic philosophy, making Hellenistic views more useful while at the same time depriving them of much of their edge and radicalism.
Plato’s Academy—so called because of its location in the grove of Hekademos—resembled not only a modern research university, devoted to knowledge for knowledge’s sake, but also a public policy institute or “think tank” with the practical aim of influencing legislation and constitutional reform (Klosko 1986, 188). Such an ambition was by no means quixotic; the philosophical schools of Athens boasted princes and statesmen among their graduates, and philosophers were often called upon to play an advisory role in drawing up legal codes. Moreover, the founding of new colonies was a fairly frequent phenomenon in the Greek world, so even the prospect of designing a new political system from scratch was by no means as unrealistic as is often supposed. Unfortunately, after Plato’s time little is known of the legal theories of the early Academics; in Diogenes Laertius’ catalogue of works by Speusippus and Xenocrates, who were the first leaders of the school, we see such tantalizing titles as On Legislation, On Justice, On the Citizen, On the Republic, On Equity, and On the Power of Law (D.L. IV.2.12), but their contents are unknown.
We do, however, possess four Socratic dialogues from the early Academy that deal with issues of law: Minos, On Justice, Sisyphus, and Demodocus. These works have come down to us as part of the Platonic corpus, but (with the possible exception of the Minos) they are not the work of Plato.6
The Minos concerns a conversation between Socrates and an unnamed comrade concerning the definition of law, and is clearly related in some way to Xenophon’s treatment of the subject (see Chapter 2, Section 2.3, of this volume).7 Like Pericles and Hippias in the Memorabilia, the comrade is torn between a positivist and a moralized conception of law. The comrade (313b–c) initially defines nomos, law, as what is nomizomenon (“customarily accepted”); here, the linguistic link between nomos as law and nomos as custom is being exploited in the service of positivism. But Socrates objects that, just as sight is not what is seen but that by which things are seen, so nomos must be not what is nomizomenon but that by which things are nomizomena. The comrade’s next move is to define law as the judgment of the state; but he, like Pericles, is sensitive to the link between justice and law. Since judgments of the state are sometimes unjust, he is driven to redefine law as the correct judgment of the state. In Socrates’ words (Minos 315a): “[L]aw wishes to be the discovery of what is.”8 But how, in that case, can there be different laws in different places? Socrates’ answer is that all these laws agree in one sense and not in another: They all agree in legislating justice, but they disagree about which things are just; so they aim at agreement even when they fall short of it. It is insofar as they agree, presumably, that they are genuine laws, not insofar as they disagree.
And how can laws change over time? Socrates answers, obscurely, that “being moved like gamepieces they remain the same” (Minos 316c). The meaning of this claim is unclear, but is reminiscent of the Xenophontic analogue about war and peace, and is perhaps making a similar point about principles remaining the same when their applications change. Someone might say, “Before I could move my pawn ahead, but now I can’t! The rules must have changed!” However, not the rules, but the circumstances—e.g., there is another piece on that square now—have changed. Similarly, all laws, to the extent that they are laws, embody the same principle; but the applications may differ either through a change in the circumstances or through the ignorance and incompetence of those applying the laws.
True law, the Minos argues, is an expression of the art of kingship, which is the knowledge of which laws to pass. Here, the criterion is objectivist rather than subjectivist: Kingship is the art of promoting the welfare of the human soul. Minos, legendary ruler of Crete, accordingly has the best claim to be a true king: First, because his laws are unchanging, which is (some) evidence that they are based on knowledge, since laws based on knowledge do not change (but what about the game pieces?), and second, because he learned them from Zeus (which is presumably evidence that his laws are beneficial). But Minos has a bad reputation in Athens because his version of wisdom comes into conflict with the sort of wisdom claimed by the poets. But until we can discover what, in fact, is best for human souls, we will not fully grasp the essence of kingship. Here the dialogue ends.
The other three dialogues are slighter works. On Justice consists mainly of arguments paraphrased from various Platonic dialogues; in its one original contribution (Pseudo-Plato, On Justice 373c–e), Socrates claims that when judges determine what is just and what is unjust, they employ speech in the same way that weighers and measurers employ scales and measuring sticks to determine what is heavy or light, long or short. Socrates raises (but does not answer) the following question: What sort of thing must justice be, in order for it to be true that speech is the tool for resolving disputes about it?
The Demodocus and Sisyphus also address the question of how deliberation and debate in assemblies and law courts could be a rational way of settling issues. The worry is that if nobody knows what to do, public discussion is pointless, while if somebody does know what to do, public discussion is superfluous. These arguments could be read either as a critique of democracy or as a reductio ad absurdum of strongly individualist approaches to epistemology—and so, indirectly, as a vindication of the necessity of legal institutions of public deliberation (cf. Aristotle, Pol. III.11.1281a42–b10; R. Long 2000, 27–9, 101–3, 112–4).
In the third century, the Academy came under the leadership of Arcesilaus (ca. 318–242 B.C.), who moved the Academy in a skeptical direction, interpreting Plato’s dialogues as purely aporetic. For the Skeptical Academy, no philosophical questions can be decisively settled, so it is imperative to suspend judgment. It is unclear how far the Skeptical Academics were influenced by the earlier skeptical movement of Pyrrho (ca. 360–270 B.C.), who also advocated suspension of judgment as a way of gaining psychic tranquility.9 Both schools of Skeptics practice arguing on both sides of every question, in order to move the mind to a suspension of judgment.
Some Pyrrhonists define law in purely positivist terms,10 as a written contract among citizens, backed by punishment (Sextus Empiricus, PH I.146), maintaining that because of the cultural relativity of laws and customs we cannot say what is right or wrong in itself or by its nature, but only how it appears to us (Sextus, PH I.148–63, M XI.140; cf. D.L. IX.11.83–4, 101). Hence, nothing is more just than unjust; nomos (here meaning “custom”) and ethos (“habit”) govern all human action (D.L. IX.11.61).
The first member of the Skeptical Academy known to have contributed to legal philosophy is Carneades (ca. 213–129 B.C.), who gave two famous speeches in Rome, one in favor of justice and the other against it. It is the speech against justice that excited the most interest, and although it does not survive, numerous reports and paraphrases do. Carneades’ speech appears to combine both Pyrrhonist and sophistic arguments. Like the Pyrrhonists, he argues that if justice were a matter of nature rather than convention, all countries and all eras would have the same laws (Cicero, Rep. III.818). Like the sophists, he argues that justice clashes with self-interest (Cicero, Rep. III.24; Lactantius, Inst. V.16–VI.9). Drawing on Glaucon’s challenge in Plato (Rep. II), he maintains that justice is a mutual nonaggression pact regarded as a poor second-best situation in comparison to the enticing, but excessively risky, alternative of trying to commit injustice with impunity (Cicero, Rep. III.23). Thus the vaunted “mixed constitution,” recognizing as it does the need to avoid giving any one group too much power, is an open confession that mutual distrust is natural, and so justice is unnatural (Cicero, Rep. III.23). Hence, political justice (i.e., acting justly when injustice is punished by law) is mere prudence, not justice, while so-called natural justice (i.e., acting justly when injustice is not punished by law) is folly (Lactantius, Inst. V.16).
The anti-Skeptical backlash against the Skeptical Academy was led by Antiochus of Ascalon (ca. 130–ca. 68 B.C.), who attempted to revive the interpretation of Plato as a “dogmatist” (i.e., someone committed to definite doctrines rather than simply suspending judgment), and produced a version of Platonism that borrowed heavily from Stoic and Peripatetic doctrine as well. Cicero (Leg. I.23) records an argument that is likely to be of Antiochean provenance:
Reason is shared in common by all rational beings.
For those to whom reason is the same, right reason is also the same.
Therefore, right reason is shared in common by all rational beings [(1), (2)].
Law = right reason.
Therefore, law is shared in common by all rational beings [(3), (4)].
Those who share law in common are fellow citizens.
Therefore, all rational beings are fellow citizens [(5), (6)].
This vision of the cosmopolis is essentially Stoic (it recurs in Marcus Aurelius, Med. IV.4), but as Dillon (1977, 80) argues, “it is very likely that the discussion of the Natural Law in Cicero On the Laws I is basically Antiochean” because it “contains the characteristic mark of Antiochus’ presence, a survey of the doctrines of the old Academy and of Zeno’s agreement with it.” The argument also fits in well with Antiochus’ doctrine that friendship should be extended to the entire human race (Cicero, Fin. V.65; Augustine, CD XIX.3).
The Academic thinker most important for legal philosophy is Marcus Tullius Cicero (106–43 B.C.). However, in his writings on ethical, social, and political matters, he generally adopts a Stoic position, maintaining that, as an Academic Skeptic rather than a Pyrrhonist, he can accept Stoic doctrines as plausible opinions rather than as knowledge (Off. II.7–8). In any case, Cicero, while technically falling into the Hellenistic period (at least under the broader of its two definitions), clearly belongs in the context of Roman thought, and so will be considered in Chapter 6 of this volume.
Like its ancestor the Academy, Aristotle’s school—the Peripatos (after the peripatos or colonnade where the school met) or Lyceum (after the public grove of Apollo Lykeios where the peripatos was located)—was inter alia a public policy institute that aimed, not without success, at swaying the counsels of state. In addition to Aristotle’s own contributions as tutor to Alexander and (allegedly) legislator for Stageira, Theophrastus (ca. 370–286 B.C.), Aristotle’s chosen successor as president of the school, was able to exert considerable influence on legislation during the period when Athens was governed by his student Demetrius of Phaleron. Nor did the demand for Peripatetics as political advisors cease with his fall from power; Demetrius, Strato, and Lycon were all invited to foreign courts to serve as political advisors (D.L. V.58, 67–8, 78; Lynch 1972, 151). Concerning Strato’s and Lycon’s contributions to legal thought, however, we know little; our information about Peripatetic philosophy of law after Aristotle focuses on three figures: Theophrastus, Dicaearchus, and Demetrius.
Among Theophrastus’ works on law (which survive only in fragmenta and testimonia) are the Laws (Theophrastus seems to have made collections of laws in the same way that Aristotle made collections of constitutions) and On Critical Opportunities (the latter title excellently capturing Theophrastus’ focus on the particular situation). Theophrastus criticizes attempts to make laws universally applicable by anticipating every contingency; laws should be framed for situations that occur for the most part, not for those that occur rarely (Justinian, Dig. I.3.3, 6, as quoted in Fortenbaugh et al. 1992, 629–30; cf. Fortenbaugh 1993). Accordingly, he advises that one should violate the law, and ordinary moral rules as well, when special circumstances call for it, weighing values carefully against one another, since just as a lot of bronze can outweigh a small amount of gold, so considerations that are usually less important can sometimes outweigh those that are usually more important (Gellius, Noctes Atticae I.3, as quoted in Fortenbaugh et al. 1992, 534). This leniency toward exceptions is consistent with Theophrastus’ own particularist turn of mind (cf. Sharples 1998, 270).
On Theophrastus’ view, good men need fewer laws than bad men (Stobaeus, Eclogues III.37.20, as quoted in Fortenbaugh et al. 1992, 628). A useful example of why this is so is his recommendation that the law of contract be reformed to require exceptions for rage and drunkenness (Stobaeus, Eclogues IV.2.20, as quoted in Fortenbaugh et al. 1992, 650). Since, on his own view, what happens only occasionally should be ignored, it follows that the law should take rage and drunkenness into account only if these are usual rather than exceptional occurrences; hence, this reform must be intended for a society where rage and drunkenness are frequent occurrences, and so would not be needed in a society where more people were virtuous.