Platonic Philosophy of Law
(1)
Social Philosophy and Policy Foundation, Bowling Green, OH, USA
3.1 Introduction
Plato (427–347 B.C.) belonged to an aristocratic Athenian family1 and appears to have been a follower of Socrates from an early age.2 A letter ascribed to him describes how he originally intended a political career but decided after Socrates’ death to devote himself to philosophy (Ep. VII.324b–326b). To this end he founded a school, known as the Academy, in which he was joined by many pupils including Aristotle. In his later life he made two visits to Syracuse, apparently with the intention of educating the young ruler of the city in the ways of philosophy (Ep. VII.342a–e; 345c–352a). This brief involvement in practical politics was totally unsuccessful.3
Plato wrote some thirty dialogues. Socrates leads the discussion in most of these and is present in all except the Laws. Modern scholars usually assign the dialogues to three periods (Guthrie 1975, 41–54; Lane 2000, 155–60). Those of the early period are mostly quite short, present a lively picture of Socrates, and generally end in uncertainty. Those of the middle period are longer, present a less lively picture of Socrates, and expound a more positive philosophy based on the theory of “Forms.”4 The dialogues of the late period are stylistically distinct from their predecessors but differ considerably from one another in form and content. Most make no overt reference to the theory of Forms as that was understood in middle period dialogues.5 Whereas the distinction between the late period dialogues and the others is firmly based on stylometric analysis, the distinction between early and middle period dialogues depends on literary and philosophical judgment (Brandwood 1990; 1992). Many scholars have held that Plato’s thought developed in important ways over his lifetime. It is claimed that in the early period Plato sticks fairly closely to the teaching of Socrates (Vlastos 1988; 1991; criticized by Kahn 1981a; 1997). The middle period dialogues, with their emphasis on the Forms, represent a more distinctively Platonic philosophy, but Plato changed his mind very substantially in the late period when he modified (or perhaps even abandoned) the theory of Forms (Owen 1953; Cherniss 1957). However, other scholars argue that his fundamental views remained essentially unchanged throughout his career, despite important changes in the manner of presentation.6 This controversy affects our understanding of Plato’s legal thought, since many developmentalists would argue that his middle period philosophy allows only a subordinate place for law while his later philosophy gives it much greater prominence (Barker 1918; Klosko 1986; see also Owen 1953).7
Five dialogues will be examined in this chapter. Taken together, they provide us with a rich understanding of Plato’s views on law. The Protagoras and Gorgias both depict Socrates in vigorous debate with representative figures of the sophistic movement. Although there is disagreement about the relative dating of these dialogues, virtually all scholars assign them to Plato’s early period. The Republic, the most celebrated of Plato’s works, is assigned to the middle and the Statesman to the late period. There is evidence that Plato was still working on the Laws, his longest work, when he died.8
3.2 Plato’s Critique of the Sophists: Protagoras and Gorgias
If the interpretations offered of the Euthyphro, Apology, and Crito in Chapter 2, Section 2.3 of this volume are correct, Socrates there insists that right and wrong are not simply matters of human decision. He must therefore reject the sophistic view that they are the product of convention (nomos) rather than nature (phusis) (see Chapter 1, Sections 1.4–5 of this volume). But he does not make this point explicitly. We can now look at two dialogues where Plato brings this issue to the surface.
Early in the Protagoras the great sophist, after whom the dialogue is named, defends his claim that virtue or political excellence can be taught, even though there are no recognized experts or teachers in the field (319a–320b). He bases his case on a myth that tells how human beings at first lived in isolation from one another but fell prey to the animals. Zeus then sent them the gifts of justice and respect, which enabled them to band together and form cities (320c– 323a).9 This myth is usually interpreted naturalistically as showing that law and morality are human creations (Taylor 1976, 80).10 In order to survive, human beings must form communities and agree on common standards of behavior. These agreements determine what counts as virtue. On this basis Protagoras argues that cities, in fact, make great efforts to train citizens in virtue from earliest childhood. Law is essential to this process, for citizens are compelled to learn the laws and to use them as patterns in their everyday lives (326c–d). The use of punishment manifests, particularly clearly, the belief that virtue can be taught, since people are not punished for faults that are due to nature or chance, but for those resulting from poor training: No one punishes for the sake of what is past. That would be to exact blind vengeance like a beast. Punishment is in fact directed to the future. Its purpose is to prevent both the one who undergoes it and those who witness the punishment from repeating the offense (323c–324b; see Saunders 1981; Saunders 1991, 133–6, 162–4; and Stalley 1995b). So, although Protagoras sees justice as resting on laws established by convention, it is still vitally important in his eyes because it is essential to the survival and well-being of society.
Instead of attacking Protagoras’ account of virtue directly, Socrates raises the question whether virtue is one thing or many, and proceeds to argue that virtue is knowledge of what is good for us (351b–360c). This, of course, implies that Protagoras’ account of law and morality as resting on convention must be rejected. Nevertheless, it leaves untouched several features of Protagoras’ account, in particular his view that punishment and training are essential to the acquisition of virtue. As we shall see, Plato came to incorporate similar ideas into his own theories.
The Gorgias is ostensibly a discussion of the nature and value of oratory. But several passages bear on the philosophy of law. For example, Socrates argues, against the sophist Polus, that oratory and sophistry are spurious arts be- cause they aim merely at pleasure and the appearance of good and can give no rational account of what they do. They are contrasted with the genuine arts of legislation and justice, which seek the good and involve rational understanding. Legislation, in fact, stands to the soul as gymnastics does to the body because it makes us live in ways that promote the well-being of the soul. The administration of justice is like medicine because it restores disordered souls to health (461b–466a). Underlying these arguments are Socrates’ claims that it is better to suffer wrong than to do wrong and better to be punished for one’s misdeeds than to go unpunished. Vice is, in fact, a disorder or disease of the soul. Just as we take the sick to the doctor for treatment, so we must take the wicked to the judge for punishment. Thus, just punishment cures criminals of their wickedness. The really wretched individual is the criminal who goes unpunished. Oratory should not be used to escape punishment, but to ensure that we and our friends receive the punishment that will cure us of wickedness (472d–481b).
The Gorgias offers no explanation of how just punishment might cure criminals.11 But Plato is certainly serious about the claims that legislation demands a rational understanding of the good, that it is better to suffer wrong than to do wrong, and that wrongdoers benefit from punishment. These claims imply that legislation, properly understood, should not only promote conformity to accepted norms of behavior, but also secure the good of the citizens’ souls. Moreover, what counts as good is determined not by the amount of pleasure it produces but by rational judgment.
This view of law and justice is contested by Callicles, who argues that by nature it is right for the stronger to rule.12 Laws are mere conventions, created by the weak to restrain the strong. The truly admirable man is strong enough to ignore the restraints of law and gratify his desires at will (482c–484c, 488c– 492e). Callicles thus agrees with Protagoras that laws are human creations that benefit the community at large, but his attitude toward law thus understood is totally different. According to Protagoras, laws deserve everyone’s support because without them life would be intolerable, but according to Callicles, they have no claim on those strong enough to break them with impunity. Only the weak and worthless have a motive for obedience. As the dialogue progresses, Callicles proves unable to defend this ideal of unlimited self-gratification against Socrates’ persistent questioning. This leaves the way open for Socrates to reassert his view that the good, which is the object of everything we do, is to be distinguished from pleasure. An orator who genuinely sought the good would aim to create regularity (taxis) and order (kosmos) in the souls of his audiences. These orderly states of the soul are called “law” (nomos) and “lawful” (nomimos). Those with souls ordered in this way possess the virtues of justice (dikaiosunê) and self-restraint (sophrosunê) (503e–504d). They are brought about by restraining the desires of an unhealthy soul. Such restraint is called kolasis (“discipline” or “correction”).
In this part of the Gorgias Socrates identifies law with order and harmony, particularly the order and harmony of the just soul. The same principles, Socrates claims, characterize a healthy body, a well-made artefact, and even the universe at large. In fact, the universe is called cosmos (“order”) because, according to wise men, “heaven and earth, gods and men are held together by community (koinonia) and friendship (philia), and orderliness, temperance and justice” (507e–508a). Thus, in the view presented in the Gorgias, law is so far from being a purely human creation that it governs the entire universe. Earthly courts and legislative assemblies may, of course, be led astray by orators who pander to the masses, but, Socrates claims in the mythical account of divine judgment that rounds off the dialogue, the just will be rewarded and the wicked punished after death (523a–527e).13 So, whatever may be the case with the positive laws of existing cities, genuine laws, such as would be enacted by true statesmen, promote the true good of the citizens by creating order and harmony in their souls.
3.3 The Philosophy of Law in Plato’s Republic
Plato’s Republic is primarily an investigation of the nature and value of justice, though it also deals with many other questions about morality and society, about the nature of reality, and about the possibility of knowledge. The questions“What is justice?” and “Is it worth our while to be just?” are raised in Book I. There Socrates encounters Cephalus, for whom justice consists simply in the kinds of behavior conventionally regarded as just, such as telling the truth and giving back what one owes, and Polemarchus who sees justice as a matter of helping friends and harming enemies. Socrates shows that neither view can be defended in a coherent way (328b–336a). He is then challenged by a more formidable opponent, the sophist Thrasymachus, who claims that “justice is the interest of the stronger” (338c–339a). His point is that what is commonly called “justice” is simply obedience to the positive laws of one’s community. These laws, as a matter of fact, embody the interests of the domi- nant party. The implication is that everyone else should ignore considerations of “justice” if they can get away with it.14 Although he does not appeal explicitly to the sophistic distinction between nomos and phusis, Thrasymachus is evidently using similar ideas to undermine conventional morality. He goes on to claim that justice is “another person’s interest,” in other words, that just acts always benefit someone else. So the unjust person always gets the better of the just one. As Thrasymachus sees it, justice is thus mere stupidity; the genuinely wise and admirable person is the one who gets away with injustice. Best of all is the tyrant who exploits the city for his own benefit (343b–344c).
Socrates “refutes” these claims by forcing Thrasymachus to contradict himself. Although his arguments are largely fallacious, they introduce ideas which play an important part in Plato’s thought—that the genuine ruler seeks the good of his subjects rather than his own interests (341a–342e), that excellence in anything consists in achieving the correct standard rather than going to excess (349b–351d), that the just city and the just man are genuinely strong (351e– 352b), and that to be just is to live well and therefore to be happy (352d–354a).
A new start is made in Book II where Socrates avows that justice is good not only for the rewards and reputation it brings, but also for its own sake (357a–358a). As Glaucon points out, this is not the usual view. Most people think of justice as something like medical treatment, which we reluctantly accept because of its beneficial consequences. According to this view, the ability to injure others if one wants is good, but suffering injury is bad. As a kind of compromise, people therefore agreed not to injure one another. They established “laws and covenants” and called what these laws required “lawful and just.” The implication, according to Glaucon, is that only the fear of punishment and disgrace makes people behave justly (359b–360d). Justice has no intrinsic value of its own. To see this we have only to compare a just man who suffers extreme misfortunes with an unjust man who succeeds in everything he does and avoids the punishment and disgrace which are the normal penalties of injustice. No one in his right mind would prefer the life of the just individual who suffers to that of the unjust one who prospers (360e–361d).
The common view of justice, as described in the passage under discussion, is very close to that of Protagoras. So in effect, Plato here shows that conventionalism, for all its apparent plausibility, has serious weaknesses. If justice rests solely on agreements made for mutual self-protection, someone who can commit crimes without fear of detection has no motive to be just. Thus the Protagorean theory collapses into the immoralism of Callicles and Thrasymachus. To defend the claims of justice, one must show that it has some foundation other than positive law.
The reply that Plato puts into the mouth of Socrates is long and complex. He proposes first to look for justice by examining a city coming into being. He argues that a city will function best when each citizen sticks to one task for which he or she is fitted by nature and training. This requires a clear division between the soldier class and that of the farmers, artisans, and traders who engage in economic activities. The soldiers should undergo an elaborate training in poetry, music, and gymnastics in order to develop their characters (II.376c– III.412b). They will live in common having no private property, wives, or families of their own (III.416c–417b). The best of these soldiers will be selected as rulers or “guardians” (412a–414b). These are seen as constituting a third class within the city (414b–415d). Since the city’s well-being and survival depend on each of these classes sticking to its own task, this must be what makes the city just. Plato thus comes up with a surprising definition of justice in the city as “doing one’s own work and not meddling with what isn’t one’s own” (IV.433a, trans. Grube). He then gives a similar account of justice in the individual. Our souls have three parts: reason, spirit, and appetite. We are just when each of these does its own work, that is, when reason rules—with the aid of spirit— and appetite obeys reason (441e). Conversely, we are unjust when the order of the soul is subverted and the appetites seize control.
The Republic’s account of justice both in the city and in the individual is very different from any ordinary conception of justice. Some commentators have therefore seen a fallacy at the very heart of the dialogue (Sachs 1963; discussed by Vlastos 1971; 1977; Demos 1964; Annas 1981, 118–23, 152–9). Plato claims to show that justice is good for itself as well as for its consequences, but since what he in fact talks about is not justice as ordinarily understood, he has not done what he set out to do. It is impossible here to review the extensive literature on this issue, but two points seem crucial: (a) Plato evidently believes that to define justice he must describe the ideal case. So he is concerned not with what counts as justice in existing imperfect cities, but with the genuine justice of the best possible city. Similarly, he aims to describe the ideally just individual, not someone who might be regarded as just by ordinary opinion. (b) He realizes that justice cannot be defined by giving lists of right and wrong acts. He therefore claims that for the individual to be just is for his or her soul to be constituted in the right way. We may think of acts as just, in a secondary sense, if they approximate to what the truly just individual would do, but the primary concern of a legislator must be to shape the character of the citizens rather than simply to control their outward behavior.
The middle books of the Republic explain how a long training in philosophy will enable the rulers ultimately to grasp the Forms of goodness, justice, and the like. Books VIII and IX reinforce the account of justice and injustice by describing inferior kinds of constitution in order of merit, beginning with timarchy, the government of those motivated by military and political ambition, and proceeding though oligarchy and democracy to the ultimate degrada64 tion of tyranny. For each of these constitutions, Socrates describes the character of a corresponding individual. He takes these descriptions, particularly that of the tyrannical man whose soul is dominated by an overwhelming lust, to show that the just individual is truly better off than the unjust one (IX.571a– 580c). The dialogue ends with a myth, telling how the just are rewarded and the unjust are punished after death, and links this moral order with the visible order of the heavens (X.612a–621d).
According to most interpreters, Plato in the Republic holds that a city with genuinely wise rulers will have little or no need for law (Barker 1918, 225–7; Klosko 1986, 134, 190; Annas 1981, 105–7). The rulers will be able to direct the affairs of the city in the best possible way, untrammelled by legislation. On the surface at least, it seems true that the account of the ideal city makes little reference to law. No legislative procedures are described and there is only a brief mention of a judicial system (III.409a–410a). Moreover, a passage in Book IV has been taken to say explicitly that the ideal city has no need for legislation (425b–e). There, Socrates claims that, if the guardians and soldiers are properly educated and have orderly and law-abiding characters, the rest of what is required of them should not prove too difficult. There will be no need to legislate about matters of good manners, such as the behavior of the young toward their elders. Written legislation on such matters is ineffective, while those who have been properly educated need no further inducement to correct behavior. Similarly it is inappropriate to lay down rules about commercial matters such as contracts and market dues, since good and honorable men will easily discover them for themselves (425c–d). They must not waste time making and amending petty regulations, like people who become sick through their own intemperance but refuse to adopt a healthier lifestyle (425d–e).
In considering this passage and the general lack of emphasis on law in the Republic, there are a number of points to bear in mind. First, the city of the Republic is avowedly an ideal. No doubt citizens of an ideal community would seldom, if ever, take explicit recourse to law. Because they are virtuous and fully accept the principles on which the city is founded they will settle disagreements amicably and will fulfill their obligations without the threat of sanctions. But this ideal is unlikely to be achieved in practice. So Plato ought to recognize the need for law in the world as we know it. The condemnation of democratic cities for openly flouting the laws (VIII.557e–558a) implies that law has an important role at least in nonideal communities.
Second, Plato devotes virtually all his attention to the rulers and soldiers who have received an intensive education focused on the development of character and have no interest in money or property. The farmers, artisans, and traders, who form the largest part of the citizen body, will apparently not receive the same education and will have property and families. Even if the soldiers and rulers could manage without law, it is difficult to see how the economically active people could do so.
Third, Plato frequently describes Socrates and his companions as legislatingor making laws (nomoi) (e.g., III.409e–410a, 417b; IV.424c–e, 430a; V.458c; VI.501a; VII.530c). The rulers are called “guardians of the laws” (VI.504a; VII.521c; Morrow 1993, 582) and there is even one reference to a law binding on the guardians themselves (VII.519e–520a). This may suggest that the city will have a fairly extensive legal system. Indeed, one might argue that nomos is needed to define the functions of the different classes. It thus enables the city to instantiate the form of justice. The difficulty is that the Greek word nomos can refer not only to measures promulgated by a government and enforced by courts of law, but also to customs and conventions of an informal kind that are enforced mainly by social pressures. It is not clear whether the nomoi of the Republic are to be written down or whether there is to be any formal system of adjudication and enforcement. But the claim that there is no need for legislation about good manners (IV.425b) presupposes some distinction between laws and informal customs.15