Socrates and Early Socratic Philosophers of Law

Socrates is arguably the most important and elusive figure in the history of moral philosophy. The few known facts about his life are easily told.¹ He was an Athenian citizen, born in 469 B.C., and worked as a sculptor. He served his city bravely in the Peloponnesian War, but did not seek an active role in politics. Nevertheless, he was briefly forced into prominence after the battle of Arginusae when, as one of the presidents of the Assembly, he resisted the clamor to try the generals en masse, which he saw as illegal. During the rule of the Thirty Tyrants (404–403 B.C.) he refused an order to take part in arresting Leon of Salamis. After the restoration of democracy, he was put on trial in 399 for introducing strange gods and corrupting the young.² He refused to save himself by opting for exile or by using any of the devices by which defendants usually sought to arouse the sympathy of Athenian juries. As a result, he was condemned and put to death by poisoning.

It is clear that Socrates was an exceptional individual for his intelligence and for his moral character and integrity. He was interested less in questions about the nature of the universe than in what we could call moral questions, above all the question “What sort of life should we lead?” Although he wrote nothing and did not call himself a teacher, he acquired an extensive circle of admirers. These included the notorious Alcibiades, as well as Critias and Charmides, relatives of Plato who both took part in the tyranny of the Thirty. Several of his followers wrote “Socratic” dialogues, but only those by Plato (427– 347 B.C.) and Xenophon (ca. 430–355 B.C.) survive in more than a fragmentary form. After Socrates’ death, the hedonistic Cyrenaics and the ascetic Cynics both traced their intellectual ancestry to Socrates. All these authors were immensely impressed by Socrates’ moral character and mode of argument, but they interpreted these in very different ways. It is therefore better to talk of a “Socratic movement” than a “Socratic school.”

According to Plato, Socrates claimed to be wise only in the sense that, unlike most other people, he recognized his own ignorance about the important things of life. He thus did not give lectures or make long speeches, but rather chose to question people reputed to have knowledge. Not surprisingly, those of Plato’s dialogues that seem most Socratic in character generally end inconclusively. Socrates leads his interlocutors to appreciate their own ignorance without asserting any view of his own. Nevertheless, some positive doctrines do emerge. The most important of these are that everyone seeks the good and that it is always in our interest to be just. Taken together these imply that anyone who knows what is just will act justly. Unjust behavior must result from ignorance of what is truly good. It follows both that those who do wrong do so unwillingly and that virtue is a kind of knowledge. In many respects, the picture of Socrates offered by Xenophon is similar to Plato’s, though Xenophon’s Socrates seems less enigmatic than Plato’s and is more prone to give positive moral advice.

At one time scholars assumed that Xenophon gives the more historically accurate picture of Socrates, but most now give preference to that of Plato. More recently, many have followed Vlastos (1971, chap. 1; 1991, chap. 2), who claimed that Plato’s early dialogues embody “the philosophy of Socrates” and that only in the middle period does Plato begin to speak with his own voice. But this view is now under scholarly attack,³ as is the practice of dismissing Xenophon’s evidence (Morrison 1987; Cooper 1999). Even though Plato seems to have known Socrates well, he is clearly not concerned with historical accuracy as we now understand it. Some scholars conclude that there is no reliable means of disentangling the Socratic and Platonic elements in Plato’s work; others defend a “triangulation” strategy, using overlapping evidence from Plato and Xenophon to reconstruct the views of the historical Socrates. Whether or not those facts on which all the sources agree permit us to attribute to Socrates a fully worked out philosophy of law, they are sufficient to confirm his importance for the history of legal thought.

Both Xenophon and Plato agree that Socrates was always obedient to the law of Athens. He showed this most notably in his willingness to accept the verdict of the court that condemned him to death. According to both authors he lived by the principle that one should never behave unjustly. But if Socrates never committed injustice, the legal system that allowed him to be condemned cannot itself have been wholly just. This implies that positive law and justice do not necessarily coincide. Socrates’ life thus presents a kind of paradox: We must be just and must obey the law, yet the law itself may be unjust. As we shall see in this chapter, several of Plato’s dialogues, particularly the Euthyphro, Apology, and Crito, which are all dramatically linked to Socrates’ trial, seem to wrestle with this problem.⁴ There are similar concerns in certain passages from Xenophon’s Memorabilia. Socrates’ insistence on the importance of justice suggests that justice cannot simply be the product of convention. He must therefore take issue with the sophistic use of the distinction between nomos (“law” or “convention”) and phusis (“nature”) to imply that justice is simply a matter of conforming to the customs of one’s community.

Early in the Euthyphro we learn that Socrates’ interlocutor claims to be an expert in matters of religion. In fact, he is so confident of his expertise that he is prosecuting his own father for impiety.⁵ This prompts Socrates to question him about the nature of piety or holiness. In the first phase of the dialogue Euthyphro defines the holy as “what is dear to the gods” (6e–7a). But, since he accepts the traditional tales of quarrels among the gods, especially over matters of right and wrong, he has to admit that what is dear to some gods may be hated by others. So, his definition implies that the same thing may be both holy and unholy (8a). Socrates sets this issue aside by agreeing to investigate the claim that the holy is what is dear to all the gods, and then asks Euthyphro whether the holy is holy because it is dear to the gods or whether it is dear to the gods because it is holy (9e–10a). Euthyphro eventually agrees that the fact of the gods loving something is not what makes it holy. Rather, the gods love holy things because they are holy (10d). As we might say, there must be some standard of what is holy that is independent of whether the gods love it.

Plato’s Socrates is evidently aware that similar difficulties can be raised for the claim that the just is the lawful.⁶ If we take this to mean that any act permitted by a legal system is just and that any act forbidden by a legal system is unjust, then we have to concede that the same act can be both just and unjust, for obviously acts forbidden in one city may be permitted in another. We cannot avoid this difficulty by arguing that to be just is to be in accordance with a law promulgated by the gods, because Socrates would then ask whether the fact that an act is commanded by the gods makes it just or whether the fact that something is just leads the gods to command it. Socrates would certainly opt for the latter view. He believes that what is just is not dependent on the will of any agent, human or divine. It follows that human legal systems may include measures that are contrary to true justice. So, if merely being in accordance with some human code is enough to make an act lawful, the just and the lawful need not coincide. Since the gods are wise and good, the requirements of divine law must be the same as those of justice. So, if “lawful” means “in accordance with divine law” Socrates would recognize that the just and the lawful are in fact identical. But he would still insist that justice is prior to lawfulness.

This account of his mission enables Socrates, later in the defense, to compare his own duty to philosophize with that of a soldier: “[W]herever a man has taken a position that he believes to be best or has been placed by his commander there he must, I think, remain and face danger without a thought of death or any thing else rather than disgrace” (28d). It would be dreadful if Socrates, who during his military service had remained where his commanders posted him, had abandoned the post assigned to him by a god (28e). No one knows whether death is a good or bad thing, but it is certainly wrong to disobey one’s betters, whether they be gods or men. So, even if the court offered to release Socrates on condition that he gave up philosophy, he would have to refuse (28e–29d; cf. 37d–e).

The second main theme of Socrates’ defense is the overriding importance of being just. In particular, it is more important to be just than to preserve one’s life: “You are wrong, sir, if you think that a man who is any good should take into account the risk of life or death; he should look only to this in his actions whether what he does is right or wrong and whether he is acting like a good or a bad man” (28b). In fact, as he claims in his concluding speech, “a good man cannot be harmed” (41d). It is a good thing that he has refrained from political activity, because no one can survive who opposes the populace and prevents it from doing unjust and illegal things (31d–32a).

As evidence that he would rather die than do wrong, Socrates refers to the trial of the generals when he risked his life to be on the side of law and justice. He also cites his refusal to arrest Leon of Salamis as showing his determination to avoid unjust or impious acts (32a–e). In the same vein he refuses to beg the jury for mercy, partly out of a regard for his own reputation, but also because it would be wrong to induce the jurors to decide a case other than in accordance with law (34b–35d, 38d–39b).

In a more important passage Socrates insists that, even if the court were to release him on condition of giving up philosophy, he would not comply with their wishes. This has generally been taken to show that Socrates was willing to defy a legal requirement in order to do what he believed to be just. It certainly looks as though Socrates is envisaging a situation, albeit a purely hypothetical one, in which he would have to disregard a legal requirement in order to carry out his divinely imposed mission. As a matter of fact there was, it seems, no legal basis on which the jury could have imposed such a requirement, so Socrates cannot be seen as announcing an intention to break a requirement that could have been imposed upon him under the law as it stood at the time of his trial. But the passage surely does imply that if the Athenians had passed a law forbidding Socrates from philosophizing, he would have defied it.⁷ Hence, there are conceivable circumstances in which he would be willing to break Athenian law.

This is closely linked to the idea that the gods have assigned him the task of philosophizing. If he had argued that divine authority is higher than that of any human legal system, his contemporaries would easily have understood his position. The difficulty for him would be that he has very little evidence to support his claim that his divine mission was imposed on him by the gods. It is not obviously implied by the response of the Delphic oracle. Socrates may be relying on his own conviction that he has a moral duty to philosophize and that the gods, being good, want us to do our moral duty. His position would then be very much what we would expect from our reading of the Euthyphro. Right and wrong do not depend on the decision of any human or divine agent, though we may be sure that the gods command us to do what is right. Human laws, on the other hand, may be incorrect and inconsistent. We may in the last resort have to break human laws in order to do what is right, but in doing so we can claim the authority of a superior law, namely, that of the gods.

The Crito reports a conversation that is supposed to have occurred when Crito visited Socrates in prison a day or two before the latter’s execution. Crito, who, in spite of being a close friend of Socrates, seems to have little philosophical insight, urges him to escape. His main point is that if Socrates is put to death he and Socrates’ other friends will be seen as having failed him in his hour of need and will thus be disgraced in the eyes of the public. Moreover, by failing to save himself, Socrates will leave his children without a father and create the general impression that he has been totally spineless. In response to these arguments, Socrates points out that he and Crito have always agreed that they should attend not to the views of the ignorant many, but to those of the one who has knowledge. Just as those who undergo physical training follow the advice of the expert trainer, so in matters of right and wrong we should be guided by those with knowledge rather than by public opinion. Given that we think that life with a sick body is not worth living, it would be absurd to allow “that part of us which is improved by justice and spoiled by injustice”—presumably, Socrates means the soul—to become corrupted (47d–e). It is not living as such that matters but living a good life. Thus the question to be addressed is not what the general public will think if Socrates does not escape, but whether it would be just for him to do so. In fact, Socrates goes on to argue, we must never willingly do any kind of unjust act, even when we have been treated unjustly ourselves.⁸ He thus insists on the principle that “neither to do wrong nor to return wrong is ever right, not even to injure in return for an injury received” (49d).

At this point Socrates secures Crito’s assent to the claim that one ought always to do what one has agreed to do, provided that it is just.⁹ He goes on to suggest that by leaving prison without persuading the city, they would not only be failing to abide by what they agreed to be just, but would also be harming the very thing that they ought least to harm (49e–50a). Socrates’ point is clearly that by escaping he would be doing an unjustified harm to the laws of the city; to elucidate his position, Socrates personifies the laws of Athens and imagines them coming to complain that by ignoring the verdict of the court he would be destroying them. The laws present two main reasons why this would be particularly unjust. The first main reason appeals to the principle, which Socrates himself accepts, that we ought to keep our agreements (at least when it is just to do so). Socrates has shown his agreement to live by the laws of Athens by remaining in the city throughout his life, by fathering children there, and by refusing the opportunity to go into exile before his trial when it would have been legal for him to do so. The second main reason is that the laws are in a quasi-parental position. They were responsible for his birth and education, so the obligation he owes to them is stronger even than that which he owes to his parents. In fact, he belongs to the laws as a child or slave and must therefore obey them. Even if Socrates has been unjustly convicted, it is human beings who have wronged him, not the laws themselves (54c).

On a superficial reading, at least, the laws personified appear to maintain that it would always be unjust to disobey them. If this is what they are claiming and if we assume, as most commentators have, that Socrates endorses their view, then there would be a discrepancy between the Crito and the Apology. Socrates in the Apology seems to allow that there are circumstances in which disobedience would be justified, while in the Crito he seems to deny it. But the discrepancy between the two dialogues is not the only point that is puzzling. The laws argue that because Socrates has entered into an agreement with them and is, as it were, their child, he has an obligation to obey them. This implies that our obligations to keep agreements and to obey our parents are independent of and prior to positive law. Thus the arguments of the laws themselves seem to imply that there is a distinction between justice and mere lawfulness. If this is right, then there is at least a logical possibility that the laws might require Socrates to do something unjust. Since Socrates also believes that one must never act unjustly, he must recognize that in such circumstances he would be obliged to disobey the law. Indeed, the laws themselves indicate ways in which this might happen. They base their case on the obligations to keep agreements and to obey superiors. These two grounds are distinct and could in principle conflict. For example, a parent, or other superior, might order a child to break an agreement. If we think of the laws as quasi-parental superiors, we may ask what would happen if they required us to break an agreement. Conversely, if we think of the obligation to obey the law as resting on an agreement, we may ask what would happen if their requirement clashed with those of some superior authority such as the gods. Presumably, in such cases, the commands of the gods would be overriding. Thus if the laws are taken to be demanding unconditional obedience, their arguments seem to undermine themselves.¹⁰

If we are not supposed to be convinced by the claims of the laws to unconditional obedience, the obvious question is “what are we supposed to believe?” The most useful guide may be the passage at 49e, cited above, where, immediately before introducing the laws, Socrates stipulates that we ought to keep our agreements provided that they are just. The most natural interpretation is that there may be occasions when keeping agreements would be unjust, in which case we ought to break them. Since the obligation to obey the law is seen in part as a matter of keeping agreements, this implies that there may be occasions when it would be unjust to obey the law. This could happen, for example, when obedience to the law would involve the violation of some higher obligation. Socrates would thus have been justified in breaking a law forbidding him to carry out what he saw as his divine mission to engage in philosophy. Similarly, in the circumstances of the Crito he would be justified in escaping from prison if remaining there would involve him in violating some higher duty. But no argument presented in the Crito suggests that this is the case. So, because he has no superior obligation to escape, it is his duty to obey the law and await his execution.

A somewhat different solution—similar in spirit, but requiring less discounting of the arguments in the Crito—is to take Socrates to be distinguishing between laws commanding one to suffer injustice and laws commanding one to commit injustice, and to be counseling (a) obedience to the former and (b) disobedience to the latter.¹¹ The Apology, as we have seen, is plausibly interpreted as endorsing (b), but Socrates’ concern for obeying human authorities when doing so does not clash with obeying divine ones (28d–29d) likewise favors (a). The Crito clearly endorses (a), but Socrates’ insistence that one should never commit injustice, together with his emphasis on our duty to keep just agreements, suggests (b) as well. Hence, the two dialogues would be propounding the same doctrine.

If either of these readings is correct, then we can find a consistent view of the law across the three dialogues we have been considering. According to this view, we must in all things do what is just. Although Socrates claims to be ignorant, he is evidently convinced that there is an absolute standard of justice and that human beings can become clear about this standard through reasoned discussion. By giving a central place to reason, he points forward to Platonic doctrines that will be discussed in the following chapter of this volume. But it is already clear that justice, in Socrates’ view, is prior to both the commands of the gods and human laws. Because the gods are wise and good we may be sure that they command only what is just. Thus, to be just is to obey divine law. We have a general obligation to obey human law, but because it is the product of imperfect beings it may sometimes conflict with the requirements of justice and divine law. On such occasions we should break human law in order to do what is just.

Xenophon (ca. 430–ca. 355 B.C.), like Plato, was one of the young Athenian aristocrats drawn into Socrates’ intellectual orbit; and his writings are, like Plato’s, among our principal sources of information about Socrates.¹² Unlike Plato, however, Xenophon spent much of his life in exile from Athens, serving as a mercenary soldier in Persia, Sparta, and elsewhere. His writings encompass a variety of topics and genres, but Socratic ideas and values nevertheless inform all his works. As with Plato, we face the usual puzzles about the extent to which the characters in his dialogues represent either Xenophon’s views or the views of their historical originals, though from Xenophon at least we do have much that is asserted in propria persona. While many readers find Xenophon superficial and conventional, others argue that a more careful reading reveals a subtle and creative mind at work.

The two Xenophontic texts that most directly address the nature and status of law are both in the Memorabilia (I.2.40–46 and IV.4). In the first, Mem. I.2.40–46, Xenophon recounts a (probably fictitious) conversation on the nature of law between the youthful Alcibiades and his guardian, the democratic statesman Pericles. Xenophon’s stated purpose in giving us this account is to show how Alcibiades learned the Socratic technique of dialectic simply in order to advance his own political career, but Xenophon may have other purposes as well. In the dialogue, Alcibiades exploits a tension within ordinary Athenian thinking about law; Pericles is torn between a positive conception, identifying law with manmade statutes, and a moralized conception, denying the status of law to statutes that fail to meet certain moral requirements. He does not at first feel this tension when discussing democracy, being a democrat himself, but the tension soon becomes evident when the conversation turns to oligarchy and tyranny, systems of which Pericles disapproves. On the one hand, Pericles feels the pull of the positivist account, according to which whatever is enacted by the supreme power in a state counts as law. But it turns out that, on the other hand, Pericles is still more deeply committed to the conceptual association of law with persuasion, and of lawlessness with violence