No CrossRef data available.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
Published online by Cambridge University Press: 20 August 2019
In this article I analyze the speech of the Laws in Plato’s Crito from a jurisprudential perspective. More specifically I explore the Laws’ views about the authority of law. I offer new interpretations of their famous ‘persuade or obey’ alternative and of their arguments about their superior moral status and the agreements of the citizens with them. I also explore the rather neglected topic of the mental attitude towards their authority that they demand from the citizens and conclude with a discussion of their understanding of the relation between law and morality. I approach the speech of the Laws as a historian of legal thought and try to locate their arguments firmly within both the context of the ancient Athenian legal system and the context of Platonic philosophy.
I am grateful for comments from Victor Caston, Melissa Lane, Malcolm Schofield and two anonymous referees for this journal.
1. The Crito is considered to belong to Plato’s early dialogues. Some scholars assume that those dialogues contain a philosophical outlook that is in some aspects (for example in its account of the impossibility of akrasia or in its account of the metaphysics of the Forms) different from the philosophy of Plato’s middle and late dialogues and that is normally referred to as ‘Socratic philosophy’ (for a recent defence of that interpretation of Plato’s philosophical development see Brickhouse, Thomas C & Smith, Nicholas D, Socratic Moral Psychology (Oxford University Press, 2010)CrossRefGoogle Scholar at 11-42. Though I accept that interpretation (see Antony Hatzistavrou, “Crito’s Failure to Deliberate Socratically” (2013) 63:2 Classical Quarterly 580), it has no significant bearing on my analysis of the speech of the Laws in this article.)
2. For the interpretation that the values of the speech of the Laws are consistent with Socratic morality see, for example, Santas, Gerasimos X, Socrates. Philosophy in Plato’s Early Dialogues (Routledge and Kegan Paul, 1979)Google Scholar, Kraut, Richard, Socrates and the State (Princeton University Press, 1984)Google Scholar, and Irwin, Terence, Plato’s Ethics (Oxford University Press, 1995)CrossRefGoogle Scholar at 46-47. For the interpretation that the system of moral values of Socrates and the laws diverge see, for example: Gary Young, “Socrates and Obedience” (1974) 19:1 Phronesis 1, Verity Harte, “Conflicting Values in Plato’s Crito” (1999) 81:2 Archiv für Geschichte der Philosophie 117, and Weiss, Roslyn, Socrates Dissatisfied: An Analysis of Plato’s Crito (Oxford University Press, 1998)CrossRefGoogle Scholar.
3. See, for example, ADM Walker, “Political Obligation and the Argument from Gratitude” (1988) 17:3 Philosophy & Public Affairs 191 and George Klosko, “Fixed Content of Political Obligations” (1998) 46:1 Political Studies 53.
4. See, for example, Vlastos, Gregory, “Socrates on Political Obedience and Disobedience” in Graham, DW, ed, Studies in Greek Philosophy, vol 2 (Princeton University Press, 1995)Google Scholar and J Peter Euben, “Philosophy and Politics in Plato’s Crito” (1978) 6:2 Political Theory 149.
5. Of course there are other reasons for which a historian of legal thought may be interested in the speech of the Laws, for example, an examination of the development of Plato’s views about the authority of law. I merely highlight in the main text the reason that motivates my study of the speech of the Laws in this article.
6. Apart from the Crito I also rely heavily on the evidence of the Apology. The evidence of the Apology is relevant for two reasons. First, the Apology is the dramatic prequel to the Crito. Second, in the Apology Socrates finds some legal disobedience morally justifiable which appears to contravene the Laws’ claim to authority. (As I explain, however, once we properly understand the Laws’ claim to authority, Socrates’ attitude towards law in the Apology is consistent with their claim to authority.) I also rely on the evidence of the Laws which is a late dialogue on two occasions (on my analysis of the Laws’ understanding of the citizens’ satisfaction with them and of Plato’s attitude towards parricide). Reliance on the Laws is justified since it contains Plato’s most focused and extensive analysis of the nature and function of law and thus is indispensable for an understanding of Plato’s legal philosophy as a whole. Furthermore, the two occasions on which I rely on the evidence of the Laws do not relate to the main aspects in which the philosophy of the early dialogues is considered to differ from the philosophy of later dialogues (see Brickhouse & Smith, supra note 1). Finally, on one occasion I rely on the evidence of the Protagoras in order to justify the conceptual framework that I draw on in elucidating the Laws’ claim to authority and Socrates’ attitude towards the Laws (see infra note 18).
7. Socrates refers to arguments (logous) that he upheld and cherished in the past (46c1-2) and continuously advocated (see the use of elegeto at 46d1, d7 and 47a12). He implies that Crito’s acceptance of the thesis that one should value only the views of the wise (47a6) and the thesis that one should value living justly and not merely surviving (48b6) is based on Socrates’ previous arguments.
8. See Hatzistavrou, supra note 1.
9. Step One does not merely reveal the consequences of Socrates’ escape or what his escape might be considered to express but what Socrates knowingly tries to do. That becomes clear from the vocabulary the Laws use: they ask Socrates what ‘his mind is directed at’ (en nôi echeis) doing (50a9) and whether by the specific action that he is trying to commit, namely, his escape, he ‘intends’ (dianoêi) to destroy the laws (50b1). The focus on Socrates’ frame of mind makes perfect sense in terms of the dialectical exchange between Socrates and Crito before the introduction of the speech of the Laws (for which see section 2 above). Once it is revealed that Socrates intends for his part to destroy the Laws because he believes that he has been treated unjustly (50c1-2), his escape from prison can be validly considered an act of retaliation. Since it is an act of retaliation, then according to the first principle for assessing the justness of Socrates’ escape that was agreed between Socrates and Crito at 49b4-d2, it cannot be just. Step Two will show that it is supremely unjust because the intended retaliation is directed against those one should least harm.
10. For an account of the distinction between psêphismata and nomoi and the exegetical problems surrounding it see Hansen, MH, The Athenian Democracy in the Age of Demosthenes: structure, principles and ideology (Blackwell, 1991)Google Scholar at 171-74.
11. There is no grammatical reason why the two occurrences of peithein in T cannot mean ‘try to persuade’: Greek verbs may have a ‘conative’ force in the present and imperfect tenses. One may compare the two uses of peithôn in Apology 30a8 and 30e7, where the context reveals that they refer to Socrates’ unsuccessful attempts to persuade his fellow-citizens about the importance of caring for their souls. For a comprehensive defense of the possibility of the attempted persuasion reading, see Kraut, supra note 2 at 71-73.
12. For this interpretation see, generally, inter alios, David Bostock, “The Interpretation of Plato’s Crito” (1990) 35:1 Phronesis 1 and Harte, supra note 2.
13. This interpretation is advanced by Woozley, AD, Law and Obedience: The Arguments of Plato’s Crito (Duckworth, 1979)Google Scholar at 28-61 and Kraut, supra note 2 at 54-90.
14. Adam, James, Platonis Crito (Cambridge University Press, 1891)Google Scholar at 70. In support of his claim Adam cites Gorgias 510b7 and Republic 329c4.
15. Bostock, supra note 12 at 16. The retort is made by Kraut, supra note 2 at 89-90.
16. See section 6 below.
17. So, for the Laws persuasion involves the formulation and presentation of arguments that aim to be as complete as possible about the moral deficiencies of specific legal commands. Though the import of the speech of the Laws to the contemporary discourse about civil disobedience is beyond the scope of this article, it is clear that the Laws would not count as attempts to persuade them actions the primary function of which is to express discontent such as protests or marches.
18. In the remainder of the article I draw on the conceptual framework of contemporary philosophical discussions about practical reasoning in order to make sense of both the Laws’ claims about their authority in their speech and Socrates’ attitude towards the Laws. For example, I speak of reasons or considerations for or against courses of action, of some reasons or considerations outweighing, defeating or overriding others, of the balance of reasons and of judgements about what one should do all things considered. I do not think that it is inappropriate to deploy that conceptual framework for my exegetical purposes. That conceptual framework is perfectly compatible with (and in fact it could be arguably traced back to) Socrates’ account of what practical reasoning involves. In the Protagoras Socrates argues that in deciding about how to act people ‘weigh up’ (stêsas en tôi zugôi, 356b2) a variety of considerations about the goodness and badness of alternative courses of action available to them and act on their overall judgement about the value of those considerations (356a8-c3). (In the course of the relevant argument goodness is equated with pleasure and badness with pain but it is debatable whether Socrates genuinely espouses hedonism in the Protagoras.) In fact for Socrates one’s well-being depends precisely on the relevant art of measurement (metrêtikê technê) of the value of the various reasons for or against different courses of action that enables one to arrive at correct overall judgements about how to act (357a5-b5).
19. As I explained in the previous footnote, Socrates’ decisions are based on his judgements about the balance of relevant reasons for action. And, as he makes clear in the Crito (see section 2 above), those judgements are guided by considerations of justice. So, the contrast between Socrates’ willingness to disobey an imaginary decision of the court that prohibited him from philosophizing and his willingness to accept the decision of the court that condemned him to death must be explained by reference to his judgement that the injustice of the former decision of the court is greater than the injustice of the latter decision. Why would he take the former decision to be more unjust? A possible answer is that he believes that the decision of the court to prohibit him from philosophising distorts the value of philosophy. By contrast, an occasional miscarriage of justice, though deeply regrettable, need not entail that the Athenian laws distort any values (for example, it need not entail that they distort the value of justice). This explanation is consistent with the Laws stressing in step six of their argument that the injustice that Socrates suffers is not their doing but rather the result of actions of individuals (54b9-c2).
20. Kahn, supra note 2 at 40 n 14.
21. In the remainder of the article I will understand by ‘persuasion’ the citizens’ attempt to persuade.
22. Thus, (ii) in (1) is understood along the lines of the ‘package-deal’ reading of conjunctive permissions (for which see Robert van Rooy, “Permission to Change” (2000) 17:2 J Semantics 119 at 133 ff) and not according to a ‘free choice permission’ reading (which would have the undesired consequence that the Laws permit the citizens to disobey even though they do not try to persuade).
23. Given the flexibility of the verdicts of the People’s Courts that I mention below, the punishment of the person who disobeys but attempts to persuade need not be a foregone conclusion (though it would be the outcome one normally expected).
24. The fact that obedience is a citizen’s absolute legal duty does not entail that the Laws’ recognising the attempt to persuade as a legally permitted option has no significant practical consequences for the citizens. Successful attempts to persuade result in legal changes. But even if their attempt to persuasion failed, the citizens who disobeyed but tried to persuade could reasonably expect not to be treated as harshly as those who disobeyed without trying to persuade (52e7-52a3) and might even avoid punishment altogether (see text at note 23 above).
25. For a recent analysis of this feature of Athenian democracy see Melissa Schwartzberg, “Athenian Democracy and Legal Change” (2004) 98:2 American Political Science Rev 311.
26. For which see MH Hansen, “Athenian Nomothesia” (1985) 26:4 Greek, Roman and Byzantine Studies 345.
27. Hansen, supra note 10 at 175.
28. See Todd, SC, The Shape of the Athenian Law (Oxford University Press, 1993)Google Scholar at 60-62.
29. The validity of both (a) and (b) is questionable. One of the (many) problems surrounding them concerns the possibility of significant legal change. (a) has the problematic implication that significant legal change (say, constitutional change) entails change of the fatherland. Do the Laws hold that, for example, when the Third Tyrants came to power, the fatherland changed? (We should note that ‘fatherland’ has different connotations from ‘city’ so even if the Laws, like Aristotle, equated the city with its constitution, the equation of the constitution with the fatherland would remain dubious.) The possibility of significant legal change also poses problems for (b): what does the analogy of the fatherland with one’s parents imply for someone who was born under the regime of the Thirty Tyrants but raised in democracy? Which of the two regimes counts as ‘fatherland’ for that person?
30. For a relevant use of the distinction between what a subject ought to do given a legal command and what a subject ought to do in the absence of a relevant legal command see Gardner, John, “Law as a Leap of Faith” in Law as a Leap of Faith: Essays on Law in General (Oxford University Press, 2012)CrossRefGoogle Scholar at 1.
31. The Laws and Socrates disagree about the moral permissibility of legal disobedience. As I have argued, the Laws never morally justify any legal disobedience while, on the evidence of the Apology, Socrates believes that at least some legal disobedience is morally justified, for example, he would be justified in disobeying a legal directive preventing him from doing philosophy. But Socrates’ belief would not result in ordinary disobedience which the Laws condemn. The master of the dialectic would make his disagreement public and not pass over an opportunity to persuade the Laws about the injustice of their commands. For example, in the event of a legal directive forbidding him to do philosophy he would continue to cross-examine his fellow-citizens in public places, like the agora, and, if brought to trial, he would try to demonstrate the injustice of the relevant legal directive. In doing so he would be pursuing the legally permitted option of attempting to persuade the Laws about where justice lies by reference to his moral standards.
32. Does it make sense to say that the Laws ‘demand’ from the citizens not simply a particular type of behaviour, namely, conformity to their commands, but also a particular type of mental attitude towards their commands, namely, agreement with their commands? I think it does. The Laws stress that they publicly proclaim (proagoreuomen) that any citizen who, after he has gone through the legal process of public investigation (dokimasthêi) (which confirmed his citizenship rights) and has understood how the public affairs are managed and the laws operate, is not satisfied with the Athenian legal system is totally free to leave the city; and that they take anyone who does not take that opportunity to thereby agree (with his actions) to obey them while knowing how the laws operate (51d2-e5). The fact that the Laws make a public proclamation that the citizens are free to leave the city if unsatisfied with them after they have come to know them indicates that the Laws do not want to rule over citizens who either feel oppressed or simply conform to them without any reflective understanding of the workings of the Athenian legal system. Rather it is natural to interpret them as demanding that the citizens understand the legal system, that whoever is unsatisfied with it after he has come to know it leaves the city and that therefore whoever stays does not merely conform to their commands but conforms while having a particular mental attitude towards their commands, namely, while having agreed to do so.
33. Using Socrates as a model for elucidating the citizens’ mental attitude towards the Laws is perfectly legitimate since the Laws themselves acknowledge that Socrates’ agreement with them was the most paradigmatic of the agreements of the Athenian citizens (52a3-8).
34. See, for example, Kraut, supra note 2 at 180.
35. Socrates repeatedly praised the laws of Sparta and Crete and not simply the two cities’ observance of the rule of law (see eunomeisthai at 52e6). This becomes clear from the conclusion of the argument in the context of which the Laws refer to Socrates’ attitude towards the laws of Sparta and Crete. Their conclusion is that, despite his praise for the latter, Socrates was supremely satisfied with the city and the laws of Athens (53a3-4). The identification of the city with its legal system suggests that the Laws’ conclusion is that Socrates was supremely satisfied with the governance of Athens and not simply with the fact that the city had a legal system the authority of which was respected. So, if the contrast that they intend to draw between Socrates’ satisfaction with Athens and his praise of Sparta and Crete is to be relevant, they must mean that he praised the fact that the latter were well-governed and not simply the fact that they had laws which their citizens observed. (See also Kraut, supra note 2 at 177-78 and MC Stokes, Dialectic in Action: An Examination of Plato’s Crito (Classical Press of Wales, 2005) at 169 for more detailed defence of this interpretation.)
36. The Laws take Socrates to be satisfied with two types of laws, those which govern marriage and the form of education in the city (50d1-e1). (One need not infer, though, that he agrees with the content of education: he claims to be happy with the law ordering his father to train him in music and gymnastics, not with the actual training he received.) But that clearly does not entail that he finds the Athenian laws as a whole good and just.
37. M Lane (“Argument and Agreement in Plato’s Crito” (1998) 19:3 History of Political Thought 313) stresses the importance of the distinction between erga and logoi for an understanding the speech of the Laws, though her interpretation differs significantly from the one I advance.
38. It is hard to resist the impression that Socrates intends an implicit rebuke of the jury’s reliance on erga when he invokes the contrast between erga and logoi at 32a4-5. The rebuke would be groundless if by logoi he meant mere assertions as opposed to arguments supported by the elenchus.
39. The specific type of dialectical arguments that Socrates uses are known as ‘electic’ arguments. For an account of the Socratic elenchus, see Vlastos, Gregory, “The Socratic elenchus: method is all” in Burnyeat, Myles, ed, Socratic Studies (Cambridge University Press, 1994)Google Scholar 1.
40. I explain in more detail the authoritarian and anti-democratic character of the political philosophy of Plato’s early dialogues in Antony Hatzistavrou, “Socrates’ Deliberative Authoritarianism” (2005) 29 Oxford Studies in Ancient Philosophy 75.
41. I take Socrates’ willing and reflective acceptance of the authority of the Laws to be roughly equivalent to what Hart’s takes to be non-moral acceptance of law. As he puts it: “... it is not even true that those who do accept the system voluntarily, must conceive of themselves as morally bound to do so, though the system will be most stable when they do so.” (Hart, HLA, The Concept of Law (Clarendon Press, 1994)Google Scholar at 203.)
42. For a developmental account of the aristocratic and oligarchic ideology see Donlan, Walter, The Aristocratic Ideal and Select Papers (Bolchazy-Carducci Publishers, 1999)Google Scholar.
43. See, for example, Young, supra note 2 at 24-29.
44. Especially within the context of what is known as Greek colonisation for which see Murray, Oswyn, Early Greece (Fontana Press, 1993)Google Scholar at 102-23.
45. See, for example, Walker, supra note 3.
46. For an illuminating discussion of marriage laws and citizenship rights see Harrison, ARW, The Law of Athens, vol 1 (Clarendon Press, 1968)Google Scholar at 61-68.