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: 09 June 2015
Plato’s dialogue Crito, as is well known, presents Socrates’ response to the question why must one obey the law. The facts surrounding Socrates’ trial, imprisonment and subsequent execution are all well known, I shall not repeat them here. Rather my present task will be to analyze the other side of the Socratic argument, in order to determine Socrates’ possible response to the question of when (or under what circumstances) may we chose to disobey the law. The purpose of this present analysis is three-fold: first, to determine what in fact might be the Socratic response to the question. Second, to show – as against at least one recent writer – that Socrates could be said to have a theory of civil disobedience. My third task, given that such a theory could be attributed to Socrates, is to assess the adequacy of this theory.
Support for the research for this paper was provided by grants from the Social Sciences and Humanities Research Council of Canada and Trent University.ln addition, this paper has benefited from critical remarks by (and conversations with) my colleagues (in particular David Gallop and Bemie Hodgson) and the editor of this journal. Of course, the views and any errors contained in this paper are mine alone.
1. Kraut, Richard (Socrates and the Slate Princeton: Princeton University Press, 1984) e.g., at 75.Google Scholar
2. Dybikowski, James “Socrates, Obedience and the Law” 1974, 13 Dialogue 519, at 519–20.Google Scholar
3. One commentator (which one, 1 am not certain of) compares Crito's initial arguments with those of a spumed lover.
4. Kraut,supran. 1 at 27.
5. 49 e, Grube’s translation, as is the case with all translations. Grube, G.M.A. (trans.) Plato: Five Dialogues (Indianapolis: Hackett, 1976).Google Scholar
6. These conditions are similar to those adopted by the modern common law regarding procedural unconscionability in contract.
7. See Kraut, supra n. 1 at 35–6.
8. I follow, e.g. Kraut supra n. 1 at 40–1, in believing the purpose of this character is to give us an impersonal (i.e. not that of a mere Socrates, but something more authoritative than him) account of the principles of legal obligation.
9. It is clear from the argument of the passage that Socrates is referring to specific decisions of courts being ignored (hence “nullified and set at naught”) by the individual affected.Socrates could hardly nullify all laws of Athens by escaping.
10. This is also confirmed by the comment of the Laws at 51 b -c: “To do so [i.e.persuade the court or obey its orders] is right, and one must not give way or retreat or leave one's post, both in war and in courts and everywhere else, one must obey the commands of one’s city or persuade it as to the nature of justice.” The significance of the persuade or obey doctrinewill be discussed later.
11. E.g. Kraut, supra n. 1 at 48–9.
12. David Hume, , Of the Original Contract (1748), para.23 et sea.Google Scholar
13. Nevertheless, this is not to argue that all items on the above list do not provide such an nexus.For instance, quasi-familial obligation may have this effect. See. e.g., Daniel, Callahan “What Do Children Owe Elderly Parents?” The Hastings Center Report (April 1985) at 32–7.Google Scholar
14. From the point of view of a contemporary lawyer, this makes sense: a court will not (and ought not) accept all cases which are presented to it, irrespective of the wishes of the parties.The classic illustration of this is two residents of jurisdiction X (in which gambling contracts are against “public policy” and are not enforceable) make a bet (in writing, etc.) and agree to be bound by the laws of jurisdiction Y (in which such contracts are enforceable but with which neither party has any connection whatsoever).Courts of jurisdiction Y will not seize themselves of the matter: and from the public policy perspective (at least that of jurisdiction X) courts ought not to so seize themselves.See, e.g., Morris, J.H.C. The Conflict of Laws (3rd. ed.) (London: Stevens and Son, 1984) p. 273, and Re Helbert Wogg & Co. Ltd.’s Claim [1956] Ch. 323, 341; Tzortzis v. Monark Line AIB [1968] 1 W.L.R. 406,411.Google Scholar
15. For there are always cases in which another duty or competing circumstances would override our duty of fulfilling the agreement.Cf. Ross, W.D., The Right and the Good (Oxford: Clarendon Press, 1930) at 46.Google Scholar
16. Accordingly, if the agreement is made under conditions of procedural justice, this guarantees the absence of some of the so-called competing circumstances.
17. Note that the effect of these principles is to give a moral justification of obedience to the law. Thus Socrates’ obedience does not depend on the meta-principle of the legal validity of the court’s decisions, which might be inferred from remarks made at 50 c — d. If Socrates’ objections were due to the metalegal principle, the issue of legal obedience is merely pushed back to the meta-level. By using moral principles to justify obligation, the justification is removed from the (meta-) legal sphere, and anchored in the moral level. I am indebted to David Gallop for his comments on these points.
18. Much of my treatment of the doctrine of persuade or obey is indebted to Kraut’s treatment, pp. 54–90.
19. 51 b 8 - c 1: … alla kai en polemoi kai en dikasterioi kai pantachou poieleon ha an keleuei he polls kai he patris, e peithcin allien hei to dikaion pephuke
20. 51 e 6-7: … kai holl homologesas hemin peisesihai oute peilhelal ouie pelthei hemas, el me kalos li poioumen, ....
21. Indeed, to suggest otherwise contradicts Socrates’ admission of naivety in public matters at Apology 17 b - 18 b.
22. See MacDowell, Douglas M., The Law in Classical Athens (Ithaca NY: Cornell University Press. 1978) at 239: “If the defendant was an alien, he could be required to provide sureties to guarantee that he would remain in Athens for the trial; that is, men (they probably had to be Athenians) who undertook to pay an agreed amount if he did not appear for trial. If he could not provide sureties, he was liable to be kept in prison until the trial.”MacDowell cites Isocrates 17.12 and Demosthenes 32.29 as his evidence.Google Scholar
23. Kraut, supra n. 1 at 77–80.
24. Though it might be argued that this might be the case in a modern trial, this is less so; for a modern barrister who engages in much of the persuasive conduct which would be acceptable in an Athenian court would run the risk of being censured for “inflaming thejury.”
25. MacDowell, supra n. 22 at 25.
26. Id. at 251 -2., the same procedure applied to the jury's determination of the penalty (MacDowell, at 253), and the consequences in capital cases were immediate: save for that annual period in which the sacred ship made its journey between Athens and Delos (which provided Socrates his stay of execution), a condemned man was executed immediately after the trial.
27. Kenneth, Dover, Greek Popular Morality in the Time of Plato and Aristotle (Oxford: Basil Blackwell, 1974) at 292f. Dover’s references omitted. Kraut also cites most of this as evidence.Google Scholar
28. MacDowell, supra n. 22 at 44. MacDowell continues and cites the claim of Ostwald, who suggests that this substitution was a deliberate change in policy by Kleisthenes “as part of the establishment of democracy in 507.” See Martin, Ostwald, Nomos and the Beginnings of Athenian Democracy (Oxford: Clarendon Press, 1969) at 137–173.Google Scholar
29. MacDowell, supra n. 22 at 36.
30. Id. at 40. His footnote is omitted.
31. Of course, every member of a jury took an oath at the beginning ofthe year to judge by the laws of Athens. Indeed, MacDowell notes, “Although the decisions of juries were not subject to any control or appeal, that does not mean that it was considered proper forjurors to give whatever verdicts they liked: the juror should vote to condemn a person who had contravened the law, and to acquit a person who had obeyed it” (pp. 43–4). Yet this, of course, applies only to valid law, or situations in which equitable relief would not be available. If a purported nomos was not representative of the community’s standards, it-one can argue — would be invalid. And if the situation demanded equitable relief in the form of an exception, the jury— as judges of equity — could grant it. On Greek notions of equity, see Aristotle, Nicomachean EthicsV. 10, 1137 a3t — 1138 a 3.
32. Woozley, A.D., Law and Obedience: The Arguments of Plato’s Crito (Chapel Hill: The University of North Carolina Press; London: Duckworth, 1979), e.g., at 76–110.Google Scholar
33. Id. at 76.
34. Id. at 77–8.
35. This, of course, ignores any explicit agreement which Socrates might be said to have with Athens to obey its laws (in the form of, e.g., the Ephebic Oath). Interestingly enough, the Crito also ignores such explicit claims.Presumably, the doctrine of persuade or obey, and Socrates’ consent to be bound by the outcome of the jury are sufficiently proximate and explicit to supersede any other agreements which Socrates has purportedly made.Note Kraut’s treatment of the mention of the process by which Athenian youths became citizens [dokimosia], pp. 154-161.On the nature and content of the Ephebic Oath see Siewert, P., “The Ephebic Oath in Fifth-Century Athens,” Journal of Hellenic Studies 97 (1977) at 102–111.CrossRefGoogle Scholar
36. More detailed arguments that the Laws’ position does not entail either of the above positions can be found in the literature. See, e.g., Woozley, pp. 114-140; Kraut, pp. 126-148; and Allen, R.E., Socrates and Legal Obligation (Minneapolis: University of Minnesota Press, 1980) at 83–6.Google Scholar
37. Kraut, supra n. 1 at 75. Kraut’s footnotes referring to Rawls, A Theory of Justice (Cambridge MA: Harvard University Press, 1971), at 366 and Woozley, supra n. 32 at 41 are omitted.Google ScholarPubMed
38. The following account is in part based on Rawls’, A Theory of Justice, Sects. 55 - 59 (pp. 363–391).Google ScholarPubMed
39. E.g. Rawls, id. at 366 f.; cf., however, Sumner, L.W. “Rawls and the Contract Theory of Civil Disobedience”, Canadian Journal of Philosophy Supplementary Volume 3 (1977) 1–48, at 26 f.CrossRefGoogle Scholar
40. Presumably this is justified on pragmatic grounds: it is less likely to alienate the populace if one’s conduct is palatable to the majority.
41. It is not the place, nor do I wish, to present an elaborate justification for the use of violence as a tool of social or legal change. Nevertheless it must be pointed out that the term “violence” runs a gamut from defacing private property to mass murder through terroristic activity. While there are cogent reasons to eschew violence at one end of the spectrum, it seems to be a mistake to lump together all forms of violence and condemn the lot. This is especially so when violence at the other end of the extreme might be the most effective way of a dissident presenting his case to society. The requirement that all “legal” means of influencing the law-makers must be exhausted, prior to the pursuit of civilly disobedient conduct seems counterintuitive on two grounds. First, the process of lobbying the legislative branch of a government is time consuming. Accordingly, circumstances can be envisaged such that the urgencies of the situation dictate immediate civil disobedience so the apparent moral evil is dealt with as soon as possible. Second, the contemporary practice of creating a “test case” (which, as we will see, has parallels with the Socratic doctrine of persuade or obey) requires an apparently illegal act be committed so that the actual legality (or — in the Socratic case — moral justification) of the act can be later tested.
42. Of course, as this sort of conduct becomes more violent, the legitimacy of such civil disobedience becomes more difficult to justify.
43. If not prior to breaking the immoral law.
44. On the legal background lo Dr. Morgentaler’s first case before the Supreme Court of Canada, see R. v. Morgentaler (1973) 14C.C.C.(2d)459(Que.Q.B.); 17C.C.C.(2d)289(Q.C.A.);[1976] 1 S.C.R.6l6,20C.C.C.(2d)449(S.C.C.).On the background to the second case see R. v.Morgentaler el al. (1984) 14 C.C.C. (3d) 258 (Ont. S.C.); (1985) 22 C.C.C. (3d) 353 (O.C.A.); [1988] 1 S.C.R. 30 (S.C.C.) (sub nom. Morgentaler et al. v. The Queen). Note that in the Quebec trials Dr. Morgentaler was charged with violating s. 251, in the Ontario trial he was charged with conspiring to violate s. 251. This was probably a conscious decision by the prosecution to avoid the evidential need of requiring a patient of Dr. Morgentaler to testify.
45. Section 251 of the Criminal Code, R.S.C. 1970 Chap. C-34 (as am.); hereafter Criminal Code. I wish to state most emphatically that it is not the purpose of this paper to argue the moral merits of Canada’s then abortion laws. For the purposes the example which I use in this paper, it is assumed that the laws were unjust. However, nothing of philosophical substance hangs on this assumption. If a reader wishes to dispute the assumption, then that reader is free to do so: all that need be done is to create even a hypothetical example of how the Socratic position could be applied in a contemporary legal system. My choice of example has been governed by an attempt to give a “real world” example and not to argue by hypotheticals.
46. Section 605( 1) of the Criminal Code provides: The Attorney General or counsel instructed by him for the purpose may appeal to the court of appeal (a) against a judgment or verdict of acquittal of a trial court in proceedings by indictment on any ground of appeal that involves a question of law alone,.... Canada is unique in the common law tradition in having such a provision.Other jurisdictions regard such a right vested in the state to be unfair to the accused as a form of “double jeopardy.”See, for instance, Richardson v. United States 104 S. Ct. 3081, 3086 (1983 U.S.S.C).
47. The then existing provisions of the Criminal Code S.C. 1953-54, Chap. C-54 (s. 613 (4) (b)) provided that an appeal court could substitute a verdict of guilt for a jury–s acquittal, and remand the case to the court of first instance for sentencing.The resulting public outcry after its imposition on Dr. Morgentaler lead to Parliament amending the section.Now, an appellate court can only substitute a verdict of innocent for a trial court’s verdict of guilt, or order a retrial if the appellate court feels a mistake in law was made at trial (Criminal Code s. 613 (1) (a)).Should an appellate court order a new trial, the accused has an automatic right to appeal the appellate court’s decision to the Supreme Court of Canada (Criminal Code s. 618 (2)). This amendment is known in the Canadian legal profession as “the Morgentaler amendment.”
48. The question of to what extent the guarantees in the Charter are procedural and/or substantive is a matter of interest to some legal commentators; however, it is not amatter of present concern.
49. Which is well done in Simpson, A.W.B., Cannibalismand the Common Law (Chicago: University of Chicago Press, 1984) [on the history of the defense] and, e.g.,Google Scholar Arnolds, EdwardB. and Garland, Norman F., “The Defence of Necessity in Criminal Law: The Right to Chose the Lesser Evil” (1974), 65 The Journal of Criminal Law and Criminology at 289–301 CrossRefGoogle Scholar and George, Fletcher, Rethinking Criminal Law (Boston: Little, Brown, 1978) at 774–798 [two legal discussions of the defense).Google Scholar
50. It is not clear whether it operates as an excuse or a justification.The distinction between the two has been described thus “[w]here justification focuses on the propriety of the act, excuses concern the particular actor and whether or not it is appropriate that he be blamed or punished for his wrongful violation of the law.“ Bruce, Chapman, “A Theory of Criminal Law Excuses” (1988) 1 Canadian Journal of Law and Jurisprudence (1988) pp.75–86 at p. 75 n. 4,Google Scholar and Robinson, P., “Criminal Law Defences: Systematic Analysis” (1982),82 Columbia Law Review at 199–291.CrossRefGoogle Scholar
51. This above characterization purposely omits discussion of, e.g., the application of this defense to circumstances where due to previous illegal activity of the defendant, the defendant is out of necessity “forced” to commit an illegal act.The defense does not nor should not apply here; nevertheless this was not the case in the circumstances under discussion.
52. Morgemaler v. The Queen [1976] 1 S.C.R. 616, 685 (per Dickson J., as he then wasJ.That the existence of “a legal way out”bars the application of the defense is a substantial part of the ratio decendi of the 1976 Morgemaler decision see Perka etal. v. The Queen [1984] 2 S.C.R. 232, 251–252 per Dickson C.J.C.
53. Since the 1988 appeal to the Supreme Court hinged primarily upon the issue of whether s. 251 offended the Charter of Rights and Freedoms (as it was found to do), the Court declined to reconsider (asit saw it has no need to) the applicability of the necessity defense.
54. [1988] 1 S.C.R. 30.77.
55. There were three separate concurring opinions in Dr. Morgentaler’sfavour, and one dissenting opinion.
56. [1988] 1 S.C.R. 30, 77 – 78 per Dickson C.J.C.
57. indeed his reputation for not failing to appear for a court appearance was instrumental in his being released on his own recognizance during the Toronto (1984–88) “episode.”
58. As, at least in the final (1984) trial, these were (he only two alternatives put before the jury, whichever alternative the jury based its finding on compelled the jury to pass a judgment on the law.The only other basis which the jury could have used to acquit Dr. Morgentaler would be to find that in fact he (and his co-defendants) did not conspire to perform the abortions as charged. This would be absurd, for the existence of all the factual elements of a conspiracy was admitted by the defense.
59. In many respects, the Socratic theory of civil disobedience places a form of strict liability on the behaviour of the civil disobedient.The civil disobedient must “do no harm.” Irrespective of the care which she or he takes in acting or the intent behind the civil disobedient’s actions, if harm is done, then the civil disobedient has not lived up to his or her obligations under the theory.
60. This doctrine is clearly slated in Joshua v. The Queen, [ 1955] A.C. 121, 130 (P.C.) per Lord Oaksey: It is a general principle of British law that on a trial by jury it is for the judge to direct the jury on the law and in so far as he thinks necessary on the facts, but the jury, whilst they must take the law from the judge, are the sole judges of the facts.
Chief Justice Dickson quotes this passage shortly before his remarks which accompany footnote 56.
61. Contrast this with, e.g., German (Federal Republic) criminal procedure in which lay judges sit on many trials during their tenure.See Casper, G. and Zeisel, H., “Lay Judges in the German Criminal Courts” (1972) I Journal of Legal Studies at 135–91.CrossRefGoogle Scholar
62. I here presume, as against, e.g., the views of the legal positivists, that law is something more than merely an ordinance validly enacted by a sovereign. Without pursuing the point further in this present paper, one can give a justification of this claim on grounds similar to those given by Rousseau.“Car la volonté” est générate ou elle ne l’est pas; elle est celle du corps du peuple, ou seulement d’une partie. Dans le premier cas cette volonté déclaré”e est un acte de souveraineté’ et fait loi. Dans le second, ce n’est quu’ne volonté particulière, ou un acte de magistrature; c'est un dicret tout au plus.” Du Contract Social (1762) L. II. ch. ii, para. I. I hope to provide such a justification in future work.
63. It may be argued that Parliament (or its equivalent) is a better arbiter of values than the jury.This objection assumes two points.The first is that a citizen votes for only a candidate whose values (or the values which she will adopt in Parliament) are identical with those of the voter, and that the parliamentarian — once elected — is solely concerned with representing the values of her constituents.Given the multiplicity of issues facing the voters in a typical election, the former is unlikely.Recent work in social choice theory questions the validity of the second assumption.CThe system of party discipline in Parliaments based on the Westminster model further exacerbates the problem, for — save in the rare situation of a free vote — the legislator’s exclusive duty is to “toe the party’s line” on a particular issue during the vote: which might be a vole on an omnibus criminal law reform act.Jon recent work in social choice theory see, e.g., Aranson, Peter H. and Peter C., Ordeshook, “Public Interest, Private Interest, and the Democratic Policy” in Roger, Benjamin and Elkin, Stephen L. (eds.) The Democratic State (Lawrence: The University Press of Kansas, 1985) at 87–177.Google Scholar
64. (1670) Vaughan 135, 124 E.R. 1006 (K.B.).
65. See, e.g., Law Reform Commission of Canada, Criminal Law: The Jury in Criminal Trials Working Paper 27 (Ottawa: Minister of Supply and Services, 1980) at 11–13 Google Scholar, and Duncan v. Louisiana 391 U.S. 145, 155 (1967 U.S.S.C): “A right to jury trial is granted to criminal defendants in order to prevent oppression by the Government.”
66. Throughout my discussion of the jury, I presume that the members of the panel have been chosen fairly from the community.
67. Or, in Rousseau’s terms, the “law” put forth by the legislators does not incorporate the general will and therefore loses its moral legitimacy.
68. See, e.g., John, Baldwin and McConville, Michael, Jury Trials (Oxford: Clarendon Press, 1979) at 52–67.Google Scholar
69. Arnolds and Garland, supra n. 49 at 299.
70. See id., at 296.
71. The two senses of harm can be, I believe fruitfully, compared to the consequences which are of concern to the act and rule utilitarian, respectively.
72. Indeed, the distinction between these two types of consequences, and the possibilities that avoiding one type of harm might lead to another type of harm can be found in book one of Plato’s Republic. At 331 c et seq.Cephalus’ definition of justice, sc. to keep promises and return what is due, is refuted by showing that if one always adhered to this set of institutional constraints on one’s behaviour, evil consequences could result.Plato argues that such an institutional definition of justice would have the unpalatable consequence of compelling one to return a weapon to someone in the midst of a homicidal rage.