Angilbert (fl. ca. 840/50), On the Battle Which was Fought at Fontenoy

The Law of Christians is broken,
Blood by the hands of hell profusely shed like rain,
And the throat of Cerberus bellows songs of joy.

Angelbertus, Versus de Bella que fuit acta Fontaneto

Fracta est lex christianorum
Sanguinis proluvio, unde manus inferorum,
gaudet gula Cerberi.

Saturday, December 5, 2009

Minos: Law as "Discovery of Reality"

THE PLATONIC DIALOGUE Minos (scholars debate on whether it was written by Plato, and so the author is often referred to as Pseudo-Plato) appears to be a prologue to Plato's Laws, as the dialogue Minos ends with praise of the Cretan king Minos, and the Laws begins with a review of those laws. The dialogue is set in Crete. It is, as the scholar Leo Strauss wrote in his analysis of the dialogue, On the Minos, "the only work included in the body of Platonic writings which has no other theme than the question 'What is law?' and the answer to it." [Leo Strauss, "On the Minos" in Liberalism Ancient and Modern (Ithaca: Cornell University Press, 1968), 65 (herein Strauss)] Interestingly, contrary to most of Plato's other dialogues, the companion is unnamed, though three times Socrates refers to him as a common form of endearment, ὦ βέλτιστε, o beltiste, "my excellent friend." Perhaps the the beloved companion is the Medieval "every man," and so need not have a name.

The dialogue starts, as Strauss notes, abruptly with the question posed by Socrates to his anonymous companion:

"Tell me, what is law?"
Ὁ νόμος ἡμῖν τί ἐστιν?

It is a question that "everyman" must answer. Socrates's companion asks: to what does Socrates refer when he uses the vague term "law"? And Socrates feigns surprise that the term law may be so vague and equivocal, and not univocal such as the term "gold" or "stone." But Socrates does clarify that his question is directed to "law as a whole" (τὸ πᾶν τί ἐστιν νόμος). As a first, tentative answer, his companion takes "law as a whole" to mean positive law, as he understands "law as a whole" to refer to "things loyally accepted," that which is commonly practiced (ἀλλ' ἢ τὰ νομιζόμενα), a reference to accepted conventions.

But in answering thus, Socrates's companion misunderstands, and equates, where he should distinguish, the form of law with the substance of law, just as if one confused speech, which is conventional, with the thing that was spoken through speech, which may not be conventional.

Socrates's companion sees the articulated distinction between speech and concept, expression of the thing and the thing itself, and so rejects his initial definition of law as "things loyally accepted." The law, then, may be defined as the means by which the loyally-accepted-things are accepted. But what sort of thing is this? Socrates prods: is law something that is man-made and learned or is it something that is divine and discovered. Is it a product of traditio or inventio, something that passed along or something that we come upon like an art, techne, τέχνη?

Socrates's companion suggests that law is perhaps the city-state's resolutions and decrees, the dogmata and psephismata of the State, what Socrates, with his friend's agreement, calls politicodoxy, the opinion of the State, Δόξαν πολιτικὴν, doxan politiken. Again, Socrates's friend has fallen into legal positivism. But Socrates remains dubious of this definition, and suggests that there may be a better definition of what law is.

Socrates begins his efforts at getting his companion to see that law is more than merely the positive law of the State by distinguishing between the sage (σοφοί) and wisdom (σοφίᾳ), the just (δίκαιοι) and justice (δικαιοσύνῃ), the law abiding person (νόμιμοι) from law-abidingness (οἱ νόμιμοι νόμῳ), and even negatively, the lawless (ἄνομοι) from lawlessness (ἄνομοι ἀνομίᾳ), all of which distinctions his friend sees. Then Socrates links the notion of law with justice (and both with what is noble, κάλλιστον), and lawlessness with injustice (and both with what is base, αἴσχιστον). Law, justice, the good all further and advance the political life of the city, whereas lawlessness, injustice, evil all destroy life in common. And Socrates's companion agrees that all this is so.

So Socrates concludes: the law is noble, and it ought to be sought after absolutely as a good, and his friend concurs.

But then it is conceded by both Socrates and his friend that not all resolutions (δόγματα) of the city are good, for some resolutions are evil. Yet earlier it was agreed that law was absolutely good, and in nowise evil. It is the palpable fact that the laws of the state (dogmata) may be evil, and not necessarily good, yet that law is absolutely good and not evil, that forces the conclusion that the city's resolution or law, is not properly a law at all. So it is simplistic to maintain the positivist doctrine that law is nothing but the decree of the state.

And yet Socrates insists that law is nevertheless an an opinion of sorts (δόξα), a good (χρηστὴ)opinion, that is, a true (ἀληθής) opinion, as the good and the true are equivalent. And so law is linked both with good, and with the true. And what is true, Socrates continues, is the discovery of reality, of being (ὄντος ἐστὶν ἐξεύρεσις). This allows Socrates to issue forth his most fascinating conclusion:

So law tends to be discovery of reality.
νόμος ἄρα βούλεται τοῦ ὄντος εἶναι ἐξεύρεσις

Minos, 315a

In Ficino's translation, Lex itaque veritatis inventio esse vult. Law is an inventio, a coming upon, a discovery. Law exists prior to the time at which we arrive upon it, and it requires a searching out, a yearning to find it. At its root, law is a reaching out, a desire, even an encounter with reality resulting from such yearning. And so Strauss appropriately sees Socrates as envisioning law as something that "wishes to be the finding out of what is." Strauss, 67 (emphasis added). It is the human yearning toward being, which is what human law is at its most basic, that explains both its continuity and constancy, as well as its variety. It explains why human sacrifice is considered illegal by the Athenians, but was considered legal by the Carthaginians. It explains why law changes throughout the historical development of a culture or a society. Yet though laws display such variety and contrariety, all men agree that just things are just, in the same manner that they consider noble things noble, base things base, and reality real. All this they they consider as universally as the concept that things that weigh more are heavier than those that are lighter. These are universal beliefs, and the Greeks share this even with the Persians--their historical enemies. So Socrates concludes:

Then whoever fails to attain reality, fails to attain accepted law.
ἂν ἄρα τοῦ ὄντος ἁμαρτάνῃ, τοῦ νομίμου ἁμαρτάνει
Probe igitur confessi sumus legem ese veritatis inventionem? (Ficino)

Minos 316b

In other words, he who falls short, fails to attain, or sins against reality, falls short, fails to attain, or sins against the law.

If all this is true, then why, Socrates's companion asks, to explain the diversity in human laws?

As Strauss describes Socrates's efforts: Human law has not grasped reality or truth or the universal law, since reality or truth or the universal law is unchanging, yet human law obviously changes and is changing. Strauss, 67. If human law had grasped the underlying reality of law, then law, at least as expressed by humans, would be unchanging, and yet it clearly is our experience that it has not. Human laws are myriad. The variety of human law, however, is not a defect of the universal law. Rather, the problem arises "due to the defects of human beings," that is their fallibility. Strauss, 68. The defect in human beings "does not affect the law itself," which is "infallible." Strauss, 67. "But if law only wishes, or tends, to be the finding out of what is, if no law is necessarily the finding out of what is, there can be an infinite variety of laws which all receive their legitimation from their end: The Truth." Strauss, 67.

Socrates then turns to discuss who may be the best historical figure to have concretized the law as a straining toward reality. Socrates tries his hand at a response by analogizing from the commonality among all cultures of the laws of medicine, agriculture, and cookery. He analogizes those arts, with the arts of running a state, the task of the statesmen and kings (οἱ πολιτικοί τε καὶ οἱ βασιλικοί). Viewed in this manner, laws may be found to be these leaders' writings (συγγράμματά), the best of which is not Lycurgus or Rhadamanthus, but Minos, the King of Crete.

Socrates's companion bristles at the suggestion that the King of Crete ought to be considered the ideal king and lawmaker (νομοθέτης), as the Greek tragic fictions have displayed him as a savage, harsh and unjust. (By ending with encomium for the Cretan laws, and not those of Athens, perhaps the author, if it was Plato, intended to criticize the Athenian laws, which, after all, had put to death Socrates, Plato's beloved teacher.) In defense of his view, Socrates appeals to Homer and to Hesiod, who are more reliable witnesses in his view of King Minos. These latter witness to King Minos and his consorting and discoursing with Zeus (Διὸς). His scepter was that of Zeus, and it was with Zeus's scepter--that is under and with God's authority that he ruled, and did so justly.

It is when Socrates links lawcraft with soulcraft that the dialogue abruptly ends. The relationship between law and soul it appears must wait for another day. The conversation ends.

Though Minos does not provide a full and satisfactory concept of law, both natural and positive, it "leads up," as Strauss observes, "to the view that a bad law is not a law." In the Minos, we are at the threshold of a "leap in being" with respect to the law. In this Platonic dialogue we may claim to find the germ of the Christian concept that an unjust law is no law at all, and the rejection of the view that the positive law of the State is the only reality there is. Law is a search for reality,for being, for the deep magic. Ultimately, it is the search for Being. The Christian will learn many years after Socrates offered the rooster as a sacrifice to Asclepius, that God is as much Law as he is Love, and that God, who is the source of all reality, is the source of all authority and the end to which all law ultimately tends. In searching for the meaning of law we necessarily should come upon reality, the good, and the true, ultimately God. The positivists, such as Austin and Holmes, it would seem in rejecting the wisdom of the Greeks, the words of Scripture, and the teaching of the Church, have taken a great fall backward into barbarism.

No comments:

Post a Comment