A Little Bit of Plato in St. Thomas

THERE ARE INDISPUTABLE PLATONIC precursors to St. Thomas Aquinas's definition of law. As previously related in this blog, St. Thomas defines law as "nothing other than a certain dictate of reason (rationis ordinatio) for the common good, made by him who has the care of the community and promulgated." ST. IaIIae, Q.90, art.4. "There are no elements," in this definition, "which were not insisted upon by Plato." [Huntington Cairns, Legal Philosophy from Plato to Hegel (Baltimore: John Hopkins Press, 1956), 173.] Thus, we may find it useful to link St. Thomas's concepts to their Platonic analogues:

Law is ultimately based upon a theological foundation:

"To whom," says the Athenian to Clinias, "do you ascribe the authorship of your legal arrangements, Strangers? To a god or to some man?" "To a god, Stranger, most rightfully to a god." 624A. The laws "form a task especially for God." 835C.

Law is a form of reason:

Reason's ordering is given the name of law, Laws 714A. The admirable law bears a name akin to reason (nomos = nous). Laws, 957C. See also Laws, 890D.

Law must be made for the common good:

"The law is not concerned with the special happiness of any class in the state, but is trying to produce this condition in the city as a whole, harmonizing and adapting the citizens to one another by persuasion and compulsion, and requiring them to impart to one another any benefit." Rep., 519E

Law must be made by one in authority, that is in care of the community:

See, e.g., Rep., 520D et seq. (In discussing the appropriate authorities to govern the state, the discussion implies that the laws will be passed by those in charge of the community.)

Law must be promulgated:

Here, implicitly, the fact that laws tend to virtuous of the citizens implies that they have knowledge of them. "Every legislator who is worth his salt will most assuredly legislate always with a single eye to the highest goodness and to that alone." Laws, 630C. "Do you now, in turn, keep a watch on my present lawmaking, as you follow it, in case I should enact any law either not tending to virtue at all, or tending only to a part of it. For I lay it down as an axiom that no law is rightly enacted which does not aim always, like an archer, at that object . . ." Laws, 705E. (It is clear that the concept of promulgation is only implicit, as Cairns suggests, Plato "did not develop the idea of promulgation qua promulgation; rather, he took it so much for granted, even to the extent of arranging that the laws should be written in persuasive and readable form, that the idea that there might be secret laws did not occur to him." Cairns, 174, n. 21.)

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.

Universal Ethic-Convergences 4-Graeco-Roman Sources

1.2. The Graeco-Roman sources of the natural law

18. The idea that a natural right exists prior to any positive legal laws is already to be found in the classical Greek culture with the exemplary figure of Antigone, the daughter of Oedipus. Her two brothers, Eteocles and Polyneices, battled between themselves in their quest for power and were both killed. Polyneices, the rebel, was condemned to remain unburied and to to be burnt with fire. But Antigone, to fulfill the duty of the piety towards her dead brother, appealed against the public prohibition of burial issued by king Creon by citing to the “unwritten and unchanging law.”

CREON:
And yet you dared to break those very laws?
ANTIGONE
Yes. Zeus did not announce those laws to me
And Justice living with the gods below
sent no such laws for men. I did not think
anything which you proclaimed strong enough
to let a mortal override the gods
and their unwritten and unchanging laws.
They’re not just for today or yesterday,
but exist forever, and no one knows
where they first appeared. So I did not mean
to let a fear of any human will
lead to my punishment among the gods.(14)

19. Plato and Aristotle apply the distinction advanced by the Sophists between the laws that have their origin in convention, that is to say a pure positive decision (thesis), and those that have validity “by nature.” The first are neither eternal nor valid in any general way, and they are not obligatory upon all. The second are obligatory upon all men, always and everywhere.(15) Some Sophists, like Callicles of Plato’s Gorgias, referred back to this distinction to dispute the legitimacy of the laws instituted by the human polis or city-state. To such laws they opposed their idea, narrowed and wrong, of nature reduced solely to a physical component. In this manner, against the political and legal equality of the citizens in the polis, they supported what seemed to them the most evident of the "natural laws": those with greater might ought to rule over the weaker.(16)

20. Nothing of this in Plato and Aristotle. These two do not oppose natural right and the positive law of the polis. They are convinced that the laws of the polis or city-state are generally good and constitute the actualization, more or less achieved, of a natural right conformed to the nature of the things. For Plato, the natural right is an ideal right, a rule for the lawgivers and for the citizens, a rule that concurs as the foundation and the value of the positive law.(17) For Aristotle this supreme rule of morality corresponds to the realization of the essential form of nature. That is moral which is natural. The natural right is unchanging; the positive right changes relative to peoples and different epochs. But the natural right it is not placed in opposition to positive right. It it is embodied in positive right, that is, it is the application of the general idea of justice to social life in its variety.

21. In Stoicism, the natural law becomes the key concept of a universal ethic. That which corresponds to nature is good and ought to be done, with nature understood in both a psycho-biological and rational sense. Every man, regardless of the nation from which he comes, ought to integrate himself like a part of the whole of the universe. He should live according to nature.(18) This imperative presupposes that an eternal law, a divine Logos, exists, one which is present in a cosmos filled with rationality, and which is found in the human reason. It is in this way that, for Cicero, the law is "the supreme reason within nature that commands us to do what we ought to do, and prohibits its opposite."(19) Nature and reason constitute the two sources of our knowledge of the fundamental moral law, a law which is of divine origin.

(14) Sophocles, Antigone, v. 449-460 (trans. Ian Johnston of Malaspina University-College, Nanaimo, BC, available at http://records.viu.ca/~johnstoi/Sophocles/Antigone.htm).

(15) Cf. Aristotle, Rhetoric, I, XIII, 2 (1373 b 4-11) : "The particular law (nomos idios) is that every group of men determines in relation to its members, and these types of laws divide themselves in unwritten laws and written laws. The common law (nomos koinos) is one which conforms to nature (kata physin). In fact there is one right and one wrong, common in nature, which all recognize through a species of divination, even if there is no communication or reciprocal convention. So it is seen the Antigone of Sophocles declares that it is just to bury Polyneices, whose burial was forbidden, affirming that such burial is right, being in conformity with nature"; cf. also Nichomachean Ethics, V, 10.

(16) Cf. Plato, Gorgias (483 c-484 b) [Callicle’s Discourse] : “Nature, in my opinion, herself proclaims the fact that it is right for the better to have advantage of the worse, and the abler of the feebler. It is obvious in many cases that this is so, not only in the animal world, but in the states and races, collectively, of men—that right has been decided to consist in the sway and advantage of the stronger over the weaker. For by what manner of right did Xerxes, march against Greece or his father against Scythia? Or take the countless other cases of the sort that one might mention. Why, surely these men follow nature—the nature of right—in acting thus; yes, on my soul, and follow the law of nature—though not that, I dare say, which is made by us; we mold the best and strongest amongst us, taking them from their infancy like young lions, and utterly enthrall them by our spells and witchcraft, telling them the while that they must have but their equal share, and that this is what is fair and just. But, I fancy, when some man arises with a nature of sufficient force, he shakes off all that we have taught him, bursts his bonds, and breaks free; he tramples underfoot our codes and juggleries, our charms and “laws,” which are all against nature; our slave rises in revolt and shows himself our master, and there dawns the full light of natural justice. (trans. from Plato, Gorgias, Perseus).

(17) In the Theaetetus (172 to-b), the Socrates of Plato explains the inauspicious political consequences of the relativist thesis attributed to Protagoras, according to which every man is measure of the truth: "And likewise in affairs of state, the honorable and disgraceful, the just and unjust, the pious and its opposite, are in truth to each state such as it thinks they are and as it enacts into law for itself, and in these matters no citizen and no state is wiser than another . . . . But in the other class of things—I mean just and unjust, pious and impious—they are willing to say with confidence that no one of them possesses by nature an existence of its own; on the contrary, that the common opinion becomes true at the time when it is adopted and remains true as long as it is held.” (trans. from Plato, Theaetetus, Perseus)

(18) Cf., for example, Seneca, De vita beata, VIII, 1: "It is necessary to follow nature as a guide; reason observes it and consults it. Therefore it is the same thing to live happily and to live according to nature.” (Natura enim duce utendum est: hanc ratio observat, hanc consulit. Idem est ergo beate vivere et secundum naturam).

(19) Cicero, De legibus, I, VI, 18: "Lex est ratio summa insita in natura quae iubet ea quae facienda sunt prohibetque contraria."

The Melody and Harmony that is Law

Nathanael Culverwell, a English scholar of the law, wrote a book on the Natural Law entitled An Elegant and Learned Discourse of the Light of Nature. In the fourth chapter of that work, he discusses the nature of law. Culverwell expresses some dissatisfaction with St. Thomas Aquinas's definition of law in his Summa Theologica, Ia–IIae, Q. 90, art. 1 as Lex est quaedam regula & mensura, secundum quam inducitur aliquis ad agendum, vel ab agendo retrahitur (law is a certain rule and measure, according to which any agent is led to act, or restrained from acting). His complaint is that it is too restrictive. During his critique of the scholastic theologian, Culverwell, like a bird taking off in sudden flight, turns toward Plato. Spreading his poetic wings, Culverwell, relying on Plato, decides to liken law to music and pens these wondrous words:

A Law is such a just and regular tuning of Actions, as that by virtue of this they may conspire into a moral music, and become very pleasant and harmonious. Thus Plato speaks much of that Εὐρυθμία&συμφωνία [melody and harmony] that is in Law, and in his second book De Leg.7 he does altogether discourse of harmony, and does infinitely prefer mental and intellectual music, those powerful and practical strains of goodness, that spring from a well-composed spirit, before those delicious blandishments, those soft, transient touches that comply with sense, and salute it in a more flattering manner; and he tells you of a spiritual dancing that is answerable to so sweet a music, to these τὰθείοτατααὐλήματα [most divine flutings]. While the Laws play in consort, there is a Chorus of well ordered affections that are raised and elevated by them.

And thus as Aristotle well observes, some Laws were wont to be put in verse, and to be sung like so many pleasant odes, that might even charm the people into obedience.

’Tis true, that learned Philosopher gives this reason of it, they were put into verse, ὅπωςμὴἐπιλάθωνται, that they might remember them the better: but why may not this reason also share with it, that they might come with a greater grace and allurement, that they might hear them as pleasantly as they would do the voice of a Vial or an Harp, that has Rhetoric enough to still and quiet the evil spirit?

(from An Elegant and Learned Discourse of the Light of Nature, ed. Robert A. Greene and Hugh MacCallum, (Indianapolis: Liberty Fund, 2001) (spelling modernized).)