I am content to think of law as a social institution to satisfy social wants – the claims and demands and expectations involved m the existence of civilised society – by giving effect to as much as we may with the least sacrifice, so far as such wants may be satisfied or such claims given effect by an ordering of human conduct through politically organised society. For present purposes I am content to see in legal history the record of a continually wider recognising and satisfying of human wants or claims or desires through social control; a more embracing and more effective securing of social interests; a continually more complete and effective elimination of waste and precluding of friction in human enjoyment of the goods of existence – in short, a continually more efficacious social engineering (Roscoe Pound, Introduction to the Philosophy of Law, 1954: 47)
A single summer grant me, great powers, and
A single autumn for full ripened song
That, sated with the sweetness of my
Playing, my heart may more willingly die.
The soul that, living, did not attain its divine
Right cannot repose in the nether world.
Holy, my poetry, is accomplished …
Be welcome then, stillness of the shadows’ world!
I shall be satisfied though my lyre will not
Accompany me down there. Once I
Lived like the gods, and more is not needed.
(The German poet Hölderhn, extract from the poem ‘Nur einen Sommer’, translated by W Kaufmann in his essay ‘Existentialism and Death’, 1965: 59).
Roscoe Pound (1870–1964) is often called the founder of American sociological jurisprudence. Looking for the social phenomenon at the basis of legal philosophy, Pound (1954) defined law as the social institution that enabled human wants to be satisfied. A substantial part of his academic work (1921, 1943) consisted in the cataloguing of various claims, demands and desires, and classifying them as individual, public or social. Pound took the legal framework as an essential structure of a modern liberal society, and did not offer any qualitative evaluation of human desires, wants or demands. Instead he offers a narrative history of legal development in which modern law increasingly came to recognise individual ‘rights’ (particularly from the 18th century), and grant recognition to a wider diversity of human wants, claims, demands and social interests. Law is a technique of social engineering, and recent history shows the legal project as relatively successful; the mere fact of greater wants, demands, claims and desires indicates social progress.
By contrast, the German poet Hölderlin presents a radically different set of concerns wherein the aim of life is not simply to enjoy the goods of existence, rather existence needs expressive meaning. For Hölderlin, to simply live out our lives is not enough: humanity transcends animal life by its demand for meaning and its search for criteria of qualitative conceptions of living. We must live in such a way that we are prepared for death – we must seek to live, at least for some time, like the gods.
Every human society is, in the last resort, persons banded together in the face of death. This is the core understanding of liberal political philosophy, jurisprudence, and the sociology of religion.1 Death is the fundamental evidence of mankind’s ontological inadequacy; the irremovable limit to human existence. In the myths of the pre-modern, and the philosophical myths of the modern – for example, in variations of the social contract narrative – men and women join together in loneliness before death to sustain life and form society. In the tradition of liberal jurisprudence, founded by Thomas Hobbes (1651) and developed in recent decades by HLA Hart (1961), the basic aim of legality is survival. While the liberal finds it difficult to say what society is for, he is certain of what it is not: society is not a suicide club (Hart, 1961: 188) But what are the limits to this ‘society’? And what is the meaning to be given to the ‘social’?
Social existence comprises at least two differing aspects: the physical and the existential. To combat physical or biological death humans need to find shelter from the elements, eat, drink, engage in procreative activity, and so forth. But biological survival is not the entirety of existence: humans also face the issue of existential survival and existential death. Sex is necessary for biological survival but love is not. To love is to exist in a different frame than merely to survive, and to love may mean that death is of lesser importance. As Gabriel Marcel (1964: 241) once wrote: ‘As long as death plays no further role than that of providing man with an incentive to evade it, man behaves as a mere living being, not as an existing being’. That human existence transcends the merely biological is the paradox of sociality; it provides the ground for the twin extremes of terror and love that denote the truly human.
Physical security and existential security are two demands which invoke two sets of enemies. One set revolves around the pole of hunger, disease, killings, violence to the body, and lack of material resources. The other revolves around a less obvious pole involving fears of the unknown, desires for knowledge and esteem, the desire to create, to find beauty, and to be an individual. Law, utility, contract, economics – symbols of existential distance and calculation – provide the relational tools of the late-modern. By contrast, love not law, encounter not utility, contact not contract, denote concern for a different existential relation. How are they to be reconciled? Where is the beginning?
In the beginning there was nothing; no words, no vision, only the void. Call this what you wish – ‘black holes’ is the currently fashionable idea – but we now know that there was no God to lay out the foundation, to name the entities of the cosmos and prepare the script of our destiny. We now know that our societies are social-historical constructions; they, and we, could have become something different than they are today. We are a contingency. How can we face this? Is this realisation of social construction specifically a modern consciousness – as we tend to think – or did certain people always realise that humanity alone interpreted and laid out the meaning of the cosmos? And what does this realisation imply? Do we need to have a grasp of the totality of existence to answer questions of the meaning of social life; or is human history a constant movement of pragmatic enterprises and arguments within overall mystery?
We cannot know the totality of existence. While fashionable intellectuals announce this as the post-modern message, in pre-modern times this essential mystery went by the name of the holy. And the holy defies all attempts to partition it up into neat divisions for our consumption. In Hindu piety, for example, the holy is sometimes represented as gods but in doing so a (dialectical) unity of creator and destroyer is present. Consider Krishna, the most beloved of the Hindu gods. In the Bhagavad-Gita he is presented as ‘world destroying time’, but he also tells Arjuna, ‘I am the origin of all; from Me all [the whole creation] proceeds’. And he combines and contains those apparendy incongruent features: ‘I am the origin and the dissolution … I am immortality and also death: I am being as well as non-being … I am death, the all devouring and [am] the origin of things that are yet to be’ (for these and following quotes see Kinsley, 1975, aptly entided The Sword and the Flute: Kali and Krishna, Dark Visions of the Terrible and the Sublime in Hindu Mythology).
In the development of Hinduism the divine invokes both attractiveness and repulsiveness. The young Krishna epitomises the former, while the goddess Kali embodies the latter. The Gita is the central text, but beyond it those who identify with Krishna esteem the image of the child – the object of love and the physical relations of coddling and cuddling – who in time grows into a youth whose sexual cavorting, in particular with the equally young and beautiful cowherdess Radha, can only be described as a ‘carnival of joy’. Krishna brings to the world freedom and spontaneity, beauty and grace, fragrance and harmony, wildness and play, warmth and intimacy; approachable, irresistible, hypnotising, intoxicating, bewitching, he is spellbinding. Ecstatic love provides his route to the ultimate.
Coercion and consensus – the power to destroy and the power to enable, to create – lie intertwined. The flute is the symbol of the intoxicating beauty of the eternally youthful Krishna, while the sword is the symbol of Kali, who represents all the horrifying aspects of destructive forces. Descriptions portray her as bloodthirsty, ruthless, and fierce.
Of terrible face and fearful aspect is Kali the awful. Four-armed, garlanded with skulls, with dishevelled hair, she holds a freshly cut human head and a bloodied scimitar in her left hands … Her neck adorned with a garland of severed human heads dripping blood, her earrings two dangling severed heads, her girdle a string of severed human hands, she is dark and naked. Terrible, fang-like teeth, full, prominent breasts, a smile on her lips glistening with blood, she is Kali whose laugh is terrifying … she lives in the cremation ground, surrounded by screaming jackals. She stands on Shiva, who lies corpse-like beneath her … In her left hand she holds a cup filled with wine and meat, and in her right hand she holds a freshly cut human head. She smiles and eats rotten meat.
These readings are not the work of two sects or cults and mythologies; instead, while the images of Krishna and Kali denote different phenomena, the identity of each depends upon the existence of the other. And each embodies aspects of the other. Krishna cavorts with the cowherdesses but also makes Arjuna’s hair stand on end, and is both the life-giving origin of all and the destroyer of all. The same is true of Kali, to whom the faithful cry out: ‘Thou art the Beginning of all, Creatrix, Protectress, and Destructress that Thou art’.2
In time philosophy grew out of mythology. The aim of philosophy has always been to maintain the delicate balance between humanity and the cosmos. It interprets our intellectual creations, our rational models, in such a way to strip them of their mystery and turn them into entities we can relate to. For example, in ancient Greek mythology one of the functions of Zeus (the King of the Gods) was that of the patriarchal guardian of the city and of its laws. Zeus was capable of terrible retribution to those (such as Prometheus) who used cunning to defeat reason, and preferred arbitrary will to justice. But Zeus was also capable of many changes of mood, particularly when influenced by the sexual attraction and wiles of women. The first consort of Zeus, Metis, was a source of discord and Zeus devoured her, but his second, Themis, became the God of communal order and ‘collective conscience’ or social sanction. Mythology becomes philosophy through our increased range of interpretations. Thus the union of the belligerent Zeus and the pacific Themis may represent both the need to distinguish and balance the active and aggressive enforcement of commands (laws), with the ideal of social stability and quiescence, as well as illustrating that domestic safety requires at least the ability to have recourse to the sword. Although we can give this a gender-aware reading, in which the respective realms of the public and the sword are the domain of the male, while that of domestic peace is the female, another reading is of the necessity for the power of the sword to be joined to the wisdom of its social effects. As Zeus, without the influence of Themis, can be a terrible and uncivilised tyrant, so can law, blind to its social effectivity and consequences, be an uncivilised weapon. Several of the children of Zeus and Themis became the guarantors of the laws and social stability: most notably Dike, Eunomia, and Eirene. Dike came to personify the ideal of justice which raised men above the animal world. Over time dike would become the standard term for a law case. As a Goddess, Dike made judges strive to deliberate with logical straightness and not make arbitrary decisions; her sister Eunomia stood for the social and legal harmony attendant upon such reasoned behaviours, and Eirene embodied peace. Together they constituted the social idea of homonoia, or the ideal of a harmonious city community; the later philosophy of Plato and Aristotle takes up the task of understanding that idea.3
From our vantage point it appears that in the Homeric world ‘the basic values of society were given, predetermined, and so were a man’s place in the society and the privileges and duties that flowed from his status’ (MI Finley, 1954: 134). But this is a modern judgment, made with the benefit of 2,000 years of historical writings – it did not look so to the participants. Any discussion of concepts concerning morality or justice takes place within a mode of life which provides not only the resources but also the context for writing and speculation. To the Greeks we owe the origins of our western philosophical and social theoretical traditions. One aim of this tradition has been to transcend uncritical acceptance of the conventional life – to identify the conditions for a rationally meaningful existence. But how were the tools for understanding and criticising the context for ancient Greek life established? Greek literature and, in time, its developing philosophy, seem to reflect fundamental divisions in the human spirit: divisions between acceptance of the status quo and rejection of it, between desire for order and desire to transgress, between immanence and transcendence; between defence of conventional standards and scepticism towards those standards, between accepting one’s fate/role in life and desiring something else or other.
Consider the famous and tragic example of Antigone, the third of the Theban plays by Sophocles written in the 5th century BC (text used is the Penguin Classics, 1947). Antigone was one of the daughters of Oedipus, that tragic figure of male power who had been cursed by the Gods for mistakenly killing his father (the King of Thebes) and subsequently marrying his mother and assuming the throne of Thebes.4 After the death of Oedipus, civil war broke out and a battle was waged in front of the seventh gate of Thebes – his two sons led opposing factions and at the height of the battle fought and killed each other. Oedipus’ brother, Creon, uncle of Antigone, was now undisputed master of the city. Creon resolved to make an example of the brother who had fought against him, Polynices, by refusing the right of honourable burial. The penalty of death was promulgated against any who should defy this order, and the order was accepted as the lawful command of the ruler throughout the city. The play begins with Antigone confronting her sister Ismene.
Antigone is distraught, while her brother Eteocles ‘has been buried in full honour of the state, Polynices has been left unburied, unwept, a feast of flesh for keen eyed Carrion birds’. Antigone asks Ismene if she had heard of the order which she perceives as personally addressed to them:
It is against you and me he has made this order. Yes, against me. And soon he will be here himself to make it plain to those who have not heard it, and to enforce it.
This is no idle threat; the punishment for disobedience is death. For Antigone the dilemma is acute and a challenge to her royal blood: ‘Now is the time to show whether or not you are worthy of your high blood … is he not my brother, and yours, whether you like it or not? I shall never desert him – never!’ But Ismene responds: ‘How could you dare – when Creon has expressly forbidden it?’
Antigone feels bound by a normative obligation which transcends her position as a subject of Creon. Ismene, however, recalling the horrors of the events their family has suffered, appeals to Antigone to be realistic:
… now only we two left; and what will be the end of us, if we transgress the law and defy our king? Oh think, Antigone; we are women; it is not for us to fight against men;5 our rulers are stronger than we and we must obey in this, or in worse than this. May the dead forgive me, I can do no other but as I am commanded; to do more is madness.
With a touch of bitterness, Antigone releases her sister from the obligation to help her, but argues she cannot shrug off the burden:
If I die for it what happiness!
Convicted of reverence – I shall be content to lie beside a brother whom I love …
Live if you will; live, and defy the holiest laws of heaven.
Antigone juxtaposes two sets of obligations and laws. She feels bound by the laws of Heaven to bury her brother while she is bound by the laws of Thebes not to bury him. Her sister’s response demonstrates she also recognises the conflict: ‘I do not defy them; but I cannot act against the state, I am not strong enough’. For Antigone this is merely an excuse;6 she leaves to bury her brother resigned to her punishment. Her death will be ‘honourable’; to live in the knowledge of her failure to act would be to deny meaning to her life and make it a non-existence.7 The scene of the play shifts to the Assembly of Thebes where Creon is addressing his counsellors. After Creon explains the necessity for his command the counsellors announce their concurrence:
… you have given the judgment for the friend and the enemy. As for those that are dead, so for those who remain, your will is law.
Antigone gives symbolic burial to her brother. When the burial is discovered by the guards and reported to Creon he immediately suspects it to be the work of a man. In time, however, the sentries apprehend Antigone and bring her before him. Rather understandably, given the fact that he is now her official guardian and she is engaged to his son, Creon presents Antigone with the opportunity to deny she had knowledge of the command or, alternatively, that she had misunderstood its meaning. Antigone, however, does not take the opportunity:
I knew it, naturally. It was plain enough.
CREON: And yet you dared to contravene it?
ANTIGONE: Yes, that order did not come from God. Justice that dwells with the gods below, knows no such law. I did not think your edicts strong enough to overrule the unwritten unalterable laws of God and heaven, you being only a man. They are not of yesterday or today, but everlasting, though where they came from, none of us can tell. Guilty of their transgression before God I cannot be, for any man on earth. I knew that I should have to die, of course, with or without your order. If it be soon, so much the better. Living in daily torment as I do, who would not be glad to die?
When the punishment of death is about to be carried out, and its burden lies heavily on Creon, he offers a justification for its absolute necessity.
He who the state appoints must be obeyed to the smallest matter, be it right – or wrong. And he that rules his household, without a doubt, will make the wisest king, or, for that matter, the staunchest subject. He will be the man you can depend on in the storm of war … There is no deadlier peril than disobedience: states are devoured by it, homes laid in ruins, armies defeated, victory turned to rout. While simple obedience saves the lives of hundreds of honest folks. Therefore, I hold to the law, and will never betray it.
Creon further adds a patriarchal note:
Least of all for a woman. Better be beaten, if need be, by a man, than let a woman get the better of us.8
There are many tensions apparent in the words of the play, such as those between love and power, between family and state, between what we might call the public and the private, but the overriding tension is between the obligation to the legitimate commands of Creon – established as the rightful laws of Thebes – and the obligation to the laws of Heaven. Sophocles offers no way out. Antigone is doomed to die, as indeed is Creon’s son in despair at her fate.9
While the main dilemma focuses around the conflict between Antigone and Creon, the play offers a multitude of layers and possible readings including the conflict between love and duty,10 between men and women, between nature and culture, and between different conceptions of law and their ‘fit’ with the natural order. These ‘legal’ tensions are variously represented as:
(i) the demands of natural law verses legal positivism. The 19th-century German philosopher Hegel (see this text, Chapter 7), in his Phenomenology of Spirit, read the play as exposing the latent tensions of Greek society. Greek culture operated on the belief of total unity, based on a communal, ‘natural’ way of life. Antigone refused, however, to follow Ismene’s obedience to the natural law which subordinated women to men and which reinforced the human law of Creon’s commands, following instead the divine law which dictates that a member of the family must be buried by its relatives and its spirit will know no rest unless it is. Each is compelled to obey one law and disobey another. Creon’s ruling, moreover, made sense on its own terms. It was opposed, however, by divine law, carrying a contrary but strict authority, which insisted that Polynices be buried and that a member of the family assume special responsibility for this task. Hegel presents both demands as non-negotiable. Antigone is not able to operate as an autonomous individual choosing to do one thing rather than another; rather, she is the bearer of a divine injunction which is absolute. The tension is between the communal demand to follow the laws of the community as strict injunctions, accepting their immemorial status as the ground of their truth, and the supra-communal demand to obey the law to bury her brother and acknowledge the sacred character of the familial bond. Creon is charged with the responsibility of shaping the laws of the community, and he is equally bound, both as male and ruler, to obey the principle that an enemy of the state must not receive the honour of a burial, and to punish the woman who disobeys his edict. The community does not have the intellectual resources to resolve this internal conflict.11
(ii) an example of the command theory of law;
(iii) an early and undeveloped site of civil disobedience; an action impossible to conceptualise successfully since the social order did not provide the intellectual resources to sustain a concept of civil disobedience. The concept of civil disobedience, which came into existence in the enlightenment, allows an individual a ‘right’ to oppose part of the legal order in the name of the true spirit of the legal order. The right did not exist for the classical Greek, rather we have opposing sets of ‘duties’, specifically:12
(iv) the duty to one’s family versus one’s duty to the state, two conflicting and irreconcilable forms of duty which also represent the bonds of civil society in opposition to the ties of the political state;13
(v) the irrationality of women’s arbitrary subjectivity versus the cold reason of the male state expressed through the abstract duty to formal law;14
(vi) the demands of a practical reason which faces up to an immediate dilemma versus the demands of a theoretical rationality (Creon’s utilitarianism) which looks to a category of the state’s interests;
(vii) the early beginnings of individual rationality – subjectivity – against the view of justice as following the objective rules of the social body.
Writing in the early 1990s, Douzinas and Warrington (1994), suggest another, perhaps ‘post-modern’, reading. In their eyes Antigone’s dilemma is the subject of so much analysis partly because the existential quandary occurred at the beginning of our traditions of writing and needs to be captured in writing for us to understand it. The desire(s) of Antigone to face (a personal) justice – Antigone’s Dike – is a precursor to modern ethics, a state of primordial being before the ordering methodologies of rational thought and writing have established their demarcations. Antigone’s Dike is a very personal existential crisis – there were no rules which could resolve the issue successfully. Later systems of intellectual thought define existential dilemmas as unorderlessness and turn the rawness of existence into things that can be analysed – in other words, transform existential dilemmas into conceptual discussions – so that ‘ought’ structures of moral systems arise and demarcate themselves from the ‘is’ of ‘natural being’. As a result we hand over moral dilemmas to specialised technocrats and live out our lives within a bureaucratically administered social space.15
Antigone speaks to the tragic and contradictory aspects of human existence; perhaps there is no solution, no master reading. Antigone has constantly demanded philosophical interpretation and serves as a beginning to jurisprudence since the task of philosophy is to provide rational guidance for practical life, to enable us to relate to our institutions, and to interpret and criticise our practices. When institutions do not have a settled intellectual tradition of debate – of justification and critique – their forms and functions remain deeply ambiguous and liable to abuse (if we can even identify abuse from use).16 It is a task of literature to (re)present life; it is one task of jurisprudence to interpret and provide critiques of the ethos of legality in life. Perhaps we can take a message: jurisprudence ‘ought’ to remember its basis is life, and not become obsessed by analysing an ‘idea’ thought up out of the conditions of life. One idea that labelled a prominent tradition is that of Natural Law, given birth to by the Greeks.
If you control the way children play, and the same children always play the same games under the same rules and in the same conditions, and get pleasure from the same toys, you’ll find that the conventions of adult life too are left in peace without alteration … Change, we shall find, except in something evil, is extremely dangerous. (Plato, The Laws, Penguin edn, 1970: 797.)
It is difficult to obtain a right education in virtue from youth up without being brought under right laws; for to live temperately and hardily is not pleasant to most men, especially when young; hence the nature and exercises of the young should be regulated by law… We shall need laws to regulate the discipline of adults as well, and in fact the whole life of the people generally; for the many are more amenable to compulsion and punishment than to reason and moral ideas. Hence some persons hold that, while it is proper for the lawgiver to encourage and exhort men to virtue on moral grounds, in the expectation that those who have the virtuous moral upbringing will respond, yet he is bound to impose chastisement and penalties on the disobedient and ill-conditioned, and to banish the incorrigible out of the state altogether (Aristotle, Nicomachean Ethics 10. 9. 8–9).
The writings of the two Greek thinkers hailed as the founders of western philosophy – Plato and Aristode – display differing approaches to the task of stabilising social order and creating mechanisms for structuring social existence. While they adopted contrasting methodologies, however, both sought the security of a ‘truth’ which resided in nature. While the world may seem full of variation, chaos, diversity and disorder, both asserted that a natural order lay behind or inherent within it, and this order, once its basic principles were known, could found man’s social order.
While ‘pure truth’ is independent of particular social relations, all human knowledge is pragmatic, perspectival and methodological. The story of the development of classical Greek social thought is beyond this text, but, in summary, it arose with the development of a multitude of city-states and was spurred on by the need to handle new issues created by the advancement of knowledge and trade. Its change from ‘primitive’ mythology to (what we now give the status of) revered ‘classical flowering of man’s reason’ spanned eight centuries at least. While modern anthropology has tried to escape from eurocentric views of an irrational primitive society which later become a modern rational society, we remain with ideas of ‘primitive’ societies as dependent upon the forces of the natural world to an extent which is hard to understand today. In these early societies the level of social power and technology was such as to make the paramount issue that of the connection with, and relationship to, the forces of nature.
Certainly there was a time (and perhaps we are at risk to assert that it is not still with us) when nature imposed itself so imperatively on humanity as almost totally to control humanity. So-called primitive mankind shared in the life of nature, was initiated via rituals and ceremonies into its routine, in order to participate in the structure of that life – and thereby keep within nature’s grace. The natural – conceived as the numinous and the sacred – imposed respect, and became the source of norms for their behaviour. Life involved norms and practices, rituals and ceremonies, regarding agriculture, fishing, hunting, mating, giving birth, the transition from childhood to adulthood, coping with illness, death and burial. The same natural imperatives that were believed to operate throughout nature – the climate, the terrain (mountains, rivers, the sea, the desert, the forest), the sun and the moon – bound mankind. But whereas primitive humanity may have felt either powerless before nature, or one minor power amongst many, they felt embedded in nature; by contrast modern man understands nature as a site for man’s activities – an arena where man may impose his will via technology.17 For the modem person, natural law can no longer be felt to be just there, since nature is no longer just there.18 The modern understands that a view of natural law as man acting in obedience to the dictates of nature downplays the aspect of man’s collective and individual will; the modern wants to assert his/her ‘rights’, and sees the world as a space to play and construct, to develop individual life projects. Conversely, classical natural law did not imply natural rights, rather it implied natural functions, ends and duties. It constructed a web of relations which positioned and gave the self meaning, outside of which was existential death.
As Mycenaean power crumbled under the pressure of the Dorian tribes who invaded mainland Greece in the 12th century BC, a whole type of kingship and form of social life, centred on the palace, was destroyed forever. While the religion and mythology of classical Greece (the 4th century BC) was rooted in the Mycenaean past, the social and cultural structure was dramatically different. The person of the divine king vanished from the Greek social and cultural universe. As this centre disappeared, the resulting psychological change prepared the way for the development of those twin innovations which are the foundation of the legacy of classical Greece: the institution of the city-state, and the development of abstract, rational, or conceptual thought (for an account seeVernant, 1982).
The city-state was both the creation of man’s power to organise, and the place of imperfections. A living reality, it invited betterment. It required rational analysis in the hope of problem solving and improvement:
The origin and ordering of the world for the first time took the form of an explicitly posed problem to which an answer must be supplied without mystery, an answer gauged to human intelligence, capable of being aired and publicly debated before the mass of citizens like any question of everyday life (Vernant, 1982: 107).
The government of the city was bound up with a new idea of space. Vernant argues the institutions of the polis were designed and embodied in what may be called a political space. The first urban planners – for example Hippodamus of Miletus – were political theorists, and the organisation of urban space was but one aspect of a more general effort to order and rationalise the human world.19
In this organisational process the Greeks tended to describe the world in terms of polar opposites, which for them differed in kind; for example:
| rational | irrational | culture | nature | moving | at rest | deep | shallow |
| dry | wet | fast | slow | strong | weak | dark | bright |
| big | little | far | near | heavy | light | many | few |
| hot | cold | male | female | earth | sky |
Law knew its own polar opposition: legal | illegal. As the Greeks understood it, things have particular sets of qualities which make things that are, say, hot, a different kind of thing from those that are cold. The Greeks appeared to believe that these were qualities that could exist on their own. The hot could exist independently from the cold, the legal from the illegal, the male from the female.
This process of making clear-cut distinctions enabled Plato to identify the structure of the mathematical and geometric as the foundation for secure knowledge;20 to ‘be’ was to exist in such a form as to be countable and easily visualised.21 This structure to knowledge both linked, and yet separated into their respective domains, heaven and earth, epitomising both the orderliness of justice and providing the means of keeping self-advantage at bay (see the words of Socrates addressed to Callicles in Gorgias, 508a).
The talk about the universal idea of (the) good always takes as its point of departure the human question: what is (the) good for us?23 To have done otherwise would have seemed inauthentic. Even in the most clear-cut ‘idealist’ of Plato’s writings, the Republic – which laid out a template for the creation of the ‘ideal’ state, where the legal regime leads to the good life – the foundation is an understanding of the nature of the practical and the practical life. The Republic opens with a discussion of whether the good is pleasure (Hédoné), as the mass of the population (hoi polloi) appear to believe, or reason (phron’esis). Does it consist in the satisfaction of one’s immediate drives, or insight into the good? At stake is the arrangement of a practical rationality which will legitimate legal power. The tensions of communal life are to be balanced by the directional power that (transcendental) knowledge of the just, the good and the right, offers. Our belief that the concepts of the just, of the right, of the good, refer ultimately to phenomena which lie somewhere beyond the messiness of the practical life, is essential to enable the intellect to direct the operations of the practical life. But how are we to know the reality of the just, the good, the right? Can we trust the opinions which surround us? Can we reach the true through discussion or argument? No, argues Plato; our circumstances deceive us: we need to transcend our opinions and conventions and see, or grasp, pure reality.24 Plato is certain of his epistemological methodology. In the simile of the sun (Republic) Plato combines his thesis of the world of pure essences (the ‘ideas’), as contrasted to the world of appearances, with the thesis of our divided selves, wherein the temporal is downgraded compared to a soul which knows essences. It would appear that genuine knowledge comes about when the soul ceases wandering within the narrow sphere of material bodies, detaches itself from sense perceptions, and liberates a kind of intelligence which looks to the unchanging aspect of things (eidos). Genuine knowledge, then, requires an intelligence that is not tied to sense perceptions. It also requires an intelligible world that can be distinguished from the material world. The ‘eye of the soul’ and ‘ideas’ will be the preconditions of knowledge. The soul must free itself from the body and its changeable senses, and put its intellectual faculties to work. It must turn its gaze toward objects full of light, and, bathed in the light that emanates from those objects, see essential truth, beauty and permanence.
To reach the truth, to ascertain what is truly natural and good for humanity, we need to surpass the empirical situation we find ourselves in. Of course our deliberation and choice is located within a communal sense of what it is fitting to do. We are authentically ethical by virtue of participating in the language, customs, and practices located in institutions, which define what ‘we’ are. As each human child grows and comes out of the site of natural dependency into personhood, he/she finds – in the language, customs and institutions of the place – a pre-given set of social things which he/she must learn, and internalise or appropriate, so that he/she can make his/her own space; the T and the ‘We’ are co-dependent. The successful adult has made these resources his/her own and has lived in and through them. The danger, as Plato makes clear in his simile of the cave, lies in a suffocation within convention (Republic, 514a–521c).25
Plato illustrates the need to enlighten mankind by offering a story in which a group of people have been living in a large cave, where from childhood they have been so positioned that they cannot see the light, but live according to shapes and shadows which they take to be ‘real’. They have created a social existence based on illusions and practices which bear no relation to ‘true’ reality; however, they believe these illusions and are content.
Plato asks what would happen if one of these prisoners were forced to be free, namely if he were forcibly taken out of the cave and released into the sunlight. While at first he would be virtually blinded, and he would be unable to see any of the things that he was now told were real, gradually he would come to see the real objects themselves. In the light of the sun the prisoner would come to realise the falseness of the life of the cave.
If he went back to his former seat in the cave, he would at first have great difficulty, and not compete effectively with the other prisoners in their conventional practices. Their conclusion would be that it was not worth trying to go up out of the cave. Indeed, Plato concludes they would kill the person who was trying to set them free. It would be extremely difficult to ‘correct’ the practices of the cave. Left to their own habitual devices there is no escape for an individual from the life of the cave as great effort and strength of resolve are required.
Obviously, one theme of this story is Plato’s desire to defend philosophy from the claim that it made men unfit for the rough and tumble of everyday political life. Epistemologically, Plato is arguing that one can only be rational in the practical life by knowledge of the ‘other’ realm – the realm of pure truth – and that real knowledge is only of use if one returns and applies it to the practical life. Those with the real knowledge must be prepared to fight hard for its acceptance and ensure their societies are governed according to the precepts of that knowledge.
This is a myth of enlightenment. Mankind lives the life of the cave and we can only create the correct structures for social existence through the pursuit and attainment of pure truth. We need a new education, an enlightenment, which converts our ways of life. Truth exists, and we can know it if we shift our focus from the world of appearances to the world of ideas (the realm of ‘true reality’). How is this enlightenment to be achieved? And what if people do not wish to be enlightened? Instead of looking in the wrong direction, our gaze must be turned ‘the way it ought to be’. Since even the ‘noblest natures’ do not always want to look in the right direction, the rulers must ‘bring compulsion to bear’ upon them to ascend upward from darkness to light. Similarly, when those who have been liberated from the cave achieve the highest knowledge, they should not be allowed to remain in the higher world of contemplation, but must be made to come back down into the cave and take part in the life and labours of the prisoners. This narrative of two worlds – the dark world of the cave and bright world of light – is Plato’s way of rejecting the scepticism and relativism of the Sophists, who argued that no perfect knowledge of the way society ought to be ordered was possible. Against them, Plato is arguing that not only is real knowledge possible, but it is also infallible. Real knowledge is infallible because it is based upon what is truly real. The dramatic contrast between the shadows and reflections of life in the cave and the actual objects, was for Plato the decisive clue to the different degrees to which human beings could be enlightened. Plato saw the counterparts of shadows in all of human life and discourse. Disagreements between men concerning the meaning of justice, for example, were the result of each one looking at a different aspect of the reality of justice. One person might take justice to mean whatever the rulers actually commanded the people to do, on the assumption that justice has to do with rules of behaviour laid down by the ruler. Just as a shadow bears some relation to the object of which it is the shadow, so this conception of justice has some measure of truth to it. Different rulers, however, command different modes of behaviour, and there could be no single coherent concept of justice if men’s knowledge of justice were solely derived from the wide variety of examples of it.
The Sophists were sceptical about the possibility of true knowledge; impressed by both the variety and constant change in things, they argued that since knowledge comes from individual experience, our knowledge reflects this variance and is, therefore, relative to each person. Plato agreed that the result of basing knowledge upon our senses is variation, but claimed that real knowledge is of the essence, of the idea. It is not a question of what is believed, but of what is truly right. In the story of the cave, pursuing real knowledge can correct the distorted lifestyle of those engrossed in the practical life. Plato is often accused of dangerous elitism in claiming that individuals who know the good are superior to those who remain caught in existing moral or political conventions. But this is to miss the very real human concern and sacrifice of those who have obtained a sense of the just, of the good, and so forth. Guided by their experience of the real essence of the just, the good, they can move beyond the conventional just and good’ and enter into the fray with vigour. However, they will have to battle with others who accept the actual operation of the conventions of the society as the only measure of the good and the just; they will have to battle with the shadows and images of the dikaion, that is, with human things (tá ton anthropon), and that which is of human concern (tá anthropeia). He who has the knowledge of the right and just, or the good, may not win. For in the struggle he who knows the way of the cave, the bribes, the lies, the use of the shadows, the ‘incomplete information to the people’, the vicious cross-examination of the witness, is only too well fitted for the contest. But who is the realist? And must the man who aspires to do more than merely play the games of fear or survival need to believe in something ‘other’ than the common life in order to transcend its pettiness?26
Real knowledge is not simply a set of knowledges of essences, of the real forms of things lurking within their varying appearances, but adds up to sophia (wisdom).27 Specialised knowledge is required, but it must be distributed and applied (see Book IV of the Republic); the city is to be well advised by it.
The ideal state has two key attributes: (i) it is founded upon justice; (ii) all the citizens within it are happy. To achieve this Plato seeks to create a small scale city-state modelled upon the rather tribalist and closed societies of pre-classical Crete and Sparta. Plato’s naturalism is not a scientific analysis of the reality of contemporary Athens – which he appeared to find distasteful – but an intellectual nostalgia for the supposed purity of a mythical golden age where all things belonged to their ‘natural station’. To avoid his image of the ideal society being seen as a return to the past, Plato presents a narrative of the development of city life. While the first city came about purely as the result of material self interest, it soon began to pursue the idea of the common good. What is the common good? How is it to be known? Plato appears confident that some can understand what the common good truly entails, and is quite ready to advocate compulsion and manipulation in realising these goals. Justice then means something like ‘what is necessary for the functioning of the common good’. Democracy has the appeal of freedom of thought, but this also is the reason for its self-destruction. Democracy espouses ‘liberty’ whereby ‘every individual is free to do as he likes’ (Republic, 375). Although many today find pluralism, diversity and variety attractive, Plato stressed its disintegrating effects. Authority is stripped of its foundations, the young do not look up to their elders, ‘and the minds of the citizens become so sensitive that the least vestige of restraint is resented as intolerable’ (384). He warns that dissension grows on the lack of social cohesion, and class struggle will develop. We need a comprehensive social vision that assures us that the social structure is just. This runs counter to the liberal image of freedom but, Plato asks, what price freedom in a society which displays its inequalities? Such a society will inevitably give rise to a struggle between the opposing sections – the rich and the poor – over the material resources of society. And what of the moral condition of the society in which experimentation and diversity are seen as values? Plato gives a warning in his description of a permissive society in Book VIII. Lee (1974: 30) suggests that ‘disunity, incompetence and violence, which he had seen at Athens and at Syracuse, were the main dangers against which Plato thought society must be protected’.
What is the role of law? Law ensures collective action. Referring again to the narrative of the cave, Plato has a main character in the dialogue argue that:
our job as lawgivers is to compel the best minds to attain what we have called the highest form of knowledge, and to ascend to the vision of the good … and when they have achieved this and see well enough, prevent them … [from] remaining in the upper world, and refusing to return again to the prisoners in the cave below and share their honours and rewards …
The object of our legislation is not the special welfare of any particular class in our society, but of the society as a whole; and it uses persuasion or compulsion to unite all citizens and make them share together the benefits which each individually can confer on the community; and its purpose in fostering this attitude is not to leave everyone to please himself, but to make each man a link in the unity of the whole (Republic, 519e–520).
The 20th century liberal philosopher Karl Popper is scathing in his analysis of this ‘natural law’, seeing it as the attempt to recreate a ‘natural’, ie tribal and collectivist, mode of social life’ (1945, vol I: 80). The law pervades the thought patterns of all, sustaining a social existence in which the collective overwhelms individuality.
The sense of law constituting the ideal republic is vasdy different from the liberal idea which has come to stress tolerance and plurality. First we must understand that even Plato’s use of the concept we translate as ‘republic’ meant something different to its modern usage. In his time the Greek word indicated rather an interlinking of ‘constitution’, ‘state’, and ‘society’. Law was not viewed as something autonomous from the social; the ideas of modern constitutional law, infused by the ideology of the rule of law and the separation of powers (Bamett, 1995; Loveland, 1996), find little resonance. In part this was a reflection of the smaller scale which the Greek city-state operated within – courts, for example, were not usually staffed by legal professionals but were more a popular institution – and it was also a reflection of the belief that virtue and law were co-penetrative. Good law led to virtue and virtue gave good law. Ethics, politics, education, law and philosophy, made up a practical, indivisible whole.
The primary force sustaining the republic is the character and education of the ruling classes or a specialised set of ‘guardians’. All individuals are to undergo training of the intelligence to control the passions, and this training is mirrored in a system of education or widespread nurturing and instruction of the young to accord with the character of the ruler. Education, however, is not seen as a transfer of knowledge into the soul, like putting sight into blind eyes; it is more like turning the eye to the light (Republic, 518b–c). The educator is to provide the conditions in which the right kind of mind can develop its capacities. The system is authoritarian in that it is the only education offered; no alternative system is presented, nor are alternative values represented as desirable. For the average citizen there is no encouragement to question social belief; free educational enquiry is the preserve of the elite who have come through a long secondary education. The education system imposes on the young a single set of values in such a way that they will not be seriously sceptical about them in later life. It is not simply that Plato appears to hold that there is moral truth to be known, and we can be confident that we can come to know it, but he has little wish to educate people to be autonomous, ^lato can see no point in subjectivism; rather, it is crucial to establish authority. Since it is only the elite that have the resources of education, time and support to engage in sustained intellectual questioning, it follows that the mass of the people cannot hope to achieve anything by such enquiry, and to encourage them in widespread questioning of the social conventions underpinning order would be dangerous. What value could there be in a person struggling and engaging in a personal process of speculation and not coming to the right answer, or only partially arriving at the answer? Those who know the answer ought to simply give it to that other person.
For the modern liberal, Plato has not only a misplaced confidence in absolute truth actually being found, but displays a naive trust in the ability of the elites to perceive it and act with integrity so that they use their power according to the dictates of such knowledge. Contemporary philosophers of knowledge and science are much less sanguine about claims to ‘truth’; Plato simply trusts the elites too much in the exercise of power. Furthermore, as Aristode was to point out, Plato appears unable to distinguish between unity and uniformity. Given his division of people into various social roles, the unity of the society comes from the performance of the roles with uniform sameness. Moreover, Plato has little time for those who cannot perform their role with the appropriate success. It is clear from his discussion that he regards it as impossible for someone with a chronic, debilitating illness to have a life that is worth living (Republic, 407a–407b), and that he cannot concede that someone can find sources of value in their life other than the approved ones. Consider the oft-discussed example of the carpenter who develops a chronic disease. Plato states there is no point in supporting what is left of his life with the help of medicine, it is better for him to die and be rid of his troubles, since his life is of no benefit to him if he cannot perform his job (Republic, 406d–407a). If a person cannot fulfil the social role that structures his life, his life is not worth living. The view of the person is irrelevant, it is mere subjectivity at odds with the objective reality.
In the ideal Republic each person belongs to one of three social orders or social classes legitimated by the system of education and upbringing. The ultimate bedrock is an acceptance of the underlying truth of the natural position and role of persons. Those who have successfully completed their education as ‘guardians’ will become rulers (phylakes) or warriors (called auxiliaries, epikouroi). Plato further stressed the imperative to maintain unity at all times, a need which causes him to suggest the requirement for a foundational myth; a magnificent narrative which would carry conviction for the whole community and provide legitimation for the division of classes and the various institutions (414–415d).28 First the rulers and the soldiers are persuaded that the upbringing and education given them was something that happened in a dream, in reality they were fashioned in the depths of the earth, and their mother, earth herself, brought them up, when they were complete, into the light of day. They should, therefore, think of the land in which they live as their mother and protect her if attacked, while their fellow-citizens must be regarded as brothers born of the same earth. Then the Guardians should tell the rest of the citizens another ‘noble falsehood’, to the effect that while all citizens (members of this community) are siblings, born of the same mother, the earth, they are different in composition, some having gold in their nature, some silver, others iron or bronze.29 Moreover, it is important that the metals, which differentiate the classes, neither be mixed nor confused. So while a parent who recognises that its child has gold in its composition should ensure it is promoted to the class of potential Guardians and its education intensified, the parents of the child with iron or bronze in its make-up must harden their hearts and degrade it to the ranks of industrial or agricultural workers.
Three points underlie Plato’s ideal republic: (i) the unity of the state is paramount; (ii) this is not maintained primarily by laws and rules but by the Guardians’ character and the general education system that produces the Guardians and others; and (iii) the Guardians do not hesitate to command and use the resources at their disposal, including those both discursive and hegemonic, in pursuit of the interests of the state. Unity is vital. There are certain pragmatic factors at work: to be unified, the state must not be too big or too small, and further, it must not contain extremes of wealth; since a real city is a unity and not a divided phenomenon (422e). A city requires unity of purpose – this is the real constitutive mechanism.30
Plato is undoubtedly an elitist as well as a centralist; power is to be held by a systematically produced and educated body of experts. The system will produce citizens of good character who in turn produce children better than themselves, and so forth. Law has a limited role and should not hinder the rulers: ‘good men need no orders they will find out easily enough what legislation is in general necessary’ (425e). The education of the Guardians, rather than a legal constitution or code of statutes, provides structural strength to the republic, and the Guardians are not constrained by a constitution or laws in their relationship to the other classes which are the objects of their rule. To modern sensibilities the social order is wrapped in a total ideology of rank reflecting a supposed natural order; ultimately even the rulers come to believe the myth of their origin and superior composition. Thus, the security of this ‘ideal state’ is, in reality, founded upon the readiness of the population to believe a myth.31
If we were to get a dictator who is young, restrained, quick to learn, with a retentive memory, courageous and elevated … and ‘lucky’ too, in this point: he should be the contemporary of a distinguished lawgiver, and be fortunate enough to come into contact with him. If that condition is fulfilled, God will have done nearly all that he usually does when he wants to treat a state with particular favour (Plato, distillation of dialogue in The Laws, 710).
Plato’s Republic is often presented as all one needs to know of Plato, since it represents his purest statements; sometimes commentators argue it is actually an extreme programme designed to shock the reader into thinking about how the contemporary social order could be changed (Plato, it is claimed, knew full well it was impossible to put into practice). By contrast, his last work, The Laws, appears to offer an intellectual compromise with the purity of his idealism which might be taken as a practical suggestion as to how an actual society might indeed successfully be formed. As Saunders (1970: 29) puts it, the guiding principles of this new utopia were:
(a) that certain absolute moral standards exist;
(b) that such standards can be, however imperfectly, embodied in a code of law;
(c) that most of the inhabitants of the state, being innocent of philosophy, should never presume to act on their own initiative in modifying either the moral ideas or the code of laws which reflect it; instead they must live in total and unconditional obedience to the unchanging rules and regulations laid down for them by the legislator.
Again Plato’s idea is for a small state with adequate material resources, one in which there are no large discrepancies of wealth or status. When first founded the laws may need modification in the light of experience, but they will soon settle into a form that will be virtually unchangeable. Plato charges a Nocturnal Council with the task of overseeing research into the operation of the legal system and suggesting some changes. Rational obedience, rather than fear of sanctions, is the most effective method of gaining obedience, hence each section of the law is to be prefaced by a preamble explaining the rationality of the law and, hopefully, making the coercive element of the positive law redundant. It is better to refrain from crime, or pursue a certain course of action because one is convinced of the rightfulness of the action, than to be moved only by fear of the consequences.
To Karl Popper, Plato is dangerous since he presents the cosmos as if there is a realm of pure essences or ontological certainties which the elites can come to know. Natural law would then be man’s obedience to the laws constructed in accordance with that knowledge. The just society is that which would be governed by such knowledge and hence the polis would be made rational and sober. In the properly organised polis every man would find happiness carrying out his natural tasks. The ruler returns from his encounter with truth to subdue the political chaos of the polis and creates the just state. The ruler is guaranteed to be legitimately exercising his power not through a political legitimacy – for example, democratic consent – but through his grasp of the mathematical nature of the ontology of the cosmos and his vision of that ontology. Popper reads Plato as a man of genius whose political and jurisprudential imagination was inspired by a fear of social chaos and the need for an ideology of ‘truth’ to guarantee social control. But there are occasions where we can also read Plato as suggesting that his theory of the ideas is a political and not an epistemological necessity.32 The key passage is where Plato has Socrates finish his speech on the possibility of the just polis by an allusion to its impossibility:
Perhaps it is a paradigm set up in heaven for him who wills to see and, seeing, founds a polis within himself. It makes no difference whether the polis exists somewhere or will ever exist. He will do only the deeds peculiar to that polis, and none else (Republic, 592b2 A).
Socrates appears to argue that the ‘true’ polis of absolute justice will never be encountered in actual history, nor is it possible actually to encounter pure ‘truth’; the rational person cannot claim to have total possession of the truth, but only an ‘ideal’ or concept. The rational person who seeks justice must turn to idealism, not because he wishes to escape from political commitment, but because he needs ideals – or mathematical models – in order to orientate himself in the otherwise disparate contingency of the empirical. His claim to the truth of natural law is a political commitment to certain rationally perceived ways of organising and expressing the meaning of human life.
Whereas Aristotle (384–212 BC) is usually depicted as the originator of a more empirical approach in contrast to Plato’s idealism, he nevertheless shares the belief that there is a certain ontological structure to human nature and the cosmos. Aristode’s writings are acutely logical, but work on the basis of classifying material provided by techniques of observation (empiricism) loosely based upon biological studies. Aristode demands that we seek the essence of things, but that we do not do this by postulating that everything is a reflection of some pure idea or essence, rather we should try to ascertain the essential nature of things as they operate in the natural processes of the world. Our search for the essence of a thing is a search for the nature of that thing: what it is, and how it fits into the wider picture of this world’s operation. Plato’s theory of a timeless other world of pure essences seems to postulate that the actual ‘reality’ of things somehow existed outside the time and space structures we take for granted when we relate to things. But, for Aristotle, we are to turn our attention to the way things operate in this world around us. What guidelines are we to use? We have to look for the underlying similarities in the motion and change we see around us. Our basic assumption is that change is not random, that things develop in predictable ways, and that we differentiate between changes which are natural and those which are the product of human artifice. Natural changes are responses to the built-in ways of behaving that natural entities have; for example, plants grow into particular forms with distinctive ways of ‘being’. Natural objects change towards their ‘end’, and it is through understanding this process that the ‘good’ of objects and actions is made visible: ‘the end for which each action is done is the good, the good in each particular case, and in general the highest good in the whole of nature’ (Metaphysics, 982b). The dominant process in life is change – development -not some static state of being. All Aristotle’s writings upon human life are thus seen to be based upon a teleological or purposive account of human nature: everything in nature has a distinctive ‘end’ to achieve, or a function to fulfil. The cosmos is teleological in structure.33
Since social existence is natural and not some forced compromise, it is in the nature of humans to live in society. Aristode argued that the contemporary Greek society was the result of a gradual process in which the nature of man was being realised.
Historically, Aristode narrates, the city-state is an organic result of the coming together of several villages into a state of’self-sufficiency’. The city-state does not exist to merely satisfy material needs; it rather seeks to satisfy man’s need for a satisfying existential life, and we need to strive to make this a way of life in accordance with man’s nature.
… while [the city-state] comes into existence for the sake of life, it exists for the good life. Hence every city-state exists by nature … [it] is the end of the other partnerships, and nature is an end, since that which each thing is when its growth is complete, we speak of this as being the nature of each thing, for instance of a man, a horse, a household. Again, the object for which a thing exists, its end, is its chief good; and self-sufficiency is an end, and a chief good. From these things, therefore, it is clear that the city-state is a natural growth, and that man is by nature a being inclined to a civic existence (politikon zoon) (Aristotle, Politics, 1.1).
Development occurs through the dialectic of potentiality and actuality. Everything in the cosmos has a power to become what its form has set as its end. The end of an acorn, for example, is to become an oak tree. At the present time its actuality is an acorn; its potentiality is an oak tree. The change from potentiality to actuality is a fundamental law of nature. For the acorn to become an oak tree the right conditions must exist; equally the right conditions must exist for the boy to become a man. The process is developmental and builds on the basic natural material of the entity; the boy must exist and possess a certain nature for the man to become. Every living thing has a different capacity for activity and organisation, and there are different elements with which bodies are constituted or organised: Aristotle called these different ways a body can be organised souls and he gave a hierarchy of purposes. The vegetative soul has simply the state of existing; the sensitive soul both exists and senses; and the rational soul combines the faculties of existence, sensing and thinking. The rational soul has the capacity for deliberation – it searches for the truth in the nature of things and discovers the underlying principles of human behaviour.
The Nicomachean Ethics begins with the premise that every art, every enquiry, and, similarly, every action and pursuit aims at some good. Thus the question for ethics is, ‘What is the good towards which human behaviour aims?’ Whereas Plato appeared to argue that man aims at a knowledge of the idea of the good (this supreme principle of good was separated from the world of experience and from individual men and arrived at by the mind’s ascent from the visible world to the intelligible world), for Aristode the principle of good and right was embedded within each man: ‘Good is not a general term corresponding to a single idea’ (N Ethics, 1096b). Aristode argues that even if Plato were correct, it would be of litde consequence to our practical life since the supreme good would be lost in mystery: ‘If the goodness predicated of various things in common actually is a unity or something existing separately and absolute, it clearly will not be practicable or attained by man … But the good we are now seeking is a good within human reach’ (ibid, 1096b–1097a). We must search for conceptions of the good and the right that provide us with practical guidance for living the good life. While principles of ethics could be discovered by studying the essential nature of man, and attained through his actual behaviour in daily life, Aristode warns, however, that the level of precision is not exact. But we should not imply from the variation and error inherent in ethics that ideas of right and wrong are purely conventional; Aristotle is certain that they exist ‘in the nature of things’.
How can we know what are the ends for man? We need to reflect upon the way human life is lived, and come to understand the way that we need to live in order to bring out our human purposes. We can distinguish instrumental ends (acts that are done as means for other ends) and intrinsic ends (acts that are done for their own sake). Take the waging of war where various people and activities are involved jointly in an all-encompassing project. Carpenters build barracks and, when completed, they have fulfilled their function as carpenters. The barracks also fulfils its function when it provides safe shelter for the soldiers. The ends here achieved by both carpenters and building are not ends in themselves, but are simply instrumental in providing housing for soldiers until they move on to their next stage of action. Similarly, the builder of ships fulfils his function when the ship is built and successfully launched, and here again this end, in turn, is the means for transporting soldiers to the field of batde. The doctor fulfils his function to the extent that he keeps soldiers in good health, and the ‘end’ of health in this case becomes a ‘means’ for effective fighting. The officer aims for victory in batde, but victory is the means to peace. Peace itself, though sometimes mistakenly seen as the final end of war, is also the means for creating the conditions under which men, as men, can fulfil their function as men. When we discover what men aim at, not as carpenters, doctors, or generals, but as men – men in general – we will then arrive at action for its own sake, and for which all other activity is only a means, and this, says Aristode, ‘must be the good of man’. The good of man is something that exists distinct from the various tasks in which men engage. A person can be good at his profession without being a good man, and vice versa. Different levels of existence and functionality are present. To discover the good towards which man should aspire we must discover the distinctive function of human nature – the good man is the man who is fulfilling his function as a man.
As all parts of the human body have functions we can seek the overall function of the species – ‘what is the function of man?’ What is the distinctive mode of activity of man? The answer must come from empirically based analyses of man’s nature and the needs of social life. The answer cannot be simply life, because that plainly is shared with all forms of living existence, even by vegetables. Nor is it the life of sensation, since that is the merely animal. Instead man’s end lies in an active life involving rational reflection and action. The human good is the ‘activity of soul in accordance with virtue’.
The most important aspect of the person is the human soul which has two parts, the irrational and the rational. In its turn the irrational part has two subparts, the vegetative and the desiring or ‘appetitive’ parts. Often the desires and the appetites act in opposition to ‘the rational principle, resisting and opposing it’. Morality is the ongoing task of mediating the conflict between humans’ rational and irrational elements.
Understanding and guiding action is a central responsibility for morality. Nothing can be called good unless it is functioning; one must be a participant in the game to claim a prize. Morality strives rationally to control and guide the irrational parts of the soul; the good man lives the life of virtue.
Human life is not a static but an active phenomenon – from birth the person strives to become fully human – to live a full life. How are we to lead the good life? All human action should aim at its proper end. But can we ascertain what this means by empirical observation? Everywhere we see men seeking pleasure, wealth and honour; is this all there is to human life? Aristode says no. While these aims have value, none of them has the self-sufficient and final qualities – ‘that which is always desirable in itself and never for the sake of something else’ – attainable by reason, which would make it the true end of human action. Happiness is the end that alone meets all requirements for the ultimate end of human action;34 indeed, we choose pleasure, wealth and honour only because we think that ‘through their instrumentality we shall be happy.’ Happiness is another word or name for the good for humans, since, like good, happiness is the fulfilment of our distinctive function. In fact, claims Aristotle, we experience happiness when we act virtuously: ‘happiness is a working of the soul in the way of excellence or virtue’.
But this instandy appears strange. For the empirical world is full of people who are plainly not acting virtuously yet look happy; criminals who are not caught, politicians who lie and cheat to gain or hang on to power. Conversely, the virtuous man often seems deeply unhappy. How can we retain faith in the concept of the virtuous life?
Aristotle distinguishes between real happiness and mere pleasure. The temptations of the world move us with their promises of pleasure but these are only deceptions – there is a real, genuine happiness possible if we pursue virtue. We must not forget our divided selves – we are both rational and full of empirical appetites for physical and psychological pleasure. Although we should follow the general rule of morality, namely: ‘to act in accordance with right reason’ – and therein make the rational part of the soul control the irrational part – our appetites and desires are stimulated and aroused by the vast array of things outside the self, such as objects and persons.35 Our passions, our capacity for love and hate, attraction and repulsion, creation and destruction, can quickly overwhelm us and pull us in a multiplicity of directions. By themselves they cannot offer any master principle or measure of selection. What should a person desire and how much? Under what circumstances? How should humans relate to material things, wealth, honour, and other persons? We have no automatic tendency to act the right way in these matters; ‘none of the moral virtues arises in us by nature; for nothing that exists by nature can form a habit contrary to its nature’. The ethics of virtue demands that we develop habits; habits of right thinking, right choice, and right behaviour. Man is to be trained or formed for society by inculcation into virtue.
Since our passions make us capable of a wide range of action, from abstinence to excess, we must discover the proper meaning of excess or lack, and thereby discover the appropriate mean. Aristode applies a dualist system of ‘extremes’ by which we can work through our empirical feelings. We understand that we sometimes feel emotions of fear, confidence, lust, anger, compassion, pleasure and pain, in extreme form; that is too much or too little, and in each case we understand we felt wrongly. Experiencing these emotions in the right degree and on the right occasions and towards the right subject; that is, to experience them as we should, is to experience the mean. To attain this state of equilibrium is to experience virtue. Again, vice is either extreme, excess or defect, and virtue is the mean. It is through the rational power of the soul that the passions are controlled and action is guided. The virtue of courage, for example, is the mean between two extremes: namely, cowardice (too little or lack) and foolhardiness or overconfidence (too much or excess). Virtue, then, is a state of being, but it is not that there is some simple formula that we must always adhere to, rather we are called upon to follow the ‘right course’ of action: ‘… It is the middle disposition in each department of conduct that is to be praised, but one leans sometimes to the side of excess and sometimes to that of deficiency, since this is the easiest way of hitting the mean and the right course’ (ibid, 1109b).
Our actions are to be the result of ‘deliberate choice, being in the relative mean, determined by reason, and as the man of practical wisdom would determine’ (ibid, 1107 a). Virtue is to act according to the mean, ‘a settled disposition of the mind’ but the mean is not the same for every person, nor is there a mean for every act. Each mean is relative to each person inasmuch as the circumstances will vary. In the case of eating, the mean will obviously be difFerent for an adult athlete and a little girl. But for each person, there is nevertheless a proportionate or relative mean, temperance, clearly indicating what extremes – namely, gluttony (excess) and starvation (lack) – would constitute vices for them. Moreover, for some acts there is no mean at all; their very nature already implies badness, such as spite, envy, adultery, theft, and murder. These are bad in themselves and not in their excesses or deficiencies. One is always wrong in doing them.
How, asks the modern liberal (Popper, 1945 Vol II; Kelsen, 1957, Ch 4) are we to escape from social convention in identifying what is excess and lack? Is this whole system simply a working through of the conventions of society?36 To a large extent this criticism cannot be avoided, however, Aristotle’s concern is with the ethics of a situation or, in other words, with what has come to be called ‘practical rationality’. All choice exists within some form of established social order: while the context for Aristode is of a much greater closed order than that which the liberal desires, he is placing a large weight upon authentic choice. In this sense Aristode’s writings are timeless; we always exist in a social context and we have the weight of authentic choice inescapably upon us.
We have two kinds of reasoning, theoretical (which provides knowledge of fixed principles or philosophical wisdom), and practical (which supplies a rational guide to a person’s action under the particular circumstances in which they find themselves), or practical wisdom. The rational element enables man to develop moral capacity since, while he has a natural capacity for right behaviour, he does not act righdy by nature: reason is required to cope with the indeterminate number of possibilities in life. We are not destined by some inevitable force to the good; goodness is in man potentially but will not come to fruition without our deliberating about it, and then choosing in fact to do it. And against Plato and Socrates, who seemed to imply that once a man knew the good he would always do it, Aristotle did not believe that such knowledge made deliberate choice redundant. We can only have a moral action because of the capacity to choose – if we did things simply out of instinct, for example, we would not call them moral actions – moral choice combines a desire to do the right with reasoning about that end. Moral choice requires reason.
Human morality therefore is essentially linked to the structure of moral choices and this in turn implies human responsibility. If we are to praise or blame, praise virtue and blame vice, a person must be truly capable of making a choice. Aristode held that an act for which a person could be held responsible must be a voluntary act. A genuine choice comprises a voluntary action. But not all our actions are voluntary. An involuntary act is one for which a person is not responsible because it is (1) done out of ignorance of particular circumstances, or (2) a result of external compulsion, or (3) done to avoid a greater evil. Voluntary acts are those for which a person is responsible because none of these three extenuating circumstances obtain.
In general, virtue is the fulfilment of man’s distinctive function, and his experiencing of his feelings and emotions as the mean between extremes. Each virtue is the product of rational control of the passions. To live the life of virtue is not to negate or reject any of the natural capacities of man, but to control them. The moral man lives life to the full employing all his capacities, both physical and mental. While man can adopt intellectual virtues like philosophical wisdom and understanding through teaching and learning, moral virtue comes about as a result of habit, thence comes the name ethics {ethtke), ‘formed by a slight variation from the word ethos (habit)’. All the moral virtues have to be learned and practised, and they become virtues only through action, for ‘we become just by doing just acts, temperate by doing temperate acts, brave by doing brave acts’. The ‘cardinal’ moral virtues are courage, temperance, justice, and wisdom.
The term ‘unjust’ is held to apply both to the man who breaks the law and the man who takes more than his due, the unfair man. Hence it is clear that the law-abiding man and the fair man will both be just. The just’ therefore means that which is lawful and that which is equal or fair, and ‘the unjust’ means that which is illegal and that which is unequal or unfair (Aristotle, N Ethics, 1129a).
Justice is ‘the chief of virtue’, but there are two senses of justice: a general and a particular sense.
In the general sense of justice, a man is acting unjustly when he breaches the law. Is this a purely legal positive sense of breach: is a man always unjust when he breaches every validly passed law? No. Some laws are bad laws and it would not be unjust to breach them. Although Aristode believes that law is an instrument by which the city-state is directed towards the common good or through which an excellent ruling class guides the city, there may be laws passed which do not fulfil their purpose.
There are two kinds of particular justice: distributive and corrective. Corrective justice is 'that which supplies a corrective principle in private transactions’ (ibid, 1131a), and is exercised by the judge in settling disputes and inflicting punishments upon offenders (Aristode points out this is a complex matter. For example, he distinguishes between formal and substantive justice. A fine of a certain amount for a minor offence may seem to embody justice when applied equally to all offenders. However, the fine will affect the rich man much less than the poor man). Distributive justice is an entitlement to a share in social goods relative to a person’s function in the social body. Commentators have called this the principle of proportionate equality (and, conversely, proportionate inequality): it is not a question of subjectively preferring one man to another and, therefore, rewarding him more, but of justifying preferences by means of identifiable, generally accepted criteria. The differing functions of men in the social body justifies a natural inequality – it corresponds to the nature of things. The structure of distributive justice is such that those who excel at their functions – for example, the excellent teacher – should receive greater rewards. The less deserving should receive lesser rewards. Much of this appears unproblematic; it enables, perhaps, a thesis of equality in so far as all are human, but an inequality insofar as each offers different skills and performs different tasks. It is these skills and tasks which determine differential distribution. If persons are equal they must have equal shares; if persons are unequal they must have unequal shares. Contravening this principle amounts to injustice, but what are to be the determining standards and criteria of equality and difference?
Drawing comparisons and agreeing criteria of judgment are, however, problematic issues. Even if the standard were to be ‘contribution to the (true) interests of society’, both the nature of the society’s true interests and the nature of the contribution are deeply contestable. Aristotle suggests that in practice we can resolve this difficulty through exchange processes and social rules within which we calculate fair and equal deals (in Book V of the Nichomachean Ethics Aristotle enters into a discussion of the economics of transaction, taking into account the mechanics of money and demand). The legal system can create the normative structure for this process.
Once we place confidence in a fairly operating, open market process, what do people bring to the process of exchange and negotiation? What rewards do individuals deserve in their social roles? Aristotle suggests the criterion of desert is related to the overall conception of the purpose of society or the Greek city-state. Aristode criticises Plato’s assertion that every state is formed to supply the necessities of human life, asserting, by contrast, that the primary aim is ‘to achieve the good’ (Politics Bk IV, Ch iv, ss 11 ff). Thus Aristotle can rank the importance of trades and classes of worker depending on how they contribute to this end. The procedure underlying social justice is, therefore, the correct delineation of qualitative differences and differentiations in value of the various parts of the state, and even though the state is a communion (or fellowship) united by a common aim and by common action, it is composed of dissimilar members, distinct functions and policies, and diverse modes of life and excellence.
It is, however, only possible to work out a coherent sense of social desert if the state does not become too large. Furthermore, only within a relatively stable society can the mean of autonomy or self-government be achieved. To be free is ‘to govern and to be governed alternatively … to be under no command whatsoever to any one, upon any account, any other wise than by rotation, and that just as far only as that person is, in turn, under his also’ (Politics, 1317b). The free man participates in the political creation of the laws, he is part of the living constitution of the state. The law is an instrument of command, but it is of free and natural command: ‘all to command each, and each in its turn all’. Thus, we might say, law is ultimately a subsection of politics and jurisprudence a subsection of political philosophy. In Politics Aristode was clear that, since the law was the order of the political community, justice was a function of the state and the task of law was to determine what is just. Justice, then, must be a part of the function of politics. The question of justice mediates between law and the political; it does not simply translate concerns from two distinct spheres, but conjoins related and interacting social phenomena. What is the end of the political association? To create the conditions of peace and enable human flourishing. If there were other means to achieve this then justice – in the sense of the laws and the structure of distribution thus enabled – would be redundant.37
Aristotle appeared to believe that there were natural laws governing moral and political life. The (positive) laws of the state are obviously a matter of convention – they are created and enforced by various civil institutions – and are mutable, while the laws which exist by nature are not derived from human action, but are unalterable, having the same force and validity throughout. He expressed this by way of an analogy with fire, which invariably burns the same way in both Greece and Persia, while men’s ideas of justice, and other conventions, vary from place to place and from time to time. Behind the fire burning uniformly everywhere can be found law-like statements relating to the process of combustion, which we come to understand through reasoning upon what we observe. Aristode seems to argue that a moral law must be as rational in its nature as a scientific one and that both can be revealed by a process of reason and observation; this basic idea, interpreted in various fashions, was to have a profound effect on all ideas that came after. But even for those who followed this early empirical approach, while it was all very well to agree that the world should be the site of rational analysis, agreeing, however, on what the world signified was a wholly different issue.
1 The sentence is adapted from Peter Berger (1967: 52) and reads in its context: ‘Every human society is in the last resort, men banded together in the face of death. The power of religion depends, in the last resort, upon the credibility of the banners it puts in the hands of men as they stand before death, or more accurately, as they walk, inevitably, toward it.’
2 In the writings of the 19th-century Hindu saint, Sri Ramakrishna (1974: 11 and 17), a passionate devotee of Kali, the Divine Mother, the being of the goddess is to contain at the same time a unity of opposites. In the temple her image stands in basalt, spectacularly bedecked in gold and jewels, upon the prostrate body of Shiva in white marble: ‘She has four arms. The lower left hand holds a severed human head and the upper grips a bloodstained sabre. One right hand offers boons to her children; the other allays their fear. The majesty of Her posture can hardly be described. It combines the terror of destruction with the assurance of motherly tenderness. For she is the Cosmic Power, the totality of the universe, a glorious harmony of the pairs of opposites. She deals out death, as She creates and preserves. In an early vision of Ramakrishna, Kali emerged from the Ganges, came to the land, and presently gave birth to a child, which she began to nurse tenderly. A moment later she assumed a terrible aspect, seized the child between her grim jaws, and crushed it. As she swallowed the child, she re-entered the waters of the Ganges.’
3 Philosophy comes out of mythology, but perhaps, never fully escapes from a mythological foundation. Western philosophy’s birth with Plato and Aristode contains the grace of the gods. In Protagoras Plato gave a foundational natural explanation of society in that while primitive men could feed themselves they came together to seek protection from wild animals. However, social life was virtually impossible since man was without civil skill (politike techne), or the capacity to live in community with others. The city life men entered into was dangerous because of their own ill-behaviour, but Zeus bestowed upon man the faculties for mutual respect and a sense of justice that civic life requires. The philosophy of Plato then takes on the task of finding rational and concrete methods for constituting the ideal city-state. For an argument that highlights the role of mythology in contemporary jurisprudence see Fitzpatrick, (1992) The Mythology of Modem Law.
4 Antigone is destined to a tragic life from the circumstances of her birth. In Oedipus Rex Oedipus realises the awful plight of the identity of his children by Jocasta (his natural mother). Antigone is both his sister and his daughter; the unwritten rules of kinship and the attribution of identity had been breached.
5 This is frequently translated as ‘we were bom women, showing that we were not meant to fight with men’; in the Greek Ismene uses the verb phyo, indicating that it is by nature (physis) rather than social convention that women do not attempt to rival men.
6 Several scholars have depicted Antigone as a masculinised woman. Antigone shared the exile of her father, while Ismene stayed in Thebes. Ismene has therein been indoctrinated into the beliefs of patriarchal society – men are born to rule, woman to obey – while Antigone has known greater self-sufficiency. In later scenes of the play Antigone often refers to herself with a pronoun in the masculine gender, and Creon – in deciding to punish her – states ‘I am not a man, she is the man if she shall have this success without penalty.’ In the later stages Antigone even refers to herself as the sole survivor of the house of Oedipus – thus casting her sister in the role of the living dead. In choosing physical survival Ismene has lost her existential status, her life has no meaning in the eyes of her sister.
7 To writers who can loosely be described as existential – for example Marcel, Jaspers, Nietzsche, Heidegger – individual human life comes with the burden that the individual is called upon to give it meaning. The idea of death serves as the ultimate testing ground. Life is the challenge of living and testing the meaning of living while conscious of human mortality. While mere existence is a matter of biological and social functions, existentialism points to a subjective, self-determining aspect of life – the task of using life wisely, lovingly, and honestly.
8 Creon consistently displays patriarchal prejudices. He fails to understand his son Haemon’s love for Antigone, refers to his own wife as a ‘field to plow’ (line 569; a sentiment which reflected the belief that it was the male seed which produced children, and saw the female as merely providing a fertile soil for the seed) In The Second Sex, Simone de Beauvoir argues the phallus/plow – woman/furrow symbolism is a common tactic reinforcing patriarchal authority and the subjection of woman. Creon is clearly afraid of being bettered by a woman and warns his son against such an event (lines, 484, 525, 740, 746, 756).
9 Ultimately Antigone reverts to the female role: she first laments that she will die a virgin, unwed and childless, and then commits suicide after being entombed alive in a cave under Creon’s orders. Suicide is regarded as a feminine mode of death – however Haemon, Creon’s son, also commits suicide as does Eurydice, Creon’s wife.
10 After they have heard the fate of Creon’s son, Haemon, the chorus announces the destructive force of love: ‘Love, invincible love, who keeps vigil on the soft cheek of a young girl, you roam over the sea and among homes in wild places, no one can escape you, neither man nor god, and the one who has you is possessed by madness. You bend the minds of the just to wrong, so here you have stirred up this quarrel of son and father. The love kindling light in the eyes of the fair bride conquers.’
11 Hegel (Phenomenology of Spirit, AV Miller, trans 1977: para 466): ‘Since it sees right only on one side and wrong on the other, that consciousness which belongs to the divine law sees in the other side only the violence of human caprice, while that which holds to human law sees in the other only the self-will and disobedience of the individual who insists on being his own authority. For the commands of government have a universal, public meaning open to the light of day; the will of the other law, however, is looked upon in the darkness of the nether regions, and in its outer existence manifests as the will of an isolated individual which, as contradicting the first, is a wanton outrage.’
13 Continuing Hegel’s reading, it is impossible for either Creon or Antigone to escape guilt. The structure presents multiple duties: each obeyed one set of laws at the expense of another. Guilt in Greek life does not reside so much in the evil intention of the agent, for agency is, by later standards, undeveloped or at least underdeveloped – the structural imagery of fate carries all before it. Guilt inheres in actions against the law of the social order even if they did not intend that result and could not have acted differently. It is a tragic position in which both Antigone and Creon, in disobeying one law and obeying another, assume guilt, although neither could have acted other than they did.
14 Again epitomised by Hegel’s reading of Antigone. In his Philosophy of Right, published in 1821, Hegel is concerned with the types of rationality in the world and he views world history as a matter of the development and clash of modes of rationality. For Hegel man seeks knowledge of universal conditions through conceptual thought and willing objectivity. Women are concerned with the substantive matters identified through concrete individuality and feeling. Men look to the external world and thus:
‘Man has his actual substantive life in the state, in learning, and so forth, as well as in labour and struggle with the external world … woman has her substantive destiny in the family, and to be imbued with family piety is her ethical frame of mind.
For this reason, family piety is expounded in Sophocles’ Antigone … as principally the law of woman, and as the law of a substantiality at once subjective and on the plane of feeling, the law of the inward life, a life which has not yet attained its full actuahsation; as the law of the ancient gods, “the gods of the underworld”; as “an everlasting law, and no man knows at what time it was first put forth”. This law is there displayed as a law opposed to public law, to the law of the land. This is the supreme opposition in ethics and therefore in tragedy; and it is individualised in the same play in the opposing natures of man and woman.’ (TM Knox, trans, 1952: para 166)
15 Douzinas and Warrington work their analysis for a specific purpose: to advance a thesis that modern legality and ethics have lost any real connection with moral being and become mere technique. Their project in reading Antigone is to invoke a time and a place where justice was a more pressing figure, less de-humanised, more ‘real’ in that it was a set of demands at the level of the ‘other’s’ (here Polynices’) real presence (‘the beloved head and face of my brother’), rather than of some abstract formal argument, or being bound by a moral idea. In their argument, the intellectual categories and demarcations which modernity has constructed have lowered our appreciation of the reality of human ties and interactions. Douzinas’ and Warrington’s post-modern demand is to reinstate the ‘face’ of the ‘other’ as a real phenomenon in our moral discussions.
16 For Leo Strauss (1953: 101) the analysis of law cannot escape from ambiguity:
‘Law reveals itself as something self-contradictory. On the one hand, it claims to be something essentially good or noble: it is the law that saves the cities and everything else. On the other hand, the law presents itself as the common opinion or decision of the city, ie of the multitude of citizens. As such, it is by no means essentially good or noble. It may very well be the work of folly and baseness. There is certainly no reason to assume that the makers of laws are as a rule wiser than “you and I”; why, then, should ‘you and I’ submit to their decision? The mere fact that the same laws which were solemnly enacted by the city are repealed by the same city with equal solemnity would seem to show the doubtful character of the wisdom that went into their making.’ The question, then, is whether the claim of the law to be something good or noble can be simply dismissed as altogether unfounded or whether it contains an element of truth.
‘The law claims that it saves the cities and everything else. It claims to secure the common good. But the common good is exactly what we mean by ‘the just’. Laws are just to the extent to which they are conducive to the common good.’
We can accept Strauss’s highlighting of the issue, without needing to commit ourselves to Strauss’s particular definition of the just.
17 For Antony Giddens (1990) pre-modern cultures faced a different combination of trust and risk than modern cultures. The general context of the pre-modern was of the overriding importance of localised trust. The mechanisms which provided trust were:
(i) kinship relations as an organising device for stabilising social ties across time-space;
(ii) the local community as a place providing a familiar milieu;
(iii) religious cosmologies as modes of belief and ritual practice providing a providential interpretation of human life and nature;
(iv) tradition as a means of connecting present and future, the culture being past-orientated in time;
While the environment of risk consisted of:
(i) threats and dangers emanating from nature, such as the prevalence of infectious diseases, climatic unreliability, floods, or other natural disasters;
(ii) the threat of human violence from marauding armies, local warlords, brigands or robbers;
(iii) risk of a fall from religious grace or of malicious magical influence.
18 By contrast the modern person lives a life disembedded from nature and re-embedded in abstract social systems. By the disembedding of social systems, Giddens refers to the lifting out of social relations from local contexts of interaction and their restructuring across indefinite spans of time-space.
Abstract systems depend upon symbolic tokens (media of interchange which can be passed around without regard to the specific characteristics of individuals or groups that handle them at any particular juncture) for example, money, and the establishment of expert systems. Systems of technical accomplishment or professional expertise organise large areas of the material and social environment in which we live today. The lawyer and the system of legal knowledge, the car designer and factory production. Everyday life requires ‘faith’ in the fact that the numerous things we interact with – cookers, washing machines, cars, public transport, buildings, road traffic systems, bank accounts, credit cards, insurance, etc – work as they are ‘supposed to do’. This is a faith occasioned by participation in the practices of everyday life and reinforced by recourse to law. (Behind much of the activities and the conditions of operation of the entities are regulatory agencies over and above professional bodies whose function is to supervise and protect the consumers of expert systems, bodies which licence machines, keep a watch over the standards of aircraft manufacturers etc).
19 Vernant (1982: 126–7) points out the new social space was organised around a geographical centre which thus became the most valued. The welfare of the polis rested on those who were known as hoi mesoi, since, being equidistant from the extremes, they constituted a fixed point on which the city was balanced. Individuals and groups occupied symmetrical positions in relation to this centre. The agora, which represented this spatial arrangement on the ground, formed the centre of a common public space. All those who entered it were by that fact defined as equals, isoi. By their presence m that public space they entered into relations of perfect reciprocity with one another. Note also the restricted space that women moved in within classical Athens. Gamer (1987: 84–5) points out that even though it is possible to list times and places where it was acceptable, and even expected, that women would make public appearances, there is much evidence that they were generally confined to the inner quarters of the house, and that the wealthier the house, the more the servants did away with the need for the mistress to go outside. Women did not even accompany their husbands to dinner parties in other houses, or appear for dinner in their own home in the presence of their husband’s guests.
20 In The Open Society and Its Enemies: Vol I Plato, Popper (1945: 31) argues that Plato exemplifies this ‘methodological essentiahsm’. The task of pure knowledge or science is to discover and describe the true nature of things, that is their hidden reality which resides elsewhere than in the appearances our senses reveal to us.
21 By contrast if everything is interlinked how can we be sure that something is actually hot and not cold? Legal and not illegal? Bad and not good? The contrary view, that instead of pairs of polar opposites we have a continuous scale of degrees of the one and same quality (for example, that darkness is a zero intensity of light, and rest is a zero degree of motion), requires a wholly new form of mathematical calculation, and one which is difficult to visualise. An example is the difficulty of Japanese leaders to plead in the war trials of the Second World War either guilty or not guilty. Their argument was that they were both, since the structure of their social order, and their ideas of duty and responsibility, meant that elements of guilt and innocence were completely intertwined and impossible to separate.
22 Plato (c427–347 BC) is recognised along with his ‘teacher’ Socrates and his own pupil Aristotle as one of the vital definers of the western tradition in philosophy and social thought. He came from a family that had played a prominent part in Athenian politics and it would have been natural for him to follow the tradition. He was shocked by its corrupt nature, however, and sickened by the execution in 399 BC of his teacher and friend, Socrates. In Plato’s youth the democratic movement consisted of men of humble origins who had the power to sway the popular assembly through rhetoric; once in power the policies tended to be populist, what would please the people, rather than a rational analysis of what the situation required. In 386 he founded the Academy, a school for statesmen. This reflected Plato’s belief that nothing could be done with the contemporary political situation, and the best hope lay in training a future generation in the rational pursuit of true knowledge and the necessity of applying this to the practical realm of politics. His ideal was rule by philosopher-king. His opponents were the Sophists, who had a school of their own which taught the qualities required for success in everyday life; the key being rhetoric, or the art of self-expression and persuasion. Plato felt that a training in rhetoric alone was dangerous since it gave a person the power to express his/her desires and persuade others, without guidance in its proper use or providing any guards against abuse. Vie Republic (written c 375 BC; references to Penguin revised edition 1974, trans D Lee) his best-known treatise, was a set of dialogues on the ideal state; The Laws (another written in dialogue style; a description of a Utopian state to be founded in Crete in the 4th century BC) was written towards the end of his life (text used Penguin edn, 1970, trans Trevor Saunders).
23 See Socrates’ self-portrayal in the Phaedo and the discussion in the Philebus as to the extent to which the passion of our drives and our consciousness can be balanced into an harmonious whole in our lives.
24 Plato is usually read as the pupil of Socrates. Socrates was not content with accepting conventional explanations, but kept asking for the meaning of expressions and upset the confidence of the debater in his opinions. While this argumentative process was in pursuit of truth or the essential nature of things, Socrates does not appear to believe that the process can give an absolute answer. Thus Socrates appeals to the modern liberal, such as Karl Popper, who holds that while truth is the object of scientific and philosophical enquiry we will never reach absolute truth. Plato, by contrast, seems to believe that humans cannot understand the subtlety of this position and must, absolutely must, believe that some things are simply true. Not true in the sense of the very best that we can argue for as the result of our methodologies and our investigations, or by agreement, but simply true; absolutely, trans-historically, true.
25 The point of the narrative is practical; as Plato puts it, who should ideally take on the role of guardians of the state if not those who know most about the principles of good government and have an interest in a way of life that does not cause them to abuse their power position? The contrasting reality of Athenian politics can be gauged from Plato’s letters. In the seventh letter, after discussing his reaction to the injustice of the trial and death of Socrates, he talks of his interest in politics and disgust at the reality which led to his formulation of the Republic.
‘… the more closely I studied the politicians and the laws and customs of the day, and the older I grew, the more difficult it seemed to me to govern rightly. Nothing could be done without trustworthy friends and supporters; and these were not easy to come by in an age which had abandoned its traditional moral code but found it impossibly difficult to create a new one. At the same time law and morality were deteriorating at an alarming rate, with the result that though I had been full of eagerness for a political career, the sight of all this chaos made me giddy, and though I never stopped thinking how things might be improved and the constitution reformed, I postponed action, waiting for a favourable opportunity. Finally, I came to the conclusion that all existing states were badly governed, and that their constitutions were incapable of reform without drastic treatment and a great deal of good luck. I was forced, in fact, to the belief that the only hope of finding justice for society or for the individual lay in true philosophy, and that mankind would have no respite from trouble, until either real philosophers gain political power or politicians become, by some miracle, true philosophers.’ (Quoted in the translator’s introduction to the Republic, Penguin edn 1970: 16.)
26 The question must be faced, however, what is the actual basis of this knowledge of the true and of the good? In Plato’s case his discourse, particularly in his autobiographical writings (namely the Epistles), appears as a mystical or religious experience, wherein the light suddenly breaks through to the consciousness of the self: ‘As a result of continued application to the subject itself and communion therewith, it is brought to birth in the soul on a sudden, as light that is kindled by a leaping spark, and thereafter nourishes itself (Epistle VII, 341). But what does this mean? Does this mean that for Plato the totality of reality – the realm of the pure ideas, where pure truth and good reside – is actually a mystery? That it is only by some spiritual or mystical experience that we can be sure that we have come across the ‘true’ truth? If so, then the secret of justice can never be reached by rational processes – all that the ‘law and justice of jurisprudence’ can amount to is human, or debased and fallible accounts of law and justice. Did Plato actually realise that pure justice will always remain a mystery?
27 Take a rule-bound model of a legal system. The theory of the techné is to learn the methodology of applying general rules, but the gap between theory and practice may be only too obvious. The living practice of the institution, the day-to-day arrangement of courts, magistrates, lawyers, witnesses, plaintiffs and defendants, may demand a methodology which comes from the realm of general experience having to do with the relationship of ends and means in practical or pseudo-political action. The knowledge of rules, per se, contains nothing to ensure that they are applied correctly. In Metaphysics Aristode argues that the practitioner, for instance the healer, can be more successful than the specialist (in that case the scientifically trained doctor). And while Plato stresses the importance of practical experience in his programme of education, he goes further, realising that all rules must be interpreted in order to be applied. But here, as in all activities, practice is a form of living theory, and creating theory is a form of practice. One can undertake a theoretical examination of interpretation, but to engage in interpretation is to enter into a practice.
28 Plato is recognising that the system needs a source of legitimacy which is greater, and other, than itself. Traditionally, the commentators stress, legitimacy must always come from some other source than the act of seizing itself. All systems require a process whereby their power is seen as authority by those who are subjected to it: that is, as somehow ‘natural’. Legitimation, the process whereby we refer to a posited source of value that renders power as authority, is a complex circular event. The source of authority must always be posited, brought into being, and yet it is always posited as prior, as coming before the very process. The legitimating urge refers back to some event, a founding, a state of original being – no matter how remote – which fixes the truth of the present state of being.
29 The great theorist of legitimacy, Max Weber (discussed in Chapter 11 of this text; for his major work see Economy and Sodety, 1978), stressed that, when the fortunate classes or individuals wish to justify their position, the appeal to tradition is the usual method. Weber refers to the common myth of ‘blood superiority’ as similar to the line of succession a king would use to justify his own reign. Tradition is one of the three dominant modes of legitimation along with the ‘charismatic’ and ‘legal-rational’ modes. But tradition is the widest, since even the ‘modern’ mode of legal-rational authority requires long standing common values, and in the modern legal system – the ideal form of legal-rational domination – the imagery of custom, precedent and veneration for decisions of the past is central.
30 Thus, actual existing entities, which are referred to as cities, may not be true states for Plato, since they do not have the sense of purpose and unity that a real city (state) should have. The Guardians are empowered to employ measures to ensure unity and remove sources of conflict and instability. Property is to be held in common, and nuclear families destroyed, replaced by state nurseries and regulated breeding programmes. Both measures are designed to make the city more of a unity. Conflicts of interest are not regulated by a legal framework, they are simply done away with. Thus a pluralist society would be seen as a failure by Plato, in that its members regard themselves as belonging to a number of smaller groupings, many of which have conflicting aims.
31 In Conditions of Liberty : dvil society and its rivals, Ernest Geilner (1994: 31–2) argues, generally speaking, that human societies maintain order by coercion and superstition. The enlightenment tried to replace this foundation by another wherein society was based on truth and consent. For Gellner–
‘there are fairly good reasons why only coercion can consntute the foundation of any social order. Any system in operation must have possible alternatives, both of organisation as such and of the distribution of positions in that stable organisation. For a very significant proportion of the population these alternatives would always appear preferable, and these people cannot all be assumed to be fools. So it must be presupposed that they would endeavour to bring about that (to them) more favourable alternative, unless restrained by fear. The argument is, alas, cogent: the rather special conditions which may induce people to accept the social order even without fear, voluntarily, are indeed the preconditions of civil society, but these do not emerge easily or frequently. Only in conditions of overall growth, when social life is a plus-sum, not a zero-sum game, can a majority have an interest in conforming even without intimidation.
The reason why society must be based on falsehood is equally obvious. Truth is independent of the social order and is at no one’s service, and if not impeded will end up by undermining respect for any given authority structure. Only ideas pre-selected or pre-invented and then frozen by ritual and sanctification can be relied upon to sustain a specific organisational set-up. Free inquiry will undermine it. Moreover, theories, as philosophers like to remind us, are under-determined by facts. In other words, reason on its own will not and cannot engender that consensus which underlies social order. The facts of the case, even if unambiguous (which they seldom are), will not engender a shared picture of the situation, let alone shared aims.’
32 This reading would lead us to argue that Plato’s image of justice is ultimately political and not metaphysical. This is in contrast to the dominant tradition of reading Plato is to see his conception as ultimately ontological; as reliant upon the claim that there is indeed a timeless realm of ideas or essences which constitute the ultimate ‘truth’ of existence.
33 While change for Aristotle appears to have included motion, growth, decay, generation, and corruption, he appears much more optimistic than Plato. For Popper (1945, vol II: 5), Aristotle remains within the sway of the Platonic idea of essences, but now the essence of something lies in its final stage of development, rather than in some original state. Teleology is the claim that ‘the form or essence of anything developing is identical with the purpose or end or final state towards which it develops … The form or idea, which is still, with Plato, considered to be the good, stands at the end, instead of the beginning. This characterises Anstode’s substitution of optimism for pessimism.’
34 ‘Happiness above all else appears to be absolutely final in this sense for we always choose it for its own sake and never as a means for something else’ (N Ethics, 1097b).
35 Love and hate, or the concupiscent and irascible ‘passions’, provide the two basic ways in which the appetitive part of the soul reacts to these external factors. The concupiscent passion leads one to desire things and persons, whereas the irascible passion leads one to avoid or destroy them.
36 For Hans Kelsen (1957, 125), while Aristode’s ethics ‘pretends to establish in an authontative way the moral value, it leaves the solution of its very problem to another authority: the determination of what is evil or a vice, and consequently, also the determination of what is good or a virtue. It is the authority of the positive morality and the positive law – it is the established social order. By presupposing … the established social order, the ethics of Anstode justifies … the established social order.’
37 Many commentators (for example, Popper, 1945) have seen in Plato and Aristotle the roots of the idea (given strong expression in Marxism) that a true social order would be ‘beyond justice’, where there would be no need for law in the spontaneous sociality of properly arranged human interaction. ‘Friendship appears to be the bond of the state; and lawgivers seem to set more store by it than they do by justice; for to promote concord, which seems akin to friendship, is their chief aim; while faction, which is enmity, is what they are most anxious to banish. And if men are friends there is no need for justice between them; whereas merely to be just is not enough; a feeling of friendship is also necessary’ (N Ethics, 1155a).