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not exact the penalty in such a form as the injured party urges upon you in
each case.” Demosthenes goes on to state what appears as a leading theme
in the philosophical discussions, that “laws were laid down by you before
the particular offences were committed, when the future wrongdoer and
his victim were equally unknown. What is the effect of these laws? They
ensure for every citizen the opportunity of obtaining redress if he is
wronged. Therefore, when you punish a man who breaks the laws, you
are not delivering him over to his accusers; you are strengthening the arm
of the law.”8
Law was contrasted to custom because it was held that the rules of law
had to be recorded. The history of the word nomos suggests, however, that
this was not definitely established before the fifth century. Herodotus
used nomos in the sense of both written and unwritten law; he speaks of
Solon™s nomoi, which are clearly statutes, but he also uses nomos when he
says that the Corinthians™ “law did not allow the ships to be given for
nothing,” which was not likely to have been written. In Thucydides as
well, when Pericles speaks of the nomos of delivering funeral orations or
of the Corcyrean nomos about the cutting of vine poles or about the rules
of succession to the priesthood of Hera of Argos, it is not clear whether he
is referring to statutes. But generally, from the fifth century onwards it is
taken for granted that law must be written. For otherwise, it was argued,
law cannot acquire that formal character and permanent definiteness that
ensures the kind of security for which the law is valued.
Reliance on “unwritten law” was accordingly denounced as a rejection
of law and a resort to tyranny. When Andocides reproved magistrates for
undermining the law, he equated arbitrary decisions with “unwritten
law.” Allowing magistrates to appeal to “unwritten law,” he says firmly,


8
Ibid., 28“30.
Introduction: The idea of law 5
introduces arbitrariness because it enables the magistrate to ignore the
established law and make whatever law he pleases. Since “unwritten law,”
or custom, consists of the conflicting materials out of which the formal
rules of law have been fashioned, giving custom precedence over law is
tantamount to letting the magistrate make his own selection. The same
point is made in Euripides™ Orestes. When Menelaus is charged with
having acquired barbarian ways because he remains friendly to Orestes
after he had murdered his mother, Menelaus™ excuse that, “It is a Greek
custom, I think, to honor your kin,” is scornfully dismissed: “But not to
put yourself above the laws.”9
In short, it was agreed in the popular discourse of ancient Greece that
law consists of rules made without reference to any particular outcome as
opposed to commands, designed to produce substantive consequences
here and now; that they were easy to identify as such because they had
been formally defined and authentically recorded; and that observing
such rules consists in conforming to impersonal conditions.
The agreement on the opposition of law both to the commands of
tyrants and to custom served to identify the law. But once attention was
turned to scrutinizing systematically the character of the law itself, there
was no such unanimity even among the ancient Greeks. And from the
fifth century b.c. to the present, there has been a continuous conversation
about the character and significance of the idea of law. That conversation
is the subject of this book. It is, in other words, an account of what has
been thought about a certain sort of social arrangement, which consists of
a set of recorded rules, recognized to have been made by human beings
and subject to being changed by them, for regulating an association
whose members subscribe to these rules. My object is to relate not what
the law has been at any time or place, but how it has been understood and
how that understanding has changed. Only systematic discussions of the
law are considered, and then only such discussions as have introduced
important departures from what has been said before. Reflections on
“law” in any other sense, such as the commands of a divinity or of a
tribal chieftain, the regularities of nature, or usages and regulations that
have not been articulated as changeable rules, except insofar as any of
these is taken to have some connection with law in the sense used here, are
excluded.
This book is not designed to provide anything like a complete history of
reflection about the nature of law. Rather, what the reader can find here is


9
Euripides, Orestes 480“90, in The Complete Greek Tragedies, vol. IV.
6 Introduction: The idea of law

an exposition and analysis of the main questions that have, since ancient
times, been asked about the idea of law and the pattern of the answers
that they have received. The omission of many important and distin-
guished discussions, both of the past and present, has been imposed partly
by the constraints of time and space, but also by the leading concern of
this book. That concern is to disengage from a vast literature what has
been deemed essential to the idea of law, and to show how, in the course
of being explored and refined, the idea of law has become confused and
exposed to attack, and how that attack has been, and can be, resisted by
those who wish to preserve that peculiar achievement of Western civiliza-
tion, the marriage of order with diversity.
Part I

Law anchored to a cosmic order
1
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _Plato______________ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _



No philosopher is more emphatic about the opposition between law and
tyranny than Plato. He defines a tyrant as a ruler who is at liberty to do
what he pleases, to kill, to exile, to follow his own pleasure in every act,
and he condemns tyranny in a number of different contexts. In the
Seventh Letter, he urges that Sicily should not be subject to the despot,
but to law. In the Eighth Letter, he says that “either servitude or freedom,
when it goes to extremes, is an utter bane. . . . The due measure of
servitude is to serve God. The extreme of servitude is to serve man. The
god of sober men is law.” To substitute the rule of law for tyranny ought
to be the aim of every ruler, for only in that way could a city prosper.
Indeed, so obvious is this truth, Plato concludes, that anyone disposed
to establish a tyranny should “turn back and to flee for their lives. . . . Let
them endeavor to put on the form of a king and to be subject to kingly
laws, enjoying the highest honors by the consent of willing subjects and of
the laws.”1 In the Statesman, Plato describes as the best of all consti-
tutions “The rule of one man, if it has been kept within the traces, so to
speak, by the written rules we call laws,” and he warns that when the rule
of one man is “lawless it is hard, and the most grievous to have
to endure.”2 In the Laws, the Athenian Stranger says that rulers should
be called “ministers of the law” because “the preservation or ruin of a
society depends on this more than on anything else. Where the law is
overruled or obsolete, I see destruction hanging over the community;
where it is sovereign over the authorities and they its humble servants,
I discern the presence of salvation and every blessing Heaven sends on
a society.”3



1
Plato, Eighth Letter 354e“356e, in Thirteen Epistles of Plato, trans. L. A. Post (Oxford:
Clarendon, 1925).
2
Plato, Plato™s Statesman 302e“303a, ed., trans. J. B. Skemp (New Haven, CT: Yale
University Press, 1952).
3
Plato, The Laws of Plato IV, 715d“e, trans. A. E. Taylor (London: Dent, 1934).

9
10 Law anchored to a cosmic order

The Stranger emphasizes, moreover, that it is because the law consists
of rules that are framed when the wrongdoer and his victim are equally
unknown that the law secures the stability of the city. For otherwise,
whoever achieves power could not be restrained from governing in his
own interest, which would provoke others to try to replace him, thus
producing endless turmoil. And it is essential to the character of law that
it be written because “legal enactments, once put into writing, remain
always on record, as though to challenge the question of all time to come
. . . since even the dull student may recur to them for reiterated scrutiny.”4
Law must also be sharply distinguished from custom. This distinction
appears in Plato™s reference in the Laws to an age when men did not “so
much as possess an alphabet, but regulate[d] their lives by custom and
what is called traditionary law.” Then men lived not in cities, but separ-
ately in families as did the Cyclopes who, according to Homer, had not
even “gatherings for councils nor oracles of law, but . . . each one utters
the law to his children and his wives, and they reck not one of another.”
But when many different families came together into a larger settlement,
the Stranger explains, as each family brought its own “habits of conduct”
and “preferences,” they could live together only by agreeing to accept
common rules. And these had to be framed by a legislator who adopted
what he deemed to be best among the variety of customs brought into the
larger community by the smaller groups of which it is composed. The laws
may be such local customs “as have our approval” or they may be drawn
“from other quarters.” Where the laws come from is of no consequence.5
What matters is a clear determination of what customs constitute law. In
other words, law replaces custom; law makes a definitive selection out of a
variety of conflicting customs.
Plato is equally uncompromising about the obligation to obey the law.
The history of systematic reflection on the idea of law may be said to open
with the argument between Socrates and his friends in the Crito. There
Socrates addresses himself to explaining why he is obliged to obey the law,
and in doing so, he answers the more general question: Does the idea of
law include an unqualified obligation to observe it? Although Socrates
knows himself to be innocent of the crime for which he had been sen-
tenced to die, when Crito urges him to attempt to escape, Socrates replies
that though his sentence was unjust, refusing to submit to it would
constitute an even graver injustice. And he establishes his obligation by
arguing that though he might at any time have left Athens, he had chosen
not to do so. He had in all ways enjoyed the benefits of the kind of life


4 5
Laws X, 890e“891a. Laws III, 680e“681a; III, 702.
Plato 11
that the laws of Athens secured for him and had even brought children
into the world in Athens. In all these ways, he had tacitly accepted
membership in the community and had thereby undertaken an obligation
to obey its laws. Therefore, if he now attempted to escape from what the
law had imposed on him, the laws might justly rebuke him by saying:
“Although we have brought you into the world and reared you and
educated you, and given you and all your fellow-citizens a share in all
the good things at our disposal, nevertheless by the very fact of granting
our permission we openly proclaim this principle: that any Athenian, on
attaining to manhood and seeing for himself the political organization of
the state and us its laws, is permitted, if he is not satisfied with us, to take
his property and go away wherever he likes . . . not one of our Laws
hinders or prevents him from going away wherever he likes, without any
loss of property. On the other hand, if any one of you stands his ground
when he can see how we administer justice and the rest of our public
organization, we hold that by so doing he has in fact undertaken to do
anything that we tell him . . . you are behaving like the lowest type of
menial, trying to run away in spite of the contracts and undertakings by
which you agreed to live as a member of our State . . . you are breaking
covenants and undertakings made with us, although you made them
under no compulsion or misunderstanding, and were not compelled to
decide in a limited time.”6
What is important here is not merely the argument that the citizens
are obliged to obey the law even when it conflicts with their interests,
but also the reason why Socrates considers this obligation intrinsic to law.
Socrates™ argument clearly attaches law to an association made by sub-
scription to rules governing it. And he emphasizes that this kind of
association, the polis or city-state, is not imposed by nature but made
by men. This implies, on the one hand, that men may renounce their
membership in a polis by leaving it, as they cannot do by leaving their
families or tribes. But on the other hand, it implies that a polis exists only
insofar as its members observe its laws. Once its members cease to
subscribe to the law, the polis ceases to exist. And that is why Socrates
says that if he disobeyed the law, he would be unable to refute the charge
that he would thereby be destroying Athens. For the laws would say to
him: “Can you deny that by this act which you are contemplating you
intend, so far as you have the power, to destroy us, the Laws, and the
whole State as well? Do you imagine that a city can continue to exist and


6
Plato, Crito 51c“52a, in The Last Days of Socrates, trans. Hugh Tredennick (London:
Penguin, 1954).
12 Law anchored to a cosmic order

not be turned upside down, if the legal judgements which are pronounced
in it have no force but are nullified and destroyed by private persons? . . .
Shall we say ˜Yes, I do intend to destroy the laws, because the State
wronged me by passing a faulty judgement at my trial?™” If he left, he
would become a “destroyer of law,” whom every city would shun because
members of “the higher forms of human society” must regard such a man
as an enemy of civilization.7
The Crito postulates three points about the law. First, the law shapes
an association (the polis), which is a formal association, that is to say, an
association constituted not by agreement to achieve any particular sub-
stantive purpose, but by subscription to a common set of rules. The rules
of law are designed to secure the order and peace on which the life of the
city depends, instead of being designed to pursue any particular substan-
tive projects. In other words, rules of law that constitute the polis are by
definition noninstrumental.
The second point “ related to the noninstrumental character of law “ is
the connection of law with an association of people of different families
and tribes, whose only necessary connection is their subscription to the
same rules. Law is equated with an association that contains a variety of
households and tribes. Thus the idea of a law, according to Socrates in the
Crito, postulates a sharp distinction between a polis and a family or tribe,
and it follows that tribal law is a self-contradictory idea.
The third point is that the idea of law is inseparable from an unqualified
obligation to observe it, regardless of whether one likes the consequences.
Although the polis is an association that its members may choose to leave,
if they remain within the polis they must have no choice but to obey the
laws that secure the life of the polis that they are enjoying.
These conclusions are supported also in Xenophon™s account of
Socrates, where he tells the Sophist, Hippias, that the laws are written
rules that the citizens of the city have agreed to observe. And when
Hippias asks how one can be obliged to respect laws that are changed
by the very people who made them, Socrates replies that such changes no
more detract from the validity of the law than the fact that men who have
fought in wars, but who settle down to peaceful occupations afterwards,
detracts from their valor as soldiers. Cities where the laws are respected
are happiest in peace as well as in war, Socrates explains, because the
agreement on which the life of the city depends is not that the citizens all
“like the same things, but that they may obey the laws.”8 Obedience to the

7
Crito 50a“c; 53“4; cf. Plato, Statesman 300a“e.
8
Xenophon, Memorabilia IV, iv.16, in Memorabilia and Oeconomicus, trans. E. C.
Marchant (London: Heinemann, 1923).
Plato 13
laws is what the gods ordain, and by obeying the laws of their city,
whatever they are, men honor the gods.
In the Crito, Socrates is at one with the Sophists, who also argued that
the mere existence of a legal order imposed an unqualified obligation to
observe the law. It is the same argument that Cleon makes in the debate
about Mytilene: “The most alarming feature in the case is the constant
change of measures with which we appear to be threatened, and our
seeming ignorance of the fact that bad laws which are never changed
are better for a city than good ones that have no authority. . .”9
Saying that the laws need to be obeyed is not, however, by any means
the same as saying that they are perfect. On the contrary, Plato recognized
that the very fixity of law, which is required if it is to prevent disorder, is
far from an unmitigated blessing. In a number of different contexts, Plato
draws attention to the disparity between the stability and generality of
rules of law and the changing variety of the human world. In the States-
man, for example, he compares the law to a “self-willed, ignorant man
who lets no one do anything but what he has ordered and forbids all
subsequent questioning of his orders even if the situation has shown some
marked improvement on the one for which he originally legislated.” And
the reason for this accusation is that the differences in human personality
and the variety of men™s activities, i.e., the fact that nothing in the human
world is permanent, make it impossible for invariable rules to dictate
what is appropriate at any given time. The law is necessarily defective
because it is impossible “for something invariable and unqualified to deal
satisfactorily with what is never uniform and constant.”10
In this context, Plato describes rules of law as a kind of “generaliza-
tion,” that is to say, a proposition about what is true in a majority of
cases. The legislator makes the law “for the generality of his subjects
under average circumstances,” which Plato describes as the “bulk
method” and the opposite of individual treatment. Such “bulk” prescrip-
tion Plato considers inescapable under the rule of law.11 And this defect in
the law is only a particular instance of the gap between the universal and
the particular, between the written word and life with which Plato was
concerned throughout his philosophy. Written discourse cannot adapt
itself to diverse individual cases or choose the most apt argument, he says
in the Phaedrus, and because the written word, given its stiffness, is always
imperfect, teaching by dialogue is the only mode of initiation. In the same


9
Thucydides, The History of the Peloponnesian War III.37, trans. R. W. Livingstone
(London: Oxford University Press, 1943).
10 11
Plato, Statesman 294c. Ibid., 294d“295a.
14 Law anchored to a cosmic order

way, law is both static and general and consequently at odds with the
changing particularities of the concrete world. That is why law is neces-
sarily a second best alternative to the ideal, which is a ruler of perfect
wisdom who can make the right decision for every particular question. If
such a ruler were available, it would be as ridiculous to hamper him by
legal codes as for a patient to prefer the instructions left by the doctor
when he travels abroad to the doctor™s personal prescription on the spot.
As such an all-wise ruler is not available in the real world, law is the best
substitute for him. But its capacity for remedying disorder necessarily
entails a degree of inappropriateness in its prescriptions because law is
inseparable from rigidity. Any attempt to mitigate that rigidity, Plato
insisted, must destroy the law.
It is not the function of judges to rid law of its rigidity. Judges are there
to decide what is just or unjust according to the standards “embodied in
the legal rules.” And a judgment “shows its peculiar virtue by coming
to an impartial decision on the conflicting claims it examines, by refusing
to pervert the lawgiver™s ordinance through yielding to bribery or threats
or sentimental appeals, and by rising above all considerations of personal
friendship or enmity.”12 To adjust the law to take account of unusual
circumstances is a corruption of law: “Equity and indulgence, you know,
are always infractions of the strict rule of absolute and perfect justice.”13
Here Plato is making the same point that Isocrates made in Areopagitica,
where he condemns the corruption of Athens and urges a return to the
regime of Solon: “For they saw that in cases of contract the judges were
not in the habit of indulging their sense of equity but were strictly faithful
to the laws; and that they did not in trying others seek to make it safe
for themselves to disobey the law.”14 But whereas Isocrates suggests, as
do others, that qualifying the law by equity might sometimes be beneficial
even though it is too dangerous to allow, Plato holds that equity is not in
any way compatible with law. Rather, it is the opposite of law, for it is the
nature of law to be rigid and unresponsive to the intricate, changeable
contours of the human world. Law is thus an alternative to both the
perfect concrete decisions of the wise ruler and the capricious decrees of
the despot. The former, though more desirable, is unattainable, while the
latter is the greatest of all evils. The only protection against this evil is the
inflexible law.
Even the suggestion that a law should be amended or replaced, when-
ever it is found wanting, was firmly and repeatedly rejected by Plato. In

12 13
Ibid., 305b“c. Laws IV, 757e.
14
Isocrates, Areopagiticus 33“34, in Isocrates, vol. II, trans. George Norlin (Cambridge,
MA: Harvard University Press, 1929).
Plato 15
Book I of the Laws, he praises the rules in Sparta and Crete that required
all criticism of laws to be made in secrecy. Although Plato admitted that
changes might sometimes be inescapable, he proposed that the two func-
tions of “preserving” and “rectifying” the laws be united in the guardians
of the laws, to be chosen with great care among people over fifty years of
age. And he hedged the provisions for change with impediments to
rashness. No change should be made for ten years during which the laws
were to be observed for imperfections, and once that period elapsed, the
law could be altered only by the agreement of all the magistrates, the
people, and the oracles.
In what he says about the dangers of changing the law as about the
obligation to obey the law, Plato clearly takes the essence of law to be that
it is a human arrangement for securing order in the contingent human
world. When, however, he turned to considering the kind of skill required
of the legislator, he endowed law with a different character. This view of
law appears in answer to the argument that law is an instrument of power,
put forward by Callicles in the Gorgias and by Thrasymachus in the
Republic. Callicles argues that the law is a contrivance for enabling the
weak to triumph over the strong and is therefore opposed to nature,
where the strong rule over the weak. Whether Callicles echoes the argu-
ment of the Sophist, Antiphon, or whether he is an invention of Plato™s
with no historical foundation, his conception of law as an instrument for
protecting the weak is one that reappears not only in Thucydides and
Demosthenes, but also throughout the history of jurisprudence. Although
Thrasymachus, who represents the common man™s view of law, argues for
a different conclusion, that the law is made by the most powerful to serve
their interests, he, too, sees the law as a means for satisfying certain
interests. And he accordingly concludes that there is no obligation to
obey the law when it conflicts with the satisfaction of one™s interests. To
refute the view, represented by Callicles and Thrasymachus, that the
obligation to obey the law rests on its ability to satisfy the interests of
those subject to it, Plato radically revises the view of law that appears in
the Crito and introduces a non-human element into the idea of law.
Socrates defeats both Callicles in the Gorgias and Thrasymachus in the
Republic by arguing that they misunderstand the satisfaction that they
seek. What they really want is the kind of order that only the rule of
reason can produce. Here Socrates describes law as the rational element in
the life of the polis, with law performing the same function in the commu-
nity as does reason in the soul. The wants of the individual members of
the polis are the analogues of the passions in the soul, and law reduces the

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