David Lloyd Dusenbury, Platonic Legislations: An Essay on Legal Critique in Ancient Greece. Cham, Switzerland: Springer (Springer Briefs in Philosophy), 2017. Pp xxiii + 116. ISBN 978-3-319-59843-7.
This very short book is published in a series which aims to provide ‘concise summaries of cutting-edge research’. Its main thesis is that, in a number of dialogues from the Apology to the Laws, Plato engages in a ‘critique of law’. The point here is not simply that Plato is critical of existing systems of law but, rather, that he points to weaknesses which are implicit in the very nature of law itself. These imply that all codes of law must be more or less defective. On Dusenbury’s reading Plato deals with this point in the Laws by arguing that if any state governed by law is to survive it must allow for the ‘supplementation, emendation and abrogation of its laws’ (p. 1). So the ‘hypothetical law-states’ he describes in the Republic and the Laws provide for a ‘non-democratic “flux” of law’.
In arguing these points Dusenbury discusses three groups of dialogues. The first comprises the trial dialogues, particularly the Apology and Crito. Dusenbury interprets these as pointing to an inevitable ‘divergence’ of law and justice. On his reading Socrates’ behaviour at the time of the trial of the generals after Arginusae and in the affair of Leon of Salamis shows that his commitment to justice has obliged him to act illegally (i.e. in contravention of Athenian law) in the past. His assertion, in the Apology, that he could not obey an instruction to desist from philosophising shows that he is willing to break the law in future. Thus Platonic reflection on law takes its departure from the ‘melancholy axiom’ that under any regime a resolute insistence on justice is ‘suicidal’ (p. 48).
The second group of dialogues comprises the Gorgias and Republic. Dusenbury’s treatment of the former is particularly interesting. He sees it as embodying two quite distinct critiques of law. The first is that of Callicles, who believes that it is natural for the strongest to rule, and advocates what Dusenbury calls the ‘law of violence’. Callicles opposes this to the force of law which is a device by which the weak seek to restrain the strong. Plato, of course, rejects the Calliclean view, which he sees as leading to a ‘flux of lawlessness’. But he also puts into Socrates’ mouth a very different critique of the force of law as that is manifested in existing states. These are governed by the kind of rhetoric which seeks what pleases rather than what is true. Taking part in the politics of these states involves assimilating oneself to the multitude and thus denying one’s own nature. The same goes for despotic states where survival requires one to adopt the attitudes of the tyrant. Engaging in the politics of either kind of state involves a form of self-contradiction. This is contrasted with what Dusenbury calls the ‘pure force of law’ which requires resistance to pleasure and pain. That can be established only by a legislator who is ‘self- superior’. The Republic, on Dusenbury’s interpretation depicts a community governed in this way. Unlike existing states, with their divisions between rich and poor, it is a genuine city because its legal code is designed to create unity. But it could be established only by a legislator who could start from a clean sheet. Since this never occurs in practice, the law code envisaged in the Republic is ‘inscribed’ for an impossible city.
On Dusenbury’s account, the third group of dialogues, the Statesman and the Laws, reveals an even more radical critique of law. As he sees it, the Statesman presents ‘an a priori critique of any conceivable law code or law-state’ (p. 84). The basis of this critique is that we do not live in the kind of stable world envisaged in the myth of Cronos: human affairs are in a constant state of flux. But laws are, by their very nature, general. They claim to apply at all times and all places within the law-state’s territory. They thus cannot deal adequately with the particular circumstances of every individual case. Plato concedes that human beings cannot do without law but, at the same time, ‘he exposes and derides, not the chaotic re-codification of democratic laws … but the constitutive inflexibility and mechanistic iterability of law’. So even rational legislation reflects ‘a formal divergence of law from justice’ (p. 86).
Dusenbury sees the Laws as embodying Plato’s own response to this critique, but, unfortunately, his treatment of that dialogue is extremely brief. The main thrust of his argument is that, as Plato sees it, any actual system of law must be imperfect. He therefore envisages mechanisms by which later generations can supplement and emend the provisions established by the original lawgiver. In doing so they will not be subverting the law code, but rather ensuring its preservation. Plato thus envisages what Dusenbury calls ‘a positive flux of law’. ‘Platonic legislation, like philosophy is endless’.
The suggestion that Plato engages in a critique of law undoubtedly offers a fresh and potentially illuminating approach to Plato’s political and legal philosophy and also raises some significant issues for the philosophy of law in general. But the format of publication prevents Dusenbury from giving his subject matter the treatment it deserves. He has to rely on a limited selection of passages, he lacks adequate space to develop his own views (some of which are very controversial) and he cannot give much consideration to alternative interpretations. These problems are particularly apparent in the arguments he offers for his claim that the Laws advocates a ‘positive legislative flux’. His interpretation rests largely on a number of passages which allow for some supplementation and emendation of the legal code after its initial establishment. These have, in fact, been the subject of scholarly disputes. Some commentators have argued that the system of laws established at the foundation of the city will remain fixed, at least in its main essentials, and that most of the passages which allow for revision of laws suggest that changes will be permitted only for a limited period and will concern matters of detail. This would be consistent with the antipathy to change in matters such as music and education, which Plato displays generally in the Laws, as in the Republic. On the other hand, there are two or three passages which seem to envisage a possibility of ongoing change. At 769e the constitution and law code is compared to a painting which needs constantly to be ‘touched up’. The account of the nocturnal council in book XII may also be taken to suggest more extensive powers of revision. But it is doubtful if any of this amounts to the legal flux with endless legislation which Dusenbury seems to envisage. As Julia Annas has recently put it ‘Overall … the message of the work is that the Magnesian law code, once established with its main aim clear, is to be regarded as settled. Law making is not to be a normal part of Magnesian politics or civic activity.’1
One might also notice that provisions for changing laws do not meet the point, made in the Statesman, that laws are intrinsically general and cannot therefore deal adequately with particular cases. There is no reason to suppose that a law which is emended to deal with a particular hard case will be any better equipped to deal with future hard cases. Legal change would be a matter of constantly shutting stable doors after the horses have bolted. In fact the Laws suggests two ways of tempering the rigidity of law. The first is that the courts will have a degree of discretion. Plato makes this explicit at 875d-876c when discussing the penalties to be imposed in cases of wounding, but the points he makes there are quite general. A second key point is that in most cases there is some form of appeal. A particularly interesting case here is a passage at 925a-926a where Plato imagines the legislator setting out a ‘preamble’ to his regulations concerning the marriage of heiresses. He points out that because he has to concern himself with the common good he cannot always take proper account of private misfortunes. He asks those who are unable to carry out his instructions to forgive him on the grounds that he has acted in ignorance. Dusenbury apparently sees this as an admission that law must sometimes involve injustice, but he does not mention the explicit provision that those who feel disadvantaged by the rules for the marriage of heiresses can ask for them to be set aside. So, in this case at least, the law code itself contains remedies for any harms which might result from the rigid application of its own rules.
Underlying all these points is the fact is that the Laws presents a distinctive view of the nature and function of law. The basic principle is that legislation must be directed towards the divine goods. In other words it must ensure that the citizens acquire the virtues of wisdom, temperance, justice and courage. Every aspect of the citizen’s lives must be supervised with this in mind. A satisfactory code of laws must therefore embody correct judgements as to what is right and wrong, good or bad, and ensure that citizens from their earliest childhood receive a training which ensures that their emotions and desires accord with those judgements. The most important offices will be held by those who have distinguished themselves in these respects. Laws will be accompanied by preambles which should ensure that everyone involved understands, not only the letter of the law but its underlying purposes. In the light of those values they will be able to make correct judgements of difficult cases. Thus Plato could well argue that the city of the Laws would be very different from the nightmare city, governed by inflexible laws, which is imagined in the Statesman.
Julia Annas, Virtue and Law in Plato and Beyond, Oxford, OUP, 2017, p. 84.