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The Irony of Obedience to Law:
Socrates and a bit of Aristotle
by Steve Wexler
Professor of Law, UBC
Kierkegaard says “Socrates’ entire activity consists in ironinzing”
(S. Kierkegaard, The Concept of Irony with Constant Reference to Socrates,
trans. L.M. Capel, London, Collins, 1966, p. 174). With Kierkegaard,
I take Socrates to be a through-going ironist. [1] In order to show people
that they weren’t half as smart as they thought they were and that
they didn’t know half what they thought they knew, Socrates took ideas
apart. He turned every idea inside out and folded it back on itself,
revealing contradictions, obvious and undeniable once pointed out, but
unnoticed till Socrates drew attention to them.
The chief irony in Socrates’ obedience to law is that it was by executing
upon himself the sentence of death imposed by a court of law that Socrates
became famous as ultra law-abiding. This, however, is only the top layer
of irony. Socrates’ obedience to law has layers of irony, within layers
of irony, within layers of irony. Look first at the irony that while
Socrates has a reputation as a great talker, we know him only through
the writing of others. Socrates himself never wrote anything down. Look
next at the fact that though Socrates was a poor man and took no part
in public affairs, he was famous in his own time and is still famous. While
he was still alive, Aristophanes wrote a comedy about him, the Clouds. Socrates
saw it performed and is said to have stood up to show the crowd who
it was about.
Socrates was so famous that after he died many people wrote books about
him. These books were called sôcratikoi logoi, words about Socrates
or Socrates’ words. Almost all of these books have disappeared, but
we still have the Memorabilia, written by Xenophon, which purports to
describe things that Socrates actually said and did. Unfortunately, Xenophon
was either not smart enough to understand Socrates or not a good enough
writer to give us a compelling picture of him. Reading Xenophon’s version
of what Socrates said makes one wonder why anyone cared about him at
all. The Socrates in Memorabilia sounds pompous and pretentious, a moralizer
of the type that comes a dime-a-dozen in every church, senate and school
on earth. Socrates would be a very minor character for us if Plato had
not written about him.
Socrates, Plato and the Apology
Ironically, we know Socrates only because Plato was such a great writer,
and it is ironic, therefore, that to know Socrates requires us to ignore
most of what Plato wrote about him. Undoubtedly, some passages in Plato’s
dialogues repeat things Socrates said almost verbatim, but Plato’s
dialogues are not, and are not meant to be, a transcription of what
Socrates actually said. Xenophon’s Memorabilia purports to be Socrates’
actual words but almost all of what Socrates says in the dialogues was
made up by Plato. This is particularly obvious in a dialogue like the
Crito that is about a conversation Plato never heard and never says
he heard.
What we get in Plato’s dialogues is Plato, not Socrates. As Gregory
Vlastos has explained (Socrates: ironist and moral philosopher, Cambridge,
1991, passim) in the dialogues, Plato gives us his own philosophy “through
Socrates’ mouth.” (D.M. MacDowell, Aristophanes and Athens, Oxford,
1995, p. 130). In Socratic Studies (Cambridge, 1994, p. 37) Vlastos,
speaks of “the metamorphosis of Plato’s teacher into Plato’s mouthpiece”
and at p. 29 he speaks of the “flock of obiter dicta” Plato “puts
into Socrates’ mouth.”
Ironically, Plato’s greatness as a writer hides Socrates from us while
it is revealing him. Plato loved Socrates but he could not stand his
negativity. As Kierkegaard said, “it became increasingly difficult
for [Plato] to reproduce irony in its totality and to refrain from any
admixture of positive content ….” (The Concept of Irony, p. 129)
Vlastos separates the dialogues into early, middle and late, and says
that in the early ones, Plato sticks closer to the historical Socrates. But
even in the early dialogues we are not getting Socrates, we are getting
Plato’s mimesis of Socrates. To have any chance of seeing Socrates
without the gloss of Plato we have to pretty much ignore the dialogues. Of
course, we can’t ignore them completely. Plato’s dialogues are a
part of Western culture; we could not purge them from our minds even
if we wanted to. But when we are looking for Socrates, we have to try
not to think directly about the dialogues. We have to try to look only
at the Apology. As Kierkegaard says, the Apology “must be accorded
pre-eminent place when one is in search of the purely Socratic.” (The
Concept of Irony, p. 112.)
Different scholars disagree about which dialogues fall in which periods
but all agree that the Apology is one of the earliest dialogues and
I think the Apology actually comes in a separate category all by itself. I
think the Apology was the very first dialogue Plato wrote. It is different
from all the others. The Apology is as different from the other dialogues
as the Laws, the dialogue everyone says is the last one Plato wrote. The
Laws is the only dialogue in which Socrates does not appear; the Apology
is the only dialogue that is not a dialogue.
The Apology is a monologue. Socrates does all the talking [2] and if
we are going to look for Socrates in what he says in the Apology, we
have to recognize that when Socrates talks in the Apology, he says a
lot more words than the real Socrates said. The Socrates in the Apology
must use more words because he is speaking in writing.
The real Socrates spoke out loud. He made fun of things. He made jokes
about them. To tell a joke in writing takes more words than telling it
out loud. This is ironic because writing can reduce the amount of words. It
can cut out rambling and repetition. It makes summarizing possible. But
Plato was not trying to summarize Socrates. Plato’s task as a writer
was to capture the character of Socrates. The real Socrates did not have
to do this. The real Socrates embodied his character. He was who he was.
We cannot see the real Socrates. The jury that tried him could see him. Indeed,
as Socrates said, they had all known him for years. But ironically, as
Socrates also said, the jury that tried Socrates had no idea who he
was. People had been telling them stories about him for years. In the
Apology Socrates says his goal is to make himself as clear to the jury
as possible, but Socrates actually wanted to make himself clear to the
jury and hide himself as well. Socrates was an illusive figure, who wanted
to be neither convicted nor acquitted. As an ironist, what Socrates wanted
was to divide the jury right down the middle.
Assuming, as most people do, that Socrates was tried before a jury of
500, he would have liked his speech to produce 250 votes for conviction
and 250 votes for acquittal. If there was a jury of 501 – it is amazing
given how much we know about Greek juries, that we do not know whether
they had an even or an odd number of jurors – but if there were 501,
Socrates would have liked nothing better than to have the issue decided
by one vote, as if one voter were a king.
Whether we see juries as finding the truth or expressing public opinion,
they cannot be divided equally and perform their function. If Socrates
could have split the jury exactly evenly, he’d have exposed a deep
absurdity in the idea of law and according to the Apology, Socrates
actually came quite close to splitting the jury right down the middle. The
first thing Socrates says after he has been found guilty is “if 30
of you had gone the other way, I’d have been acquitted.” [3]
Socrates’ speech was very nearly exactly equivocal. Plato had to recreate
this and he had to do it in writing. Even for a great writer, writing
things takes more words than saying things. The Socrates in Plato’s
Apology speaks more words than the real Socrates did and the words spoken
by the platonic Socrates have a stylized form. Again and again in the
Apology, Socrates says one thing and then, almost immediately, he says
virtually the same thing again. I don’t think the real Socrates repeated
himself this way. I think these repetitions are a platonic trope. They
are the technique Plato used to recreate in writing the feeling one
got from listening to Socrates, the feeling of irony.
Socrates was a genius at irony. This is why he was so famous and much
of the effect he achieved must have had to do with his tone of voice
and his demeanor. His irony was as much in how he said things as in what
he said. Plato was also a genius, but Plato was not an ironist. People
think Plato portrays irony in the dialogues, but no one thinks it is
Plato’s irony. Plato was far too serious about the world to be ironic.
Socrates was ironic and most of his irony was in how he said things.
Plato had to find a way to convey Socrates’ irony in writing. The technique
he used was to make Socrates repeat himself and embed a contradiction
somewhere around the repetition. Here is an example.
Take notice. I happen to be one of God’s gifts to this city. It’s
hardly human the way I ignore my own business, my own home and family,
because I’m so concerned with your business. I go to each of you, privately,
like a father or older brother might, trying to convince you, pay attention
to virtue.
Immediately, Socrates repeats this business about going to people privately.
Maybe it seems strange that on the one hand I go around advising people
privately, while on the other hand I never take any hand in the public
business.
Socrates is saying something, but it cannot be that he talks to people
privately. Socrates did not talk to people privately. If he had, he wouldn’t
have been killed, no matter what he said. Socrates questioned people
publicly, very publicly. As he himself puts it,
young men follow me around, particularly the idle ones, the sons of
the rich. It amuses them to hear me cross examine people into contradiction
and then, for fun, they cross examine people into contradiction themselves. They
find there is no lack of people in our fair polis who pretend to know
but know nothing. And then the people they cross examine into contradiction
get angry at me instead of at themselves and say “Ohhh. Socrates is
disgusting and he’s ruining the young people.”
Ironically, it was not Socrates people got angry at, though it was Socrates
who got tried. Socrates cross examined into contradiction the leaders
of Athenian society during a war! While Socrates was asking his questions,
Athens was fighting the Peloponnesian War with Sparta and Athens lost
the war when, Alcibiades, the most important of the young men who hung
around with Socrates, betrayed Athens!
Not only that, the leader of the Thirty Tyrants, the 30 Athenian traitors
the Spartans set to rule democratic Athens after her defeat, was Critias,
another of the young men who followed Socrates around! Within 50 years
of Socrates’ death, Athenians were openly saying they’d killed Socrates
as a scapegoat, because they couldn’t get their hands on Alcibiades
and Critias.
The Trial of the Ten Generals
Though Plato used more words than Socrates, the Apology contains no
explanation of why Socrates felt obliged to obey the law. For an Athenian
this went without saying. Classical Athens is the most democratic democracy
on record, but Wilamowitz, a nineteenth-century German commentator,
has made the ironic suggestion that Athens should not really be called
a democracy at all. It should be called a nomocracy. (Ulrich von Wilamowitz-Moellendorff,
‘Exkurse, Die Herrschaft des Gesetzes', Philol. Unters., 1, 1880,
p. 47) It was not the demos – the people – who ruled Athens, Wilamowitz,
says; it was the law – the nomos. Wilamowitz goes so far as to say
that ‘the freedom of the Athenians was built on their slavery to nomos’
and he characterizes the Athenians’ concern for nomos as being virtually
religious.
Socrates took the Athenian reverence for law and raised it from an absolute
to an Absolute. [4] He was as ironic about obeying the law as he was
about everything else. He tightened every idea – including the idea
of obedience to law – to the point at which it broke. He did this to
show that no one knew anything. [5]
In the Apology, Socrates gives two actual cases – “deeds not words”
– to prove that he would die before he disobeyed the law. The two cases
are filled with ironies. The first case occurred, Socrates says,
the only time I took a hand in public business. I was on the council. We
of the tribe of Antiochus were serving as marshals of the assembly. As
luck would have it that was when you were judging the ten generals who
were charged with failing to pick up the survivors after the big naval
battle. You wanted to judge them all together on one vote, instead of
one at a time. That was illegal. You all agreed to that later, but at
the time, I was the only marshal who refused to go along with what was
illegal. I refused to take the vote.
At the battle of Arginusae, Athens had won a great naval victory over
Sparta. Unfortunately, because of a sudden localized storm, the need
to lift a blockade elsewhere and a breakdown in the chain of command,
the survivors in the water were not picked up. They were left to drown.
[6]
The Athenians were incensed. The generals who had deserted their fathers
and sons, their brothers and friends were charged with a crime and tried
in the assembly. By an amazing stroke of luck, on the day the generals
were tried, Socrates was presiding over the assembly. He had been chosen
by lot to preside for that one day from among the 50 randomly chosen
members of the tribe of Antiochus who were serving as marshals of the
assembly for that month. [7]
When the generals were brought forward, the mob of 6,000 crazed Athenian
citizens demanded their blood. “Kill them!” they screamed. “Kill
them all!”
“I’m sorry,” Socrates told the screaming mob, “I cannot accept
that motion. It’s not kata nomon. [8] It’s not “according to law.” You
have to say, kill this one, kill that one, kill that one ….”
“Kill them all!” screamed the mob. “Kill them all and kill you
too!”
“I’m sorry,” Socrates said, “I cannot accept that motion. It
has to be kill this one, kill that one, kill that one ….”
People stood up and said I should be charged and while you went along
roaring like animals, I followed the law and justice. I risked the danger
of being put in jail or killed, rather than go along with your counsels
of injustice.
Notice that Socrates speaks first of “law and justice,” then of
“injustice” alone. He equates the two. The equation is ironic. Injustice
and illegality are the same and not the same. Notice also that Socrates
risked death to stand firm on a point of procedural law. Socrates did
not say he thought the generals were innocent or that it was unjust
to convict them. He says it was illegal to convict them on one vote and
notice also that the next day, under a different randomly chosen chairman,
the assembly voted to convict the generals and sentenced them to death. One
suspects this was as a group, rather than individually. [9]
For Socrates, it didn’t matter what the law was or what the effect
of obeying it was. The law was the law and it had to be obeyed. Now that
makes Socrates sound like a man of principle, but Socrates was not a
man of principle. He was an ironist. He tied up the Athenian assembly
not on principle, but just to tie it up. He insisted on obeying the law,
not to support the law but to show that insisting on obeying the law
makes it absurd. We all know this; no one drives at the speed limit.
People think they are so smart, Socrates said, but they know nothing. Unraveling
the law by insisting on it was prototypically Socratic. Socrates had
an uncanny appreciation of Athenian law. He played on the contrarity
in it. Athenian law was on the one hand stable and on the other hand
unstable. During the war with Sparta, Mytilene, (Mitt a lea´ knee) an
Athenian ally, went over to the Spartan side. The Athenians sent out
an expedition and retook the city. The general in charge sent home, asking
for orders about what to do with the citizens of Mytilene. Over 6,000
Athenians met in the assembly and voted to kill all the men of Mytilene
and sell all the women and children into slavery. That would teach the
rest of the allies not to rebel.
A ship was dispatched bearing this order but the next morning, the Athenians
woke up and said, “What have we done? They were our friends and allies. We
can’t kill them and sell them into slavery.” Another assembly was
held at which the citizens voted to countermand the first order. A second
ship was dispatched. Luckily, it caught the first one and the Athenians
were saved from having to live with what they themselves regarded as
a terrible excess of their democracy.
Eight years after the trial of the generals, an Athenian jury convicted
Socrates, and once again he tightened the law to the breaking point. According
to Athenian law, after Socrates was convicted, his accusers suggested
a punishment for him. Socrates’ accusers suggested death. It was then
up to Socrates to make a counter suggestion. Any other person would have
made a reasonable offer and the jury would have accepted it. Socrates’
counter suggestion, his proposal for his punishment, was that he should
be fed for the rest of his life at the public expense like an Olympic
hero. [10] He said that’s what he deserved for what he had been doing,
asking questions, unraveling people and showing that they did not know
what they thought they knew.
Socrates’ counter proposal forced Athenian law to the breaking point. He
forced the jury to select the death penalty and then, when the Athenians
made it easy for him to escape from prison and go into exile, he refused
to do so. This time, there would be no second ship to save the Athenians
from themselves. Socrates rubbed the Athenians noses in the excess of
their democracy by killing himself in obedience to their vote.
In the Apology, after he is sentenced to death, Socrates tells the jury
“in a little while you will be known as the fools who killed Socrates.” This
is exactly what happened. Just as Socrates predicted, the Athenians came
to regret what they had done. They came to see Socrates’ trial as an
excess of their democracy. A few years later, Plato wrote the Apology. It
was successful with the Athenians because in their mood of self-flagellation,
as a way of tasting their shame, they grabbed up portraits of Socrates
maligning themselves. The success of the Apology encouraged Plato to
write more sôcratikoi logoi. As he did so, the form changed. After the
Apology, Plato wrote dialogues and Socrates went from being ironic to
idealistic.
Leon of Salamis
Socrates was not an idealist. He was an ironist. In the Apology he gives
a second ironic example to prove that he could not be forced to do what
was unjust through fear of death. This example arose
when the oligarchy was in power. The 30 tyrants called five of us into
the Tholos and ordered us to bring Leon of Salamis back from Salamis
to be killed. They ordered many people to do things like this. They wanted
to taint as many as they could with responsibility for their regime.
… When we came out of the Tholos, the other four went off to Salamis
and brought Leon back. I left and went home. I could have been killed
for doing that if the regime had not been broken up quickly.
Notice the repetition here – “not in words but in deeds” and notice
the contradiction. Socrates was ordered to do something by the government
and he wouldn’t do it. Isn’t this disobedience to law? If obedience
to the law required Socrates to kill himself because the jury had sentenced
him to death, why wasn’t Socrates required to obey the law and fetch
Leon from Salamis?
Ah, we say, because that order was unjust. But wasn’t the order of
the jury unjust? The whole point of being obedient to law is that you
obey it whether it is just or not.
Men/de
Obedience to law was a prime directive for Socrates, but it was not
his only prime directive. This is ironic because we usually think there
can be only one prime directive, only one absolute. That’s what “prime”
and “absolute” mean. A prime directive trumps everything. That which
is absolute is absolute over everything else.
To think this way, to think there is and can be one and only one prime
directive, is Roman. The story of Greek culture is almost entirely the
story of people suffering under the strain of having two prime directives,
two absolutes that conflict. Orestes absolutely has to avenge the murder
of his father, but to do that he has to do something absolutely wrong;
he has to kill his mother. This story is typical of Greek culture and
Greek language.
One standard practice in the ancient Greek language was to counterpose
two statements, phrases or words in a formula:
“something men… something de….”
The de was in some sense a contradiction of the men. In his textbook
on Greek, (Introduction to Attic Greek, University of California, 1993,
p.86) D. J. Mastronardi refers to on the one hand … on the other as
“a common, but clumsy, translation” of men/de. All Greek writers
used the men/de form and all the figures in Greek literature led men/de
lives. Agamemnon men was required to sail to Troy, but de he had to sacrifice
his daughter to get wind. Achilles men was the bravest hero, but de he
was required to sulk in his tent over his offended honour. Oedipus men
saw, but de Oedipus was blind. [11]
The reason Greek culture is so rich is that it dwells in the conflict
between contradictory absolutes. It recognizes mixed motivations. The
Romans either could not or would not do this. The Romans thought Greek
culture was superior to their own, but they found it confusing. People
cannot function efficiently with two conflicting prime directives. They
cannot build an empire and rule the world. To do this, people need one
prime directive, one absolute goal. The Romans gave themselves such an
absolute goal, money.
Greek culture began before the invention of money. The ancient Greeks’
memory of a world without money was recorded in the works of Homer,
the Iliad and the Odyssey. These works were written down at about the
time money first came into use, but they reflected a time before that,
a time without money. The Iliad opens with a scene in which a father
is trying to ransom his captured daughter. He offers things, not money.
The Iliad ends with another father offering ransom, this time for the
body of a dead son. This father too offers things, not money. In the
Odyssey, Odysseus returns to his home disguised as a beggar. One of
the suitors for Penelope, Odysseus’ wife, offers to “hire” Odysseus
to
clear stones
from wasteland for me – you’ll be paid enough –
boundary walls and planting trees.
I’d give you a bread ration every day,
a cloak to wrap in, sandals for your feet.
(Homer, The Odyssey, trans. by Robert Fitzgerald, Garden City: Anchor
Books, 1963, Book XVIII, line 358.
Rome dated its own birth to about the time money began and Roman culture,
like all the civilized Western cultures since Rome, lacked a cultural
memory of what it was like to live without money. There was an economy
before there was money. It was an economy of things. Some people call
this a “gift economy”, but the word “gift” is a little strange
because the “gifts” were often coerced. The key here is that there
was no money. Money changes things.
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People who use money seem to form different relationships with one another
and with objects than people who do not. Marx gave the name “alienation”
to this difference. Marx believed that money makes the objects we use
into alien things and makes the people with whom we exchange them into
alien people.
(A. Carson, The Economy of the Unlost, Princeton, 1999, p. 17)
Socrates had nothing to do with money. He mentions his poverty several
times in the Apology. He holds it up as the best proof of the truth of
what he says. There is one question “I always ask,” Socrates says,
Oh, Great One, you’re an Athenian, a citizen of the polis that has
the reputation for being the strongest and smartest in the world. How
can you not be ashamed that you spend all your time thinking about money
and how to get more of it?
Socrates is willing to die because he sees Athens becoming Rome. The
Roman insistence that money was a single, unified bottom line, made
Rome tremendously effective as a war and business machine. Smooth, straight,
paved roads and smooth straight, paved motives; that is Rome. It is the
last thing Socrates would have wanted.
Socrates’ Conflicting Prime Directives
The refusal to recognize mixed motives is what makes Roman law so powerful. By
contrast, Greek law was characterized by struggle – agon in Greek,
“agony” in English. Greek law, is about drama and tragedy, it is
about mixed motives, not about single answers like money. By Socrates’
time, Athens was awash with money. Socrates culminates Greek culture
by going back to one of its most characteristic features, the memory
of what it was like to live without money. He also culminates Greek culture
by raising the idea of conflicting prime directives to a new height. Instead
of having two conflicting prime directives that cause him agony, Socrates
has three conflicting prime directives that cause him no agony at all.
Socrates lived quite happily in contradiction.
Socrates three prime directives were first, obey the law, second, do
not do what my daimonion – my little god – tells me not to do, and
third, “examine everyone, especially those who have a reputation for
wisdom.” It was this last directive that got Socrates into trouble
and the story of how this third directive, an implicit one, came to
Socrates through the second directive, an explicit one, is filled with
irony.
In the Apology Socrates says
some god or daimonion comes and talks to me … I have heard this voice
since I was a child. It tells me what not to do, never what to do, only
what not to do.
In Memorabilia, Xenophon says Socrates daimonion told him to do things
as well as not do things. I think this is an example of Xenophon not
understanding Socrates. I think Plato has this right. [12] An ironist
does not hear a voice that tells him what to do. He hears a voice that
tells him what not to do. An ironist is not wise; he knows no one is
wise.
Having a voice that told him what not to do gave Socrates a reputation
for having a “human wisdom.” When he was young, Socrates used to
sit around outside his father’s shop and watch what people were doing. When
someone was about to do something he shouldn’t, Socrates daimonion
would say, “Oh, oh. He shouldn’t do that” and then Socrates would
tell the other person, “My daimonion says you shouldn’t do that.”
Socrates’ daimonion always turned out to be right and it wasn’t
long before Socrates had gotten a reputation for being wise. This was
a negative wisdom, not a positive one, and it led Chaerophon, Socrates’
childhood friend,
who always took whatever he did to extremes, to go to Delphi, where
he dared to get an oracle. He asked the oracle – don’t get angry
at me – he asked the oracle whether anyone was wiser than me. The Pythian
priestess said: “no one was wiser.”
The prophecies of the Delphic Oracle were legendarily ironic. When asked
whether Croesus should invade Greece, the Oracle said, if he did, a
great kingdom would be destroyed. Croesus took this as validating his
plans, but the kingdom that was destroyed turned out to be Croesus’s
own. When asked what the Athenians should do against the attack of the
Persians, the Oracle said, the Athenians should protect themselves with
a wall of wood. No one could figure out what this meant, till Themistocles
convinced the Athenians to abandon Athens and take to their ships. The
ships’ hulls were the wall of wood.
Notice how negative the prophecy about Socrates was. The oracle did not
say Socrates was wise. He did not answer “yes” to the question is
Socrates wise? He did not answer “Socrates” to the question who is
wisest? Asked if anyone was wiser than Socrates, the oracle simply said
“no.” In this “no,” Socrates found his third prime directive.
In the Apology, Socrates speculates about what he would do if the Athenians
acquitted him on condition that he “give up his quest and stop philosophizing.” Socrates
says he would have to break the law. “obeying the god has to come ahead
of obeying you.” He couldn’t stop examining people because implicitly,
this is what the oracle required him to do. This requirement was silent. It
was implicit.
Hearing what the oracle said, I took it to heart. Why did the god say
what he had said? Was he making a joke or a riddle? I had no idea that
I was wise. Why did the oracle say I was the wisest one? It never occurred
to me that the oracle could be lying. A god wouldn’t do that. I thought
a lot about it for a long time. Then I went to talk with someone who
had a reputation for being wise. For here, if anywhere, I thought, I
will find what with to refute the prophecy. I’ll be able to say to
the oracle, look, you said I was the wisest one, but here, here’s
someone wiser than me.
Notice that Socrates asks the same question twice: “Why did the god
say what he had said?” and “Why did the oracle say I was the wisest
one?” Notice also that Socrates contradicts himself. He says it never
occurred to him that the oracle could be a lie, but he treats the oracle
as if it were a lie. A little further on in the Apology, Socrates says
he tries to “confirm” the prophecy, but according to his account
right here, Socrates did not set out to confirm the prophecy, he set
out to refute it. Precisely what Socrates was doing with the prophecy
must have been unclear to everyone, including himself. [13]
Socrates’ Daimonion, the English Courts of Equity and Hegel
If we ask why Socrates broke the law and did not go to fetch Leon of
Salamis, the simplest and most obvious answer is that his daimonion
told him not to do it. Ironically, in telling Socrates not to obey the
law, his daimonion was playing the precise role the English Courts of
Equity came to play 1500 years after Socrates was executed. The ironic
nature of these courts is captured in this comment by Holdsworth:
The distinction between the strict rule of law and modifications of
that law on equitable or moral grounds is a distinction known to many
systems of law; and it was familiar to English lawyers from the twelfth
century onwards. It is not therefore the distinction between law and
equity which is peculiar to English law. What is peculiar is the vesting
of the administration of law and equity in two quite separate tribunals.
(A History of English Law, 1903, Vol I, p. 446 )
Holdsworth misspeaks himself a little when he talks about “modifications”
of the law. The English Courts of Equity did not change the law. They
insisted on this. The English Courts of Equity were not courts of law. They
sat alongside the Courts of Law. They did not change the law; they only
ordered people not to enforce their legal rights when it was wrong for
them to do so. Over time, the Courts of Equity came to apply a set of
rules. They came to apply a law called “equity” or “Equity”,
but that’s not how they began. Like the orders of Socrates’ daimonion,
at the beginning the orders of the English Courts of Equity were not
law and had no precedential value. They were one off responses to injustices
created by law.
The relationship between the Courts of Law and the Courts of Equity
was a source of puzzlement in England for centuries. No one knew which
trumped which. This was decided in the Earl of Oxford’s Case. (Oxford’s
(Earl) Case (1615) 1Rep Ch 1; 21 ER 485, L.C.) A judgment was obtained
in a case in the Court of Common Pleas, a Court of Law. The losing litigant
appealed for relief to the Court of Chancery, a Court of Equity. The
Court of Chancery issued a common injunction, forbidding the enforcement
of the Common Law order. The litigant who had gotten the first order
persisted in his attempts to have it enforced. The Court of Chancery
applied the law of equitable contempt and had him goaled. The Court of
Common Pleas issued a writ of habeas corpus, requiring the release of
the goaled litigant. [14]
The two courts were hopelessly stalemated and their respective heads,
the Chancellor, Lord Ellesmere, and the Chief Justice of the Court of
Common Pleas, Lord Coke, were both determined to uphold the authority
of their courts. Ellesmere and Coke put the case before the King, James
I, the “wisest fool in Christendom.” James took advice from his Attorney
General, the philosopher Francis Bacon, and ruled that Law must defer
to Equity. This solution held until Judicature Act was passed in 1873. Depending
on how you see it, this act either abolished the Courts of Chancery
or merged them with the Courts of Law.
English law follows Roman law in insisting that there has to be one
and only one answer to every legal question. Greek law did not take this
point of view and neither did Socrates. Socrates did not go to fetch
Leon of Salamis when the government ordered him to do so, but he did
not try to convince the other four to follow his example. Socrates was
not for obeying the law or for disobeying it. His actions were his own. They
were not meant to be models of behaviour. Socrates did not encourage
others to be like him.
According to Kierkegaard, Hegel took Socrates as providing a heroic
example for all mankind.
In the divine sign of Socrates we see the will … recognize its own
inward nature. This is the beginning of self-knowing and so of authentic
freedom. (The Concept of Irony, p. 189)
Because Hegel was a very idealistic philosopher [15] and a follower
of Plato, Hegel accepted Plato’s view of Socrates. He thought Socrates
was a positive figure because Plato made him into one. He took Socrates
daimonion to be “insight and conviction” and said
Socrates, in assigning to insight and conviction the determination of
men’s actions, posited the individual as capable of decision in opposition
to fatherland and customary morality …. . (The Concept of Irony, p.
189)
Hegel also said Socrates’
crime lay in refusing to acknowledge the sovereignty of the people,
in asserting his own subjective conviction in opposition to the objective
judgment of the state. (The Concept of Irony, p. 218)
Socrates is famous both for following the judgment of the state and
for not following it. Socrates should not be thought of the way Hegel
thought of him, as a lesson for mankind. Socrates steadfastly denied
having this role. He did not teach people. He criticized people for loving
money and tried to show that they did not know what they thought they
knew. Socrates took ideas apart. He should be remembered for obeying the
law and for not obeying it. Neither Socrates’ obedience to law nor
his disobedience was heroic; they were both ironic.
Aristotle and Socrates
We know Plato and Socrates were two different men, but we refer to the
dialogues as “socratic” or “platonic” and mean the same thing
by both. We tend to lump Plato and Socrates together but I have come
to think there is actually more of a relationship between Aristotle
and Socrates than there was between Plato and Socrates. Plato used Socrates
as a character in his dialogues, but Plato disagreed with Socrates about
almost everything. Aristotle disagreed with Socrates about one very important
thing, but he agreed with him about everything else.
A concrete example of the radical difference between Socrates and Plato
is that Socrates never published anything in writing, while Plato is
one of the greatest authors in history. Socrates asked questions and
he asked them very publicly – so publicly that he died for it –
but he didn’t publish answers to questions. Plato did. Plato wrote for
an audience and published his work. Socrates had questions. Plato had
answers. Plato presented his answers obliquely in dialogue and myth,
and people still struggle to figure out exactly what Plato’s answers
were, but that Plato had answers is not a matter of dispute. Everyone
thinks Plato had a quote unquote philosophy.
Aristotle is much closer to Socrates than Plato. While he was Plato’s
student (age 17-37), Aristotle published dialogues just like Plato’s. They
expressed Plato’s philosophy. Aristotle’s dialogues were very successful
in their own time but only small fragments of them have survived. What
we call the “Works of Aristotle” were all written at the end of
Aristotle’s life (age 49-62) and by the time Aristotle was writing
them, he had given up both Plato’s philosophy and publication. None
of Aristotle’s “works” were published by him. They were private
notes that he kept for himself.
Aristotle’s father was a doctor. He trained Aristotle as a boy to keep
notes of what he was working on. This was what doctors did back then;
they kept private notes. Like Socrates, the Aristotle we care about did
not publish. He asked himself questions and he kept notes of what he
was thinking about, but like Socrates, he did not have answers he wanted
to publish. He did not have a “philosophy”.
As a young man, Aristotle accepted Plato’s philosophy and published
answers like Plato’s, but as an older man, Aristotle gave up Plato’s
philosophy. He did not just reverse Plato, however. He did not adopt new
answers. Aristotle bypassed Plato entirely and went back to Socrates,
who, according to Aristotle “asked but did not answer.” (Sophistical
Refutations XXXIV, 183b 7)
For Socrates and Aristotle philosophy was a thing to do, not a thing
to have. For both of them, philosophy meant asking questions, not having
answers. Aristotle thought Socrates took his questioning in the wrong
direction, but he thought Socrates was right to ask questions rather
than give answers. Socrates used questions to destroy claims to knowledge. Aristotle
used questions to find as much knowledge as he could, but in his later
years, Aristotle was no longer interested in the product of his learning. He
was learning for its own sake. (“Wisdom is for its own sake.” Metaphysics,
I. ii, 982a 14)
Having a quote-unquote philosophy is having answers to philosophical
questions. It is knowing what you think and telling others what you think. Socrates
and Aristotle are not just allied in their attitude toward publication. They
are also allied in their method. They were both more concerned with questions
than answers. Ironically, though he worshipped Socrates and taught Aristotle,
Plato was the odd man out between them.
Aristotle on Obedience to Law
Aristotle says “it is clear that all legal things are somehow just.”
( Ethics, V. i, 1129b 12-13) This equation of law and justice is striking
because it is so obvious that the law can be unjust. Indeed, we almost
tend to think of justice as a contrary to law. We think we do justice
when we go against the law. What Aristotle says is that if the law in
a polis is orthos, “straight,” then following the law is justice.
(Aristotle speaks about the law being orthos at Ethics, V. i, 1129b
25) He goes even further and says the justice that is following the law
is “completed virtue.” (Ethics, V. i, 1129b 26-32) He means that
when the law is orthos and people obey it, that is as just as justice
gets.
If we fail to notice this, it is because the law we live under is more
or less orthos and more or less obeyed. If the law under which we lived
were either terrible or regularly disobeyed (as it is in some places
[16]) we would say (as loudly as we dared) that what we wished for was
“justice,” meaning nothing other than orthos law, obeyed. To take
a less emotional example, we would say an umpire was “unfair” (=
“unjust”) if he called balls and strikes differently for the different
teams, but we would see it as even more “unjust,” if an umpire called
the same strikes for both teams, but gave the batters on one team four
strikes, instead of three. This unjustness – the unjustness of not
following the rules – is so obvious that even a biased umpire would
not resort to it.
Aristotle also says “There are many justices.” [17] This observation
is so unique that it cannot be said in English. In English the plural
“justices” cannot be used in a moral sense, and thus, what Aristotle
says is always translated as “There are many kinds of justice.” This
translation suggests that justice is a singular thing that comes in
different kinds, but that is not what Aristotle said. The word for “justice”
in Greek is actually “justness”. Aristotle
uses the plural. He uses it once and only once and he is the only Greek writer who uses this
word. The plural is as odd in Greek as “justices”
is in English. Aristotle put it in his notes to remind himself that justice
is not a singular thing. There are many justices.
Ironically, this idea is Socratic without being ironic. Socrates used
contradiction negatively. He unraveled ideas to show that people did
not know what they thought they knew. Plato made Socrates positive. He
made Socrates say that while people don’t know things, they do Know
things. They Know Ideas, which they Know from before they were born.
Aristotle did not agree with Socrates that no one knows anything, but
he did agree with Socrates that whatever anyone says they know can be
unraveled. Aristotle says, “The quantity of words is limited. The number
of things is not limited. Words must mean more than one thing.” (Sophistical
Refutations, I., 165a 11-12) He also says “everything is opposites
or comes from opposites.” (Metaphysics, IV. ii, 1005a 4. The Greek word
could be translated as “opposites” or “contraries”. The contrarity
of language comes up quite often in Metaphysics, e.g. IX. i, 1046 b
5-11 and X. i, 1052b 27. At Physics, I. v, 188b 25, Aristotle repeats
that “everything that comes in nature is opposites or from opposites”
and at I. v, 189a 10, he says “it appears that the beginnings must
be contraries.”)
If we couple these two remarks, we see a strong theme in Aristotle’s
work. All words have meanings that, from some point of view, are contrary
to each other. The world is not contradictory. It just is. But our logos
– our words and the ideas behind them – are necessarily contradictory. It
is ironic that Aristotle should say this because Aristotle invented
logic and logic requires non-contradiction. If we contradict ourselves,
Aristotle says, we cannot talk sensibly to each other or to ourselves.
But we do contradict ourselves. We do it all the time. That is the nature
of logos, and hence of human beings. Aristotle’s logic is hypothetical. Aristotle
does not say people should be or can be logical. He says, if people were
logical, this is how they would be. Though he invented logic, Aristotle
contradicts himself continually. In On Translating, for instance, [18]
the center of his logical works, Aristotle says, “nothing happens
by chance” (18b 8) and then a page and a half later he says, “some
things do happen by chance.” (19a 19-20).
Socrates used contradictions negatively to show that people did not
know anything. Plato could not stand to look at the world negatively,
so he made Socrates positive. He put the idea of Ideas in his mouth. Aristotle
did not have to put a positive slant on the world. The most striking
thing about Aristotle is that, unlike most philosophers, he is not melancholic. Aristotle
thinks the world is terrific. This stands out on every page of his work. Aristotle
thinks you can be smart and happy. Indeed, he thinks learning things
is the biggest pleasure. According to Aristotle, you can be happy and
love to learn even though all words and all the ideas that lie behind
words can be unraveled.
Conclusion
We think of Socrates, Plato and Aristotle as the three great philosophers
at the end of classical Greece, but ironically this is a little off. As
I have already pointed out, Aristotle and Socrates did philosophy, while
Plato had one and while Socrates culminated classical Greece and Plato
celebrated Socrates, Aristotle is not really part of classical Greece
at all. Aristotle is the first figure after classical Greece. H.G. Liddell
reveals this very casually in the preface to Liddell & Scott, An
Intermediate Greek- English Lexicon when he says
… from Homer downwards, to the close of Classical Attic Greek, care
has been taken to insert all words. Besides these, will be found words
used by Aristotle ….
Socrates took contrarity in a negative direction. Plato points Unity
in a Positive Direction. Aristotle says contrarity is a fact of life. It
does not point in any direction. Socrates says “Justice, ha! We don’t
know what justice is.” Plato says “We Know Justice.” Aristotle says
“There are many justices.” Obedience to law is one of them, but ironically,
so is disobedience to law.
End Notes
Kiergkegaard also says,
“Socrates is constantly negative.” p. 231. I will return to Socrates’
negativity.
2 He does ask Meletus, one of his accusers, to come up and answer a
few questions, but Meletus could be a hand puppet for all the reality
he has.
3 I’m not sure whether the Apology records the actual vote in Socrates’
trial or whether Plato chose the number 30 for dramatic reasons. I lean
toward the latter possibility because the number 30 seems too good to
be accidental. The number 30 comes up three times in the Apology. The
first time it occurs is when Socrates refers to the “30 tyrants.” The
trial of Socrates occurred after the Peloponnesian War between Sparta
and Athens. Sparta won the war and imposed 30 tyrants on Athens, 30 Athenian
citizens who ruled the polis oligarchically for about a year. It was soon
after the 30 tyrants were thrown out and the old democracy was restored,
that Socrates was tried. I think the 30 votes are meant to call the 30
tyrants to mind.
They are meant to do even more. After he has defended himself and been
convicted, Socrates’ accusers propose that he be given the death penalty. Then
Socrates gets to make a counter proposal. The number 30 comes up at the
beginning of the speech in which Socrates makes his counter proposal
on sentence, when he says that if 30 votes had gone the other way, he’d
have been acquitted. Then, it comes up again at the end of Socrates’
speech on sentencing.
Socrates says he can pay a small fine, “one piece of silver,” but
then, in a remarkable literary tour de force, Plato puts a phrase in
Socrates’ mouth via his own mouth. At the end of his sentencing speech, Socrates
says: “Plato, who's sitting over there, suggests that I make it 30
pieces of silver.”
I don’t think the 30 tyrants, the 30 votes and the 30 pieces of silver
are a coincidence. I don’t think it’s a coincidence that the 30 pieces
of silver come from Plato’s own mouth. I think Plato is making Socrates
say that if he had bribed 30 jurors with a piece of silver each, he’d
have been acquitted. The 30 Athenian jurors would have betrayed their
oaths as jurors just as the 30 Athenian tyrants had betrayed Athens. I
think Plato was creating a symbol for betrayal when he used “30 pieces
of silver” and it strikes me that 30 pieces of silver is the price
Judas was paid for betraying Jesus. It seems to me that Plato might have
created a symbol in the old world for betrayal.
All of this, of course, is purely speculative.
4 It may have been this that gave Plato the idea for the idea of Ideas.
5 Socrates said all ideas were ridiculous. Plato gave positive content
to this by creating the idea of Ideas. He said ideas may be ridiculous
but Ideas are not.
6 The exact chain of events is very hard to establish given the sketchiness
of the records.
7 The records of the trial are as sketchy as the records of the naval
battle. Some sources treat Socrates as chairman of the assembly; others
as just one of the marshals. I think the best guess is that he was chairman
for one day.
8 Kata nomon is pronounced k’ta nomon
9 As I said, the records of the event are sketchy at best.
10 He later suggests that he be fined one piece of silver. I have already
said something about the suggestion of a fine.
11 Only the Odyssey seems at odds with this rule. Odysseus has one prime
directive: get home to Penelope and Penelope has one prime directive:
wait for Odysseus. In the Odyssey, the conflict is not within Odysseus
and Penelope, it is between them and the world. Men Odysseus is going
home, de the world will not let him. Men Penelope is waiting for him, de
the suitors won’t let her.
12 I suspect Plato was more explicit about this than Socrates.
13 Socrates would have been in a dilemma if his daimonion told him not
to examine people.
14 Conflict between two sovereign legal bodies is discussed in S. Wexler,
A. Irvine, Aristotle and the Rule of Law, 23 POLIS 116, 138 (2006).
15 Hegel’s idealism is best conveyed by his saying that to write history,
you have to ignore what actually happened.
A history which aspires to traverse long periods of time, or to be universal,
must indeed forgo the attempt to give individual representations of
the past as it actually existed. It must foreshorten its picture by abstractions
and this includes not merely the omission of events and deeds but whatever
is involved in the fact that thought is, after all, the most trenchant
epitomist. (The Concept of Irony, Translator’s Notes, p. 396, n. 15.)
16 And as some people say it is even here.
17 Nicomachean Ethics, V. ii, 1130b 6-7
18 On Translating is usually called On Interpretation, Dei Interpretatione,
or Dei Int.
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