Abstract
Platonic legislation has its origins in the Athenian law-court in which Socrates was condemned to death, in 399 bce. A young Plato was present at his trial. The injustice of the judgement against Socrates, which was handed down by some 500 citizen-judges at the conclusion of a procedurally valid trial, deepened Plato’s hostility to the democratic law-state at Athens. Yet Plato neither disavows the idea of a law-state, nor begins to act as a partisan of Greece’s archaic, non-democratic law-states (such as Crete and Sparta). Rather, he begins to forge a new legal-philosophical genre, which I will call ‘hypothetical legislation’. In this chapter, I detect the first promise of Plato’s colossal, hypothetical law-codes—the Republic and Laws—in a neglected comment that appears in his one of his earliest dialogues, the Apology. ‘If you had a law …’, Socrates says to his judges. This is the conditional mood in which all Platonic legislation will be written.
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Notes
- 1.
Herod. Hist. VII 56. And for ‘the lash’ as a politicized motif in this section of the Histories: Forsdyke 2001, 347–354.
- 2.
Pl. Laws III 693a.
- 3.
Herod. Hist. VII 100.
- 4.
Sara Forsdyke takes this to be a rhetorical question: ‘Xerxes answers his own question in the negative on the basis of the Greeks’ insufficient numbers’ (2001, 343).
- 5.
Herod. Hist. VII 101.
- 6.
Cf. Thuc. Pelop. I 18.1 on Sparta’s claim to have ‘always been free from tyrants’ (aiei atyranneutos ên).
- 7.
Herod. Hist. VII 102. And cf. Herod. Hist. VII 132–136, where Xerxes’ satrap Hydarnes asks the Spartan sacrificial victims, Sperthius and Bulis, why the Spartans refuse to be ‘friends with the king’. They reply: ‘You know how to be a slave (doulos), but you, who have never tasted freedom, do not know whether or not it is sweet’. Xerxes later releases Sperthius and Bulis, though the Spartans have disregarded ‘all human laws’ (pantôn anthrôpôn nomima) by killing his emissaries.
- 8.
Herod. Hist. VII 104. Note that Tyrtaeus’ fr. 9 has relevance for this nomos: Pearson (1962, 231 n. 8).
- 9.
Herod. Hist. VII 105.
- 10.
Herod. Hist. VII 208–209.
- 11.
Thommen (1996, 138–141).
- 12.
Joanne Waugh remarks that ‘Laws are … described as basileus, despotes, turannos, hegemon, and archon, beginning in the fifth century’ (2001, 28–29). I am not convinced by Ellen Millender’s ideological reading of Demaratus’ speech. In her ‘Νόμος Δεσπότης: Spartan Obedience and Athenian Lawfulness in Fifth-Century Greek Thought’, Millender seeks to expose a ‘powerful nexus of tyranny, illegality, and compulsion’ in Demaratus’ words, which ‘enabled Herodotus to locate the Spartans in the conceptualized world of barbarian autocracy’ (2002, 57).
- 13.
See supplement 2b, at the back of the volume.
- 14.
Which we still hear in Cicero—for instance, at Cic. Pro Clu. 146: ‘We are all slaves to the law precisely so that we may be free men’ (legum … idcirco omnesservi sumus ut liberi esse possimus).
- 15.
Pl. Laws IV 715d.
- 16.
The resemblances are suggestive and productive, but not conclusive. I by no means insist on a Herodotean–Platonic interface. Other interesting parallels could be adduced—for instance, Thuc. Pelop. II 42.4 (of Athenians); and Lys. Epit. 31 (of Spartans): ‘The Spartans, showing no failure of spirit, but deceived as to the numbers … of those with whom they had to contend, were destroyed (diephtharêsan), not having been worsted by their adversaries, but slain where they had been stationed for battle (all’ apothanontes houper etachthêsan machesthai)’. Cf. also Lys. Alc. I 15: ‘[You, Athens’ citizen-judges,] were far more afraid of the city’s laws (polu mallon ephobeisthe tous tês poleôs nomous) than of the danger of facing the enemy in battle’.
- 17.
Homer, not Herodotus, is invoked at Pl. Apol. 28b–d.
- 18.
Pl. Apol. 28e: ‘Potidaea and Amphipolis and Delium’. While this is the only Platonic reference to Amphipolis (422 bce), Plato has Alcibiades praise Socrates’ valour at Potidaea (432/31), and cool head during the Athenian retreat at Delium (424/23). Cf. Pl. Symp. 219d–221c; Wolf (1954, III.1:11).
- 19.
Pl. Apol. 28d. Cf. Slings (1994, 133): ‘This section (28d10–30c1) is the central part of the Apology’.
- 20.
See Supplement 1a, at the back of the volume.
- 21.
For brevity and ease—but not naïvely—I will omit the obvious caveats: ‘on Plato’s telling of it’, etc.
- 22.
Pl. Laws I 625d–632d.
- 23.
Pl. Laws I 625d. Hall (1956, 198) glosses the point similarly. And though Clinias, a Cretan legislator, is the Athenian’s interlocutor in this section of Laws I, the Spartan legislator, Megillus, identifies with the Cretan regime in this regard—viz., bellicism—at Pl. Laws I 626c.
- 24.
For ‘Dorian’, see the Athenian legislator’s historical prologue to his account of Dorieus—the patriarch of the ethnos—and the Dorian regime. He says here that ‘Sparta … and Crete were settled under kindred laws (adelphois nomois)’: Pl. Laws III 682d–683b.
- 25.
Thus, for instance, the Athenian legislator echoes Clinias’ formulation at Pl. Laws I 625d when he questions the Spartan, Megillus, at Laws I 633a: the Cretan and Spartan law-codes are alike ‘adapted for war’ or ‘directed to war’.
In Aristotle’s critique of ‘the regimes of Sparta and Crete’ (Polit. II 1269a29), he cites Plato—hoper kai Platôn en tois Nomois …—to precisely this effect: ‘The entire system of the [Dorian] laws (pasa syntaxis tôn nomôn) is directed towards one part of virtue only, military valour (pros … tên polemikên), because this is useful for conquest’ (Polit. II 1271b1–4).
- 26.
The Athenian legislator reverses this bellicism at Pl. Laws VII 803d: ‘It is the life of peace that each should live as … nobly as he can’; but he then seems to revert to it at Laws XI 942a–e.
- 27.
Pl. Apol. 28d–29a. The battle of Potidaea antedates, and contributes to the outbreak of, the Peloponnesian War: Thuc. Pelop. I 56–65.
- 28.
Pl. Apol. 38e–39a. I return to this sentence in Sect. 3.3.
- 29.
For ‘free man’, Pl. Apol. 38e; and for ‘philosopher’, Apol. 28e. There is also an apposite definition of the ‘free man’ at Pl. Rep. III 387b, where ‘to be free’ is simply to ‘fear slavery more than death’.
- 30.
Monos here is from the phrase monon skopein (Pl. Apol. 28b), which I will now discuss. The mirror-effect with nomos-monos is my own.
- 31.
According to one strain of Hellenistic tradition, Socrates’ accusers come to a bad end. Plutarch reports that Anytus and Meletus hanged themselves: Plut. Envy 6 (537e–538a) (One thinks, here, of Judas Iscariot in Christian tradition. Cf. Matthew 27:5). Augustine believes that ‘the people’s indignation (populi indignatione) turned against Socrates’ two accusers to such a degree that one of them was set upon and killed by the violence of the multitude, while the other avoided a similar punishment only by going into … permanent exile’: Aug. Civ. VIII 3.
- 32.
Note, in this regard, the prominence that Isocrates gives to the same charge in his fictive apology, Antidosis, which he composed in 354/53 bce and patterned after Plato’s Apology: Usher (1999, 316–317). Cf. for instance, Isoc. Antid. 30: ‘Here in the indictment my accuser seeks to vilify me, charging that I corrupt the young men (diaphtheirôi tous neôterous) by teaching them to speak … in the law-courts contrary to justice (para to dikaion).’ In a different context, however, it is the charge of impiety or ‘atheism’ that comes to the fore. Cf. Plut. Gen. Socr. 9 (580b–c): ‘Has Meletus convinced you, too, that Socrates had no use for things divine (ta theia)? For that was the charge that Meletus brought against him before the Athenians (touto gar autou kai pros Athênaious katêgorêsen)’.
- 33.
Pl. Apol. 28b.
- 34.
Echoing his opening words at Pl. Apol. 17c—‘I believe what I say to be just’—and then his admonition to the citizen-judges at Apol. 18a: ‘Look strictly to this one thing, whether or not what I say is just; for that is the virtue (aretê) of a judge’. And cf. Pl. Crito 54b, where the Athenian Laws adjure Socrates to care for nothing, not even his life, more than he cares for justice. These appeals take on a special gravity in Plato’s Apology and Crito, but they nevertheless undeniably belong—in generic terms—to the forensic rhetoric of the day. At Lys. Comm. 22, for instance, Lysias admonishes the law-court: ‘Put justice, therefore, above everything else’ (peri pleistou oun poiêsamenoi to dikaion).
- 35.
Ernst Heitsch comments that this section is devoted the question of ‘was wirklich schändlich (αἰσχρόν) ist’ (2004, 118 n. 212). And see Socrates’ return to the question of shame and disgrace at Pl. Apol. 38d, where he effects a brilliant reversal: he has been condemned because he lacks ‘shamelessness’. See Chap. 4.2, below.
- 36.
Vlastos (1983, 496–497) quotes Xenophon in a similar regard: ‘But by Zeus, said his accuser, [Socrates] made his associates despise the established laws …’ (Xen. Mem. I 2.9).
- 37.
Herod. Hist. VII 104.
- 38.
Pl. Apol. 28d.
- 39.
Cf. Pl. Apol. 36c.
- 40.
Morrow observes that Plato’s ‘use of the term [“law”], now to denote the ideal, and at other times as a designation for positive prescriptions, shows that in Plato’s text it is already infected with the ambiguity that has ever since clung to it’ (1960, 563–564).
- 41.
That is, ‘law’ (nomos) will typically but not invariably refer to ‘the enactment of statutes’; the term can also serve to denote a basic ‘political condition’ in which punishment is decided upon and meted out: Ostwald (1969, 70).
- 42.
Arist. Polit. III 1287a20. Cf. Pl. Rep. IV 424b, where the ‘guardians’ are to prevent any musical innovation that is ‘contrary to the established order’ (para tên taxin), while taxis is then glossed at Rep. IV 424e with the terms ‘laws and institutions’ (nomous kai politeias).
- 43.
Canevaro (2016, 7).
- 44.
Shear (2011, 166–187, here 174).
- 45.
Lys. Erat. 29.
- 46.
Pl. Apol. 29a.
- 47.
Pl. Apol. 29b.
- 48.
Pl. Apol. 28b.
- 49.
Pl. Apol. 28d.
- 50.
Pl. Apol. 29b–30c.
- 51.
See Sect. 3.1.5, below.
- 52.
Cf. Pl. Apol. 31c–33a.
- 53.
Pl. Apol. 31d–32a.
- 54.
Cf. Pl. Apol. 31d.
- 55.
Cf. Pl. Gorg. 502d–e: ‘the Athenian demos, or … other assemblies of freemen in the various cities’.
- 56.
Pl. Apol. 31e.
- 57.
Cf. the several, definite echoes at Pl. Rep. VI 496c–e, VII 516e–517a. Slings (1994, 156) calls this ‘a general principle’.
- 58.
Pl. Apol. 32a. For the treacherous—and here, very free—term, ‘politician’, cf. Hansen 1983, 35–42: ‘In fourth-century Athens the phrase ῥήτορες καὶ στρατηγοί is the nearest equivalent of what we with a much vaguer and less formal term call “politicians”.’
- 59.
Cf. the phrase at Pl. Gorg. 502e–503a: diamachesthai legonta ta beltista.
- 60.
Cf. Pl. Apol. 32a, 32d.
- 61.
Scholtz 2004, 265. Paul Friedländer is less delicate: ‘Athenian justice was held in great contempt by Plato’ (1969, I:297).
- 62.
Montuori (1981, 186).
- 63.
MacDowell (1978, 202).
- 64.
Hansen (1975, 85) dates this trial to October or November 406.
- 65.
Pl. Apol. 32c. Cf. Burnet (1924, 210–213), and Socrates’ mockery of Pericles’ sons, Paralus and Xanthippus, at Pl. Prot. 315a, 319e–320a.
- 66.
Burnet (1924, 212).
- 67.
Xen. Mem. III 5.12–28.
- 68.
Hansen (1975, 84–86); Hamel (1998, 147).
- 69.
This seems to be confirmed by the tenor of one of Lysias’ arguments: Lys. Erat. 36. The terminus post quem for this speech is 403 bce (Usher 1999, 55 n. 6)—meaning that its date of composition is very close to Socrates’ trial in 399. Several decades after Socrates’ trial, when Isocrates remarks that ‘in the past Athens has so deeply regretted the judgements which have been pronounced in passion …’, he appears to have in mind the trial of the stratêgoi in 406: Isoc. Antid. 19.
- 70.
Pl. Apol. 32a–b. Cf. Hansen (1975, 85): ‘Only ὁ ἐπιστάτης τῶν πρυτάνεων, the chairman of this meeting of the Assembly Sokrates of Alopeke … defies the people and is presumably replaced by another chairman’.
- 71.
Pl. Apol. 32c. Diogenes Laertius preserves the report of a nearly identical—and thus, presumably duplicate—stance taken by Plato in defence of a commander (stratêgos) who faced execution in Athens: ‘Crobylus the informer met [Plato] and said, “What, have you come to speak for the defence? Don’t you know that the hemlock of Socrates awaits you?”’ (Dio. Laer. Lives III 23–24).
- 72.
Cf. the Athenian archons’ oath at Arist. Ath. 55.5: ‘They swear they will rule justly (dikaiôs) and according to the laws (kata tous nomous)’. Socrates’ oath figures prominently in Xenophon’s recollections of this trial: Xen. Mem. I 1.18.
- 73.
Pl. Gorg. 473e–474a.
- 74.
Xen. Hell. I 7.8–15.
- 75.
Pl. Apol. 32b.
- 76.
Cf. Hansen (1974, 19–21; 1975, 84–86; 1978a, 137–141).
- 77.
But Slings’s remark on this passage is well founded: ‘Athenian radical democracy, although constitutional in theory, was not so in practice, since the laws were not scrupulously observed, not even in matters of life and death for its citizens’ (1994, 160).
- 78.
See Sect. 3.1.1, above.
- 79.
Pl. Apol. 32d. Cf. Pl. Euth. 14b, which contains an early formulation of ‘the holy’ as a force—and specifically, as an ‘attendance on the gods’ (theôn therapeia 13d)—which ‘saves … the communion of cities’ (14b).
- 80.
Pl. Apol. 32c–e.
- 81.
Krentz (1982, 64): ‘The Thirty themselves were a body of the same size as the gerousia in Sparta. They wanted to keep their number at thirty … [and] they intended to write their powerful position into law’.
- 82.
According to Xen. Hell. II 3.39, this is ‘Leon of Salamis’ (Leontos tou Salaminou). Cf. Krentz (1982): ‘[A] former general, Leon of Salamis, died in Athens’; and Slings (1994, 164): ‘We have no certainty about the identity of Leon on Salamis’ (my stresses).
- 83.
Riddell (1877, 85): ‘The building [in Athens] where the prytanes, and while they lasted the Thirty, daily banqueted and sacrificed’.
- 84.
I take ‘kills lightly’ here from Pl. Apol. 31a.
- 85.
Cf. Xen. Hell. I 7.15: ‘Then the [recusant] citizen-judges, struck with fear, agreed to put the question—all of them except Socrates, the son of Sophroniscus’.
- 86.
Pl. Apol. 32d. According to Krentz (1982, 152), the regime of the Thirty lasted from September 404 to October 403.
- 87.
Cf. Pl. Rep. I 338d–339a.
- 88.
Xen. Mem. I 2.43: hosa tyrannos archôn, phanai, graphei, kai tauta nomos kaleitai. That Alcibiades later compels Pericles to retract this statement is, for our purposes, immaterial.
- 89.
Pl. Apol. 28d.
- 90.
See Sect. 3.1.1, above.
- 91.
Slings (1994, 180): ‘The Exordium of the Apology is full of topoi which were commonly used in contemporary forensic oratory’.
- 92.
Pl. Apol. 17d. And for ‘disturbance’ we could read: ‘full-throated clamor’ (Cairns 1942, 371).
- 93.
Pl. Apol. 18a.
- 94.
Cf. Lys. Alc. II 8: ‘You [citizen-judges] should reflect that you have sworn to decide according to justice (ta dikaia gnôsesthai)’.
- 95.
Pl. Apol. 30c.
- 96.
Also at Pl. Apol. 20e. Burnet comments: ‘The dicasts would be amused [at 20e] by the heckling of Meletus, but to defy the Demos to do its worst [at 30c] was another thing’ (1924, 205).
- 97.
Pl. Apol. 30b–c.
- 98.
For Socrates’ predecessors in this: Goldman (2009); and for his successors: Johnson (2009, 360 n. 47): ‘[The apostles] Peter and John, in fact, echo the words of Socrates when they declare before the Sanhedrin [= the supreme Judaic law-court of the first century CE]: “You judge whether it is righteous before God to obey you rather than to obey God” (Acts 4:19)”.’
- 99.
Burnet (1924, 205).
- 100.
Cf. Pl. Apol. 37e; Opsomer (1998, 108): ‘When [Socrates] says this, no one believes him: everyone thinks he is being ‘ironical’. As irreverence towards the gods is … one of the main charges on which he stands trial, the Athenians are not likely to believe him when he asserts that his conduct is the consequence of his obedience to God. The jurors will not accept this motivation. They will regard it as a mere pretext’.
- 101.
Pl. Apol. 29d. Slings (1994, 157) considers these ‘defiant words … to the jury’ to be ‘the most exalted moment of his defence’.
- 102.
Pl. Apol. 32a; English here per Burnet (1924, 210) (modified).
- 103.
Pl. Apol. 30e.
- 104.
Pl. Apol. 28e. Note the repeated phrasing at Pl. Apol. 38a.
- 105.
For ‘para-political’: Pl. Apol. 36b–c.
- 106.
Pl. Apol. 32a. This ‘axiom’ is heavily underscored at Pl. Apol. 32e, and again referred to at Apol. 36b–c.
- 107.
Pl. Apol. 29d.
- 108.
Cf. Pl. Rep. VI 494a, VI 497a–b: ‘Not a single city as presently constituted (tôn nun katastasin poleôs) is worthy of a natural-born philosopher (philosophou physeôs)’ (VI 497b).
- 109.
See Sect. 3.1.1, above.
- 110.
See Chap. 1.1.
- 111.
Pl. Apol. 37a–b.
- 112.
Riddell (1877, 96): ‘The Lacedæmonians, for instance’; while Riddell (1877, 96) and Burnet (1924, 237) both reference the customary delay of Pausanias’ prosecution and a procedural remark on trials at Thuc. Pelop. I 132.5. Note, however, that while Plato uses the term ‘law’ (nomos) here, Thucydides does not.
- 113.
At Pl. Prot. 343a, Socrates describes Thales and Solon, inter alia, as ‘lovers and disciples’ (kai erastai kai mathêtai) of Spartan institutions.
- 114.
Pl. Crito 52b–c.
- 115.
And at Pl. Rep. VIII 544c, Socrates refers to the Cretan and Spartan polities ‘which the masses praised’. Cf. Szegedy-Maszak (1978, 204): ‘Among the Greek states, Sparta, Crete and Athens were particularly famed for their eunomia. Zaleucus, first to make a [Greek] written code [of laws], is said to have combined Cretan, Spartan and Areopagite usages. … [The Spartan legislator] Lycurgus himself had travelled to Crete and is even alleged to have borrowed some laws from Thesean Athens’.
- 116.
For this sentence: Vlastos (1983, 499–500).
- 117.
Pl. Crito 52e–53a.
- 118.
Pl. Crito 53a.
- 119.
Herod. Hist. VII 104.
- 120.
Pl. Crito 51b–c.
- 121.
Pl. Apol. 28d.
- 122.
Pl. Apol. 28d.
- 123.
Some of Holger Thesleff’s comments on the Crito, a dialogue which he places ‘at a considerable distance from the Apology’, tend in this direction: Thesleff (1982, 208–209).
- 124.
Pl. Apol. 38e–39a.
- 125.
Cf. Montuori (1981, 239).
- 126.
Pl. Apol. 29d.
- 127.
Pl. Soph. 216c.
- 128.
Dio. Laer. Lives II 22. Cf. Vlastos (1983, 498): ‘Like an infatuated lover, Socrates can hardly bring himself to part a single day from his beloved Athens’.
- 129.
Note the caveat lector here, ‘in effect’. This is not a quotation, but a modulation of Socrates’ statement at Ap. 29d: ‘I shall never give up philosophy’. Cf. Pl. Crito 54b–e.
- 130.
Cf. Pl. Crito 52b, 53a.
- 131.
Once the ship has come from Delos: Pl. Crito 43c.
- 132.
Or rather, Plato has Socrates ventriloquize this statement by the Athenian Laws.
- 133.
Pl. Apol. 51b–c.
- 134.
See Sect. 3.2, above.
- 135.
Cf. Pl. Apol. 37b.
- 136.
Cf. Pl. Crito 53b, 53c.
- 137.
Pl. Crito 53a, quoted above.
- 138.
Cf. Pl. Crito 49a–e, 54b–c; Pl. Apol. 41b.
- 139.
Herod. Hist. VI 61–70.
- 140.
Thuc. Pelop. VI 88–93. In the Apology, Socrates mocks Meletus’ claim to ‘love his city’: Pl. Apol. 24b.
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Dusenbury, D.L. (2017). Socrates’ Execution and Platonic Legislation. In: Platonic Legislations. SpringerBriefs in Philosophy. Springer, Cham. https://doi.org/10.1007/978-3-319-59843-7_3
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