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Law In The Old Stoa And Its Antecedents

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Law In The Old Stoa And Its Antecedents

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Content This dissertation has baan
mlcrofilmad exactly as received
COTTON, David A very H eath, 1929-
LAW IN THE OLD STOA AND ITS
ANTECEDENTS.
U n iversity of Southern C alifornia, P h.D ., 1968
Philosophy
University Microfilms, Inc., Ann Arbor, Michigan
LAW IN THE OLD STOA AND ITS ANTECEDENTS
by
David Avery Heath Cotton
A Dissertation Presented to the
FACULTY OF THE GRADUATE SCHOOL
UNIVERSITY OF SOUTHERN CALIFORNIA
In Partial Fulfillment of the
Requirements for the Degree
DOCTOR OF PHILOSOPHY
(Philosophy)
January 1968
UNIVERSITY O F SOUTHERN CALIFORNIA
THE GRADUATE SCHOOL
UNIVERSITY PARK
LOS ANGELES. CALIFORNIA 0 0 0 0 7
This dissertation, written by
.P.a .X?.F.X . 1 ? ? . ? . ! : l l .Gottori.................
under the direction of h.la... Dissertation Com
mittee, and approved by all its members, has
been presented to and accepted by the Graduate
School, in partial fulfillm ent of requirements
for the degree of
D O C T O R O F P H IL O S O P H Y
DISSERTATION COMMITTEE
Chairman
ACKNOWLEDGMENT
During the more than three years during
which this study was in progress, Professor
William H. O'Neill, though he had left the
University of Southern California, continued to
direct the research and act as chairman of the
dissertation committee without compensation.
Without his mastery of Greek and Latin and his
philosophical excellence which is regrettably
rare among classicists, this study could not
have been undertaken. His translation of
Cleanthes' Hymn to Zeus appears in this study
on pages 74 to 75.
ii
TABLE OF CONTENTS
Page
ACKNOWLEDGMENT..................................... ii
Chapter
I. INTRODUCTION...................... 1
II. LAW AND NATURE IN THE FIFTH CENTURY .... 12
III. LAW AND NATURE IN PLATO AND ARISTOTLE . . . 38
IV. LAW IN THE OLD STOA................. 64
BIBLIOGRAPHY....................................... 91
ill
CHAPTER I
INTRODUCTION
The purpose of this study was to present the concept
of law (nomos) in the Old Stoa in the context of the previ
ous two centuries, with special attention to the nomos-
physis controversy. The importance of the Old Stoa in the
development of Roman law and thus Western jurisprudence has
long been acknowledged by historians of legal theory.
Little attention, however, other than cursory mention is
paid the Old Stoa since their doctrines are considered
rather complicated and obscure. Part of the difficulty
here arises from the fact that most of their writings have
not survived. We are dependent, for the most part, on
alleged material from polemicists whose concern often was
to refute Stoic doctrines and doxographers who were not
always concerned with accurate description of philosophical
positions.
A central difficulty which faces the investigator
is the question of sorting out the testimony and identify
ing possible genuine fragments of their works. While Von
Arnim's work is monumental, few scholars are willing to
1
accept all of the fragments as he classified them. Often,
references in the witnesses merely mention that the Stoics
held such and such a doctrine* or Zeno is referred to as
holding a certain position. It is not clear often which
Stoic or which group of Stoics are being cited and attribu
tions to Zeno's position must be accepted with caution
since it was fashionable to attribute ideas to a prominent
leader of a school of thought on the grounds that by the
use of his name more weight would be attached to the idea.
If one is asked to account for the divergent views
attributed to Stoic teachings, the following possibilities
should be considered. It might be claimed that the actual
system of the Old Stoa was fairly consistent but that it
was distorted by witnesses who either did not understand
the system or who chose to represent it in a manner which
allowed for easier refutation. The latter possibility is
not foreign to the philosophic enterprise either in
antiquity or, for that matter, in present times. It is
certainly true that many of the sources exhibit varying
degrees of hostility. That often a witness misunderstood
Stoic doctrine is a live option that few historians of
philosophy would deny.
A point in favor of viewing Stoic philosophy as a
fairly consistent system was their great interest in logic
and the careful attention they paid it. Lukasiewicz and
Benson Mates have convincingly pointed this out.^ It was
only dimly recognized by doxographers and translators that
certain recurring expressions had technical meanings and
that substitutions o£ supposed synonyms for purposes of
elegance could not but blur the technical uses of logical
expressions. Not only in logic but in their terminology in
general, the Stoics often used terms with specific technical
meanings. Since the publication of Mates' work in 1953,
more respect has been paid Stoic logic and its inventors
who went beyond Aristotelian limits and developed a propo-
sitional logic which in some respects anticipates some
2
modern theories of semantics.
Samuel Sambursky has further enhanced the reputa
tion of the Stoics with his study of their physics. He
has made a strong and plausible case for their credit in
originating a carefully developed continuum theory which is
closer to modern physics than the more well known atomic
theory of the ancient atomists. Sambursky asserts that the
dynamic notion of the concept of continuity was one of
their most original and significant contributions which
3
anticipated the scientific ideas of Faraday and Maxwell.
*Tor a full discussion of Stoic logic, together
with an excellent bibliography, see Benson Mates, Stoic
Logic (2d ed.; Berkeley: University of California ^ress,
1961) .
2Ibid., pp. 3 ff.
3
Samuel Sambursky, Physics of the Stoics (London:
Routledge and Kegan Paul, 1959), pp. vii ff. CT. also his
4
Another possibility which should be considered is
that the Stoic system was not consistent. On this assump
tion, what considerations should be entertained? Let us
grant that the testimony with respect to Chrysippus, for
example, renders conflicting opinions, and further that the
testimony is in fact faithful. This charge has been
leveled at philosophers perennially, no matter what their
logical genius. But even-when a case for inconsistency has
been convincing, we still wish to get at the most plausible
position of the philosopher while admitting he committed
the gravest of philosophical sins. But even if we grant
that perhaps Chrysippus presented a fairly consistent
position, we still have other Stoics whose doctrines are
difficult to square with his. What can be said of this
possibility, which is not only theoretical but one of fact?
Zeno, the first founder of the school, died when
Chrysippus was a youth. Cleanthes, for the most part,
expounded Zeno's teachings, but Chrysippus with the benefit
of the years of criticism not available to Zeno reformu
lated Stoic thought and developed it to such a degree that
he is credited with being the school's second founder. We
thus may expect some differences between Zeno and
Chrysippus, at least in the expression of basic Stoic
doctrines. If one adds the teaching of the Middle Stoa,
earlier book, The Physical World of the Greeks, first pub
lished in 1956 (New York: Collier Books, 1962), Chapters
VI and VII.
Panaetius and Posidonius, divergent positions and interpre
tations become even more apparent. Even if again we grant
that the testimony has been reasonably faithful, how can we
speak generlcally of the Stoic doctrine of law? The above
considerations may seem fatal to any definitive study of
the doctrines by reason of the questions raised.
Perhaps another tack is available. Since it is
unquestioned that the Stoics exerted a powerful influence
on the development of Roman law, it might seem useful to
attempt to piece together what has been attributed to them
and tentatively reconstruct what seems to be the general
position upon which the most authoritative witnesses agree.
In this only the modest claim can be made that at least
this is what the witnesses thought was Stoic teaching.
Even if the witnesses misinterpreted the old Stoa, it could
be held that their influence might well hav.e stemmed from
the consequences of the misinterpretations.
Some of the difficulties can be lessened by narrow
ing the field of inquiry from the Greek Stoics to the study
of the Old Stoa in particular. The reasoning behind this
proposal is that from the floruit of Zeno till the death of
Chrysippus is a time span of some one hundred years. There
is less divergence of ideas between Zeno and Chrysippus
than there is between Chrysippus and the Middle Stoa,
Panaetius and Posidonius. By narrowing the field of
inquiry to the Old Stoa and especially to the viewpoint
attributed to Chrysippus a further advantage obtains.
Since the works of Chrysippus were available to a large
degree to the Middle Stoa and to writers such as Cicero,
Philo and Seneca we may be fairly certain that much of
their testimony gives a reasonably faithful witness. This
is perhaps more true of Chrysippus' notion of law since
Cicero was very much interested in it as a basis for the
Roman formulation of law.
In this study some of the issues and philosophical
positions from the fifth and fourth centuries have been
given in some detail. Rarely, if ever, do philosophers
develop theories in vacuo and the results of this study
seem to point to considerable influence on the Old Stoa by
Plato and Aristotle at least with reference to their con
cepts of law and nature. It is often said that Heraclitus
was a significant influence on the Stoic notion of logos
identified with divine fire as well as divine law. While
4
a strong case can be made for this, a study of the notion
of logos in Plato and Aristotle seems to be more accessible
and possibly more useful within the Stoic framework.
Plato's concepts of law, right reason, mind, and God in the
Laws presented the Stoics with a splendid opportunity of
harmonizing many of these notions, together with those of
earlier thinkers into their own system which was an
A
Cf. G. S. Kirk, Heraclitus: The Cosmic Fragments
(Cambridge, England: Cambridge University Press, 1V54),
p. 49.
7
eclecticism to be sure. Aristotle's concept of physis also
seems to play a considerable role in their theory. By
presenting some of the philosophical ideas which were
current during the early part of the third century, it is
thought that this may serve our understanding of Early
Stoic concepts as well as be a possible balance for the
writers who record Stoic thought many years after the Early
Stoics were dead.
The three major figures of the Old Stoa considered
in this investigation are: Zeno of Citium (c. 336-265
B.C.), Cleanthes of Assos (c. 331-232 B.C.) and Chrysippus
of Soli (c. 279-206 B.C.). While other figures are placed
in the classification, Old Stoa, Zeno, Cleanthes and
Chrysippus were the most significant, and from these most
of the information on the period stems. The most valuable
sources for this study are Diogenes Laertius, Cicero, Philo
and Stobaeus.
Diogenes Laertius, writing in the doxigraphical
tradition, is one of our most important sources. While
writing about five centuries after the death of Chrysippus,
he is a somewhat reliable source for Stoic doctrines. For
the most part it is thought that he worked from secondary
sources. In the case of Epicurus it appears that he took
the material word for word from the writing of Epicurus.
Unhappily for some other philosophical schools, his value
varies from trustworthy to almost worthless. He was
8
interested more often in the persons he was writing about
rather than their specific philosophical system. Since
Diogenes does not tell us that he studied philosophy he is
subject to the criticism that as a compiler, his selection
of quotations and interpretations may well be suspect, and
thus he is not a completely reliable source even for the
Stoics and Epicureans.
Cicero writing in the first century B.C. was keenly
interested in philosophy, and counted among his friends the
Middle Stoic, Posidonius, as well as representatives from
the other three main schools.: Staseas the Peripatetic,
Philo and Antiochus, the Academics, Phaedrus and Zeno the
Epicureans. Cicero's purpose seems to have been to make
the works of the Greek philosophers available to the
Romans. Thus he presented a rather broad range of materials
summarizing and making copious quotations. De Nature
Deorum, De Divinatione, and De Fato present Stoic, Epicurean
and Academic arguments and counter-arguments about cosmology
and religion. Cicero was inclined to reject the Stoic
position on fate, but was favorably inclined toward their
doctrine of divine providence. The ethical views of the
Stoics, Epicureans, and Peripatetics are examined in De
Finibus Bonorum et Malorum. In De Officiis he presents a
practical ethics from a Stoic point of view. Of the two
political dialogues, De Re Publica and De Legibus, the
latter is most important for this study since he represents
Roman law as the realization primarily of Stoic theory.
The eclectic nature of Cicero*s work is both an advantage
and a disadvantage. The clash of views he presents gives
some indications of what philosophical issues were at stake
among the various schools. His friendship with members of
the four main schools suggests that his writings may not
have significantly distorted the interpretations of the
various viewpoints. We are dependent, however, on his
selection of material, and the criterion for this seems
often to have been in terms of Carneades' criteria for
juxtaposing conflicting opinions.
Philo Judaeus (fl. 20 B.C.-A.D. 40) is an eclectic
drawing from nearly all the schools. Platonism is a very
important element in his thought but so also are Stoic
ethical doctrines. Fragments of the Stoics in Philo seem
to depend on Posidonius and the other authors of the
Middle Stoa. The majority of quotations seem to deal with
the persons of the Wise and Unwise man and to reflect the
views of the Early Stoa.
In his desire to write stylistic Greek he was less
inclined than some other authors to quote the Stoics
verbatim, nevertheless he remains an important source
especially for their moral teaching. He recognizes the
value of freedom from passion and living according to
nature, and that the morally beautiful is the only Good.
Stobaeus presents what may be one of the most
10
significant sources for this study, Cleanthes1 Hymn to
Zeus. This is generally regarded as a genuine fragment of
the Old Stoa. Whatever else may be said of Stobaeus'
descriptions of Stoic doctrines, it is thought that since
this is a poem in hexameter verse it would be difficult to
corrupt it without doing violence to the original. This
fragment presents the essential points of the Old Stoa on
the relation of God, law and reason.
At the early stage of this study it became clear
that secondary sources were of little value, and also that
translations varied from trustworthy to very misleading.
Consequently when translations were used, they were care
fully compared with the standard editions of the Greek and
Latin sources, and in many cases retranslation was neces
sary. This was the case not only for the Stoics but for
all of the sources cited in this study.
The results of this study are considered prelim
inary to a more detailed study which would cover not only
the antecedents which may have influenced the Stoic notion
of nomos but would also cover a detailed examination of the
Stoic notion of physis as it bears on their ethical system.
Sambursky's study of their physics concentrates on its
scientific implications while what is proposed here for
further investigation is the ethical implications which
they derived from their physics. In the writer's opinion
the task must be extended further by taking account of the
11
concept of physis which was current with Theophrastus
during the third century and which may also have influenced
Chrysippus. It is also necessary in the writer's opinion
to investigate the Middle Stoa both in their relation to
the Old Stoa, and in their very direct relation to Cicero
and other Roman thinkers who undertook to undergird Roman
Law with the philosophical framework of the Stoic viewpoint.
Professor Max Fisch, who kindly assisted the writer at the
early stages of this investigation by making both his
material and office available, provides a wealth of refer
ence material both in his dissertation,^ and especially in
the references he has collected over the years which bear
on Stoicism and its influence on Roman Law.
What is most urgently needed is a critical study of
the Stoic fragments, and until this is done the student of
the Greek Stoa is severely handicapped. In this investiga
tion much material which might possibly have provided a
more detailed understanding of the Old Stoa's concept of
nomos was not used due to the lack of the critical work
needed.
' ’ Max H. Fisch, "Stoicism and Roman Law" (unpublished
doctoral dissertation, Cornell University, 1930).
CHAPTER II
LAW AND NATURE IN THE FIFTH CENTURY
In De Natura Deorum1 Cicero's purpose is to put
before Roman readers the theological views of three schools
of philosophy of his day which had been important during
the two preceding centuries.
In the course of the dialogue Velleius the Epicurean
in his attack on the Stoic theology points up the distinc
tive and for him perplexing view of law, nature, and God in
the old Stoa. Velleius observes that Zeno's view is that
the law of nature is divine, its function is to command
what is right and to forbid the opposite. What puzzles
Velleius is that on this account Zeno is holding law to be
alive. Yet in another passage he notes that Zeno states
that the aether is god. Velleius cites a further perplex
ity: Zeno holds that a "reason" which pervades all nature
is possessed of divine power and this same power Zeno
attributes to the stars, and even to years, months and
seasons.
^Cicero, De Natura Deorum, I, 36-41.
12
13
Velleius continues the attack by stating that
Cleanthes at one moment identifies the world itself as god,
at another time god is the mind and soul of the universe,
and yet another time deity is the all-surrounding fiery
atmosphere called the aether. Elsewhere Velleius notes
that Cleanthes assigns full divinity to the stars and then
again pronounces that nothing is more divine than reason.
Velleius turns his attack on Chrysippus whom he character
izes as the ’’ most skillful interpreter of Stoic dreams."
Chrysippus, he observes, says that divine power resides
both in reason and in the soul and mind of the universe.
Also Chrysippus identifies god as: the world itself; the
all-pervading world soul; the guiding principle of that
soul, which operates in the intellect and reason; the
common and all-embracing nature of things; the power of
Fate; the Necessity that governs future events; fire or
aether; water, earth, air, the sun, moon and stars; the
all-embracing unity of things. Chrysippus, while identify
ing Jupiter with aether, also identifies Jupiter with the
mighty Law, everlasting and eternal, which is the guide of
life, and instructress of duty and which he entitles
Necessity or Fate, and the Everlasting Truth of future
events.
Cicero has presented through the Epicurean speaker
Velleius both the complexity of the early Stoic system and
at the same time a glimpse of its suspected coherence. It
14
Is clear from the Ideas attributed to Zeno, Cleanthes and
Chrysippus that there Is a very close relationship between
their concepts of god, the nature of the cosmos, the nature
of man, and the nature of law.
For an Epicurean to designate law as divine and
equate deity with the totality of what Is, was sheer
nonsense. How could law, for example, which for the
Epicurean was a contrivance of human expediency, be con
ceived of as divine, forbidding and commanding? How could
Jupiter be at once both the everlasting and eternal law,
and at the same time the surrounding fire or aether of the
cosmos? The answers In part to these questions lie In the
Stoic solution to the nomos-physis controversy which devel
oped in Greek thought during the fifth and early fourth
centuries.
The controversy over the nature of law developed
within the intellectual cross-currents of the fifth century.
During this century Athens reached its Golden Age when
Pericles dominated the affairs of the city from 460 to 429
B.C. The Athens of Pericles became the meeting place for
most of the Greek intellectuals of the time. Socrates met
Parmenides and Zeno there about the year 450 B.C.
Anaxagoras spent some thirty years at Athens and Socrates
was taught by Anaxagoras1 pupil, Archelaus. The Sophists
2
W. K. C. Guthrie, A History of Greek Philosophy.
Vol. II (Cambridge, England! Cambridge University Press,
1965), pp. 347-349.
15
Protagoras, Prodicus, and Hipplas talked with Socrates
shortly before the outbreak of the Peloponnesian War
(431-404 B.C.)* The Sophist Gorgias had been sent to
Athens in 427 at the head of an embassy from Leontini, his
native city in Sicily. Protagoras who had been commis
sioned by Pericles to set up legislation for the new colony
at Thurii in Italy there met Herodotus and very likely
Empedocles, in 443. Euripides, Sophocles and Aristophanes
were also at Athens, as was the historian of the Pelopon
nesian War, Thucydides. Democritus very likely spent time
in Athens, and though there is some difficulty in identify
ing Antiphon the Sophist, it is thought that he was at
Athens during the last part of the fifth century.
Though previous philosophers had in fact commented
on the origins of society and man's life within the city,
in the intellectual ferment of the fifth century more
attention was given to ethical and political considera
tions. Speculations concerning origins of man as a
creature emerging from sub-human life forms or from the mud
and slime led to speculation concerning the nature of his
social structures.
If man was indeed the offspring of nature, then his
customs and laws might also be a development of the histor
ical process. In this case assessment of social structures,
customs and laws and continuous modification of them to
meet the needs of a developing social complex was not only
16
a beneficial enterprise, but, in fact, a necessary process
to ensure the further realization of man's potentiality
within a social environment. This view was a viable
alternative to the religious or idealistic explanation of
the cosmos and man's origin. The fifth century had both
alternatives at its disposal. The implications of these
competing cosmologies and anthropologies, together with the
tensions arising from changing political structures, were
the issues debated by philosophers, scientists and political
theorists.
Hesiod provided an anthropology for the religious
or idealistic view and Anaximander, Xenophanes, Anaxagoras,
Archelaus and Democritus provide the other. In the Works
and Days Hesiod gives an account of the five ages of man.
He describes the ideal state as follows: "In the old days
the tribes of men used to live upon this earth/ Far, far
removed from evils and far from grievous labour/ And far
q
from fell disease which brings on men their dooms." This
original race lived like and were beloved of the gods.
They suffered none of the perils and difficulties which
were commonplace in Hesiod's fifth and last age of-man.
The last age is described as a time of unceasing labor,
affliction and destruction; a time when there is no respect
q
Hesiod, Works and Days, 90-92. Translation by
Eric A. Havelock, The LiberalTemper of Greek Politics
(New Haven: Yale university I>ress, 1957), p. 3b.
17
for right and good; a time when physical violence prevails,
children do not honor to their parents, and ties of comrade
ship and kinship are broken.^ For the Greek scientist, man
like all other life forms developed from elemental chaos or
at least from non-mammalian ancestors. He was a product of
the natural process of the cosmos.
Anaximander (c. 550 B.C.)
Anaximander's opinion was that from water and earth
in a warm condition there arose either fish or animals very
like fish. Inside these, human beings took shape, the
fetuses being retained inside until the period of puberty,
at which time they ruptured and there emerged men and women,
by this time capable of self-support.^
Xenophanes (c. 565-470 B.C.)
"Everything that is born and grows consists4of
earth and water."From earth and water all of us
derive."7
^Havelock, 0£. cit., pp. 39-40.
^Hermann Diels and Walther Kranz, Die Fragmente Per
VOrsokratiker [hereafter FVS®] (Zurich, Berlin, l9b4),
LZA30 (Censorinus 4, 7).
6FVS6 21B29 (Simplicius, Phys. 188, 32).
7FVS6 21B33 (Sextus, Adv. Math. X, 314).
18
Anaxagoras (c. 500-428 B.C.)
"My system being such, the conclusion must follow
that (a) In all these selective compounds there inhere
many all-various properties with seeds of all things and
all-various shapes and hues and savours (2.34.5-7), (b) in
the process. human beings have been put together and all the
animals--everything that has life (2.34.8-9)."®
Archelaus, a disciple of Anaxagoras and teacher of
Socrates, says that animals and human beings alike come
from the slime and then he comments: "Human beings were
separated out from the others and then organized [leader
ship and] leaders and lawful usages (nomous) and techniques
a
and cities and so on." Here Archelaus has followed the
implications of man's biological and historical development
with respect to the historical development of law. It is a
product of man's history and development.^
®FVS® 59B4 (Simplicius, Phys. 157, 9); translation
by Havelock, ££. cit., p. 109.
^FVS® 60A4 (Hippolytus, Refut. I, 9); Havelock,
op. cit., p. 112.
^Diogenes Laertius says that Archelaus maintains
that "right and wrong exist only by convention, not by
nature" (II, 16-17), and this passage, it has been sug
gested, may have been read into Archelaus, though it is a
well known Sophistic view. On this see Kirk and Raven,
Presocratic Philosophers. p. 399. See also Lexicon of
Suldas (OUAZ; Z.4$.2l) rendered by Havelock (op. cit.,
p"I 113), "Archelaus' opinion: right and dishonourable
exist not by nature but by custom law." If it is true,
however, that these passages are indeed his opinions, then
he is perhaps the first formulator of the nomos-physis
antithesis. On this see Guthrie, op. cit.. Vol. It. pp.
343-344.
19
Democritus (c. 460-370) with other thinkers holds
the view that men and animals were originally generated
from water and mud. ^
While these thinkers provide what might be termed a
scientific anthropology, the historical development of the
human race was also reflected in Aeschylus (c. 525-456) and
Sophocles (c. 496-406). Hesiod had described man degener
ating from an ideal state, but Aeschylus in Prometheus
Bound describes man not as beloved of God but rather as
meaning nothing to Zeus. Man is to be destroyed but
Prometheus, whose sin is that he loves man, becomes man's
protector. He steals fire for man and teaches the human
race all technologies; language, architecture, the alpha-
12
bet, transportation, medicine, mining and metallurgy.
Within two decades Sophocles in the Antigone also
reflects the naturalistic view of man when he celebrates
man as a marvelous, self-taught creature who masters,
except for death, his environment through technology and
13
develops customs, law and the city-state society.
Democritus, beginning with his theory of man's
origin, goes on to develop his theory of society, beginning
^Aetius, II, 2, 2 (FVS^ 67A22). See passages from
Censorinus, Aetius and Lactantius collected in FVS® 68A139.
•^Prometheus Vinctus, 226-241; 109-113; 454-471;
476-506; quoted in Havelock, o£. cit., pp. 52 ff.
13Antigone, 332-375.
20
with the notion of protection as the primary base. Man
must protect himself from whatever threatens his existence.
If an animal threatens, then If a man destroys the animal
he should not be penalized. This act promotes well
being.*^ Whatever is the "enemy1 1 should be destroyed:
According to the custom laws of the father you kill the
"enemy" in every (social) order where custom-law in that
order does not prohibit; for the several groups there are
prohibitions of local religious sanctions, of solemnised
contracts, of oaths.*^ Right according to Democritus is
the performance of what is needful while wrong is the
failure or declination to so act.*** If a man suffers wrong
then there is a need to be avenged if this is feasible. It
is right and good to be avenged and it is wrong and bad to
let the wrong go unavenged.*7
The argument of Democritus here is that the princi
ple of self-protection is basic. While this principle is
most important, especially as a so-called rule of the
jungle, a more sophisticated and more complex society does
not operate on this basis alone. Given a more complex
*4FVS6 68B257.
*"*FVS** 68B259b. The translation here is by
Havelock, oj>. cit., p. 128. It is to be noted that
Havelock translates nomos linking it with the ideas of
"custom" and "usage." For a justification of this, see
his appendix to Chapter VI of the work cited.
*6FVS6 68B256b.
*7FVS6 68B261.
21
society there exist not only threats from without but
tensions as well from within. When envy and malice gener
ate factions within a group, this, says Democritus,
constitutes a common disaster no matter who wins or
loses.
It is to deal with such problems that the rules and
customs of the group are designed to offer a partial solu
tion. These custom-laws would not prohibit anyone from
living his life in accordance with his powers and opportu
nities if each person would refrain from inflicting injury
19
on another. Since men do not refrain from inflicting
injury on each other the custom-laws provide a means for
settling difficulties. The function and limitation of
custom-law Democritus describes as follows:
It is the desire of custom law to do good to the
way of life of men
but it is able to do this only when men also desire
to have good done to them.
If men harken to it
the custom law demonstrates to them that excellence
which is its own.20
Law consists of publicly recognized norms of
behavior which promote the general welfare of society. To
this end it is useful or good, but also it is able to "do
good" only when men themselves desire to have good done to
18FVS6 68B249, 245b.
19FVS6 B245a.
OA f .
FVS 68B248; translation by Havelock, op. cit.,
p. 135. ---
22
them. The justification of law is the harmony it promotes
among the members of the group. If men prefer envy and
malice the custom-law does not prevent the disintegration
of the society.
When it comes to a city-state society, Democritus
recognizes that the city must be managed for the stability
and success of everybody. Unless it is so managed the
21
general security will turn into general demoralization.
If the city is to be managed properly he recognizes that
22
authority must by nature be exercised by the superior.
While this seems to be an anticipation of Plato's
philosopher-king, Democritus is not satisfied to leave
power vested in the intellectual who has the ability to
rule or manage well. Democritus likens someone in author
ity to an individual with whom a deposit is made: "If
[a trustee] restores a deposit he need not expect to be
[morally] approved. If he defaults, he can expect to have
bad things said about him and done to him. It is just [to
23
treat] anyone in authority in the same manner."
Perhaps one of the most important elements for the
security of society is consensus. Consensus comes when
men are compassionate and recognize the need of comradeship
21FVS6 68B252b.
22FVS6 68B267.
2^FVS^ 68B265b; translation by Havelock, o£. cit.,
p. 148.
23
and mutual defence, and with civic consensus come other
goods to the full.2^ It is consensus that makes possible
for cities the mighty works enabling them to execute and
25
carry through wars.
From the fragments which we have of the political
theory of Democritus it seems clear that he views human
society as a developing dynamic process, not produced by a
divine providence, but rather through man's own ingenuity
and creativity, arising out of his basic needs for survival
and his natural inclinations for social living. The law
developed in this historical process is to secure these
basic needs and provide an instrument for the preservation
of the society. Democritus could not be accused of holding
that law should be obeyed at any cost; on the contrary, the
^law must be conducive to the general welfare of the society.
Reasonable men seeking consensus provide the best means to
achieve public harmony. The law of the polls for
Democritus is not mere convention, as it was for Antiphon.
It is useful and necessary for communal living.
The Sophists, Protagoras, Gorgias, Prodicus,
Hippias and Critias must have exerted considerable influ
ence in the political thought of Athens if the attention
given them by Plato is any indication. Certainly the
24FVS6 68B255.
25 6
FVS 68B250; translation by Havelock, o£. cit.,
p . 142.
24
sending of Protagoras to Thurii by Pericles to help in the
setting up of legislation in the new colony says something
for the esteem he must have enjoyed. Unfortunately the
ipsissma verba from these Sophists consist of one or two
sayings of Protagoras, a portion of a work by Gorgias, and
a number of fragments from Critias. In Antiphon's case,
like that of Democritus, a portion of his work has
survived. Its discovery was made among some papyrus frag
ments during the present century. If Thrasymachus be
counted in the sophistic tradition, then a portion of one
of his speeches before the Athenian assembly has survived.
With the paucity of material surviving from these contempo
raries of Socrates, we are, for the most part, dependent
upon Plato for the general thrust of their views. But
since Plato's concern was to attack and demolish their
positions, some caution must be maintained in assigning his
descriptions of their positions to the historical figures.
However, it can be maintained that the broad outlines of
sophistic thought can be reconstructed with considerable
confidence.^
Whereas Democritus concerned himself with the
historical basis of society and its custom-laws, the
Sophists sought to develop man's communication skills which
were necessary instruments to make democracy work. It has
been argued convincingly that Plato's Protagoras. while not
26
Cf. Havelock, o£. cit., p. 161.
25
attempting to present an historical description of the
writings of Protagoras, nevertheless does present the
27
central doctrines of sophistic thought. When pressed by
Socrates for a description of professional goals,
Protagoras claims that he has an intellectual discipline
which consists in the formation of correct decision. It
covers both the management of the household and administra
tion of civic business and expression in discourse.
Socrates wonders if the civic excellence of which
Protagoras speaks is teachable. Plato then allows
Protagoras an extended exposition of sophistic thought.
Protagoras holds that when society has reached the stage
when men are able to form joint decisions in civic excel-
28
lence this provides the condition of cities existing.
Every individual partakes of civic excellence and thus
every man's voice is tolerated in forming collective
29
decisions. Protagoras says he does not assume that the
excellence exists by nature automatically, but that it is
30
the result of concentration and instruction. As evidence
for his position the universal practice of punishment is
presented. Its purpose is to point out to the wrongdoer
what is socially unacceptable behavior and by force of
27Ibid., p. 163.
28Protag. 322d5-323a3.
29Ibld., 323a5-c5.
30Ibid., 323c3-324a3.
26
31
example prevent others from making the same mistakes.
Protagoras then goes on to describe the education of chil
dren, beginning with the nurse and mother and then the
32
tutor and father. When this education Is finished, at
least among the wealthy families, the city makes it com
pulsory for them to be instructed in the custom-laws to
prevent random action taken on their own initiative. These
custom-laws are the invention of excellent lawgivers which
compel men to rule and be ruled under their direction.
Deviation from these custom-laws is punished by the city
33
and the punishment is termed "corrective audit." In the
O /
Theaetetus Plato ascribes the view to Protagoras that
practices which seem right and laudable to a particular
State are right and laudable so long as the State holds
them. When the practices are unsound for them, wise men
substitute other practices that seem sound.
It is clear that for the sophistic mind justice and
law are the product of the historical process. They are
inventions of excellent lawgivers. They arise when men
are able to form joint decisions. These custom-laws in
turn help create the historical process as men are
instructed and when necessary punished in accordance with
31Ibid., 324a3-18.
32Ibid., 323c5 ff.
33Ibid., 326c3-el.
3Sheat. 167c.
27
them.
Prodicus of Ceos, who was bom about twenty years
after Protagoras, is mentioned occasionally by Plato. In
the Euthydemus Plato attributes to Prodicus the idea that
the sophists or the teachers of "political goodness" are on
the borderline between philosopher and politician (philo-
35
sophia and politike). If these are not the actual words
of Prodicus, they at least give evidence of the tradition
which took as its task the training of citizens to partici
pate in the affairs of the polls. If the teacher of
"political goodness" conceived of himself as being on the
borderline between philosopher and politician, this would
seem to suggest that his interests and teachings were
intended for something more noble than just taking fees to
train young men to win cases without regard to any notion
of responsibility.
Hippias who like Prodicus appears in the Protagoras
addresses himself to the group:
Oh, all of you present here, I hold and do proclaim
that you are of the same kin, the same household,
the same city--
all of you
but only in nature not in custom-law (nomos)
for like to like is by nature kin
but custom-law, being tyrant over men, employs many
violent pressures which violate nature. . .3o
^ Euthydemus 304C-305E.
36
Protag. 337c7-d3; translation by Havelock,
op. cit., p. zz3.
28
Again we are not sure that Hippias, like Producus, made
this speech, but it is consistent with the views attributed
to the Sophists in general. Xenophon describes Hippias'
views to the effect that law and custom, though contrary to
physls. are nevertheless useful, if good. In a city in
which conditions are perfect, there and perhaps only there
can to nomimon be said to be to dikaion. The unwritten
37
laws he holds to be valid everywhere.
It was in protest against what was called the
tyranny of law that Antiphon wrote his bitter attacks.
Though the dates of Antiphon1s life are in question, and
indeed exactly who he was is also in dispute, he does at
least bring into sharp focus the controversy over nomos
and physis.
Although Antiphon and Democritus formulate polit
ical theory within the context of custom-law, whereas
Democritus attempts to rationalize custom-law for the
society, Antiphon attempts to expose its limitations and
indeed its antithesis to the more basic norm of nature.
Democritus viewed custom-law as a basis of security for
society. Antiphon viewed custom-law as perhaps useful in
the society, but nevertheless an infringement of man's
personal autonomy and liberty, a restriction of man's
nature. At root Antiphon's basic principle is abstinence
^Xenophon, Memorabilia. IV, 4, 16; cf. Plato,
Hippias Major, 284d-e.
29
from aggression. This he extends even to the law courts
where a man might be called upon to testify against
another:
. . . if a man is held by (social) opinion as
righteous,
to witness true report
in our (social) relations with each other
is taken as lawful for him . . .
and by the same token as "useful" for the business of
human beings.
But if it is true that
it is righteous to do wrong to no man if you are not
wronged yourself
then, if a man do the above he cannot be righteous.
For if A give report of B,
even if he witness true report,
it is necessary that in some sense A do wrong to B
and that A in turn be wronged by B for what he said
about B. . .
. . . B, the object of the adverse report, finds
himself "caught,"
and loses possession or life
because of A, to whom he does no wrong.
This is a case where
A, by making B the object of his adverse report, does
wrong to him
in that A does wrong to a man who has done no wrong
to him.38
Antiphon's contention is that a witness by giving a report
against another will have to accept the fact that he has
made an enemy who will take what occasion he can to do harm
39
to the man who has witnessed against him. Any harm,
whether as a result of judicial process or otherwise, is
38FVS6 87B44 (Vol. II. 353, 1, 1 ff.); translation
by Havelock, o£. cit., pp. 258-259.
39FVS6 87B44 (Vol. II, 354, 35 ff.); cf. Havelock,
op. cit., p. 261.
30
damage and this is not righteous but is wrong.4® Right and
wrong are here defined as benefit and damage. Antiphon1s
pragmatic assessment of custom-law is delineated in the
following passage:
. . . righteousness . . .
to avoid breaking the lawful usages
of the (particular) city where citizenship is
operative.
If a human being is to follow that (form of)
righteousness
most (compatible) with interest
he should when attended by the testimony of reporters
treat the customs-and-laws as sovereign
and when (he finds himself) isolated from reporters
(substitute) the (rule) of nature.41
While this might suggest that hypocrisy is condoned, this
is not at all what Antiphon means to indicate. First
Antiphon holds that all men are by nature alike: "For by
nature all of us in all things are constituted alike both
barbarian and Hellene.1,42 The brotherhood of man without
regard to city or race is primary. Particular customs and
laws of groups, however, are not considered the product of
nature. They are conventions or compacts which men make
and are for the most part an enemy of nature.
^FVS6 87B44 (Vol. II, 354, 25 ff.); cf. Havelock,
op. cit., p. 264.
4*FVS® 87B44 (Vol. II, 346, 6 ff.); translation by
Havelock, o£. cit., p. 267.
42FVS6 87B44 (Vol. II, 352 B 23 ff.); translation
by Havelock, oj>. cit., p. 256.
31
The (prescriptions) of customs-and-law are reached by
compact
but those of nature are necessary
and the (prescriptions) of custom-and-law being
covenanted are not native growths
while those of nature being native growths are not
covenanted.
Should a man transgress lawful usage
provided this passes unobserved by the parties to the
covenant
he is separated from (social) demerit and (legal)
* penalty
and if it is observed, he is not (so separated);
but in the case of those (rules) which are nature's
native organic growths
if a man applies (artificial) pressure to any of
these in defiance of the feasible
the evil is no less, even if unobserved by all men,
nor any greater, though all men see it.
The damage inflicted rests not on (social) opinion
but on (objective) truth.
As a general (proposition)
the evidence so far received is in support of the
following (conclusion):
what is right, as constituted in terms of custom-and-
law, is mostly an enemy to nature.43
This passage suggests that Antiphon has accepted
the Naturalistic view of man's origin and that customs and
laws are additions of society. But these additions are
viewed as restrictions on man's nature, perhaps necessary
for public behavior, but certainly not rules in the Kantian
sense which should be obeyed under all circumstances.
Indeed they have force only so long as a person is within a
certain context, namely the social group, and one may
expect sanctions from the group if the laws and customs
43FVS6 87B44 (Vol. II, 346, 23 ff.); translation by
Havelock, 0£. cit., p. 271.
32
are violated. It is different in the case of violation of
man's nature. Whether or not one is observed, a man harms
himself if he violates or acts contrary to his nature.
Antiphon goes on to say that to be alive and to die
is a natural condition. To live is an interest whereas to
die is a non-interest. And things to one's interest are
not supposed to damage but to benefit. To suffer pain is a
non-interest but to have pleasure is an interest.
Antiphon contrasts interests which stem from law and those
from nature: Interests as constituted by law are bonds
laid upon nature but those constituted by nature are
AS
liberating.
From the above fragments it is clear that Antiphon
can be classified a hedonist. He takes pleasure to be an
interest and pain a non-interest. Any form of aggression
is contrary to someone's interest, and for the aggressor
the consequences of aggression may turn back upon him in
the future. Custom and law are viewed as being a non
interest in the sense that they are arbitrary and in effect
not necessary so long as one follows the interests accord
ing to nature.
Whereas Democritus sees in customs and laws the
44FVS6 87B44 (Vol. II, 348, 3, 25); cf. Havelock,
op. cit., p. 275.
45FVS6 87B44 (Vol. II, 348, 3, 25); cf. Havelock,
op. cit., p. 279.
33
security of the society, Antiphon sees in them the inhibi
tion of the individual man. The thrust of Antiphon's
attack on customs and laws is a blow for man's individual
autonomy and freedom. He does not see in this anarchy but
rather man pursuing his own interest which is for each
individual the same: freedom from pain and harm, freedom
from the bonds of artificial or conventional social
patterns, and freedom to actualize one's human nature and
interests. Customs and laws are the enemy just as is an
aggressor who diminishes or destroys one's pursuit of one's
interests.
At the close of the fifth century Anaxagoras had
been dead almost thirty years and Protagoras twenty. The
last decade had been Sophocles, Euripides and Thucydides
all pass from the scene, while during the first decade of
the fourth century Democritus died and Athens perpetrated
her crime against one of the noblest of her citizens. The
Periclean age had made its mark on Western thought and
culture for future generations, but defeat in the
Peloponnesian War had taken its toll of Athenian glory.
Economically exhausted and torn by political problems it
was a time for reflection and re-evaluation.
Perhaps the fifth-century dilemma concerning the
" basis of law and justice is well illustrated at the trial
and death of Socrates. At his trial Socrates declared that
he was obliged to obey God rather than man and yet he
34
remained loyal to the laws of Athens and its judgment that
required his life. The justice of his condemnation became
a prime subject of debate which stimulated a further
46
examination of the concepts of justice, law and nature.
Socrates seems to have concurred with the current
opinion that justice means conformity to law as Xenophon
attests in an account of an alleged conversation between
Hippias and Socrates. The conversation, however ficti
tious, more than likely represents the view of Socrates.
"Socrates, now you are clearly trying to avoid
stating an opinion as to what you think justice
is! For you are saying what just men do not do,
not what they do!"
"But," said Socrates, "I think that to be unwill
ing to commit injustice is a sufficient definition
of justice. However, if you don't think so, see
if this is enough for you: I state that justice
is what is lawful" [to nomimon dikaion einai].47
As the conversation continues it is clear that Socrates
means the citizen is law-abiding if he lives in a state
according to its laws and the citizen is just if he obeys
the laws of the city. This he holds to be the case even if
the laws are later amended or even rejected. For him,
unity (omonoia) which laws secure is the most important
good for a state.
^Cf. Plato's Apology. Xenophon's Apology and
Memorabilia.
47
Xenophon, Memorabilia. IV, iv, 11-12; translation
by Anna S. Benjamin (Indianapolis: The Bobbs-Merrill Co.,
Inc., 1965). Cf. also Xenophon, Cyropaedia. I, iii, 17.
^®Xenophon, oj>. cit., 12 ff.
35
From the law of a city Socrates turns to a c o n sid-
49
eration of "unwritten laws." These are understood to be
laws observed in every country, such as honoring parents,
proscription of marriage between parents and children, and
returning good for good. Since all men could not have met
together to make these laws it seems that the gods must
have made them. It is noted that these laws have a charac
teristic which make them superior to man-made laws. If one
of these laws is transgressed the resulting consequences
are themselves the punishment. Since the gods legislate
just laws, Socrates observes, as he did in the case of city
laws, that "just" and "lawful" are the same thing.
Antiphon states a similar view of punishment which
stems from what he terms "nature's native organic
growths.Doubtless Socrates and Antiphon would not
agree that what Socrates refers to as "unwritten laws" and
what Antiphon means by "nature's native organic growths"
are the same. But it is clear that they at least agree
that certain types of behavior result in consequences which
are harmful in themselves. They also agree that laws of a
city are the result of agreements among men and that
justice within a city is understood as conformity with
these laws. While Socrates, as does Democritus, sees
49Ibid., 19 ff.
50FVS6 87B44 (Vol. II, 346, 23 ff.). See above
p. 31.
36
city-laws as a benefit which conduces to unity (omonoia),
Antiphon sees the city-laws as by and large an enemy to
nature.^
The antithesis between nomos and physis is pointed
up by Democritus when he says, "By convention (nomo) there
is sweet, by convention there is bitter, by convention hot
and cold, by convention color; but in reality there are
52
only atoms and the void." Democritus is here making the
distinction which Parmenides had made between appearance
and reality.
During the fifth century the concept of nomos
developed within a political context associated with human
custom, convention, opinion or appearance, while the
concept of physis developed in quite a different context
from nomos. Nomos was commonly used to designate human
custom or convention and came to be identified with
justice. Whereas originally law was conceived as the
embodiment of justice, in the fifth century the norm of
justice came to be understood in terms of law as legal
enactment. As changes in the Athenian constitution took
place and as legislation and litigation increased the
conviction that justice was to be understood in terms of
the written code was reinforced. But also with the
51 6
Xenophon, op. cit., 12 ff.; Democritus FVS
68B250.
^FVS** 68B9; translation by Philip Wheelwright, The
Presocratics (New York: The Odyssey Press, 1966), p. 183.
37
successive changes in governments and legal codes, there
came an awareness of a need for some criterion by which
legal enactments could be judged just or unjust.
Whereas nomos was associated with human contriv
ance, customs and conventions which often varied from place
to place and from time to time, the concept of physis had
been developed by the early Greek thinkers who attempted to
explain the processes and basic stuff of the cosmos.
Undergirding their investigations was the conviction that
there was an order in the cosmos and that this order was
accessible to the human mind. This order if understood,
they believed, would explain the genisis and operations of
the cosmos. Physis then came to be understood as having
the character of necessity as opposed to the contingency
of nomos. Physis was associated with what is real and
what is true.
Antiphon in his work entitled "On Truth" draws a
careful distinction between "the ways of the law" (ta ton
nomon) and "the ways of nature" (ta tas physeos). "The
ways of the law are adventitious; the ways of nature are
necessary; and in most cases the ways of the law are in
conflict with nature."33
53FVS6 87B44 (Vol. II, 346, 23 ff.).
CHAPTER III
LAW AND NATURE IN PLATO AND ARISTOTLE
In one of his early middle dialogues, Gorgias^ Plato
attacks the position of those who would replace justice and
law by nature. Callicles, of whom independent information
concerning his historicity is lacking, presents his
Natural-Right theory. Callicles appeals to nature which he
understands to be things as they are. He states that for
the most part nature (physis) and convention (nomos) are
opposed to each other. From Callicles' point of view
"nature proclaims the fact that it is right for the better
to have advantage of the worse, and the abler of the
O
feebler." He then cites the example of Xerxes' march
against Greece as evidence that right consists in the
advantage of the stronger over the weaker.^ Such men
^Plato, Gorgias. translated by W. R. M. Lamb
(London: Loeb Classical Library, 1925). The following
quotations from the Gorgias will be from the translation
by W. R. M. Lamb unless otherwise indicated.
2Gorg. 482E.
38
39
"follow nature— the nature of right--in acting thus."^
He continues speaking of Darius who had attacked
the Scythians, and Xerxes who had attacked the Greeks, they
"follow the law of nature--though not that, I dare say,
which is made by us."** The phrase used here, kata nomon ge
ton tes physeos, is perhaps one of the first occurrences of
the phrase "law of nature" in extant Greek literature.^
It is to be noted that Callicles intends these words to be
paradoxical, "convention, if you like, but Reality's
o
convention, not a human device."
The strongman for Callicles, who imposes his will
on others is the model of the man who lives according to
physis. "Natural fairness and justice" for the man who
would live "rightly" is to let his desires be as strong as
possible while he is at the peak of his "manliness and
intelligence," and, indeed, he should satisfy each appetite
Q
with what he desires. A more crude form of hedonism would
be hard to come by.^®
~* Gorg. 483E.
6Ibid.
^E. R. Dodds, Plato, Gorgias (London: Oxford
University Press, 1959), p. 268; cf. also pp. 263-266.
D
A. E. Taylor, Plato, The Man and His Works
(New York: Meridian Books, 1956), p. Il7.
9Gorg. 49IE ff.
^For a comparison of Callicles and Nietzshe, cf.
Dodds, 0£. cit., pp. 387-391.
40
Socrates' counter-argument is that there are
pleasures that are good and pleasures that are harmful,
and that orderly people are more happy than licentious
12
people. By analogy with trainers and doctors who bring
order and system to the body which states are called health
and strength, Socrates observes that the effect of regular
and orderly states in the soul is called "lawfulness" and
13
"law." These regular and orderly states of the soul make
men law-abiding and orderly and, further, these states are
14
justice and temperance.
From the individual man Socrates turns his atten
tion to the business of an orator in a city. If the man
possesses political techne and is a man of virtue he will
always in words and actions keep in mind "how justice may
be engendered in the souls of his fellow-citizens, and how
injustice may be removed . . . how virtue as a whole may be
produced and vice expelled.
The person who lives the life of vice is dear to no
one, man or God. Heaven and earth, gods and men are held
together by communion and friendship, orderliness,
11Gorg. 500C.
I2Gorg. 492D.
^ Gorg. 504A.
14Ibid.
15Gorg. 504D-E.
41
temperance and justice. This Is the reason, says Socrates,
"why they call the whole of this world by the name of order
(cosmos), not of disorder or dissoluteness."^
In this early middle dialogue Plato has argued
against those who defend the right of the strongman to
Impose his will upon the weaker In the name of justice.
Plato refuses to Identify nomos or positive law with
justice. Instead, he answers those who make this Identifi
cation with the concept of techne. The products of art
(techne) when they exhibit order are good.^ Orderliness
in the case of the soul is "law" and "lawfulness" or
"temperance" and "justice." The art of the statesman then
is to bring orderliness into the State by bringing order11-
18
ness into the souls of the citizens.
Well after Plato's first visit to Sicily (389-388)
it is now generally agreed that he composed the Republic
(c. 373 B.C.) in which he expands his ideas of the earlier
Gorgias and provides a further foundation for justice.
Since Plato makes no distinction between morals and
politics he understands laws primarily as personal morality
which however he finds in a state "writ large." His
problem is to discover the rule of right by which a man
ought to regulate his actions.
16Gorg. 507E-508A.
17Gorg. 506D.
18
Cf. Dodds, 0£. cit., p. 337.
42
Whereas in the Gorgias Plato has argued against one
of the radical positions of the partisans of physis which
maintains that physis does support a Natural Right theory,
in the Republic Plato argues against a position that denies
that there is any basis for justice beyond mere convention.
While the position of Callicles claims physis as the
criterion of justice and Thrasymachus makes no claim for
justice other than convention in practice both theories
work to the same end. The strong man who can impose his
will on others, or the government with the power sets the
standard of Justice. According to Thrasymachus each form
of government enacts laws to its own advantage. The laws
proclaim what is just for the citizens and those who
19
deviate from the laws are punished as lawbreakers.
Glaucon speaking for the position of Thrasymachus
accounts for the origin and nature of laws as a compact
which is made as a compromise between the best, which is to
do wrong with impunity, and the worst, which is to be
20
wronged and be unable to retaliate. Glaucon has used the
antithesis between nomos and physis in this social contract
theory. As the story of Gyges is intended to support, man
by nature follows purely egoistic impulses to an unlimited
degree when there is no society to observe his actions.
19Rep. 338E ff.
20Rep. 358E ff.
43
This is natural morality as opposed to conventional moral-
ity which arises when a person must live in a society which
requires certain mores. The same point is made by
Antiphon.
Adeimantus follows Glaucon1s account of the social
contract by pointing out that virtue is taught with a view
to acquiring worldly success and that religion teaches an
21
outward morality. The effect of Adeimantus1 observations
and Glaucon's presentation of the social contract theory is
to provide Socrates with the opportunity of analyzing human
nature and discovering the real foundation of morality in
the constitution of man; and further to show how education
and religion should be allies of morality rather than
enemies. Socrates intends to show that justice and injus
tice affect the person independently of human or divine
sanctions.
In his analysis of the development of society and
of human nature Socrates thinks that he has discovered the
foundation of justice. When each person fulfills the
function for which he is best suited and maintains this
22
place in society, then this is called a just society.
It turns out that justice in an individual obtains when
23
there is inward self control and harmony of functions.
21Rep. 363E ff.
22Rep. 433A ff.
23Rep. 442E ff.
44
Plato has taken the partisans of physis on their
own grounds and has, he thinks, discovered the true nature
of man and finds in it the real foundations of morality.
It is the constitution of the ideal man. The philosopher -
king emerges as the only adequate embodiment of goodness
and he is for Socrates in the Republic the individual Who
is fit to rule and Who guides society as to how it ought to
live.24 The distinguishing characteristic of this states
man from an ordinary politician is that he possess knowl
edge.
Plato takes his argument a step further and makes
the intelligible world the real world, that is, the world
25
of Ideas Which are in the nature of things. And it is
this real world, the true nature of things that is the
model by means of which the philosopher-king knows What is
26
best for an actual society. The forms known by the
philosopher-king are the criterion of Right. They provide
the rule of right by Which a man ought to regulate his
actions. It is the function of the philosopher-kings to
provide the kind of education that encourages virtue in
the individual citizens and to regulate religion so that it
too aids in producing inward virtue. This, Plato says, is
24Rep. 499B ff.
25Rep. 501B; cf. 597A-598A.
26Rep. 500B ff.
45
27
the purpose of law, nomos.
After his second visit to Sicily (367-366) Plato
composed the Statesman (between 366 and 362 B.C.). Doubt
less his second visit after twenty years made him less
optimistic about teaching men in power the art of states
manship as he conceived it. Unlike the Republic and the
Laws, the Statesman is concerned with one particular aspect
of society, its leader. Like the philosopher-king of the
Republic the statesman possesses knowledge or the science
28
of a true king. A true statesman, equipped with this
29
"royal science" should not be bound by laws. What is
interesting in this context is that Plato is here contrast
ing techne and nomos. Techne is what is possessed by the
master of political art. The true statesman as a crafts
man, possessed of the royal art, is likened to a weaver
whose material comprises the citizens and institutions of
the state. His task is to take the various temperaments of
society, the vigorous and aggressive, the quiet and moder-
30
ate and cause all to share the same ideals and values.
Nomos where here contrasted with techne is under
stood to be what has seemed right or expedient to the
popular assembly or to the rich. Further being a general
27Rep. 590E; cf. 519D-E.
28Polit. 259A-B; 292B ff.; 293B ff.
29Polit. 293A-300E.
30Polit. 308A-311C.
46
rule, It cannot take Into account the peculiarity of some
cases. For these reasons the techne of the true statesman
11
is superior. But Plato does not leave the matter of law
without granting it more respect. He says that in the
"present age" when the royal science is so scarce, law is
necessary as a protection against the ignorance and vice of
32
rulers.
In a state without the rule of the philosopher
statesman Plato prefers the rule of law. Under the three
law-abiding governments Kingship is the best, then Aris
tocracy and then Democracy. But if all three flout the
law, Democracy is the best or the least evil, Oligarchy is
not as good as Democracy, and Tyranny is the worst of
all.33
In Plato's Laws, written near the end of his life,
he continues the subject which had been his concern from
the outset of his philosophical career, and which had
occupied his attention in many of the dialogues. His
concern was to establish justice both for the individual
and for society on more certain ground than what the
Sophists had claimed. He claimed that the first business
of the citizen was to do service to the laws which was
31Polit. 298C-D; cf. 293A, 294B, 297A.
32Polit. 300A-C.
33Polit. 300A-303D.
47
service to the gods. 34 He could not make this statement if
he conceived law as merely the product of those in power as
CaHides or Thrasymachus held. He denied that laws are
true laws unless they are enacted in the interest of the
35
common weal of the whole state. Further he held that
offices should only be assigned to persons who are obedient
36
to laws and these he calls ministers of the laws.
Against Protagoras he said that God, not man, was the
37
measure of all things. God, he held, was the true ruler
38
of the rational man.
If god is the true ruler and laws can be judged
true and false the question he must face is the position of
those who held that man and his customs and laws are a
product of a purely chance development within a material
istic cosmos. In the tenth book of the Laws he meets this
question head-on. He blames the influence of the , ( modern
scientists" for leading persons astray and undermining
religion. They teach that all things come into existence
39
partly by nature, partly by art and partly by chance.
The greatest things and the beautiful things are the work
34Laws 762E.
35Laws 715B.
36Laws 715C-D.
3^Laws 716C; cf. Cratyl. 386A ff.; Theat. 152A.
38Laws 713A.
3^Laws 886D ff.
48
of nature and chance, the lesser the work of art. Fire,
earth and air are the products of nature and chance and do
not owe their existence to reason or any god. Bodies then
come first and art comes later.4® Those who hold this
position assert that even the gods exist by techne and not
by physis.4^
Against this position Plato says the lawgiver must
assert that the gods exist and nomos and techne themselves
exist by nature or at least a cause not inferior since they
are the offspring of nous in accordance with right reason
(orthos logos) .42 Plato here attempts to meet the parti
sans of physis on their own ground and show that soul and
its products should be understood as being in the order of
nature in a more primary sense than the basic stuff which
they claimed to be nature.43 And further he says that
those things akin to soul are necessarily prior to body as
well. Among these he includes thought (nous), art (techne)
and law (nomos). The works and actions that are great and
44
primary are those of art.
He argues his case by an analysis of motion which
is intended to show that whereas the basic stuff of the
40Laws 889A ff.
4 ^ Laws 889E.
42Laws 890D.
43Laws 892C.
44Laws 892A ff.
49
modern scientists moves only when it is acted upon, Soul is
able to move itself, indeed it is the first principle of
motion and is therefore prior to body and in fact governs
body.4^ Soul is the cause of all things both good and bad,
and controls all things that are moved and this includes
the Heavens.48 Since both good and evil exist, there must
be at least two souls and it is the Best soul which in
conjunction with reason runs things properly and governs
47
things rightly.
The aim and purpose of law is the production of
virtue leading to the happiness of the citizens.48 The
statesman then must frame the laws to this end and the
study of astronomy is important since the god-fearing must
grasp that reason which controls and exists among the
49
stars. The divine law exhibited in the order of the
heavens is the norm which man must follow.
The antithesis of nomos and physis Plato resolved
by placing nomos in the order of physis. He attempted to
show that soul and what was akin to it, nous, techne and
nomos, were prior to the stuff the partisans of physis held
45Laws 895E-896C.
46Laws 896C ff.
47Laws 897A ff.
48Laws 705D, 743C.
49Laws 820E, 967D ff.
50Cf. ibid.; 716A; Heraclitus, FVS6 22B114.
50
to be primary. The Best soul, God and his way of ordering
the cosmos is what man must look to for the norm of law.
Although Aristotle discusses law in many contexts,
nowhere in his works which have survived does he offer a
formal definition of it. A further difficulty in ascer
taining his notion of law is encountered by the very nature
of such works as, for example, the Politics which contains
notes of lectures considering various historical and con
temporary viewpoints of political organization and justice.
Aristotle presents arguments on both sides of the topic
under consideration and does not often render his final
judgment but rather leaves the topic as a kind of dialec
tical investigation. The nature of the subject itself
presents another problem. In the Nicomachean Ethics*^ he
says the discussion of ethics and politics will be adequate
if it achieves clarity within the limits of the subject
matter. There is much variety and "irregularity," he
notes, in what people believe about the subject matter of
politics: Some believe that what is noble and just exist
only by convention (nomo) and not by nature (physei), a
clear reference to the position represented by the Sophists
such as Antiphon. Since the discussion of these subjects
starts from a position which is controversial and "irregu
lar," Aristotle says "we must be satisfied to indicate the
truth with a rough and general sketch: When the subject
51Nic. Eth. 1094b 13 ff.
51
and basis of a discussion consist of matters that hold good
only as a general rule, but not always, the conclusions
52
reached must be of the same order. Indeed, he adds that
the educated man "is one who searches for the degree of
precision in each kind of study which the nature of the
53
subject at hand admits." Morals and politics are consid
ered a contingent science, that is, they admit of being
other than they are.34 At best, then, it is possible to
gather some general characterizations of his notion of law
and be content with his caution that this is a subject
which does not admit of strict demonstration.
One of the primary purposes of law for Aristotle as
it was for Plato was to educate the young in habits of
virtue.33 Habits of virtue, he believed, do not arise
spontaneously from one's nature but are the product of
being taught by good laws and the exercise of practical
56
wisdom, phronesis. Virtue is a "characteristic which is
united with right reason; and right reason (orthos logos)
in moral matters is practical wisdom (phronesis). "37 Right
52Ibid.
53Ibid.
34Ibid., VI, 1-4.
55Ibid., 1179b 35 ff.; cf. Plato: Polit. 308A-
311C; Laws 7u5b, 743C, 880E.
56Nlc. Eth. 1103a 15 ff., 1179b 35 ff., 1144a 6 ff.
57Ibid., 1144b 25 ff.; cf. 1103b 30, 1106b 35 ff.
reason, then, is not only an external norm of action, but
is within the individual and makes him virtuous. This
practical wisdom (phronesis) when applied to the affairs of
58
a city is political wisdom and is the supreme virtue of
59
the ruler. The art of the ruler, then, is to administer
the city in such a manner that the citizens are habituated
to virtuous living.68 Good laws together with a wise ruler
make a just city possible. Aristotle does not render a
final answer as to whether the best person should rule
according to his own rule or whether the law should be
sovereign and the ruler the guardian of the law. He indi
cates that under some circumstances the absolute monarch is
more naturally suited, while under others the law as ruler
is more suited.6* Plato had preferred the ruler with the
true art of ruling, but where this was not possible due to
lack of rulers with this art the rule of law was prefer
able.62
In the Politics, law is characterized as "a sort of
go
order, and good law is good order." In a passage where
Aristotle rehearses Plato's arguments for law from the Laws
58Ibid., 1141b 23 ff.
59Polit. 1277b 25.
60Nic. Eth. 1103b 3.
61Polit. Ill, xi, xii; cf. Nic. Eth. 1134a 35 ff.
62Cf. Plato: Polit. 298C-D, 300A-C.
63Polit. 1326a 30.
he renders the characterization as "law is reason (nous)
unaffected by desire (orexis). It must be remembered
that Aristotle holds that choice as the starting point for
action is desire and reasoning directed toward some end,
and that right reason must rule the individual, and that
desire provides a moving force. Thus Plato's character
ization must be understood in the context of Aristotle's
psychology and not be taken as Aristotle's opinion without
qualification. In another reference to law Aristotle says
that it is a mean (meson) or what might be termed impar
tial.^^ In the Nichomachean Ethics he says that "law
67
exists \rtiere injustice may occur," and that political
justice "depends upon law and applies to people who have a
68
natural capacity for law." In Book V he says that "just"
is what is lawful and fair,89 and "lawful" is what the art
of legislation has defined as such and each particular
enactment is called "just."7® On the function and right
ness of law he says that law "commands some things and
forbids others, and it does so correctly irfien it is framed
64Polit. 1287a 30 ff.
65Nic. Eth. 1139a 30 ff., 1144b 25 ff.
66Polit. 1287b 5.
67Nic. Eth. 1134a 30.
68Ibid., 1134b 13.
69Ibid., 1129b 13.
70Ibid., 1129b 24 ff.
54
71
correctly, and not so well if it was drawn up in haste."
It is noted that Aristotle does not deny the name "law" to
72
what he considers bad laws.
In the Rhetoric two kinds of laws are distinguished:
particular or individual (idios) and general or common
(koinos).
Law is on the one hand individual and on the other
hand common. I mean by individual that in accord
ance with which, when written down, people conduct
their constitution, but by common I mean as many
things as, being unwritten, seem to be agreed upon
by everybody.73
This seems to be a division between law as constitutional
law and legal enactments of a particular community and law
as the customs and unwritten practices which characterize
the particular community or even perhaps other communities.
The following presents another distinction:
I speak of law as on the one hand individual and on
the other hand common, individual that determined
by each people with reference to themselves, and
this is on the one hand unwritten and on the other
hand written: and common that according to nature
(kata physin).74
Here the division is between individual law comprising both
constitutional law and legal enactments as well as the
customs and unwritten practices of a community and common
law that is according to nature (kata physin). To
71Ibid., 1129b 24 ff.
72Cf. ibid., 1152a 19 ff.
73Rhet. 1368b 8 ff.
74Ibid., 1373b 3 ff.
55
illustrate the meaning of "law according to nature" he
presents the following:
For this is a fact which all men in some manner
divine, a common just and unjust by nature even
if there should be no community (association) or
compact between one another, as for instance the
Antigone of Sophocles evidently declares, viz.
that it is a forbidden just act to bury Polyneices,
on the grounds that this is a just act by nature:
"For neither today nor yesterday,
but from all eternity, these
statutes live and no man knoweth
whence they came."
And as Empedocles says in regard to not killing
that which has life, for this is not right for
some and wrong for others,
"But a universal precept, which extends
without a break throughout the wide-
ruling sky and the boundless earth."75
From this passage it is clear that the "law according to
nature" differs from the unwritten custom-laws of a partic
ular community. The latter are the result of compacts and
agreements which require some sort of community to make
them but the "law according to nature" is not the result of
compacts and agreements and does not depend upon the
existence of a community.
The law according to nature shares a characteristic
with the principle of equity: "Equity is ever constant and
never changes, even as the common law, which is according
to nature, whereas the written laws often vary."7* * In this
75Ibid., 1373b 6 ff.
76Ibid., 1375a 30.
56
particular context where equity is mentioned Aristotle has
distinguished two varieties of unwritten law. The first,
referred to as "common law," has to do with acts which go
beyond legal standards and are characterized by an excess
of virtue or vice which is followed by praise or blame,
77
honor or dishonor and rewards. This is not, however, the
common law according to nature, for the consequences of the
common law referred to in this context arise in accordance
with the general feeling of the community or society, not
from what is in accordance with nature. The other variety
of unwritten law is supplementary to the individual written
laws. It is the principle of equity and justice which goes
78
beyond written law. It is recognized that written law
cannot define justice for all cases and that it is intended
to cover most cases and is therefore general. In such
cases where the written law does not cover the particular
case, and again Aristotle makes reference to the Antigone,
the case must be argued that written law does not provide
for true justice and appeal is then made to unwritten
79
law. It is tempting at this point to identify the prin
ciple of equity and the law according to nature as the same
thing since in the two references to Antigone the first
speaks of "just act by nature" and the second says though
77Ibid., 1374a 20 ff.
78Ibid., 1374a 24.
79Ibid., 1375a 20 ff.
she has broken the law of Creon she has not broken the
80
"unwritten law." But whether or not the reference is to
the same principle or law, it is clear that the principle
of equity and the law according to nature share the charac
teristic that they do not vary in the same manner in which
written laws vary.
81
In the Nicomachean Ethics. Aristotle discusses
two kinds of political justice which have a bearing on his
notion of law and nature. He subdivides political justice
into what is "just by nature" (physikon), and what is "just
by convention" (nomikon). What is just by nature, he says,
has the same force everywhere and does not depend on what
one regards as just or not just. The just by convention
originally makes no difference if it is fixed one way or
the other, although once having been fixed, justice is
understood in terms of what is fixed. He illustrates the
"just by convention" as setting the price of a prisoner*s
ransom or designating that a sacrifice shall be of certain
animals and not of others. In an allusion to the Sophists
he notes that the just by convention constitutes justice
for them since they hold that what is according to nature
is unchangeable and has the same force everywhere, as
"fire bums both here and in Persia--whereas they see that
80Rhet. 1373b 6, 1375a 31.
81.,. _ ,
58
notions of What is just change."82 Aristotle's comments
that this is not the correct view, though it does contain
an element of truth in it. Further, that though it is
perhaps different among the gods, "among us there are
things which, though naturally just, are nevertheless
83
changeable, as are all things human." While conceding
that the Sophists have a point, Aristotle does not accept
the radical antithesis of nomos and physis. In the Sophis
tical Refutations he mentions the controversy between nomos
and physis as an example for arguing an opponent into a
paradox.8^
that justice does not consist solely in nomos (convention)
nor does it consist solely in physis (according to nature).
Political justice may for some instances be by convention
and in other instances according to nature. It is not
difficult to ascertain justice by convention since both
written and unwritten custom-law provide the norm. The
crucial question then is to ascertain what is just by
nature. In this context Aristotle says, "It is not hard to
see among the things which admit of being other than they
are, which ones are by nature and which ones not by nature
but by convention or agreement, although both kinds are
Here in the Nicomachean Ethics Aristotle asserts
82Nic. Eth. 1134b 22 ff.
59
85
equally subject to change." As an Indication to what is
meant here Aristotle has provided two significant clues:
the first when he said that the "naturally just are
nevertheless changeable, as are all things human," and the
second when he says it is not hard to see "among the things
which admit of being other than they are." These are
indications which lead one to what Aristotle understood by
"physis" especially in the biological sense and particu
larly as it is understood in the context of human nature
86
where man is by nature a social and political animal.
In the Generation of Animals, where he discusses
the occurrence of monstrosities, he says that a monstrosity
is contrary to nature but not to all nature, but only to
87
nature for the most part. And then he continues:
For as regards the nature which is always and which
is by necessity nothing comes to be contrary to
nature, but things happen contrary to nature only
in the case of those things which so come to be for
the most part but which may occur otherwise.88
85Nic. Eth. 1134b 23 ff.
86Cf. ibid., 1097b 11; Polit. 1278b 19. For a
careful study of Aristotle's notion of physis and its rela
tion to Plato's notion of soul, see Friedrich Solmsen,
Aristotle's System of the Physical World (Ithaca, N.Y.:
Cornell University Press, 19o0); cf. especially pp. 92-117.
87Gen. An. 770b 11 ff.
88Ibid.
60
Even that Which is contrary to nature is in a
certain manner in accordance with nature (i.e.
whenever the nature according to form does not
have the mastery over the nature according to
matter).89
What is to be observed here is that there are two kinds of
nature: one associated with a necessity which is never
contrary to its nature, the other which is for the most
part and which might be otherwise. Earlier in the Genera-
tion of Animals a passage which serves to clarify the
distinction between these two kinds of nature makes the
distinction between those things which are eternal and
divine and those things which are contingent:
Of the things which are, some are eternal and
divine, others admit alike of being and not-being,
and the beautiful and the divine acts always, in
virtue of its own nature, as a cause which
produces that which is better in the things which
admit of it; while that which is not eternal admits
of being (and not-being), and of acquiring a share
both in the better and in the worse; also, Soul is
better than body, and a thing which has Soul in it
is better than one which has not, in virtue of that
Soul.90
It is apparent that the nature which is associated with
necessity and which is not contrary to its nature in this
context is the eternal and divine. The nature of those
things which come to be for the most part but which might
occur otherwise refers to composite individuals (matter
and form). The human individual being of a composite
nature shares in the better and the worse. And while by
®^Gen. An. loc. cit.; cf. 777a 20 ff.
"ibid., 731b 24 ff.
61
nature the soul is the ruler and the body is that Which is
91
ruled, it does not always follow that this is the case.
At the end of Book VII of the Nicomachean Ethics
which deals with the question of pleasure, Aristotle points
out why human nature desires vary. The passage illustrates
the point that human nature, unlike divine nature, is not
forever the same, and therefore what is natural in man is
not an eternal constant:
There is no one thing that is always pleasant,
because our nature is not simple but there is
another element in us as well, inasmuch as we are -
perishable creatures, so that if the one element
does something, this is unnatural to the other
nature, and When the two elements are evenly bal
anced, What is done seems neither painful nor
pleasant; for if the nature of anything were
simple, the same action would always be most
pleasant to it. This is Why God always enjoys
a single and simple pleasure; for there is not
only an activity of movement but an activity of
immobility, and pleasure is found more at rest
than in movement. But "change in all things is
sweet," as the poet says, because of some vice;
for as it is the vicious man that is changeable,
so the nature that needs change is vicious; for
it is not simple nor good.92
It is clear that Aristotle understands human nature
as something Which is variable, or which is for the most
part. It does not have the kind of necessity associated
with it that he attributes to the eternal and divine. His
concept of physis with reference to human nature would be
something similar to What the word "normal" connotes, that
91Cf. Polit. 1254a 30 ff.
92Nic. Eth. 1154b 20-30.
is, what is found with more regularity than what is an
exception to the normal. However, when he uses the phrase
kata physin he also means more than what is for the most
part (normal), for he looks to the mature or complete
93
natural object as the end towards which nature has aimed.
Nature alms at producing a telos in the sense of a
completely formed individual. The individual who embodies
this completion is the man to study since he most nearly
represents what nature intended.
We will therefore restrict ourselves to the living
creature, which, in the first place, consists of
soul and body; and of these two, the one is by
nature the ruler, and the other the subject. But
then we must look for the intentions of nature in
things which retain their nature, and not in things
which are corrupted. And therefore we must study
the man who is in the most perfect state both of
body and soul, for in him we shall see the true
relation of the two; although in bad or corrupted
natures the body will often appear to rule over the
soul, because they are in an evil and unnatural
condition.94
The man of practical wisdom, -the phronimos is the man who
exhibits virtue in its highest degree. He is also the
man who should rule, that is, has the true art of ruling.
From what has been adduced, the conclusion seems to
follow that the subdivision of political justice which is
by nature (physikon) is just by virtue of the law according
93Cf. Ph£. 744b 16.
94Polit. 1254a 34 ff.; cf. Nic. Eth. 1170a 13 ff.,
1099a 7 ---- --- ---
63
to nature. This law which is not a law of necessity but is
a law which is for the most part, that is, which is most
often the case when understood in the light of Aristotle's
teleology, is what the man who possesses right reason
(orthos logos), practical wisdom (phronesis) would under
stand as the best course of action for him, or that which
most nearly accords with human nature as he understands it.
However, it can be argued that the law according to nature
is that which is for the most part true of all humanity, as
to use Aristotle's own example, the right hand is by nature
stronger than the left, though by practice a man can become
96
ambidextrous. As many other questions which Aristotle
has discussed, the question of the law according to nature
is left without final judgment on his part.
Plato's solution to the nomos physis antithesis had
been to place nomos in physis. Aristotle's solution to the
controversy has been to admit both nomos and physis in the
domain of political justice, though he leaves it vague just
what the norm of physis is.
^Nic. Eth. 1134b 30 ff.; cf. Magna Moralia 1,
33, 19 ff. --- ----------
CHAPTER IV
LAW IN THE OLD STOA
In the third century two rival conceptions of
natural justice both claiming that law was in the order of
nature were worked out: one by Epicurus and the other by
the Early Stoa. In later times they became known respec
tively as the Social contract theory and the Law of Nature
or Natural Law. Both theories in the third century arose
out of the nomos-physis controversy of the preceding two
centuries.
Epicurus, influenced by fifth-century physicists
and doubtless Democritus as well as sophistic thought as
represented by Antiphon, constructed his theory of law and
justice on his understanding of human physis. For him the
good life was to maximize human pleasure which was not just
pleasant sensation but was to live nobly and justly and to
avoid both bodily and mental pain which interfered with
human pleasure.^* Self preservation and the avoidance of
harm then was necessary to insure the good life. Law as a
^Cf. Kyriai doxal I-XXX [Diogenes Laertius, X,
139 ff.]. [Hereatier Kyr. dox. and Diog. Laert.]
64
compact provides one means of achieving some measure of the
good life. That which is just in nature, Epicurus claims,
is a guarantee or pledge of benefit so that men neither
2
harm nor are harmed by one another. Like Antiphon,
Epicurus identifies benefit with freedom from aggression
and damage with being the object of aggression. But unlike
Antiphon who says that the compacts or custom-laws are for
the most part an enemy of nature, Epicurus takes the making
of the compact to be just by nature since the result of the
compact benefits the parties to the contract which makes
possible the pursuance of the good life with a minimum of
*
anxiety or mental pain and bodily harm or pain. As in
Democritus, the purpose of law is to contribute to personal
security in a society of potential aggressors. Epicurus
observes that justice is a peculiarly human problem which
does not exist for animals, and, indeed, neither does just
or unjust exist for those who are unable or unwilling to
3
make covenants not to harm or be harmed. For Democritus
custom-law was good only for those who desired it and for
both Plato and Aristotle good law had educative value even
for those who were recalcitrant, but these did not go so
far as to say with Epicurus that justice did not hold for
the individual who did not wish to comply with law. In an
apparent reference to Plato Epicurus argues that justice is
2Kyr. dox. XXXI [Diog. Laert. X, 150],
3Kyr. dox. XXXII [Diog. Laert. X, 150].
not an entity in itself. It is rather a kind of agreement
Which arises out of men's associations with each other in
community life.4 As with the Sophists and those who
believed man to be the product of nature, law and justice
was itself a development of the historical process.
Injustice is not an evil in itself, but the anxiety which
arises because of the possibility of being punished or
receiving social and legal sanctions is what is harmful to
the individual and therefore evil
Epicurus holds that the principle of justice is
universal in the sense that it is what is beneficial for
men in association. However, when it comes to its
particular application to specific places under various
circumstances, then it is not the same for all. In other
words, what is just must work to the mutual advantage of
the parties making a compact but depending on place and
time and culture the individual compacts or laws vary.
Thus the principle is universal but its application is
relative to circumstances.
Positive law or mere legality does not constitute
a guarantee of utility for Epicurus. Since law is the
product of the historical process, what benefits contract
ing parties must be discovered. Laws must be tested and
4Kyr. dox. XXXIII [Diog. Laert. X, 150].
^Kyr. dox. XXXIV [Diog. Laert. X, 151]; cf.
Antiphon: FVS^7B44 (Vol. II, 346 ff.).
if they prove to meet the needs of human society, then they
have the mark of justice. If, however, a law does not
prove to be advantageous in human relations it no longer
has the nature of justice, if in fact it ever did. How
ever, a law may be useful under some circumstances but when
the context which made the law useful no longer exists then
the law must be regarded as subject to change. It is no
longer useful to the community.*’
bases justice on nomos as convention alone or physis alone.
Rather his theory is a compromise. His concept of human
nature and the good life require the minimizing of pain
which means freedom as much as is possible from damage and
aggression. Since this is the same for men in general, it
is to their mutual advantage to make a pledge or guarantee
not to harm one another. In this sense justice has its
ground in physis as human nature. On the other hand, since
time and circumstances vary as do customs and laws as well
as opinions as to what is advantageous justice is also
grounded in nomos as a compact or agreement. Aristotle had
made a similar compromise when he subdivided political
justice into what was just by convention and what was just
by nature.
Strictly speaking it cannot be said that Epicurus
153]; cf . ’ heat. 167C.
XXXVII, XXXVIII [Diog. Laert. X, 152,
68
While Epicurus bases justice both on convention and
nature, a passage from Diogenes Laertius records that
Chrysippus in his work On the Morally Beautiful says that
"justice, as well as law and right reason, exists by nature
and not by convention (thesei). To say that justice and
Law (nomos) exist by nature and not convention immediately
draws attention to the fact that nomos here is not under
stood in the sense of custom-law or positive law. If this
were the case the sentence would be self contradictory: it
would be equivalent to saying that custom-law (convention)
existed by nature and not convention. The antithesis of
nomos and physis as the basis of justice obtains only if
nomos is understood as the product of human contrivance and
physis is understood as being independent of human inven
tion. Chrysippus cannot be understood then as using nomos
in this passage in the sense in which nomos and physis can
be taken to be antithetical. That there is a question as
to whether justice is based on the product of human inven
tion or on something independent of it is clear, however,
from his statement. He is saying that justice is not based
on compacts, agreements and convention as Antiphon or
Epicurus would maintain but justice and nomos in the sense
in which he understands it as well as right reason (orthos
^Diog. Laert. VII, 128; J. von Arnim, Stoicorum
Veterum Fragnenta [hereafter SVF] (Leipzig: Teubner, 1905-
19Z4J, Vol. til, 308; cf. Cicero De Finibus III, 21, 71;
De Legibus I, 10, 28.
69
logos) exist by nature (physei).
On the origins of justice according to the Stoics,
Cicero provides the following account which characterizes
the meaning of nomos as Chrysippus has used it in his work,
On the Morally Beautiful:
Well then, the most learned men have determined to
begin with Law, and it would seem that they are
right, if, according to their definition, Law is
the highest reason, implanted in Nature, which
commands what ought to be done and forbids the
opposite. This reason, when firmly fixed and fully
developed in the human mind is Law. And so they
believe that Law is intelligence, whose natural
function it is to command right conduct and forbid
wrong doing. They think that this quality has
derived its name in Greek from the idea of granting
to every man his own, and in our language I believe
it has been named from the idea of choosing.
(Nomos is derived by Cicero from nemo, "to distrib
ute, lex from lego, "to choose.'') For as they
have attributed tne idea of fairness to the word
law, so we have given it that of selection, though
both ideas properly belong to Law. Now if this is
correct, as I think it to be in general, then the
origin of Justice is to be found in Law, for Law is
a natural force; it is the mind and reason of the
intelligent man, the standard by which Justice and
Injustice are measured. But since our whole
discussion has to do with the reasoning of the
populace, it will sometimes be necessary to speak
in the popular manner, and give the name law to
that which in written form decrees whatever it
wishes, either by command or prohibition. For such
is the crowd's definition of law. But in determin
ing what Justice is, let us begin with that supreme
Law which had its origin ages before any written law
existed or any State had been established.8
Nomos (Cicero uses lex), as Chrysippus uses the
word in this context, is said to be highest reason (ratio
8Cicero, De Legibus, I, 6, 18 ff. [SVF III, 315];
translation by C.""W. Keyes (London: Loeb Classical
Library, 1928). ---
summa) Which is implanted in Nature. This reason When
developed in the human mind is Law and Law is intelligence.
This concept of law is not unlike Plato's characterization
Q
by law in the Laws Where nomos is the offspring of nous in
accordance with right reason (orthos logos) or as Aristotle
formulates Plato's position in the Politics,^ law is
reason (nous) unaffected by desire. That this is law in a
different sense from law as custom-law is explicitly made
clear. This law is a natural force; it is the mind and
reason of the intelligent man; it is not to be confused
with law understood in the popular manner, that is, law as
written decrees. Further, this law was prior to both
written law or the establishment of any community or State.
It cannot, therefore, be the result of agreement or compact,
or for that matter custom which requires at least a
community. In the Rhetoric^ Aristotle, commenting on the
law according to nature, says that all men divine a common
just and unjust by nature, even if there should be no
community or compact between one another. The Antigone is
cited as an example.
Philo witnesses to the same Stoic ideas when he
refers to the world (cosmos) as a Megalopolis which has a
single polity (politeia) and law (nomos). This nomos is
^Plato, Laws, 890D.
^Aristotle, Polit. 1287a 30.
^Aristotle, Rhet. 1373b 6 ff.
71
the logos of nature, commanding what should be done and
12
forbidding what should not be done. Particular cities,
he continues, differ in politics, laws and customs. These
he considers to be invention and additions to the single
law of the cosmos. Here again the distinction is made
between what may be termed cosmic law and the particular
written and unwritten custom-law of particular communities.
Philo continues by pointing out one of the problems associ
ated with custom-law: it separates people from enjoying
fellowship and from combining in a common social and
political association. The difficulty, he says, is that
the individuals of particular cities are not satisfied with
the ordinances of nature. They give the name of law to
whatever is advantageous to their own community, a notion
of which Epicurus would doubtless approve. The cosmopoli
tanism of the Stoic system is further brought out as he
continues by asserting that the individual polities are
themselves an addition to the single polity of nature. The
laws of these individual polities also are addition to the
right reason (orthou logou) of nature. And indeed, the
politician is an addition to the man whose life is accord-
13
ing to nature (kata physin).
Philo, as Cicero, has pointed to the difference
between cosmic law and the particular laws of communities,
12Philo De Joseph VI, 28 ff. [SVF III, 323].
72
written and unwritten custom-law. Cosmic law is the reason
or right reason (orthos logos) of nature. This reason
exists not only in nature in the broad sense as nature
designating the whole of what is cosmic physis, but it
exists in the mind and intelligence of men when it is
developed there. The law of particular communities, says
Philo, are additions to this law; they are inventions. The
polities, themselves, are additions to the single polity of
nature and the politician an addition to the wise man, that
is, the man of right reason who orders his life according
to nature, and for whom, therefore, the politician as
responsible for enforcing the custom-law of the community
is unnecessary.
In De Re Publica Cicero characterizes cosmic law as
providing a universal norm which is eternal and unchanging;
its prescriptions and proscriptions are heeded by good men
though for the wicked they are ineffectual; this law is
binding on all and its obligations cannot be dismissed by
legislative bodies or people in society:
True law (vera lex) is right reason (recta ratio)
in agreement with nature; it is of universal appli-
cation, unchanging and everlasting; it summons to
duty by its commands, and averts from wrongdoing by
its prohibitions. And it does not lay its commands
or prohibitions upon good men in vain, though
neither have any effect on the wicked. It is a sin
to try to alter this law, nor is it allowable to
attempt to repeal any part of it, and it is impos
sible to abolish it entirely. We cannot be freed
from its obligation by senate or people, and we
need not look outside ourselves for an expounder or
interpreter of it. And there will not be different
laws at Rome and at Athens, or different laws now
73
and in the future, but one eternal and unchangeable
law will be valid for all nations and all times,
and there will be one master and ruler, God, over
us all, for he is the author of this law, its
promulgator, and its enforcing judge. Whoever is
disobedient is fleeing from himself and denying
his human nature, and by reason of this very fact
he will suffer the worst penalties, even if he .
escapes what is commonly considered punishment.14
The law of right reason in agreement with nature
has universal application whereas custom-law is variable.
Violation of custom-law may or may not be attended with
punishment since it can be violated when no one is observ
ing or the violation may be overlooked by the community.
But a violation of the law of right reason is attended by
inevitable penalties since it is a violation of the indi
vidual's own nature. Antiphon pointed out the same notion
f
when he said a violation of custom-law unobserved did not
bring legal and social sanctions but a violation of
nature's "organic growths" brought penalties, regardless
of social opinion.^ This concept is directly opposed to
that of Epicurus who holds that injustice is not something
in itself and that the damage comes because of the anxiety
of the possibility of being punished.^
The Stoics also identified this law with God, as
14Cicero De Re Publica, III, xxii [SVF III, 325];
translation by C.“W.Teyes (London: Loeb Classical
Library, 1928).
15Cf. FVS6 87B44 (Vol. II, 346 ff.).
16Cf. Kyr. dox. Ill, XXXVI, XXXVIII; cf. also
SVF III, 320.
74
Cicero says, God is the author, promulgator and its enforc-
17
ing judge. Zeno is attributed with holding the view that
the law of nature is divine and he identifies god as law.
He further says that the aether is god and that reason is
possessed of divine power as are the stars, years, months,
18
and seasons. The law which is divine is at the same time
19
identified as the first principle of things. God for
Zeno then was identified with law, reason, the material
world, and at times particular aspects of it. The identi
fication of god with law, the common logos, and nature is
dramatically revealed in the Hymn to Zeus by Cleanthes:
0 most noble of the immortals, thou of many names,
always ever powerful,
Zeus, ruler of nature, governing all things with law,
Hail; for it is right (themis) that all mortals
should call upon thee.
For we are of tny race, we hold the resemblance
of an echo
Alone among mortal things that live and creep upon
the earth:
Therefore 1 shall praise thee and ever sing of thy
strength.
Thee all this universe, that turns about the earth,
Obeys, wherever vou lead it, and willingly is
dominated by tnee:
So mighty a minister do you possess beneath your
immortal hands
Two-edged, flaming, the ever-living thunderbolt:
For beneath its blow everything in nature shatters:
By it you guide the common logos, which through
everything
Roams, intermingling with lights great or small;
By which you have become so great, supreme king
throughout the universe.
^Cicero De Re Publics III, xxii.
^Cicero De Natura Deorum I, 13, 36 ff.
19
Minucius Felix: Octavius 19, 10.
75
Neither does any work come to be upon the earth
apart from thee, 0 spirit,
Nor throughout the divine heavenly sphere nor in
the sea,
Except for the deeds evil men do in their own folly:
But you know both how to make the odd even,
And to order the disorderly and the unlovely is
lovely to thee.
For thus you have fitted all good things with evil
into one,
So that there may become one logos ever being of
all things,
Which, fleeing, those of mortals who are evil,
dismiss,
Ill-fated, who ever longing for the possession of
good things
Neither perceive the common law of god nor attend
to it,
Which obeying they might have a good life with
intelligence (nous).
They however rush witless (anoi) upon various evils,
One lot possessed by eagerness and miserable strife
on behalf of glory,
Another group turned to cunning gain without any
order,
Others towards relaxation and the pleasant activities
of the body,
. . . and they are carried towards different
objects at different times
Eagerly seeking for the complete opposite of these
evils to occur.
But thou 0 Zeus giver of all, wrapped in dark clouds,
with shining thunderbolt,
Rescue men from mournful ignorance,
Which do thou, 0 father, scatter from their souls,
and give them to be masters of
Judgment (gnome), relying upon which you govern all
things with justice (dike),
In order that being given honor we might honor thee
in turn
Praising thy works continuously, as befits a
Mortal being, since neither for mortals is there any
greater prize,
Nor for gods, than ever to praise the common law
(koinos nomos) in justice (dike).19
^Stobaeus Eclogae I, 1, 12 [SVF I, 537]; transla
tion by William H. O*Neill, specifically for this study,
1967.
76
Without some acquaintance with S toic thought the
hymn of Cleanthes might well be understood as celebrating
a god such as the Hebrews might extol. But it is clear
from the Stoic system that god is variously Identified as
the whole of the cosmos, the reason of nature, the primary
principle of things and cosmic nomos.
In De Natura Deorum Cicero records that Chrysippus
identified divinity with the reason, soul and mind of the
universe; that god is identified as the world, the all-
pervading world soul, and the common and all-embracing
nature of things. Further, Jupiter is identified as "the
mighty Law, everlasting and eternal, which is our guide of
life and instructress in duty" and is also called Necessity
20 21
or Fate. In the De Legibus he says that in the opinion
of the wisest man Law is not the product of human thought
or legislation but rather it is something eternal which
"rules the whole universe by its wisdom in command and
prohibition." These wise men say "that Law is the primal
and ultimate mind of God, whose reason directs all things
22
either by compulsion or restraint." Seneca in De
23
Beneficiis expounding stoic thought says that god is
2®Cicero De Natura Deorum I, 15, 39 ff. [SVF II,
1077].
21Cicero, De Legibus II 4, 8 [SVF III, 316].
22Ibid.
2^Seneca, De Beneficiis IV, 7.
77
nature and nature is god. Meeting the argument of those
who say they are indebted not to God but to Nature, he
says, "There is no Nature without God, nor God without
..24
Nature, but both are the same thing." Nature, Fate,
Fortune all are names of the same God, he says. Cicero
points out that the creatures which have received reason
from nature have thereby received the gift of right reason
(orthos logos) and they have therefore received the gift
of right reason (orthos logos) and they have therefore
received the gift of law. Thus man as a creature
possessing right reason has also received the sense of
25
justice which is inherent in nature. Philo remarks that
right reason is an infallible law which is not restricted
to this person or that, to parchment or slabs, but is
engraved by immortal nature on the immortal mind never to
26
perish. This law of right reason is universally binding
and no enactments of ruler, tyrants or decrees of peoples
27
can be considered just if not in accordance with it.
The doctrine that the entire cosmos is governed and
permeated by a logos, a divine principle of rationality
which is at once the principle of matter and is implanted
in the human soul, and is law, provides a fundamental basis
25Cicero De Legibus I, 12, 33 ff. [SVF III, 317].
2**Philo Quod Omnis Probus. 46 ff. [SVF III, 360].
27Cicero De Legibus I, 15 [SVF III, 319].
78
for the Stoic concept of the unity of mankind and man's
unity with the gods. As Cicero says, by virtue of the fact
that men and God share reason, and therefore right reason,
which is law, it follows that man and God share law and
justice. "Those who share these are to be regarded as mem-
28 29
bers of the same commonwealth." And in the De Finibus
the same Stoic idea is recorded: The universe is governed
by divine will; it is a city or state of which men and gods
are members. It has been noted as well in the Hymn of
Cleanthes as the common logos through everything, a notion
30
which as divine fire was significant for Heraclitus.
The Stoic doctrine that the cosmos was one
Megalopolis with one law, with man and gods sharing one
community, was significant in a time when the city-state
was in decline. Alexander had set the stage for a broader
polity than had hitherto obtained. And his practice of
28Cicero De Legibus I, 7, 23 [SVF III, 339].
29Cicero De Finibus III, 19, 64 [SVF III, 333].
30
For a discussion of the meaning of logos in
Heraclitus and its possible influence on the Stoics, see
G. S. Kirk, Heraclitus: The Cosmic Fragments (Cambridge,
England: Cambridge University Press, 1934;; Philip Wheel
wright, Heraclitus (Princeton, N.J.: Princeton University
Pres8, 1959); V S f . K. C. Guthrie, A History of Greek
Philosophy. Vol. I (Cambridge, England: Cambridge Univer-
sity Press, 1962). The evidence that the Stoics were
influenced by Heraclitus is perhaps tempting but in view of
the use of logos in the fourth century by Plato and
especially Aristotle one mav well be on unsafe ground to
make the case very strong that the meaning of logos in
Heraclitus was taken over directly by the Stoics.
Guthrie'8 caution on this is well taken.
79
introducing Greek culture to the then known world tended to
emphasize the differences of customs and laws among the
various cities and stimulated reflection on the nature of
political institutions and law. Chrysippus, it is said,
collected examples of the inconsistencies of the various
laws of cities. The unity of mankind according to human
nature was not a new idea, but the Stoic philosophical
framework and the particular circumstances of the third
century gave impetus to the concept which became more of a
realization in the Roman Empire influenced not a little by
Stoic doctrines and statesmen.
The aim of the Stoic was to live according to
nature. By this he understood to live according to the
dictates of right reason which was law both for the indi
vidual man and was the divine law shared by both man God
and nature. Diogenes Laertius reports that Zeno in his
treatise On the Nature of Man was the first to designate
man's end as "life in agreement with nature" or "living
agreeably to nature."3^ Man's end is the life of virtue
toward which nature guides. Cleanthes in his treatise
On Pleasure states the same viewpoint and Chrysippus in his
De Finibus says that living virtuously is equivalent to
living in accordance with the experience of the actual
course of nature since individual natures are parts of the
nature of the whole universe. To live in accordance with
31Diog. Laert. VII, 87 [SVF III, 4].
nature is to live in accordance with one's human nature as
well as to live in accordance with nature as a whole. To
live according to nature, Diogenes Laertius' report con
tinues, is to refrain from actions forbidden by the law
common to all things, that is, right reason (orthos logos)
32
which pervades all things and is identical with Zeus. In
the same passage it is stated that for Chrysippus, the
nature with which life should accord is both universal
nature (cosmic physis) and more particularly the physis of
man, man's particular nature qua man. Cleanthes on the
other hand takes the nature of the universe alone (cosmic
physis) and does not add to this nature of the individ-
33
ual. Chrysippus believes that virtue is a harmonious
disposition which is worthy in itself and not for extrinsic
motives; virtue is the state of mind that tends to make the
whole life harmonious. When a rational being is perverted
it is because of either the influence of others or the
deceptiveness of external pursuits. It is not nature, for
34
the starting-points of nature are not perverse.
In De Finibus where Cicero undertakes to criticize
stoic ethics he attributes the idea that the Chief Good is
"to live in accordance with nature" to Polemo, the teacher
of Zeno and then notes that the Stoics have three
32Ibid.
33Ibid.
34Ibid.
35
interpretations of this "formula.1 1 The first interpreta
tion is declared to be identical with Zeno's and runs as
follows: "To live in the light of a knowledge of the
natural sequence of causation." This is taken to mean the
same as Zeno's formula. The second interpretation means
the same as "to live in the performance of all, or most, of
one's intermediate duties." This differs from the first
formulation, says Cicero, the first can be achieved only by
the Wise Man, while the second refers to duties which may
sometimes even be attained by the foolish. The third
interpretation is "to live in the enjoyment of all, or of
the greatest, of those things which are in accordance with
nature." This third interpretation involves two factors:
first a mode of life enjoying virtue, and the second is a
supply of things which are in accordance with nature but
which, unlike the first, are not within the individual's
control.3* *
It is noted that Diogenes Laertius attributes the
phrase "according to nature" to Zeno while Cicero
O7
attributes it to Polemo, Zeno's teacher. Stobaeus says
that "Cleanthes, the first successor of Zeno as head of the
school, added 'with nature,' and thus rendered it, 'the end
is to live consistently with nature.1 Chrysippus, wishing
35Cicero De Finibus IV, 6, 14 [SVF III, 13].
36Ibid.
37Stobaeus, Eclogae II, 76, 3 [SVF III, 12].
82
to make the principle clearer, introduced the following
formulation: 'to live in accordance with the experience of
those things which happen by nature.'"
The Stoic solution to the nomos-physis controversy
in one sense is no solution at all, and in another sense it
provided a context in which the solution could be sought.
A brief summary of the controversy from the fifth-century
to the Stoics will serve to show the Stoic position in the
controversy.
The central issue is justice and the criterion or
norm by which the just and the unjust may be judged. Law
in some sense of the word is the criterion or norm. The
question then presents itself, How do humans obtain law?
Is it derived from or received from a non-human source?
Or is it the product of man's contrivance? If it is
derived or received from some non-human source, what is
the source? Two answers were given in Greek thought to
the non-human source for law; one position was that it had
its origin in the gods, the other position held that it was
derived from nature. Two answers were also given to the
view that law was the product of man's contrivance: one
viewpoint held that it was merely the product of human
invention with no other justification, and the other view
point agreed that it was the product of human contrivance
but that this was natural to human beings living in
association.
83
The religious or idealistic view of man as
presented in Hesiod understood justice and law to be a gift
of the gods. The Greek scientists provided an anthropology
which understood man to be the offspring of physis and the
implication became clear that possibly laws were themselves
a product of man's ingenuity. Archelaus, the disciple of
Anaxagoras, seems to have understood the implication, and
thus perhaps became one of the first to contrast nomos as
human invention over against physis as inorganic and
organic growth process. While it is not known exactly what
Protagoras believed as to the origin of man, since his work
of the subject is not extant, it is clear that he under
stood nomos to be the product of men. He took his task to
be a teacher of correct reasoning so that the business of
state could proceed according to reasonable standards.
Plato represents his view as follows: What seems right and
laudable to any particular State is right and laudable for
as long as it is held so but when the practices are unsound
38
the wise men will substitute others. A similar utili
tarian approach to law was later held by Epicurus.
Democritus, believing in man's generation from physis
defends nomos on the grounds that it is necessary to
protect individuals from aggression and nomos provides for
this and for the general welfare of society. Hippias, while
conceding that nomos is useful under ideal circumstances ,
^®Plato, Theat. 167C.
84
regards nomos, nevertheless, as a tyrant over men which
violates nature. With Antlphon the radical separation of
nomos and physis Is observed. Nomos as the Inventions of
men Is almost always the enemy of physis and In this case
It Is clear he means human physis at least.
Law had originally been understood as the embodi
ment of justice, but during the controversy of the fifth
century, together with changes In the Athenian constitu
tion, Increased legislation and litigation, the norm of
justice came to be understood In terms of law as legal
enactment and decree. On the one hand nomos could be
defended as the natural product of man's development vrtilch
could serve to enhance his community life as Democritus and
Protagoras would assert. On the other hand nomos, as the
Instrument serving the vested Interests of some while deny
ing the Interests of others, could be denounced as the
enemy of nature as Antlphon asserted. It Is doubtless true
that Protagoras and Democritus would not defend laws which
oppressed the citizens of the Athenian democracy: they
would advocate that men of good will and wisdom modify and
rectify such laws. In short they shared an optimism which
believed that through wise and careful deliberation men
working towards homonola could achieve good laws which
would benefit community life. Antlphon, on the other hand,
did not share this optimism. His pessimism concerning laws
and institutions and man's aggression towards others
85
motivated some of the bitterest attacks on law extant from
this period of Greek history. For him legal justice and
injustice were but the arbitrary inventions of those who
make laws and which in his opinion were repressive to human
beings.
Socrates on the one hand defended law in a manner
not dissimilar from Democritus, or for that matter even
Protagoras. He died a martyr at the hands of a legally
constituted body and refused to commit legal injustice even
though in his opinion the gods approved of his conduct.
His belief in a supra-human realm of reality, the ordi
nances of which were binding on men both in life and in
death, and his belief in man's nature and end, places him
in the category of those who recognize an unwritten law
which provides the norm for a justice which may well con
flict with legal justice by particular communities and
states.
Throughout his life Plato struggled with the prob
lem of discovering a firm foundation for justice and law.
In the Gorgias he attacks the position of those who would
replace justice and law by a notion of physis which was
understood as the right of the stronger to take advantage
of the weaker. Plato refuses to grant this understanding
of physis as a norm for justice but also he refuses to
identify nomos as positive law with justice. Rather, he
answers the problem by appealing to the notion of techne
86
(art) by Which he understands that its products are good
when they exhibit order. The orderliness produced in the
soul is law and justice and the business of the statesman
is to bring about orderliness in the souls of the citizens
of the polis.
In the Republic Plato argues against the position
that there is no basis for justice beyond nomos as conven
tion. Plato's thesis here is that the foundation of
justice is at root the principle of inward self control and
harmony of an individual's constitution. Human physis is
so constituted that the individual functions best when
practicing the virtues of wisdom, courage, temperance and
justice. Wisdom requires knowledge and Plato puts forth
his theory of ideas (ideal). The man who possesses knowl
edge (noesis) is the best fitted to govern and order the
citizens of a community. Plato has thus based law on the
nature of the human individual and has identified knowledge
as being real and therefore in the order of physis.
In the Statesman Plato's concern is not with
society in general but with its leader. A contrast is made
between nomos in the popular sense as meaning convention or
what seems right and techne which is understood as the royal
art possessed by a master of political craftsmanship. If
such a person is available he should rule and not be bound
by law. But Plato recognizes the scarcity of such quali
fied men and thus he settles for the rule of law, hoping
87
that the constitution o£ the state was made by wise men.
In the Laws Plato presents his last thinking on
justice, law and the State. Against his old enemies, those
who take nomos to be arbitrary convention and physis as the
basic stuff of the cosmos, Plato argues that nomos and
techne are the offspring of nous in accordance with right
reason, orthos logos. The soul is more primary in the
order of nature than earth, air, fire and water, and there
fore that which is akin to the soul, nous, techne, and
nomos are likewise prior to or more primary than body. The
aim and purpose of law is the production of virtue within
the individual and within the state. The statesman will
then study the divine order exhibited in the heavens as a
model to imitate in the ordering of human souls and the
State. God or the divine is the true ruler and thus the
norm of law. Plato again has met the partisans of physis
on their own ground and discovered nomos in physis. But
nomos in the sense which Plato understands it is not nomos
which is merely convention or agreement. Nomos stands
reference now for the product of nous, mind in accordance
with right reason, orthos logos. Divine nomos apprehended
by the man of right reason is the norm of justice.
Aristotle, unlike Plato, does not specifically set
out to discover the norm of justice. In general, he
accepts the characterizations of law and their aims and ~
purposes as set out by Plato. The primary functions of law
88
are to educate, to provide order in the community, and to
habituate citizens to virtue. Virtue is a characteristic
united with right reason (orthos logos) and right reason
in moral matters is practical wisdom (phronesis). Right
reason within the individual makes him virtuous and
practical wisdom applied to affairs of state is political
wisdom which is the virtue par excellence of the statesman.
His task is to habituate citizens in habits of virtue.
Aristotle made a distinction between what he termed indi
vidual (idios) law and common (koinos) law. Individual
law designated the written laws and enactments of a
community and on some occasions the unwritten customs and
practices of a community. Common law was variously
denominated: the unwritten customs and practices of
communities, the unwritten customs associated with an
excess of virtue or vice but not covered in written law,
the principle of equity, and the law according to nature
(kata physin). He subdivided political justice into that
which is just by convention (nomikon) and what was just by
nature (physikon). The just by convention he understood to
be the legally just. What he understood to be the just by
nature was left ambiguous. It could mean what was for the
most part true of all humanity, or it could mean what the
man of right reason would understand as just. And so
Aristotle neither transforms nomos into the province of
physis nor does he base justice exclusively on physis.
He admits both.
In the De Finibus. assuming the role of critic of
the position of the Stoics rehearsed by Cato, Cicero asks
the question, "What precise contribution did Zeno make to
justify his disagreeing with his ancestors, the originators
OQ
of the doctrine?" From Cicero's standpoint the elements
of Stoic thought were for the most part already tradition
among the Peripatetics and the Academics. His observation
is not without some justification, for indeed Stoicism was
in many respects an eclectic philosophy. The influence of
previous Greek thought is everywhere present in their
concept of law and nature, but the novelty of their system
lay in its attempted harmony of previous ideas.
The Stoics did not solve the basic problem which
was at the root of the nomos-physis antithesis. In order
for there to be a genuine antithesis, nomos must be under
stood as the product of convention and agreement without
reference to any other norm. Physis can be understood to
be either the totality of what is or a part of the
totality, as for example human individuals. Essentially,
the Stoics attempted to harmonize the basic stuff of the
Greek physicists with the theological and idealistic
explanations of previous thinkers. As Cleanthens says in
his Hymn, Zeus is called by many a name: the various four
^Cicero De Finibus IV, 6, 14.
elements as well as the fi£th, aether, Fate, Necessity,
mind, soul, reason, law and nature. They achieved unity by
asserting a materialistic pantheism: God was the world and
the World was God. In this sense they fused nomos and
physis on a cosmic level. The fact that man, god and
nature share logos. and thus orthos logos which is law
means that on the level of human physis there is no con
flict with nomos to the man in possession of right reason.
In effect Antlphon*s position was that justice had
come to mean legal justice and this was contrary to nature.
The Stoics, on the other hand, as did Plato and Aristotle,
denied that justice meant legal justice alone. Justice was
the result of possessing right reason and law. The laws
of individual polities were additions to the one law of
the cosmos. These custom-laws might either be bad or good,
depending on whether or not they were in agreement with the
law according to nature. In effect, the Stoics based
justice on physis but expanded the concept of physis by
including in it the concept of nomos, not as convention but
as the order and regularity which Plato took to be the
divine law of the cosmos.
BIBLIOGRAPHY
91
BIBLIOGRAPHY
Sources
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pp. 286-298.
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Core Title Law In The Old Stoa And Its Antecedents

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