Classical Natural Law and it's Decline

Part Two

Talk given 8 June 2019 to SPES economics meeting

Dr Joseph Milne

In our previous talk we observed that the order of Nature can be forgotten, and we concluded with the observation that Plato’s political writings were a response to this. Before discussing Plato it would be helpful to have some general idea of the background against which he wrote on the question of law.

The first thing to observe is that early Greek society had no written laws nor any body that administered law. Before Dracon, and then Solon who revised Dracon’s harsh laws, disputes were settled between parties through arbitration which would arrive at a settlement which both parties were content with. The idea of this arbitration, which would be conducted between citizens themselves, was that no party would be seen to take advantage of another. There would be no ‘victor’ as such, but a mutual settlement which resolved all hostility. There were no written laws to consult, and no politician could make or enforce laws. In fact, any political leader who made and imposed laws would by definition be a tyrant. In modern terms this is what we mean by a dictatorship.

It was out of such mutually agreed settlements that law or nomos eventually took shape in Athens. The formulation of written law was an attempt to capture precedents which could be applied generally. They were essentially arbitrations. This is why the word nomos has the wide meaning of ‘law’, ‘convention’, ‘custom’, or ‘ritual’. But before Dracon and Solon laid down laws in the sixth century, the guidance for right living came from the poets, in particular Homer and Hesiod. What lies at the heart of the poetic reflection on conduct is the notion of ‘honour’ or ‘excellence’ or ‘beautiful action’, rather than law. In early Greek myth and poetry human conduct is the realm of the virtues. Morality was the expression of character or of the state of the soul. The modern notion of ‘moral principles’ or ‘rule based’ morality is quite foreign to classical Greek ethics. We live in a time of what is called ‘deontological ethics’, which is to say, ethics as obligations, from the Greek word deon meaning obligation or duty.

[Codes of conduct may well have their place in organisations. But from the perspective of virtue ethics such codes are for those who lack in virtue. Yet in our time we would not usually draw a distinction between codes of conduct or laws in the juridical sense. Yet this distinction is vital in the understanding of natural law. Natural law is not a code of laws.]

In the early Greek practice of mutually agreed settlements through fellow-citizens arbitration, where both parties are satisfied and any dispute between them is resolved, we have a glimpse of natural law in practice.

[In this way a harmonious order is restored between parties or citizens. Things are brought back into their right relationship in the order of polis. Citizens in dispute with one another creates a disharmony in the polis that is harmful to it as a whole. Law is concerned with the virtuous life of the citizen in accord with physis or nature. Aristotle defines citizenship as the capacity to reflect on justice and injustice, and to have foresight for the good of the whole. This, according to Aristotle, is what makes a human being human, as distinct from other species. It is also what makes the city or polis natural, through aligning it through justice with its own nature.]

We may ask, then, how the early Greek world of honour, excellence and virtue as expressed by the poets, especially Homer and Hesiod, later developed into written laws. A mythological hint is given by Hesiod in the passing away of the Golden Age. In his Works and Days, we read:

The gods, who live on Mount Olympus, first

Fashioned a golden race of mortal men:

These lived in the reign of Kronos, king of heaven,

And like the gods they lived with happy hearts

Untouched by work or sorrow. Vile old age

Never appeared, but always lively-limbed,

Far from all ills, they feasted happily.

Death came to them in sleep, and all good things

Were theirs; ungrudgingly, the fertile land

Gave up her fruits unasked. Happy to be

At peace, they lived with every want supplied,

[Rich in their flocks, dear to their blessed gods.]

(Hesiod Works and Days 108-119 trans. Dorothea Wender)

A little later Hesiod writes:

The gods, who live on Mount Olympus, next

Fashioned a lesser, silver race of men:

Unlike the gods in stature or in mind.

 

And later again Hesiod writes:

 

And Zeus the father made a race of bronze,

Spring from the ash tree, worse than the silver race,

But strange and full of power. And they loved

The groans and violence of war.

….

But when this race was covered by the earth,

The son of Kronos made another, fourth,

Upon the fruitful land, more just and good,

A godlike race of heroes, who are called

The demi-gods – the race before our own.

…..

Far-seeing Zeus than made another race,

The fifth, who live now on the fertile earth.

I wish I were not of this race, that I

Had died before, or had not yet been born.

This is the race of iron.

Hesiod then gives a long list of the ills that will befall this unfortunate fifth race. It will be an age of strife and discord. ‘Father will have no common bond with son, neither will guest with host, nor friend with friend. The brother-love of the past will be gone.’ ‘The just, the good, the man who keeps his word will be despised, but men will praise the bad and insolent. Might will be Right, and shame will cease to be. Men will do injury to better men by speaking crooked words and adding lying oaths’, and so forth.

Here we have the mythical or poetic background to Plato’s enquiries into the nature of the polis and the question of justice. But Plato abandons the language of myth and the authority of the poets, or at the least transforms them. We need to consider why Plato did this. Modern philosophers have observed that a radical change occurred in human civilisation between the eighth to third centuries BC, which Karl Jaspers has called the ‘axial age’. In his The Origin and Goal of History Jaspers observes that a transformation of thought took place simultaneously yet independently in China, India, Persia, Judea, and Greece. This transformation took shape in new religious and philosophical insights, and these remain the foundations of all subsequent civilisations.

This shift corresponded with the birth of writing, and with that we have the records of the earliest oral traditions, which includes parts of the Old Testament, the various creation myths of Sumer and ancient Egypt. We also have the works of Confucius, the Sacred Scriptures of India and the Greek epics and myths of the gods.

Now this shift can be viewed in two completely different ways, and whichever we decide will determine how we understand the emergence of law in society.

One way is to see the sequence of ages as portrayed by Hesiod as an historical decline, a falling away from a divine order in which mankind lived in perfect harmony with the gods and nature. This is a negative way of seeing the event. A second way is to see this sudden world-wide emergence of writing and philosophical deliberation as an awaking of reflective consciousness. This is the philosophic and positive way of interpreting the event. Whichever way we interpret the event, it is clear that such an event took place, and that many of the earliest writings reflect the step from ‘mythical’ to ‘philosophical’ modes of understanding, as for example the wisdom books of the Bible and the Talmud, or in the birth of the Upanishads out of the ancient Vedic hymns, or the teaching of Confucius and Mencius, and indeed the Works and Days of Hesiod we quoted a moment ago.

From the ‘mythical’ side we may say these writings arose out of a forgetfulness of the true way of being belonging to the golden age. But philosophically we can see this differently. The ‘golden age’ is a state of being in which the great truths of all things are known through symbolic intuition. In this intuitive knowledge there is no gap between knowledge and action. But this mode of knowledge cannot reflect upon itself. It is a kind of blissful yet non-reflective state.

We can illustrate this quite easily from Plato. Socrates is endlessly asking his interlocutors what is the nature of virtue. They reply with instances, such as courageous or just actions. But Socrates replies that these instances do not show the essence of virtue. This perplexes them, and they are compelled to think beyond mere received opinion. From the point of view of Socrates one cannot be truly virtuous or just without knowing their essence, and this knowledge of essence can be acquired only through reflective enquiry, or through ‘dialectic’ or ‘discourse’.

From the philosophical point of view, mankind’s work is to enquire into the nature of things. Anthropos is the questioning being. Or, to put that another way, the human soul knows there is truth to be known but which is not yet known, and this not-yet-known calls the mind to reflection and enquiry. Or, to put that in yet another way, the human soul is called to articulate in reflective logos what it knows in intuitive mythos. This work of articulation is the work of human discourse and dialogue, of speech, which in turn is the work of civilisation. And so Aristotle says language or speech is the essential characteristic that defines human nature. And language signifies community and a common life, which in turn defines the polis or the city as that natural human habit. The articulation of the truth of things is possible only through human discourse and exchange. It is this high purpose of discourse and exchange that makes possible every other form of human exchange, including economic exchange. It is the act of exchanging that matters. And it is precisely in this activity of human exchanging that the question of the nature of law arises. For, what is lawful exchange?

Plato stands on the border between the mythological and the philosophical expression of the human situation. It is clear from the dialogues that Plato sees that the ancient mythological understanding of the gods and cosmic providence has waned, and so he seeks a new symbolism that will illuminate human citizenship. And we might say that it is only reluctantly that he enquires into law or nomos. He needs to find ways of relating the cosmic order, with which early philosophy was primarily concerned, with the human order, with which Socrates is the great innovator.

And so for Plato there is a forgotten correspondence between the cosmic order, the order of the city or polis, and the order of the human soul. All three are connected and the understanding of human nature cannot be divorced from that of society or the polis, nor the polis from that of the kosmos. That is to say, the human being experiences existence as a participant in these three realms or orders of being simultaneously. There is a sense of cosmos, a sense of society, and a sense of personhood. And there is also a sense that all three realms are parts of a divine or providential order. This sense of a divine order runs through the poetry of Hesiod and Homer. And it would seem that the early Greek cities abided in this sense, and that is why they could settle disputes between themselves honourably through fellow citizen arbitration. But that age is gone and so Plato must find new ways of understanding the place and nature of society in the order of things.

And so Plato embarks upon a transformation of the myth of ages portrayed by Hesiod. We can see this in the Republic where the four ages become the four metals that identify the four types of citizens in the natural hierarchy of the just or ‘beautiful’ city (Kallipolis). But the Republic is itself to be understood symbolically, as the ‘city in speech’ which may be contemplated by the philosopher whether or not it ever comes into being. Plato reinterprets the symbolism of myth with new symbols and a new narrative.

He takes the four ages of Hesiod, presented symbolically as successive periods of time, and transforms them into four ruling dispositions of human nature which form a whole in present time. They become the hierarchical order of the polis, where the citizens of each particular metal perform their functions for the sake of the whole. It is fluid in the sense that citizens born of one metal may have souls of another metal and so can move up or down the hierarchy according to their dispositions.

But this polis of four metals is also the individual human soul writ large. This correlation made by Plato brings to light the correspondences between the cosmic order, the political order, and the individual which the earlier myths no longer communicated. That is to say, what Hesiod had expressed in mythic time, Plato translates into present time, as the underlying order of things.

Here we must be careful not to take all this as a ‘doctrine’ of Plato. Too many scholars have been tempted to reduce Plato to doctrines and see the dialogues as mere vehicles for expressing doctrines. This is to miss their point. The dialogues are journeys of enquiry in which it is the journey itself that matters. Thus the Republic is itself a narrative, a myth or drama, through which the mind must pass as an activity of contemplation. This journey through dialectic replaces the mythic narrative of Hesiod.

This brings us to the question of the relation of Plato’s Republic and the Laws. Leaving aside the debate about whether the Laws represents a change of mind on Plato’s behalf, it is better to understand the Laws as written for a different audience, or from a different perspective, than the Republic. As suggested earlier, the word nomoi from nomos, translated as Laws, has a far richer meaning than our modern notion of law and, as one scholar observes, “is deeply imbedded in the myth of nature and has an amplitude of meaning that embraces the cosmic order, festival rites, and musical forms.” (Voegelin Order and History Vol 3 p. 271). These aspects of the meaning of nomos play a major part in the dialogue.

The opening question is ‘Are your laws given by the gods or by some human being?’ That is to ask, does nomos have a divine origin, and is it related to the divine order of nature, or is it a human invention? This question is never fully answered until Book 10. Instead the question is raised: what is the end law seeks? And the perplexing answer given is that all laws exist with a view to war. It is argued that ‘there always exists by nature an undeclared war among all cities’ (626a). Following that line it becomes evident that even within cities neighbours are also at war with each other, and households, and even the individual soul is at war with itself.

This is not the same as Hobbes’ notion of the ‘state of nature’, the ‘war of all against all’. Rather it is a condition of disharmony between parts intended by nature to be harmonious. What emerges in the dialogue is that for the true order of the polis and the individual citizen to come into being there must be a discipline in which the superior rules the inferior, or more directly, the rational rules the irrational.

Here Plato does another transformation of the four ages or metals of Hesiod. While in the Republic the four metals became the hierarchical order of the polis, in the Laws they become cords that the gods pull in each human soul making human lives their playthings, maybe for a serious reason we do not know. Each soul, however, if it would be at peace, must learn to follow the pull of the golden cord. The Athenian Stranger says:

…this cord is the golden and sacred pull of calculation, and is called the common law of the city; the other cords are hard and iron, while this one is soft, inasmuch as it is golden; the others resemble a multitude of different forms. It is necessary always to assist this most noble pull of law because calculation, while noble, is gentle rather than violent, and its pull is in need of helpers if the race of gold is to be victorious for us over the other races (645a).

The golden cord is here called the pull of ‘calculation’, from the Greek word logismos. Scholars are uncertain quite what Plato and Aristotle mean by logismos, save that it is an attribute distinguishing the human intelligence from that of all other species. It is a kind of ‘judgement’ or discernment between the better and the worse, or between honourable and dishonourable. It is a quite specific type of reasoning that directs action. As the golden cord it is ‘the noble pull of law’, and in the war of nature ‘its pull is in need of helpers if the race of gold is to be victorious for us over the other races’.

Here we see how, in the question of law, we have moved from Hesiod’s myth of the ages of metals to Plato’s hierarchical polis in the Republic, the myth of the ‘city in speech’, and from there to the myth of the soul pulled by cords of the four metals, drawn by the gods Or, to put that another way, we move through a transition from a cosmic myth of ages to an hierarchical constitution of the polis in present time, and from the hierarchical polis ‘n speech’ to a conception of the human soul, an anthropology. Do these transitions represent a descent from a ‘golden age’ to the an age where wise lawmakers must declare laws that will bring order to the polis, or are these transitions the fruits of reflection upon a kind of primordial knowledge which the age of myth intuits directly, and from which philosophy can draw out in practical detail?

I suggest that they are three different ways of perceiving the same truth. They exist concurrently. What can change, however, is the kind of understanding of law a polis may possess at any time. Or, putting that more strongly: the kind of understanding of law that prevails determines the quality of a polis at any time. What a people hold to be lawful determines the character of a polis. And how a people conceive law may range from the highest law of pure goodness all the way down to the notion that Might is Right. Also law may be conceived as belonging to the nature of things or as only arbitrary convention, with various shades in between. These diverse conceptions of law were clearly present in Plato’s time and perhaps are present at all times. But the character of an age will be determined by which conception prevails.

It is now clear what the war is that law-making is concerned with. At first presented as natural strife between cities, between neighbours and even waring elements within the individual, it is now clear that the war is between the different cords that pull in the soul and in the polis, and this war can be ended only when the golden cord of logismos or discerning judgement prevails over the other cords. For brevity let us say that the other cords are pulls between pleasure and pain, and joy and sorrow. Although perfectly natural, these cords can overwhelm the soul or the polis and bring about instability and strife. It is only when these cords are ruled by the golden cord of logismos that harmony and peace can be established in the soul and the polis. There is then a temperate relationship between all the cords. This we may call justice.

The aim of law, then, is to bring harmony between all the parts of the soul and the polis, and between different polies or cities. But this harmony is at once the natural state of the soul and polis, and yet something always remaining to be attained. It is a continuous work that must be undertaken in thought and in active life. Here we may draw an important distinction between this realm of nomos, belonging to human nature and the polis, and the empirically observable laws of physis, or natural phenomena. While the rational laws of the cosmos unerringly attain their appointed ends, as Plato portrays them in the Symposium, or are ruled by the gods down to the smallest detail, as in Book 10 of the Laws, the laws which direct human nature and society to their proper ends require constant vigilance and effort. They are bound up with the act of self-reflection of the soul and the communal reflection of the polis. Therefore to live lawfully is an art or skill, and the human being is the creature called upon to perform that art or skill. Thus true law can neither be enforced nor blindly obeyed.

The realm of human nomos, though distinct, is connected with the cosmic nomos. One of the founding insights of the natural law tradition is that the cosmos itself is intelligent, ruled by psyche, intelligible to human reason because it is permeated by intelligence. The human order, the order of the polis, is akin to the cosmic order, in a sense a microcosm. And the human soul likewise is akin to the polis. Thus Plato maintains that the harmony which wise law-making seeks to establish is a harmony of the whole, in which every particular being plays its part in relation to the whole. Un-lawfulness is therefore a fragmentation of the whole, manifest in the polis in opposing political factions. In Plato’s own words:

Where the laws exist for the sake of some, we declare the inhabitants to be “partisans” rather than citizens, and declare that when they assert their ordinances to be the just things they have spoken in vain (Laws 715b)

Being a citizen means acting for the sake of the whole or the common good. The golden cord draws the soul in the direction of the good of the whole, and those who work towards this common end may properly be called citizens.

I must draw to a close, so let me make one final observation. The four mythical ages of Hesiod symbolize four levels on which nomos can be conceived, or which will prevail in any polis or civilisation. The great challenge for our time, when we trace the history of natural law from Plato through the Stoics and up to Aquinas, is that human society was always linked to the intelligent order of the cosmos. That link has now been broken, at least in the modern concept of positive law. And it has been broken through a reversal of causality that Plato describes in Book 10 of the Laws, where the least intelligent matter is taken to be the cause of all things, rather than psyche or soul. It is owing to this inversion of causality that we lose the teleological understanding of physis or nature. So in Emanuel Kant we find that providence is replaced by mechanical necessity. In this way we lose the basis of natural law.

This, then, is the original ground upon which the tradition of Natural Law springs. It is a teleological law, in the sense that it seeks to draw human nature and society into harmony and completeness. Therefore it is not a ‘code of law’, although codes of law have been made in accord with Natural Law. Indeed, as St Augustine says, any law that is not in accord with Natural Law is not a law at all.