Laws
'which would allow a moderate gain,' and to regulate trade in several
minute particulars, we must remember that this is by no means so absurd
in a city consisting of 5040 citizens, in which almost every one would
know and become known to everybody else, as in our own vast population.
Among ourselves we are very far from allowing every man to charge what
he pleases. Of many things the prices are fixed by law. Do we not often
hear of wages being adjusted in proportion to the profits of employers?
The objection to regulating them by law and thus avoiding the conflicts
which continually arise between the buyers and sellers of labour, is not
so much the undesirableness as the impossibility of doing so. Wherever
free competition is not reconcileable either with the order of society,
or, as in the case of adulteration, with common honesty, the government
may lawfully interfere. The only question is,--Whether the interference
will be effectual, and whether the evil of interference may not be
greater than the evil which is prevented by it.
He would prohibit beggars, because in a well-ordered state no good man
would be left to starve. This again is a prohibition which might have
been easily enforced, for there is no difficulty in maintaining the
poor when the population is small. In our own times the difficulty of
pauperism is rendered far greater, (1) by the enormous numbers, (2) by
the facility of locomotion, (3) by the increasing tenderness for human
life and suffering. And the only way of meeting the difficulty seems
to be by modern nations subdividing themselves into small bodies having
local knowledge and acting together in the spirit of ancient communities
(compare Arist. Pol.)
V. Regarded as the framework of a polity the Laws are deemed by Plato to
be a decline from the Republic, which is the dream of his earlier years.
He nowhere imagines that he has reached a higher point of speculation.
He is only descending to the level of human things, and he often returns
to his original idea. For the guardians of the Republic, who were
the elder citizens, and were all supposed to be philosophers, is now
substituted a special body, who are to review and amend the laws,
preserving the spirit of the legislator. These are the Nocturnal
Council, who, although they are not specially trained in dialectic,
are not wholly destitute of it; for they must know the relation of
particular virtues to the general principle of virtue. Plato has been
arguing throughout the Laws that temperance is higher than courage,
peace than war, that the love of both must enter into the character of
the good citizen. And at the end the same thought is summed up by him in
an abstract form. The true artist or guardian must be able to reduce the
many to the one, than which, as he says with an enthusiasm worthy of the
Phaedrus or Philebus, 'no more philosophical method was ever devised
by the wit of man.' But the sense of unity in difference can only be
acquired by study; and Plato does not explain to us the nature of this
study, which we may reasonably infer, though there is a remarkable
omission of the word, to be akin to the dialectic of the Republic.
The Nocturnal Council is to consist of the priests who have obtained the
rewards of virtue, of the ten eldest guardians of the law, and of the
director and ex-directors of education; each of whom is to select for
approval a younger coadjutor. To this council the 'Spectator,' who is
sent to visit foreign countries, has to make his report. It is not
an administrative body, but an assembly of sages who are to make
legislation their study. Plato is not altogether disinclined to changes
in the law where experience shows them to be necessary; but he is also
anxious that the original spirit of the constitution should never be
lost sight of.
The Laws of Plato contain the latest phase of his philosophy, showing in
many respects an advance, and in others a decline, in his views of life
and the world. His Theory of Ideas in the next generation passed
into one of Numbers, the nature of which we gather chiefly from the
Metaphysics of Aristotle. Of the speculative side of this theory there
are no traces in the Laws, but doubtless Plato found the practical value
which he attributed to arithmetic greatly confirmed by the possibility
of applying number and measure to the revolution of the heavens, and
to the regulation of human life. In the return to a doctrine of numbers
there is a retrogression rather than an advance; for the most barren
logical abstraction is of a higher nature than number and figure.
Philosophy fades away into the distance; in the Laws it is confined to
the members of the Nocturnal Council. The speculative truth which was
the food of the guardians in the Republic, is for the majority of the
citizens to be superseded by practical virtues. The law, which is the
expression of mind written down, takes the place of the living word of
the philosopher. (Compare the contrast of Phaedrus, and Laws; also the
plays on the words nous, nomos, nou dianome; and the discussion in the
Statesman of the difference between the personal rule of a king and
the impersonal reign of law.) The State is based on virtue and religion
rather than on knowledge; and virtue is no longer identified with
knowledge, being of the commoner sort, and spoken of in the sense
generally understood. Yet there are many traces of advance as well as
retrogression in the Laws of Plato. The attempt to reconcile the ideal
with actual life is an advance; to 'have brought philosophy down from
heaven to earth,' is a praise which may be claimed for him as well as
for his master Socrates. And the members of the Nocturnal Council are
to continue students of the 'one in many' and of the nature of God.
Education is the last word with which Plato supposes the theory of the
Laws to end and the reality to begin.
Plato's increasing appreciation of the difficulties of human affairs,
and of the element of chance which so largely influences them, is an
indication not of a narrower, but of a maturer mind, which had become
more conversant with realities. Nor can we fairly attribute any want of
originality to him, because he has borrowed many of his provisions from
Sparta and Athens. Laws and institutions grow out of habits and customs;
and they have 'better opinion, better confirmation,' if they have come
down from antiquity and are not mere literary inventions. Plato would
have been the first to acknowledge that the Book of Laws was not the
creation of his fancy, but a collection of enactments which had been
devised by inspired legislators, like Minos, Lycurgus, and Solon,
to meet the actual needs of men, and had been approved by time and
experience.
In order to do justice therefore to the design of the work, it is
necessary to examine how far it rests on an historical foundation and
coincides with the actual laws of Sparta and Athens. The consideration
of the historical aspect of the Laws has been reserved for this place.
In working out the comparison the writer has been greatly assisted
by the excellent essays of C.F. Hermann ('De vestigiis institutorum
veterum, imprimis Atticorum, per Platonis de Legibus libros indagandis,'
and 'Juris domestici et familiaris apud Platonem in Legibus cum veteris
Graeciae inque primis Athenarum institutis comparatio': Marburg, 1836),
and by J.B. Telfy's 'Corpus Juris Attici' (Leipzig, 1868).
EXCURSUS ON THE RELATION OF THE LAWS OF PLATO TO THE INSTITUTIONS OF
CRETE AND LACEDAEMON AND TO THE LAWS AND CONSTITUTION OF ATHENS.
The Laws of Plato are essentially Greek: unlike Xenophon's Cyropaedia,
they contain nothing foreign or oriental. Their aim is to reconstruct
the work of the great lawgivers of Hellas in a literary form. They
partake both of an Athenian and a Spartan character. Some of them too
are derived from Crete, and are appropriately transferred to a Cretan
colony. But of Crete so little is known to us, that although, as
Montesquieu (Esprit des Lois) remarks, 'the Laws of Crete are the
original of those of Sparta and the Laws of Plato the correction of
these latter,' there is only one point, viz. the common meals, in which
they can be compared. Most of Plato's provisions resemble the laws and
customs which prevailed in these three states (especially in the two
former), and which the personifying instinct of the Greeks attributed
to Minos, Lycurgus, and Solon. A very few particulars may have been
borrowed from Zaleucus (Cic. de Legibus), and Charondas, who is said to
have first made laws against perjury (Arist. Pol.) and to have forbidden
credit (Stob. Florileg., Gaisford). Some enactments are Plato's own, and
were suggested by his experience of defects in the Athenian and other
Greek states. The Laws also contain many lesser provisions, which are
not found in the ordinary codes of nations, because they cannot be
properly defined, and are therefore better left to custom and common
sense. 'The greater part of the work,' as Aristotle remarks (Pol.), 'is
taken up with laws': yet this is not wholly true, and applies to the
latter rather than to the first half of it. The book rests on an ethical
and religious foundation: the actual laws begin with a hymn of praise
in honour of the soul. And the same lofty aspiration after the good
is perpetually recurring, especially in Books X, XI, XII, and whenever
Plato's mind is filled with his highest themes. In prefixing to most of
his laws a prooemium he has two ends in view, to persuade and also
to threaten. They are to have the sanction of laws and the effect of
sermons. And Plato's 'Book of Laws,' if described in the language of
modern philosophy, may be said to be as much an ethical and educational,
as a political or legal treatise.
But although the Laws partake both of an Athenian and a Spartan
character, the elements which are borrowed from either state are
necessarily very different, because the character and origin of the two
governments themselves differed so widely. Sparta was the more ancient
and primitive: Athens was suited to the wants of a later stage of
society. The relation of the two states to the Laws may be conceived
in this manner:--The foundation and ground-plan of the work are more
Spartan, while the superstructure and details are more Athenian. At
Athens the laws were written down and were voluminous; more than a
thousand fragments of them have been collected by Telfy. Like the Roman
or English law, they contained innumerable particulars. Those of them
which regulated daily life were familiarly known to the Athenians; for
every citizen was his own lawyer, and also a judge, who decided the
rights of his fellow-citizens according to the laws, often after hearing
speeches from the parties interested or from their advocates. It is to
Rome and not to Athens that the invention of law, in the modern sense
of the term, is commonly ascribed. But it must be remembered that long
before the times of the Twelve Tables (B.C. 451), regular courts and
forms of law had existed at Athens and probably in the Greek colonies.
And we may reasonably suppose, though without any express proof of the
fact, that many Roman institutions and customs, like Latin literature
and mythology, were partly derived from Hellas and had imperceptibly
drifted from one shore of the Ionian Sea to the other (compare
especially the constitutions of Servius Tullius and of Solon).
It is not proved that the laws of Sparta were in ancient times either
written down in books or engraved on tablets of marble or brass. Nor is
it certain that, if they had been, the Spartans could have read
them. They were ancient customs, some of them older probably than the
settlement in Laconia, of which the origin is unknown; they occasionally