On Plato’s ‘Laws’ — The Rule of Reason
The nature and purpose of law raises a number of issues, whether law has a particular purpose and if so what is it? To achieve justice (howsoever defined)? To protect the rights of the individual? To ensure political, economic and gender equality? How does it relate to morality? Is it a collection of universal moral principles that accord with nature or merely a collection of, for the most part, human-made valid rules, commands, or standards? Can the law be separated from its social context? The proper understanding and explanation of any society would require a coherent conception of its laws and its legal doctrines, for the social, moral, and cultural foundations of the law, and the theories that inform and account for them are as significant as the well-established, no longer up for debate laws, the so-called black letter laws. Indeed in the philosophy of law before exploring its nature one would need to define it, for an analysis of law requires a shared understanding of the subject under discussion.
‘Is a God or some man supposed to be the author of your laws?’ is the opening line of Plato’s dialogue the ‘Laws’, asked by the Athenian Stranger, directed to Cleinias the Cretan, for the dialogue takes place on the island of Crete, on a path leading to a temple of Zeus. Laws, we may suppose, grow out of something more fundamental, a regime, a politeia, whereby a democratic regime gives rise to democratic laws, a theocratic regime to theocratic laws, and so on. Politeia, republic, is the name of Plato’s dialogue that considers what the best regime should be, (see my article On Plato’s ‘Republic’ — Philosopher Kings), and so the ‘Laws’ would seem to be concerned with a secondary question, what should the best laws be, given the regime, but its opening question suggests that Plato did not want us merely to assume that the regime is more fundamental than, and the cause of, the laws. Perhaps the laws have a divine source, a theocratic regime would certainly assume so.
Furthermore, a distinction has to be made between descriptive law theory and normative law theory, the former seeking to explain what the law is, and why it is, together with its consequences, whereas the latter is concerned with what the law ought to be, the one is about facts, the other is about values. Plato’s ‘Laws’ begins by examining the laws of Crete, their aims and purposes, then it moves on to the natural preconditions for all regimes, and then ensues a discussion on what could be, that is, very different laws with very different purposes and principles than Crete’s existing laws. No doubt the world of Crete then was as beset with troubles and inequity as our world is today, and confronted by vice and depravity and injustice it is all too easy to fall into vague oversimplification and rhetoric when reflecting upon the proper nature and function of the law. Analytical clarity and precise deliberation upon the fundamental nature of law, justice, and legal concepts is therefore imperative, and vital given the fact that the laws we have play a decisive part in defining and defending the values and ideals that sustain a way of life while reflecting a way of life that we think is the best, plus the law is a motor for social change and with a pivotal role in our political, social, moral, and economic life.
So let us get into it.
The principal ideas advanced in Plato’s dialogue the ‘Laws’ are as follows:
1. Laws are initiated when communities seek to fix custom, but societies fail when ignorance tramples over wisdom, or when intemperance defeats temperance, or when freedom is lost or becomes licence.
2. The best form of government is a combination of democracy and monarchy, for such a state combines freedom and wisdom.
3. Legislation should be designed to ensure freedom, harmony, and understanding, the effort should be made to imitate the good and the gods.
4. Where the laws are above the ruler, the state has the possibility of salvation, the best ruler is one who can enforce the laws by persuasion and command.
5. The laws should provide for censorship of the improper kind of music, dancing, poetry, eulogy, and drama, they should discourage all love but the love of soul, and they should provide for the rehabilitation of criminals.
6. The gods must exist since the soul, that which can move itself, is essentially dependent upon the divine.
Plato’s three important political treatises, the ‘Republic’, the ‘Statesman’, and the ‘Laws’, have had a great influence upon political thought, the first two representing his attempt to argue for and describe the political body and the ruler that would be the best or ideal, and there is a serious question as to whether he believed them possible. Some hold that the ‘Republic’ represents Plato’s attempt to sketch for us the form or Idea of the state, Stateness itself, as it were, along with the art of ruling itself. The latter is more fully developed in the ‘Statesman’. The ‘Laws’, probably Plato’s last work, is concerned with the sketch of a state that is second best, one in which the author no longer considers the rule of a philosopher king, either because he no longer thought it possible or because it represented an unrealizable ideal. His concern, rather, is the rule of law.
We generally take, in our Western democracies, the position that a government of laws is superior to one of people, for we fear the arbitrary rule that may occur when tyrants are in power. People, however, must interpret the laws, for laws do not speak for themselves. Thus, in his presentation of the ideal state, Plato described the training and qualifications of a ruler who would combine wisdom and morality with experience, so that, given any problem of governing, he or she would strive at the correct solution. Why should this type of rule have been considered better than the rule of laws? A law, broadly speaking, is a command issued in general terms by a ruler, or by those empowered to rule, for the regulation of the conduct of the members of society. When it is held that someone has broken the law, his or her act must be fitted under the general law, as interpreted by properly constituted authorities. A wise person, moral in character, who, through training (education) and discipline, has attained knowledge of the good and who has spent many years in the practical application of that knowledge in governmental positions is best suited to sit in judgement of particular cases and come to decisions. For Plato, proper rule by laws demanded the ideal ruler.
In the ‘Laws’, the Athenian Stranger, thought by some scholars to represent Plato himself, rather than Socrates, dominates the conversation. In the opening books there ensues a discussion, reminiscent of many in earlier dialogues, of the virtues, the importance to the good life, and the role of education in training the citizen to rule himself and to obey his rulers. The Athenian Stranger inquires of Megillus whether he thinks that the program in Sparta to train the young to be courageous is adequate. For, although much emphasis is put upon endurance and resistance to pain, there is little, if any, preparation for resisting improper pleasures, especially flattery. Furthermore, in their educational scheme the Spartans have confused temperance with prohibition, by banishing revelry in all forms. Conviviality may be a benefit to the state when properly managed. In fact, the notion of proper management is the key to the temperance, and gaining knowledge of it a major feature of the correct education.
If we look at people, we see that they are pulled from within by pleasure and pain, and the way in which they are pulled can be determined through the use of his reason in directing his or her will to control his or her passionate nature, or he or she can become a slave to the demands of his or her desires. It is the role of education to prepare him or her for the former, so that his or her acts will be virtuous and not vicious. If children are observed carefully, and their instincts toward virtue are moulded into suitable habits so that they learn to do that which they ought to do, by loving what ought to be loved, and hating what ought to be hated, then education will be properly administered in the city. As in the ‘Republic’, Plato advocates as part of the program of education the correct use of music and, again, he stresses imitation of the good as the standard by which it should be judged.
In Book III of the ‘Laws’ the Athenian Stranger turns to an analysis of legislation, one which occupies him for much of the remainder of the dialogue, and he begins by considering the origin of governments. Recounting the legend of the destruction of civilization by deluge, he describes the rise of society again on a simple, pastoral level. People lived by custom, remembered from the old days, and practiced the virtues which they inherited from their parents. Legislation began when the various communities discovered the differences in their customs and vied with one another for the best. By arbitration it was decided which were best, and the communities were united into city-states, from which federations were formed. Yet Sparta and two of its neighbours had broken their federation in recent times because they lacked the wisdom to remain united. Unless legislators endeavour to plant wisdom in states and banish ignorance, not only federations but the state itself will be ruined. The Stranger points out many examples of states that have come to ruin because of excesses rather than proper management.
Persia, he claims, fell because of the servitude of the people. When the most important principle of rule, that of the wise over the ignorant, is practiced as it ought, we have a rule of law over willing subjects. When there is a rule by compulsion, as in Persia, then the government will fall. On the other hand, too much freedom can also lead to the destruction of the state. The Stranger refers to the fall of Athens as a case in point. Interestingly enough, in the light of his criticisms of certain poetical practices, he traces the downfall to excesses in music. He claims that at first the music was listened to in an orderly fashion and in silence, but the poets themselves introduced noisy innovations which led to noisy confusion. In addition, freedom was replaced by licence, and equality proclaimed in all things, so that the view expressed by it’s all a matter of taste replaced norms in morality as well as etiquette. The democracy which had consisted of educated persons in the role of judges degenerated to a situation in which anyone was qualified. When freedom becomes excessive, when taste takes over, then reverence is lost and authority ignored, both the rulers and the laws are disobeyed.
In discussing a state which is well governed, Plato, in the ‘Laws’, indicates that his position on democracy put forth in the ‘Republic’ (it was next to tyranny as the worst of states) has been modified. It is true that there he presented a picture of mob rule in which licence and no moral laws prevailed, as in the conditions described above. The conclusion was the main feature of a democracy when discussed in the ‘Republic’. Now he holds that when democracy is combined with monarchy (a situation that exists in our time in the United Kingdom), it is possible to join features which make for a well-governed state, friendship and wisdom with freedom. The Athenian Stranger holds that legislation should aim to accomplish three things, first, assure the freedom of the city, second, promote harmony, the city should be at one with itself, and third, foster understanding. Cleinias, who is to found a colony for Crete, asks the Athenian Stranger to develop his views on legislation further so that he may profit by them.
Speaking rather generally, the Athenian stranger claims that it is preferable for a legislator to make laws in a state ruled by a young tyrant (king or queen) with a good memory, one who is quick at learning, courageous, noble, and temperate. Since people tend to imitate their ruler, such a one is more likely to be obeyed and the laws of his or her kingdom are more likely to be the best. Besides, since he or she is more likely to honour the laws, he or she should rule, for where the law is subject and has no authority, there the state is on its way to ruin. Thus Plato, in the ‘Laws’, subscribes to the second best view, for he goes on to say that where the law is above the ruler, there the state has the possibility of salvation. He stresses, as he did in the Republic, that the gods should be imitated, and he urges that the legislators not give two rules for one point of law.
The Athenian Stranger develops this point much further by advising the legislator to define clearly the terms of his laws so that there will be no ambiguity. This will be the true sense of moderation. When the laws are made, the legislators should use both persuasion and command in framing them. The persuasive part will create good will on the part of the citizens who will be required to obey them. It is important to realise the kinds of laws Plato is talking about. The legislator is described as framing laws to fit what we ordinarily would call a constitution. Plato is not always clear about this point but the text supports such a view. Both Niccolò di Bernardo dei Machiavelli (1469–1527) in his ‘Discourses on Livy’, 1531, and Jean-Jacques Rousseau, (1712–1778), in the ‘Social Contract’, 1762, are indebted to Plato as they argue for a constitution written by a stranger, as does Plato, sanctioned by the gods, consented to by the people, and so on.
In the fifth book, the Athenian Stranger gives practical advice for the securing of a virtuous state. Next to the gods a person should honour his or her soul and then his or her body. A person should live moderately, avoiding excesses, both with regard to his mental and his physical activities. Those in society who are guilty of wrongdoing, if they appear curable, should be treated gently and with forgiveness. If, however, there are citizens in the state who are beyond cure, who are incurably evil, then they must be purged. Plato, again stressing the view that evil is a kind of disease of which punishment is the cure, argues for rehabilitation over vengeance, but when rehabilitation appears fruitless, then the state should put away the individual who is of no good to him or herself or to others. Oddly enough, from Plato’s viewpoint, since no person ever does wrong knowingly, an incurable person would appear to be one who no longer can learn anything.
The state that the Athenian Stranger plans would be small in size and population. The property would be divided among the citizens as fairly and justly as possible, and great effort would be made to keep the population constant. In the best state, the Stranger proclaims, property would be held in common (as in the ‘Republic’) but, if it must be held privately, then the owners should be taught that they owe their possessions to the state and that basically the property belongs to the whole citizenry. The city-state should neither be too wealthy nor too poor, for the excesses of both are dangerous to civic welfare. The laws should protect the city from these extremes by limiting wealth so that no one through property shall gain undue power.
In the ensuing books Plato continues to emphasise education, and he points out that a crucial function of it is to help transmit and enforce the customs, favourable ones, that have been developed in society. Laws are only a skeleton, as it were, of the rules that govern a state. Between the spaces custom binds and knits the country, providing a ground for proper management of oneself. Custom can bring about reverence for the law by instilling in the young a respect for it. It is well to frown upon changes in the law, to make it difficult for changes to occur, for stability in the law is reflected in a satisfied people. Plato was as much concerned about the disquieting effect that wrong music can have on the populace that he advocated laws to control music, dancing, poetry and eulogies. Only the good is to be stressed. Censorship of plays and other literary works for the youth will also be practiced. The Athenian Stranger knows that the young will imitate the characters they watch on the stage and read about, only if these are presented with a high regard for morality can the imitation be safe. As in the ‘Republic’, so in the ‘Laws’, Plato advocates that mathematics be taught, especially arithmetic, plane and solid geometry, and astronomy.
Since men and women are to be together in their education, some precautions should be taken to prevent promiscuity. In Book VIII, the Athenian Stranger discusses love, pointing out that there are three types which become confused and which must be carefully distinguished by the laws. The three types are first, love of body, which leads to wantonness. Second, love of soul, which enables one to search for virtues and for a kindred soul with whom to live chastely. And third, a mixture of the two. It is the second that is to be favoured by the state, the others are to be forbidden. But how will it be possible to enforce a law in support of the love of soul? Just as incest is not practised because the customs and mores are such that it is held to be the most vile of crimes, so a similar attitude can be established regarding other vile unions. By comparing the fear of impiety with a love for moderation, sexual temperance will be looked upon as a victory over base pleasures, and sufficient incentive will be provided to encourage obedience to the law. In addition, hard work will get rid of excess passion.
Although the Athenian Stranger finds it hard to believe that there will be crimes in his proposed state, he recognises the need for a criminal law. It is here that Plato once more declares punishment a form of rehabilitation, designed to cure or improve the criminal. It is interesting that Plato considers the robbing of temples as a capital offence which, if committed by one who has been educated and trained, is punishable by death. In ‘The Social Contract’ Rousseau again shows the influence upon him of the works of Plato by urging a similar punishment for this kind of crime. Because Plato accepts the Socratic view that no person does wrong knowingly, and that punishment should be cure, he feels obligated to discuss the sources of crime. He finds it in three major aspects of a person’s make-up. The passions, as the lower element of the soul, may drive a person to act without reason’s guidance. But to act without reason’s guidance is tantamount to slavery, and a person who is slave to his or her passions may perform all sorts of crimes. Related to this is the fact that a person who seeks pleasures finds that by persuasion and deceit he or she is led to pursue them, often to his or her ruin. Lastly, ignorance itself is a cause of crime. Socrates has found that he was proclaimed the wisest man in Athens because he knew that he did not know anything, whereas his fellow citizens were ignorant of their ignorance and fooled themselves into thinking that they knew. It is the conceit of wisdom that leads the ignorant person astray, causing him or her to commit crimes. The degree of the conceit is matched by the seriousness of the crime.
The Athenian Stranger proclaims that laws are necessary for humankind because without rules to guide them, people would be no better than savage beasts. Again, such a position had an influence upon Rousseau, who held that society would make a man of virtue out of a creature who, acting from instinct rather than reason, was little better than a savage beast. No person is able to know what is best for all of human society. A philosopher king is hardly possible, hence, law and order must be chosen so that good people may be led to a good life, and those who refuse to be instructed, curbed.
In the final book, Book X, of the ‘Laws’, the Athenian Stranger argues that as long as the gods are held in esteem crimes of impiety will not be committed frequently. To the question of what can be done with those who do not believe in the existence of the gods, the Stranger proposes to prove their existence. He does so with a proof which shows that the soul is prior to the body, and that, since the spiritual nature of the soul is the same as that of the gods, they too must exist. The proof rests upon the soul as a source of motion. Briefly, this proof may be demonstrated as follows: Some things are in motion, others at rest. Motion itself is of several types:
1. Spinning on an axis
2. Locomotion
3. Combination
4. Separation
5. Composition
6. Growth
7. Decay
8. Destruction
9. Self-motion and motion by others
10. Change of itself and by others.
Type 10 is actually the first in terms of superiority with 9 second. The self-moving principle is identified with life. Not only is the soul defined, in essence, as that which can move itself, but also it is the source of motion in all things. The body is essentially inert and has no moving power of its own, rather, it has motion produced within it. As the source of motion, the soul is prior in time to that which is moved by it. The body, which is moved by the soul, must be later than it in time. Not only is the soul the author of movement in and of the body, but of all bodies, including heavenly ones, planets, for instance. Soul or spirit must exist prior to and concurrent with the heavenly bodies to have put and kept them in motion. Therefore the gods, who are spirits with spiritual qualities unencumbered by bodies, must exist.
The most interesting part of the ‘Laws’ for me is when the stranger presents laws to deal with impiety and in particular atheism. At this time all the Greek cities thought of their laws as divine, hence disbelief in the gods was the worst of crimes, but the Athenian Stranger rather remarkably first outlines the atheist argument itself, an argument therefore that will stand in the law code, for all future citizens and for all students of law to read, and then he offers arguments against atheism and related forms of impiety, arguments, that is, as opposed to threats, though he does offer laws for punishing atheism and impiety, but his laws distinguish between atheists who are honest and decent people, (so Richard Dawkins, (1941 — ), wouldn’t fare so well), and those who would seek to trick and harm others. The decent atheists would be punished so to speak by spending five years in what he terms a moderation tank, discussing their atheistic beliefs with the most esteemed and intelligent of their fellow citizens, (not like Christian apologist William Lane Craig, (1949 -) then, I’d rather undergo execution by crucifixion than be stuck in a moderation tank with him for five years), sounding more like a school than a prison. The Stranger also proposes a Nocturnal Council, composed of the most esteemed and virtuous members of the city’s leadership, each of whom will bring a younger man to the discussions. The Council will influence the city’s governance, but will also discuss the noble, the good, the divine, and the unity of virtue. How can virtue be one thing while at the same time four things? Courage, justice, moderation, and prudence. How can a city aim at virtue if its leaders have no idea what virtue is? Plato’s politics is devoted to virtue. Georg Wilhelm Friedrich Hegel’s, (1770–1831), is devoted to freedom.
Hegel, (1770–1831), drew a distinction between the laws of nature and positive law. The laws of nature are given and their measure is outside humanity, and no matter how well we know them we can add nothing to them nor can we assist in their operation, though our ideas about them can be false. Positive law, on the other hand, is posited, it originates with humanity, and for the posited humanity insists that the measure is within. When we are confronted with nature we do not go beyond the truth that there is a law, but we cannot accept positive law simply because it exists, hence there is the possibility of a conflict between the ought and the is, and it is the business of the philosophy of law to establish the rationality of law or right, and in this respect it stands in contrast with the study of positive law which is mainly occupied with the revelation of contradictions. Thought is taken to be the essential form of things, and philosophy must therefore attempt to grasp law or right as thought, albeit this does not mean that right must give way to a putative supremacy of thought, or that random opinions are entitled to any special consideration. Thought which is valid must take the form, not of a mere opinion, but of a concept about the thing, and we arrive at this position only through the employment of the philosophic methodology, but above all we cannot know the truth through the method of either intuitionalism, (laws as the result of the constructive mental activity of humans rather than the discovery of fundamental principles), or subjectivism at (laws on the basis of our own mental activity as the only unquestionable fact of our experience as opposed to shared or communal hence there is no external or objective truth).
Philosophy is concerned with the rational, that is to say, it is an endeavour to apprehend the actual, for the actual is rational and the world that the philosopher contemplates is a world of appearance and essence, the outward and the inward, the unity of which constitutes actuality. This is not to say the mere existent is the actual, for if it were it would include caprices of fancy and evil, which are not rational but rather they represent the fortuitous, something of no greater value than the possible, something which may as well be as not be. It is the actual alone which is rational, which can be grasped in thought, but when rationality is actualized it assumes a multitude of forms, and it is not the business of philosophy to concern itself with such an infinite variety of affairs. Hence Plato need not have concerned himself about the right and wrong type music or laws to control dancing, poetry and eulogies. Endeavours to pass judgements of this sort are a kind of super-erudition in which philosophy loses its way, and Hegel’s ‘Philosophy of Right’ has as its objective the effort to understand the state as an inherently rational institution and it is not an endeavor to construct the state as it ought to be, but only to reveal how the state, which is the world of the ethical, is to be understood.
One wonders what Plato would have made of the music of Xenakis
The Hegelian system is grounded upon a principle of knowledge, reason, which acts universally, for the ethical rules that are to guide individuals must be given a universal form, otherwise the individual could, in his or her behaviour, indulge in self-contradictions. Hegel’s philosophy of law takes as its subject-matter the Idea of right, that is, the concept of right and the actualization of that concept, but will and personality take us directly to the heart of his philosophy of law. Right in general has its foundation in mind, or, as precisely as may be, in the will, and the will is free, and hence freedom is both the substance and goal of the will, the system of right is the province of actualized freedom, and freedom is as characteristic of the will as weight is of matter. Matter indeed is weight for the two cannot be separated, and so it is with freedom and the will, for the free entity is the will and in the absence of freedom will is an empty word, freedom becomes actual only as will, as subject. But a will which resolves on nothing is not an actual will, the goal or impulse of free mind is to make freedom its object, and when it resolves the will posits itself as the will of a specific individual, as a will which is separated from the will of another individual. In its activity the will overcomes the contradiction between subjectivity and objectivity, and its aims assume an objective instead of a subjective character, hence right is an existent of any kind which embodies the free will, and right is by definition freedom as Idea.
Personality arises when the subject is conscious of him or herself as a completely abstract ego in which all concrete limits and values are negated and without validity, hence the abstract will consciously self-contained is personality, but personality implies a capacity to possess rights, and constitutes the concept and abstract basis of abstract, and therefore formal, right. Hence the mandate of right is: ‘Be a person and respect others as persons’. At the stage of formal right the person possesses rights simply because he or is a person, and there is no question here of particular interests, advantages or welfare. Furthermore, abstract right is only a possibility; such a right is therefore only a permission or a warrant, hence its only command, unconditionally its own, is: ‘Do not infringe personality and what personality entails’. From the ideas of will and personality Hegel develops the categories of the sphere of abstract right wherein there is first possession or property, the importance of property ownership interestingly misunderstood or disregarded by both Plato and Karl Marx, (1818–1883), (see my article The Visible Divinity — part three). This is freedom of the abstract will in general, or the freedom of a single person related only to himself. There is secondly contract, this category recognizes the existence of more than one person, and it is only as owners that two persons exist for one another. Their implicit identity is realized through a transference of property in conformity with a common will, and without detriment to the rights of either. Thirdly, there is wrongdoing and crime, which occurs when the individual will is at variance with and opposed to itself as an absolute will.
Hegel’s theory of property is based on the idea of personality, for in order to exist as Idea the freedom of a person must be actualized in an external sphere, hence we must oppose to free mind the idea of thing which is the external pure and simple, something not free, impersonal, and without rights, and since things have no end in themselves, and obtain their destiny and soul from the will, persons have as their substantive end the right to put their will into things thereby making the objects their own. Possession is to have extrinsic power over a thing, and when I make something my own because of my natural want, impulse, or caprice possession satisfies that particular interest. But the true aspect of the matter is not the satisfaction of wants, for property is the first embodiment of freedom and is therefore in itself a substantive end, albeit a the theory of interests has to have its social basis, which is the ground upon which all jurists have placed it, and if we start with the wants of the individual human being, as the theory of interests has it, then the possession of property appears as a means to their satisfaction, but in virtue of the fact that I am an actual will for the first time in what I possess, the requirements of the Hegelian system require that this latter ground be taken as the true one.
Fraud and crime can be vindicated only by punishment, since in these cases right has been set aside as such, and mere recompense or restitution are not adequate to restore what has been altered, and the particular will of the criminal must be penalized in order to annul the crime. Hegel’s aim is to justify punishment as an expression of the criminal’s own inherent will, as a visible proof of his freedom and his right, by being punished the criminal is honoured as a rational being. Hence the concept and measure of his punishment are deduced from his or her own act, while force is directly self-destructive because it is a manifestation of a will which cancels the expression of a will, taken abstractly force is therefore wrong. Since in its very conception force destroys itself its principle is that it must be cancelled by force, and under certain conditions it is not only right but necessary that a second exercise of force should annul the first. A crime is something negative so that its punishment is a negation of the negation, and the injury resulting from the crime exists only as the particular will of the criminal, hence to injure this particular will is to annul the crime and to restore the right. Crime is the will which is implicitly a nullity and it contains its negation within itself, and this negation is manifested as punishment, this punishment is only the manifestation of crime, the second half which necessarily presupposes the first. The elimination of crime is retribution, which means only that crime has turned back upon itself, hence it is the very act of crime itself which vindicates itself, hence punishment is not only implicitly just, it is an embodiment of the criminal’s own freedom, a right established within the criminal himself.
Hegel’s philosophy of law does not take for granted any legal institution which he regards as essential for the operation of his system, hence he strives to establish that the judicial process is rational in principle and therefore necessary. The administration of justice must be looked upon as both the duty and the right of the public authority, and whatever may have been the historical origin of the judge and his court is of little concern, the establishment of a system of judicial administration is not a matter of optional grace or favour on the part of the ruler, nor is the judicial system is an improper exercise of force, a suppression of freedom, and a despotism, for when right assumes the form of law it becomes existential, it acquires its own career, it is self-subsistent and has to vindicate itself as something universal, and this is achieved through the recognition and realization of right in the particular case without the subjective feeling of private interest, and it is the business of the court of justice to carry out that task.
Practice cannot be reformed in any significant sense if fundamental ideas are not clarified and harmonized into a systematic theory of that minute aspect of the world that any science studies, it demands, if practice is to achieve its goal of an ideal society, that the view taken be wide enough for that purpose. The synoptical person, as Plato pointed out, the one who takes a broad view of things and possesses a conspectus of knowledge is a philosopher, the one who is not who cannot see two subjects in their relation and is no philosopher. No legal problem is ever solved in isolation, it must be related to the whole structure of phenomena, and law for Plato was the way to the discovery of reality, the rule of right reason, the ascertainment of the ordering of human affairs which is in accord with the immortal element within us. And for Hegel law is a deduction from Being, the first of the categories, and its proper sphere is the philosophy of Spirit or Mind. It is the realization of freedom as Idea, the grasping of right as thought, the apprehension of the essential form of things.
Plato and Hegel both hold that law may be found by reason, and that it is to be found through the analysis of an ultimate category, and they both employ a logical process to arrive at their views of the nature of law, albeit Hegel’s is considerably more formalized. Plato associates law with the good society, a society in which every member performs the social services for which his nature is best adapted, and Hegel makes the same association except that in his hands the good society is one in which the concept of freedom is actualized. Their views of the nature of law appear therefore to differ in no really significant particular, but their views of the end of law are most certainly radically apart. What is law?What is right? As noted above, Hegel’s answer may be encapsulated in a nutshell. The mandate of right is: ‘Be a person and respect others as persons’.
ALL. God save your majesty!
JACK CADE. I thank you, good people:– there shall be no money; all shall eat and drink on my score; and I will apparel them all in one livery, that they may agree like brothers, and worship me their lord.
DICK. The first thing we do, let’s kill all the lawyers.
Jack CADE. Nay, that I mean to do. Is not this a lamentable thing, that of the skin of an innocent lamb should be made parchment, that parchment, being scribbl’d o’er, should undo a man? Some say the bee stings; but I say ‘t is the bee’s wax, for I did but seal once to a thing, and I was never mine own man since.
- William Shakespeare, ‘Henry VI’, Part Two, Act IV, Scene II.
