As Max Weber observed in Politics as a Vocation and Science as a Vocation—and as borne out by his own unsuccessful forays into political life—the qualities that make a first-rate political or social theorist are not the same as those required for success as a statesman. For every Cicero or Edmund Burke, there are many more like Weber, Tocqueville, and Plato, whose longings for influence in public affairs were largely unfulfilled.
Plato was exceptionally unlucky in his attempts to take part in politics. In his Seventh Letter, he recounts how as a young man he briefly joined two successive Athenian administrations but quit both, disillusioned and disgusted. Many years later, he traveled to Syracuse to become an adviser to Dionysius II, a ruler who professed to be interested in philosophy.
Although initially hesitant—a previous meeting with Dionysius’ father had gone badly—he convinced himself that “if ever anyone was to try to carry out in practice my ideas about laws and constitutions, now was the time for making the attempt.” Dionysius II proved to be a hard case, and Plato fell victim to palace intrigues. Nevertheless, he persisted, making the arduous sea voyage from Athens to Sicily not once but twice. Barely escaping with his life after the second trip, he finally accepted that his efforts had been futile.
Without those disheartening experiences, however, it is unlikely that Plato could have written The Laws, his last and most political dialogue. Of all the dialogues, The Laws is the one that speaks most pointedly to the social sciences, and it still has important things to say about the great perennial questions of the scope and limits of law, the rule of law, the relation between law and custom, and the cultural underpinnings of good government. In The Laws we also discover much that was reinvented or appropriated by later thinkers—Machiavelli’s distinction between legislating for imaginary kingdoms and making laws for a real city, for example, and Montesquieu’s insistence that lawmakers must keep in mind the physical and cultural circumstances of those for whom they legislate, and the distinction between citizens and subjects that was so central for Rousseau and, in a different way, for Tocqueville.
The dialogue in The Laws takes place among three elderly pilgrims who meet on the road from Knossos to the temple of Zeus on the island of Crete. As the trek ahead is a long one, the protagonist, known only as the Athenian Stranger, proposes to Kleinias, a Cretan, and Megillos, a Spartan, that they beguile the time with conversation about the government and laws of Crete and Sparta. Both Crete and Sparta were renowned at the time for their laws. In fact, the shrine that is the travelers’ destination commemorates the supposedly divine origin of the laws of Crete. Athens, according to the Stranger, was less blessed: It suffers from numerous civic ills that he attributes to misuse of liberty and lack of restraint on the part of rulers and ruled.
In some ways, the nameless Athenian resembles the Socrates of the earlier dialogues, but he is less charming and more pious, less elusive and more pedantic. In fact, the regime outlined in The Laws—with its checks and balances, private property, private families, rights for women, and condemnation of homosexuality—is so different from the ideal polity of The Republic that some scholars have doubted the authenticity of the later work. But others, more plausibly, conclude that the Stranger is as close as we get to the voice of Plato himself, a Plato nearing the end of his own journey through life, an old philosopher making one last attempt to advise princes, this time through the written word.
When the Athenian asks the Cretan and the Spartan how their polities came to have such excellent laws, Kleinias and Megillos both respond that their laws originally were given to them by a god. But they do not sound particularly confident. In Crete, the lawgiver “is said” to have been Zeus, or “at least that is our tradition.” And in Sparta, “I believe they say it is Apollo.”
Later, as they begin to conjecture about the historical development of political systems, the travelers agree that, in simple societies, custom must have preceded law. The key to good laws, they speculate, has something to do with good habits developed over time—self-restraint on the part of citizens and some form of checks on the power of rulers, whether the regime be a monarchy, an aristocracy, or a democracy. One thing is clear: Good government cannot be taken for granted, for anyone can see that many cities have not developed the kinds of customs and laws that are conducive to dignified living. The Athenian remarks ruefully that, after all, “it looks as though some god was concerned on Sparta’s behalf.”
Later we learn that the Stranger really does seem to have a view about the sense in which a god might aid lawmakers. But it has nothing to do with the inhabitants of Olympus. It may well be, “as the story goes nowadays,” that ancient legislators were descended from or instructed by gods. But today’s legislators “are human beings legislating for the children of humankind.”
What interests the Stranger is that human beings are endowed with a “divine spark” of reason that makes it possible for them, individually and collectively, to gain control over their most primitive impulses. “We should run our public and our private life, our homes and our cities,” he says, “in obedience to what little spark of immortality lies in us, and dignify this distribution of reason with the name of law. It cannot be an accident that the name of this god-given and wonderful institution, law (nomos), is so suggestive of reason (nous).”
In a memorable series of lectures at Boston College on Plato’s late dialogues, Hans-Georg Gadamer postulated that in passages such as these the author was quietly promoting monotheism at a time when Greek folk religion was fading. Kleinias and Megillos, with their hemming and hawing about the origins of their laws, plainly have doubts about the tradition that ascribes their laws to anthropomorphic deities. But, at the same time, they are reluctant to embrace the opinions of “some people” that law is only the will of the stronger and that laws merely serve the will of the lawmaker. They are relieved to be invited to think about good laws and customs in another way—as the creation of fallible beings endowed with a faculty that enables them to reflect on experience, to give themselves rules, to orient their conduct toward the norms they establish, and to review those norms in the light of experience, correcting them where necessary.
But reason, alas, is fallible, subject to all kinds of distortions, personal and cultural, conscious and unconscious. And human beings are constantly pulled by the passions “like puppets on strings.” So, how to ensure that the fragile faculty of reason will be used well?
The interlocutors soon find themselves caught in a strange loop: Wise laws can play an important role in promoting good government, good character, and good habits. But wise laws can be produced only by wise lawmakers, and good government requires statesmen and citizens disposed to understand wise laws and abide by them. It sounds as though the best laws will emerge only where they are least needed.
At this point in The Laws, Kleinias reveals that his interest in the conversation is not just curiosity. He has just been appointed to a commission charged with establishing a new Cretan colony and providing it with a constitution and statutes. It would be helpful, he says, if the three travelers could spend the rest of the day “founding a city in speech” as they stroll along, taking frequent stops for rest under the cypress trees.
Megillos and the Stranger gladly accept the proposal. All agree at the outset that there is no question of aiming for an ideal state; the new colony will be inhabited by real men and women, not “people of wax.” Even to attain a “second-best” polity would be a considerable achievement. They recognize that what the legislator can accomplish will be greatly affected by the physical situation and economic circumstances of the city. How many people will live there? Will it be inland or on the coast? What kinds of neighbors will it have, and how close will it be to neighboring cities? Will the colonists be primarily engaged in agriculture or commerce? Will they be of similar or diverse origins?
It is understood, too, that there are other factors that can impose constraints on legislation. Calamities such as war, poverty, disease, and natural disasters can overturn constitutions and rewrite laws. In that sense, chance and accident are “the universal legislators of the world.” The statesman, therefore, is like the navigator of a ship. He cannot control the wind and waves, but he must have the skill to recognize and seize favorable opportunities, steering as best he can toward his goal.
So, where to begin? “What, in heaven’s name,” muses the Stranger, “should be the first law our legislator will establish?” Without waiting to hear what Kleinias and Megillos have to say, he answers his own question: “Surely the first subject he will turn to in his regulations will be the very first step that leads to the birth of children in the state: the union of two people in the partnership of marriage.” Kleinias readily agrees that marriage must be regulated first because it is crucial to the nurture and education of future citizens.
But not everything that pertains to the seedbeds of character and competence needs to be regulated. Unwritten customs, according to the Stranger, “are the bonds of the entire social framework.” When soundly established and habitually observed, they “shield and protect” the written law. “But if they go wrong,” says the Athenian from bitter experience, “well, you know what happens when carpenter’s props buckle in a house: They bring the whole building crashing down. We must not fail to observe, O Megillos and Kleinias, that there is a difference in places, and that some beget better men and others worse; and we must legislate accordingly.”
As the interlocutors ponder how law can foster sound customs and good habits, the conversation returns to education. Indeed, from the beginning to the end of The Laws, no matter what legal topic is under discussion, education repeatedly comes to the fore. The ultimate concern in Plato’s Laws, as in The Republic, is not so much with the right laws for the state but with the right formation for citizenship. The Athenian continually brings the discussion around to the idea that the aim of law is to lead the citizens toward virtue, to make them noble and wise. He stresses that the lawgiver has not only force but also persuasion at his disposal to accomplish this aim, and that a legislator for free men should try to devise the laws so as win the voluntary understanding and cooperation of the citizens. At the same time, he recognizes that, for this approach to work, the citizens, at least a good portion of them, have to be open to persuasion.
To illustrate these points, the Athenian compares the legislator who simply issues commands to a certain kind of doctor whom he calls the slave doctor. The slave doctor, a slave himself, has learned what he knows of medicine by working as the servant of a doctor. His manner of practicing his profession is to make a hurried visit, to order whatever remedy experience suggests, and then to rush off to the next patient. By contrast, the free man’s doctor begins by getting to know the patient—his history, his family, and his mode of life. He inquires searchingly into the disorder, and, when he has obtained as much information as possible, he begins instructing the patient about what he must do to regain his health. The doctor issues his prescriptions only after he has won the patient’s understanding and cooperation.
As for the lawmaker, the Stranger asks, should he merely issue a set of commands and prohibitions, add the threat of a penalty, and go on to announce another decree, without a word of encouragement or advice to those for whom he is legislating?
This kind of law may be fit for slaves, he says, but surely a legislator for free men should try to devise his laws so as to create goodwill in the persons addressed and make them ready to receive intelligently the command that follows.
Interestingly, the question of the best type of regime is given rather short shrift after it is agreed that the rule of law is of paramount importance. “Whatever the form of government,” says the Athenian, “where supreme power joins hands with wise judgment and self-restraint, there you have the birth of the best political system with laws to match.” And again: “The state in which the law is above the rulers, and the rulers are the inferiors of the law, has salvation, and every blessing which the gods can confer.”
The message, in today’s terms, seems to be that culture is prior to law, but legal norms and institutions can exert some influence on culture, for better or worse. The project of making laws for a real city, as the Stranger recognizes, is always a work in progress; circumstances will change and new challenges will arise. The passage of time will reveal the merits and flaws of legal arrangements, and, from time to time, corrections will have to be made. “Do you imagine that there ever was a legislator so foolish as not to know that there are many things which someone coming after him must correct, if the constitution and the order of government is not to deteriorate but to improve the state which he has established?” The laws may change, but what does not change are the recurrent processes of human knowing by which the laws can be tested, evaluated, and improved.
At a certain point in The Laws, Kleinias asks the Athenian Stranger, “Can you show that what you have been saying is true?” The Stranger replies: “To be absolutely sure of the truth of matters concerning which there are many opinions, Kleinias, is an attribute of the gods not given to man. But I shall be very happy to explain what I think and to enter into discussion about it.”
The time for their discussion, however, is nearing its end. As night falls, the Cretan implores his wise friend to stay and help with the founding of the new city. Without the Athenian’s assistance, he says, he does not see how he can continue. At last, a statesman who is open to the ideas of a philosopher! But, in The Laws, the Stranger never responds and never speaks again. Plato’s last dialogue ends with a resonating silence.
Mary Ann Glendon is Learned Hand Professor of Law at Harvard University.
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