It is an especial pleasure for me to contribute to a volume in honour of Kenneth Dover, not merely as an expression of gratitude for the good fortune of having spent ten happy years at Corpus under his benign presidency, but also in recognition of that special combination of candour and rigour which characterizes his work, and which may serve as a paradigm to scholars in his discipline and beyond.
The reader of K. J. Dover’s magisterial Greek Popular Morality in the Time
of Plato and Aristotle¹ (hereafter GPM) cannot but be struck by the fact
that, while the names of Plato and Aristotle appear in the title as an indication of the temporal scope of the work, reference to their writings in the book itself is comparatively sparse. This comparative neglect stems directly from his conception of the project. In his preface (pp. xi–xii) he distinguishes the subject of the work, viz. ‘the data relevant to popular morality’, from ‘systematic ethical thought’ (i.e. the ethical theories of Plato and Aristotle), and points out that he has not attempted (in GPM) to investigate the relation between the two. The existence of the distinction between popular morality and ethical theory I take as self-evident, and I have no quarrel with Dover’s decision not to undertake the complex task of investigating the relations between the two in the Greece of the fourth century bc; he rightly sees GPM as devoted to the prior task of providing part of the data for such an investigation. But the writings of Plato and Aristotle may themselves be expected to provide, in addition to their authors’ theoretical views, some evidence of current moral attitudes. Any author writing on morality must take some interest in, and therefore provide
evidence for, views current at the time of writing. Moreover, the character of the works of Plato and Aristotle gives special reasons for expecting them to be fruitful sources of such evidence. Plato writes dialogues in which some characters express, not Plato’s own beliefs, but views which Plato presumably believed to be current at the time; Aristotle’s ethical method explicitly counts current moral beliefs as among theφαινόμενα which it is the task of ethical theory to systematize and harmonize (EN 1095a28–30,
EE 1216b 26–35, 1235b13–18). Dover accepts these points (p. 7), and
does occasionally use Plato and Aristotle as sources (e.g. pp. 43, 59, 171, 180). But this use is minimal; he is plainly suspicious of the reliability of the philosophers as evidence for current views, as he explicitly acknowledges in the case of statements about what ‘most people’ say and think (p. 7).
I doubt the utility of any attempt to discuss a priori the question whether Plato and Aristotle are reliable sources of evidence for the moral views current in their time. (Dover’s own grounds for scepticism are weak; his main claim, viz. that modern philosophers’ assertions about what ‘we’ say, think, and feel are unreliable (ibid.), is both unsupported by any evidence and dubiously relevant to the ancients.) Any view of their reliability or unreliability in general could, in my view, be attained only by the accumulation of particular pieces of evidence, which might enable us finally to judge whether the picture of contemporary morality which emerges from their works is broadly coherent with that presented by such works as GPM. The presence or absence of such broad coherence would, I believe, be the only possible test of their reliability. Needless to say, I shall not undertake such a Herculean task in this essay. I shall restrict myself to a single piece of fieldwork, in which I shall attempt to show that a generalization of Dover’s about Greek moral beliefs can be refuted by evidence provided largely, though not exclusively, by Plato and Aristotle. If successful, this attempt will indicate that, at the least, the student of ancient morality may profitably consult the writings of the philosophers to supplement the invaluable collection of evidence contained in GPM.
In the context of a contrast between ancient and modern views on individual freedom and responsibility Dover writes as follows (p. 157):
The Greek did not regard himself as having more rights than the laws of the city into which he was born gave him at that time; these rights could be reduced, for the community was sovereign, and no rights were inalienable.
I shall argue that some well-known passages from Plato and Aristotle, supported by evidence from Sophocles, Thucydides, and elsewhere, provide sufficient ground for the rejection of that assertion.
In the passage quoted Dover asserts that (1) ancient Greeks regarded themselves as having certain rights, viz. those ascribed to them by the laws of their native city, and (2) no ancient Greek regarded himself as having any rights other than those specified in (1). One might dispute his assertion by denying (1), on the ground that the ancient Greeks lacked the concept of a right altogether. It is certainly true first that no single Greek expression answers to the English ‘a right’, and secondly that no ancient moral theory treats rights as its basic or even central concept. But these facts give us no ground to deny (1). I shall not offer any general account of rights, but shall accept as sufficient J. S. Mill’s dictum:
When we call anything a person’s right, we mean that he has a valid claim on society to protect him in the possession of it, either by the force of law, or by that of education and opinion. (Utilitarianism, ch. 5, Everyman edn. (London, 1957), 49)
Since the ancient Greeks certainly claimed from society the legal protection of such interests as life, property, and civic status, we should therefore accept Dover’s assertion that they regarded themselves as possessed of legal rights. In what follows I shall dispute his assertion (2), arguing that our evidence justifies us in maintaining that certain Greeks claimed certain rights other than those guaranteed by the laws of their native state. In some instances I shall argue that certain Greeks are represented as claiming such rights; if that is accepted we shall have to pursue the further question of what such representations tell us about the actual beliefs of actual Greeks.
The first passage which I shall cite is excessively familiar, and much debated. In Plato’s Apology Socrates is represented as claiming that the task of criticizing the moral beliefs of his fellow citizens has been imposed on him by the gods, whose commands must be obeyed, even at the cost of his life (28d–29a). He then imagines a situation in which the jury agrees to discharge him, on condition that he abandons his mission; if he refuses to accept that condition, he is to suffer the death penalty (29c). His imagined reply is ‘Men of Athens, I revere and love you, but I shall obey the god rather than you, and as long as I live and am able, I shall never cease from philosophizing ...’ (29d).
Is this a counter-example to Dover’s generalization, i.e. a case in which a Greek claims some right not assigned to him by the laws of his native state? We must be cautious here. First, the situation is doubly imaginary; Socrates is represented by Plato as representing a situation which does not obtain in fact. In fact, the activity of philosophizing was not forbidden by the law of Athens, and was therefore one which any citizen had the legal right to undertake, in that minimal sense of ‘a right’ in which one has a legal right to do whatever one is not legally forbidden to do. Secondly, the imagined situation is not one in which, strictly speaking, Socrates’ disobedience would be a breach of law, but merely a breach of a condition imposed by a court. Finally, Socrates’ justification for his imagined disobedience is not that the prohibition on his philosophizing would violate his individual
right to philosophize, but that he is under a divinely imposed obligation to
philosophize, whose divine authority overrides his obligation to obey the authorities of Athens. Hence, it might be maintained, claims to rights are simply not at issue, and the case is irrelevant to Dover’s assertion.
It is the third point which is crucial. The essence of the position ascribed to Socrates in the Apology is that divine authority transcends human authority; hence any human injunction, obedience to which requires the violation of obligations imposed by divine authority, must be disobeyed. Hence the distinction between a law properly so called and a mere court order is irrelevant;² Socrates could not be imagined to say ‘Gentlemen, I shall obey the god rather than you; but of course if the Assembly should ² Pace A. D. Woozley, for whom the distinction between the two is central to his attempt, in Woozley [1979], 40–6, to reconcile the positions attributed to Socrates in Ap. and Crt. Woozley’s position is anticipated by Hirzel [1900], 67 n. 2.
Brickhouse and Smith [1989] argue (pp. 149–53) that Socrates need not be construed as claiming a right to philosophize which overrides an imaginary law forbidding that activity. Socrates, they claim, would count such a law, even if promulgated by due legal process, as legally invalid, on the ground that, in requiring him to violate a divine command, it conflicted with the existing law against impiety. The two authors and I are in agreement that Plato represents Socrates as committed to refusing to comply with a law forbidding him to philosophize. The difference between us turns on the grounds on which Socrates would justify that refusal; on my interpretation he would do so because the divine command overrode the legal prohibition (assumed to be legally valid), whereas on the Brickhouse–Smith view he would do so on the ground that the prohibition was legally invalid because in conflict with a prior legal prohibition on impiety. On that particular question Plato’s text is, strictly speaking, indeterminate; he does not spell out the grounds on which Socrates would refuse to comply in the imagined situation. I think, however, that Socrates’ words to the jury ‘I shall obey the god rather than you’ suggest that Plato has in mind that Socrates’ ultimate appeal would be rather to authority transcending the legal system than to grounds internal to that system. He does not, after all, object that the imaginary court order would be legally incompetent, though, as Brickhouse and Smith point out (pp. 143–7), it almost certainly would have been.
duly enact a law forbidding anyone to philosophize, then I should have to disobey the god.’ (It was in any case the common practice of forensic orators to identify the jury with the people, and hence with the state; see
GPM 292.) For the same reason the facts of Athenian law are irrelevant;
Socrates appeals to an authority which would override that of the law, if the two were to be in conflict. But where does Socrates claim a right to disobey the law in the imaginary situation? The claim is implicit in the claim that he is under an obligation to do so. What one is obliged (by an authority) to do, one is ipso facto authorized (by that authority) to do, and the stronger claim has to be understood as implying the weaker. So Socrates is represented as implicitly claiming, in the imagined situation, the right to continue to philosophize in violation of the law, in virtue of his stronger, explicit claim to be under the obligation, in that situation, to continue to philosophize.
We do not, of course, know whether the historical Socrates, either at his trial or on any other occasion, actually claimed that right, in virtue of that obligation. (It is quite plausible that he did so at the trial; it would have been a striking example of theμεγαληγoρία which was held to have contributed to his condemnation (Xen. Ap. 1).) What Plato’s text shows is that he thought it appropriate to present it as central to his defence of Socrates, as following from the fundamental Socratic theses that one must never under any circumstances act unjustly (Crt. 49b8) and that disobedience to divine commands is an instance of acting unjustly (Ap. 29b6 f.). It was not, then, a view which Plato expected his reader to dismiss out of hand; rather, it was a position which he could expect to be taken seriously, and perhaps even, on reflection, to carry conviction.
On the other hand, the belief that divine law, with the obligations and rights which that law creates, overrides the law of the state in a case where the two conflict was not a personal idiosyncrasy of Socrates’. This is clear from the famous scene in Sophocles’ Antigone where Antigone defies Creon’s edict that her brother Polynices shall be left unburied, on the ground that that edict is a violation of divine law. Having admitted (447 f.) that she knew of the edict, she responds to Creon’s challenge ‘And yet you dared to contravene these laws?’ (449) with the words
Yes, for it was not Zeus who proclaimed them, nor did Justice, the companion of the gods of the underworld, determine such laws among men. Nor did I think
that your decrees had such force that you, a mortal, could outrun the unwritten and unshakeable laws of the gods. For they live, not yesterday and now, but for ever, and none knows whence they came. (450 –7)
Here, as in the Apology, someone is represented as claiming that obedience to divine ordinances requires disobedience to the law of the state. ( The fact that Creon’s edict is promulgated via a proclamation,κήρυγμα, rather than a written law is insignificant; breach of it is consistently described (see 59, 381 f., 481, 663, 847) as breach of νόμoς or νόμoι.) Antigone conceives herself as under an obligation, imposed by divine law, to bury her brother, and therefore (as in the case of Socrates) as having the right to do so. (It is tempting to construe the passage as expressing the belief that the dead have a right to burial, but that temptation should be resisted, for there is no suggestion that the dead have any kind of claim on the living; rather it is the gods who make demands on the living, demands which in their turn ground the claim of entitlement to do what the gods require one to do.) The context is, of course, fictional, and we cannot assume that the quoted lines express the beliefs of the poet himself. Rather, they express an opinion on the relation of divine to human law which is not merely a serious option but which is treated with approval in the drama as a whole. (While Antigone is not presented as an entirely sympathetic figure, the message of the play is that on the crucial issue, the superiority of divine authority to that of the state, she is in the right and Creon in the wrong, and it may be assumed that the audience was expected to agree.)
The thesis, then, that the obligation to obey divine commands (and the consequent right to do so) may in certain circumstances override the law of the state is expressed with some approval by Sophocles in the fifth century and enthusiastically endorsed by Plato in the fourth. Plato’s endorsement may reflect an actual claim on the part of the historical Socrates to the right to disobedience in a hypothetical situation, though we are not justified in asserting categorically that it does. Since Sophocles and Plato may be assumed to have expected some measure of acceptance of this thesis on the part of their audience, we have evidence that they believed that some Greeks regarded themselves as having certain rights other than those guaranteed by the laws of the state. And since they had the advantage over us of being members of the society whose attitudes are in question, we
should accept that that belief of theirs is likely to have been true, at least until we have definitive grounds for holding it false.
Strictly speaking, then, we have discovered counter-examples to Dover’s generalization. But it might justly be objected that they contradict the letter rather than the spirit of his assertion. Our examples show that it is likely that some Greeks believed that they had obligations other than those imposed by the law of the state, and it is only the belief in those obligations which justifies the attribution to them of the belief that they had rights other than those assigned to them by law. But what Dover, on the most plausible construal, is concerned to deny is that Greeks ascribed to themselves non- legal rights not grounded in prior obligations, but possessed in virtue of some intrinsic characteristic of the possessor, i.e. something closer to the traditional conception of Natural Rights or the Rights of Man. I shall now try to show that, even if his assertion is interpreted in that way, the writings of Plato and Aristotle provide some contrary evidence.
In Plato’s Gorgias Callicles argues (483c–d) that while aggression and self-aggrandizement on the part of the strong against the weak are conven- tionally (νόμωι) regarded as wrong (ἄδικoν) and disgraceful (αἰσχρ´oν), ‘I think that nature itself shows this, that it is right (δίκαιoν) that the superior should have more than the inferior and the more capable more than the less capable.’ This is shown, he asserts, not only by the behaviour of animals, but also by that of men in every age and country. Such behaviour is in accor- dance with the nature of right (κατὰ φύσιν τὴν τoῦ δικαίoυ), and indeed with the law of nature (κατὰ νόμoν γε τὸν τῆς φύσεως), though not in accordance with the law we lay down (483c–d). So as far as the real nature of what is right, and the law of nature, are concerned, a stronger party who attacks a weaker (e.g. Hitler invading Poland in 1939) does what that nature and that law warrant or entitle him to do. That is to say, in the minimal sense of ‘a right’ (see above) he does what he has a natural right to do. But Callicles goes further; he maintains, not merely that the stronger has a right to attack the weaker in the minimal sense that it is not wrong for him to do so, but also in the stronger sense that the attempt to restrain him is itself a wrong against him.³ This further claim is implied by his highly pejorative ³ In making this distinction I apply one of the distinctions between various senses of ‘a right’ first formulated by Hohfeld [1920] and now accepted as standard. My ‘minimal sense’ corresponds to a Hohfeldian ‘bare liberty’, my ‘stronger sense’ to his ‘claim-right’. For details of Hohfeld’s distinctions see Waldron [1984], 5–7.
description of conventional moral education at 483e–4846: we take the best and strongest, he says, and tame them like lions, fashioning them (sc. in the way we want), enslaving them with spells and incantations to the effect that one must be fair, and that that is fine and good. But a man of sufficient