CHAPTER 4: SEMINAL CONCEPTS (PHILOSOPHICAL APPROACH)

THE REPUBLIC By Plato

Classical Natural Law
Plato states that law seeks to be the discovery of reality.

- He arrived in this position based on the following argument:

SOCRATES: What is law?
Companion: What kind of laws do you mean?
SOCRATES: If there is any difference between law and law in the very point of being law, or if
gold differs from gold in being gold.
- To this the objection is made that speech is not the thing that is
spoken, nor is vision merely the visible things nor hearing the audible
things.
- Law must therefore be distinct from that which is accepted legal.
S: How would the law whereby they are thus accepted be defined?
- Socrates is here raising what we are accustomed to think of in modern
terms as the problem of authority
C: In this sense, Law is the decrees and pronouncements of the community, or, to state in
generally, law is the opinion of the state.
- Plato expresses it elsewhere, when a judgement of society takes the
form of a public decision, it has the name law.

Socrates observes that perhaps this is right, BUT he does not believe that the conversation has
reached the essence of the matter.

Law is a good thing, and public opinion is true opinion, and true opinion is the discovery of
reality.

Socrates, therefore, concludes that Law seeks to be the discovery of reality, or more precisely, it
is the true reality with respect to the administration of a state.

Nevertheless, it is common knowledge that the laws differ on the same subject matter.
Perhaps, Socrates suggest, Law may not always achieve its ideal of discovery of true reality. Still,
he adds, no society believes that the just can really be unjust. It is thus a universal rule that
Realities are accepted as real; whoever fails to reach reality, fails it find the law.

C: However, we are continually changing our laws in all sort of ways.
S: Perhaps it is because you do not reflect that when we change our pieces of draughts they are
the same pieces.
Those who know always accept the same views; they will not write differently
at different times on the same mattes, nor will they ever change one set of accepted
rules of another in respect of the same matters.
If we see some persons anywhere doing this, we can say that they are mistaken
in what they describe law, then that law is mere appearance and ought not to be
accepted to be asserting a distinction between principles and rules.

In holding that law seeks to be the discovery of reality, Plato was defining its proper sphere in his
philosophical view of the world.
Platonic system the general theory of Forms and Ideas
o Plato offers another definition of law as opportionment of reason.
o What did Plato mean by reality?
He tentatively defined it as POWER, by which he meant that anything has real
existence if it is inherent in it the power of being affected or of affecting others, no
matter how small.
However, Plato remarks, the easy use of words and phrases and the avoidance of
strict precisions is in general a sign of good breeding; indeed, the opposite is hardly
worthy of a gentleman.
o When Plato asserted that law was the discovery of true reality, he appeared to mean that
the moral value of law increases as it approximates the ideal law which exists in the world is
reality.
o The philosopher in the Platonic system is one who knows true reality and who therefore
knows what the ideal thing to do is.
o If the philosopher is a king, he will prescribe laws for the state based upon the ideal
laws which he has perceived in the world of reality. They will therefore be the best
possible laws, and by following them, the members of the community will be
directed to the way of good life. Thus, the laws of a city, if they are of moral worth,
must be modeled upon the laws of reality so that they are the objective expression
in the state structure of the system ideas which alone represents the real.

There are obscurities in Platos view on the nature of law and gaps in his reasoning.
o He raised many problems which have been the staple juristic thought from this day down to the
present time.
o His first question, literally in the first sentence of the dialogue, still remains the first question
asked of itself by every school of legal though: What is law?
He did not distinguish between society and the state nor between ethics and politics.
There was only one place for the realization of the good life and that was in the
community.
o Plato prepared the way for natural law speculation and the perception of the ideal element in
law making.
He answers the commonplace distinction between nature and convention by setting in
opposition the theory of ideas which leads him to the conclusion that the Law is
discovered and not invented.
He puts forward the theory that law is an instrument of social control and thus suggests
the problem of end of law.
o He raises for later speculation the question of the relation between the state and law.
o The connection between law and morals was never absent in his thought. By suggesting that law
might be defined as the aggregate of laws, he anticipated the position which was taken by the
majority of jurist from the middle ages to the analytical jurists and beyond.
o He made clear the function of principle in the construction of legal system.
o He was, in all this, the first to exhibit the possibility of a general science of law.

The Function of Law

Three hypotheses are assumed as the basis of Platos thinking about law.
1. He held that end of law was to produce men who were completely good.
2. Human nature was capable of almost unlimited modification;
3. The method to be used was a benevolent dictatorship: philosophers must be kings or kings must be
philosophers.

As a philosopher, Plato could not accept anything less than complete goodness in men; he therefore rejected all
laws that did not incline to the end.
A bad law is a no law.

Plato was wedded to his belief in the malleability of human nature, and he had no doubt that the children would
accept the new laws even if the parents would not.

The doctrine of philosopher-king represents the principle that the government is an art or science as opposed to
the politicians idea of government by oratory under law.
That this doctrine is merely a further expression of his theory of ideal postulates and the combination of
intellectual and moral perfection it envisages has never been known on this earth and is priori fictional;
That it is a recognition of the demand that the State be ruled by the highest available intelligence, and
represents only the autocratic discretion by true shepherd, pilot, or physician;
And finally that in practice to everywhere yields to the reign of law and the consent of the governed.

Was Plato hostile to law?
There is no doubt that as a seeker after an ideal the Plato of the Republic preferred the adaptable
intelligence of the all-wise autocrat to the impersonality of the rule of law. As it appeared on this earth, it was the
despot of mankind and often forced men to do many things which were opposed to nature.
In the nature if things, law is aimed at the impossible. Through the medium of the fixed, inflexible general
laws sought to direct men and actions which were constantly changing and always different. In such system, it was
impossible to avoid the hard case.

Plato knew the simple truth, that the debating method of the courtroom, as distinguish from cross
examination, was perhaps least likely to lead to the discovery of truth.

In laws and Statesman, Plato had come to realize that on this earth benevolent dictatorship was a counsel of
perfection and that he would better propose a solution which had a possibility of realization.

Plato, therefore, believed that society should fall back to law as second best, perhaps even as something in the
nature of a pis aller, the supremacy of the rigid rule adapted to average man and the general situation and
incapable of dispensing equity in the particular case. He had no doubt whatever that fixed laws are to be preferred
to the personal administration of the unscientific ruler which the society usually receives.

Plato, thus, came to the final view on the necessity of law.
He insisted that it was indispensable; without it we were indistinguishable from animals.
Its noblest work was to make men hate injustice and love justice.
The laws are intended to make those who use them happy; and they confer every sort of good.
It was hard for men to perceive that the preoccupation of social science was with the community and not
with the individual; loyalty to the communitys interest bound a state together; the pursuit of the
individuals interest tore it us under.
He stated that it was hard for men to see also that the interests of both alike were better served by the
communitys prosperity than by that of the individual. There was not among us whose natural equipment
enable him both to see what is good for men as members of the community, and on seeing it, always be
both able and willing to act for the best.
Irresponsible power for mortal men always led to grasping and self-interested action, or as Acton was to
rephrase it later, all power corrupts and absolute power corrupts absolutely.
Law the generality of which could not always do justice to particular cases.

Plato represents completely his ideal concept of the state.
The state, for Plato, is a man on a large scale.
It is a perfect organism, indeed the most perfect unit.
It is a whole form of various individuals and solidly built, as a body is formed of several organs, which
together make its life possible.

Both in the individual and the State, there must reign that harmony which is obtained through virtue.

Justice is the virtue par excellence, insofar as it consists in a harmonic relation between the various parts of the
whole. Justice requires that each one do his part, in relation to the common purpose.
3 parts of faculties exist in the soul of the individual:
o Reason which dominates
o Courage which acts
o Sense which obeys
Similarly, in the State, three classes are distinguished:
o The wise, destined to dominate
o The warriors, who must defend the social organism
o The artisans and farmers, who must feed it.

As the individual dominated by reason, so is the State by the class which represents precisely wisdom, by the
philosophers.

The cause of participation in and the submission of the individual to the State is the lack of autarchy, the
imperfection of the individual, and his insufficient by himself. The perfect being which is sufficient unto itself,
which absorbs and dominates all is the State.

The purpose of the State is universal. It includes in its attributes the entire life of the single individuals.

The state has for its purpose the happiness of all through the medium of the virtue of all. It is to be noted, the
classical Greek philosophy, happiness and virtue are not antithetical terms, and rather, they coincide, because
happiness is the activity of the soul according to virtue, according to its true nature.

The State, therefore, according to Plato, dominates human activity in all its manifestations. Upon its rest the duty
to promote good in its every form. The power of the State is limitless. Nothing is reserved exclusively to the will of
the citizens. All comes under the competence and the intervention of the State.

The idea that every individual has certain fundamental rights on his own is entirely lacking. The state dominates in
absolute fashion. To render stronger and closer-knit the political organization, Plato suppresses social entities
which are intermediate between the individual and the State.

By Plato, at any rate, the personality of man is not adequately recognized.

In the Dialogue, Laws, Plato shows a greater respect for individual personality, always, however, that of free men
only, slaves excluded. Family and property are conserved, no longer sacrificed. The authority of the State,
however, remains nevertheless great and overpowering.

As to political forms, Plato criticizes both monarchy and democracy, wherein one part of the citizens commands
and the other serves. He proposes a sort of synthesis, a mixed government.