Greek Philosophers

Greek Legal Philosophers

The Greek philosophers led us to what we follow nowadays. There are huge core elements of Greek jurisprudence that are important because of their influence today. The most important role played by them is a systematic attempt to not deal with problems of good and evil (non theological) but to deal with ideals of rationality so that for the Greeks, natural law was to be found in absolute rationality – whatever that may mean. This is important because the notion of rationality became this key point first of all where there has been a return to natural law theories. There are two main points to remember in relation to the Greeks:

Plato and Aristotle

All of them, in particular Plato and Aristotle, the Greek philosophers believed that the law was a pedagogical instrument; legal norms should be put into existence in order to educate the public to what these aspiration goals of perfect rationality were. There are problems with this, not least who was/was not a member of the public. The basic notion however was that law would be used to educate the republic about what this aspiration was. This arose from ‘the philosopher king’ – Plato’s nation of governments was a system of philosopher kings: of monarchs who rule absolutely but who embody all of the best of humanity. Those who would rule would be people who are educated and would subsequently have access to power and government – through this education they would be educated into what was the substantive content of natural law, and when placed in positions of power they would be able to put into practice as the ‘is’ that which was defined by the ‘ought’; as such, ‘philosopher kings’.

OUGHT

As humans it is always going to be impossible to embody the ought. This of course has very strong echoes in postmodern deconstructive philosophies. As a result of this notion of aspiration and perfect rationality there was also a question over what we do in a case of law which falls short of this. What happens if the philosopher king falls makes an irrational law, one which embodies evil? If the law imposes upon you an obligation to do evil it is by definition a ‘bad law’ because it falls short of natural law. You cannot as a citizen accept an obligation in the form of law to do evil – it is not rational and it is evil. You are not supposed to use the law to do bad things, as it subverts the purposes and functions of both law and citizenship. The logical conclusion is that there is a higher duty to rationality to disobey a law which requires you to do evil. If you are the victim of evil law, you must look towards the writings of Socrates.

the Greek philosopher Socrates

You can do one of three things:

Try to use rationality in order to change the norm which falls short of that, e.g. through argument to change an irrational law into a rational one. By doing so you save yourself and make the gap between the is/ought smaller at the same time.
Exile. If for example you live in the UK and they have a law where all people who are faggots get shot in the head with an AK47, you can move to Sri Lanka instead.
Obedience. This is the option the Greek philosopher Socrates followed: you can accept what the law says and suffer the consequences. This is related to another set of natural law arguments that don’t come to us from the Greeks which says that you have a duty to actively disobey the law if it is a bad law.

The interesting things about these possible reactions are not that they are all essentially equal in so far as their ethical content is concerned – there is not one that is ethically superior to any of the others, nor is there a combination that is ethically superior to any other combination. They are all consistent with the notion of some kind of obligation to a higher rationality. The key difference is between laws which compel you to do evil which you must disobey and laws which would compel another to do evil unto you, which you may obey/flee/attempt to change. Despite what critics say about this, none of these ethical positions which are developed is necessarily dependent upon the type of regime/legal system in which you live. They are internally consistent with an understanding of natural law, which is to almost a total extent independent of the system of law in which you find yourself. So if you find yourself in a system of law which is not open to rationale persuasion and where this is a waste of time, this has no necessary impact on the ethical appropriateness of attempting to rationally persuade, nor does the fact that you live in a country in which it is impossible to flee. These options which are available to you if you are a victim of evil law are not dependent on the practical outcome or on the availability in real practical terms of any of these options. To act as proximately as possible to the ought is the appropriate thing to do.

Objection to Greek Legal Philosophy

Many people object to this for a variety of reasons: the strongest objection relates to the third point, because it is the Greek philosophical equivalent of a religious view of the glory of martyrdom – dying in the crusade. In this case, what you do is embody the notion of the ought; you become justice personified by obeying the law and sacrificing yourself. Many people argue that this is not the appropriate pedagogical lesson that citizens should give to other citizens, and that it is better/preferable to disobey. The Greeks also said that in the face of a bad law you have an obligation to disobey if the law commands you to do evil. Is this categorical distinction between your obligations in relation to bad law commanding you to do evil and your obligations in relation to bad law upon whom the consequences will fall rational? That theory of natural law has to come up with a theory that allows the victims to disobey. It is also important to note that legal positivism in its many manifestations does not necessarily disagree with arguments about obedience and disobedience and a duty to disobey a bad law/not to do evil in the name of law. Where positivism in its more sophisticated manifestations (e.g. HLA Hart) differs from natural law in this version is that it draws a distinction between something that is a duty informed by law and that which is informed by something else (ethics or morality); that is, if you are a positivist in the legal sense that does not mean that you cannot have a moral theory and it does not mean that you cannot have ethical values. What it means is that you cannot have a jurisprudential view of moral values. Positivists in the most recent sense would say that you may well have an ethical/moral duty to disobey, but you have to be willing to accept the consequences of your disobedience which will be imposed on you by the law. Hart is very clear when he says that law does not have a basic moral content the way that natural law says it does. This does not mean that human existence does not have a moral content: only that the two do not (not cannot) necessarily coincide. If you are a police officer and Parliament passes a law saying that all homosexuals have to be killed and your brother is homosexual your response will be “No! I won’t do it because he is my brother and that’s immoral!” you must realise and accept the fact that there will be repercussions for your actions. You cannot complain about this. Natural law theory at this unsophisticated level has the advantage of giving a justification of a command, externalising your actions and placing the blame on someone else.

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