6 INTRODUCTION T O T H E PHILOSOPHY OF L A W

is the assumption that human conventions are in reality nothing but

fetters of natural "right." 7
Proceeding from similar premises, the Sophist Callicles proclaimed
the "right of the strong" as a basic postulate of "natural" as contrasted
with "conventional" law. Nature in animal as well as human life, he
argued, rests on the innate superiority of the strong over the weak;
human legal enactments, on the other hand, are made by the weak and
the many, because they are always in the majority. The laws attempt
to make men equal, while in nature they are fundamentally unequal.
The strong man, therefore, acts merely in accordance with physis if
he flouts the conventions of the herd and throws off the unnatural re-
strictions of the law.8
The "right of might" was likewise taught by Thrasymachus, who,
though he did not perhaps share Callicles' love of the self-sufficient
superman, was convinced that laws were created by the men and
groups in power to promote their own advantage. In a famous pas-
sage in the Republic, Plato puts into his mouth the following defini-
tion of justice: "I declare that justice is nothing else than that which
is advantageous to the stronger." 9 It follows that the just man is he
who obeys the laws serving the interest of the governing groups; the
unjust man is he who disregards them. But since the subject who obeys
the commands of the ruler is in reality promoting the good of another
and inflicting injury on himself, Thrasymachus submitted, the just man
is always worse off than the unjust man; it pays therefore to act un-
justly, if one can get away with it. "Injustice, when great enough, is
mightier and freer and more masterly than justice." 1 0

Section 2. Plato's View of the Law

Socrates, in discussing the meaning of justice with Thrasymachus in
Plato's Republic, is able to convince the listeners to the argument that
the definition of justice had been turned "upside down" by Thrasy-
machus.1 This indeed was the considered opinion of Socrates and his
great pupil, Plato (429-348 b.c.), of most of the teachings of the Soph-
ists: that the meaning of truth had been turned "upside down" by
them, and that their skepticism and agnosticism posed a danger to the

* Diels, II, 346. See also J . Walter Jones, The Law and Legal Theory of the
Greeks (Oxford, içj6), p. 38.
' See Callicles in Plato, Gorgias, transi. W . R. M. Lamb (Loeb Classical Library
ed., 1932), 483-484.
'The Republic, transi. A . D. Lindsay (Everyman's Library ed., 19J0), Bk. I. 338.
10
Id., Bk. I. 344.
1
The Republic, transi. A . D. Lindsay, Bk. I. 343. On Thrasymachus' view of
justice see the preceding section.
 GREEK A N D ROMAN LEGAL THEORY 7
well-being of society and harmony within the commonwealth. Socrates
set himself the task of overcoming the subjectivism and relativism of
the Sophists and of establishing a substantive system of ethics based
on an objectively verified theory of values. But he developed his ideas
solely in oral disputation with his Athenian fellow citizens; as far as
we know, he never reduced his teachings to written form. His philo-
sophical views are known to us exclusively through the dialogues of
Plato, who used Socrates—with whose ideas he was in basic agreement
—as the mouthpiece through which he enunciated his own philosophy. 2
In Plato's philosophy, a clear-cut distinction must be made between
his thinking about justice and his ideas about law. His theory of justice
was elaborate and forms a cornerstone of his philosophical edifice; it
also remained largely unchanged throughout his life. His ideas on law,
on the other hand, were peripheral in his scheme of thought and under-
went a substantial change in the latter part of his life.
Justice meant in Plato's eyes that "a man should do his work in the
station of life to which he was called by his capacities." 3 Every mem-
ber of society, according to him, has his specific functions and should
confine his activity to the proper discharge of these functions. Some
people have the power of command, the capacity to govern. Others
are capable of helping those in power to achieve their ends, as sub-
ordinate members of the government. Others are fit to be tradesmen,
or artisans, or soldiers.
Plato was deeply convinced of the natural inequality of men, which
he considered a justification for the establishment of a class system in
his commonwealth. He exclaimed:

Y o u in this city are all brothers, but G o d as he was fashioning you, put
gold in those of y o u w h o are capable of ruling; hence, they are deserving of
most reverence. H e put silver in the auxiliaries, and iron and copper in the
farmers and the other craftsmen. For the most part y o u r children are of the
same nature as yourselves, but because y o u are all akin, sometimes from
gold will come a silver offspring, or f r o m silver a gold, and so on all round.
T h e r e f o r e the first and weightiest command of G o d to the rulers is this—
that more than aught else they be good guardians of and watch zealously
over the offspring, seeing which of those metals is mixed in their souls; if
their o w n offspring has an admixture of copper or iron, they must show no
pity, but giving it the place proper to its nature, set it among the artisans or
the farmers; and if on the other hand in these classes children are born with
an admixture of gold and silver, they shall do them honour and appoint the

' On Socrates see Ernest Barker, Greek Political Theory: Flato and His Prede-
cessors, 4th ed. (London, 1951), pp. 86-99.
' This able definition of Platonic justice is found in Barker, p. 149.
8 I N T R O D U C T I O N T O T H E PHILOSOPHY OF L A W

first to be guardians, the second to be auxiliaries. For there is an oracle that

the city shall perish when it is guarded by iron or copper.4
T h e men of gold are to become the rulers in Plato's ideal common-
wealth; they must be philosophers (for until philosophy and govern-
mental power coalesce, there will be no end to evil in the state in Plato's
opinion), 6 and they will be endowed with absolute power, to be ex-
ercised rationally and unselfishly for the good of the state. T h e men
of silver are to be the military guardians of the state and are to assist
the rulers in the discharge of their governmental duties. T h e men of
iron and copper will form the producing classes. T h e first t w o classes,
in order to be able to devote their full energy to public duties, must
renounce family life and private property; all unions between men and
women in these two classes are to be temporary and to be regulated by
the state for eugenic ends—the production of the fittest stock. T h e mem-
bers of the third and largest class, on the other hand, will be permitted
to found families and to own private property under the strict super-
vision of the government.
Each class, says Plato, must strictly confine its activity to the per-
formance of its own specific functions. A rigorous division of labor
among the three classes is to prevail within his commonwealth. Each
citizen must fully discharge the duties which have been assigned to
him by the government, according to his special capabilities and qual-
ifications. T h e ruler, the auxiliary, the farmer, the craftsman—each
of them must keep to his own calling and not interfere with the busi-
ness of anyone else. " T o mind one's own business and not to be
meddlesome is justice." β
Plato realized that even in his ideal commonwealth disputes will arise
which must be decided by the public authorities. It is the theory of
The Republic that in deciding such controversies, the judges of the
state should have a large amount of discretion. Plato does not wish
them to be bound by fixed and rigid rules embodied in a code of laws.7
T h e state of The Republic is an executive state, governed by the free
intelligence of the best men rather than by the rule of law. Justice is
to be administered "without law." 8
The Republic, Bk. ΙΠ. 415.
4

'Id., Bk. V . 473.

"id., Bk. IV. 433. A further discussion and analysis of Plato's views on justice
will be found infra Sec. 47.
' Id., Bk. IV. 425, 427·
'See Roscoe Pound, "Justice According to Law," 13 Columbia Law Review 696-
713 (1913); 14 Col. L. Rev. 1-16, 103-121 (1914). Karl R. Popper, in The Open
Society and Its Enemies (Princeton, 1950), chs. 6-8, depicts Plato as the philoso-
pher of racialist totalitarianism. A different view is taken by John Wild, Plato's
Modern Enemies and the Theory of Natural Law (Chicago, 1953). See also Jerome
 GREEK A N D ROMAN LEGAL T H E O R Y 9
The reasons for Plato's unfavorable attitude toward law are stated
in his dialogue, The Statesman. "Law," he says there, "can never issue
an injunction binding on all which really embodies what is best for
each; it cannot prescribe with perfect accuracy what is good and right
for each member of the community at any one time. The differences
of human personality, the variety of men's activities, and the restless
inconstancy of all human affairs make it impossible for any art what-
soever to issue unqualified rules holding good on all questions at all
times." 9 Principles of law, he believed, consist of abstractions and
oversimplifications; a simple principle, however, can never be applied
to a state of things which is the reverse of simple. Hence, "the best
thing of all is not full authority for laws but rather full authority for
a man who understands the art of Kingship and has wisdom." 10
In the last decade of his life, however—perhaps under the impact
of the negative experiences which an attempt to set up the ideal Pla-
tonic commonwealth in the city of Syracuse in Sicily had produced
— 1 1 Plato contrasted the picture of the state governed by the free and
untrammeled rule of personal intelligence with that of another type
of state, in which the discretion of the rulers was limited by law. While
the "non-law" state was still upheld by him as the highest and most
perfect type of government, he admitted that its effective operation
required men of the highest wisdom and infallibility of judgment.
Since such men could only rarely be found, he proposed the "law
state" as the second best alternative for the governance of man. The
blueprint of such a state is drawn in great detail in his last work, The
Laws. N o longer are the governing authorities of the state free to ad-
minister justice without written codes and legal enactments; they are
to become the servants of the law, bound to take their directions from
the general enactments which are to guide the conduct of the citizens
without respect of persons.12

Hall, "Plato's Legal Philosophy," in Studies in Jurisprudence and Criminal Theory

(New York, IÇJ8), pp. 48-82; Carl J. Friedrich, The Philosophy of Law in Histor-
ical Perspective (Chicago, 1963), pp. 13-19; Huntington Cairns, Legal Philosophy
from Plato to Hegel (Baltimore, 1949), pp. 29-76.
' The Statesman, transi. J. B. Skemp (New York, 1957), 294b. In a later passage,
Plato says in a similar vein: "The legislator . . . will never be able, in the laws he
prescribes for the whole group, to give every individual his due with absolute
accuracy." Id., 295a.
10 là., 294a.

" T h e Sicilian experiment is described in Barker, pp. 113-116.

" S e e Plato, The Laws, transi. R. G . Bury (Loeb Classical Library ed., 1926),
Bk. IV. 71j. D. The communism of the ruling classes advocated in The Republic
is also abandoned in this work. The rulers of the state and their auxiliaries, like the
members of the producing class, are allowed to possess a family and private prop-
erty.
 INTRODUCTION T O T H E PHILOSOPHY OF L A W

Section 3. The Aristotelian Theory of Law

Aristotle (3 84-3 Ζ 2 B.C.) received his philosophical education at Plato's
Academy in Athens and was strongly influenced by the ideas of his
teacher. He departed from them in many respects, however, in his own
philosophy and tempered the Platonic idealism and rationalism by pay-
ing greater deference than his teacher to the actual conditions of so-
cial reality and the imperfections of men and institutions.
Aristotle's realism permitted him to see that a state organized in the
image of Plato's ideal republic would necessarily founder on the rocks
of average human nature. As Plato himself had come to realize after
the bitter experiences of the Sicilian adventure,1 "no human being . . .
is capable of having irresponsible control of all human affairs without
becoming filled with pride and injustice."2 Aristotle, avoiding the
Platonic route of drawing blueprints for the "perfect" as well as the
"second-best" state, postulated a state based on law as the only practi-
cable means of achieving the "good life," which, according to him, was
the chief goal of political organization.3 "Man," he exclaimed, "when
perfected is the best of animals, but if he be isolated from law and
justice he is the worst of all." 4
Rightly constituted laws, said Aristotle, should be the final sover-
eign; these laws should be sovereign on every issue, except that per-
sonal (that is, executive) rule should be permitted to prevail in those
matters on which the law was unable to make a general pronounce-
ment.6 In general, Aristotle held, "the rule of law is preferable . . .
to that of a single citizen." β Even though he agreed with Plato that,
if there was a man of outstanding eminence in virtue and political
capacity in the state, such a man should become the permanent ruler,7
he insisted that even such a "godlike" man must be a lawgiver, and that
there must be a body of laws even in a state governed by such a man.8
1
See supra Sec. 2, n. 11.
'Plato, The Laws, transi. R. G. Bury, Bk. IV. 713. C.
'Aristotle, The Politics, transi. E. Barker (Oxford, 1946), Bk. I. 1252b. See also
Ernest Barker's introduction to this volume and Friedrich, The Philosophy of Law
in Historical Perspective, pp. 19-26.
* The Politics, Bk. I. 12533.
'Id., Bk. III. 1282b; Bk. IV. 1292a.
'Id., Bk. III. 1287a. This is probably the first historical formulation of Harring-
ton's conception of an "empire of laws and not of men."
7
Id., Bk. III. 1284a and b. In the absence of such a "God among men," Aristotle
regarded a democracy based on the strength of the middle classes as the best form
of government. Bk. IV. 1295b and 1296a.
'Id., Bk. III. 1286a. This view seems to be contradicted by an earlier passage, ac-
cording to which "there can be no law which runs against men who are utterly
superior to others. They are a law in themselves." Id., 1284a. The context suggests,
 G R E E K A N D ROMAN L E G A L T H E O R Y II

"He who commands that law should rule may thus be regarded as
commanding that God and reason alone should rule; he who com-
mands that a man should rule adds the character of the beast. Ap-
petite has that character; and high spirit, too, perverts the holders of
office, even when they are the best of men. Law . . . may thus be
defined as 'reason free from all passion.' " 9
Aristotle, however, was conscious of the fact that in the administra-
tion of a system of law situations may arise where the universality and
rigidity of legal rules may cause hardship in an individual case.10 Aris-
totle proposes to cure such hardships by means of equity (epieikeia).
In his definition, equity is "a rectification of law where law is defective
because of its generality." 1 1 The law takes into consideration the
majority of cases, the typical and average situation, but it cannot con-
descend upon particulars; it is frequently unable to do justice in the
unique case. When such a case arises, the judge may depart from the
letter of the law and decide the case as the lawgiver himself would
presumably have disposed of the matter had he foreseen the possibility
of its occurrence.12
The famous Aristotelian distinction between distributive and cor-
rective justice will be discussed elsewhere.13 Aristotle makes a further
important distinction between that part of justice which is natural
and that which must be regarded as conventional. " A rule of justice
is natural that has the same validity everywhere, and does not depend
on our accepting it or not. A rule is conventional that in the first in-
stance may be settled in one way or the other indifferently, though
after having once been settled it is not indifferent: for example, that
the ransom for a prisoner shall be a mina, that a sacrifice shall consist
of a goat and not of two sheep." 14
While the meaning of the term "conventional justice" is quite clear

however, that Aristotle is speaking here of election laws and laws relating to the
distribution and terms of political office, which, in his opinion, should not be
applied to men who are "utterly superior to others."
'id., Bk. III. 1287a.
™ "Law is always a general statement, yet there are cases which it is not possible
to cover in a general statement." Aristotle, The Nicomachean Ethics, transi.
H. Rackham (Loeb Classical Library ed., 1934), Bk. V. x. 4.
11
Id., Bk. V . x. 6. The early English system of equity, in accordance with Aris-
totle's idea, was conceived as a correction of the rigid, inflexible system of the
common law.
u
Id., Bk. V. χ. 4-6. On the Aristotelian conception of epieikeia see also infra
Sec. 55.
13
See infra Sees. 47 and 49.
11
Nicomachean Ethics, Bk. V. vii. 1. In The Politics, Aristotle took the view
that the state belongs to the class of things that exist by nature, and that man is
by nature an animal intended to live in a state. See Bk. I. 1253a.
12 I N T R O D U C T I O N T O T H E PHILOSOPHY OF L A W
—the rule of the road being a typical example of it—the Aristotelian
notion of natural justice has been obscured by the passages immedi-
ately following the sentence quoted above, where Aristotle seems to
recognize a changeable part of natural law as well as an immutable
one. He even seems to suggest that permanent justice exists perhaps
only among the gods, and that within the range of our human world,
although there is such a thing as natural justice, all rules of justice are
variable. What Aristotle may have had in mind—although the text has
perhaps been transmitted to us in a garbled form—is that what might
be regarded by man as "naturally just" in a primitive society might
offend the common sense of justice in a highly developed civilization.
As men advance in controlling the blind forces of nature, in develop-
ing a stronger moral sense, and in gaining a greater capacity for
mutual understanding, their feeling of justice becomes more refined; it
may dictate to them certain forms of social conduct and intercourse
which, unlike the rules of conventional justice, are considered impera-
tive rather than accidental or morally indifferent. 15 He may also have
meant that natural law is variable in the sense that human effort can,
to some extent, interfere with its operation. Thus he tells us that "the
right hand is naturally stronger than the left, yet is it possible for any
man to make himself ambidextrous." 16 The cryptic way in which the
thought is formulated by Aristotle makes any attempt at genuine in-
terpretation a hazardous guess.
The question as to the legal consequences of a collision between a
rule of natural justice and a positive enactment of the state is left un-
answered by Aristotle. He clearly admits the possibility of an "unjust"
law, giving as an example an enactment by a majority dividing among
its members the possessions of a minority. 17 He also points out that
other acts of oppression, whether committed by the people, the tyrant,
or the wealthy, are "mean and unjust." 1 8 Aristotle also taught, as was
stated earlier, that rightly constituted laws (rather than laws per se)
should be the final sovereign. 19 But he does not give us his opinion on
whether bad laws must under all circumstances be enforced by the
judiciary and observed by the people.20

15
The author's own views on this question are stated in Sec. so.
18
Nicomachean Ethics, Bk. V. vii. 4.
"The Politics, Bk. III. 1281a.
"Ibid.
" S e e supra n. j .
* Plato, on the other hand, to some extent recognized a right—or even a duty- -
of resistance to unconscionable commands of the state in The Laws, Bk. VI. 770 E.
On the question of the validity of unjust laws see infra Sec. j8.