Τρια κειμενα του κωστα στρατηλατη
- The public laws of the liberal archipelago: how far can minimalism go?
- Freedom, Right and Coercion in Kant's Doctrine of Right
- A Counterpoint to modernity: Laws and philosophical reason in Platos’s Politicus.
I
However diverging as to their analytic statements and normative considerations, theories of the liberal-democratic state are usually underwritten by an immanent and rather holistic idealization of the Political and its authority —at least this holds true regarding the standard, “pre-cosmopolitan” version of international relations[1]. “Immanence” here points, first, to the rather common conviction that social reality acquires its meaning within the borders of a political society, through processes of collective opinion-formation and democratic decision-making, and/or with reference to a hypothetical, original “social contract”. Be it as it may, a second, less explicit aspect of the aforementioned “immanence” is the following: In spite of their different beliefs, desires, and interests, individuals act on reasons which are considered to be ultimately public. This is so both in the sense (a) that practical reasoning can be conducted only within practices of communication and rational deliberation and (b) that the normative force of reasons rests with their connectedness to those practices. The latter entails a type of interaction that corresponds with what Christine Korsgaard has called “publicity as shareability”:
The public character of reasons is indeed created by the reciprocal exchange, the sharing, of the reasons of individuals … If these reasons were essentially private, it would be impossible to exchange or to share them. So their privacy must be incidental or ephemeral; they must be inherently shareable[2].
Contrasting to the conceptual immanence of a system, a sphere or even a multitude stands Kukathas’s Liberal Archipelago (henceforth TLA): “a society of societies which is neither the creation nor the object of control of any single authority … in which [society] authorities function under laws which are themselves beyond the reach of any singular power”[3]. In what follows I will try, first, to identify the arguments used by Kukathas in support of his “thick” conception of what I shall call the “public laws” of TLA. In the second part of my essay I will question the viability of such a conception, and I will argue that a stronger form of public realm, more committed to the regulative idea of “publicity as shareability”, is needed if we wish to be able to speak of a civil, “lawful” condition in TLA.
II
Even for Kukathas the members of a political society or a polity[4] converge on something: not some shared interest[5] or ethos[6], but a common “understanding of what is public and what is private within that polity”[7]. Nonetheless, the kind of political and societal interaction that underpins this understanding need not be a “thick” one. The existence of a political community can hinge on a “general” recognition of the “conventions that define it—conventions which identify the commonly accepted understanding of the public concerns of the polity”[8]—coupled with the adoption of the fundamental rights to associate and to dissociate[9]. The latter stand at the core of the normative considerations that underwrite Kukathas’s “thin” conception of the “public law” of TLA: The good societies are not the ones that are governed by any “single standard of social justice”[10], but those that are guided by the freedom of its members “to form, reform or transform the associations under whose authority they would live”[11].
Freedom of association is closely connected to the ideal of toleration, which brings to the fore the concept of “public reason”, though in a rather peculiar way: “Toleration is not important because it promotes reason”, but because it “upholds” or “honours” it —in other words, it is just “consistent with a respect for reason”[12]. For Kukathas, the interdependence between toleration and public reason is radically based on the existence (and our capability) for disagreement; a condition that does not allow for the elevation of public reason up to the state of dialogical relations that (a) would reflect the establishment of a single moral standpoint and (b) would render necessary an institutionalized public realm devoted to the production of collectively binding decisions[13]. In cases of conflict within the boundaries of a cultural association, the primacy of toleration—and of its moral-anthropological counterpart, that is individual conscience— means that one must choose the way of separation, if he/she wishes to do justice to the majority’s fundamental right of association[14]. Equally, with regard to inter-cultural relations within the larger society, toleration “is an undemanding virtue, since it requires little more than indifference to those who are, or that which is, tolerated”[15].
Such a lack of “demanding virtues” throws doubts upon the other aspect of the aforementioned conception of immanence; namely, the centrality of the notion of a political authority. Regarding this, Kukathas recognizes that a state, not being the “creator” or the “shaper” of societal formations, is nonetheless “a political settlement which encompasses these diverse associations”[16]. However, this “association of associations” is not some stable unity nor could it be represented as such[17]; its role as “an umpire, who attends to questions that inevitably arise in a society” is an “especially important one”, but this is only so as to “keep the game going”, not because it must in principle “determine the outcome of the game”[18]. There is no reason to concede any special authority to the political community, since it is no more valuable than the other “partial” associations of a liberal society. “The state has always posed a threat to individual liberty”, giving rise to tyrannical forms of oppression no better than the ones from which members of the so-called “illiberal” communities may occasionally suffer[19].
Of course, our world “is, first and foremost, politically rather than culturally organized”[20]. Nonetheless, there is no reason to see our current political associations as a shared enterprise, which furthers the already existing forms of social, cultural or other “unity”. Political authority is just “something which is the product of accident and which amounts to a conventional settlement which we should respect only to the extent that ‘innovation’ threatens to produce something worse”[21]. Political authority has a very weak moral value. This weakness discharges reason from most of its “publicity as shareability”. Naturally the question to be raised is whether Kukathas’s liberal theory can make up a politically sustainable form of liberal society, to be partially conceived as both a legitimate and workable legal community.
III
The argument goes as follows: If the norms of civility (or the “modus vivendi”) that Kukathas has in mind should be embodied in some form of public laws—albeit not necessarily ones that are constitutive of any particular authority[22]—, then one need not be a communitarian in order to maintain that these laws can be justified and, furthermore, impartially applied only in some context of justice[23]. By using the term “context” here I do not mean to link practical reasoning, and legal discourses in particular, to any substantial beliefs about the “good” of a given polity. A context of justification, more specifically, comprises of the procedures that lead to the adoption of a polity’s public laws, be it under the auspices of some constituent assembly, international congress or else. Application, on the other hand, means that toleration or any other abstract moral principle must take somehow the form of relevant rights —or, at least, the form of negative fundamental liberties. During this transformative processes (legislative settlements, administrative compromises, judicial decisions or public discourse) the principles of morality are being examined, concretized and, virtually, improvised in view of their legal and institutional appropriateness.
Now, legal discourses in general—that is, in their ability to gear towards the materialization and specification of any norm or abstract principle—cannot be carried out only in terms of the regulative power of brute political facticity. Any norm in its quality as such should be recognized (and at least potentially enacted) through some argumentative process, in order to acquire its deontological (not just imperative) meaning, in common with its binding (not just moral) force. The point here is that those processes cannot accomplish their task under the negative dynamics of “unwillingness” to understand the relevant arguments and to engage in a discussion or criticism of them. A law-governed society has to be ruled according to the demands of public reason; and even if reason does not command sympathy with the other members of community, it still demands to take the others seriously[24]. This also means that toleration should sometimes move beyond the level of individual conscience, and enter the realm of public reason, positively construed as politically oriented legal discourse. In other words, toleration should sometimes take the (“troublesome” for Kukathas[25]) form of dialogue and (democratic-egalitarian) participation in public debates.
This line of argumentation appears to render necessary a more “thick” conceptualization of public reason; one that stresses the importance of moral autonomy of individuals in their capacity as citizens; that is, in their capacity for public modes of autonomy. In terms of multiculturalism, this means that at a certain stage groups can and do exit from the condition of their (supposedly cultural, but in Kukathas’s terms “associational”) separation, and enter the public realm, however intense their members’ desire to be left alone might be[26]. But why this should be so? Why should the uninterested members of a political society be actively concerned with issues that call for legal regulation, especially when this regulation is to be brought about in the rather un-public forum of a court, and not in the “par excellence”, as it were, public forum of a Parliament?
Taking (a) job discrimination that is based on religious practices and (b) Amish children education as examples of each type of legal regulation (legislation and adjudication respectively), one could beg the question by invoking some theory of constitutional goods that should comprise the basic right to equal opportunities for occupation and for education, as the latter could be connected with the state’s interest in the promotion of individual autonomy. So[27] take the example of Sikh turbans: Why should every member of any particular society be interested in preserving the lives of the other members? The argument from religious autonomy (as a basic or constitutional good) does not provide a sufficient answer here[28]: it is exactly our concern for tolerating Sikhs’ religious choices that may preclude us even from promoting our “pro-helmets” opinions, insofar as the latter could be interpreted as a covert (not legally or constitutionally endorsed) aspiration to assimilate Sikhs in our traditional ways of life[29]. Anyway, why should we be interested in the relevant legal discourses?
IV
This question, taken to be an objection against “publicity as shareability”, could fall into three arguments. For instance, one could claim (a) that it is not necessary for the members of a political community to actively participate in the public debate surrounding the relevant legal discourses, since the latter do not depend on “any significant intentional relationship”, but only on a general and rather “thin” inclination “not to object to coexistence”[30]. Another objection would be (b) that the legitimacy of the outcomes of legal discourses rests not on any “impossible level of express commitment to the polity or the group”, but on a “general acquiescence with the actions taken by the leadership elites, and absence of resistance or rebellion or dissent”[31]. Finally (c), the claim could be that law does not acquire its deontological meaning and its coercive force through the power of the better argument; instead, it is the contingencies of civil association, its “pressures” and its “conventions” that produce the (rather fluid) justification of law and of its applicative formulations[32].
The last argument seems to beg the question by presupposing a positivist account of legal validity; an account, nonetheless, that does not usually provide an adequate answer to the question why one should conform to social conventions and not resist them. Insofar as the problem of positivism as a method for dealing with cases of real conflict cannot be dealt with here, the only thing to be said is that the objection (c) leads to an infinite regress[33] that gives more authority to power holders than it is usually assumed[34].
I am more interested here in tackling with the first two objections. In my view they signify a regress to a naturalistic account of law, both as a determining factor of social reality (that is the case of a) and as a legitimate way of political coexistence (that is the case of b). Furthermore, this account seems to run contrary to Kukathas’s support of the “fact” that our world “is, first and foremost, politically rather than culturally organized”[35]. More specifically, these arguments call forth a type of individualism that gives too much to the quasi-natural categories of history (argument a) and political force (argument b). If we accept that legal discourses are based merely on people’s contingent desire not to object the fact of their co-existence (a), we should also accept that the norms of democratic deliberation are just an accidental formation of history; one that can naturally (and easily) be subverted, as naturally (but not easily) it has been endorsed. If, on the other hand, we accept “elite democracy” as the general criterion for the legitimacy of judicial coercion, giving too much authority to our “leaders” (b), then we must accept the strong possibility not only of undemocratic but also of intolerant forms of political brutality. At least, this is so according to our liberal intuition that “the state has always posed a threat to individual liberty”[36] —not to mention our democratic intuition against a nationalistic version of state-centered authorship[37]. And it is exactly this liberal concern for resisting the “blind” forces of historical and political reality that makes, for my own account, a plausible argument in favor of a more “thick” conception of “publicity as shareability”.
I suspect that Kukathas would take the political risks that his theory seems to entail —namely, the probability to end up not with some libertartian utopia but with a lawless state of nature, or both of them in a variety of interesting (as usual) historical combinations. My suspicion stands notwithstanding the fact that in many points his arguments display a tendency not to support such a strong version of an anti-deliberative account of the legal-political system[38]. I assume that for his theory much depends on the ability of associations and their leaders to secure the paths of indirect legitimacy through adequate group representation in the processes of actual law-making conventions[39] —how could this happen without taking resort to “group rights” is another question, still. Following Kukathas’s argument, we see the prospect of a sustainable liberal society to rely on the competitive dimension of the “game” of politics and history —a game that somehow will go on. According to my argument, much depends on the ability of individuals to surpass the historical contingencies of their political co-existence and to end up with more inclusive patterns of democratic will-formation; ones that would secure as much as possible that the co-operative part of the game still goes on. And this “provisional security” is conditioned upon the willingness of individuals to share their concerns about the most important aspects of their social, cultural and political coexistence.
V
Let us now treat another question that could throw doubts on our argument for “publicity as shareability” with regard to the legal dimension of our coexistence: According to which criteria one could possibly delimit the kind of the affairs for which we may hold a legitimate concern and/or opinion? In other words, according to which criteria we could demarcate the realm of “publicity as shareability”?
My supposition will be that this objection can be answered by Kukathas’s definition of the political community itself: “A political community is essentially an association of individuals who share an understanding of what is public and what is private within that polity”[40].
According to the basic tenets of Kukathas’s “world-political constructivism”[41], we may read this so as to be asking the public itself to define the limits of its legitimate concerns[42]. This interpretation can be supported by two “negative”, so to speak, reasons. First, we should avoid the quasi-naturalistic account of the public/private distinction that emerges when we reduce the notion of the public to some a priori (to the community itself) entity so-called “general interest”[43]. Second, we should equally avoid the problematic relegation of public affairs to the level of state politics, insofar as the latter excludes a wide range of associations (social movements, “subaltern counter-publics” etc.) from what can count as public action[44]. This last remark brings our position closer to Kukathas’s anti-statism, as the latter was previously contrasted to the first aspect of “immanence” to be traced in current political theories of the liberal state[45].
Furthermore, there is a positive reason why the public itself should be the only author of its legitimate concerns; one that also takes into account Kukathas’s definition, relating it, though, to the notion of “publicity as shareability”: What the above definition entails, in my view, is the ability of the members of a political society to form, to reform and to sustain (at least within the ordinary limits of a historical constitutional settlement[46]) a common understanding of the rules governing their social co-existence. Those rules are essentially connected with the public/private distinction, insofar as the latter should be viewed rather as an ongoing adaptation procedure that constitutes a necessary condition both for individuation and for socialization of any human being under conditions of proximity. In other words, there cannot be any sustainable sense of individuality within the premises of sociability, if we are not able to inform our moral senses with an awareness of the limits of our own sphere of action.
This conclusion does not call for any communitarian metaphysics of identity. It still calls for a more “thick” notion of “publicity as shareability”: If one is determined to materialize a common understanding of what is public and what is private into some set of reasonable norms of civility, he must make room for its unfolding both in the intimate sphere of individual conscience and in the public sphere of collective action. The key point rests with the reasonable desire to sustain this common understanding, and brings the question back to the principled willingness to secure that the “game” will still go on. And this willingness requires something more than rights of toleration translated according to the fundamental norms of free association and dissociation. It requires a set of civil and political rights that would enable the individuals to communicate, to share their reasons, and to come to a common understanding about the conditions of their sustainable, even if historically contingent, coexistence. Which exactly are those rights or “public laws” remains an open question[47]. The only thing to be said here is that those “laws” should translate the public/private distinction in a way that will enable the individuals to understand the moral concerns that lie behind it.
“Publicity as shareability” is a necessary condition of the legal and moral discourses that render these rights an integral part of our political co-existence. At the same time, shareability of public reasons is an integral condition of our commitment to a politically sustainable form of our liberal societies. A minimalist account of the “public laws” of our liberal archipelagos cannot go so far as to deny these conditions.
[1] Nonetheless, the same impression could be ascribed also to those normative models of post-nationalism that advocate the ideal of a politically constituted cosmopolitan order –see e.g. David Held, “Cosmopolitan Democracy and the Global Order: A New Agenda”, in James Bohman and Matthias Lutz-Bachmann (eds), Perpetual Peace: Essays on Kant’s Cosmopolitan Ideal (Cambridge, MA: The MIT Press, 1997), 235-51; but also Jürgen Habermas, “Does the Constitutionalization of International Law Still Have a Chance?”, in The Divided West, ed. and trans. Ciaran Cronin (Cambridge, UK: Polity Press, 2006 [2004]), 115-93.
[2] Christine Korsgaard, The Sources of Normativity, ed. Onora O’Neill (Cambridge, UK: Cambridge UP, 1996), at p. 135.
[3] Chandran Kukathas, The Liberal Archipelago: A Theory of Diversity and Freedom (NY: Oxford University Press, 2003), at p. 22 (henceforth TLA).
[7] TLA, 172.
[8] Ibid.
[9] See in general his discussions in TLA, ch. 3.
[13] See TLA, 128-33. The reason why we cannot relate toleration to moral and public autonomy is, first, that we should give moral and political primacy to individual conscience: a “sense of propriety” (71) whose “voice” reminds us that we are “incorrigibly separated” even when enjoying a good collectively produced through our societal (cultural or other) interaction (68-9). The second reason relates to a rather political reading of toleration (cf. Bernard Williams, “Toleration, a Political or Moral Question?”, in his In the Beginning was the Deed: Realism and Moralism in Political Argument, ed. Geoffrey Hawthorn, (Princeton and Oxford: Princeton UP, 2005), 128-38), telling us that “[institutional and political] stability and social unity in this [Ralwsian] sense can only be bought at the cost of toleration” (133; see also 189).
[15] TLA, 23.
[16] TLA, 161.
[17] This is so (for Kukathas’s argument) even if one was ready to accept the notion of “publicity as shareability”; for even such a public realm is not co-extensive with the state (TLA, 134). Besides, even a political community that could be premised on the boundaries of a public sphere does not necessarily form the constitutive moment of a state, “since there can be territorially based communities, run by governments, but which are not states” (173). Moreover, and apart from this rather “functional” line of argumentation, a state cannot “be run by the agents of a universal class, nor pursue or represent its interests”, but is an agent among other agents: “the state is both one with interests of its own, and one that is comprised of, and dominated by, agents with particular interests” (214). This Marxist argument emphasizes the conceptual aspect of the separation of state from society, and is implicitly linked to the “heart” of Kukathas’s theory, which runs against the centrality of the notion of a political authority.
[22] We can imagine here international agreements, such as the European Convention of Human Rights or the United Nations Charters, which are not coupled with rules of legal enforcement –and this is at least true in the case on UN, insofar as state sovereignty forms an integral part of UN foundations.
[23] See Rainer Forst, Contexts of Justice, trans. John M. M. Farell (Berkeley and LA: University of California Press, 2002 [1994]), esp. ch. 5; and Klaus Günther, The Sense of Appropriateness: Application Discourses in Morality and Law, trans. John M. M. Farrell (NY: State University of New York Press, 1993 [1988]), esp. parts I and III.
[24] Cf. TLA, 23.
[25] TLA, 33-4, 157-9.
[27] This does not mean that I take the validity of the argument from autonomy as granted.
[28] The same holds for an account of the obligation to wear helmets as a legitimate public concern. This is so because the rationale behind this obligation cannot be adequately connected with the other drivers’ lives or road security, except for extremely improbable circumstances. Nor could the economic interests of the health care system or the security companies count here as relevant, because it is not necessary that an accident increases their costs —considering the higher probability of death, one could argue that not wearing a helmet actually diminishes the cost of an accident.
[29] But see Kukathas’s argument in TLA, 154-5.
[30] TLA, 210; see also 156-9, where Kukathas provides a set of arguments against the “democratic solution” to problems of oppression that arise in the context of discourses on “difference”.
[37] See, briefly, the contributions to Pablo De Greiff and Ciaran Cronin (eds), Global Justice & Transnational Politics: Essays on the Moral and Political Challenges of Globalization (Cambridge, MA: The MIT Press, 2002).
[38] When, for example, he attempts to apply the principle of toleration to actual cases of conflict, he seems to appeal to persuasion through dialogue as a best alternative to force (136). Moreover, his definition of public realm as the “product of interaction” among the various moral, religious, linguistic and cultural practices could count as a hint of a dialogic conception of the Political and its authority. But for Kukathas, “important though debate may be, it is not always an adequate substitute for demonstration through practice” (138). For him, the only adequate account of democratic deliberation would necessarily be one linked to non-interventionist practices of compromise coupled with the always valid option to exercise our freedom to “exit” (see TLA, 236f .)
[40] TLA, 171-2.
[41] See TLA, 198, and in general chs 5 and 6.
[42] Of course, if this conclusion is not to be tautological, we must accept that a public can define the limits of its interest in a way that secures the quality of this understanding as “shared”. The question whether “shareability” leads to a contractarian, an egalitarian or some other reading of the self-determination processes of a political community must be left open at this point, if we are to respect the independence of our argument for “publicity as shareability”.
[43] TLA, 171: “The existence of shared interests, thus, does not make for a community: a group of people standing at a bus stop may share an interest in the bus arriving on time, and in forming an orderly queue to board quickly—but this does not make it a community”. I would, nonetheless, disagree with construing the “orderly queue” only as a matter of shared interest. Sometimes order, in general, owes its existence not to interest or even to the mere need to co-ordinate our actions, but to a commonly shared belief in principles of fair action. Whether this “principled belief” can be assessed in terms of “moral sense” (TLA, 46f .), or something more is needed to provide an account of its existence, is still another issue, not to be examined here.
[44] On this subject see also Nancy Fraser, “Rethinking the Public Sphere: A Contribution to the Critique of Actually Existing Democracy”, in Habermas and the Public Sphere, ed. Craig Calhoon (Cambridge, MA: The MIT Press, 1992), 109-42.
[45] I should note, however, that for Kukathas the passage to post-nationalism seems to follow the rule of toleration in a way analogous to what happens at the level of state-politics (see his discussion in TLA, 27-9). I would agree with his thesis that “what keeps this [international] order liberal is the fact that there is no hierarchy under which the authority of the various states is subordinated” (28). But I would not agree that this demands so much as the “unmanaged” character of the international liberal archipelago (cf. TLA, 29).
[46] This is not to say that the demarcation issue can be resolved at once, that is, at the “constitutional moments” of any given political community. Bruce Ackerman has convincingly shown that constitutional politics take place also at more “invisible” (that is, less “revolutionary”) periods of a political community’s history; see Bruce Ackerman, We the People: vol. 1: Foundations, vol. 2: Transformations (Cambridge, MA: The Belknap Press of Harvard University Press, 1991). Of course, very important is the constitutional role of the Supreme Court of any given polity. This is so because judicial authority usually marks the final (not political, but still deliberative) moment of the affirmation or the revision of the limits between the public and the private, with regard to important issues of legislative policy that might come under judicial examination.
[47] For my answer to this question see Jürgen Habermas Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, trans. William Rehg (Cambridge, UK, Malden, MA: Polity Press, 1996 [1992])
FREEDOM, RIGHT, AND COERCION
IN IMMANUEL KANT’S DOCTRINE OF RIGHT
Abstract: Within the premises of a Kantian understanding of law and politics, coercion should be understood neither as a ‘necessary evil’ nor as a ‘freely accepted’ condition of our entrance into the law game. Coercion is a constitutive element of Right, one which we should particularly be aware of in relation to a conception of our freedom as ‘limited in its own idea’.
Key words: Kant’s theory of justice – Kant’s theory of external freedom – Kant, coercion, rights.
I
What is the nature of our commitment to the laws of the political community to which we belong?
Assume that laws are meant to protect your capacity to act freely, insofar as you do not infringe the equal freedom-claims of others. From one point of view, these ‘laws of freedom’, in their positive meaning as laws of a given polity, do certainly constrain your freedom of choice and of action. For one thing, you can see that all your choices and possible actions are somehow conditioned upon the deterring effect of legal sanctions. Nevertheless, from another point of view you may also notice that, at least as regards the prohibitive clauses of criminal laws, your aversion to being punished is not the only reason that makes you honour your legal duties. Your determination to observe the ‘laws of freedom’ hinges on your moral consciousness as well.
As human beings equipped with reason, we gradually acquire a sense of the moral goodness or rightfulness of our actions. As rational and moral agents, we also see that we are bound to enter a ‘law-game’[1] with rules that must be observed by everyone, should they wish to continue to be considered members of the game. We could therefore construe our acquiescence in the coercible nature of these rules as a kind of ‘necessary evil’; one that accompanies but does not constitute our entrance into the civil-political condition to which the ‘law-game’ alludes. Even this entrance does not diminish our moral freedom, we have to take into account that we cannot escape our legal obligations without facing a possible use of coercion by others who may wish, for whatever reasons, to see us discharging our legal duties.
Despite its explanatory power, however, this ‘necessary evil’ approach does not fully account for the cases in which our behaviour and judgment cannot be reduced to the threat of legal punishment alone; that is, the cases in which our moral consciousness gears us almost automatically to act responsibly, in a way similar to the one that legal prescriptions dictate, without feeling the need to assign our obedient behaviour to any ‘necessity’ relevant to the existence of the game, of its rules and of the other participants. The question is: In what sense should we take our commitment to the rules of the game either as an ‘evil’ or even as a (legal, political or else) ‘necessity’, as long as we are able to configure the justificatory ground of our commitment in terms of our reasonableness and our moral formation alone? To be sure, our ‘voluntary’ commitment alone cannot preempt such commitment on behalf of all other members of our political community. But are we obliged to construe our anticipation of—and the objective need for—universal compliance with the rules of the game as an ‘evil’?
Another, more sophisticated answer to our initial question could be the following: Legal coercion and its effects should be objectively understood as a structural condition of our necessary participation in the game. According to a rational reconstruction which we are by definition obliged to conduct, and on which our reason and our moral consciousness rest, our ‘entrance’ into the game should be understood neither as a personal need nor as an ‘external’ evil, but as the object of an act of representation which signifies the consensual foundations of political communities themselves. The proponents of such a justificatory and explanatory route would probably go on to stress our anticipation that the rules of the game must be designed so as to make possible, roughly speaking, equality between the participants and fairness in the procedures that will sometimes be called to play the role of the ‘umpire’. For one thing, if we do not anticipate equality and fairness, why should we have given our ‘consent’ to the game in the first place—whether this ‘place’ is hypothetical or it indicates the actual conditions of everyday life in democratic societies? Such rational reconstruction forms a legitimate answer to our initial question too.
Still, there are moments where it is only the threat of a fine that, say, makes us pay our taxes. Or, as Klaus Günther (1998, 250-1) has put it:
Coercion as a medium for overriding countermotives decouples the internal illocutionary link between communicative freedom and action motives […] Legal norms do not entail the obligation that they be adopted as one’s own reasons for future actions; they are not connected with the legitimate expectation to become a motive for the actor, as are those action norms that are reciprocally accepted by speaker and hearer on the basis of an affirmative position. Instead, legal norms become relevant to the sequel of interaction by virtue of their link with coercive force.
II
In their attempt to provide an adequate account of the justificatory grounds and of the role of juridical coercion within the premises of a democratic political community, important contemporary philosophers such as John Rawls and Jürgen Habermas have taken recourse to the philosophical thought of Immanuel Kant. Although my point here is not to assess these philosophers’ reading of Kant and of Kantianism in general, I may say a few words regarding what I perceive as a relative weakness in Rawls’s and in Habermas’s appropriation of Kant for the purposes of their overall philosophical projects.
Both Rawls and Habermas tend to underestimate the importance of Kant’s later ‘political’ writings, and more specifically Kant’s latest Metaphysics of Morals (1797). In Rawls’s extended lectures on Kant’s moral philosophy (2000, 143-325), quotations from this work are characteristically scant, and most of them are confined to its second part, that is, the Doctrine of Virtue. Besides, in the section that is devoted to duties of justice and of virtue (2000, 185-7), Rawls re-states the two axes on which the Kantian distinction between ethical and juridical duties is based (contents of motivation-form of lawgiving); his reading of this distinction, however, is conducted so hastily as to support even a ‘prudential’ understanding of the motives of merely rightful (as opposed to moral) action—an understanding that roughly corresponds with what we called the ‘necessary evil’ approach.
Habermas’s discourse theory of law and of democracy, on the other hand, rightly sets as one of its starting points the contrast between the Hobbesian and the Kantian notion of political justice, and Habermas references here are drawn from the Metaphysics of Morals more than from Kant’s earlier ethical works (Habermas 1997, ch. 1, sec. III; ch. 3, sec. I). Drawing on the moral concept of Right as expounded in the Doctrine of Right (the first part of the Metaphysics), Habermas proposes a two-dimensional reading of the validity claim that is inherent in juridical duties: juridical validity stems both from law’s social power and from its reason-based acceptability by legal subjects, which in their turn should be conceived both as citizens of a democratic state and as moral agents. However, Habermas crucially passes over one of the central components of Kant’s Doctrine of Right (the first part of the Metaphysics), namely the “property argument”. This argument, as we shall see below, underpins a peculiarly Kantian account of the reasons that justify the passage from ‘natural’ to civil condition and to Public—furthermore, to International and to Cosmopolitan— Justice. I shall not attempt to investigate here the reasons why Habermas felt the need to abandon the central argument of the Doctrine of Right—I may simply state that this abandonment could be explained in terms of Habermas’s anti-metaphysical philosophical predispositions overall (see Flikschuh 2000, ch. 1).
Be as it may, the present essay is premised on the conviction that the justificatory routes that we briefly expounded as possible answers to our initial question do not exhaust the range of possible arguments that one could retrieve from Immanuel Kant’s views on what we may call ‘external’ freedom and the ‘foundations of political justice’. In the following pages I shall attempt to throw light on what I perceive to be this view, through a re-reading of the Introduction to the Doctrine of Right (henceforth: IDR), with my secondary textual references being Kant’s earlier ethical works and the general Introduction to the Metaphysics of Morals (henceforth: IMM).[2] My focus will be on the exact relationship between Kant’s conception of ‘coercible’ Right and his concept of ‘external’ freedom. In sections III and IV I shall attempt to illuminate the differences between the moral and the political idea of freedom in Kant’s philosophical oeuvre. I shall also try to track the reasons why Kant had to take recourse to a strong (‘analytical’, in Kantian terms) connection of Right with the authorization to use coercion. In sections V and VI I shall closely examine two diverging interpretations of Kant’s views on Right and on ‘external’ freedom. Briefly, the first of them speaks of a peculiarly juridical incentive, which is built around our ‘pathological’ aversion to legal sanctions, whereas the second understands Right as an extension of Ethics to the realm of political relations. The aim of this essay is to contest these views and to support the possibility of a ‘third’ interpretation: one whose emphasis will be laid on coercion, conceived as a constitutive element of political-juridical relations and as a ‘negative’ condition of our political-juridical consciousness in general.
III
According to Kant, our practical freedom or autonomy can be understood as the self-legislating capacity of our basic moral power (‘the will’) in its pure form, that is, in its independence from laws of nature and from other ‘alien causes determining it’ (Kant 1785, 4:446). Such causes, forming a pathological determining ground for the formation of our choice (Willkür), are natural instincts, sensuous impulses and feelings (which give rise to the relevant desires, aversions and habits) or empirical interests (which arise out of sensible and thus subjective inclinations). Denoting the will’s ‘property of being a law to itself’, our practical or ‘moral’ freedom presupposes or entails[3] the idea of a law-like, practical necessitation of human activities through objective principles of pure practical reason; ones prescribing that our practical intentions be formed out of respect for moral law and in accordance with its empirically unconditioned, universally valid but peculiarly human, categorical imperative(s).
A first thing to be noted is that in the context of Kant’s ethical works, moral law and the relevant idea of freedom relate to our political and social action in a rather indirect fashion. Kant’s system of morality focuses on the inner grounding and formation of our practical intentions—our ‘subjective principles of action’ or ‘maxims’ (Kant 1788, 4:19; 1797, 6:213-4). Quite differently, in the IDR Kant delineates the concept of ‘external’ freedom as a relational capacity from the outset. Right is defined as closely connected with a ‘reciprocal relation of choice’ that is practice-oriented. ‘It has to do only with the external and indeed practical relation of one person to another, insofar as their actions, as deeds, can have (direct or indirect) influence on each other.’ (Kant 1797, 6:230; cf. 6:205) Correspondingly, the ‘Universal Principle of Right’ points towards a concept of freedom understood as the co-possibility of the free choice of each in view of the free choice of everyone.
Of course, Kant also announces that Right will abstract from the matter of choice. Hence, when he defines Right as ‘the sum of the conditions under which the choice of one can be united with the choice of another in accordance with a universal law of freedom’ (Kant 1797, 6:230), we should keep in mind that Kant is interested only in the ‘form in the relation’ between the agents’ choices (ibid), and not in the empirical observations and the subjective ends that the agents set as part of their maxims of and motives for action.
A second feature of external freedom to be stressed is that in the IDR choice connotes an inner faculty, though one that is by definition destined to be externalized or ‘executed’ in action.[4] The orientation towards action introduces the theme of a possible conflict between externalised choices, and this theme gives, in my view, the tone of the entire text of the IDR. Immediately after presenting his Universal Principle of Right, Kant refers to the case of a ‘hindrance’ or ‘resistance’ to the free exercise of choice that ‘does wrong’ to some agent and ‘cannot coexist’ with the universal laws of freedom (1797, 6:230). Besides, in §D of the IDR we learn that wrongfulness has to do with a certain ‘use’ of our freedom. We also learn that there is a kind of resistance called coercion, which we are authorized to use as a counter-action, in order to ‘oppose’ ourselves to these hindrances of our freedom that do not accord ‘with universal laws’ (1797, 6:231). Importantly, the possible legitimate character of this counter-action does not annul its ‘hindering’ effects—that is, the fact that coercion is still restricting our freedom or its factual manifestations at least.
Later on Kant introduces some hints about the possible object of conflicting (hindering and counter-hindering) choices. Thus, Kant states that, in contrast to the doctrine of virtue, ‘the doctrine of right wants to be sure that what belongs to each has been determined (with mathematical exactitude).’ (Kant 1797, 6:233) Whether the reference to mathematical exactitude expresses Kant’s belief in the harmonizing effects of Right or whether it alludes to the inability of theoretical reasoning to come up with a perfectly just distribution of material goods, this must remain an open interpretative question. Nevertheless, we can be quite sure that Kant was generally aware of the economic aspects of political justice.[5] At least, this is a reason that explains why he devoted the first and biggest part of his Rehtslehre to the problem of intellectual (that is, non-physical) possession of external objects of choice.
Now, bearing in mind that our relation to the objects of economic choice is radically imbued with the possibility of interpersonal conflict, we may also see why the doctrine of Right cannot rely on a purely ethical understanding of political interaction. That is, it cannot rely on forms of reciprocity that are confined to the communicative, co-operative or even affective dimensions of our moral socialization and ‘juridical’ politicization.
IV
To be sure, reciprocity between participants in communicative interaction and co-operative forms of socialization are necessary conditions of juridical relations. However, the effects of economic desiring on the construction of ‘rightful’ reciprocity are considerable enough to allow for an equation of practical reason with communicative-affective political agency. In the realm of Right, we should see agents as persons who are aware (even if not entirely conscious) of the limited character of their power to acquire and to possess external objects of the material world. And, with regard to the competitive dimension of the Rehtslehre game, we may also identify some of the considerations that might have led Kant to ‘locate the concept of right directly in the possibility of connecting universal reciprocal coercion with the freedom of everyone’ (1797, 6:232), quite independently of the derivation of the possibility of coercion from the ‘logical’ principle of contradiction at §D of the IDR.
In Kant’s ethical thought the moral worthiness of an action stems from, and only from, the purity of its incentive. An action can be qualified as moral insofar as it has been conducted out of respect for moral law, independently of the existence of other reasons or expectations that might equally well have stimulated us to act in the morally required fashion.[6] For Kant, the mere fact that an action accords with moral law, ‘irrespective of the incentive to it’, is simply an indication of its legality. In contrast to the latter, an action’s morality can be defined as ‘that conformity [i.e. with law] in which the idea of duty arising from the law is also the incentive to the action.’[7] Now, in the light of our previous reflections on the ‘competitive’ character of political justice, we may say that Kant is aware that the moral incentive is neither a sufficient nor a necessary condition of Right.[8] Accordingly, we may see why the Universal Principle of Right, representing a ‘principle of all maxims’, does not, however, require that our ‘legal’ incentive be a moral one. In fact, it does not require that our ‘legal’ action be founded on any particular intention. At least, this is what I understand when I read the following statement:
[F]or anyone can be free so long as I do not impair his freedom by my external action, even though I am quite indifferent to his freedom or would like in my heart to infringe upon it. (Kant 1797, 6:231)
I do not mean here that action in the realm of Right must necessarily be deemed as immoral. Not every action that is accounted for in terms of other than moral considerations counts as contrary to moral law; it can be a morally indifferent action.[9] In my view, Kant founds Right on such indifference about subjective practical intentions, in order to keep intact Right’s formal character:
[R]ight generally has as its object only what is external in actions, so strict right, namely this which is not mingled with anything ethical, requires only external grounds for determining choice; for only then it is pure and not mixed with any precepts of virtue. (Kant 1797, 6: 232)
Which are these ‘external’ grounds? Should we identify them with the deterring effect of the ‘authorization to use coercion’? These are the questions that will occupy me in the remainder of my essay. For the moment, I wish to throw some more light on my argument about the ‘background’ reasons that may account for Kant’s connection of Right with the principle of the possible ‘use of external constraint’ (1797, 6:232).
This connection constitutes a realistic but not empirical way to encounter the insufficiency of moral reciprocity in the realm of politics. One may think of coercion as the counterpart of the conflict-oriented nature of political-economic relations within the realm of Right. In fact, it is not a pragmatic consideration related to the actual experience of competition and of conflict that forms the condition of Right. Speaking of rightful conditions in general, Kant puts forward a concept of freedom as ‘limited to those conditions in conformity with the idea of it’ (1797, 6:231). The referred limitation does not consist merely in the relational ‘fact’. Indeed, Kant refers to the latter, but as a further and distinct limiting condition: ‘[freedom] may also be actively limited by others’ (ibid, my emphasis). Thus, ‘a pure concept [of right] that stills looks to practice’ (1797, 6:205) is not only conditioned upon the foundational facticity of human co-existence. It is also premised upon the conditions that render possible the transformation of human into political co-existence—with the latter to be understood both in its co-operative and in its competitive dimension.
We may track these conditions in Kant’s later reference to earth’s ‘spherical surface’ and to the ‘practical rational concept’ of an ‘original possession in common’ (1797, 6:262). Discussing this passage in the context of the interpretative issues that arise from the antinomy of Right in §7 of Private Right, Katrin Flikschuh understands the spatial image of the spherical surface as indicating a kind of non-subjective, non-motivational (and, thus, not susceptible to any modifications through the use of our will related capacities) empirical constraints, which form the unavoidable background conditions of our practical construction of the concept of Right (2000, 131-3). The specification of these thoroughgoing, empirical but unavoidable, conditions (which allude to but do not overlap with the conditioning of the innate right to freedom of each upon the equal right of everyone else) does not belong to the present context. The important thing to note here is that, whatever these a priori conditions may boil down to, they entail a ‘quasi-categorical’ duty[10] to enter into a political community—that is, to a ‘law-game’ that is bound by laws of external-political freedom—because there is no other way to define ‘what belongs to each’ (1797, 6:232), after the issue of Right has been raised at least by one among the members of a provisional community. Let me use the words of Bernd Ludwig (2002, 178-9):
Property (if once introduced) is justified, because there is no general right to resist the introduction of property. The rules of the Rehtslehre game apply to persons, and if only one of these persons claims a right to property, there is no right for others to resist this very introduction of property.
Thus, we can say that Right is grown out of two ‘negative’ conditions of our pure practical reason as it applies to practice: first, the impossibility of avoiding the introduction of some kind of property relations; and, second, the impossibility of avoiding entrance to the law-game, if we are determined to understand these property relations as provisionally ‘juridical’.[11] Authorization to use coercion is a manifestation of the impossibility to resist a property claim in any other way than through the means that this provisionally necessary ‘law-game’ provides.[12] And it is an impossibility that indicates a kind of ‘facticity’ other than the strictly reciprocal character of our political obligations: Entering into the law-game we should turn our practical reason to those general conditions of our community which are connected with the perspective of economic and ecological deprivation.
I shall return to the practical-political repercussions of this (both limiting and enabling) condition at section VII of this essay. For the moment, let me focus on the implications of the connection of Right with the authorization to use coercion within the premises of Kant’s system of morals.
V
Even if we may have given an explanation as to why Kant had to take recourse to a strong connection between Right and coercion, we still face a sort of ‘antinomy’ between the coercible nature of our legal obligation and the conception of freedom as the autonomous, self-legislating capacity of our practical reason. Are we finally bound to admit that in the realm of Right our autonomy is conditioned upon empirical premises (let say, the presence of an aversion to legal sanctions or some further all-embracing desire to promote strategically our enlightened self-interest, taking into account the barriers of legal justice)? If so, did Kant abandon both his moral idea of freedom and his formal definition of Right?
According to one line of thought, Kant was not simply indifferent to the existence of the moral incentive in the realm of Right. In fact, he replaced this incentive with a peculiarly juridical one—one that is closely connected with the coercible nature of legal duties (Willaschek 1997, 218-9).[13] Indeed, this argument can find strong textual support in part IV of IMM. Within the labyrinths of the various (and often incompatible) distinctions drawn here[14], we learn that what distinguishes Right from Ethics or Virtue is not so much a difference in the contents of their respective duties as a ‘difference in their lawgiving, which connects one incentive or the other with the law’ (Kant 1797, 6:220). The references to a mysterious, an ‘other’ incentive are frequent, and the ‘replacement’ thesis becomes all the more plausible if we combine these references with Kant’s statement that in the case of juridical lawgiving ‘the idea of duty must be drawn from pathological determining grounds of choice, inclinations and aversions … for it is a lawgiving which constrains, not an allurement which invites’ (1797, 6:219). Thus, we face here not only a distinction between two forms of lawgiving, but also the presence of a ‘juridical incentive’ whose role seems to be identical with the deterring effects of coercion in the formation of our ordinary legal experience.
The problem with this conclusion is that Kant’s theory of political justice is neither a needs-based one, nor can it be easily reduced to a psychological interpretation of human beings’ motivation for action. Kant’s theory of Right and of external freedom relations is a reason-based one (see e.g. Ludwig 2002, 170-1, and passim). As Flikschuh (2002, 202-4, and passim) has argued in detail, even economic desiring in the context of the Doctrine of Right arises from—or, at least, remains in keeping with—reason-based modes of practical reasoning. We may apply this view of desiring to the ‘aversion’ effects of coercion. In §E of the IDR Kant explains the role of the authorization to use coercion in terms of a ‘principle of its being possible to use external constraint’. It is this principle (not any specific authorization as such) that forms one of the foundations of his ‘strict right’ (Kant 1797, 6:232). Failing to recognize this difference, the ‘replacement’ argument ‘externalizes’ (one could say that it almost renders instrumental) the relation between the foundations of Right and the role of coercion. In other words, this view reproduces the image of moral agents whose individual interests are endangered as long as they enter the law-game.
I do not wish to deny that such a negative-psychological aspect of coercion is present in the Kantian text. However, I also believe that, when Kant assigns to juridical law-giving the function of constraint (and not that of an ‘allurement’), he is not only preoccupied with accommodating coercion into his system of morality. More than that, he wants to emphasize the difference between Right and Ethics with regard to their ‘constitutive’ elements, as it were. And he does so through inviting the moral psychologist to take into account, if he wishes so, even coercion’s pathological effects.
VI
According to a second line of thought, we should cast our emphasis on the all-encompassing character of ethical agency (Korsgaard 1997; 1996, 18-22). Metaphysics of Morals is a ‘philosophia practica universalis’ (Kant 1797, 6:221), and as such it is based on laws of freedom which, contrasted as a whole to laws of nature, are the normative foundation of all kinds of ‘principles of application’ (1797, 6:214-7). This argumentative line stresses the possibility of acting ‘from duty’ even in the realm of Right. Juridical lawgiving must at least allow for—even if not presuppose—an incentive other than ‘aversion to’ coercive measures. Of course, it is still the case that Right cannot ‘expect, far less demand’ that I make my juridical obligation a ‘maxim’ of my action (1797, 6:231). However, we must accept that the moral incentive still indicates a viable option for juridical relations—albeit not a very probable one.
This view has the merit that, by stressing the moral foundation of Right, it can also account for the ‘categorical’ character of the universal law of Right on which the binding authority of legal obligations depends.[15] The ‘ethicist’ interpretation also preserves the unified character of practical agency, and saves the individual from a sort of ‘moral schizophrenia’ (Flikschuh 2002, 194)—one that could ensue from a somewhat Hobbesian overstatement of the differences that separate the ethical from the political dimensions of our practical agency. Nevertheless, this view typically takes a step further in telling us that we can ‘take law into our hands’ (Korsgaard 1997). This is meant to say that law’s authority ultimately rests with a kind of ethical evaluation (or even a political decision) that players of the law-game should make. According to Korsgaard, in the extreme cases where the force of law is used as a means for destroying the moral ideal of justice (despite and against the existence of a republican constitution, which forms the ‘public-law’ counterpart of rightful relations), the moral foundation of Right issues in a duty to revolt. Should we obey the rules of the game? Or, alternatively, should we attempt to change them even contrary to their provisions? Both alternatives are open insofar as we hold fast to the all-encompassing decrees of Morality-Virtue; for ‘it is a duty of virtue to do the duties of justice from the motive of duty’ (Korsgaard 1997, 317 with her reference here being a passage from the Doctrine of Virtue).
This view has been rightly criticized as one that subordinates politics to ethics (Flikschuh 2000, 95-6; 2002, 193-4; Willaschek 1997, 220-4). To be sure, the danger here lies in the possibility of some kind of ‘social regulation of individual conduct’ (Wood 2002, 9-10; see also Ludwig 2002, 163). In general, overstating the moral foundations of Right may result in gliding over the differences that separate the modes of ethical lawgiving from the modes (and conditions) of political self-legislation. Besides, such tendency seems to neglect Kant’s various warnings not to confuse Right and Ethics. In §E of the IDR, for example, Kant notes that, although strict right is ‘based on everyone’s consciousness of obligation in accordance with a law’, we should not assume that this consciousness may serve as an ‘incentive to determine his [i.e. a moral-legal agent’s] choice’ (Kant 1797, 6:232) Writers like Korsgaard or Rawls who focus on Kant’s moral thought tend to overlook such warnings, probably because they conceive coercion as a derivative (somehow-secondary-but-necessary) aspect of autonomy in the latter’s juridical manifestations. According to the ‘ethicist’ view in general, the possibility of coercion ultimately depends on our moral consciousness, which alone can explain why we should give our consent to this aspect of our participation in the ‘law-game’. The moral idea of freedom is translated into an ideal of participatory consciousness and of reasoned consent.
I do not wish to deny the credibility of this interpretation as a version of Kantianism under deliberative democracy circumstances. Nevertheless, such an interpretation runs contrary to Kant’s warnings. In terms of my argument thus far, I believe that the latter should be connected with an invitation to encounter rather than to surpass the economical-competitive (moreover, the ecological) aspects of political justice. It is precisely these aspects that make consent a perspective too demanding for political-juridical relations; a perspective, furthermore, that tends to hide rather than to elevate the constitutive role of coercion in the formation of these relations. Besides, as we saw earlier, the hindering effects of coercion cannot be eliminated even when the ‘hindrance’ forms a legitimate means for ensuring the accordance of external freedom relations with the universal principles or laws of Right. The authorization to use coercion seems to be a necessary condition of these relations not in the sense of an inescapable evil but in the sense of a constitutive element of our political relations.
The question now is: How are we to construe this element if not as the source of an empirical motivation to action, such as ‘aversion’? Moreover, how are we going to account for the tensions between the moral and the political foundations of Right without destroying the basic insights that underpin the moral idea of freedom—that is, independence from ‘alien’ causes and ‘autonomy’ of ‘pure’ will? In the last part of this essay I shall attempt to provide an interpretative argument that may help us escape from both horns of this dilemma.
VII
We are conscious of our membership in a political community, even if this consciousness cannot always be translated into the language of moral autonomy—for one thing, we are not always expected to give an account of our actions in terms of the morality of their maxim. Consciousness of the moral foundations of our political status still permeates the realm of Right. However, the manifestations of this consciousness should not be connected with any individual person or with any individual act that this person conducts when she faces any of her specific legal obligations:
Strict right rests instead on the principle of its being possible to use external constraint that can coexist with the freedom of everyone in accordance with universal laws … Right and authorization to use coercion therefore mean one and the same thing. (Kant 1797, 6:232, my emphasis)
And, as Flikschuh nicely has put it (2002, 193), ‘it is because outward conformity of action does not require inward conformity of the will that the principle is externally enforceable.’
Coercion is a condition of our consciousness as members of a political-juridical-economical community in general; that is, a condition that need not take the form either of an individualist-psychologist explanation of our entrance into the ‘law-game’ or a structuralist relegation of Law to Ethics. The rules of the law-game do not rest with any subjective principle of action; however, they still constrain us. They do this in a more abstract and general way than ‘aversion’ to punishment: we are ‘constitutionally’ (i.e. as political agents) incapable of claiming a right to anything more than our biological integrity, insofar as we are not prepared to take consciousness of our juridical status, assuming at the same time the burdens of such consciousness.[16] The law-game is premised on this notion of freedom ‘as limited in its idea’, and this ‘ideal’ limitation expresses itself through the possible (in principle) use of external constraint. This last possibility accompanies the expansion of pure reason in the realm of political practice, but it does so not in the manner of a ‘necessary evil’ or an ‘external’ condition of Right. It is a ‘necessity’ closely connected with the subject-object orientation of our political coexistence, which (orientation) necessitates a reconsideration of the economic as well as ecological limits of our autonomous choice and action. As a mere exercise of thought, we might think ourselves as fugitives of the law-game. Even then, our reason would tell us that juridification of violence should be provisionally expected, inasmuch as any other being would be in a position to force us into entering the law-game again—and insofar as the earth has a limited (‘spherical’) surface.
Giving our consent to this limiting and enabling condition of our political existence appears to be a much more promising perspective for safeguarding the moral idea of our autonomy. Unfortunately, pure practical reason alone cannot offer us a warrant of the conditions necessary for a consensual community of equals. In other words, such a warrant lies beyond the grasp of the reason-related capabilities of individuals like us. Even if the rules of the game are provisionally scheduled so as to make autonomous political self-legislation a legitimate (but provisional as well) demand of reason, there is no one that can promise us, in terms of an apodictic proof, that moral autonomy will be an eternal feature of our actual political coexistence. Right cannot be based on a psychological norm dictating that acknowledgment of the benefits of juridical reciprocity be the only way to secure affective relations between ‘peaceful’ game-players. The only thing that reason can tell us is that our external-freedom relations are built around the possible use of coercion, which can be legitimate only if it accords with the universal laws of freedom. The political-juridical dimension of this ‘thoroughgoing reciprocal coercion’ must not be seen as separated from its economical-ecological aspects. In fact, it is the latter, understood as a generally unavoidable condition of our political experiencing and reasoning, that provides us with a good a priori foundation of the strong link between political Right and the possible use of coercion.
Consistency between the actual exercise of external freedom and the precepts of morality depends after a certain extent on political contingencies, and it falls within our political responsibilities to contrive means for ensuring that a moral use of our external freedom will be a persistent feature of our political coexistence, more than a mere contingency. However, as regards individual actions, there is always an open possibility that some agent will act on incentives other than respect for morality. The pressing presence of others, as coupled by scarcity of economic-natural resources and by the constitutive inability of our political judgment to neglect the constraints that arise out of property-based relationships, makes this possibility more than visible. Of course, there is also the possibility that our incentives will be moral ones, broadly speaking. But in general, juridical relations must be considered from the viewpoint of our juridical consciousness, as it arises out of the concept of freedom as ‘limited in its idea’.
A negative implication of this view is that it does not eliminate the tension between (a) the idea of an autonomous moral personality and (b) the conception of this personality as it enters into the realm of right. This tension reflects, in my view, the tenuous relationship between Kant’s moral and political philosophy. On the other hand, though, we must construe this tension as one that does not endanger the unconditioned authority of the Universal Principle of Right. The latter prescribes that our external action is in accordance with a universal law, and this means that the determining ground of our action should be somehow related to awareness that our juridical reciprocity is in general based on laws of reason and of freedom. The external manifestation of such awareness could take the form of the following regulative thought: even when fear of punishment affects our motives, we should be able to link this ‘pathological’ ground with the presence of an imperative of pure practical reason ‘as it is applied in practice’ (Kant 1797, 6:205)—that is, the universal law of Right, as it practically affects our political reasoning and agency. This may be the positive aspect of my view: an invitation to act taking into account that the universal laws of Right are in principle premised on laws of reason and of freedom. However, we cannot dictate or even expect that every other member of our political community will see his political-juridical obligations this way; for Right derives from ‘a lawgiving, which constrains, not an allurement, which invites’ (Kant 1797, 6:218). This means, among else, that the possibility of coercion cannot be precluded in principle, and this principle signifies one of the defining traits of our political as well as juridical civilization.
If this is the only answer that we can give to our initial question, it means that external freedom can be in all respects consistent with Kant’s system of morality only at the expense of an ‘ethification’ of political justice. However, consistency in our reading of Kant could be preserved through another interpretative pathway: we may think that, even if the moral idea of freedom cannot be identified with external freedom as limited in its idea, the limitation is only a negative one. It does not dictate how we are to perceive our political-juridical relations, but only why these relations cannot rely on pure practical reason alone. Insofar as the latter ‘looks to practice’, it is impossible for us to found our political co-existence on morality alone. However, the possibility of moral action in the realm of the Political cannot be precluded in principle as well.
The coercible nature of our political obligations and the moral perspective of political agency are not mutually exclusive possibilities. Or, better, both possibilities cannot be precluded in terms of pure practical reason ‘that still looks to practice’. We have here a double ‘negative’ condition of our freedom politically conceived. Can we say that we also face an (irresolvable as it is) ‘antinomy’ of ‘juridical’ reason? Unfortunately, we will never be able to tell.
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Ludwig, Bernd. 2002. Whence Public Right? The Role of Theoretical and Practical Reasoning in Kant’s Doctrine of Right. In Kant’s Metaphysics of Morals: Interpretative Essays. Ed. Mark Timmons, 159-83. New York: Oxford University Press.
Rawls, John. 2000. Lectures on the History of Moral Philosophy. Ed. Barbara Herman. Cambridge, MA: Harvard University Press.
Willaschek, Marcus. 1997. Why the Doctrine of Right does not belong in the Metaphysics of Morals. Jahrbuch für Recht und Ethik 5: 205-27.
------. 2002. Which Imperatives for Right? On the Non-Prescriptive Character of Juridical Laws in Kant’s Metaphysics of Morals. In Kant’s Metaphysics of Morals: Interpretative Essays. Ed. Mark Timmons, 65-87. New York: Oxford University Press.
Wood, Allen. 2002. The Final Form of Kant’s Practical Philosophy. In Kant’s Metaphysics of Morals: Interpretative Essays. Ed. Mark Timmons, 1-21. New York: Oxford University Press.
* Doctor of Law, Department of Law, Aristotle University of Thessaloniki. This paper was presented to the Permanent Seminar of Social Sciences “Kosmas Psychopaedis”, organised by the Kapodistriako University of Athens, 11 December, 2008, Athens.
[1] The idea of a ‘law-game’ is drawn from Ludwig (2002), who speaks of a Rehtslehre game.
[2] All references to Kant’s works throughout the present essay are going to be to the volume and to the page number of the original Academy Edition, as found in the margins of Gregor’s translation.
[3] This ambivalence points to one of the most serious interpretative issues regarding Kant’s moral philosophy.
[4] See Flikschuh 2002, 192. In the context of the IMM Kant makes an interesting distinction between the external and the internal use of choice, arguing that in both cases the laws of freedom must be ‘internal determining grounds of choice, although they should not always be considered in this respect.’ (1797, 6:214, my emphasis) This reservation opens the space necessary for a strongest connection of choice with action, and this is a defining feature of the moral theory of Rehtslehre.
[6] See the first two parts of the Groundwork (Kant 1785), also Kant 1788, 5:72f. Crucial is here the regulative idea of a ‘highest good’, which amounts to our capacity to represent our actions as connected with the form of duty itself (see e.g. Kant 1785, 4:401).
[7] See Kant 1797, 6:219, 214; 1785 4:397f; 1788, 5:71f. According to the most plausible interpretation, the ‘mode’ of our conformity with law cannot immediately be tracked down in our actions, e.g. through the identification of a decisive moment in the course of our evaluations. The opacity of our inner grounds of choice renders possible only an indirect judgment about the morality of our actions. On this issue see Willaschek 1997, part III.
[8] I am following here Willaschek (1997), although (as I shall argue below) I disagree with his ‘replacement thesis’—that is, the thesis that Kant replaced the moral with a peculiarly juridical incentive.
[9] I owe the distinction between immoral and not-moral action to Katrin Flikschuh.
[10] Cf. Ludwig 2002, 179n. 28: ‘categorical imperatives may state conditional duties.’
[11] This is another interpretative issue that will not occupy me here.
[12] I should remind here that it is ‘authorization’ and not coercion as such the element that is derived by the concept of Right—actual use of coercion would be an anthropological fact (cf. Willaschek 1997, 218n.21).
[13] Willaschek’s argument is guided by the idea that ‘the realm of right is based on a principle (the universal principle of right) which is not just a specific version of the moral law, but rather an independent, basic law of practical rationality.’ (1997, 223) Nevertheless, in a more recent essay Willaschek changes his earlier ‘independence’ position, arguing now in favour of a view that casts doubt on Right’s prescriptive character (2002, 86-7). I cannot follow the evolution of Willaschek’s argument here.
[14] I may state briefly the ones that I consider more relevant to our context: a) The distinction between the objective necessity of an action (which is contained in the prescriptive content of a law) and the subjective determining ground of our choice that is related to this action; b) the distinction between two types of all ‘lawgiving’: one that is ethical, including the moral incentive in the prescription of the law, and one that is juridical, admitting ‘an incentive other that the idea of duty itself’ (Kant 1797, 6:219); and c) the seemingly co-extensional distinction between external and internal duties.
[15] The preservation of the categorical character of Law is the major preoccupation of Höffe’s approach to the system of the Metaphysics of Morals; see Höffe 2002; 2006, part II; and for a short statement Höffe 1989. From another point of view, nonetheless, Höffe’s approach favours a ‘prudential’ reading of Right (Flikschuh 2002, 194).
[16] Speaking in terms of the ‘conceptual framework’ of transcendental idealism (Ludwig 2002), we may notice that, although we are allowed to think ourselves as independent from the laws of natural causality, we should also be aware that our reason is ‘constitutionally incapable of answering questions which it is constitutionally unable to ignore’ (Flikschuh 2000, 58). In my view, one of these questions is related to the postulate of freedom ‘as limited in its idea’; a postulate ‘that is incapable of further proof’ (Kant 1797, 6:231).
A COUNTERPOINT TO MODERNITY: LAWS AND PHILOSOPHICAL REASON IN PLATO’S POLITICUS*
Costas Stratilatis
Doctor of Law, Department of Law, Aristotle University of Thessaloniki
Postal address: 37, Eakou Street, GR- 544 54 Thessaloniki
e-mail: stratil@otenet.gr
tel.: 0030 6973209548 / 0030 2310933998
Abstract: The modern rationalist idea of rule of law, and modern rationalism in general, owe much to Plato and to Platonism. However, Plato’s stance towards the laws of the city is all but clear. On the one hand, we have the seemingly ‘totalitarian’ Plato of the Republic, a dialogue which defends the absolute authority of philosophical wisdom over all prescriptions that are ensuing from existing cities and their laws. On the other hand, we have the ‘more liberal-democratic’ Plato of the Laws, a dialogue which promotes a combination of philosophical wisdom with rule of law. This ambivalence as to the issue of laws permeates one of the most enigmatic of Plato’s works, the Politicus, a dialogue that was written after the Republic and before the Laws. The present essay rejects both the ‘totalitarian’ and the ‘liberal-democratic’ understanding of Plato’s stance towards the laws of the city. The author defends the thesis that laws in the Politicus do not constitute a static Form that works against or with philosophical wisdom and/or democratic self-legislation, but a factor that generates a series of inescapable philosophical and political ambivalences. This approach corresponds with many of the findings of the so-called ‘post-modern jurisprudence’. That is, it brings to the fore the immanent aporias of philosophical dialectics, it emphasises the irreducible un-decidability between violence and consent as foundational elements of the law, and it stresses the irreducible adiakrisia (the inability to discriminate) between the poisonous and the healing effects of laws as regards the attainment of conditions of social and political justice.
Key-words: Plato – laws – violence – consent - Statesman – post-modern jurisprudence.
Our modern societies keep displaying a profound trust in their positive legal systems (that is, in parliamentary law-making procedures, in the ability of administrative bureaucracies to specify abstract rules into efficient public policies, in the ability of the courts to reach conclusive judgments as to the resolution of interpretative conflicts, and, last but not least, in the ability of citizens to apply uniformly the strictures of law into all aspects of everyday life). This trust persists, despite the repeated failures of modern legal systems to deliver conditions of social and political justice or even conditions of civilised human co-existence. Even after such historical experiences as the legalised rise of nazism or, closer to our own era, the legalised cruelties of USA anti-terrorist politics, law is still believed to be the necessary and sufficient condition for safeguarding justice in all aspects of life (individual as well as social and political, national as well as international, secular as well as metaphysical).
Liberal-democratic law is taken as a self-sufficient mechanism that will finally prove able to banish from our modern societies such ‘abnormalities’ as crime and violence, violations of human rights, political oppression, social unrest and social conflicts, economic crises and defects of financial markets, environmental risks, even excesses of religious fanaticism in the form of ‘terrorism’. Conceived as external to these ‘pathologies’, the various regulative regimes that materialise law take the imaginative form of surgical instruments which are appropriate for saving any ‘patient’ from any kind of ‘illness’, provided that they are entrusted to prudent politicians who are democratically elected and who can also be controlled through the various ‘checks and balances’ of our liberal-democratic societies (high courts, media and the press, public opinion, now ‘international markets’, etc.)
The legal-democratic self-confidence of our modern societies owes much to modern rationalism and to the rationalist idea of historical progress towards more enlightened forms of political co-habitation. Modern rationalism, in its turn, usually seeks for its origins looking back to Aristotle, to Plato and to the ancient Greek world in general. Of course, when considering the case of democratically adopted laws, such recourse to Plato seems to be very problematic, especially if the survey is conducted from the liberal standpoint of our ‘open societies’. This is so because of Plato’s notorious ‘totalitarianism’, as tracked in the most famous of his dialogues, the Republic (see, of course, Popper 2003). However, at the last stages of his philosophical career, Plato also wrote the Laws, a dialogue that promotes a political regime which combines rule of philosopher-kings with rule of compulsive and persuasive laws and which, in effect, blunts the authoritarian edges of the Republic. According to the traditional reading of the development of Plato’s political thought, even if the Laws does not signify the total abandonment of the Republic’s radical utopianism, it nonetheless constitutes a ‘pragmatic’ turn of Plato’s philosophical interests towards the issue of viable or ‘second-best’ constitutions, i.e. for constitutions that are designed for cities which can actually exist in place and in time (see e.g. Barker 1959, pp. 183-184; Guthrie 1978, pp. 333-334; Klosko 2006, pp. 218-219; cf. Laks 1990; Schofield 2006, pp. 173-185). This ‘pragmatic turn’ may give us an explanation why Plato now advances rule of law to the detriment of the absolute authority of the Republic’s philosopher-kings. Such a turn may even make us see that Plato’s stance towards laws of the city was not so inimical from the outset (see Hall 1956; Morrow 1960, pp. 577-584; De Romilly 2002, pp. 179-201). We should not forget that it was Socrates himself in one of Plato’s earlier dialogues, Crito, who ardently refused to escape from his prison disobeying the laws of Athens, arguing that the infringement of laws constitutes in all respects a wrongful act, even for the ones who reasonably disagree with them (Crito 50A-54E). Thus, we should perhaps be ready to accept a reading which favours a newly even if unexpectedly democratised Plato. In other words, we should be ready to re-invent a Plato who stands closer to the interests, to the concerns and to the self-confidence of our modern liberal-democratic societies.
The first aim of this essay is to rebut both the ‘totalitarian’ and the ‘liberal-democratic’ understanding of Plato’s stance towards the laws of the city. In my view, both alternatives do injustice to one of the richest of Plato’s works, the Politicus, a dialogue that was written after the Republic and before the Laws. As Ι shall argue, this dialogue is permeated by non-eliminable un-decidability as to the question of whether the science-art of statesmanship includes law-making processes (ones which are necessarily to be coupled with the obligation of citizens to abide by the laws of their city as given to them by the political experts and/or by the sanctified democratic procedures, the Assembly). According to the interpretative thesis that is going to be defended in the present essay, the ideal figure of laws in Plato’s oeuvre does not constitute a static Form that works against or with philosophical wisdom and/or democratic self-legislation, but a factor that generates a series of inescapable philosophical and political ambivalences.
Laws indicate the inescapable aporias of every philosophical and/or political discourse. Considered from the perspective of philosophical inquiry, the value and even the sustainability of a law-based society hinges on the almost impossible success of an enormous philosophical-dialectical task: that of ‘separating’ the ones who really posses the art of statesmanship from the ones who belong to the class of treacherous and ignorant ‘imitators’, the sophists. As Ι shall argue, the ‘success’ of this philosophical-dialectical ‘separation’ should not be understood as the achievement of a final and definitive identification, but as clarity of understanding within a context of non-eliminable similarities and differences. With regard to their political nature, laws constitute a kind of pharmakeia (cf. Derrida 1972) rather than an one-dimensional destructive or corrective instrument. Laws are necessary even if potentially self-defeating remedies for the frailty of humans and for the complexity of their practical affairs. Encapsulating and even sometimes aggravating the ‘pathologies’ which they are supposed to cure, laws carry a poisonous as well as a healing force for individual characters as well as for societies and even for the (democratic) institutions of the city themselves.
Besides, the enforceability of laws is ‘not an exterior or secondary possibility that may or may not be added as a supplement to the law’ (Derrida 1990, p. 925). Thus, we may trace an original-foundational moment where justified and unjustified authority, illegitimate violence and legitimate power, dikē (justice) and eris (dispute) etc. cannot easily be ‘separated’ from each other (Derrida 1990, p. 927). We meet this moment in the Laws, where Plato mentions a possible mixture of persuasion and violence in all legislative practices (722B), and then he goes on to equate the simple and pure form of law with coercion, separating it from the law’s ‘preludes’, the legislative preambles which aim at reason- and education-based persuasion (722D-723A). We meet the same point in the Politicus, albeit in a less clear manner. Politicus is a dialogue that is mainly conducted by a Visitor or a Stranger—a non-eliminable estrangement or a différance in the heart of politico-philosophical inquiry. The argumentative moves of this dialogue are motivated by an ever returning ambivalence as to the question of whether the ruling of the city should be based on citizens’ consent or on the dictatorial authorship of the Statesman. Moreover, this ambivalence is assigned, through the mythical narration of the Stranger, to a broader cosmological fluctuation between autonomy (in the form of a self-governed cosmos to be imitated by self-governed cities) and heteronomy (in the form of the age of god-shepherds or even in the form of an unknowable fate that embraces every existent thing, gods and humans alike). This fluctuation, in its turn, is finally encapsulated into the themis (justice as well as punishment) that is inherent in the genesis of all things.[1]
Vindicating our share in this all-encompassing ontological background and destiny, themis, we may be able to reinforce the stabilising tendencies that keep humans united in cities and in civilised societies. At the same time, however, we must all be aware that in this vindication always lies the danger of actualising the un-knowable and inescapable forces that lead our societies to ‘imitative’ forms of justice and of civilised life in general, to forgetfulness (lēthē) and to decay, to death.
Reading ‘Plato and the laws’
Opening the text of the Politicus we read:
VISITOR/STRANGER: Law could never accurately embrace what is best and most just for all at the same time, and so prescribe what is best. For the dissimilarities between human beings and their actions, and the fact that practically nothing in human affairs ever remains stable, prevent any short of expertise whatsoever from making any simply decision in any sphere that covers all cases and will last for all time. I suppose this is something that we agree about?
YOUNG SOCRATES: Certainly.
VISITOR/STRANGER: But we see law bending itself more or less towards this very thing; it resembles some self-willed and ignorant person, who allows no one to do anything contrary to what he orders, nor to ask any questions about it, not even if, after all, something new turns out for someone which is better, contrary to the prescription which he himself has laid down (Politicus 294B-C, Rowe’s translation).[2]
What lies in a philosophical text? Is there a method-science of interpretation with its own laws? Do these laws, if existing at all, allow us to achieve a kind of balance between the text and the philosophical concerns and interests of the interpreter himself?
According to a certain school of thought, we should cast our emphasis on the meanings that the author intended to communicate through his/her ‘speech-acts’ within a specific socio-political, intellectual, cultural etc. context (see the essays of Skinner in Tully 1988). Following this methodological guideline, let us briefly be reminded that Athenians of Plato’s times, and ancients Greeks in general, were especially proud of their laws (De Romilly 2002). Laws were perceived as protection against tyranny, and this was so irrespectively of their form (written or unwritten) and their origins (divine or human). On the other hand, we are all aware of Plato’s enmity towards Athenian democracy and its self-legislative activities. Thus, we may choose to read the text under consideration as an instance of Plato’s notorious attack on the laws and on the democratic political constitution of his fellow Athenians.
This is the reading that is employed by Castoriadis (2002) in his lectures on Plato’s Politicus. Although the French-Greek philosopher rejects the characterisation of Plato’s political vision as ‘totalitarian’, he entertains another typical premise of our modernist understanding of Platonism, namely the assertion that Plato’s intention in general is to ‘find and fix in place a regime that will stop history, that will stop the passage of time’ (p. 137). Regarding the laws of the city, Castoriadis claims that Plato constructs his argument against them through a false absolutisation of the antithesis between universality in the form of law and concreteness of the specific circumstances under which laws are interpreted and applied. According to Castoriadis, Plato’s intention is to conceal the possibility of an intermediary solution, one that would affirm the ‘twofold existence of a rule and of a certain gap in relation to this rule’ (p. 144), opening up the prospect of a city altering its laws through participation of its citizens. At least in the Politicus Plato ‘doesn’t see the necessary participation of each in the concretization of law’ (p. 143).
Notwithstanding the modernist tones of Castoriadis’s critique against Plato’s supposed intention to ‘freeze history’, the French-Greek philosopher reveals an important aspect of Plato’s ‘communicative intentions’ as regards the issue of laws. However, there are other important aspects, lying not only in the Politicus but also in the other dialogues that make reference to the same topic, namely Crito, the Republic, and the Laws. We find such a systematic review of the relevant passages in a jurist’s essay that was written many decades ago. Hall (1956) concludes that, when we attempt to clarify Plato’s stance towards laws, we must keep in mind the distinction between legislation, which ‘is a constructive, educational process’, and adjudication, which refers to the implementation of laws, and which ‘is only remedial’ (p. 190).[3] Following this distinction, we may notice that even in the Republic Plato is not totally hostile to laws. His relative neglect for them, as expressed in his verdict that ‘good men need no orders’ (Rep. 425D-E), could be construed as referring to laws in the form of a supplement to virtuous judgment, and not as an opposition to the idea of legislation as such. Thus, we may not preclude a reading of Plato according to which rule by philosophical reason and rule by law can be reconciled, as two parts of a coherent philosophical-political vision that may not include any intention to freeze at least the ‘legislative history’ of ideal cities.
We could reach a similar conclusion adopting another interpretative standpoint. Following a ‘contextualist’ approach, De Romilly sees in Plato a possible sympathizer—albeit a very critical one—of the ideals that laws stand for within the long nomos-physis debate of ancient times (2002, Chap. IX). Of course, the Platonic turn from law (nomos) to justice (dikaiosynē) in the Republic signifies a preference for the latter over the former. Plato, like other contemporary critics of law, such as Isocrates, saw in legal-political institutions an inappropriate tool for achieving justice, virtue and happiness in the city (De Romilly 2002, pp. 182-186). Nevertheless, Plato never departed from the nomos camp broadly conceived. He was the writer of the Laws, where he assigned to them the name of reason: ‘we should run our public and our private life, our homes and our cities, in obedience to what little spark of immortality lies in us, and dignify these edicts of reason with the name of law’ (Laws 713E-714A). Therefore, for Plato laws might have represented not only an incarnation of conventional wisdom, but also ‘an intermediary between the world of ideas and this of human affairs’ (De Romilly 2002, p. 195, my translation).
This last remark renders well an important objective of Plato’s research in the Politicus, as we shall see later on. However, if Plato has not been so inimical to laws, at least at the last stages of his philosophical career, then this might mean that he finally approved of the killing of his beloved Socrates by the Athenian democracy, as Rowe suggests (2001, p. 67). Following this thought, Rowe rejects the assumption that Plato’s thinking about politics and about the Athenian democracy must necessarily have developed over time, possibly towards a more compromising position.
In keeping with Rowe, I think that such a ‘developmentalist’ reading is problematic. Indeed, such a reading looks like an ‘appeal to the modern mind of a newly democratised Plato, finally beginning to see sense after the excesses of the Republic’ (Rowe 2001, p. 74). Nevertheless, I do not consider my agreement with Rowe as necessarily conducive to an interpretative argument like the one of Castoriadis. That is, I do not see why Plato’s relatively stable enmity towards existing Athenian democracy, along with his all-encompassing wish to save his teacher and his philosophical utopia, must necessarily mean that he was also entirely negative to the idea of laws as such. Even if representing a threat to philosophical life, the long and winding road of laws is not an a priori precluded one, as it were.
Besides, in our attempt to defend the seemingly necessary thesis of ‘Plato not-having-killed Socrates’, many things depend upon our reading of ‘Socrates’. According to Rowe, Socrates ‘might suppose that he and every citizen has a kind of contract to obey the city’s (democratic) laws, but from the little evidence we have he disbelieved in the correctness of the fundamental principle of Athenian democracy, that “he who wishes may speak”’ (2001, p. 75). Despite Rowe’s overall intentions, this reading casts liberal-modernist light on the issue of ‘Socrates and the laws’. It translates this issue into a classical topic of modern ‘social contract’ theory, calling for a liberal re-articulation of parrhēssia in the legislative process with some form of immunity (or ‘rights’) for those who remain silent, not participating in the self-legislative processes of the city.
In my view, the problem is not one of expanding parrhēssia into the terrain of philosophical ‘silence’ or ‘immunity’. Our focus should be cast elsewhere. Being killed by the laws of his city but practically accepting their authority until the end, Socrates symbolizes the ultimate rationalistic aporias of Law (cf. Douzinas and Warrington 1994, pp. 135-136). With regard to laws of the city, Socrates never argued that they and unhindered philosophical inquiry represent two necessarily opposing ideals. What the philosopher attempted to show was that the moral question (‘how should a good man live’), although a practical one, cannot be decided by the institutional apparatuses of the city (cf. Coleman 2000, pp. 61-62). Of course, the philosopher cannot live, be educated and offer his philosophical services outside the city and its laws. This is what Socrates’s attitude in the Apology and in Crito teaches us (see Schofield 2006, p. 25), this is what we may derive from the middle books of the Republic (376C et seq., 521C et seq.), and this is what the Politicus will furthermore vindicate. Laws and institutions, educational practices, also myths, ‘noble lies’, tragic poetry and hostile citizens, these all are necessary existential preconditions for the philosopher-kings, if the latter are to live as such, to deploy their transformative capabilities in contrast with sophistry, and possibly to rule the city, paying back the education that they received from it (see Stratilatis 2008). This is so even if or, rather, precisely because citizens sometimes kill philosophers and some other times render them useless, transform them into lunatics who just lose their time staring the skies (see Rep. 484A et seq.)
In any case, the previous reflections demonstrate that, though fruitful in expanding the interpretative domain, the ‘speech-act’ approach multiplies the blind-spots of the text. Nevertheless, one can dispense neither with the author nor with his/her text and context. In the case of Plato we can take one thing for granted. Plato wrote dialogues, and in our attempt to read any of these dialogues we should certainly take into account their discursive aims, as they arise from within the lines of the text and of the context. The latter is here determined by the fact that Socrates’s trial and conviction took part just the previous day. Thus, we may take seriously the fact that the philosophical question is actually a political one, and the reverse: ‘the very questions that were decided on the basis of opinion by the jurors are now taken up in philosophical reflection’ (Miller 2004, p. 2).
Radical ambivalence or un-decidability
Let us begin our reading from the passage where Plato and the Visitor first unleash their critical attack on laws. We are at the stage of the dialogue where the Visitor and Young Socrates, after having distinguished the Statesman from the lower productive classes of the city, undertake now the difficult task of ‘separating’ him/her from the ‘queer crowd’ of ‘chameleons’ and of other ‘impersonators’, that is, the sophists and their students, the actual politicians of the city (291A-C). The key premise here is that, if the interlocutors really want to define the art of statesmanship, then the inquiry should avoid taking into account a series of misleading indicators which are used by those politicians so as to blur the distinction between true statesmanship and sophistic strategies. Such misleading indicators are the standards that ordinary people employ in order to define their constitution (politeia): ‘whether one, few or many rule, whether it be rich or poor, whether it rule by violence or consent, whether it have or lack a written code of laws’ (292A).
The Visitor suggests that we reject such popular standards as a whole (293A). A first reason why this must be so is implied by his argument that the art of statesmanship can be possessed only by very few amongst the citizens (292E-293A)—thus, popular beliefs about government, endorsed as they are after the inducement of sophists, do not offer us a safe basis for distinguishing the true marks of statesmanship. However, the key argument seems to lie elsewhere, in the use of an analogy or an example. According to the Visitor, consent and persuasion are irrelevant for the purpose of identifying the Statesman, in the same way as the opinions and even the permission of the patients are irrelevant for the purpose of judging the doctor’s ability to heal them (293A-C). But if consent of the governed is really irrelevant, then it seems that almost everything is permitted to the Statesman, even ‘putting some of the citizens to death or banishing others’, even ‘lessening the citizen body by sending off colonies’ or ‘bringing people in from other cities and naturalising them so as to increase the number of citizens’ (293D). Of course, this huge discretionary power is to be conditioned upon the scientific premises of the art of statesmanship; it is also conditioned upon the prospect of a prosperous city and, last but not least, upon a mysterious notion of justice: ‘so long as they act to preserve it [i.e. the city] on the basis of expert knowledge and of what is just, making it better than it was so far as they can’ (293D-E). In any case, despite these conditions, the true constitution is the one that is not defined by the popular standards, and the Statesman should still be posited above all prescriptions ensuing from the laws of the existing cities (293E-294A). The discussants are then called to examine the correctness of a constitution that does not take the commitment of the Statesman to the laws of the city as granted, and it is here where the critical remarks against laws make their appearance (293E-294A et seq.)
What is important in the present context is that the ‘attack on laws’ participates in a larger inquiry, which assesses the importance of popular standards for the difficult task of ‘separating’ the Statesman. This is not to deny the relative independence of the inquiry into law—such independence is underlined by the fact that this inquiry is introduced only after one of the rare objections of Young Socrates in the dialogue.[4] It means, however, that the ‘communicated’ meanings should be posited in a larger context, and their critical force must be taken not as absolute but as relative to the discursive point at hand. The latter deals with the case of a Statesman who vacillates between assuming a dangerous discretionary power, on the one hand, and ruling through persuasion, encapsulating his expertise into the strictures of some law, on the other hand.[5]
As a matter of principle, the Visitor does not reject the possibility that legislation could somehow be included among the duties and the capabilities of the Statesman (294A). But he also points out a series of reasons why the latter’s authority cannot and should not be relativised by any kind of Law, even the laws that He could have previously endorsed. First of all, ‘practically nothing in human affairs ever remains stable’ (293B). This argument, which points to the myth (see below, in the next section), is supplemented by noticing that ‘perfect accuracy’ cannot be attained through a form (law) that is by definition premised on invariability and uniformity (295A). Individuals differ as to their physical and psychological conditions, and the example of gymnastic trainers who cannot ‘make their prescriptions piece by piece to suit each individual’ reveals another important reason why laws are inadequate tools for ruling human affairs (294D-E). Besides, ‘dissimilarities’ of human activities (294B) and of contractual relationships (295A) make it all the more difficult for a single human art to assume the task of regulating the affairs of the city as a whole.
These doubts undermine not only the case of a democratic regime that is governed by laws which are adopted by citizens themselves (Athens), but also every possible form of statesmanship which could be based on general, all-encompassing rules, procedures or dictates (whether the latter are political-institutional or philosophical-scientific). And it is here, at the site of this radical aporia, where the negative force of the inquiry into laws starts to decrease and a political alternative makes its first appearance. Even if through a negative argument, the possibility of laws, and with it the possibility of political self-limitation and of persuasion, have been discursively actualised. These possibilities are projected onto the figure of an absent doctor, one whose eventual return remains eternally in question (295B-296A). Were this doctor to return in the form of a ‘possessor of the art of writing down laws’ (295E), then the citizens should perhaps feel the need to permit him to make whatever legal or institutional changes he would judge as appropriate, regardless of whether he could actually convince all of them or not (296A-B). The issue of violence/consent returns once again, but the Visitor is now more receptive to the popular underscoring of its importance—‘perhaps’ is his answer to the relevant question of Young Socrates (296B). A thorn of radical ambivalence has been settled within the innermost recesses, the ‘political heart’ of the dialogue.
Let us for the moment surpass some steps of the argumentation, and proceed immediately to the positive dialectical moment, where the Visitor introduces the famous ‘second-sailing’ of Plato’s political thought, bringing to the fore another set of ambivalences and, finally, a surprise in favour of the laws of the city! At 297C the Visitor calls Young Socrates to consider something difficult for the latter to grasp. All other constitutions are ‘imitations’ of the one that is based on the Statesman’s expertise. But how are these imitative polities ruled? Here citizens do not dare to contravene the laws, if they do not wish to face the most severe penalties, even death (297D-E; cf. 300A-301A). Of course, in these cities laws may have been ‘established on the basis of much experiment’—they may have been adopted after the advice of counsellors, which may have persuaded the populace to pass them (300B). However, after their adoption the established set of laws is to be obeyed almost blindly (300B-C, 300E-301A). This so because in these cities the Statesman is going to be absent most of the times and citizens do not possess his/her art, so they should abstain from changing the written code of laws as it is given (300C-D, 301A). If, on the other hand, citizens possessed the art of statesmanship, then we would say that their constitution is not an imitative one, but the true constitution of the Statesman himself (300D-E). However, it is highly impossible to see the Statesman and his constitution emerging in any time and in any visible form. ‘We must take things as they are, however, and kings do not arise in cities in the natural course of things in the way the royal bee is born in a bee-hive’ (301D-E).
How could Plato ever avoid the gap that separates rule of generalising law from rule of individualised wisdom? Does he now abandon his radical utopianism in favour of crude pragmatism, of absolute commitment to the laws of the city? Which reasons, necessities or myths lie behind such a surprising dialectical move (or rather ‘leap’)? And which is the political value and the true meaning of the ‘tracing’ or ‘imitating’ alternative that is suggested by the Visitor? These are the questions that I am going to deal with in the remnant of this essay.
Aporias of rationalist logos
Dialectics
Let us move back in time, to Athens of 399 B.C. Just a day after his trial Socrates participates, for the most part silently, in a long conversation. The topics of this conversation revolve around the distinction between the Sophists (recall that Socrates was accused of being one of them), the Statesman and the Philosopher. Socrates’s companion includes a Stranger, that is, an anonymous Eleatic Visitor, and a group of mathematicians, younger and older ones: Theaetetus of Athens, Theodorus of Cyrene, and Young Socrates, with the aid of whom the Visitor will attempt to accomplish a difficult philosophical and political task: to finish off a ‘clear and precise’ portrait of the statesman and of his expertise. The discursive aim as a whole is ‘to bring our minds and our souls to conceive’ or to ‘stamp the way’ to a definition of the Statesman, in other words to trace the ‘political pathway’ (258C ). Later on the Visitor and Young Socrates will agree that this quest takes place not only for the sake of the definition of the statesman itself, but also ‘with the aim of becoming better dialecticians’ (285D), ‘training ourselves to give and to understand a reason-based account of every existent thing’ (286A).
A first question to be raised is concerned with the nature of the dialectical exercise itself. Are we going to ‘construct’, to ‘paint’ or simply to ‘refresh’ the ‘portrait’ of the Statesman? Selecting among such terms depends upon how one will perceive the epistemology of the Politicus and its relationship with the so-called ‘theory of Forms’. If, following Skemp for example, we see Forms behind the various definitions that emerge from within the lines of the argumentation, then ‘the essential point for Plato is that the act of division must be made at a natural “joint” in the body of Reality’ (Skemp 1987, p. 72; cf. Phaedrus 265E-266A). However, we may choose not to read eidē in the Politicus as identical with the strange entities that dwell in the intelligible world of Forms, of absolute and immovable Reality. Lane (1998) presents the case for a ‘non-unitary’ reading regarding Forms and the method of division-examples. According to her, the latter denotes a ‘system of understanding’ which, diverging from the typical theory of Forms, is premised on a ‘dynamic method of comparison’ and on ‘methodological clarification of names’ (pp. 18, 63, 67). The latter are invariably to be invented or simply applied, as ‘tools’ that help us clarify and extend our beliefs rather than as a solid ‘evidence’ for a ‘perfect’ representation of reality (pp. 32-33, 67). The epistemic goal here is clarity of understanding, and the aim of Socrates’s companion is to establish a ‘sufficient sense of identity’ within a ‘context of similarities/differences’ (pp. 26-27). This aim, in its turn, can be accomplished because of an ontological kinship that unites all things, especially the most complex among them (p. 9).
Lane’s account offers us a conception of knowledge-acquisition through examples that is substantially different from our modernist understanding of scientific and/or philosophical inquiry. The latter, understood as a matter of a purely cognitive enterprise, is located within the boundaries of apodictic-constructive reasoning. These boundaries usually coincide with the ones that mark the competences of the individual researcher or thinker alone, as separated from her political-discursive affiliations, the realm of the ever possible ‘difference’, as it were. Even when we speak of discursive acquisition of knowledge, we the moderns mean the gradual achievement of an accurate—‘as much as the current state of knowledge permits us’, is our modest conditional—and potentially undifferentiated representation or determination of reality. Such orientation implies a kind of ‘ensembliste-identitaire’ logics whose main paradigm is mathematics (Castoriadis 1987, Chap 5) and which is substantially totalitarian. Our modern epistemology is permeated by an instrumentalist account of logos and of its symbols or notions, and is regulated by the latent claim to cognitive omnipotence, more specifically by the claim to an ever possible and potentially definitive exclusion of all ‘falsified’ hypotheses (see, of course, Popper 2002).
On the contrary, the Platonic philosophical discourse implies an immersion into a world of significations that are formatted within a constant agōn between our cognitive capabilities and the ontological resistance of the objects of our knowledge. In other words, the Platonic dialogue works as a non-terminable competition between meanings whose fluidity cannot be definitively eradicated, because they can never fully participate in the mode of Being. As Smith notes, rendering Gilles Deleuze’s understanding of Plato and of Platonism:
The method of division is not a dialectic of contradiction or contrariety (antiphasis), a determination of species, but rather a dialectic of rivals and suitors (amphisbetesis), a selection of claimants. It does not consist of dividing genera into species, but of selecting a pure line from an impure and undifferentiated material; it attempts to distinguish the authentic and the inauthentic, the good and the bad, the pure and the impure, from within an indefinite mixture or multiplicity. It is a question of ‘making the difference’, but this difference does not occur between species, but lies entirely within the depths of the immediate, where the selection is made without mediation (Smith 2006, p. 94).
Thus, we may speak of rivalry and of agonistic participation in a selective process under conditions of an ever expanding inclusion/differentiation, which is premised on eternal love for wisdom but also on a non-eliminable amphisbetesis in the heart of every philosophical discourse. We may not speak of a war-like combat aiming at a final identification of our concepts with the Idea, under conditions of a possible exclusion or even extermination of the ‘third’ (the Stranger).
In view of this conception of the dialectical process, it is understandable why the pathway that leads to the definition of the Statesman is all but linear. The quest is marked by successive mistakes, which the Visitor attempts to rectify, with his corrections and ‘true beliefs’ often provoking more confusion than illumination.
In a first series of divisions, the Visitor will lead the discourse to an obviously absurd and rather ridiculous definition of the Statesman as shepherd of ‘featherless bipeds’ (267D). A ‘vacuum’ is created here; one that is not strictly logical but axio-logical, that is, related to values rather than to concepts (Lane 1998, p. 44). The failure of the Visitor to make the necessary distinction between nurturing or rearing animals and caring for other human beings coincides with a failure to detach the world of wisdom lovers and of human creation from the realm of care-free natural life (a detachment which is one of the basic concerns of ancient Greek axio-logy).
Interestingly enough, the Visitor will attempt to correct his immanent rationalistic mistakes by introducing a ‘pleasant story’, more suitable for children, that is, for Young Socrates but also for the ordinary citizens of Athenian democracy.[6] A Platonic dialogue is a cooperative philosophical journey, one whose constitutive motivation is not only love for wisdom, but also friendship and reciprocity between the participants. The companions, even the youngest ones, have all an equal share in the burdens and in the fruits of the discourse. Mutuality and affection necessitate a continuous gliding into different modalities of understanding—hence, the introduction of a myth or a story. This constant fluidity brings to the fore the frailty of our mind-related activities and, at the same time, the inventiveness of philosophical discourse. The latter, inspired by its erotic aspirations, dares to compete with the ungraspable, the infinite or even with chaos in the ancient sense of a vacuum, of non-Being. These dialectical and cosmological elements form a background that has nothing to do with the Christian hope for salvation or with some other religious-chiliastic vision.
Be as it may, ‘the philosophical environment is never ideal, and myth symbolises this’ (Morgan 2000, p. 181). Plato and the Visitor are aware that philosophical reason should be immersed into the cosmological gap that separates rational understanding from its ontological presuppositions. At least, they are aware that this is so, if they wish to attain some sort of axiological excellence (that is, the philosophical virtue, the aesthetic excellence and the political authority of the ones that are able to provide clarity of understanding). Of course, they also know that ‘the more authoritative and convincing the account, the greater the danger that the dynamic interaction at the heart of philosophy will be lost’ (Morgan 2000, p. 243). They are also aware that ‘the best account is still inescapably a mythos because of human frailty and the instability of language [...] At best, these narratives are “likely accounts”, at worst, they tyrannise the intellect with an unjustified imprecision of knowledge’ (ibid.) But philosophical dialectics must proceed, due to its immanent aporias and to its erotic aspirations.
The Myth
The theme of the famous myth of the Politicus is a contrast between (a) the era of divine ordering of the world, where god-shepherds rule and where human beings, along with all other animals, enjoy a care-free life, and (b) the era where ‘the Pilot of the ship of the Universe … lets go the handle of its rudder’, where ‘destiny and its own inborn urge take control of the world again’ (272E), that is, the era in which ‘the Universe must take sole responsibility and control of its own course’ (274A). In this second era, which is called the age of Zeus, human beings, burdened by necessity, have to rely on themselves. They have to learn how to deal with nature and with time, they also have to take care of each other within self-regulated communities, imitating the autonomous course of cosmos in this respect (274B). Lane rightly speaks here of a ‘structural’ demand for a kind of autonomy which will be patterned in the form of a ‘second-order imitation’ of the self-ruled world. Such imitation will not be a passive reproduction, because ‘to imitate self-rule means to rule one-self, not to be ruled by that which one imitates’ (Lane 1998, p. 109).
The space of the Political is constantly being born out of a mysterious but unavoidable transmutation from the mode of heteronomy (the mode of existence that corresponds with the era of Kronus and of god-shepherds) to the mode of autonomy (era of Zeus). The cosmic reversal and the cosmic motion in general are governed by a ‘power’ (269E) or a ‘nature’ (273B) whose authority lies above human beings and gods alike. We may track here some kind of unknowable fate in which even the Dēmiurgos himself partially resides, ‘for even He cannot move the Universe now in one sense now in the other’ (269E). The only thing that we are permitted to know for sure is that the Universe, in both of its modes, participates in a bodily form (269D). To this bodily form we may attribute our forgetfulness, our decay and the consequent cosmic reversal (273B). The latter cannot be accounted for in terms of divine laws, humanly rational explanations and/or some natural teleology. The only remaining possibility is to ‘affirm what has been just narrated’ (269E-270A). To affirm a ‘noble foundational lie’ we would say, if we were discussing the Republic (see Rep. 414B-415D). To affirm the priority of primordial desire and of action towards the unknown ‘other’ over rational justification and self-sufficient legal institutions, we could also say, if we were in the context of ancient Greek tragedy.[7] Or to accept the irreducible adiakrisia between lawfulness and unlawfulness, if we were discussing the Derridean ‘mystical foundation of the force of law’ (Derrida 1990).
Within the labyrinths, the estranging metaphors and the narrative deadlocks of the Myth, we are led to acquire a good sense of the aporias of all rationalist logos. Our well known epistemological uncertainty is now coupled with ontological instability. All aspects of autonomous existence are imbued with the fate of heteronomy, of decay and of death, of non-Being. All Being is foundationally affected by the terrible uncertainty which is provoked (and invoked) by the imminent cosmic reversal.[8] Nevertheless, the myth also conveys a sense of faith in a possible cosmological retribution for our ontological and epistemological fragility. This faith is a ‘negative’ one and has nothing to do with modern religion. Even if it was the Divine Pilot who brought the Universe into being and somehow made It partake of bodily form, it wasn’t Him who created matter and it is not certainly Him who dictates the motion of the Universe as a whole (269D-E). Even He has to abide by the norms (the necessities or even the arbitrariness) of a superior power that underwrites genesis of matter and whose name is spelled by the Visitor only once: ‘themis’ (269E), a form of justice in which all beings alike, material, human or godly, have originally an equal share, for the good and for the bad, so to speak. Anaximander of Milētus was perhaps the first that spoke of this poisonous original gift, when he discussed on the genesis and on the decay of all beings in terms of dikē (justice) and of tisis (punishment).[9]
For human beings, the share in these ambivalent origins can be vindicated through philosophy. The Visitor alludes to this perspective through a seemingly innocent question about the existence or not of philosophical inquiry in the era of Kronos (272B-D). The answer to this question is left to a mysterious ‘messenger’ of an ever postponed future; perhaps to a Philosopher who will be mature enough to surpass the level of young story-tellers and give us a more transparent account of ‘the different varieties of knowledge and the need for talk’ in the age of Kronos (272D). In any case, the exercise of our philosophical capacities may activate not only the ‘goods’ of self-regulated societies but also the ‘tremors’ and the confusions that haunt our attempts to cover the distance between (legal-institutional but also cosmological) autonomy and the variegated nature of human affairs. The latter may be regulated by more ‘invisible hands’ than we may ever become able to detect—or, better, they may not be regulated by any hands at all.
For us, the moderns, the attempt to substantiate abstract laws into sound political and juridical judgments may be carried out through some civilizing act of self-governance, within the premises of the participative rules and procedures of our secular justice. But where do these rules and procedures stem from? Are we sure that they are entirely self-sufficient and even self-instituted? Even Plato cannot offer us any philosophical certainty about such questions. And this is what Castoriadis forgets, when he accuses Plato of not having minded the ‘gap’ that separates law from its necessary participatory specification (2002, p. 143). It is highly doubtful whether this gap can ever be filled, controlled or even recognised as such. Castoriadis does not see here, as he does elsewhere in his own oeuvre (1987), a dimension of our fragility that is not only epistemological (furthermore, political, social, historical or even philosophical), but mythological and, at the same time, cosmological, that is, pertaining to radical imagination and to the terrifying magmas which separate us not only from self-sufficient democratic autonomy but also from the actual recognition of the ‘gap’.
Surprisingly or not, our reading foreshadows some of the concerns and of the warnings of such anti-Platonic philosophers as Nietzsche or Heidegger.[10] Our reading of the myth also does justice to many of the findings of the so-called ‘tragic turn’ of (post)modern jurisprudence (see e.g. Douzinas and Warrington 1994, esp. Chap. 2, and for an overview Manderson 2001, pp. 95-98). Taking our faith in the idea of justice as granted, as Plato but also as the agents of the ‘tragic turn’ do, we may however notice that the origins and the foundations of this idea in itself do not only inhere in our reason-, education- or even religion-based capacities. They also lie in the mythological and cosmological magmas that unconsciously permeate and potentially stabilise or de-stabilise our co-existence, beyond our grasp and beyond the objects or the symbols of our faith. In this respect, we may see that our ‘personal freedom’ and our individual or collective power to act self-consciously, calculating carefully the consequences of our actions, run upon a tragic aspect of our presence in the world: openness ‘to unpredictable and horrible machinations’ (Douzinas and Warrington 1994, p. 67), which in a tragic manner transform our willingness to act justly into ethical and political disasters, as the ones that the people of ancient Thēba had repeatedly faced due to the acts and to the fate of their tragic heroes, Labdacus and Oedipus, Creōn and Antigone.
Our share in the unknowable and in the unthinkable, moira, can neither be fully controlled nor be fully accounted for through reason-based dialectics and through reason-based political or individual action. As Socrates himself acknowledges in the Republic (473A):
Can anything be done as it is said? Or is it the nature of acting to attain to less truth than theorising, even if someone doesn’t think so? (Bloom’s translation, slightly altered)
Turning our minds and our souls to the affairs of the city
Weaving and due measurement
Our trust in philosophical discourse must be suspended once again. In spite of his great efforts in telling the myth, the Visitor derives from it a new dialectical disillusionment; namely, the slightly improved definition of statesmanship as ‘tendance freely accepted by herds of free bipeds’ (276E). Insofar as this definition reproduces the commonsensical standards of ordinary people (‘whether it rule by violence or consent’), it must be abandoned in favour of a new one, based now on the example of weaving.
The new search will not be concluded before the end of the dialogue. The Statesman will finally be defined as the ‘weaver’ of the ‘bonds’ that unite the city (305E). Not dismissing but simply controlling and combining the subordinate arts (282A-C), he/she will nonetheless instantiate in his/her own figure the force of the Political (304D), the universality of the art of statesmanship (305E) and, in general, the unifying state-powers of the city. He/she will manage the realm of political and social psychology, combining the characters, the virtues and vices of citizens, not through some soul-transformation process, but through (paternalistic) direction and training of the passionate (see e.g. 308E, 309A), in order to make them change their own minds, for the sake of ‘weaving the web of the state’ (309E). Besides, he/she alone will decide upon the time (kairos) when persuasion or force should be used (304C ), being concerned, among much else, with the interpretation and with the enforcement of the contracts and of the laws of the city (305B-C). But in what precisely does this latter concern consist and which are the standards that may guide its actualisation?
If ‘weaving’ activities of any kind make up the external or practical manifestations of statesmanship, a non-relativist notion of ‘due measurement’ points to its intellectual and ontological core. Plato tells us that there is an ‘art of measurement’ and we can divide it ‘into a section concerned with the relative greatness or smallness of objects and another section concerned with their size in relation to the fixed norm to which they must approximate if they are to exist at all’ (283D). The words ‘fixed norm to which’ are inserted by the translator of the dialogue (Skemp 2002, p. 171), but they render well the meaning of the distinction at hand, in accordance with the passages that follow. This ‘fixed norm’ is a necessary condition of the genesis of all existent things, and provides the ontological counterpart (and hope) of the cosmological themis of the Myth. The standards which this norm contains are not only ‘due measure’ but also ‘what is fitting’, ‘the right moment’, and ‘what is as ought to be’ (284E). In their entirety—but with ‘right moment’ (kairos) prevailing among them (305C-D, 304C ; Lane 1998, pp. 139-146)—these standards imply that there is a right judgment in each and every occasion, even if it is rather impossible to define with precision its ontological and its epistemological premises or its political and institutional implications.
Due measurement, referring to the ways things are and in which they come into being, dissolves the fixity of all language uses and of all conventional or practical wisdom that we may find in our cities. On the other hand, the Statesman is not defined so as to indulge in the acquisition of theoretical knowledge about all arts and sciences in the city. He is neither a ‘master-theoretician’ nor a ‘master-architect’, but a master of axiological standards. Now, we could certainly argue that these standards are normative ones. However, ‘due measurement’ does not coincide with the re-constructive normativism of our Rawlsian times. In the Platonic dialogue ‘objectivity’ and ‘normativity’, if existing at all, rest with the natural, the discursive and the political ‘objects’ themselves, not with our own re-constructivist (meta)theoretical projects. The ‘basic norm’, in its turn, participates in Being and not in the abstract-theoretical realm of the Ought. Of course, there is a judging capacity which is comprehensively concerned with all normative dimensions of human existence—the moral, the practical-prudential, the temporal-historical and the political-institutional. However, this capacity cannot find a stable, fixed or unconditioned refuge into divine justice, natural rights or pure reason. Neither can it be linked with some solid existential entity like ‘people’ or ‘nation’ or with some self-sufficient existential dichotomy, as the Schmittian distinction between ‘friend’ and ‘foe’. As in Platonic dialectics the notion of an excluded ‘third’ does not exist, so in Platonic politics, and in politics of the ancient Greek world at large, there can be no definitive distinction between the existentially included and the damned ones, the excluded or the enemies.
To these remarks we should add another one having to do with our legal epistemology. If the above reflections are correct, then the performative effect of Plato’s attack on laws consists in something more than our well-known critique of the generality of laws and of the types of injustice or even of violence that may be concealed in their application.[11] What separates us from Plato’s ‘communicative intentions’ is our faith in the possibility of a ‘jurisprudential’ and/or ‘democratic’ way to surpass injustice and violence through taking control, and possibly sharing this control, over the laws that shall govern a self-sufficiently human reciprocity. This democratic and humanistic faith in the possible participative concretisation of law, premised as it is on a rationalist notion of progress, is lacking in Plato and in his world. There even self-instituted and well-justified laws form an immanently returning pharmakeia; a remedy that participates both in Being, which frames our presence in the world, and in practical Reason, which encounters and tries to transform what Is; an antibiotic which functions both with and against the philosopher and his nomo-logical expertise.
Back to the laws of the city
In any case, the political expertise could never exist apart from the bodily-visible form of the philosopher-statesman. The latter can be elevated into a distinct object of the dialectical research only on condition that we are able to see him/her arising from within the city and from within the world of bodily things at large. This is so because in politics and in cities things must be discernible not only from within the Intellect, the Soul and the metaphors of the philosopher-kings, or even from within the wishes of the ones that want to see them and discuss on them (see Rep. 592B). They must also be discernible for the ones that are going to suffer from, and possibly to counter-act, the commanding services of the Statesman.
The Statesman does not claim an art that does not exist, as the Sophist does. But neither can be easily separated from the Philosopher, an intellectual or discursive figure that is distanced from the practical affairs of the city. Is the example of weaving, with all its philosophical-metaphorical magnificence, sufficient for providing the crucial differentiation between the Statesman and the Philosopher? If not, a dialectical impasse has been reached. The dialogue risks ending up with just another soothing identification, suitable for children alone. But philosophical dialectics must proceed, keeping always open the possibility of new examples, divisions and/or metaphors. That is, keeping safe the non-eliminable potential of humans for problematisation and politicisation, keeping also safe the original ambivalences and the foundational aporias that motivate all philosophical, dialectical and political surveys.
At 296C-D the interlocutors draw the image of those who, contrary to written laws, attempt ‘to do different things that are more just, better, and finer’. Thus, it seems that Justice, the Good and Beauty should be posited next to political expertise as the latter’s necessary companions. However, as we argued in the previous section, these ideal ‘companions’ do not and cannot play the role of an ultimate refuge—the same role that Socrates’s companion plays for the sake of the philosopher in the dramatic context of the dialogue. The political expertise is to retain some independence from Justice, Virtue and the Beauty, despite their intrinsic affiliation and their common constitutive aim, namely to promote harmony and happiness in the city as a whole.
The familiar images of the captain and of the doctor teach us why we should insist on such independence. On account of the power inherent in their science, these experts are equally capable of saving or of mutilating their patients and their crew (298A-B). The ambivalence on violence/consent re-emerges and makes all the more urgent the need for a separation of the Statesman from the Philosopher. Whereas the latter’s ordinary activities are ‘ideal’ and, therefore, do not relate immediately to the practical affairs of the city, to its laws and to the everyday use of violence or persuasion in ruling the city, the same does not hold for the former. Despite its metaphorical background and material, the case of ‘laws vs. the Statesman’ is not metaphorical by itself, since the Statesman must assume a bodily-visible form and he must also assume the risk of ‘mutilating’ the people rather than saving them.
Of course, the case is not an easy one to handle. Contrary to the Republic where laws are rather indifferent to the task of constituting justice in the souls of citizens, here in the Politicus:
fixed laws pose a mortal threat to appropriate action responsive to a constantly changing kairos. It is the shift to a temporal and dynamic context that makes law suddenly stand out as a dangerous rival to political expertise, a rival to be unmasked and firmly subordinated (Lane 1998, p. 150).
This ‘unmasking’ is conducted by a long discourse-experiment which is introduced by the companion for the purpose of understanding what a regime of laws would entail for the Statesman and for the city (298B et seq.)[12] In this regime not only statesmanship but all arts and sciences would be perfectly controlled by an Assembly and by magistrates chosen by lot (298B-E). Courts would be established in order to punish whoever dared to contravene the rules and edicts of the Assembly on every possible question (299A-B), and free conduct of any inquiry would finally be prohibited—for ‘there should be nothing wiser than the law’ (299C-D). Such restrictive policies would result in the abolition of any sort of expertise in the city, making life there unbearable (299E). All things considered, would not such a regime kill not only Socrates the Philosopher but also the Statesman? In other words, would not it resemble the age of god-shepherds rather than the age of Zeus, that is, the age of autonomous cities, the age of politics?
Killing the Statesman? A division never made…
If what we have to choose is either rule by free philosophical inquiry or a regime of strict obedience to all existing laws, then the only apparent way to save both the Statesman and the Philosopher is to depart again from the bodily realm of human affairs. However, this can be so only at the expense of our capacity to capture the difference between these two figures, and the companion, participating in the age of Zeus, has already promised Socrates to pay him back this ‘dialectical debt’ (257A). Although the Philosopher was never written (in fact, he was killed), I feel that it is also our duty to continue trying to pay back this debt. The latter is not strictly hermeneutical and should not be understood in terms of an ethics of ‘respect’ for Socrates and for his contribution to modern philosophy. It is a present political-philosophical debt that is motivated both by our eternal love for wisdom and by the urgent need of our societies to distinguish the Philosopher from the Statesman, taking seriously into account the ontological, cosmological and mythological ‘tremors’ that endanger the tasks and the art of the latter.
My interpretative proposal will be based on the supposition that, in contrast with what the Philosopher does, the Statesman cannot but employ some form of ‘good’ imitation of the self-legislative activities of the city. Rowe alludes to this interpretative pathway when he invokes a possible differentiation between ‘good’ and ‘bad’ imitation, with the first ‘mirroring the laws of the best state as far as possible’ (2001, p. 72). However, Rowe actualises this distinction in a rather conservative way, suggesting that ‘good’ imitation would consist in ‘simply sticking to established laws’, in the same way as ‘the best city itself will do under the situation which always obtains in the inferior ones—namely when there is no knowledgeable person present to show what changes should be made’ (2001, p. 73). Similarly, Lane accepts the prospect of ‘good’ imitation understanding it as a mode of applying the ideal to the real which ‘inevitably involve[s] substantial alterations’ in both of them (1998, pp. 157, drawing on Laks 1990). However, Lane prefers to focus on the most structural features of such imitation, concluding that ‘the crucial point for the second-best constitutions is to establish absolute stability and stasis of their laws, not because their laws are in themselves especially valuable but because such rigid stasis is superior to the devices of the ignorant’ (1998, p. 159).
Nevertheless, a few pages earlier Lane had suggested that ‘the expert can indeed ... be a lawgiver’, and that ‘so long as laws are conceived as memoranda rather than as rigid, they serve the useful function of aggregation and approximation, while at the same time protecting the possibility of correction by expertise when needed’ (1998, p. 155). Now, I believe that we are not compelled to confine this corrective function to a kind of ‘structural’ awareness that ‘sticking’ to existing laws is the best course of action when the philosopher-statesman is absent. Or, rather, I believe that such awareness could be enriched in a way that would expand the epistemological and the ontological background of the distinction between the Statesman and the Philosopher, providing substantial alterations to both of them. This background may be generated through awareness that laws are not one-sidedly lethal for the ideal city of the Philosopher, that laws could potentially incorporate and invigorate a part of the Philosopher’s dialectical capacities (namely, the ones that are related with the art of statesmanship), that laws are a double-faceted pharmakon whose necessity cannot be denied at least in the age of Zeus (the age of the Statesman). Such awareness does not necessarily lead to a change of Plato’s position as against the democratically adopted laws of Athens which killed his teacher. But, on the other hand, Plato must accept that, in forming laws and in becoming a Statesman, the Philosopher enters the world of bodily-visible things, the world of the city and of its practical affairs. Thus, the Philosopher as Statesman should be aware of the unavoidability of some form of ‘good’ imitation of the city’s self-legislative activities.[13]
Following these remarks, let me now go on to state my preferred reading of the relationship between the Philosopher, the Statesman and the Sophist. And let me do this using the ‘bigger letters’ of their cities:
(a) The city of the Philosopher corresponds with Callipolis of the Republic. The latter is constantly being built above the clouds of confusion that plague the existing societies and their positive laws. Notice that Callipolis can still be considered as immanent to actual human co-existence, in the form of a non-eliminable wish or desire for Justice (Rep. 592B), or even in the form of a possible share in the life of the Philosopher—the pathway which the myth has alluded to. However, insofar as the eyes of true philosopher-kings ‘are turned to fixed and immutable realities’ (Rep. 500B-C) rather than to the realm of everyday affairs, we should also be aware that the prospect of ‘cleaning’ and ‘wiping’ the ‘slate’ of the city for the sake of Justice (Rep. 501A) here means a discursive-educative rather than a political-instrumental possibility. Plato’s philosophical utopia is neither an engineering project nor a day-dreaming activity (Stratilatis 2008).
(b) The city of the Statesman is marked by awareness of the imperfection and of the uncertainty that permeates all existent things, among them humans and their affairs, their art-sciences and their laws. This city is also marked by awareness that statesmen, residing in ‘a small element in the population, few in number, or even a single individual’ (297C ), are the most vulnerable of all bodily-sensuous beings, since they must always fight for their place and for their competences among the Sophists and the Philosophers. Statesmen must also fight against the dual danger of either being poisoned or becoming useless by the citizens of the city which they attempt to re-create.
The difficulty to recognise and to help the Statesman survive is constantly present in our dilemmas as to our obligation to follow or to change the laws of our cities. Does abstention from amending laws (included here our ‘democratic’ constitutions) indicate an adherence to the prescriptions of the art of statesmanship, an expression of philosophical self-distancing? Or such abstention should be equated with the degraded form of privatised life which Athenians so much despised? This dilemma corresponds with the epistemological uncertainty and with the ontological instability that permeates all kinds of political co-existence. However, it also makes possible the activation of a possible shareability with philosophical life, now in the form of radical political imagination which is to be directed towards a continuous act of ‘good imitation’. This imitative act can take the form of active but critical participation in public affairs. Or it can take the form of a constitutional revolution, in order to save the space of the Statesman yet to come. Laws of the city, in their necessary fluidity and enforceability, embody and inanimate the constant fluctuation between philosophical self-distancing and immediate political action, the art of such fluctuation.
(c) What threatens justice is not only the poisonous/healing force that lies in every form of statesmanship as such. Injustice takes also the form of ignorance about the existence of standards that may regulate and direct the art of the Politicus. Existence of standards such as ‘the right moment’ or ‘what is fitting’ is guaranteed by the cosmological-ontological background of all existent things, themis. This is so notwithstanding the dialectical impasses upon which we run every time we try to define the art of the Politicus, also notwithstanding the ontological uncertainties that are activated whenever we try to actualise this art.
Besides, ignorance as to the presence of regulative standards is usually coupled by lack of political awareness that the best we can practically do is to imitate the age of Zeus and, hence, to be autonomous in a manner similar but not identical to the self-ruled world. Autonomy cannot be definitely achieved or attained, but only constantly be fought for, since there is no ‘god-shepherd’ to provide it once and for all. Lack of such awareness explains why life in the city of the Sophist is marked by an endless degradation: by an infinite chain of simulations and passive imitations of non-Being, by a series of copies of copies (see Smith 2006, cf. Rosen 1995, Chap. 9) which threaten to establish once and for all their dictatorial rule, eliminating the motivating order of Ideas along with the aporias and with the erotic aspirations that open up and support both active philosophical discourse and active political participation.
Life in the city of the Sophist multiplies cosmological and epistemological uncertainty, transforming it into a politically embarrassing regime that is haunted by passivity of the citizens, by non-philosophical silence and terror, by social strife and by dissolution of all communal bonds. Ignorance and self-willed attitudes, concealed behind the veils of economic and political authority, transfer this type of embarrassment in the laws of the city. And, replete as we are with all our desires, needs and concerns, we tend to forget the only real possibility that has ever existed against the fate of decay: the life of the Philosopher and the active search for the Statesman in, through or even against the laws of the existing city, in possible accordance with the themis that permeates all existent things. In other words, we tend to diminish our expectations and our critical distancing from the laws of our cities, indulging in the comfortable idea that laws are a totally distanced and self-sufficient mechanism, that laws are able to cure all kinds of ‘social pathologies’ by themselves, for themselves.
Acknowledgements: A first draft of this article was submitted as a post-graduate dissertation to the Department of Government of LSE in September 2008. I am deeply grateful to Janet Coleman, the supervisor of this dissertation, for her teaching and for her overall impact on my philosophical thought.
References
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Bloom, Allan. 1991 (2nd ed.) The Republic of Plato. USA: Basic Books.
Castoriadis, Cornelius. 1987. The Imaginary Institution of Reality. Trans. K. Blamey. Cambridge: Polity Press.
Castoriadis, Cornelius. 2002. On Plato’s Statesman. Trans. D.A. Curtis. Stanford: Stanford University Press.
Castoriadis, Cornelius. 2004. Ce qui fait la Gréce, vol. 1: D’Homère à Héraclite. Paris: Seuil.
Coleman, Janet. 2000. A History of Political Thought, vol. I: From Ancient Greece to Early Christianity. Malden, MA: Blackwell Publishing.
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De Ville, Jacques. 2009. Rethinking the Notion of a ‘Higher Law’: Heidegger and Derrida on the Anaximander Fragment. Law & Critique 20: 59-78.
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Hall, Jerome. 1956. Plato’s Legal Philosophy. Indiana Law Journal 31: 171-206.
Klosko, George. 2006. The Development of Plato’s Political Theory. New York: Oxford University Press.
Laks, André. 1990. Legislation and Demiurgy: On the Relationship Between Plato’s Republic and Laws. Classical Antiquity 9: 209-229.
Lane, M.S. 1998. Method and politics in Plato’s Statesman. New York: Cambridge University Press.
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Morgan, Kathryn. 2000. Myth and Philosophy from the Presocratics to Plato. Cambridge: Cambridge University Press.
Morrow, Glenn R. 1960. Plato’s Cretan City: A Historical Interpretation of the Laws. Princeton, NJ: Princeton University Press.
Plato. 2007. The Republic. Trans. Desmond Lee. London: Penguin Books.
Popper, Karl. 2002. The Logic of Scientific Inquiry. London: Routledge Classics.
Popper, Karl. 2003. The Open Society and Its Enemies, vol. One: The Spell of Plato. London: Routledge Classics.
Rosen, Stanley. 1995. Plato’s Statesman: The Web of Politics. New Haven: Yale University Press.
Rowe, Christopher. 2001. Killing Socrates: Plato’s Later Thoughts on Democracy. The Journal of Hellenic Studies 121: 63-76.
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Stratilatis, Costas. 2008. Reading the Republic: Is Utopianism Redundant? History of Political Thought 29: 565-584.
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* The present article has initially been accepted for publication in the journal Law & Critique and it has now entered the process of being reviewed.
[1] ‘Themis, usually translated as “right”, is the most archaic of the terms associated with the order of things […] Themis is the original orderliness of gods and men in archaic mythology and social structure, the law of law and the ground upon which the primordial force of obligation to the other is felt’ (Douzinas and Warrington 1994, pp. 68-69).
[2] For the rendition of the quoted passages of the Politicus in English I use interchangeably Skemp’s and Rowe’s translations, as found in Skemp (2002) and in Cooper (1997) respectively, depending on my reading of the original text. For the rest of Plato’s dialogues I advise the translations which are found in Cooper (1997). For the Republic I use the translations of Lee (Plato 2007) and of Bloom (1991). References in brackets refer to the original Oxford edition of Plato’s work. When no dialogue is mentioned, the reference is to the Politicus.
[3] We may track here a foreshadowing of Aristotles’s distinction between distributive and corrective justice in Nicomachean Ethics (1130B et seq.)
[4] This point is emphasised by Gill (1995).
[5] Cf. Laws 693B: ‘…legislation providing for powerful or extreme authority is a mistake. One should always remember that a city ought to be free and wise and enjoy internal harmony…’
[6] Cf. Timaeus 22B et seq., where the old Egyptian priest tells Solōn (the ancient law-giver of early 6th century) that Greeks are going to be always young, and explains why this is so.
[7] ‘Antigone’s devotion to Polynices is the outcome of a mad, immemorial desire that has been inscribed into her before and outside of the time of institutions and laws. Her action is the unconscious affect in the house of Being of a stranger who has never entered it. An originary seduction has taken place, the self has been taken hostage by the primordial other whose desire is an excessive overflowing and an inexorable command […] Can there be a law that emanates from this dark region of desire and challenges the legality of the city and the work of repression of the family?’ (Douzinas and Warrington 1994, p. 79).
[8] ‘What we must constantly keep in mind when we discuss ancient Greek philosophy—or ancient Greece in general—is that this philosophy does not emerge from within some glade of Being. On the contrary, it comes into existence as a permanent struggle against what we could certainly call a nightmare, the nightmare of non-Being, the nightmare of the generation and of the corruption, and more generally of the inconsistence of what Is’ (Castoriadis 2004, p. 203, my translation).
[9] For the original Greek text and for a rich discussion see Castoriadis 2004, pp. 185 et seq. For Heidegger’s and Derrida’s reading of the fragment see De Ville 2009.
[10] In his magnificent treatise on Plato’s Politicus, Stanley Rosen (1995, p. 118) concludes: ‘It may appear anachronistic to some readers when I say that the one thinker in the entire tradition of Western philosophy who is closest to what is today regarded as the rejection of Platonism is Plato himself. There is, however, no anachronism here but only the recognition of one of the main themes of the myth of the cosmic reversal. It is precisely at the end of a cosmic cycle that we fail most drastically to understand the proximity of the end to the beginning. We could do worse than to think of Penelope, the wife of Odysseus, himself the prototype of the philosopher, as the human representation of destiny, who unweaves by night what she weaves by day’.
[11] We meet this concern already in Aristotle’s treatment of justice in Nicomachean Ethics (1133B et seq.)
[12] Of course, this experiment differs significantly from the abstract-hypothetical experiments of modern ‘social contract’ theories. The description that is employed here corresponds with the dramatic-political context of the dialogue, i.e. with the fact that Socrates has been condemned to death by the laws of the city just the previous day. Therefore, the experiment comprehends the background thoughts, motivations and sentiments of the discussants themselves. The latter are not confined within the ‘reasons’ and ‘justifications’ of the separated thinker who reflects on the available institutional choices alone, after discussing with his fellows in the original position (and although these choices have to do with their future societal cooperation).
[13] The prospect of ‘good’ imitation can also be traced to the Republic (see Stratilatis 2008, pp. 579-580).
A COUNTERPOINT TO MODERNITY: LAWS AND PHILOSOPHICAL REASON IN PLATO’S POLITICUS*
Abstract: The modern rationalist idea of rule of law, and modern rationalism in general, owe much to Plato and to Platonism. However, Plato’s stance towards the laws of the city is all but clear. On the one hand, we have the seemingly ‘totalitarian’ Plato of the Republic, a dialogue which defends the absolute authority of philosophical wisdom over all prescriptions that are ensuing from existing cities and their laws. On the other hand, we have the ‘more liberal-democratic’ Plato of the Laws, a dialogue which promotes a combination of philosophical wisdom with rule of law. This ambivalence as to the issue of laws permeates one of the most enigmatic of Plato’s works, the Politicus, a dialogue that was written after the Republic and before the Laws. The present essay rejects both the ‘totalitarian’ and the ‘liberal-democratic’ understanding of Plato’s stance towards the laws of the city. The author defends the thesis that laws in the Politicus do not constitute a static Form that works against or with philosophical wisdom and/or democratic self-legislation, but a factor that generates a series of inescapable philosophical and political ambivalences. This approach corresponds with many of the findings of the so-called ‘post-modern jurisprudence’. That is, it brings to the fore the immanent aporias of philosophical dialectics, it emphasises the irreducible un-decidability between violence and consent as foundational elements of the law, and it stresses the irreducible adiakrisia (the inability to discriminate) between the poisonous and the healing effects of laws as regards the attainment of conditions of social and political justice.
Key-words: Plato – laws – violence – consent - Statesman – post-modern jurisprudence.
Our modern societies keep displaying a profound trust in their positive legal systems (that is, in parliamentary law-making procedures, in the ability of administrative bureaucracies to specify abstract rules into efficient public policies, in the ability of the courts to reach conclusive judgments as to the resolution of interpretative conflicts, and, last but not least, in the ability of citizens to apply uniformly the strictures of law into all aspects of everyday life). This trust persists, despite the repeated failures of modern legal systems to deliver conditions of social and political justice or even conditions of civilised human co-existence. Even after such historical experiences as the legalised rise of nazism or, closer to our own era, the legalised cruelties of USA anti-terrorist politics, law is still believed to be the necessary and sufficient condition for safeguarding justice in all aspects of life (individual as well as social and political, national as well as international, secular as well as metaphysical).
Liberal-democratic law is taken as a self-sufficient mechanism that will finally prove able to banish from our modern societies such ‘abnormalities’ as crime and violence, violations of human rights, political oppression, social unrest and social conflicts, economic crises and defects of financial markets, environmental risks, even excesses of religious fanaticism in the form of ‘terrorism’. Conceived as external to these ‘pathologies’, the various regulative regimes that materialise law take the imaginative form of surgical instruments which are appropriate for saving any ‘patient’ from any kind of ‘illness’, provided that they are entrusted to prudent politicians who are democratically elected and who can also be controlled through the various ‘checks and balances’ of our liberal-democratic societies (high courts, media and the press, public opinion, now ‘international markets’, etc.)
The legal-democratic self-confidence of our modern societies owes much to modern rationalism and to the rationalist idea of historical progress towards more enlightened forms of political co-habitation. Modern rationalism, in its turn, usually seeks for its origins looking back to Aristotle, to Plato and to the ancient Greek world in general. Of course, when considering the case of democratically adopted laws, such recourse to Plato seems to be very problematic, especially if the survey is conducted from the liberal standpoint of our ‘open societies’. This is so because of Plato’s notorious ‘totalitarianism’, as tracked in the most famous of his dialogues, the Republic (see, of course, Popper 2003). However, at the last stages of his philosophical career, Plato also wrote the Laws, a dialogue that promotes a political regime which combines rule of philosopher-kings with rule of compulsive and persuasive laws and which, in effect, blunts the authoritarian edges of the Republic. According to the traditional reading of the development of Plato’s political thought, even if the Laws does not signify the total abandonment of the Republic’s radical utopianism, it nonetheless constitutes a ‘pragmatic’ turn of Plato’s philosophical interests towards the issue of viable or ‘second-best’ constitutions, i.e. for constitutions that are designed for cities which can actually exist in place and in time (see e.g. Barker 1959, pp. 183-184; Guthrie 1978, pp. 333-334; Klosko 2006, pp. 218-219; cf. Laks 1990; Schofield 2006, pp. 173-185). This ‘pragmatic turn’ may give us an explanation why Plato now advances rule of law to the detriment of the absolute authority of the Republic’s philosopher-kings. Such a turn may even make us see that Plato’s stance towards laws of the city was not so inimical from the outset (see Hall 1956; Morrow 1960, pp. 577-584; De Romilly 2002, pp. 179-201). We should not forget that it was Socrates himself in one of Plato’s earlier dialogues, Crito, who ardently refused to escape from his prison disobeying the laws of Athens, arguing that the infringement of laws constitutes in all respects a wrongful act, even for the ones who reasonably disagree with them (Crito 50A-54E). Thus, we should perhaps be ready to accept a reading which favours a newly even if unexpectedly democratised Plato. In other words, we should be ready to re-invent a Plato who stands closer to the interests, to the concerns and to the self-confidence of our modern liberal-democratic societies.
The first aim of this essay is to rebut both the ‘totalitarian’ and the ‘liberal-democratic’ understanding of Plato’s stance towards the laws of the city. In my view, both alternatives do injustice to one of the richest of Plato’s works, the Politicus, a dialogue that was written after the Republic and before the Laws. As Ι shall argue, this dialogue is permeated by non-eliminable un-decidability as to the question of whether the science-art of statesmanship includes law-making processes (ones which are necessarily to be coupled with the obligation of citizens to abide by the laws of their city as given to them by the political experts and/or by the sanctified democratic procedures, the Assembly). According to the interpretative thesis that is going to be defended in the present essay, the ideal figure of laws in Plato’s oeuvre does not constitute a static Form that works against or with philosophical wisdom and/or democratic self-legislation, but a factor that generates a series of inescapable philosophical and political ambivalences.
Laws indicate the inescapable aporias of every philosophical and/or political discourse. Considered from the perspective of philosophical inquiry, the value and even the sustainability of a law-based society hinges on the almost impossible success of an enormous philosophical-dialectical task: that of ‘separating’ the ones who really posses the art of statesmanship from the ones who belong to the class of treacherous and ignorant ‘imitators’, the sophists. As Ι shall argue, the ‘success’ of this philosophical-dialectical ‘separation’ should not be understood as the achievement of a final and definitive identification, but as clarity of understanding within a context of non-eliminable similarities and differences. With regard to their political nature, laws constitute a kind of pharmakeia (cf. Derrida 1972) rather than an one-dimensional destructive or corrective instrument. Laws are necessary even if potentially self-defeating remedies for the frailty of humans and for the complexity of their practical affairs. Encapsulating and even sometimes aggravating the ‘pathologies’ which they are supposed to cure, laws carry a poisonous as well as a healing force for individual characters as well as for societies and even for the (democratic) institutions of the city themselves.
Besides, the enforceability of laws is ‘not an exterior or secondary possibility that may or may not be added as a supplement to the law’ (Derrida 1990, p. 925). Thus, we may trace an original-foundational moment where justified and unjustified authority, illegitimate violence and legitimate power, dikē (justice) and eris (dispute) etc. cannot easily be ‘separated’ from each other (Derrida 1990, p. 927). We meet this moment in the Laws, where Plato mentions a possible mixture of persuasion and violence in all legislative practices (722B), and then he goes on to equate the simple and pure form of law with coercion, separating it from the law’s ‘preludes’, the legislative preambles which aim at reason- and education-based persuasion (722D-723A). We meet the same point in the Politicus, albeit in a less clear manner. Politicus is a dialogue that is mainly conducted by a Visitor or a Stranger—a non-eliminable estrangement or a différance in the heart of politico-philosophical inquiry. The argumentative moves of this dialogue are motivated by an ever returning ambivalence as to the question of whether the ruling of the city should be based on citizens’ consent or on the dictatorial authorship of the Statesman. Moreover, this ambivalence is assigned, through the mythical narration of the Stranger, to a broader cosmological fluctuation between autonomy (in the form of a self-governed cosmos to be imitated by self-governed cities) and heteronomy (in the form of the age of god-shepherds or even in the form of an unknowable fate that embraces every existent thing, gods and humans alike). This fluctuation, in its turn, is finally encapsulated into the themis (justice as well as punishment) that is inherent in the genesis of all things.[1]
Vindicating our share in this all-encompassing ontological background and destiny, themis, we may be able to reinforce the stabilising tendencies that keep humans united in cities and in civilised societies. At the same time, however, we must all be aware that in this vindication always lies the danger of actualising the un-knowable and inescapable forces that lead our societies to ‘imitative’ forms of justice and of civilised life in general, to forgetfulness (lēthē) and to decay, to death.
Reading ‘Plato and the laws’
Opening the text of the Politicus we read:
VISITOR/STRANGER: Law could never accurately embrace what is best and most just for all at the same time, and so prescribe what is best. For the dissimilarities between human beings and their actions, and the fact that practically nothing in human affairs ever remains stable, prevent any short of expertise whatsoever from making any simply decision in any sphere that covers all cases and will last for all time. I suppose this is something that we agree about?
YOUNG SOCRATES: Certainly.
VISITOR/STRANGER: But we see law bending itself more or less towards this very thing; it resembles some self-willed and ignorant person, who allows no one to do anything contrary to what he orders, nor to ask any questions about it, not even if, after all, something new turns out for someone which is better, contrary to the prescription which he himself has laid down (Politicus 294B-C, Rowe’s translation).[2]
What lies in a philosophical text? Is there a method-science of interpretation with its own laws? Do these laws, if existing at all, allow us to achieve a kind of balance between the text and the philosophical concerns and interests of the interpreter himself?
According to a certain school of thought, we should cast our emphasis on the meanings that the author intended to communicate through his/her ‘speech-acts’ within a specific socio-political, intellectual, cultural etc. context (see the essays of Skinner in Tully 1988). Following this methodological guideline, let us briefly be reminded that Athenians of Plato’s times, and ancients Greeks in general, were especially proud of their laws (De Romilly 2002). Laws were perceived as protection against tyranny, and this was so irrespectively of their form (written or unwritten) and their origins (divine or human). On the other hand, we are all aware of Plato’s enmity towards Athenian democracy and its self-legislative activities. Thus, we may choose to read the text under consideration as an instance of Plato’s notorious attack on the laws and on the democratic political constitution of his fellow Athenians.
This is the reading that is employed by Castoriadis (2002) in his lectures on Plato’s Politicus. Although the French-Greek philosopher rejects the characterisation of Plato’s political vision as ‘totalitarian’, he entertains another typical premise of our modernist understanding of Platonism, namely the assertion that Plato’s intention in general is to ‘find and fix in place a regime that will stop history, that will stop the passage of time’ (p. 137). Regarding the laws of the city, Castoriadis claims that Plato constructs his argument against them through a false absolutisation of the antithesis between universality in the form of law and concreteness of the specific circumstances under which laws are interpreted and applied. According to Castoriadis, Plato’s intention is to conceal the possibility of an intermediary solution, one that would affirm the ‘twofold existence of a rule and of a certain gap in relation to this rule’ (p. 144), opening up the prospect of a city altering its laws through participation of its citizens. At least in the Politicus Plato ‘doesn’t see the necessary participation of each in the concretization of law’ (p. 143).
Notwithstanding the modernist tones of Castoriadis’s critique against Plato’s supposed intention to ‘freeze history’, the French-Greek philosopher reveals an important aspect of Plato’s ‘communicative intentions’ as regards the issue of laws. However, there are other important aspects, lying not only in the Politicus but also in the other dialogues that make reference to the same topic, namely Crito, the Republic, and the Laws. We find such a systematic review of the relevant passages in a jurist’s essay that was written many decades ago. Hall (1956) concludes that, when we attempt to clarify Plato’s stance towards laws, we must keep in mind the distinction between legislation, which ‘is a constructive, educational process’, and adjudication, which refers to the implementation of laws, and which ‘is only remedial’ (p. 190).[3] Following this distinction, we may notice that even in the Republic Plato is not totally hostile to laws. His relative neglect for them, as expressed in his verdict that ‘good men need no orders’ (Rep. 425D-E), could be construed as referring to laws in the form of a supplement to virtuous judgment, and not as an opposition to the idea of legislation as such. Thus, we may not preclude a reading of Plato according to which rule by philosophical reason and rule by law can be reconciled, as two parts of a coherent philosophical-political vision that may not include any intention to freeze at least the ‘legislative history’ of ideal cities.
We could reach a similar conclusion adopting another interpretative standpoint. Following a ‘contextualist’ approach, De Romilly sees in Plato a possible sympathizer—albeit a very critical one—of the ideals that laws stand for within the long nomos-physis debate of ancient times (2002, Chap. IX). Of course, the Platonic turn from law (nomos) to justice (dikaiosynē) in the Republic signifies a preference for the latter over the former. Plato, like other contemporary critics of law, such as Isocrates, saw in legal-political institutions an inappropriate tool for achieving justice, virtue and happiness in the city (De Romilly 2002, pp. 182-186). Nevertheless, Plato never departed from the nomos camp broadly conceived. He was the writer of the Laws, where he assigned to them the name of reason: ‘we should run our public and our private life, our homes and our cities, in obedience to what little spark of immortality lies in us, and dignify these edicts of reason with the name of law’ (Laws 713E-714A). Therefore, for Plato laws might have represented not only an incarnation of conventional wisdom, but also ‘an intermediary between the world of ideas and this of human affairs’ (De Romilly 2002, p. 195, my translation).
This last remark renders well an important objective of Plato’s research in the Politicus, as we shall see later on. However, if Plato has not been so inimical to laws, at least at the last stages of his philosophical career, then this might mean that he finally approved of the killing of his beloved Socrates by the Athenian democracy, as Rowe suggests (2001, p. 67). Following this thought, Rowe rejects the assumption that Plato’s thinking about politics and about the Athenian democracy must necessarily have developed over time, possibly towards a more compromising position.
In keeping with Rowe, I think that such a ‘developmentalist’ reading is problematic. Indeed, such a reading looks like an ‘appeal to the modern mind of a newly democratised Plato, finally beginning to see sense after the excesses of the Republic’ (Rowe 2001, p. 74). Nevertheless, I do not consider my agreement with Rowe as necessarily conducive to an interpretative argument like the one of Castoriadis. That is, I do not see why Plato’s relatively stable enmity towards existing Athenian democracy, along with his all-encompassing wish to save his teacher and his philosophical utopia, must necessarily mean that he was also entirely negative to the idea of laws as such. Even if representing a threat to philosophical life, the long and winding road of laws is not an a priori precluded one, as it were.
Besides, in our attempt to defend the seemingly necessary thesis of ‘Plato not-having-killed Socrates’, many things depend upon our reading of ‘Socrates’. According to Rowe, Socrates ‘might suppose that he and every citizen has a kind of contract to obey the city’s (democratic) laws, but from the little evidence we have he disbelieved in the correctness of the fundamental principle of Athenian democracy, that “he who wishes may speak”’ (2001, p. 75). Despite Rowe’s overall intentions, this reading casts liberal-modernist light on the issue of ‘Socrates and the laws’. It translates this issue into a classical topic of modern ‘social contract’ theory, calling for a liberal re-articulation of parrhēssia in the legislative process with some form of immunity (or ‘rights’) for those who remain silent, not participating in the self-legislative processes of the city.
In my view, the problem is not one of expanding parrhēssia into the terrain of philosophical ‘silence’ or ‘immunity’. Our focus should be cast elsewhere. Being killed by the laws of his city but practically accepting their authority until the end, Socrates symbolizes the ultimate rationalistic aporias of Law (cf. Douzinas and Warrington 1994, pp. 135-136). With regard to laws of the city, Socrates never argued that they and unhindered philosophical inquiry represent two necessarily opposing ideals. What the philosopher attempted to show was that the moral question (‘how should a good man live’), although a practical one, cannot be decided by the institutional apparatuses of the city (cf. Coleman 2000, pp. 61-62). Of course, the philosopher cannot live, be educated and offer his philosophical services outside the city and its laws. This is what Socrates’s attitude in the Apology and in Crito teaches us (see Schofield 2006, p. 25), this is what we may derive from the middle books of the Republic (376C et seq., 521C et seq.), and this is what the Politicus will furthermore vindicate. Laws and institutions, educational practices, also myths, ‘noble lies’, tragic poetry and hostile citizens, these all are necessary existential preconditions for the philosopher-kings, if the latter are to live as such, to deploy their transformative capabilities in contrast with sophistry, and possibly to rule the city, paying back the education that they received from it (see Stratilatis 2008). This is so even if or, rather, precisely because citizens sometimes kill philosophers and some other times render them useless, transform them into lunatics who just lose their time staring the skies (see Rep. 484A et seq.)
In any case, the previous reflections demonstrate that, though fruitful in expanding the interpretative domain, the ‘speech-act’ approach multiplies the blind-spots of the text. Nevertheless, one can dispense neither with the author nor with his/her text and context. In the case of Plato we can take one thing for granted. Plato wrote dialogues, and in our attempt to read any of these dialogues we should certainly take into account their discursive aims, as they arise from within the lines of the text and of the context. The latter is here determined by the fact that Socrates’s trial and conviction took part just the previous day. Thus, we may take seriously the fact that the philosophical question is actually a political one, and the reverse: ‘the very questions that were decided on the basis of opinion by the jurors are now taken up in philosophical reflection’ (Miller 2004, p. 2).
Radical ambivalence or un-decidability
Let us begin our reading from the passage where Plato and the Visitor first unleash their critical attack on laws. We are at the stage of the dialogue where the Visitor and Young Socrates, after having distinguished the Statesman from the lower productive classes of the city, undertake now the difficult task of ‘separating’ him/her from the ‘queer crowd’ of ‘chameleons’ and of other ‘impersonators’, that is, the sophists and their students, the actual politicians of the city (291A-C). The key premise here is that, if the interlocutors really want to define the art of statesmanship, then the inquiry should avoid taking into account a series of misleading indicators which are used by those politicians so as to blur the distinction between true statesmanship and sophistic strategies. Such misleading indicators are the standards that ordinary people employ in order to define their constitution (politeia): ‘whether one, few or many rule, whether it be rich or poor, whether it rule by violence or consent, whether it have or lack a written code of laws’ (292A).
The Visitor suggests that we reject such popular standards as a whole (293A). A first reason why this must be so is implied by his argument that the art of statesmanship can be possessed only by very few amongst the citizens (292E-293A)—thus, popular beliefs about government, endorsed as they are after the inducement of sophists, do not offer us a safe basis for distinguishing the true marks of statesmanship. However, the key argument seems to lie elsewhere, in the use of an analogy or an example. According to the Visitor, consent and persuasion are irrelevant for the purpose of identifying the Statesman, in the same way as the opinions and even the permission of the patients are irrelevant for the purpose of judging the doctor’s ability to heal them (293A-C). But if consent of the governed is really irrelevant, then it seems that almost everything is permitted to the Statesman, even ‘putting some of the citizens to death or banishing others’, even ‘lessening the citizen body by sending off colonies’ or ‘bringing people in from other cities and naturalising them so as to increase the number of citizens’ (293D). Of course, this huge discretionary power is to be conditioned upon the scientific premises of the art of statesmanship; it is also conditioned upon the prospect of a prosperous city and, last but not least, upon a mysterious notion of justice: ‘so long as they act to preserve it [i.e. the city] on the basis of expert knowledge and of what is just, making it better than it was so far as they can’ (293D-E). In any case, despite these conditions, the true constitution is the one that is not defined by the popular standards, and the Statesman should still be posited above all prescriptions ensuing from the laws of the existing cities (293E-294A). The discussants are then called to examine the correctness of a constitution that does not take the commitment of the Statesman to the laws of the city as granted, and it is here where the critical remarks against laws make their appearance (293E-294A et seq.)
What is important in the present context is that the ‘attack on laws’ participates in a larger inquiry, which assesses the importance of popular standards for the difficult task of ‘separating’ the Statesman. This is not to deny the relative independence of the inquiry into law—such independence is underlined by the fact that this inquiry is introduced only after one of the rare objections of Young Socrates in the dialogue.[4] It means, however, that the ‘communicated’ meanings should be posited in a larger context, and their critical force must be taken not as absolute but as relative to the discursive point at hand. The latter deals with the case of a Statesman who vacillates between assuming a dangerous discretionary power, on the one hand, and ruling through persuasion, encapsulating his expertise into the strictures of some law, on the other hand.[5]
As a matter of principle, the Visitor does not reject the possibility that legislation could somehow be included among the duties and the capabilities of the Statesman (294A). But he also points out a series of reasons why the latter’s authority cannot and should not be relativised by any kind of Law, even the laws that He could have previously endorsed. First of all, ‘practically nothing in human affairs ever remains stable’ (293B). This argument, which points to the myth (see below, in the next section), is supplemented by noticing that ‘perfect accuracy’ cannot be attained through a form (law) that is by definition premised on invariability and uniformity (295A). Individuals differ as to their physical and psychological conditions, and the example of gymnastic trainers who cannot ‘make their prescriptions piece by piece to suit each individual’ reveals another important reason why laws are inadequate tools for ruling human affairs (294D-E). Besides, ‘dissimilarities’ of human activities (294B) and of contractual relationships (295A) make it all the more difficult for a single human art to assume the task of regulating the affairs of the city as a whole.
These doubts undermine not only the case of a democratic regime that is governed by laws which are adopted by citizens themselves (Athens), but also every possible form of statesmanship which could be based on general, all-encompassing rules, procedures or dictates (whether the latter are political-institutional or philosophical-scientific). And it is here, at the site of this radical aporia, where the negative force of the inquiry into laws starts to decrease and a political alternative makes its first appearance. Even if through a negative argument, the possibility of laws, and with it the possibility of political self-limitation and of persuasion, have been discursively actualised. These possibilities are projected onto the figure of an absent doctor, one whose eventual return remains eternally in question (295B-296A). Were this doctor to return in the form of a ‘possessor of the art of writing down laws’ (295E), then the citizens should perhaps feel the need to permit him to make whatever legal or institutional changes he would judge as appropriate, regardless of whether he could actually convince all of them or not (296A-B). The issue of violence/consent returns once again, but the Visitor is now more receptive to the popular underscoring of its importance—‘perhaps’ is his answer to the relevant question of Young Socrates (296B). A thorn of radical ambivalence has been settled within the innermost recesses, the ‘political heart’ of the dialogue.
Let us for the moment surpass some steps of the argumentation, and proceed immediately to the positive dialectical moment, where the Visitor introduces the famous ‘second-sailing’ of Plato’s political thought, bringing to the fore another set of ambivalences and, finally, a surprise in favour of the laws of the city! At 297C the Visitor calls Young Socrates to consider something difficult for the latter to grasp. All other constitutions are ‘imitations’ of the one that is based on the Statesman’s expertise. But how are these imitative polities ruled? Here citizens do not dare to contravene the laws, if they do not wish to face the most severe penalties, even death (297D-E; cf. 300A-301A). Of course, in these cities laws may have been ‘established on the basis of much experiment’—they may have been adopted after the advice of counsellors, which may have persuaded the populace to pass them (300B). However, after their adoption the established set of laws is to be obeyed almost blindly (300B-C, 300E-301A). This so because in these cities the Statesman is going to be absent most of the times and citizens do not possess his/her art, so they should abstain from changing the written code of laws as it is given (300C-D, 301A). If, on the other hand, citizens possessed the art of statesmanship, then we would say that their constitution is not an imitative one, but the true constitution of the Statesman himself (300D-E). However, it is highly impossible to see the Statesman and his constitution emerging in any time and in any visible form. ‘We must take things as they are, however, and kings do not arise in cities in the natural course of things in the way the royal bee is born in a bee-hive’ (301D-E).
How could Plato ever avoid the gap that separates rule of generalising law from rule of individualised wisdom? Does he now abandon his radical utopianism in favour of crude pragmatism, of absolute commitment to the laws of the city? Which reasons, necessities or myths lie behind such a surprising dialectical move (or rather ‘leap’)? And which is the political value and the true meaning of the ‘tracing’ or ‘imitating’ alternative that is suggested by the Visitor? These are the questions that I am going to deal with in the remnant of this essay.
Aporias of rationalist logos
Dialectics
Let us move back in time, to Athens of 399 B.C. Just a day after his trial Socrates participates, for the most part silently, in a long conversation. The topics of this conversation revolve around the distinction between the Sophists (recall that Socrates was accused of being one of them), the Statesman and the Philosopher. Socrates’s companion includes a Stranger, that is, an anonymous Eleatic Visitor, and a group of mathematicians, younger and older ones: Theaetetus of Athens, Theodorus of Cyrene, and Young Socrates, with the aid of whom the Visitor will attempt to accomplish a difficult philosophical and political task: to finish off a ‘clear and precise’ portrait of the statesman and of his expertise. The discursive aim as a whole is ‘to bring our minds and our souls to conceive’ or to ‘stamp the way’ to a definition of the Statesman, in other words to trace the ‘political pathway’ (258C ). Later on the Visitor and Young Socrates will agree that this quest takes place not only for the sake of the definition of the statesman itself, but also ‘with the aim of becoming better dialecticians’ (285D), ‘training ourselves to give and to understand a reason-based account of every existent thing’ (286A).
A first question to be raised is concerned with the nature of the dialectical exercise itself. Are we going to ‘construct’, to ‘paint’ or simply to ‘refresh’ the ‘portrait’ of the Statesman? Selecting among such terms depends upon how one will perceive the epistemology of the Politicus and its relationship with the so-called ‘theory of Forms’. If, following Skemp for example, we see Forms behind the various definitions that emerge from within the lines of the argumentation, then ‘the essential point for Plato is that the act of division must be made at a natural “joint” in the body of Reality’ (Skemp 1987, p. 72; cf. Phaedrus 265E-266A). However, we may choose not to read eidē in the Politicus as identical with the strange entities that dwell in the intelligible world of Forms, of absolute and immovable Reality. Lane (1998) presents the case for a ‘non-unitary’ reading regarding Forms and the method of division-examples. According to her, the latter denotes a ‘system of understanding’ which, diverging from the typical theory of Forms, is premised on a ‘dynamic method of comparison’ and on ‘methodological clarification of names’ (pp. 18, 63, 67). The latter are invariably to be invented or simply applied, as ‘tools’ that help us clarify and extend our beliefs rather than as a solid ‘evidence’ for a ‘perfect’ representation of reality (pp. 32-33, 67). The epistemic goal here is clarity of understanding, and the aim of Socrates’s companion is to establish a ‘sufficient sense of identity’ within a ‘context of similarities/differences’ (pp. 26-27). This aim, in its turn, can be accomplished because of an ontological kinship that unites all things, especially the most complex among them (p. 9).
Lane’s account offers us a conception of knowledge-acquisition through examples that is substantially different from our modernist understanding of scientific and/or philosophical inquiry. The latter, understood as a matter of a purely cognitive enterprise, is located within the boundaries of apodictic-constructive reasoning. These boundaries usually coincide with the ones that mark the competences of the individual researcher or thinker alone, as separated from her political-discursive affiliations, the realm of the ever possible ‘difference’, as it were. Even when we speak of discursive acquisition of knowledge, we the moderns mean the gradual achievement of an accurate—‘as much as the current state of knowledge permits us’, is our modest conditional—and potentially undifferentiated representation or determination of reality. Such orientation implies a kind of ‘ensembliste-identitaire’ logics whose main paradigm is mathematics (Castoriadis 1987, Chap 5) and which is substantially totalitarian. Our modern epistemology is permeated by an instrumentalist account of logos and of its symbols or notions, and is regulated by the latent claim to cognitive omnipotence, more specifically by the claim to an ever possible and potentially definitive exclusion of all ‘falsified’ hypotheses (see, of course, Popper 2002).
On the contrary, the Platonic philosophical discourse implies an immersion into a world of significations that are formatted within a constant agōn between our cognitive capabilities and the ontological resistance of the objects of our knowledge. In other words, the Platonic dialogue works as a non-terminable competition between meanings whose fluidity cannot be definitively eradicated, because they can never fully participate in the mode of Being. As Smith notes, rendering Gilles Deleuze’s understanding of Plato and of Platonism:
The method of division is not a dialectic of contradiction or contrariety (antiphasis), a determination of species, but rather a dialectic of rivals and suitors (amphisbetesis), a selection of claimants. It does not consist of dividing genera into species, but of selecting a pure line from an impure and undifferentiated material; it attempts to distinguish the authentic and the inauthentic, the good and the bad, the pure and the impure, from within an indefinite mixture or multiplicity. It is a question of ‘making the difference’, but this difference does not occur between species, but lies entirely within the depths of the immediate, where the selection is made without mediation (Smith 2006, p. 94).
Thus, we may speak of rivalry and of agonistic participation in a selective process under conditions of an ever expanding inclusion/differentiation, which is premised on eternal love for wisdom but also on a non-eliminable amphisbetesis in the heart of every philosophical discourse. We may not speak of a war-like combat aiming at a final identification of our concepts with the Idea, under conditions of a possible exclusion or even extermination of the ‘third’ (the Stranger).
In view of this conception of the dialectical process, it is understandable why the pathway that leads to the definition of the Statesman is all but linear. The quest is marked by successive mistakes, which the Visitor attempts to rectify, with his corrections and ‘true beliefs’ often provoking more confusion than illumination.
In a first series of divisions, the Visitor will lead the discourse to an obviously absurd and rather ridiculous definition of the Statesman as shepherd of ‘featherless bipeds’ (267D). A ‘vacuum’ is created here; one that is not strictly logical but axio-logical, that is, related to values rather than to concepts (Lane 1998, p. 44). The failure of the Visitor to make the necessary distinction between nurturing or rearing animals and caring for other human beings coincides with a failure to detach the world of wisdom lovers and of human creation from the realm of care-free natural life (a detachment which is one of the basic concerns of ancient Greek axio-logy).
Interestingly enough, the Visitor will attempt to correct his immanent rationalistic mistakes by introducing a ‘pleasant story’, more suitable for children, that is, for Young Socrates but also for the ordinary citizens of Athenian democracy.[6] A Platonic dialogue is a cooperative philosophical journey, one whose constitutive motivation is not only love for wisdom, but also friendship and reciprocity between the participants. The companions, even the youngest ones, have all an equal share in the burdens and in the fruits of the discourse. Mutuality and affection necessitate a continuous gliding into different modalities of understanding—hence, the introduction of a myth or a story. This constant fluidity brings to the fore the frailty of our mind-related activities and, at the same time, the inventiveness of philosophical discourse. The latter, inspired by its erotic aspirations, dares to compete with the ungraspable, the infinite or even with chaos in the ancient sense of a vacuum, of non-Being. These dialectical and cosmological elements form a background that has nothing to do with the Christian hope for salvation or with some other religious-chiliastic vision.
Be as it may, ‘the philosophical environment is never ideal, and myth symbolises this’ (Morgan 2000, p. 181). Plato and the Visitor are aware that philosophical reason should be immersed into the cosmological gap that separates rational understanding from its ontological presuppositions. At least, they are aware that this is so, if they wish to attain some sort of axiological excellence (that is, the philosophical virtue, the aesthetic excellence and the political authority of the ones that are able to provide clarity of understanding). Of course, they also know that ‘the more authoritative and convincing the account, the greater the danger that the dynamic interaction at the heart of philosophy will be lost’ (Morgan 2000, p. 243). They are also aware that ‘the best account is still inescapably a mythos because of human frailty and the instability of language [...] At best, these narratives are “likely accounts”, at worst, they tyrannise the intellect with an unjustified imprecision of knowledge’ (ibid.) But philosophical dialectics must proceed, due to its immanent aporias and to its erotic aspirations.
The Myth
The theme of the famous myth of the Politicus is a contrast between (a) the era of divine ordering of the world, where god-shepherds rule and where human beings, along with all other animals, enjoy a care-free life, and (b) the era where ‘the Pilot of the ship of the Universe … lets go the handle of its rudder’, where ‘destiny and its own inborn urge take control of the world again’ (272E), that is, the era in which ‘the Universe must take sole responsibility and control of its own course’ (274A). In this second era, which is called the age of Zeus, human beings, burdened by necessity, have to rely on themselves. They have to learn how to deal with nature and with time, they also have to take care of each other within self-regulated communities, imitating the autonomous course of cosmos in this respect (274B). Lane rightly speaks here of a ‘structural’ demand for a kind of autonomy which will be patterned in the form of a ‘second-order imitation’ of the self-ruled world. Such imitation will not be a passive reproduction, because ‘to imitate self-rule means to rule one-self, not to be ruled by that which one imitates’ (Lane 1998, p. 109).
The space of the Political is constantly being born out of a mysterious but unavoidable transmutation from the mode of heteronomy (the mode of existence that corresponds with the era of Kronus and of god-shepherds) to the mode of autonomy (era of Zeus). The cosmic reversal and the cosmic motion in general are governed by a ‘power’ (269E) or a ‘nature’ (273B) whose authority lies above human beings and gods alike. We may track here some kind of unknowable fate in which even the Dēmiurgos himself partially resides, ‘for even He cannot move the Universe now in one sense now in the other’ (269E). The only thing that we are permitted to know for sure is that the Universe, in both of its modes, participates in a bodily form (269D). To this bodily form we may attribute our forgetfulness, our decay and the consequent cosmic reversal (273B). The latter cannot be accounted for in terms of divine laws, humanly rational explanations and/or some natural teleology. The only remaining possibility is to ‘affirm what has been just narrated’ (269E-270A). To affirm a ‘noble foundational lie’ we would say, if we were discussing the Republic (see Rep. 414B-415D). To affirm the priority of primordial desire and of action towards the unknown ‘other’ over rational justification and self-sufficient legal institutions, we could also say, if we were in the context of ancient Greek tragedy.[7] Or to accept the irreducible adiakrisia between lawfulness and unlawfulness, if we were discussing the Derridean ‘mystical foundation of the force of law’ (Derrida 1990).
Within the labyrinths, the estranging metaphors and the narrative deadlocks of the Myth, we are led to acquire a good sense of the aporias of all rationalist logos. Our well known epistemological uncertainty is now coupled with ontological instability. All aspects of autonomous existence are imbued with the fate of heteronomy, of decay and of death, of non-Being. All Being is foundationally affected by the terrible uncertainty which is provoked (and invoked) by the imminent cosmic reversal.[8] Nevertheless, the myth also conveys a sense of faith in a possible cosmological retribution for our ontological and epistemological fragility. This faith is a ‘negative’ one and has nothing to do with modern religion. Even if it was the Divine Pilot who brought the Universe into being and somehow made It partake of bodily form, it wasn’t Him who created matter and it is not certainly Him who dictates the motion of the Universe as a whole (269D-E). Even He has to abide by the norms (the necessities or even the arbitrariness) of a superior power that underwrites genesis of matter and whose name is spelled by the Visitor only once: ‘themis’ (269E), a form of justice in which all beings alike, material, human or godly, have originally an equal share, for the good and for the bad, so to speak. Anaximander of Milētus was perhaps the first that spoke of this poisonous original gift, when he discussed on the genesis and on the decay of all beings in terms of dikē (justice) and of tisis (punishment).[9]
For human beings, the share in these ambivalent origins can be vindicated through philosophy. The Visitor alludes to this perspective through a seemingly innocent question about the existence or not of philosophical inquiry in the era of Kronos (272B-D). The answer to this question is left to a mysterious ‘messenger’ of an ever postponed future; perhaps to a Philosopher who will be mature enough to surpass the level of young story-tellers and give us a more transparent account of ‘the different varieties of knowledge and the need for talk’ in the age of Kronos (272D). In any case, the exercise of our philosophical capacities may activate not only the ‘goods’ of self-regulated societies but also the ‘tremors’ and the confusions that haunt our attempts to cover the distance between (legal-institutional but also cosmological) autonomy and the variegated nature of human affairs. The latter may be regulated by more ‘invisible hands’ than we may ever become able to detect—or, better, they may not be regulated by any hands at all.
For us, the moderns, the attempt to substantiate abstract laws into sound political and juridical judgments may be carried out through some civilizing act of self-governance, within the premises of the participative rules and procedures of our secular justice. But where do these rules and procedures stem from? Are we sure that they are entirely self-sufficient and even self-instituted? Even Plato cannot offer us any philosophical certainty about such questions. And this is what Castoriadis forgets, when he accuses Plato of not having minded the ‘gap’ that separates law from its necessary participatory specification (2002, p. 143). It is highly doubtful whether this gap can ever be filled, controlled or even recognised as such. Castoriadis does not see here, as he does elsewhere in his own oeuvre (1987), a dimension of our fragility that is not only epistemological (furthermore, political, social, historical or even philosophical), but mythological and, at the same time, cosmological, that is, pertaining to radical imagination and to the terrifying magmas which separate us not only from self-sufficient democratic autonomy but also from the actual recognition of the ‘gap’.
Surprisingly or not, our reading foreshadows some of the concerns and of the warnings of such anti-Platonic philosophers as Nietzsche or Heidegger.[10] Our reading of the myth also does justice to many of the findings of the so-called ‘tragic turn’ of (post)modern jurisprudence (see e.g. Douzinas and Warrington 1994, esp. Chap. 2, and for an overview Manderson 2001, pp. 95-98). Taking our faith in the idea of justice as granted, as Plato but also as the agents of the ‘tragic turn’ do, we may however notice that the origins and the foundations of this idea in itself do not only inhere in our reason-, education- or even religion-based capacities. They also lie in the mythological and cosmological magmas that unconsciously permeate and potentially stabilise or de-stabilise our co-existence, beyond our grasp and beyond the objects or the symbols of our faith. In this respect, we may see that our ‘personal freedom’ and our individual or collective power to act self-consciously, calculating carefully the consequences of our actions, run upon a tragic aspect of our presence in the world: openness ‘to unpredictable and horrible machinations’ (Douzinas and Warrington 1994, p. 67), which in a tragic manner transform our willingness to act justly into ethical and political disasters, as the ones that the people of ancient Thēba had repeatedly faced due to the acts and to the fate of their tragic heroes, Labdacus and Oedipus, Creōn and Antigone.
Our share in the unknowable and in the unthinkable, moira, can neither be fully controlled nor be fully accounted for through reason-based dialectics and through reason-based political or individual action. As Socrates himself acknowledges in the Republic (473A):
Can anything be done as it is said? Or is it the nature of acting to attain to less truth than theorising, even if someone doesn’t think so? (Bloom’s translation, slightly altered)
Turning our minds and our souls to the affairs of the city
Weaving and due measurement
Our trust in philosophical discourse must be suspended once again. In spite of his great efforts in telling the myth, the Visitor derives from it a new dialectical disillusionment; namely, the slightly improved definition of statesmanship as ‘tendance freely accepted by herds of free bipeds’ (276E). Insofar as this definition reproduces the commonsensical standards of ordinary people (‘whether it rule by violence or consent’), it must be abandoned in favour of a new one, based now on the example of weaving.
The new search will not be concluded before the end of the dialogue. The Statesman will finally be defined as the ‘weaver’ of the ‘bonds’ that unite the city (305E). Not dismissing but simply controlling and combining the subordinate arts (282A-C), he/she will nonetheless instantiate in his/her own figure the force of the Political (304D), the universality of the art of statesmanship (305E) and, in general, the unifying state-powers of the city. He/she will manage the realm of political and social psychology, combining the characters, the virtues and vices of citizens, not through some soul-transformation process, but through (paternalistic) direction and training of the passionate (see e.g. 308E, 309A), in order to make them change their own minds, for the sake of ‘weaving the web of the state’ (309E). Besides, he/she alone will decide upon the time (kairos) when persuasion or force should be used (304C ), being concerned, among much else, with the interpretation and with the enforcement of the contracts and of the laws of the city (305B-C). But in what precisely does this latter concern consist and which are the standards that may guide its actualisation?
If ‘weaving’ activities of any kind make up the external or practical manifestations of statesmanship, a non-relativist notion of ‘due measurement’ points to its intellectual and ontological core. Plato tells us that there is an ‘art of measurement’ and we can divide it ‘into a section concerned with the relative greatness or smallness of objects and another section concerned with their size in relation to the fixed norm to which they must approximate if they are to exist at all’ (283D). The words ‘fixed norm to which’ are inserted by the translator of the dialogue (Skemp 2002, p. 171), but they render well the meaning of the distinction at hand, in accordance with the passages that follow. This ‘fixed norm’ is a necessary condition of the genesis of all existent things, and provides the ontological counterpart (and hope) of the cosmological themis of the Myth. The standards which this norm contains are not only ‘due measure’ but also ‘what is fitting’, ‘the right moment’, and ‘what is as ought to be’ (284E). In their entirety—but with ‘right moment’ (kairos) prevailing among them (305C-D, 304C ; Lane 1998, pp. 139-146)—these standards imply that there is a right judgment in each and every occasion, even if it is rather impossible to define with precision its ontological and its epistemological premises or its political and institutional implications.
Due measurement, referring to the ways things are and in which they come into being, dissolves the fixity of all language uses and of all conventional or practical wisdom that we may find in our cities. On the other hand, the Statesman is not defined so as to indulge in the acquisition of theoretical knowledge about all arts and sciences in the city. He is neither a ‘master-theoretician’ nor a ‘master-architect’, but a master of axiological standards. Now, we could certainly argue that these standards are normative ones. However, ‘due measurement’ does not coincide with the re-constructive normativism of our Rawlsian times. In the Platonic dialogue ‘objectivity’ and ‘normativity’, if existing at all, rest with the natural, the discursive and the political ‘objects’ themselves, not with our own re-constructivist (meta)theoretical projects. The ‘basic norm’, in its turn, participates in Being and not in the abstract-theoretical realm of the Ought. Of course, there is a judging capacity which is comprehensively concerned with all normative dimensions of human existence—the moral, the practical-prudential, the temporal-historical and the political-institutional. However, this capacity cannot find a stable, fixed or unconditioned refuge into divine justice, natural rights or pure reason. Neither can it be linked with some solid existential entity like ‘people’ or ‘nation’ or with some self-sufficient existential dichotomy, as the Schmittian distinction between ‘friend’ and ‘foe’. As in Platonic dialectics the notion of an excluded ‘third’ does not exist, so in Platonic politics, and in politics of the ancient Greek world at large, there can be no definitive distinction between the existentially included and the damned ones, the excluded or the enemies.
To these remarks we should add another one having to do with our legal epistemology. If the above reflections are correct, then the performative effect of Plato’s attack on laws consists in something more than our well-known critique of the generality of laws and of the types of injustice or even of violence that may be concealed in their application.[11] What separates us from Plato’s ‘communicative intentions’ is our faith in the possibility of a ‘jurisprudential’ and/or ‘democratic’ way to surpass injustice and violence through taking control, and possibly sharing this control, over the laws that shall govern a self-sufficiently human reciprocity. This democratic and humanistic faith in the possible participative concretisation of law, premised as it is on a rationalist notion of progress, is lacking in Plato and in his world. There even self-instituted and well-justified laws form an immanently returning pharmakeia; a remedy that participates both in Being, which frames our presence in the world, and in practical Reason, which encounters and tries to transform what Is; an antibiotic which functions both with and against the philosopher and his nomo-logical expertise.
Back to the laws of the city
In any case, the political expertise could never exist apart from the bodily-visible form of the philosopher-statesman. The latter can be elevated into a distinct object of the dialectical research only on condition that we are able to see him/her arising from within the city and from within the world of bodily things at large. This is so because in politics and in cities things must be discernible not only from within the Intellect, the Soul and the metaphors of the philosopher-kings, or even from within the wishes of the ones that want to see them and discuss on them (see Rep. 592B). They must also be discernible for the ones that are going to suffer from, and possibly to counter-act, the commanding services of the Statesman.
The Statesman does not claim an art that does not exist, as the Sophist does. But neither can be easily separated from the Philosopher, an intellectual or discursive figure that is distanced from the practical affairs of the city. Is the example of weaving, with all its philosophical-metaphorical magnificence, sufficient for providing the crucial differentiation between the Statesman and the Philosopher? If not, a dialectical impasse has been reached. The dialogue risks ending up with just another soothing identification, suitable for children alone. But philosophical dialectics must proceed, keeping always open the possibility of new examples, divisions and/or metaphors. That is, keeping safe the non-eliminable potential of humans for problematisation and politicisation, keeping also safe the original ambivalences and the foundational aporias that motivate all philosophical, dialectical and political surveys.
At 296C-D the interlocutors draw the image of those who, contrary to written laws, attempt ‘to do different things that are more just, better, and finer’. Thus, it seems that Justice, the Good and Beauty should be posited next to political expertise as the latter’s necessary companions. However, as we argued in the previous section, these ideal ‘companions’ do not and cannot play the role of an ultimate refuge—the same role that Socrates’s companion plays for the sake of the philosopher in the dramatic context of the dialogue. The political expertise is to retain some independence from Justice, Virtue and the Beauty, despite their intrinsic affiliation and their common constitutive aim, namely to promote harmony and happiness in the city as a whole.
The familiar images of the captain and of the doctor teach us why we should insist on such independence. On account of the power inherent in their science, these experts are equally capable of saving or of mutilating their patients and their crew (298A-B). The ambivalence on violence/consent re-emerges and makes all the more urgent the need for a separation of the Statesman from the Philosopher. Whereas the latter’s ordinary activities are ‘ideal’ and, therefore, do not relate immediately to the practical affairs of the city, to its laws and to the everyday use of violence or persuasion in ruling the city, the same does not hold for the former. Despite its metaphorical background and material, the case of ‘laws vs. the Statesman’ is not metaphorical by itself, since the Statesman must assume a bodily-visible form and he must also assume the risk of ‘mutilating’ the people rather than saving them.
Of course, the case is not an easy one to handle. Contrary to the Republic where laws are rather indifferent to the task of constituting justice in the souls of citizens, here in the Politicus:
fixed laws pose a mortal threat to appropriate action responsive to a constantly changing kairos. It is the shift to a temporal and dynamic context that makes law suddenly stand out as a dangerous rival to political expertise, a rival to be unmasked and firmly subordinated (Lane 1998, p. 150).
This ‘unmasking’ is conducted by a long discourse-experiment which is introduced by the companion for the purpose of understanding what a regime of laws would entail for the Statesman and for the city (298B et seq.)[12] In this regime not only statesmanship but all arts and sciences would be perfectly controlled by an Assembly and by magistrates chosen by lot (298B-E). Courts would be established in order to punish whoever dared to contravene the rules and edicts of the Assembly on every possible question (299A-B), and free conduct of any inquiry would finally be prohibited—for ‘there should be nothing wiser than the law’ (299C-D). Such restrictive policies would result in the abolition of any sort of expertise in the city, making life there unbearable (299E). All things considered, would not such a regime kill not only Socrates the Philosopher but also the Statesman? In other words, would not it resemble the age of god-shepherds rather than the age of Zeus, that is, the age of autonomous cities, the age of politics?
Killing the Statesman? A division never made…
If what we have to choose is either rule by free philosophical inquiry or a regime of strict obedience to all existing laws, then the only apparent way to save both the Statesman and the Philosopher is to depart again from the bodily realm of human affairs. However, this can be so only at the expense of our capacity to capture the difference between these two figures, and the companion, participating in the age of Zeus, has already promised Socrates to pay him back this ‘dialectical debt’ (257A). Although the Philosopher was never written (in fact, he was killed), I feel that it is also our duty to continue trying to pay back this debt. The latter is not strictly hermeneutical and should not be understood in terms of an ethics of ‘respect’ for Socrates and for his contribution to modern philosophy. It is a present political-philosophical debt that is motivated both by our eternal love for wisdom and by the urgent need of our societies to distinguish the Philosopher from the Statesman, taking seriously into account the ontological, cosmological and mythological ‘tremors’ that endanger the tasks and the art of the latter.
My interpretative proposal will be based on the supposition that, in contrast with what the Philosopher does, the Statesman cannot but employ some form of ‘good’ imitation of the self-legislative activities of the city. Rowe alludes to this interpretative pathway when he invokes a possible differentiation between ‘good’ and ‘bad’ imitation, with the first ‘mirroring the laws of the best state as far as possible’ (2001, p. 72). However, Rowe actualises this distinction in a rather conservative way, suggesting that ‘good’ imitation would consist in ‘simply sticking to established laws’, in the same way as ‘the best city itself will do under the situation which always obtains in the inferior ones—namely when there is no knowledgeable person present to show what changes should be made’ (2001, p. 73). Similarly, Lane accepts the prospect of ‘good’ imitation understanding it as a mode of applying the ideal to the real which ‘inevitably involve[s] substantial alterations’ in both of them (1998, pp. 157, drawing on Laks 1990). However, Lane prefers to focus on the most structural features of such imitation, concluding that ‘the crucial point for the second-best constitutions is to establish absolute stability and stasis of their laws, not because their laws are in themselves especially valuable but because such rigid stasis is superior to the devices of the ignorant’ (1998, p. 159).
Nevertheless, a few pages earlier Lane had suggested that ‘the expert can indeed ... be a lawgiver’, and that ‘so long as laws are conceived as memoranda rather than as rigid, they serve the useful function of aggregation and approximation, while at the same time protecting the possibility of correction by expertise when needed’ (1998, p. 155). Now, I believe that we are not compelled to confine this corrective function to a kind of ‘structural’ awareness that ‘sticking’ to existing laws is the best course of action when the philosopher-statesman is absent. Or, rather, I believe that such awareness could be enriched in a way that would expand the epistemological and the ontological background of the distinction between the Statesman and the Philosopher, providing substantial alterations to both of them. This background may be generated through awareness that laws are not one-sidedly lethal for the ideal city of the Philosopher, that laws could potentially incorporate and invigorate a part of the Philosopher’s dialectical capacities (namely, the ones that are related with the art of statesmanship), that laws are a double-faceted pharmakon whose necessity cannot be denied at least in the age of Zeus (the age of the Statesman). Such awareness does not necessarily lead to a change of Plato’s position as against the democratically adopted laws of Athens which killed his teacher. But, on the other hand, Plato must accept that, in forming laws and in becoming a Statesman, the Philosopher enters the world of bodily-visible things, the world of the city and of its practical affairs. Thus, the Philosopher as Statesman should be aware of the unavoidability of some form of ‘good’ imitation of the city’s self-legislative activities.[13]
Following these remarks, let me now go on to state my preferred reading of the relationship between the Philosopher, the Statesman and the Sophist. And let me do this using the ‘bigger letters’ of their cities:
(a) The city of the Philosopher corresponds with Callipolis of the Republic. The latter is constantly being built above the clouds of confusion that plague the existing societies and their positive laws. Notice that Callipolis can still be considered as immanent to actual human co-existence, in the form of a non-eliminable wish or desire for Justice (Rep. 592B), or even in the form of a possible share in the life of the Philosopher—the pathway which the myth has alluded to. However, insofar as the eyes of true philosopher-kings ‘are turned to fixed and immutable realities’ (Rep. 500B-C) rather than to the realm of everyday affairs, we should also be aware that the prospect of ‘cleaning’ and ‘wiping’ the ‘slate’ of the city for the sake of Justice (Rep. 501A) here means a discursive-educative rather than a political-instrumental possibility. Plato’s philosophical utopia is neither an engineering project nor a day-dreaming activity (Stratilatis 2008).
(b) The city of the Statesman is marked by awareness of the imperfection and of the uncertainty that permeates all existent things, among them humans and their affairs, their art-sciences and their laws. This city is also marked by awareness that statesmen, residing in ‘a small element in the population, few in number, or even a single individual’ (297C ), are the most vulnerable of all bodily-sensuous beings, since they must always fight for their place and for their competences among the Sophists and the Philosophers. Statesmen must also fight against the dual danger of either being poisoned or becoming useless by the citizens of the city which they attempt to re-create.
The difficulty to recognise and to help the Statesman survive is constantly present in our dilemmas as to our obligation to follow or to change the laws of our cities. Does abstention from amending laws (included here our ‘democratic’ constitutions) indicate an adherence to the prescriptions of the art of statesmanship, an expression of philosophical self-distancing? Or such abstention should be equated with the degraded form of privatised life which Athenians so much despised? This dilemma corresponds with the epistemological uncertainty and with the ontological instability that permeates all kinds of political co-existence. However, it also makes possible the activation of a possible shareability with philosophical life, now in the form of radical political imagination which is to be directed towards a continuous act of ‘good imitation’. This imitative act can take the form of active but critical participation in public affairs. Or it can take the form of a constitutional revolution, in order to save the space of the Statesman yet to come. Laws of the city, in their necessary fluidity and enforceability, embody and inanimate the constant fluctuation between philosophical self-distancing and immediate political action, the art of such fluctuation.
(c) What threatens justice is not only the poisonous/healing force that lies in every form of statesmanship as such. Injustice takes also the form of ignorance about the existence of standards that may regulate and direct the art of the Politicus. Existence of standards such as ‘the right moment’ or ‘what is fitting’ is guaranteed by the cosmological-ontological background of all existent things, themis. This is so notwithstanding the dialectical impasses upon which we run every time we try to define the art of the Politicus, also notwithstanding the ontological uncertainties that are activated whenever we try to actualise this art.
Besides, ignorance as to the presence of regulative standards is usually coupled by lack of political awareness that the best we can practically do is to imitate the age of Zeus and, hence, to be autonomous in a manner similar but not identical to the self-ruled world. Autonomy cannot be definitely achieved or attained, but only constantly be fought for, since there is no ‘god-shepherd’ to provide it once and for all. Lack of such awareness explains why life in the city of the Sophist is marked by an endless degradation: by an infinite chain of simulations and passive imitations of non-Being, by a series of copies of copies (see Smith 2006, cf. Rosen 1995, Chap. 9) which threaten to establish once and for all their dictatorial rule, eliminating the motivating order of Ideas along with the aporias and with the erotic aspirations that open up and support both active philosophical discourse and active political participation.
Life in the city of the Sophist multiplies cosmological and epistemological uncertainty, transforming it into a politically embarrassing regime that is haunted by passivity of the citizens, by non-philosophical silence and terror, by social strife and by dissolution of all communal bonds. Ignorance and self-willed attitudes, concealed behind the veils of economic and political authority, transfer this type of embarrassment in the laws of the city. And, replete as we are with all our desires, needs and concerns, we tend to forget the only real possibility that has ever existed against the fate of decay: the life of the Philosopher and the active search for the Statesman in, through or even against the laws of the existing city, in possible accordance with the themis that permeates all existent things. In other words, we tend to diminish our expectations and our critical distancing from the laws of our cities, indulging in the comfortable idea that laws are a totally distanced and self-sufficient mechanism, that laws are able to cure all kinds of ‘social pathologies’ by themselves, for themselves.
Acknowledgements: A first draft of this article was submitted as a post-graduate dissertation to the Department of Government of LSE in September 2008. I am deeply grateful to Janet Coleman, the supervisor of this dissertation, for her teaching and for her overall impact on my philosophical thought.
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* The present article has initially been accepted for publication in the journal Law & Critique and it has now entered the process of being reviewed.
[1] ‘Themis, usually translated as “right”, is the most archaic of the terms associated with the order of things […] Themis is the original orderliness of gods and men in archaic mythology and social structure, the law of law and the ground upon which the primordial force of obligation to the other is felt’ (Douzinas and Warrington 1994, pp. 68-69).
[2] For the rendition of the quoted passages of the Politicus in English I use interchangeably Skemp’s and Rowe’s translations, as found in Skemp (2002) and in Cooper (1997) respectively, depending on my reading of the original text. For the rest of Plato’s dialogues I advise the translations which are found in Cooper (1997). For the Republic I use the translations of Lee (Plato 2007) and of Bloom (1991). References in brackets refer to the original Oxford edition of Plato’s work. When no dialogue is mentioned, the reference is to the Politicus.
[3] We may track here a foreshadowing of Aristotles’s distinction between distributive and corrective justice in Nicomachean Ethics (1130B et seq.)
[4] This point is emphasised by Gill (1995).
[5] Cf. Laws 693B: ‘…legislation providing for powerful or extreme authority is a mistake. One should always remember that a city ought to be free and wise and enjoy internal harmony…’
[6] Cf. Timaeus 22B et seq., where the old Egyptian priest tells Solōn (the ancient law-giver of early 6th century) that Greeks are going to be always young, and explains why this is so.
[7] ‘Antigone’s devotion to Polynices is the outcome of a mad, immemorial desire that has been inscribed into her before and outside of the time of institutions and laws. Her action is the unconscious affect in the house of Being of a stranger who has never entered it. An originary seduction has taken place, the self has been taken hostage by the primordial other whose desire is an excessive overflowing and an inexorable command […] Can there be a law that emanates from this dark region of desire and challenges the legality of the city and the work of repression of the family?’ (Douzinas and Warrington 1994, p. 79).
[8] ‘What we must constantly keep in mind when we discuss ancient Greek philosophy—or ancient Greece in general—is that this philosophy does not emerge from within some glade of Being. On the contrary, it comes into existence as a permanent struggle against what we could certainly call a nightmare, the nightmare of non-Being, the nightmare of the generation and of the corruption, and more generally of the inconsistence of what Is’ (Castoriadis 2004, p. 203, my translation).
[9] For the original Greek text and for a rich discussion see Castoriadis 2004, pp. 185 et seq. For Heidegger’s and Derrida’s reading of the fragment see De Ville 2009.
[10] In his magnificent treatise on Plato’s Politicus, Stanley Rosen (1995, p. 118) concludes: ‘It may appear anachronistic to some readers when I say that the one thinker in the entire tradition of Western philosophy who is closest to what is today regarded as the rejection of Platonism is Plato himself. There is, however, no anachronism here but only the recognition of one of the main themes of the myth of the cosmic reversal. It is precisely at the end of a cosmic cycle that we fail most drastically to understand the proximity of the end to the beginning. We could do worse than to think of Penelope, the wife of Odysseus, himself the prototype of the philosopher, as the human representation of destiny, who unweaves by night what she weaves by day’.
[11] We meet this concern already in Aristotle’s treatment of justice in Nicomachean Ethics (1133B et seq.)
[12] Of course, this experiment differs significantly from the abstract-hypothetical experiments of modern ‘social contract’ theories. The description that is employed here corresponds with the dramatic-political context of the dialogue, i.e. with the fact that Socrates has been condemned to death by the laws of the city just the previous day. Therefore, the experiment comprehends the background thoughts, motivations and sentiments of the discussants themselves. The latter are not confined within the ‘reasons’ and ‘justifications’ of the separated thinker who reflects on the available institutional choices alone, after discussing with his fellows in the original position (and although these choices have to do with their future societal cooperation).
[13] The prospect of ‘good’ imitation can also be traced to the Republic (see Stratilatis 2008, pp. 579-580).
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