‘The Status of Classical Natural Law: Plato and the Parochialism of Modern Theory’

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The anadian ournalofaw& urlsprudence

An International J0-umal ofLegal Thought

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Andrew Botterell

Mark Capustin

Eric Heinze

Travis Hreno

Dimitrios Kyritsis

Mare Ramsay

Michael Robertson

VeronicaRodriguez-Blanco

Andrew F. Sunter

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Property, Corrective Justice, and the Natureof the Cause of Action in Unjust Enrichment

The Authority of Lawin the Circumstances of Politics

The Status of Classical Natural Law:Plato and the Paroehialism of Modern Theory

Necessity and Jury Nullification

Principles, Policies and the Power of Courts

The Religious Beliefs of Tort Victims:Religious Thin Skulls or Failures of Mitigation?

Telling the Lawis Two Stories

Peter Winch and l-l.L.A. Hart:Two Concepts of the Internal Point of View

TWAIL as Naturalizetl Epistemolngical Inquiry

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Vol. XX, No. 2 The University of Western Ontario Faculty of Law July 2007

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The Status of Classical Natural Law:Plato and the Parochialism of Modern TheoryEric Heinze

Socrates transformed ancient thought, placing justice at the centre of abstractinquiry. Earlier Greek philosophy had focused on the natural world. Ethics and jus-tice were the province of poets. Plato embraces that shift in written form, authoringGreek antiquityis first detailed and critical analyses ofjustice. For ethical and polit-ical theorists, Plato has always stood as the foundational thinker of the Westerntradition.‘ Justice is the subject of Platois two longest and most intricate works. theRepabiie and the Laws. lt is also key to such works as Apolrrgy. Criro, ion,Errrlrypirro, Piraealo, Prrr!agon:.r.r, Metro, Greater Hippies, Gargias, Phiieirrrs andSraresnrrrrr. Combined, those works cover over 800 pages in two standard English-language editions:-—-certainly rivalling the output of Austin or Hart.

While Plato remains a towering figure in ethical and political phiiosophy, he hasnever played a serious role in legal theory.-i Legal theorists either ignore him entirely,or drop nonchalant references to “Platonic guardians“ and “philosopher kings", lack-ing any thoroughgoing engagement with his writings. Few serious legal scholarswould presume to brush away Hart or Dworkin in such a breezy stroke (“For Hart,there is nothing important about law aside from rules“ or “For Dworkin, there isno difference between judicial opinions and novels"). The fact that we do so witha thinker like Plato reveals very little about Plato, and a good deal about us.

The aim of this article is not to "rehabilitate" Plato, as if he were central to legalscholarship and had nrerely suffered from bad press (the way, for er-rample, somescholars have sought to revitalize Austin by challenging Harris account of him‘).Nor shall l undertake a general account of Platois legal theory, which l haveattempted elsewhere.’ Instead, my aim is to ask what we cart learn about the limits-

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I am grateful for comments provided by Peter Alldridge. Richard Elronaugh. Roger Cotterrell. RichardNobles. David Schifl" and Prakash Shah.

I. Citations of Plato are to the Stephanus system. Quotations refer to John lvl. Cooper, ed.. P.-‘trio:Conrpiere iiirrier {Cambridge MA: Hacl-rett. l997i [Pirrro]. Citations of Aristotle are to the Bekkersystem. Quotations refer to Jonathan Barnes. ed.. Tire Corrrpiere I-iirr-hr af'Arr'.rrorir*.' Tire RevisedO.rfi;rr'ri' Ifirrrr.rl'ariorr.r', {Prineeton, NJ: Princeton Univ. Press, I934} [Crrrrrpitrre Waritr]. C itarionsof Aquinas are to Srrnunrr Tlreairrgir.-a. trans. by Fathers of the English Dominican Province {New‘fork: Random House. 2000}.

I. Sec Plato, Caiieered Dialogues. ed. by Huntington Calms & Edith Hamilton lPrinceton. NJ:Princeton University Press, 1961].

3. As Plato has figrured more prominently in traditional philosophy than in legal theory, an age-old question emerges as to distinctions among such concepts as "legal theory“, “legal philosophy"or "jurisprudence." [Ilitferences among those terms are not categorical, but more matters ofempha-sis and convention. CE, c.g._. Roger Cotterrell, The Poiiries af.irrri.rprrrderrr.'e vol. 2. End cd..(London: Butterworths. 2003]: Nigel Simmonds. Ceannl f.rsrre.r r'rrJrrr'ispr1rderree(London: Sweet8: l'vla.s.wcll. 1002']. Accordingly, l shall nor assume any points raised in this paper to be affectedby possible distinctions among them.

4. See, e.g.. Cotterrell, .rrrpra note 3 at 60-til: Wayne Morrison, .J'rrr'isprrrtferrce: Frarrr tire t'IreeIrsto Fr;-.rt-Mao"errri.rnr (London: Cavendish. 199'?) at E13-2.3.

5. Eric Heinae. “Epinornia: Plato and the First Legal Theory“ (2007) 20 Ratio Juris 97.

Canadian Journal of Law and Jurisprudence Vol.XX, No.2 (July 2007)

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324 Heinze

in particular, the ahistoricism, or historical pa.rochialisnt—of a tradition of legaltheory that scarcely even notices the philosopher who had laid much ofthe frame-work for Western thinking aboutjustice.

ln the aftermath of World War II, both liberals and radicals were searching forthe intellectual origins ofWestern totalitarianism." Plato emerged as the father ofall Hitlers and Stalins. In the Htunanities, that perspective, far from killing off Plato,elevated Plato studies to a more critical level.“ No such interest awakened amonglegal theorists, many ofwhom continue to embrace a straightforward Popperian"view of ( I} the philosopher ruler“ as simultaneously mystic and proto-fascist, and(2) the theory of Forms as simultaneously hollow and absolutist. In some ways,that attitude is bizarre. Even ifwe concede the (highly debatable) proto-totalitar-ianism of Plato's thought, conceptual links between classical positivism and total-itarianism, far from burying figures like Hobbes or Attstin, has fuelled the keenestinterest in them. So it cannot be Plato’s fascist tendencies, whatever they may be,that would account for the neglect.

Rather, in this article, I shall argue that the neglect of a figure like Plato reflectsa broader trend among legal theorists, namely, their common failtue to situate legalmodernity—by definition, an historical concept—within a critically-minded his-tory. (lvly criticism will be only of legal theorists’ approaches to pre-moderntheory. l shall not er-tamine legal scholars’ approaches to particular pre-modernlegal .r_v.r!enis, for which there have long been solid canons of research.) Many legaltheorists today, despite their claims to have overcome de-conteittualiaed, ahistoricalpositivism, and despite the limited revivals of Aristotle or Aquinas, perpetuatetraditional positivisnfs reductionist approaches to pre-rnodern theory. Figures likeAustin, Kelsen, Holmes, I-lart, Fuller, Finnis, Dworkin, Macklhmon or Rae, fillingscarcely more than a century, are commonly cited to illustrate the variety of legaltheory. By contrast, figures as fundamentally different as Sophocles, Plato,Aristotle, Cicero, Augustine and Aquinas, spanning two tnillennia, are oftenlumped together in a page or two, precisely in the way that traditional positivistshad lumped them together (my example in this article will be Kelsen), under theheading of “natural law.“

Certainly, scholarly rubrics always have rough edges. “Positivist” means dif-ferent things for Austin and Hart: “liberal” means different things for Mill andRawls. “l\latural law” covers an equally broad group. However, while legal scholarshave devoted exacting scrutiny to elements that have distinguished one positivistfrom another, or one liberal from another, such efforts are not always made to draw

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6, See ittfitt Part ll.7. For some recent approaches. sec. c.g.. Basil lvlitchell 8: J.R. Lucas, ,4.-1 Engegemern it-Mi Pinto Ir

RepttI:Jfr.- tAldcrshot, UK: Ashgate. 2003]; Gail Fine, ed., Pfrtto: En’tit'.r, Pm'f!t'e.r. Refigior: on.-:1‘the Soul, vol. 2 {Os ford: D:-tford University Press. I999}; Eric His Ostenfeld, ed., Essnie on Flt.-to IrRepttbfie {Aarhus. Dli: Aarhus University Press. 1998) [Esstrt-'.v]: Theo Kobusch ill: Burl-thardMojsisch, ed5., P!r1ton.' Seirte Diuloge in (fer .'$'f-fit! neuer PiJt‘s*-fltttrtgett tfiartttstadti Wissett-schaftliche Buchgesellschaft. 19%].

B, Sec hgfin Section ll,9. The term “philosopher ruler“ is better than “philosopher king“. since women can qualify for the

role. See. e.g., Rt=ptnhh‘r at 5413-c. Cf., e.g.. Nickolas Pappas, Plato and the Repiiblfe. 2nd ed.[London: Routledge. 2fl[l3l at I I3.

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fundamental distinctions among pre-modern thinkers. Pre-modern thinkers arecommonly seen as essentially united in a so-called “search for higher values”, withonly limited attention to their ether. often more interesting and trenchant, insightsinto the core themes of legal theory. That neglect is troublesome in an age of socialconstructionism, in which we ask how some of our standard concepts emerge in cen-tradistinction to supposed, often misleadingly er simplistically defined, oppesites—the relevant concepts forming, in this case, an assumed polarity between. en the onehand, the complexity ofmodern theory, and. en the other hand some presumed unityof pre-modern theory in some postulated quest for higher norms.

My aim is not to eliminate all meaningful opposition between the concepts ofthe “modern” and the “pre-modern.” As Weber had already begun to show, thereare features ofour legal systems and theories fer which a temporally distinct conceptof “modernity” has real meaning, e.g., in their responses. to name just a few exam-ples, to industrialization, er to the rise of complex commercial and financial trans-actions, er to the intricacies of the bureaucratic and administrative state.”Nevertheless, questions remain as to whether we have constructed myths of legalmodernity by defining it in contrast to unduly simplified concepts ofpre-moder-nity—falsely chtnacterizing modernity as entailing new and distinct understandingsof law which were in fact well-known to pre-modern thinkers.

Certainly, the concept of“higher” values plays an important role in classical nat-ural law and justice theories, as represented by Plate’s Forms, Aristetle‘s relos, orAquinas’s God. Yet no writer shows better than Plate how misguided we are if weconclude that classical natural law or justice theories were obsessed with legal ornormative absolutes. Plate never embraces a wholesale reduction ofjustice to themysterious “Form ofJustice”, which would be accessible only to the elusive mindof some philosopher-ruler. I shall argue that his analyses ofjustice do not usuallydraw upon the theory ofForms er any other absolutist concepts. Legal scholars‘ focuson Platels supposed moral absolutes also overlooks the dialectical character of histhought. In most instances, Plate’s specific assessments ofj ustice and injustice flowmore from a combination of dogged reason and sheer common sense than fi'em anyhermetic contemplation of some wholly abstract Fonn of Justice. (Certainly, we canrehash old debates about the sincerity of Plato’s dialectic, given the endless argumentsin which Socrates‘ interlocutors respond with remarks scarcely more challengingthan, “Yes, that must be true, Socrates” or “I den’t see what other conclusion wecan draw, Socrates.” No less than any other philosopher, however, Plato examinesany number ofobjections a.nd alternatives to his views, often paying far more atten-tion to questions and challenges than to conclusive answers, which is precisely thecharacteristic that should justify his appeal fer post-positivist theorists scepticalof unified and overarching theories of law). Perhaps even more than Aristotle orAquinas, Plato shows us how many of the concerns that are central to modern the-ory were important in pre-modern thought-—cencerns, for example, about foun-dations, legitimacy, formalism or rule-bound elements of law.

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ll]. See, e.g., Max Weber, lfir-rstrhrgfl and Geselfsr-linfi. 5th ed. by Johannes Winckelmann tTi.ibingen:.l.C.B. lvlohr, 1976'} at chs. Tl-9.

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It is no surprise that Aquinas often emerges as the real beneficiary of recentrevivals of interest in natural law, often standing as the paradigm for the whole tra-dition,“ mostly because his theory conforms to inorfern scholars‘ preconceptionsabout a pre-modern obsession with higher law, which his God supremely symbol-ises. Plato is particularly likely to be either neglected or misconstrued under thatparadigm: the more we look beyond his theory of Forms, the more we find every-thing but straightforward notions ofhigher norms. (In fact, even the degree to whichAquinas fully conforms to that view is open to debate, but I shall not pursue thatquestion here.) Failing to find that confin-nation of their preconceptions about pre-modernity, many theorists conclude that Plato is at best muddled, and at worst hasnothing much to say about law at all.

For those whose theoretical outlook remains anchored in positivism, none ofthis matters. They may acknowledge that law is an historical product, but do notsee that fact as essential to the accurate description of law. However. for those the-orists who remain sceptical towands the positivist tradition, things are not so simple.Ifyou believe that law is limdamentally an artefact of its historical, social, political,cultural, ethical or economic contexts, then you are more likely to believe that theconcept of modernity, and the ways we go about defining it, are important to legaltheory. Insofar as positivists expressly define legal theory in ahistorical terms, itis not surprising that their accounts ofpre-modern legal philosophy have been cur-sory and dismissive. By contrast, it is puzzling that legal theorists challenging thepositivist legacy, insisting on the social, cultural or historical elements of law, fre-quently adopt the same collapsed accounts of pre-modernity that we find amongtraditional, hard-line positivists.

In Part I, I examine some typical approaches to Plato and pre-modern thought,arguing that today ‘s views have scarcely moved beyond those proffered by legalpositivists over half a century age. In Part ll, l argue that those prejudices of legalpositivists have strong correlates, within philosophy, to prejudices of logical pos-itivists of the mid-20th century, which have long since been overcome in theHtunanities, but continue to thrive among legal theorists. In Part Ill, l examine otherpitfalls awaiting those who bting reductionist approaches to pre-modern thinkers.

l. Dominant Approaches: The Standard Textbooks

lfl am to examine Plato as an example ofmodern theorists‘ neglect of pre-mod-ern thought, l face, from the outset, the task ofhaving to explain a negative: whyix.-'1’! there much Plato scholarship within legal theory‘? I cannot start with a lit-erature review, because there is no general literature on Plato's legal theory.Publications can be found on specific issues in Plato"s thought, such as rhetoric"_ i i

ll. Ct"., e.g., text accompanying infi-u notes sz-at.I2. See, e.g., Marlena G. C‘-orcoran, “Last Judgment of Plato's Gorgias: lvlythes to You, Logos to

Me” l 193'?) T4 Iowa L. Rev. B27: Arthur .l. Jacobson, “Origins ofthe Game Theory of Law andthe Limits of Harmony in Plato's Laws” (19%) 2|] Cardozo L. Rev. 1335; L. H. LaRue.“Suggestions toward Readingffeaching Plato‘s Grn'gt‘nx** t 1994} 63 Ll. Cin. L. Rev. 3 I7: JonathanLear. “The lvlythic Defense of Justice in Plato’s Reptnoh'e“ (2003) 35 Conn. L. Rev. I549-t-'13;James E. Moody, “Plato, Aristotle. and St. Thomas Aquinas: The Relationship Between

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or civil disobedience." But scholarship on Plato‘s general understanding ofjusticeis rare.”

Absent any such canon within mainline legal theory, I shall instead turn to someofthe standard introductory textbooks on legal theory. Given that textbook writershave limited space even to review the dominant movements, and often have to omitthemes or figures that have exercised far more influence on legal scholarship thanPlato, it is perhaps surprising to find any mention ofhim at all. Yet a considerablenumber ofwriters do seem to feel that he must somehow be mentioned. Certainly,introductory texts can never provide definitive accounts of any theorist. They aremerely invitations to further reading, as their authors are usually the first to insist.Still, absent any real analyses of Plato in legal scholarship, it is remarkable thatwhat the student texts do reveal-—texts that are otherwise utterly different in theirpreferences, perspectives or mcthods—are suspiciously similar, suspiciously pos-itivist, prejudices towards his thought and towards prc-modernity generally.

My criticisms will not be intended in any pedagogical sense. I shall take nodetailed position on how to teach legal theory or to write student textbooks. If Ihad to write my own text, drawing from mainstream, or even altemative, legal schol-arship, I might do no better than those currently on offer. What interests me is notthat accounts of Plato in the basic texts are simplified or dismissive, so much asthe ways in which he is simplified, which recapitulate the simplistic positivism thatmost authors claim to have surpassed. To be sure, I am aware that student texts areeasy targets. My aim, however, is not to engage in searching Platonic cxcgesis—asone might do in commenting upon a magistcrial treatise penned by a committedclassicist—so much as to identify some overall attitudes towards Plato and towardspre-modern thought generally. I shall begin by dividing the standard texts into twooverall approaches, ttIn‘storic'o! and lti.storfettI. That distinction is loose, but I drawit because we might expect at least the tnore historically structured texts to devotecloser attention to prc-modernity. As we shall see, that is not always the case.

.4. The Ahfstorfca! Method

Let‘s start with some more-or-less standard approaches. In Jttt*t'.rpt*ttdettee, HowardDavies and David Holdcroft devote their first five chapters to Hart. Austin, Kelsen,Dworkin and Raz.” They introduce classical justice theory and natural law onlyafterwards, where Aquinas is the only pre-modern thinker examined": Brian Bix“s

Philosophy and Law“ t'l99flt I .l. Legal Stud. LLS. Air Force H15: Ernest .l. Weinrib. “Law asMyth: Reflections on Plato's Uotgt'tt.r" t I939) 74 Iowa L. Rev. 787; James Boyd White, “EthicsofArgument: Plato‘s Gorgr'e.r and the Modern Lawyer” [ ltllllill 50 Ll. Chi. L. Rev. 349: GucntcrZoeller, “ls the Life in the Law ‘Worth Living: Some Critical Remarks on Plato‘s Got~gtrtx“ { I939)74 Iowa L. Rev. BIS.

13. CE. e.g. text accompanying tntin notc 25.I4. ln Heinzc, sttprn note 5. I argue that it is not through Plato's theory of Forms that we find the

best insights into his legal thought. lt is telling tltat two other general attempts are new a half-century old. See Huntington Cairns. “Plato‘s Theory ol'Law" l 1"=l=;l2) Stir Harvard L. Rev. 359:Jerome Hall. “Plato‘s Legal Philosophy“ t_ I956) 31 Ind. L. .I. l?I.

I5. I-Inward Davies Jr. David Holdcroft. Jut't'.r_trt'ttdettre (London: Bttttcrtvotihs. lllill l at chs. I-5.I6. ttrtrt. at I55-ea.

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Jra't‘.rpradenee.' Theory and Context follows a similar seqrrence. " That essentiallyahistorical method is common among Anglo-American writers. They often beginat a relatively recent historical period, usually with classical positivism and the var-ious, often liberal (then, later, perhaps more radical or critical) responses to it.""

That starting point places, often uncritically, post-‘Westphalian, state-centeredunderstandings of law in the foreground. Any alternatives to post-I-Iobbesian pos-itivist, liberal or state-centered perspectives are generally limited to those theoriesthat have arisen as cott.rct‘ott.r reap-ottses to thetn: Marxistn, Critical Legal Studies,Feminism, Critical Race Theory, LatCrit, Queer Theory, Post-Colonial Theory, orPost-Modern Theory are all marshalled to challenge various assumptions withinmodernity, and perhaps to ponder alternatives to it. “’ Yet those critical movementsare themselves children of modernity, expressly defining themselves in relationshipto it. Some of their core concerns—-oppression, exclusion, construction ofdiffer-ence, privileged discourses—-could certainly be applied to law and power in anynumber of cultural and historical contexts.” Within legal theory, however, theirapplication has generally been limited to actual or putative critiques of law withinthe timeframe of Euro-American modemity.“ In these ahistorieally structured text-books, the more detailed expositions ofj ustice theory, or of other natural law orhigher law theory, is commonly presented through the versions ofwriters like Fuller,Finnis or Rawls,” who, too, are writing with any eye towards the norms and pro-cedures ofmodem states.” Firmis‘s natural law, for example, refrains from explicitly

I7. Brian Bix, Jttri.rprrtdence.' Titeotfr and Contert. 3rd ed. l London: Sweet =9: Ivlaxwell, 2903).I3. See. e.g. Davies 8.: Holdcroft. supra note I5 at chs. I-5: Bix, .rrrpra note I? at chs. 3-7; James

Pcnner et al'., eds., Jr.-ti.r_ornrfence dt Legal Tlreotjv (London: Butterworths, 2002) at chs. 3-5 [JLT]:Hilaire lvlcCoubrey 8: hligel D. White. Jttt-t.rpraa'enee 3rd ed. (London: Blackstone, I999) at chs.2 and 3. Within this category ofahistorical texts. we can distinguish a sub-group containing adistinctly ttrenratte format—arranged according to concepts such as “Justice“. “Morality”,“Plositivism”, and the like. See. e.g.. R.W.lv’l. Dias, Jttritmrudettce. 5th ed. (London: Butterworths.I985}; George P. Fletcher. .9a.rt'e Coneept.r ot'Legal Ttrottgtrt (Oxford: Oxford University Press.I996). Such works. adhering even less to an overtly historical ordering, have been that muchless inclined to examine ancient thought.

19. See, e.g., Davies 8: Holdcrofi. sttptrt note 15 at eh. re; Bix, .rrt_at-rt note I? at ch. I9: ..-‘LT, xrtpranote IS at chs. I9-Ell: McCoubrey & ‘White. sap.--a note IS at chs. l I and I2.

2|}. See. e.g.. Paul Cartledge, The Gteetor, rev. ed. (Oxford: Oxford University Press, I993) [standardwork drawing on post-strueturalist insights to provide a critical account of Crreek society andculture).

I I. Aside Item the standard student textbooks, some well-known studies include. e.g., Dan Danielsendz It-iaren Engle, eds., .»t_!i'er fdetrtit}-.* .»l Reaa’er t'n Law and Cttr"tttt'e (London: Routledge, I995):Alan Norrie, ed., Clottrrre or E‘rr'tt't;trte: t"v‘e'rv Dttectiotta in Lego! Tlreotjr-' (Edinburgh: EdinburghUniversity Press, I993): Richard Delgado 8: Jean Stefarrcic, eds.. Ct-tttcat Race Theory, 2nd ed.(Philadelphia, PA: Temple University Press. 2000): Richard Delgado 8: Jean Stefancic, eds.,C't'ltt‘ea! Wltite .S'tttn’t'es (Philadelphia, PA: Temple University Press, 199?); Drucilla Cornell ertItl., eds., Deeonstra-ctt'on anal the Pe.r.rtt:n‘ttt_r' ofJrt.rttce (London: Routledge, I992): Mary Beckeret aI., eds.. Fetttinrirt.tttt'ispt'tttfettce.' Totrittg lfitnten $et*t'ott.rl_t' (St. Paul, MN: West. I994); MarkKelman, A Gatale to Critical Legal Strtaltes (Cambridge, MA: Harvard University Press, l9S‘l'}:Leslie Moran. ed., Legal Qtter’e,lt'r'e.r: Lesirtatr, Gay and Trtrtt.rgeaal‘et' Legal’ Strtdtes (London:Cassell. I998): David Kairys, ed., The Pafitter of‘Larr (New York: Random House, I982); FrancesE. Olsen. ed., Fertrttrtst Legal Tilt.-eotj-', vol. 1, 1(Aldershot, UK: Ashgate. I995): Hilaire Bamett,ed., Sortreelraotr on Fetnt'tn'.rtJttt*t.r,c-rrtrtetttre (London: Cavendish, I997].

22. See. e.g., Davies -5.: Holdcroft. xttjat-a note I5 at I36-294, 265-I-llilll; Simmonds, st.-pra note 3 atchs. 2. 7.

23. Cf. text accompanying ttrtin note Tl].


metaphysical concepts; in so doing, he effectively adopts the metaphysical neutralitycharacteristic of modernist, post-Enlightenment secularism.“

A few of the standard texts, such as Jurisprtrdeuce & Legal Theorjv, edited byPenrter, Schiff& Nobles, do discuss the specific issue of the duty to obey law, exam-ined in Criro.’-l However, that brief, early dialogue provides an entirely preliminaryinsight into Plato‘s broader understanding of law. in one of the text’s chapters onnatural law,“ only half a page is devoted to Plato‘s more general theory. The authorsclaim that Plato’s concept ofjustice is rooted in “absolute values"“ not unlikethe view of R.W.M. Dias in his Jul-isprusience, where, in a brief discussion ofSocrates and Plato, he attributes to Plato a “firm assertion of the discoverabilityof absolute standards [that] started European thought along a road which it stillpursues.“i“ Those traditional views, which hold that Platois ethical, political or legaltheory is understandable only with reference to absolutes, expressly or tacitly cor-relate to limited readings of his metaphysics and epistemology, largely as set forthin the Replublic. While Plato’s metaphysics and epistemology have long been subjectto highly complex readings among classicists and political philosophers, legal the-orists rarely appear to move beyond simplistic versions, that run more-or-less asfollows: In the Republic, it is said, justice derives from the Fornt of Justice, whichis an “absolute” concept ofJustice. Yet, on closer examination, the Form of Justice(either in itself, or as divined by the philosopher ruler) turns out to be unknowable.Accordingly, justice itself is unknowable. Plato therefore has no real theory of lawor justice.

As l shall argue in Section II, those interpretations recapitulate views set fortha half-century ago by Karl Popper and other critics ofWestern authoritarianism.But first let ‘s consider Hans Kelsen, a mainline legal theorist who, too, had setthe stage for that kind of reading at roughly the same time. It may seem unlikelythat, in the Zlst century, there would still be much use in picking a fight withKelsen. After all, the positivism-versus-natural law debates have been rehearsedto death; nor can there be much in Kelsen that has not already been dragged overthe coals many times before. Moreover, it is debatable whether I<.elsen‘s specific

24. See generally, John Finnis, Natural Law anal Natural Rights (Oxford: Oxford University Press,I930}.

25. See David Schiff, "Disobedience" itt JLT, supra note I8 at ~'l-"F7, 433-92.26. See Richard Nobles & David Schiff. “The Evolution of Natural Law“ in Ji. T, supra note ill at

eh. E.2?. ihid. at 39.28. Dias, supra note I8 at 7'4. Unlike Dias. then, Nobles St Schifi’ do not indicate whether they believe

that Plato presents his “moral absolutes" as discoverable. ln addition, Dias attributes the samebelief in discoverable absolutes to Socrates. [He mentions only the historical Socrates, leavingunstated whether he assumes the views of the historical Socrates to be identical to. or in anyrespects different from, those of Plato's Socrates. He cites only Criro. a Platonic source.) Di‘course. as Socrates left no written work, his beliefs must be reconstructed. Recourse to a“Socrates” figure became a stylistic convention in Athens. with any number ofviews attributedto him. There is good reason to believe Plato's depiction when Socrates is engaged in eienchus—questions and answers eliciting contradictions in his interlocutors‘ views, a process. however.that often yields no final answer to the question posed. lt is far more questionable, however.whether Plato"‘s account is always reliable when he attributes to Socrates specific, affirrnativeviews. See. e.g.. Christoph tiniest, Soicrares cur Eiufiihruhg (Hamburg: Junius, EH03}: GregoryVlastos, Socrates." houisr and Mara! Philosopher t lthica, NY: Cornell University Press. 1991').

330 Heinze

pronouncements on natural law exercised great influence. Kelsen‘s stature inGerman or French theory may be solid, but I-iartis discussion ofhim is limited. andhe is scarcely mentioned by scholars as different as, say, Dworkin, critical legaltheorists, or feminists. Nevertheless, there is real value in re-visiting Kelsen’sapproach to pre-modern thought. I shall not speculate on the degree to wltichKelsen‘s reading of Plato has been consciously followed; far more interesting isthe fact that so many of todayls theorists, whether they know it or not, and evenif they have not spent much time reading Kelsen, have scarcely progressed beyondthe approach that he adopted over fifty years ago.

Kelsen begins by noting, that, to explain justice, Plato “develops his famous the-ory of Forms. The Forms are transcendent entities, which exist in exist in a worldother than that which we can perceive through the senses .”” Let ’s just note fromthe outset that, whilst it is true that the Fortns are not amenable to sensory percep-tion, Plato docs not in fact situate them in some “world” that is “other” than ourown. A better reading would have stated that, for Plato, as indeed for much ofWestem philosophy aside from empiricism and logical positivism. our “world” doesnot consist solely of that which is accessible to sight, sound, smell, taste or touch.Atistotle‘s unmoved mover, Aquinas‘s God Kant‘s reiae I-errrtra/I" (“pure reason”),Hegel‘s Geisr (“mind” or “spirit”), or indeed Freud's es (“id”) or Heideggerh think-ing or poetic self, cannot, without more, be said to be fully knowable through thefive senses.

But that point need not detain us here. To give Kelsen the benefit of the doubt,we can construe his choice ofwords in that passage as having envisaged not tech-nieal precision, but only a kind of impressionistic description of Plato. Kelsen thencharges, “As to the idea of absolute Goodness, [Plato] even expressly states thatit lies beyond all rational knowledge, i.e., beyond all thought.”-l“ in a nutshell,Kelsenis argument, which I shall call “1(elsen‘s tautology”. takes the following syl-logistic form (for convenience, the formalization is mine),

(Al) The Form of Justice is unknowable.(A2) The justice of any thing or person .r derives from the Form of Justice.

The justice ofany thing or person .r is unknowable.From the perspective of classical, formal logic, every syllogism derives

from—i.e., merely spells out in step-by-step fashion—-a tautology. In that sense,following from Kelscn’s major premise A l , the theory that he ends up attributingto Plato amounts to no more than: “Justice is unknowable therefore justice isunknowable.” When Plato‘s hundreds of pages on justice are collapsed into thatempty tautology, it is no wonder that Kelsen fails to discuss him in any depth.. D

29. “Cierechtigl-teit ist das Zentralproblcnt [Platons] gesamten Philosophic. Und xur Liisung diesesProblems entwiclrelt er seine berithmte ldeenlehrc. Die ldeen sind transxendente Wesenheiten.die itt einer andercn als der unseren Sinnen wahrnehmbaren Welt existieren Hans lielsen,"Des Problem der Gerechtigltcit” $525 in Reine Rechislehre. 2nd ed. l'v'ienna: Franz Dettticlte,196D} at 355, 393 [my translation} [“Problem”j. Cf. Hans Kelscn. Cicaerrii Titera1jt'r.y"Latt'ar:dStare. ed. by A. Javier Trevifio [New Brunswick. l‘~l.l: Transaction, Ztltitil at I."-.l [filerrerai Theory].

30. “Von der ldee des absoluten Guten sagt [Piston] sogar ausdriicltlich. dass siejenscits aller ratio-nalen Erkenntnis. das heisst allen Dcnl-tens liegt.” Kelsen. “Problem”. .s'trpra note 29 at 39*} I mytranslation]; Cf. ltlclscn, Gaucrrtl Theorjr. .rupra note 19 at I2.

I


Surely, we would summarily dismiss arty scholar who would reduce all of Kelse-n"'sown theory in such a way. equally robbing it of its subtler insights, e.g.,

(Bl) The Grtradao.r'at is ultimately inscrutable.(B2) A legal system is founded upon the Grttrtdrtai'nr.

A legal system is ultimately inscrutable.Like many oftodayis textbooks, Kelsen never mentions any of Plato‘s more spe-

cific discussions ofjustice, nor the variety of Plato‘s approaches." Yet Plato‘s theoryof Forms, and his approach to ethics and justice, are subtler than the wholesalereductions reflected in Kelsenis premises (Al ) and (A2) would suggest. When laterworks like Thrrerireitur. Sophisr, Par.vteaia'es, Sraie.srnau, or Laws are considered,a more complex metaphysics and epistemology emerge. in those works, the theoryof Forms, if not abandoned, is largely absent from discussions of law and justice.”Never, not even in the Reprthlic, does Plato suggest anything like a straightforwarddeductive calculus. whereby act .r would be subsumed under the Form of Justicein order to generate a finding that .r is either “just” or “unjust.” Certainly, Platoinveighs against the moral relativism of the Sophists.” However, any suggestionthat he sees the opposite as nothing more than an abstract moral absolutism findslittle support in his writings.

In the Reprihiicis famous image ofthe cave. and in other dialogues, Plato leavesunresolved whether or by whom absolute or ultimate moral values can be discov-ered. That ambiguity is sometimes reflected in his recourse to allegory in placeof dialectic.-“ Kelsen is right“ to identify, in the famous Letter Vii, a Platonic scep-ticism towards definitive statements about “the truth that is attainable about virtue.””But he is wrong to read that admission as an acknowledgment either of the futilityofcontemplating justice or ofthe essential “mysticism”-” ofPlatonic thought. Platoactually explains what he means a few lines further, arguing, “whenever we seea book, whether the laws of a legislator or a composition on any other subject. wecan be sure that if the author is really serious, this book does not contain his bestthoughts.”-“ The authorship of Plato's letters has long been debated. but the seventhletter is widely viewed as reliable. and that passage states views expressed by Platoelsewhere.-” Far from revealing any Platonic “mysticism” as legal theorists oftensuggest,“ such a passage is one of several examples of Plato’s rule scepticism, aninsight that has long been of fundamental concern to legal theory. By “rule scep-ticism”, I mean not only scepticism about whether it is formally declared norms,as opposed to underlying social, political, economic or psychological factors, that

Ell. Cf.. e.g.. Rafael Ferber. “Did Plato ever Reply to those Critics. who Reproached him for ‘theEmptiness of the Platonic Idea or Form of the Good”?” in Essa_-.-s, .supnu note '5' at ch. 4.

32. C.'l'.. e.g., R.F. Stalley. .-"la iunrrrhrr.-rirut at Plrtioir Laws lflxfordz Blacl-rwcll. I933) at ll-22.33. Sec generally. e.g., Plato, .strprrt note l. .~"lpolog_1-, Pneragairts or Gr.=:giu.s. in which Sophists are

portrayed as teaching only the pursuit of individual advantage.34. See. e.g., Fhuio. .rupru note l. Reptihlic 5| Tb.35. Kclscn. “Problem”, supra note 29 at 399.36. Plato, .vti;u'a rtotc 1. Leiirsr l-TI 344h.37. Kelsen. “Problem”. supra note 29 at 399.33. Flriio. say:-vri note 1. Letter it'll’ 34-4c.39. See. e.g.. Plato. .strprrr note l, Phattrirtts 2?5c; .5'ratesruun 295C-e.-Ill. See iiifi'a Section ll.

332 l-leinze

“really” decide disputes. Rather, I mean, in addition, scepticism as to whether alegal system can or should be conceived as an affair of rules (e.g., in Hart‘s sense)"Rule scepticism in those senses is often presented as a distinctly 20th centuryinsight, associated with legal realism, Critical Legal Studies, and various post-crit-ical movements. Yet similar insights abound in Plato’s Republic, .S‘raresruau andLaws.” Far from presenting anything mystical, Plato shows himself to be antici-pating later approaches, ofwriters as different as Aristotle, Aquinas, Rousseau,Hegel, Marx, Holmes and Dworkin, according to whom law must be understoodnot merely with reference to some abstract absolute. but, above all, with referenceto the matrix of values and attitudes within which it is embedded (elsewhere I haveproposed the term epiuoutia to describe that approach”). Small wonder that theReprrhlic is largely devoted not to abstract speculation on the nature or definitionofjustice, but to the means—in particular, educational-—by which social relationscan be nurtured. Small wonder, too, that Aristotle’s detailed study ofjustice appearsin a book devoted to the cultivation ofarere, i.e, human virtue or excellence, withinthe here-and-now context of everyday social life.

Plato does not refer to the Form of Justice every time he draws a conclusionabout justice.“ He constantly takes, and invites us to take, positions on justice andinjustice that rely more on common sense reasoning—or rather, on a dialecticaltraining of intuitions, but not far from cornmon sense—than on any clear relianceon the abstract Form of Justice. In Criro, it is largely a common-sense dialectic.and nothing mystical or metaphysically absolutist, that leads Plato to reject the viewthat an unjust conviction justifies evasion ofpunishment (which, incidentally, doesnot make his position there positivist: the view that an unjust law must be enforcedneed not assume that a legal system operates independently ofpolitics or morals).Similarly, in Apology and Gorgias, Plato, again without needing to cite any absoluteForm ofJustice, inveighs against the corrupting influences ofwealth or demagogyupon political and legal processes, in terms strikingly similar to our own condem-nations when such forces rear their heads today. In Repruhlic, Plato condemns thepursuit of self-interest within democratic societies as dangers to justice. He con-demns a legal system that, far from curbing self-enrichment, lavishes upon it allthe means to thrive, in the form ofantagonistic legal entitlements.“ In Protagoras,he challenges practices that, instead of seeking to identify moral values, utterlyeschew that search, offering their practitioners (notably the Sophists) only the toolsfor exploiting self-interest, and subverting justice, by being able to turn any con-ventional value towards individual advantage. In the earlier and briefer Eurhyphuo,

41. Cf. Heinze. sup.-u note 5. sec. ll.B. Cll, l{elscn's theories ofnorms in Kelscn. Reine Rechrslelue,supra note 29: I-ielsen, General Theor_v. supra note 29.

42. C f. Heinzc, supra note 5. sec. 1l.l3.43. ihial. at sec. LB. That approach is commonly associated with communitarianism; however. com-

munitarianism can encompass a variety ofapproaches that may not all be particularly “rule scep-tical” in the sense l am using here. Cf. ihiul. at sec. lll.A.

44. Cf., e.g., Julia Annas, Au iuuv:u;lrrr.'riou to Phuro s Reprrlriirr (Oxford: Oxford University Press.195 l] at ch. 9 [arguing that, in the moral and political sphere. the Forms cannot be the objectsof general and abstract propositions).

45. Sec, e.g., Plato, supra note l; Reprrhl‘ir- 4[l-=le--=lll5d: cf. generally, Heinzc, supra note 5.


Plato questions the possibility of purely conventional foundations for any just nor-mative system; and, in Jon, he rejects the suggestion that ingenuity in expressingsocial values [as he had found in Homer, or indeed as we might find anywhere fromShakespeare to Racine, Balzac, Schiller, Tolstoy, Zola or T.S. Eliot) betokens anycritical understanding of them.

In sum, Plato constantly draws conclusions about, or relevant to, justice, withoutinvoking “absolute”, or indeed any particularly complex epistemological or meta-physical concepts, drawing him closer to the dialectical approaches of Gadameror Habermas than to any caricature ofdogmatic endorsements ofmoral absolutes.Certainly, Plato‘s variety of approaches makes him less manageable than the simplereduction of them to his theory of Forms would make him out to be. But they alsorender his approaches far more interesting. We are forced to abandon a single, over-arching label (“natural law” or “idealisrn”) under which the entirety of his thoughtmight be subsumed. and forced instead to examine each ofhis specific argumentsin turn, and in the dialectical spirit in which they are presented. lt would be curiousfor that subtler approach to Plato. or to any pre-modern thinker, to come as a shockto modern legal theorists. Leaving aside a few die-hard positivists, legal theoriststoday overwhelmingly renounce the suggestion that arty one, overarching principle,or discrete set ofprinciples, can provide an exhaustive account of law. Fragmentationand partial insights are the order ofthe day. Many scholars now believe that vastlydifferent-—sometimes contradictory, both among themselves and even within them-selves—understandings of law can each contribute genuine insights. Certainly, thebasic textbooks insist on that view.“ Plato cannot be dismissed for failing to providethat one, unified account, which he himself suggests. and which theorists todaygenerally hold, to be impossible. The notion ofmultiple and fragmented approachesto law or justice is no new discovery, and would only appear as such to those who,far from overcoming the confines ofmodernity, are sufficiently trapped within themto think that all of Western thought before the 20th century hinged upon straight-forward “foundationalism” or “grand narratives?” I doubt we can find a theoristwho surpasses Plato in recognising the real problems of foundationalism in moral,political or legal thought, which may be why he often approaches seemingly foun-dationalist projects, like his cities in the Republic or Lane, with considerable ironyand a strong sense of the limits of such projects. (Aristotle‘s construction of lawand morals as providing “practical” rather than “theoretical” domains of inquiryreflects a similar reserve towards abstract absolutes within the realm of the nor-mative.“)

Let’s follow Kelsen a step further. At first, his choice of Plato as lynchpin ofhis attack on natural law may seem altogether odd. Natural law theorists in the 19thand early 20th centuries based few of their deeper insights on Plato. At the time

46. Affirming the diversity of approaches to legal theory. see, e.g.. Bix, supra note I‘? at chs. l-2:Cotterrcll. supra note 3 at ch. l:JL T. srrjrurr note I8 at ch. 1; M.D.A. Freeman, Llo_vri.'r fnrrodrrciiouto Jru-isprudence. Tth ed. (London; Sweet 8-: Maxwell. 2l}[lI) at eh. l.

47. Cf.. e.g.. Cotterrell, supra note 3 at ch. 9 (noting the anti-foundationalist claims of post-modemand deconstructionist theory}.

43. See. e.g., Carrrpiele librhs. supra note I Nicouruchearr Ethics ll. l -2.

334 Heinze

Kelsen was writing, Plato had never stood as the kind of towering pillar of the nat-ural law tradition whom positivists would have had to defeat in order to nurturetheir own approaches. Why does Kelsen even bother turning so much attention toPlato—more, say, than to Aquinas, whose choice of God as the ultimate sourceof norms might have seemed the more obvious and manageable target; and who,as a Christian writer, represented a far more influential tradition in continentalEurope‘? Once again, even if subsequent writers have not expressly followed Kelsenon this point, his overall approach reflects an attitude still frequently found amongwriters today. Kelsen sees Plato. largely through the theory of Forms, as an arch-naturalist, a bare-bones specimen ofall that natural law says and does. By assailingPlato, Kelsen aims to uncover and demolish what he sees as essential to all naturallaw theories. (tn fairness, he does see a wee bit more in Aristotle. but little of thedepth or subtlety ofAristotleh tmderstanding ofgeneral justice.“) The Forms, whichare supposed to be the perfect actualisation of all that is—and, therefore, ofall thatis just—express, for Kelsen, precisely what Christians are doing by inventing God.

l(elsen’s diagnosis of Plato seeks to show how all natural law theories boil downto different variations of the same core insights and assumptions. With the barestof caveats, the phrase “the Form ofJustice” in Kelsen‘s tautology can be replacedby “God” whereby all of Christian natural law would be just as handily disposedof. “[T]he idea of the absolutely Good”, he argues, “plays the same role in Plato‘sphilosophy as the idea ofgod in the theology afatty religion.”-""" Note that Germancapitalizes nouns, so l give Kelsen the benefit of the doubt in translating “Gort”as “god” rather than “God.” Even then. the assumption that “any religion” has a“theology” incorporating an “idea ofgod”; if ntarginally forgivable through, say,to the Seventeenth or Eighteenth centuries, was careless parochialism by the timeKelsen was writing, when the variety and complexity ofworld religions had longbeen taken more seriously. Certainly, Weber had begun to signal a more nuancedunderstanding." l{elsen's approach emphasises how casually, and with what littlerigour, he purports to lump together and dispose ofall natural law thinking, indeedas superstition, in one fell swoop. We would hope that today’s legal theorists mighttiptoe a bit more gingerly around such vast pronouncements about “any religion”or about “all” of classical natural law. Nevertheless, Kelsen‘s aim of treating allclassical natural law theories as making essentially the same assumptions remainscommon among today’s theorists.

Some authors take the bull by the other horn. Instead of reducing all natural law,including Aquinas, to Plato's approach, they reduce all of natural law to the old

49. Elut, on l{elsen’s approach to Aristotle, sec, e.g., Tony Burns. "Aristotle" in David Boucher stPaul Kelly, cds., Pah'tt'ra!' Thitthers: Front Socrates ta the Present {Ox ford: Oxford UniversityPress, 2[I-U3) at 73. S3-87.

50. “[D]ic ldee des absolut Guten spielt in der Philosophie Platons die glcichc Rollc wie die ldecLiottes in der Theologic t'tg'ettclet'ttet' Religion“ [emphasis added]. Kelsen. “Problem”. srtpta note29 at 398.

5|. Sec Weber. srtpta note I0 at ch. ltl. Similarly. a work like Hernran Hessc‘s .S'ithtltrrrtlra fi'om I922suggests how subtler appreciations ofnon-Westem belicfsystems ltad long been penetrating edu-cated Western European thought by the early .'».!t]t.h century. See Herman Hesse. Sialulharthrt: Eiuetttali.-rche Dichtttttg [Frankfurt am Main: Suhrkamp. i953).


maxim lea: iuiustia ttatt est lea‘, “an unjust law is no law", as exemplified inAquinas’s approach. They use Aquinas as the same kind of proxy that Kelsen hadmade out of Plato, and with even less success. They scour the Greeks to find expres-sions of lav iuiustia. Failing to find it, or finding it only obliquely, they effectivelycharacterise Plato"s and even Aristotle‘s views as at best, vague and inchoate. Forexample, Bix writes that “one can locate a number of passages i.n the classical Greekwriters that express what appear to he natural law positions”.’” effectively castingdoubt on whether Plato or Aristotle offer any distinct or developed views on lawat all. Bix argues that it is only with Cicero“ that lex iuirtstia is clearly announced.then later developed by Aquinas, as if Plato and Aristotle were somehow trying,but failing, to reach that (or some similar) goal.“ For a thinker like Aquinas, whodelineates categorically distinct concepts of “natural” and “human” law, wherebynatural law always stands as an etemal measure for any given human law, lex itu'us-ria indeed becomes an important feature (although Bix and others do note Aquinasisqualifications“). In the same vein, Bix cites“ Plato’s statement in the Laws” thatlaws not aimed at the common good are “no hue laws”, and are therefore unworthyof obedience. That passage, however, is no different from several, more-or-lesspolemical passages in which Plato condemns bad law (not least. Plato's contemp-tuous dismissal of the content or operation of law in democracies such as that ofAthens). However, the Crito is a classic, and far stronger and clearer, statementof the opposite view, i.e., that at least as a general matter, even deeply unjust lawsmay nevertheless command general public obedience. In the Republic, theSratestrrau and the Laws, Plato spends a good deal of time examining better andworse kinds of laws and norms (in addition to his condemnation of the Athenians‘conviction of Socrates, e.g., in the Apalagv'), as does Aristotle in the Pa.lirics. Bix"sassumption of one fundamentally defining feature of classical natural law, in theform of a kind of rmiversal and transcendental code, or indeed a maxim like l'e.riui-ustt'a, which glows only dimly in Plato or Aristotle, then brighter from Ciceroto Augustine, finally radiating with Aquinas, deeply mischaracterizes pre-modemthought. It omits any possibility that Plato and Aristotle are thinking about law,politics and society in altogether different terms from their Roman or Christiansuccessors: that there is no particular brand of “natural law” that would sum uppre-modern thought.

Raymond Wacks takes the same approach. In Uudettrtrttrdirrg .J'ut'ispt*rtr1ettce,Wacks claims, “It was ... the Catholic Churclt that gave expression to the full-blownphilosophy ofnatural law as we tutderstaud it taa'a_v”,“ i.e., as a system ofhigher-law norms. For Wacks. too, {ex itu'.u.stia becomes the defining feature of classical

Z 1 -

52. Bix, supra note l‘? at as-as [emphasis added].53. Hztiri. at 66.54. HJt'd. at BS.55. Ihid.56. lhid. at es. n. 3.57. Laws T I Sb (Bix citing the Taylor translation). Cfi, Lrtntr T l5b in Plato. supra note l [Trevor

Saunders translating out arthott.s uatuous as “bogus laws”).53. Raymond Weeks. Uttrfertttattalitrg Jttt'isprttrfettr:e (Oxford: Oxford University Press, 2005) at I7

[emphasis added].

\ .

336 Heinze

natural law.“ Unsurprisingly. he sunnnariaes all of Greek thought about law duringthe time of Plato and Aristotle in four sentences. only specifically discussingAristotle and stoicism.“ Wacks claims in passing that Plato and Aristotle expressedviews resembling fer r'aitrs'rfa.“‘ though he cites no original sources to support thatclaim. Bix makes an almost identical remarl<."’ also citing no original source otherthan the brief passages from Plato and Aristotle already mentioned. Wacks“ citesonly Finnis who. again. refers only to the kinds of general. offhand passages“ towhich Bis refers. and which do not even approach general characterizations ofPlato's or Aristotle’s views of law.

For Kelsen. collapsing Plato meant summarizing the whole project of naturallaw; for Bis. and Wacks. summarizing Aquinas does largely the same job. I wouldargue. however. that Aquinas represents Aquinas. and does not particularly representPlato or even Aristotle. I-low would we rate a scholar who took only Mill to rep-resent all of liberalism. fiom Locke (whose fundamental. natural rights Mill rejects)to Kant {whose deontology Mill never seriously examines} to Rawls (whose post-industrial. administrative state Mill could not anticipate}? Wacl<s"‘s one substantivesentence on Aristotle states. “With Aristotle. there is less reference to natural lawthan to the distinction between natural and conventional justice?“ Such a statementis either paradoxical or meaningless. Natural law theorists constantly discuss rela-tionships (or “distinctions“} between natural and conventional justice; to say thatAristotle. in doing precisely the same thing. thereby_.fi':ils to do natural law. is noteasy to fathom. And yet the statement isn‘t even true enough to merit that assess-ment. When read within the contest of the Pr.i!m'cs. and even more so within thecontest of the Nieoniacheon Erfucs. it becomes clear that Aristotle's primary aim(not unlike Plato*s on this point} is to harmonize legal norms and practices withthe habits and customs of a well-functioning society. rendering rather artificial anycategorical distinctions between “natural” and “conventional” justice.“ Arguably.that is why. within contemporary political philosophy. communitarian theorists findsuch appeal in him.“

In his standard work Lfoj-Iris Irirrotitrcrion to J'rrr'i.spiud'eiice. Freeman discussesonly the Repribfic-. summarizing Plato’s legal theory in two sentences.“ Just as Bisand Wacks depict Greek thought as a kind ofweak embryo of genuine natural lawtheory. Freeman. too. writes that Plato has “nothing to say on natural law as suchin the sense of a nomiative and overriding system of rules.“'“ Like Bis and Wacks.

59. ram. at 19.til]. Ibis’. at I7.6]. Ibfri. at 19.62. Bis. supra note I? at 63.63. ‘Wacks. svrpnr: note 53 at I9. n. I4.64. Finnis. snprrr note 24 at ass-as {citing Lmvs ? 12e-7 l 3a. Tlfib: Statesman 293d-e: Reptibfie 42Eel.

Like Bis. Finnis. H:-id. at 363. n. 3. follows Taylor‘s translation of our o.--rhoirs no.-nous in Lon-sT I Sb as “no true laws.“ (If. supm note 57.

65. Wacks. supra note 53 at I7.66. Cf. infiu Section ll.6'.-'. See. e.g.. .~lr'I'.'rt‘r.tHe' and .~l-ifrrtfern Pofirie.s. ed. by Aristide Tessitore thlotre Dame. IN: University

of None [Jame Press. 2002}.63. Freeman. .tupr'o note 46 at H13.E9. Ihirf.

The Status of Classical Natural Law 33?

Freeman does not explain why natural law should be understood in that “sense.”Such a conception ofnatural law rnay apply to a modem theorist like Finnis. who.in a post-Westphalian. post-industrial age stamped with catalogues of individualrights. accords high status to certain enumerated individual interests.” However.that view distorts even Aristotle. Augustine or Aquinas. let alone Plato.

Aristotle rejects the notion of law as being essentially. or ideally. a system ofrules.“ His theory ofs.oeeia1jti.sIi'ee admittedly has a rule-bound quality. expressedin the form ofcalculable rectifieations and distributions.” Special justice. however.applies only in certain circumstances. Justice as a whole. or gen-ei‘aijti.srice. theeveryday lavvfulness ofpeople going about their lives. arises from a matrix ofsharedvalues attitudes and customs. That view reflects the Greek understanding of thepoiis as a small. close community.” It also adopts the concept of nonios. not as theequivalent of. but as. to an important degree. the opposite of modernist. more rule-bound concepts of la iv.“ In Aquinas ’s post-poii'.s. post-Roman world. rulers wereno longer assumed to maintain deep and ongoing contact with the ruled. In thatcontext. formalized rules would inevitably take on a greater role. Certainly. then.Aquinas recognizes the importance of rules.” Nowhere. however. does he proposeanything like a system of rules as a means of understanding law or justice. Noneof his four concepts of law—etemal law.“ natural law.” human law.“ divine law”—boils down to a mere catalogue of rules. Aquinas sees rules. insofar as they are coer-cive. more as a necessary evil than as the crucial feature of law. The aim ofgoodlaw is not to induce mechanical obedience. but “to lead men to virtue.””’ Aquinasprovides several defenses of formal rules.“ at the same time recognizing (likeAristotle. in this respect) that they must promote. rather than replace. a society gov-emed by shared habits. customs and values. Fomial law must be used against thosewho act lawlessly. but the preferable state of affairs is one in which order and justiceprevail without excessive reliance on formally promulgated law.” Similarly. it isquestionable whether Augustine‘s eiviias dei. or even the best possible civiras rer-rena.*“ are to be construed as essentially rule-bound worlds. To make the point in

Til. Sec. e.g.. Finnis. supra note 64 at S5-90. 223-as.Tl. CE. H.L.A. Hart. The Concept r_y"Lau-. End ed. (Uxfordt Oxford University Press. 1994) at 91-1-

95 lcharacterizing a “developed” legal system as “a union ofprima|'y rules ol" obligation withsecondary rules”}. Similarly. in lvlaclntyre's view. Ross's I953 translation ofAristotle belies

misleadingly modemist. rule-bound assumptions. by translating Irara ion oriinn.- iogon to mean“in accordance with the right rule” rather than “according to right reason." Alastair Maclntyre..-rlflei* Firiire [Notre Dame. INI Llniversity of Notre Dame Press. IQBI ) at l5E-53.

T2. C-‘onipieie I-lF’or.I;s. supra note I. Nieonraeiierin Eiiiies v.2-5. l |3[Ial2-l 134a I 5.T3. See Crsiiijiieiti ll-i1nlis..sin9rn note l. Nir'onirit'iiean Eini-:".s v. 1; Fbiitir.-.~r vii.4-5. l325h33-l327all.74. See. e.g.. Stalley. supra note 32. at 23 { 1933}; Richard Kraut. .d.*'i.srorie.* Poiiiicai Pitiios'opi;_.,

(Oxford: Oxford University Press. 2002] at H15. See also Martin Clstwald, Nanios anal riteBeginnings of.s|iiienian Denioci'ar'_i' (Oxford: Clarendon. W69) at El}-54 and passiin.

75. See. e.g.. Snninai Tneoiogiea. supra note l at Pan I-ll. q. 95. art. l. answer.76. See. e.g.. iiiiri. at q. ‘Ell. art. l.77. See. e.g.. is.-ti. at art. 2.78. See.e.g..i£1id. at art. 3.79. See. e.g.. find. at art. 4.Bil. ihici. at question 915. article 2. reply to obj. 2.El. See. e.g.. ibiri. at q. 95. art. 1. reply to obj. 2.32. See. e.g.. is.-"tr. at principle reply. and at reply to obj. l.B3. See St. Augustine. The Cii[t- of-Geri. trans. by Henry Bettenson I London: Penguin. ll-I-"34) at xix.

-' ' _ I— Z

338 Heinzc-

a slightly different way. the relationships between classical natural law. commu-nitarianism. and classical justice theory are complex. and each cannot easily beexplained without reference to the other.

Freeman ’s conception of natural law. then. provides an inapposite standard forevaluating both Plato and other pre-modern theorists. and. in that respect. as inother textbooks. scarcely moves beyond Kelsen. Kelsen. too. had fleetingly notedthe “variety” of natural law theories.’-“ but constantly reduces them to their super-ficially shared quality. namely. their representation of what he calls a “transcen-dental” normative order relevant to. yet existing independently ofmaterial reality.and which. in that respect. allows for few significant differences among them.For Freeman. Plato‘s legal theory reduces to the philosopher ruler; and thephilosopher ruler reduces to Freeman‘s highly subjectivist—-and. to that extent.utterly un-Platonic—-caricature of “the mystery locked in his own heart.’““Compared. say. to the Hobbesian or Austinian sovereign. who stand incontestablyat the foundation of those thinkers’ respective theories. Plato ‘s philosopher rulerremains a relatively derivative. even tentative. construct. The Laws dispense withit. and nothing in the .-lpology. Criio. Enn'typin'o or ion. or even in the Piiaedo.Protagoras. Gorgias. Greater Hippies or Pnileims distinctly depends on it. Thephilosopher ruler is not the foundational figure for Plato that the sovereign isfor Hobbes and Austin.

B. The Historical Method

No general text on legal theory can employ a rigid chronology. By the time legaltheory moves into the 20th century. positivist. liberal. realist. and then natural lawand critical movements emerge in tandem. often in ongoing dialogue with eachother. Nevertheless. some of the standard texts attempt to incorporate pre-modernlegal theory within an historical sequence. Wayne lvlort-ison‘s Jai'i‘s.oradaace“ andWolfgang Naucke’s Reciir.sphiiosopiiiseize G:-iiiidbegr-.ffie” stand out among the fewhistorically-minded textbooks that provide at least an introductory sense of Platoas a figure whose views on law reflect central themes throughout the history oflegal theory. Otherwise. even the historically-structured texts generally fail to pro-vide subtler understandings of pre-modernity.

Norbert l-lorn’s Einfiiiaurig in riie Reciir.stt*issensciiafi and Recnrsphilosopiiie“provides a particularly serious attempt at a more rigorously historical approach.including a thoughtful discussion of Plato. However his examination. too. revealsthe common pitfall of focusing too narrowly. and too literally. on the Republic.Those who fall into that trap make either. or both. of two mistakes. Either. as Kelsen

' i Z ml

84. Hans Kelsen. “Plato and the Doctrine of Natural Law” { l9o[l'] I4 ‘v'and. L. Rev. 23 at 24.35. Freeman. .riip.*n' note 46 at 103.S6. Morrison. stipru note 4 at 26-40.ST. Wolfgang hlaucke. Reehtsphil‘o.ropni.rciie Giriiidbegi-ifii.-. 4th ed. [Franl-tfi.u't am Main: Luchterhand.

2000) at 9-2s.E8. Norbert Hum. Eilrfiiflriing in rife Recins-.t"i.ss'en.sciia;‘i una’ Reeinspiiiinsapiiie. 2nd ed. ll-leidelberg:

C.F. Muller Verlag. 2001] at ch. ltl.

|m_———


does. they reduce Plato’s entire understanding ofjustice to the Form ofJustice. andthen reduce the entire Form of Justice to something fundamentally cryptic; or. asHorn does. they reduce Plato’s thought to a mechanical schema. i.e.. to the meresystem of rules and institutions required to keep the model society running: thephilosopher ruler does x. the guardians do _v. everyone else does s. Phil-:i theRepr.roiie‘s “legal system.” Plato’s legal thought becomes reduced to a mere sum-mary of the Republic. with no specific. critical attention to the subtler questionsof. say. rule scepticism. formalism. or the character of the relationships betweenlaw and other social values.

Arthur Kaufmannb Piobieirrgesciiichre der Reein.spiriiosopizi'e briefly notes theroots of Western philosophy. including legal theory. within pre-Socratic Greekthought. but says nothing about Plato’s distinct contribution.“ .l.lvl. l(elly‘s A SiiarrHistory oj'Wesrer.n Legal Theory. more than most English-language texts. takesseriously the importance of approaching Western legal theory as an intellectualhistory dating back to antiquity. but offers only a perfunctory analysis of Plato.“In Asking the Law Que.sl'ir.nr. lvlargaret Davies’s two-page “critical undetstanding”"'of Aristotle“" omits discussion ofAristotle‘s most basic concept of general justice.”let alone his concepts ofnonros.“ of the pairs.” or of specificjustice.“ and includesno other discussion of Greek thought. George Christie and Patrick Martin offera thoughtful appreciation ofPlato.” but reserve their detailed exposition of classicaljustice theory for Aristotle” and Aquinas.“ Note also that we can count. as a sub-group among the historical texts. those that could be called rnonlernisr.‘"" Such textsexpressly situate their inquiry in the post-Westphalian West.“" Once that time fi-ameis expressly stipulated. an inquiry beginning with Hobbesian or Austinian pos-itivism becomes historically justified. Such texts make no pretence to examineprc-modernity. and thus avoid the overly simplified approaches of most of thosethat do. Still. they merely leave open the question as to the degree to which legal

89. Arthur lsiaufinann. “Problemgeschiehte der Reelnsphilosophie” in Arthur Kaufinann 8; WinfiiedHassner. eds.. Ein,iiiiii'un_g in Reeiirspiiiiosopiiie unri Rer*iii.siireorie tier Gegentrarr oth ed.(Heidelberg: C.F. Miiller Juristischer Verlag. I994) at 30. 33-lll.

90. .l.M. Kelly. .-1 .S'iirn*r Hisrrnjr ofll/esvrn-n Legal Tiiernry (Oxford: Oxford University Press. I992)at 4. I2. 15-lb. 22. 31. 33-36. 64.

91. Margaret Davies. rlsut-trig rite Lat-.' Question {North Ryde. NSW: The Law Book Company. l‘§"El4_lat I.

92. H:-iri. at ti-l -I52.93. Crrnipiere H‘i'.'IF.Fi'.."i. supra note l. i‘v’ir-rnnuciiean Ethics V. 1.94. Cf. text accompanying supra note 7'4.95. Cf. text accompanying supra note T3.96. Cf. text accompanying supra note T2.97. George C. Christie :5’: Patrick H. Martin. Jin'isprur;lenee. End ed. (St. Paul. Ml“-l: West. I995} at

25-29.93. ihiri. at 29-I I7.99. ioiri. at I2?-92.

Illll. Again. l am using that term in a broad sense. to include theories critical of. but neverthelessgenerated within. and usually as a response to. modernity. Cf. text accompanying supra notes19-2 I.

llll. See. e.g.. C-otterrell. supra note 3; Simone Goyard-Fabre. Lr-s.nrincipe.s piu'losapirirpie.s riu rimirpoiirique niorierne {Parisz Presses Llniversitaires dc France. l99'il. Despite occasional referencesto pre-modern thought. Simmonds‘s work is situated firmly within the perspectives ofmodernily.See Simmonds. supra note 3.

340 Heinze

theory should be confined either to a post-17th century. or even to a post-19thcentury. framework.

C. Some Objections

That brief sampling of standard textbooks suggests a dismissive attitude towardsPlato. reflecting a more general dismissal of the complexity of pre-modern thought.Increasingly. the content ofEnglish-language texts has become limited to theoriesgenerated within the late l9th and 20th century. and increasingly Anglo-Americansphere. That almost exclusive emphasis on theories arising out of Westem or Anglo-American modemity tums pre-modern approaches into distant curios. scarcely rel-evant to modern concerns. The idea that one can generate a critique of atemporally-defined concept like “modemity” without stepping outside of that tem-poral frame. without placing modernity in a critical. historical context. is one ofthe oddities of Anglo-American legal theory.'“i absent from many continental““approaches.

Today. much Anglo-American legal theory (although we could concede someworthy exceptions} consists of little more than 20th-2 I st century English-speakersdiscussing 20th-2 I st century English-speakers. Once again. it is the vestigial. die-hard positivists who can best defend that approach. insofar as they openly declarelaw’s essential elements to be describable in ahistorical terms. But for those whoclaim to understand law and legal thought as products ofhistory. the failure to takea reflective step outside of their own time-frame of Westem modernity is puzzling.(To be sure. the superiority of continental approaches to antiquity does not meanthat they are superior overall. Continental texts. albeit stronger on pre-modernity.are often weak on recent critical—e.g.. post-colonial or post-strueturalist—devel-opments. Moreover. in focusing on Plato. I seek to call attention to a deficit through-out modern legal theory. For example. continental theorists. albeit stronger onprc-modernity. also overlook much of Plato’s distinct contribution.‘“"'}

In both the historical and the ahistorical approaches. some of the most funda-mental problems ofjustice are often presented as if no one had given them muchthought until 19th century positivism began to crumble. The Holocaust. theNuremberg Tribunals or Stalinisrn are commonly introduced as tire big resr for pos-itivism.‘“‘ The impression is almost conveyed that questions of tyranny or abuse

H12. There are exceptions. See. e.g.. Morrison. .au.ua note 4 at l5-74 { examining ancient and medievalapproaches in greater detail).

I03. For recent examples. see. e.g.. Naueke. supra note 37 at 9-53 {examining approaches to law fromPlato to Machiavelli]; Hom. supra note SE at ll]-I4 {examining ancient Greek. ancient Roman.and medieval thinkers]; Hasso Hoffmann. Eiru‘iilu'ung in riie Recius- uurl SraarspirilosapnielDarrnstadt: Wissenscliaftliche Eluchgesellschafi. 2l)l"l0} at to-1 US {examining pre-modern con-cepts ofjustice}; Micltel Villey. Piiiiosoplrie riu riiair (Paris: Dalloz. 2001} at 4t}-'il {examiningancient concepts ofjustice). There are notable exceptions to that uend among Anglo-Americantexts. but very few. See. e.g.. Christie 8: Martin. supra note 9'? at 29-I 37. Cf. text accompanyingsupra notes 98-99.

I04. See text accompanying supra note S9.I05. See. e.g.. tvlctfoubrey 8: White. supra note IS at St]-52. Cf. e.g.. Freeman. supra note 4-s.

36'?-9 I.

I _ _ ___


of law werejust not major concerns of legal theorists before the 20th century. Theopposite is closer to the truth. Tyranny—and. more generally. the relationshipsamong law. ethics. justice and politics-—-is a central problem for Plato.'“" as it isfor Aristotle.'""" By focussing on Plato. and the philosopher ruler. as the genesis ofall Hitlers and Stalins. we too readily forget how vehemently Plato denouncesdespotic law and government. e.g.. in his excoriation of the proto-NietzscheanThrasymachus in the first book ofReptrbiie.'“"

One can imagine some objections to the charges l bring against legal theorists.One objection might be called an appeal to “litnited ahistoricism” which might runlike this: “Qfcrnus-e modem legal theory concentrates on today ‘s states. That is ourcontext. Those are our legal systems. Pre-modem thought may be interesting. butis not our immediate concern.” Yet that would merely be another version of age-old objections to all historical ly-minded research: Why study Dante or Shakespeare.when we live in the here and now‘? Why study Caesar or Charlemagne. when welive in the here and now‘? Those are old chestnuts. and. again. the objection is per-suasive if law. as the positivists maintained. is a fundamentally ahistorical product.Certainly. it is the way standard textbooks on mathematics. chemistry. physics orbiology are wrinen. devoting perhaps a few. anecdotal pages to historical views. forpurposes ofdrawing some fleeting comparisons. lf. however. our legal systems aredeeply historical and cultural products. then the reason to study a figure like Platois precisely because we er-irit-ai.{_t-" understand modernity only by locating it withina time-frame that reaches beyond modemity.

Another objection might be called the appeal to the disciplines. which mightrun as follows: “Qfcourse philosophy such as Plato ‘s is important. But that’s notlegal theory. lt’s moral philosophy or political philosophy.” Here too. debates aboutthe integrity of the disciplines are old, and I shall not rehearse them now.'“" Drivento their extreme. they would force us into the starkly parochial (arguably imperial}view that there just was no thoroughgoing theoretical thinking about law at anytime or place. prior to Western. indeed nineteenth century. modernity——a viewthat any student might well draw from most of today ‘s textbooks on legal theory.It is understandable for today‘s Physics undergraduates to conclude that there justwasn't much informative thinking about quantum mechanics (taking the term pre-cisely) before the advent of Euro-American. 20th century thought. It is remarkable.however. that many legal textbooks send their readers away with the same con-clusions about law. and suggests how strongly today ‘s legal theorists are weddedto much of the spirit ofpositivism that they insist they have overcome. Again atleast the die-hard positivists have gratirtds. within their own framework. for dis-missing virtually everything written before Austin. throughout virtually all of his-tory and culture. in all other times and places. as nor iegai rireory. Most legaltheorists today. however. overwhelmingly dismiss the implicit positivist rejectionTi Z - Z ii i _i Z — i

lilo. See. e.g.. Plato. supra note I. ilepuhiir-. 33-lie-354e l rejecting Thrasymachus‘ separation of lawand moralsl. See also. generally. Gorgiri.s. Cf. Heinze. supra note 5 at sec. lI.A.

HIT. See text accompanying in;'ia notes 72-T4.I08. See supra note lllii.H19. Ff. supra note 3.

342 Heinze-

ofany interdisciplinary method. It is astounding that we would all suddenly retreatto the conventional assumptions of positivism by finding in Plato “only” ethicaland political theory. utterly bereft ofserions—tacitly taken to mean distinct andautonomous—legal theory.

I I. Hoeus Focus and Sieg Heiii

The foregoing review ofthe standard texts suggests that legal theorists’ understand-ings of Plato. and by extension of much classical natural law. are largely perfunctory.even parodic. Two views merit further attention. Freeman. like Kelsen. stressesPlato‘s drift towards mysticism. Others stress his drift towards dictatorship.“" Thosetwo assessments are not distinct. In the aftermath ofWorld War II. the Holocaust,and European colonialism, leading philosophers began to examine authoritarianismin Western moral and political thought. Isaiah Berlin. for example. in language stillcommon today. condemned the “authoritarian state obedient to the directives ofan elite of Platonic guardians.“"‘

A monumental work of the period is Karl Popper's two-volume Tire OpenSocielfv and its Eneinies.‘ '1 first published in 1945. Popper sought to link mysticaland authoritarian tendencies in Western thought.“-‘ Such critiques were all too wel-come for anyone wanting to appear progressive by dispensing with whole blocksof the Western canon. Of course. that utterly dismissive stance was never Berlin'sor Popperls intention. They in many ways revered the thinkers they criticized.‘ “ butcounted among a generation of post-War intellectuals who. like I-Iorkheirner orAdorno. approached reverence not from a stance of pious deference. but of the kindof critical engagement that had already been inaugurated by Hegel and Marx.Popper provided powerful reasons to keep reeriing Plato.

In legal theory. certainly Anglo-American. no such attitude ofcritical engage-ment emerged. In Britain. the immediate post-‘War period came to be dominatedby analytic jurisprudence. itself linked to the logical positivism that enjoyed a hey-day in the years leading up to. and immediately following. the Second WorldWar.‘ ‘i Not all of its exponents approached the issues of mysticism and totalitar-ianism with Popper’s deftness. Although much of Popper’s interpretation of Plato

lltl. See. e.g.. Mctfoubrey 8: Wl1ite..~nvpnu note I3 at til]-£12.I I I. Isaiah Berlin. ii-no Crirtce_m‘.r r;§,i'Liiier'l[t-' t i953}. reprinted in Isaiah Berlin. Four E.s.vnjvs on Liberal-'

(Oxford: Oxford University Press. 19691 at 1 IS. I52 {original italics].HI. Karl Popper. T-‘re C-‘pen .5-'rx'ieljt't.'mi its Enemies. vol. l (London: Roulledge. EH02} [Dpen .S'ocie[1-'].H3. Cf. Popper‘s preface to the seventh German edition of Open Seeiery. ‘“v'orwort aur siebenten

deutschen Auflagc 1992" in Karl Popper. Die qfleiie (ieseiiseitsyi und iii}? Feintie. Bth ed. byHubert Kiesewelter (Tiibingen: .l.C.B. ivlohr. 2003] at ix [Die ojjerie Ge.veiisehefi] {describinghis effort in Open Society as going “aufSpurensuehe in der Geschiehte; von Hitler zuriicl-t anPlaton: dem ersten groflen polilischen ldeologen. der in Klassen und Rassen dachte undKolizennationtsiager vorschlug" [“on an historical detective search: hem Hitler hack to Plato-—thefirst major political ideologue who thought in terms ofclasses and races. and recommended eon-centration camps"—my translation]'}.

I14. See. e.g.. ibin‘. at 32. {expressing admiration for Plato].I15. See. e.g.. I-l.L..~“+.. Hart. "Introduction" in H.L.A. Hart. Es.vujl-'.r in .Inv'ispnidertr'e und Pitiio.vtJpi1_t'

tflxford: Oxford University Press. I983] at l. 2-3 {explaining influences of analytic philosophyand philosophy oflanguage on his thought].

_.-""


can be challenged.“ he is rarely casual or dismissive. However. in the empirical.often aggressively anti-metaphysical approaches that dominated much 20th centuryAnglo-American thought.“ Plato's non-empiricism left him open to being dis-missed as a mystic.'"* At the height of logical positivism. any philosopher notfirmly rooted in empiricism. from pre-Socratics through to Heidegger (an easytarget.‘ ‘l for well-known biographical reasons'i"'). fell under suspicion. Rousseau.Hegel or Nietzsche all provided rich pickings for the logical positivist wantingto link mysticism to authoritarianism.

To this day. the standard Anglo-American introductions to legal theory pay littleattention to those thinkers. ( Here again. a comparison with continental cotmterpartsis instructive. Simone Croyard-Fabre’s introductory text spends well over 25 pageson Rousseau. and well over ten on Hegel. along with detailed examinations ofNietzsche and Heideggeri“) Bertrand Russell had condescendingly remarked thatRousseau. “though a pirr'io.vopire in the eighteenth-century French sense. was notwhat would now be called a ‘philosopher.’"‘f Rousseau‘s Corrrrrrr Srreirrl had “madepossible the rrrysric identification of a leader with his people” and “much of its phi-losophy could be appropriated by Hegel in his defense of the Prussian autocracy.“'i-‘While Roosevelt and Churchill are applauded as sons of Lockean rationalism.“‘Hitler is ludicrously branded “an outcome of Rousseau?“-‘ Hegel‘s thought. too.“may be regarded. to some extent. as an intellectualizing ofwhat had first appearedto him as rrr_vst'ic insight."'i“ Russell has little difficulty tracing those thinkers‘ fas-cism-cum-mysticism back to Plato. linking Plato's “other-worldliness" to author-itarianism.'i’ (It is grimly amusing that Russell’s Hi.srrJr_1-' o/'Wes'rer*rr Piri!rrsopir_i-*.which might more aptly he named Ber'rrtrrro' i" l'Phr*iiorn'e ofArrgio-Arner'r't'rrrr Clichesrrborrr Pirr'/osopiry. is still commonly consulted by Anglo-American legal theorists.

116. See. e.g.. Lesley Brown. “How Totalitarian is Plato's Republic?" in E.-rsrrt-'.r. rrrrprrr note '1' at ch.l; R. Bambrough. ed.. Pirrro. Popper‘ rrrrri Poiirier [l'\lew ‘fork: Barnes and Noble. l9|‘ErT).

I17. See. e.g.. Alfred Jules Ayer. “Editors Introduction" in Alfred Jules Ayer. ed.. r'.ogr'eol' Posirivi.-rrrr(New York: The Free Press. 1959) at 3; rltlfred Jules Ayer. Lrrrrgrrrrge. Tr-rrrir rrrrri Logic (New York:Dover. I952}. But. see. e.g.. Willard van Umian Quinc. “Two Dogmas of Empiricism“. reprintedin Willard van Clrman Quine. Frtrrrr rr Logierri Poirrr o,i'Fieir'. End ed. tfainhridge. llrlhi HarvardUniversity Press. IP61] at ch. 2 (early. influential critique of logical positivism}.

113. See. e.g.. Bertrand Russell. Hisrorjv rrf'lli?.vrer'rr Plriirr.vrrpr'r_r. End ed. { London: Roulledge. Zflllfllat I23.

119. See. e.g.. Rudolph Carnap. “The Elimination of Metaphysics through Logical Analysis ofLanguage“ in Logicrrl’ Po.ririvi.vrrr. srrprn note l IT at Ell).

Ill]. ‘See. e.g.. Riidiger Sa Ii-anski. Eirr Mei.vrer' .-:rrr.r Derrt'.rr*irirrrrri.' Heirr'r-rg_'_ger' rrrrri seirre Zeir {Frankfurtam Main: Fischer. 2003} at 258-64. 270-80. 392-rlltl.

121. Goyard-Fabre. .-rrrprrr note ltll at 23-33. I45-53. lie-BB. 19¢}-203. 316-21. 33‘?-rill]. 345-So. Forsimilar approaches. see. e.g.. Hoffmann. rrrrprn note I03: Horn. srrprn note HS; Naucl-re. srrprtrnote 37.

I22. Russell. strprtr note l IE at ss. The word “now” in that sentence raises a question that Russellnowhere answers: under which circumstances would that present be said to have begun. and underwhich circumstances would it he said to come to an end?

I23. Hriri. at {J4 [emphasis atltled].114. Ihiri. at 6150.I25. ibid. Cli. e.g.. Michel Launay. "Introduction" in Michel Launay. etl.. Lo Norrt-'el'ie Hr.-?l'oiIse (Paris:

F lammarion. 196?} at xvi {arguing that Rousseau was hostile to n‘rysticisn1_l.126. Russell. rrtrprtr note I l8 at ‘ill! [emphasis added]. Cf. tlfarnap. .vrrpr-rr note I I9 at Bl).127. Russell. .rrrpr'o note l IR at IE3-E4-

344 Helnze

serving more to reinforce old Anglo-American stereotypes than to examine non-empirical philosophy in a more serious vein.)

Like the summary charges ofauthoritarianism. such charges ofmysticism aremisleading. Plato’s repeated attacks on rhetoric. in favour of relentless analysis ofarguments‘”—-which is nothing other than an insistence on legitimacy——is neitherthe mark of the dreamy mystic nor of the fanatical authoritarian. It is commonlyupheld as an exemplar. even the very origin. of Western rationalism.‘” with itsdemands for intellectual accountability. its suspicion of sheer convention or dogma.l*~lietzsche’s critique is far more perceptive than Russell"s. pinning on Plato not adreamy mysticism. but an unrelenting rationalism. Admittedly. Platonic Forms arenot susceptible to empirical scrutiny. Ofcourse. nor was the premise of logical pos-itivism that no non-tautological propositions can be meaningfirl beyond those thatcan be subjected to empirical examination. '“ Russell‘s dismissal of Plato revealsmore about his own prejudices regarding what counts as philosophy than about thephilosophers he dismissed. His History stands only on the basis of a tacitly stip-ulated. painfirlly narrow. definition of “philosophy.” Russell never explains that def-inition. nor is it consistent with Russelfs boast of construing philosophy in a “verywide sense.”'“ Russell flatly equates non-empirical philosophies with mysticism.then collapses mysticism into authoritarianism. Indeed, Berlin. albeit equally vigilantabout the dangers ofauthoritarianism among the same thinkers criticized by Russell.adopted a somewhat more moderate position. declining to dismiss them all as mys-tics.‘~” Those shortcomings of the logical positivist approach have been understoodin the I-lumanities for decades; yet they have gone largely unnoticed in theapproaches of legal theory textbooks. among many ofthe same scholars who claimto challenge the content or intellectual foundations of legal positivism.

Even if we admit a link between Etuopean romanticism and authoritarianismin the 19th and 20th centuries (as suggested in debates about Nietzsche orHeidegger. the issue is complex'“). it remains questionable whether we can so hand-ily extrapolate those trends onto Plato. One important feature is shared by figuresas different as Aristotle. Locke. Rousseau. Bentham. Kant. Hegel. Marx. Nietzscheor Heidegger—their ability to be hiterpneted in oppressive as well as liberating ways.Certainly. we can debate what would count as “oppressive” or “liberating.” But.however we may define those terms. there is ample reason to count Plato amongthose generally complex thinkers.

Kelsen further examines Plato. and classical natural law. in an article entitled“Plato and the Doctrine of Natural Law.”'-“ As with Russell. that analysis ends up

128. See. e.g.. remarks on rtpoiogv. Protogorars and G'or'gt'o's from Plato in sec. I above.129. lt is arguably more precise to bestow that distinction upon Socrates. Nevertheless. it is through

Plato that Socratic dialectic is commonly thought to inaugurate much of the Western rationalisttradition. See. e.g.. Kniest. srrpr-o note 28 at 34-36. Cf. Barbara Zehnpfennig. Plotorr strrt'i.'t'rr{iiirr'rrrrg (Hamburg: J unius. End ed.. Ztllll } at ch. 3.

I30. Sec. e.g.. works cited in srrpre notes ll‘? and I l9.131. Russell. sttpttt note l 13 at I3.I32. See generally Berlin. srrprtr note 1 1 l.I33. Sec. e.g.. Safransl-ti. rrrrpra note 120. See also. e.g.. Rfidiger Safranski. Niet:.rt"ire: Biogr-opirie

seirres Detrkerrs {Frank furt am Main: Fischer. RUDD} at 35 l-fill.I3-1. ltielsen. srrpro note 84.


saying more about Kelsen than about Plato. It amounts to little more than a sheerpolemic against the entire natural law tradition. Once again. it is not Aristotle orAquinas. but Plato who is taken as the paradign for all classical nattual law. Kelsenwrites. “[t]he so-called doctrine of natural law is characterized by its assertion thatit is able to find ideal law in nature in general and in human nature in particular.By ‘nature’ is meant errtpit*icnt' reality. and by ‘human nature.’ the actual humancondition.”'-“ Certainly. natural law theories must and do take human experienceinto account. They hold. however. that material experience alone does not yieldprinciples ofjustice; that such principles are products of thought (or. perhaps. forsome natural law theories. faith or revelation. but I’ll leave those aside for now).which. while grounded in experience. can also abstract from it.““

In other words. Kelsen faults principles of natural law because they cannot befound in empirical reality. In so doing. he uncritically assumes the logical positivistanti-metaphysics advocated dining the earlier and mid-Zllth century: “The assertionthat norms of the correct. just law are immanent in the empirical reality of naturecould only be proved if an analysis of this reality could actually show a system ofincontestable nomis for the proper conduct of men. as such an analysis shows aseries of generally recognized. verifiable causal laws.”’-” Kelsenls argument hereassumes the possibility of senled knowledge about the concept. and content. of“empirical reality.” Yet it is difficult today to accept that the logical positivists‘attempt to provide such an account of “empirical reality“ ever succeeded. Carnap’sDer:r'ogise1re Arrjborr o'er: Welt represented a particularly rigorous attempt. but isappreciated today more as intellectual history than as a basis for founding anexhaustive account of the empirical world.‘-“

Characteristic of the classics of legal positivism. Kelsenls I949 Gerrerni TheoryofLrrw and Store defines positivism largely in contradistinction to natural law. '“The quarrels between positivism and natural law are arguably as old as legal theory.

I35. iirio‘. at 24 [original emphasis].I36. Cf.. e.g.. Tiroerrtetrrs I suggesting that knowledge cannot have an entirely empirical foundation).

Indeed one can hardly overlook Kant. who is not easily dismissed as a mystic. Kent's entire criticalsystem departs from the famous claim. “Wenn aber gleich alle unsere Erkenntnis rrrit derErfahrung anhebt. so entspringt sie darum nicht eben alle orrs der Erfahrung. Denn es I-tizinntewohl sein. dall selbst unsere Erfahmngserkenntnis ein Zusammengesetztes aus dem sei. was wirdurch Eindriicke empfangen. und dem. was unset eigenes Erltenntnisvermiigen aus sich selbslhergiht.” Immanuel Kant. it'rr'tr'tr o'er reirrerr liar-rrrrrrfl. ed. by Wilhelm Weischedel. Wentrrtrsgohe.vol. 3 {_ Frankfurt am Main: Suhrkamp. I963} at 45 [original emphasis]. [“Elut although all ourcognition commences n'itl'r experience. yet it does not on that account all arisefrorrr experience.For it could well be that even our experiential cognition is a composite of that which we receivethrough impressions and that which our own cognitive faculty ... provides out of itself.” lrnmanuelKant. C't*itiqrtre ofPrrt*e Rees-orr trans. by Paul Guyer dz Allen W. Wood (Cambridge: CambridgeUniversity Press. I993] at 136]. Curiously. Popper waxes ebullient about that Krrrrtiorr tradition.as appears particularly clearly in the Gennan version of his Dperr .5'or:ietv. See Popper. “lmrnanuelRant: Der Philosoph der Autkliirung” in Popper. Dre oflerre Ges'eii.i-r~irttii. srrpru note l I3 at XX.Cf.. rlbiri. at V [dedicating Die oflerre Geseii.scirr;y‘i to Kant].

131'. Kelsen. rttrprtr note S4 at 24.I38. See Rudolph Carnap. Der irrgrse.-'re.=lrrtlrorr der: Weir (Hamburg: Felix lvleiner Verlag. liliilliil. Cf.

Ouine. srrprtr note I I? at 39-42 {challenging the logical positivism of Carnap's earlier and sub-sequent writings). Some modem philosophers might. against Ouine or other critics. seek to defendCarnap-‘s project. However. far more argument would be required than is provided by Kelsea.

I39. Kelscn. Gerrerni Tlterrtjt-'. sttpt'r.t note 29 at 3-It-l.

' \ !__ l!'||

346 Heinze

itself“. and. by the time Kelsen was writing. one might have expected an exam-ination ofnatural law that would refute it through reasonably serious examination.Yet. like Russell. Kelsen elides analysis with wholesale dismissal. With linle expla-nation. Kelsen anributes all of natural law theory in psychologistic terms to “[t]heneed for rational justification ofour emotional acts” which “is so great that we seekto satisfy it even at the risk of self-deception.”"" Despite his insistence on systemand method he substunes. in four pages. Blackstone. Kant. John Adams and social-ism all turder the heading of“natural law.”‘“ I-Ie dismisses'“ such “empty formulas”as srtirrri citiqtite (“to each his own")—wl1ich he construes as being common to. anddistinctive of.. natural law theories—without noticing that Plato scathingly rejectsprecisely that. and other. simplistic maxims early on in the ii’eprih!ir::'“. and. again.recognizes the whole problem of such formalisms in the Stittesrirr:rrr.'“

III. False Analogies

I have suggested some ways in which pre-modern theory. using the example ofPlato. has been neglected or oversimplified in legal scholarship. My final aim isto illustrate further hazards of lumping together vastly different theories under anunduly generalized rurderstanding ofclassical natural law. George Fletcher throwsPlato into a discussion ofAristotle. claiming that Aristotle. “following Plato in TireReprrblic. perceives justice as a ... quality that leads to the flourishing of the indi-vidual.”‘“ Tire individual? Wiric-ii individual‘? All individuals equally? Slaves too‘?Women {who fare rather differently in Plato’s Reprrbiir;-. where they have a shot atequality. and Aristotle's Politics. where they don"t)‘? ls that “individual” flourishing(very much an ideal ofmiddle-class modernity) ever purchased at the price oftheflourishing of the community‘? Or never‘? In view of Aristotle‘s strong criticismsof Plato's political theory.‘“ is he really “following” Plato on this point? Fletcherrightly sees in Aristotlels theories of corrective and commutative justice conceptsthat remain useful for understanding current-day issues.‘“ On many crucial points.Plato and Aristotle can well withstand that kind of transposition into a modem con-text. That makes them classics. However. an appreciation oftheir overall approachesto law. and to fundamental questions of individuality and community. emerges onlywhen they are examined with some regard to the political and legal worlds that theyknew and imagined?” We gain bener insight into modemity when we understandthe kinds of circumstances that ancient thinkers did, and dldn‘t. consider. It is a

lt-ll]. See. e.g.. Pinto. sripiri note l. Repirbiic 333c-35-‘lc I |'cjecting Thrasymachus" separation of lawand morals].

I-ll. Kelsen. Geirerrri’ i'i'rerrtj'. sitpttr note 2*} at ii.I42. The more detailed exposition in Kelscn. sir_rirn note 29 still fails to overcome the basic problem

of unduly generalizing about natural law theories.I43. Iielsen. “Problern". rrrrprn note 29 at see-er; Kclsen. Grtrrernl Tfieorjv. sirprtr note 29 at ll].I-I4. Cf. Heinze. srrprn note 5 at secs. ll.A-ll.B.I45. Cf. iiiid. at sec. ll.B.I46. Fletcher. sirptrr note 13 at 92.I47. See. e.g.. Corrrpiete I-I-'i:rr'rl:.r. sirprrr note 1. Politics ll. I -Er. l26{lbZS-l2t3oa3U.I48. Fletcher. .-rrrprn note 13 at 38-P2.I49. Cf. text accompanying trrtitr note 73.


bit embarrassing to have to make these points to senior legal theorists. when ourcolleagues in the Humanities had learned them as undergraduates.

A narrow focus on. or highly literal reading of Plato—again. usually meaningthe Reprrhiic-—occasionally results in the construction of far-fetched analogiesbetween figures or themes having little to do with each other. Hom compares Plato'stripartite division of the soul with Freud's categories of lcii (“ego”). fiber:-ich(“superego”) and Es (“id”). '-“ In so doing. he falls into a fairly obvious trap. arisingfrom the fact that each thinker does indeed divide the human psyche into three parts.Certainly. both Plato and Freud examine tensions between desire. reason and socialnorms. However. those surface similarities only conceal thoroughgoing differencesbetween them. (Indeed in view of Freud ’s capacious grasp ofthe Western humanistcanon. and eagemess to locate within it mirrors of his own ideas. as in his referencesto Sophocles. Da Vinci. Shakespeare. or Dostoevsky. he arguably would have drawnthe analogy to Plato himself had he found it useful.) For Plato. the soul. which fun-damentally defines the human. is non-organic and constitutionally infused withthe capacity to grasp ethical princlples.‘“ Even where Freud expressly examinesinteractions between the individual and the collectivity. he declines to suggest any-thing like the Reprrhiic-‘s highly symmetrical. mirror-image analogue between soci-ety and soul““—the structure of one reflecting and explaining that of the other.

Finally. another hazard that must not be overlooked is to lump together ancientthinkers not merely within the Western tradition. but even beyond it. assuming themall to be doing essentially the same things. without regard to vastly different culturesor timeframes. For example. McCoubrey tit. White analogize Platols philosopherruler to the Confucian sage. generalizing about pre-modern theory across a stag-gering cultural divide. The authors do call Confucianism only “a distant politicalparalIel”.'“ but nevertheless find the Confucian sage to be “more than a slight echoof the Platonic philosopher-king.”'“ They devote much of an otherwise brief dis-cussion to the analogy. The analogy to Confucius could indeed hold a superficialappeal. and is therefore worth considering. For. on closer examination. it relies onlittle more than the image of the storybook wise man. Certainly. both the philoso-pher ruler and the Confucian sage must cultivate qualities such as wisdom or self-discipline.'“ However. any deeper comparison only underscores the fallacy of seeingpre-modem theories as so many variations on more-or-less constant themes!”

ISII. Horn. irtrprtr note SS at I36.I5I. See. e.g.. Pinto. sirptri note I. Metro S I b-c: Pirrretfo 'i'[}a- I titre: Pititetft'rt.t' 245c-21-ltlc: Repitbl'r'c'

{rlIl3c-til 2a.I52. Pirttrr. sitprti note l. Reprririir' 3fi3e-369a.I53. McCoubrey 8: White. srrprn note IS at bl.I54. iota‘. at 53.155. Pinto. srrpitr note I. i'i’epitiiiic ll. 3'?5b-4 l.'lh; l<.'ung C"-h'iu. i.rrrr-_vii. trans. by D.C. Lau (London:

Penguin. I979]. [Confucius. .-lrrrir'ects] at lll.3. vus. lr'Il.ti. ?{llI.2'r'. XV I3. J'{‘lt13U.I56. Note also that Confucianism gave birth to various. sometimes conflicting. interpretations. I shall

focus on I'~Z’ung f.‘h’iu. rrrrprrr note I55. and on the classic restatement offionfucian doctrine inChu Hsl 3.: Lil Tsu-Clfien. C'lrr'tt-ssit iii [Rr=fi'l'ee'tiriri.v oil Tfiiiigs or Hritrri] 1.13. trans. by Wing-tsit Chan (blew York: Columbia University Press. I967). But see. e.g.. Wing-tsit Chan. ed.. ASrrrrrtrir Book irr Cirirre.-re Plriirrsrrpiry (Princeton. NJ: Princeton University Press. IP63] at chs.3. 6. I4 (examining various ancient approaches].

343 Heinze

Consider the ways in which the two figures are understood to approach politics.The society ruled by the Reprrblie-‘s philosopher ruler is imaginary. That “cleanslate" postulating of ideal models of govemment recurs in Westem philosophy. Sucha strategy says, “Let‘s set aside actual conditions for the moment, and considerwhich political or moral norms or institutions are correct in principle, even if thereis no assurance oftheir being achieved in practice.““""’ Some Western philosophersmight find it impossible to think normatively about politics ivirhozrr such a model,on the assumption that one cannot decide what is correct in practice without firstdeciding what is correct in principle. Plato adopts that clean slate approach againin the L.-:rw.r,'“‘ and thinkers from Aristotle to Rawls continue the tradition.

Yet that Western, clean-slate method is alien to Confucianism. Western readersmay have difficulty finding any political model at all in Confucianism, for the sim-ple reason that Confucianism studiously avoids postulating ideal models.Confucianists ponder government insofar as it arises out of existing conditions,recognizing, moreover, that existing conditions are constantly subject to change,which cannot easily be accounted for by means of fixed, ideal models. TheConfiician sage does everything out keep his eye fixed on one ideal model, hoveringabove actual conditions. That approach is not just nuts-and-bolts pragmatism,devoid of a deeper worldview. Confucian metaphysics contemplates the Way (too)of Being and our involvement in it. That understanding of Being, and of the con-clusions we can draw from it about right conduct, can never be formulated inde-pendently of inunecliate circumstances. The Confucian Way persists not in spiteof, but rather through, constant change: “Being long lasting does not mean beingin a fixed and definite state. Being fixed and definite, a thing cannot last long. Theway to be constant is to change according to circumstances.”““’ l do not proposeto take a position on the meaning or merits of such a philosophy, but only to pointout the ongoing fallacy of collapsing pre-modern thinkers, even from utterly dif-ferent cultures and traditions, under that all-inclusive heading of “natural law."

Casual readings ofdifferent philosophies can create the illusion of similaritiesthat do not exist, particularly when one too casually relies on modern translationsof ancient texts. Such translations cannot avoid employing ostensibly similar termsfor concepts that are fundamentally different. For example, the Greek rrrete andthe Chinese jen can both refer to a state of character that, in English, could bedescribed as “virtuous."“’“ lt would be misleading, however, to conclude that thephilosopher ruler, in cultivating nneré, is doing the same thing as the Confuciansage who cultivates fen. Plato and Confucius are similar in placing a high valueon forming the ruler’s character. However, their respective views on what that char-acter is and how it is formed could not be more different. The Repirbh'c’s abolitionofconventional marriage and family is, again, utterly hypothesized. The philosopher

157. C-f.. e.g., Pinto. supra note l, Reptrblic 36Ele-369a {proposing to imagine a model society}.153. Pinto, supra note l, L.-an-'s Tflicl.159. Chu Hsi & Lij Tsu-Ch'ien, .rnpmr note 156 at 1.13.160. Clnjen. see, e.g., DIS. Lao, hirmalucrion in l<I.‘ung Ch‘iu, srrprn note 155 at I4. On are-rs, see.

e.g., J.W. Roberts, Cirv ofSofi:r-ares. 2nd ed. {New York: Routledge, 1993') at 6?. 134. 226-27, 242.

,


rulers are distilled through a social and educational system that leaves them ulti-mately unencumbered by interpersonal ties, which would hinder the business ofabstract theorising and governing."" The Confucian sage is educated from earlychildhood within the heart of the family, as he moves from being a loyal son toa responsible husband. father and head of household. Chu Hsi and Lii Tsu-Chlienthus expound the cardinal Confucian principle that the “foundation for the gov-emment of the world" is both “the rulers person“ and “the family.““*i What is cru-cial in that passage is not simply that marital and family ties are not abolished,but that the conduct of family life altogether represents one of the key guides toan individualhjen. “In order to see how a ruler governs his empire, we observethe government ofhis fa1r|ily.’““ Governing the family requires that one be “earnestin ties ofaffection.“‘“ Compare Plato: “No one whose thoughts are truly directedtowards the things that are has the leisure to look down at human affairsInstead, as he looks at and studies [eternal] things that are organized and alwaysthe same, that neither do injustice to one another nor suffer it, being all in a rationalorder, he imitates them and tries to become as like them as he can."“ Again, sucha passage should not be construed to mean that Plato only reaches conclusionsabout justice through reference to the Form of Justice. It does, however, showPlato’s understanding ofwisdom and knowledge to be fundamentally opposed toanything like the Confilcian tradition. Confucius was said to have urged, “"ln guid-ing a state ... love your fellow man.’““"' Otherwise, on the interpretation of Heng-Ch’tl, “laws cannot operate by themselves."'“ No such injunction to love one‘speople is expressly required of Plato’s philosopher ruler, let alone to assure theoperation of the laws.

The fundamental concept of the philosopher ruler as art individual subservientonly to truth is also at odds with Confucianism, which holds that truth must attimes be sacrificed to preserve other important values. For example, “[w]hen ascholar is in a high position, his duty is to save his ruler from making mistakesand not to follow him in wrong doing. When a scholar is in a low position, some-times he should save the ruler, sometimes follow the ruler, and sometimes followthe ruler only after he has failed to save him.“"-"‘ The Confucian sage does indeedstrive to “distinguish good and evil“, yet truth is altogether orchestrated differentlyin the Reptrb!r'r', as reflected, for example, in Plato ‘s and Confilciusl respectiveviews on art and literature. For Plato, art must be engineered to meet specificallyarticulated political ends. Even Homer is to be abolished if he cannot fill that bill.'“For Confucius, the classics hold intrinsic value, irrespective oftheir ability to meet

161. See. e.g., Plum, supra note l, REpl£fJllfC‘ ‘v’. 45'?e-4'lll1 (proposing the abolition of the family andcommunity of wives and children).

I62. Chu Hsi St Lii Tsu-Ch'ien. supra note 156 at VlII.l.I63. fhlrl.I64. l'b.-'rl'. at 'v'l.5.165. Plato, supra note l, Republic VI. Sllllb-c.I66. Chu Hsi .-Sr Lil Tsu-Ch‘ien. suguu note I515. at 1.5.I67. lb.-‘d. at vm.23.168. lb.-‘cl. at V11. l 8.I69. Plrrro, supra note I, Repuh!ir' ll. 3'lt'ic-3"98b. Cf. generally Ion.

350 Heinze

preconceived government aims. They provide crucial insights for applying pastexperience to present circumstances: “The Master said to [his son]. ‘Have youstudied the [classic poems] Chou nan and Shoo nan‘? To be a man and not to studythem is, l would say, like standing with one's face directly towards the wall.“"“'[Chu I-Isi dc Lii Tsu-Ch'ien explain, “To stand with one’s face against the wallmeans that one cannot see anything in the place nearest to one and cannot go astep further.""') That respect for classics echoes the role of tradition altogether-—-again, ofonly limited importance in Plato ‘s clean-slate society. “The Master said,“When those above are given to the observance of the rites. the common peoplewill be easy to command.‘"'P

IV. Conclusion

We are left, then, with (ll Nobles & Schiff, who find in Plato absolute values; (2')Dias, who deems those values discoverable; (3') l-(clsen, who deems them undis-coverable; (4) Bix and Wacks, who find in ancient Greece some scant and feebleattempts to do what Aquinas does; (5) lv1cCoubrey & White, whose Great Dictatorcomes delivered from a Chinese take-away; {6} Freeman, who finds the whole busi-ness sheer mystery; (7) Horn, who peels Plato off the divan; and (8) Davies &Holdcroft, who find nothing notable in ancient Greek thought at all. What unitesall of them is the long shadow of that same 20th century positivism which mostor all of them claim to have overcome, and which their colleagues in the Humanitieshad overcome several decades ago—that positivism which. failing to see mechanicalrules and systems in Plato, see nothing but caricatures.

Even seasoned philosophers and classicists find Plato and antiquity difficult.There are no shortcuts into pre-modernity. just as there are none into modernthought. Aristotle and, usually before him, Plato identified many of the perennialconcerns of legal theory. Legal theory has not yet superseded them. certainly notenough to justify the cursory and dismissive attitude towards prc-modernity thatcharacterizes much of modern legal theory. The concept of legal modernity is anhistorical one, and can only be understood as such, i.e., with some meaningfulunderstanding that other cultures and thinkers have had very different understand-ings of law, and which cannot easily be collapsed under the highly generalised head-ing of “natural law."

l7[l. l<5.'ung Clfiu. supra note l55 at XVll.l{l. Cl‘. Chu Hsi 3.: Lii Tsu-Clfien. supra note 156 at lv'l.Ellexplaining. “To stand with one’s face against the wall means that one cannot see anything inthe place nearest to one and cannot go a step further.“}.

171. Chu Hsi dz Lii Tsu-Ch‘ien. supm note 15o at V1.21.I72. lfung Clfiu. supra note I55 at Xl‘v1l4. Cf. thin‘. at ‘v'l.2'l. l.9.

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‘The Status of Classical Natural Law: Plato and the Parochialism of Modern Theory’

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