Laws

The ideal of Athens has been pictured for all time in the speech which Thucydides puts into the mouth of Pericles, called the Funeral Oration. He contrasts the activity and freedom and pleasantness of Athenian life with the immobility and severe looks and incessant drill of the Spartans. The citizens of no city were more versatile, or more readily changed from land to sea or more quickly moved about from place to place. They 'took their pleasures' merrily, and yet, when the time for fighting arrived, were not a whit behind the Spartans, who were like men living in a camp, and, though always keeping guard, were often too late for the fray. Any foreigner might visit Athens; her ships found a way to the most distant shores; the riches of the whole earth poured in upon her. Her citizens had their theatres and festivals; they 'provided their souls with many relaxations'; yet they were not less manly than the Spartans or less willing to sacrifice this enjoyable existence for their country's good. The Athenian was a nobler form of life than that of their rivals, a life of music as well as of gymnastic, the life of a citizen as well as of a soldier. Such is the picture which Thucydides has drawn of the Athenians in their glory. It is the spirit of this life which Plato would infuse into the Magnesian state and which he seeks to combine with the common meals and gymnastic discipline of Sparta.

The two great types of Athens and Sparta had deeply entered into his mind. He had heard of Sparta at a distance and from common Hellenic fame: he was a citizen of Athens and an Athenian of noble birth. He must often have sat in the law-courts, and may have had personal experience of the duties of offices such as he is establishing. There is no need to ask the question, whence he derived his knowledge of the Laws of Athens: they were a part of his daily life. Many of his enactments are recognized to be Athenian laws from the fragments preserved in the Orators and elsewhere: many more would be found to be so if we had better information. Probably also still more of them would have been incorporated in the Magnesian code, if the work had ever been finally completed. But it seems to have come down to us in a form which is partly finished and partly unfinished, having a beginning and end, but wanting arrangement in the middle. The Laws answer to Plato's own description of them, in the comparison which he makes of himself and his two friends to gatherers of stones or the beginners of some composite work, 'who are providing materials and partly putting them together: – having some of their laws, like stones, already fixed in their places, while others lie about.'

Plato's own life coincided with the period at which Athens rose to her greatest heights and sank to her lowest depths. It was impossible that he should regard the blessings of democracy in the same light as the men of a former generation, whose view was not intercepted by the evil shadow of the taking of Athens, and who had only the glories of Marathon and Salamis and the administration of Pericles to look back upon. On the other hand the fame and prestige of Sparta, which had outlived so many crimes and blunders, was not altogether lost at the end of the life of Plato. Hers was the only great Hellenic government which preserved something of its ancient form; and although the Spartan citizens were reduced to almost one-tenth of their original number (Arist. Pol.), she still retained, until the rise of Thebes and Macedon, a certain authority and predominance due to her final success in the struggle with Athens and to the victories which Agesilaus won in Asia Minor.

Plato, like Aristotle, had in his mind some form of a mean state which should escape the evils and secure the advantages of both aristocracy and democracy. It may however be doubted whether the creation of such a state is not beyond the legislator's art, although there have been examples in history of forms of government, which through some community of interest or of origin, through a balance of parties in the state itself, or through the fear of a common enemy, have for a while preserved such a character of moderation. But in general there arises a time in the history of a state when the struggle between the few and the many has to be fought out. No system of checks and balances, such as Plato has devised in the Laws, could have given equipoise and stability to an ancient state, any more than the skill of the legislator could have withstood the tide of democracy in England or France during the last hundred years, or have given life to China or India.

The basis of the Magnesian constitution is the equal division of land. In the new state, as in the Republic, there was to be neither poverty nor riches. Every citizen under all circumstances retained his lot, and as much money as was necessary for the cultivation of it, and no one was allowed to accumulate property to the amount of more than five times the value of the lot, inclusive of it. The equal division of land was a Spartan institution, not known to have existed elsewhere in Hellas. The mention of it in the Laws of Plato affords considerable presumption that it was of ancient origin, and not first introduced, as Mr. Grote and others have imagined, in the reformation of Cleomenes III. But at Sparta, if we may judge from the frequent complaints of the accumulation of property in the hands of a few persons (Arist. Pol.), no provision could have been made for the maintenance of the lot. Plutarch indeed speaks of a law introduced by the Ephor Epitadeus soon after the Peloponnesian War, which first allowed the Spartans to sell their land (Agis): but from the manner in which Aristotle refers to the subject, we should imagine this evil in the state to be of a much older standing. Like some other countries in which small proprietors have been numerous, the original equality passed into inequality, and, instead of a large middle class, there was probably at Sparta greater disproportion in the property of the citizens than in any other state of Hellas. Plato was aware of the danger, and has improved on the Spartan custom. The land, as at Sparta, must have been tilled by slaves, since other occupations were found for the citizens. Bodies of young men between the ages of twenty-five and thirty were engaged in making biennial peregrinations of the country. They and their officers are to be the magistrates, police, engineers, aediles, of the twelve districts into which the colony was divided. Their way of life may be compared with that of the Spartan secret police or Crypteia, a name which Plato freely applies to them without apparently any consciousness of the odium which has attached to the word in history.

Another great institution which Plato borrowed from Sparta (or Crete) is the Syssitia or common meals. These were established in both states, and in some respects were considered by Aristotle to be better managed in Crete than at Lacedaemon (Pol.). In the Laws the Cretan custom appears to be adopted (This is not proved, as Hermann supposes ('De Vestigiis,' etc.)): that is to say, if we may interpret Plato by Aristotle, the cost of them was defrayed by the state and not by the individuals (Arist. Pol); so that the members of the mess, who could not pay their quota, still retained their rights of citizenship. But this explanation is hardly consistent with the Laws, where contributions to the Syssitia from private estates are expressly mentioned. Plato goes further than the legislators of Sparta and Crete, and would extend the common meals to women as well as men: he desires to curb the disorders, which existed among the female sex in both states, by the application to women of the same military discipline to which the men were already subject. It was an extension of the custom of Syssitia from which the ancient legislators shrank, and which Plato himself believed to be very difficult of enforcement.

Like Sparta, the new colony was not to be surrounded by walls, – a state should learn to depend upon the bravery of its citizens only – a fallacy or paradox, if it is not to be regarded as a poetical fancy, which is fairly enough ridiculed by Aristotle (Pol.). Women, too, must be ready to assist in the defence of their country: they are not to rush to the temples and altars, but to arm themselves with shield and spear. In the regulation of the Syssitia, in at least one of his enactments respecting property, and in the attempt to correct the licence of women, Plato shows, that while he borrowed from the institutions of Sparta and favoured the Spartan mode of life, he also sought to improve upon them.

The enmity to the sea is another Spartan feature which is transferred by Plato to the Magnesian state. He did not reflect that a non-maritime power would always be at the mercy of one which had a command of the great highway. Their many island homes, the vast extent of coast which had to be protected by them, their struggles first of all with the Phoenicians and Carthaginians, and secondly with the Persian fleets, forced the Greeks, mostly against their will, to devote themselves to the sea. The islanders before the inhabitants of the continent, the maritime cities before the inland, the Corinthians and Athenians before the Spartans, were compelled to fit out ships: last of all the Spartans, by the pressure of the Peloponnesian War, were driven to establish a naval force, which, after the battle of Aegospotami, for more than a generation commanded the Aegean. Plato, like the Spartans, had a prejudice against a navy, because he regarded it as the nursery of democracy. But he either never considered, or did not care to explain, how a city, set upon an island and 'distant not more than ten miles from the sea, having a seaboard provided with excellent harbours,' could have safely subsisted without one.

Neither the Spartans nor the Magnesian colonists were permitted to engage in trade or commerce. In order to limit their dealings as far as possible to their own country, they had a separate coinage; the Magnesians were only allowed to use the common currency of Hellas when they travelled abroad, which they were forbidden to do unless they received permission from the government. Like the Spartans, Plato was afraid of the evils which might be introduced into his state by intercourse with foreigners; but he also shrinks from the utter exclusiveness of Sparta, and is not unwilling to allow visitors of a suitable age and rank to come from other states to his own, as he also allows citizens of his own state to go to foreign countries and bring back a report of them. Such international communication seemed to him both honourable and useful.

We may now notice some points in which the commonwealth of the Laws approximates to the Athenian model. These are much more numerous than the previous class of resemblances; we are better able to compare the laws of Plato with those of Athens, because a good deal more is known to us of Athens than of Sparta.

The information which we possess about Athenian law, though comparatively fuller, is still fragmentary. The sources from which our knowledge is derived are chiefly the following: —

(1) The Orators, – Antiphon, Andocides, Lysias, Isocrates, Demosthenes, Aeschines, Lycurgus, and others.

(2) Herodotus, Thucydides, Xenophon, Plato, Aristotle, as well as later writers, such as Cicero de Legibus, Plutarch, Aelian, Pausanias.

(3) Lexicographers, such as Harpocration, Pollux, Hesychius, Suidas, and the compiler of the Etymologicum Magnum, many of whom are of uncertain date, and to a great extent based upon one another. Their writings extend altogether over more than eight hundred years, from the second to the tenth century.

(4) The Scholia on Aristophanes, Plato, Demosthenes.

(5) A few inscriptions.

Our knowledge of a subject derived from such various sources and for the most part of uncertain date and origin, is necessarily precarious. No critic can separate the actual laws of Solon from those which passed under his name in later ages. Nor do the Scholiasts and Lexicographers attempt to distinguish how many of these laws were still in force at the time when they wrote, or when they fell into disuse and were to be found in books only. Nor can we hastily assume that enactments which occur in the Laws of Plato were also a part of Athenian law, however probable this may appear.

There are two classes of similarities between Plato's Laws and those of Athens: (i) of institutions (ii) of minor enactments.

(i) The constitution of the Laws in its general character resembles much more nearly the Athenian constitution of Solon's time than that which succeeded it, or the extreme democracy which prevailed in Plato's own day. It was a mean state which he hoped to create, equally unlike a Syracusan tyranny or the mob-government of the Athenian assembly. There are various expedients by which he sought to impart to it the quality of moderation. (1) The whole people were to be educated: they could not be all trained in philosophy, but they were to acquire the simple elements of music, arithmetic, geometry, astronomy; they were also to be subject to military discipline, archontes kai archomenoi. (2) The majority of them were, or had been at some time in their lives, magistrates, and had the experience which is given by office. (3) The persons who held the highest offices were to have a further education, not much inferior to that provided for the guardians in the Republic, though the range of their studies is narrowed to the nature and divisions of virtue: here their philosophy comes to an end. (4) The entire number of the citizens (5040) rarely, if ever, assembled, except for purposes of elections. The whole people were divided into four classes, each having the right to be represented by the same number of members in the Council. The result of such an arrangement would be, as in the constitution of Servius Tullius, to give a disproportionate share of power to the wealthier classes, who may be supposed to be always much fewer in number than the poorer. This tendency was qualified by the complicated system of selection by vote, previous to the final election by lot, of which the object seems to be to hand over to the wealthy few the power of selecting from the many poor, and vice versa. (5) The most important body in the state was the Nocturnal Council, which is borrowed from the Areopagus at Athens, as it existed, or was supposed to have existed, in the days before Ephialtes and the Eumenides of Aeschylus, when its power was undiminished. In some particulars Plato appears to have copied exactly the customs and procedure of the Areopagus: both assemblies sat at night (Telfy). There was a resemblance also in more important matters. Like the Areopagus, the Nocturnal Council was partly composed of magistrates and other state officials, whose term of office had expired. (7) The constitution included several diverse and even opposing elements, such as the Assembly and the Nocturnal Council. (8) There was much less exclusiveness than at Sparta; the citizens were to have an interest in the government of neighbouring states, and to know what was going on in the rest of the world. – All these were moderating influences.

A striking similarity between Athens and the constitution of the Magnesian colony is the use of the lot in the election of judges and other magistrates. That such a mode of election should have been resorted to in any civilized state, or that it should have been transferred by Plato to an ideal or imaginary one, is very singular to us. The most extreme democracy of modern times has never thought of leaving government wholly to chance. It was natural that Socrates should scoff at it, and ask, 'Who would choose a pilot or carpenter or flute-player by lot' (Xen. Mem.)? Yet there were many considerations which made this mode of choice attractive both to the oligarch and to the democrat: – (1) It seemed to recognize that one man was as good as another, and that all the members of the governing body, whether few or many, were on a perfect equality in every sense of the word. (2) To the pious mind it appeared to be a choice made, not by man, but by heaven (compare Laws). (3) It afforded a protection against corruption and intrigue…It must also be remembered that, although elected by lot, the persons so elected were subject to a scrutiny before they entered on their office, and were therefore liable, after election, if disqualified, to be rejected (Laws). They were, moreover, liable to be called to account after the expiration of their office. In the election of councillors Plato introduces a further check: they are not to be chosen directly by lot from all the citizens, but from a select body previously elected by vote. In Plato's state at least, as we may infer from his silence on this point, judges and magistrates performed their duties without pay, which was a guarantee both of their disinterestedness and of their belonging probably to the higher class of citizens (compare Arist. Pol.). Hence we are not surprised that the use of the lot prevailed, not only in the election of the Athenian Council, but also in many oligarchies, and even in Plato's colony. The evil consequences of the lot are to a great extent avoided, if the magistrates so elected do not, like the dicasts at Athens, receive pay from the state.

Another parallel is that of the Popular Assembly, which at Athens was omnipotent, but in the Laws has only a faded and secondary existence. In Plato it was chiefly an elective body, having apparently no judicial and little political power entrusted to it. At Athens it was the mainspring of the democracy; it had the decision of war or peace, of life and death; the acts of generals or statesmen were authorized or condemned by it; no office or person was above its control. Plato was far from allowing such a despotic power to exist in his model community, and therefore he minimizes the importance of the Assembly and narrows its functions. He probably never asked himself a question, which naturally occurs to the modern reader, where was to be the central authority in this new community, and by what supreme power would the differences of inferior powers be decided. At the same time he magnifies and brings into prominence the Nocturnal Council (which is in many respects a reflection of the Areopagus), but does not make it the governing body of the state.

Between the judicial system of the Laws and that of Athens there was very great similarity, and a difference almost equally great. Plato not unfrequently adopts the details when he rejects the principle. At Athens any citizen might be a judge and member of the great court of the Heliaea. This was ordinarily subdivided into a number of inferior courts, but an occasion is recorded on which the whole body, in number six thousand, met in a single court (Andoc. de Myst.). Plato significantly remarks that a few judges, if they are good, are better than a great number. He also, at least in capital cases, confines the plaintiff and defendant to a single speech each, instead of allowing two apiece, as was the common practice at Athens. On the other hand, in all private suits he gives two appeals, from the arbiters to the courts of the tribes, and from the courts of the tribes to the final or supreme court. There was nothing answering to this at Athens. The three courts were appointed in the following manner: – the arbiters were to be agreed upon by the parties to the cause; the judges of the tribes to be elected by lot; the highest tribunal to be chosen at the end of each year by the great officers of state out of their own number – they were to serve for a year, to undergo a scrutiny, and, unlike the Athenian judges, to vote openly. Plato does not dwell upon methods of procedure: these are the lesser matters which he leaves to the younger legislators. In cases of murder and some other capital offences, the cause was to be tried by a special tribunal, as was the custom at Athens: military offences, too, as at Athens, were decided by the soldiers. Public causes in the Laws, as sometimes at Athens, were voted upon by the whole people: because, as Plato remarks, they are all equally concerned in them. They were to be previously investigated by three of the principal magistrates. He believes also that in private suits all should take part; 'for he who has no share in the administration of justice is apt to imagine that he has no share in the state at all.' The wardens of the country, like the Forty at Athens, also exercised judicial power in small matters, as well as the wardens of the agora and city. The department of justice is better organized in Plato than in an ordinary Greek state, proceeding more by regular methods, and being more restricted to distinct duties.

The executive of Plato's Laws, like the Athenian, was different from that of a modern civilized state. The difference chiefly consists in this, that whereas among ourselves there are certain persons or classes of persons set apart for the execution of the duties of government, in ancient Greece, as in all other communities in the earlier stages of their development, they were not equally distinguished from the rest of the citizens. The machinery of government was never so well organized as in the best modern states. The judicial department was not so completely separated from the legislative, nor the executive from the judicial, nor the people at large from the professional soldier, lawyer, or priest. To Aristotle (Pol.) it was a question requiring serious consideration – Who should execute a sentence? There was probably no body of police to whom were entrusted the lives and properties of the citizens in any Hellenic state. Hence it might be reasonably expected that every man should be the watchman of every other, and in turn be watched by him. The ancients do not seem to have remembered the homely adage that, 'What is every man's business is no man's business,' or always to have thought of applying the principle of a division of labour to the administration of law and to government. Every Athenian was at some time or on some occasion in his life a magistrate, judge, advocate, soldier, sailor, policeman. He had not necessarily any private business; a good deal of his time was taken up with the duties of office and other public occupations. So, too, in Plato's Laws. A citizen was to interfere in a quarrel, if older than the combatants, or to defend the outraged party, if his junior. He was especially bound to come to the rescue of a parent who was ill-treated by his children. He was also required to prosecute the murderer of a kinsman. In certain cases he was allowed to arrest an offender. He might even use violence to an abusive person. Any citizen who was not less than thirty years of age at times exercised a magisterial authority, to be enforced even by blows. Both in the Magnesian state and at Athens many thousand persons must have shared in the highest duties of government, if a section only of the Council, consisting of thirty or of fifty persons, as in the Laws, or at Athens after the days of Cleisthenes, held office for a month, or for thirty-five days only. It was almost as if, in our own country, the Ministry or the Houses of Parliament were to change every month. The average ability of the Athenian and Magnesian councillors could not have been very high, considering there were so many of them. And yet they were entrusted with the performance of the most important executive duties. In these respects the constitution of the Laws resembles Athens far more than Sparta. All the citizens were to be, not merely soldiers, but politicians and administrators.

(ii) There are numerous minor particulars in which the Laws of Plato resemble those of Athens. These are less interesting than the preceding, but they show even more strikingly how closely in the composition of his work Plato has followed the laws and customs of his own country.

(1) Evidence. (a) At Athens a child was not allowed to give evidence (Telfy). Plato has a similar law: 'A child shall be allowed to give evidence only in cases of murder.' (b) At Athens an unwilling witness might be summoned; but he was not required to appear if he was ready to declare on oath that he knew nothing about the matter in question (Telfy). So in the Laws. (c) Athenian law enacted that when more than half the witnesses in a case had been convicted of perjury, there was to be a new trial (anadikos krisis – Telfy). There is a similar provision in the Laws. (d) False-witness was punished at Athens by atimia and a fine (Telfy). Plato is at once more lenient and more severe: 'If a man be twice convicted of false-witness, he shall not be required, and if thrice, he shall not be allowed to bear witness; and if he dare to witness after he has been convicted three times…he shall be punished with death.'