Chroust, Anton-Hermann

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Anonymous Treatise on Law: The Pseudo-Platonic Dialogue Minos

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Notre Dame Law ReviewVolume 23 | Issue 1 Article 311-1-1947Anonymous Treatise on Law: The Pseudo-PlatonicDialogue MinosAnton-Hermann ChroustFollow this and additional works at: http://scholarship.law.nd.edu/ndlrPart of the Law CommonsThis Article is brought to you for free and open access by NDLScholarship. It has been accepted for inclusion in Notre Dame Law Review by anauthorized administrator of NDLScholarship. For more information, please contact lawdr@nd.edu.Recommended CitationAnton-Hermann Chroust, Anonymous Treatise on Law: The Pseudo-Platonic Dialogue Minos, 23 Notre Dame L. Rev. 47 (1947).Available at: http://scholarship.law.nd.edu/ndlr/vol23/iss1/3AN ANONYMOUS TREATISE ON LAW: THEPSEUDO-PLATONIC DIALOGUE MINOSAmong the many smaller writings which at one time oranother have been attributed to Plato, we possess a shortdialogue entitled Minas.' Although this work is not entirelyunworthy of Plato, there exists today little doubt amongcompetent classical scholars that it is an excellent imitationof Plato's early style and technique by one of his last dis-ciples whose name is unknown to us.2 From all appearanceswe may safely assume that the Minos was composed shortlyafter the completion of Plato's Laws (Nomoi).3 The anony-mous author of the Minos makes full use of the Historyof Euphorus " who maintains the thesis that the laws pro-mulgated by the famous Spartan law-giver Lycurgus5 werederived from Crete, or to be more exact, from the fabulousKing Minos. Plato, on the other hand, in his genuine1 The Neo-Platonist Thrasyllus, who wrote during the reign of EmperorTiberius (14-37 A. D.), included the Minos among the genuine works of Plato.See his Tetralogies IX; Compare also Diogenes Laertius Ill, 57.2 The first to point out in a truly scholarly manner the fact that the Minoscould not possibly be a genuine dialogue of Plato is Boeckh, A., in his In Pits-tonis qui vulgo jertur Minoem, Halle a/S., 1807. Boeckh's arguments are soweighty that they preclude any possibility of attributing the Mines to Platohimself. On the other hand, we are unable to assign the Minos to any particularauthor, although we are justified in assuming that the anonymous author is oneof the disciples of Plato who was thoroughly familiar with Plato's early styleand who displays an astonishing grasp of Platonic thought.3 The Laws can be dated with reasonable accuracy. Plato died 348/347.The Laws were published posthumously, that is, after 348/347. Now Isocratesin his Philip, published in 346, refers both to Plato's Republic and Laws.Hence the Laws must have been published in 347/346.4 See Jacoby, F. Die Fragmente der Griechischen Historiker II A, p. 94,frag. 174 and frag. 149.5 It is now commonly held that Lycurgus or Lyco-vorgas ("Wolf-repelher")was not a historical figure, but rather an Arcadian deity or "hero" who wasworshipped by the Arcadian shepherds as the protector of their flocks. Herodotus(1,65) himself seems to debate whether Lycurgus was a god or a man when hequotes a Delphic oracle:"Welcome, Lycurgus, come to my rich shrine,Whom Zeus loves well, and all celestials love;Shall I declare thee human or divine?"6 There is a difficulty about King Minos of Crete. In Homer he appearsas an Achean ruler in Crete-and not as a Cretan-two generations before theTrojan War; that is, about the middle of the thirteenth century B. C. It wasNOTRE DAME LAWYERdialogue Laws does not accept this theory 7 which had al-ready been mentioned by Herodotus.8Irrespective of the fact that the Minos is definitely notthe work of Plato, it is nevertheless one of the most import-ant philosophical treatises on law in that it definitely marksthe beginning of what we would call legal philosophy in thenarrower sense of the term. In order to understand thescope of the Minos we will have to keep in mind that thisdialogue resumes the discussion about the nature of lawwhich had been taken up in the first book of the Laws'held by some Greek writers in later times that there were actually two Cretankings of that name, of whom the earlier reigned towards the end of the fifteenthcentury B. C. This view finds some support in Homer himself. See Iliad XIV,321, as against Odyssey XI,322, and Odyssey XIX,179. Hence it is quite possiblethat Minos I., the "Destroyer," was the leader of some Achaean invaders who con-quered Crete, destroyed the cities of Phaestus and Hagia Triada in 1406 (?), andmade Cnossus their capital. This Minos would also be the founder of theCreto-Achaean thalassocracy (rule of the sea), famous in later Greek tradition.Minos II., on the other hand, might have been the leader of a band of Achaeanand Carian raiders who invaded the Nile delta and were repelled by Pharao Meren-ptah in 1229 B. C. This Minos II. is probably the king to whom Homer is re-ferring. Herodotus, however, erroneously made Minos I. and Minos II. into oneking (1,171; 1,173; 111,122). Homer (Odyssey XIX,160) also mentions the factthat in Crete "there dwelled Cydonians, Dorians of three tribes, and proudPelasgians," insinuating thereby that Crete had been conquered by peoples fromthe Greek mainland. As to the name "Pelasgians," see Plutarch, Pyrrhus 1: "Of theThesprotians and Molossians after the great flood, the first king . . . was Phaeton. . . who came into Epirus with Pelasgus." The Pelasgians are, therefore, thedescendants of Pelasgus. The various attempts to explain the word Pelasgians--those are the original dwellers in Greece-by linking it to the Greek wordpelargos (the stork), are plain nonsense.7 Laws 624 ". . . among us Cretans he (scil., the author of the law) is saidto have been Zeus, but in Lacedaemon ... they say that Apollo is their law-giver . . ."8 Herodotus 1,65. It seems, however, that the stronger argument of Ephorusin favor of the Cretan origin of Lycurgus' laws was necessary to convince theGreeks, in particular the author of the Minos as well as Aristotle who fully ac-cepted the story that the Spartan laws originally came from Crete. See Aristotle,Politics 1271 b 20 ff.; particularly 1271 b 24: "According to tradition, Lycurgus... went abroad and spent most of his time in Crete."9 Plato, Laws 644D: "... there is reflection about the good and evil of them(scil., the laws) ...And this, when embodied in a decree by the state, is calledlaw . . .May we not conceive each of us living beings to be a puppet of thegods . .. created with a purpose ... ? We know that .. . affections within us arelike cords and strings, which pull us in different directions and opposite ways, andto opposite actions: And herein lies the difference between virtue and vice . . .There is one among these cords which every man should take hold of and neverlet go . .. and this is the sacred and golden cord of reason, called by us thecommon law of the state. There are other cords which are hard and of iron, butTHE DIALOGUE MINOSwithout, however, achieving any conclusive results. Hencein the Minas the same question concerning the nature oressence of the law is being reformulated once again by con-trasting the positive or man-made law with "philosophy,"that is to say, with the rational natural law. A student, whodiscusses this problem with Socrates, begins first by defininglaw in general as being that which is prescribed or com-manded by a politically organized society."° Socrates coun-ters by pointing out the fundamental error of this one-sideddefinition. For sight, Socrates insists, is not identical withthat which is seen, but basically different from the latter.Hence "reason" (logos) cannot be that which is actually be-ing said (td legomena), but something essentially beyondthis. In the further development of this argument Socratesintroduces the concept of the teckn6, the art of right think-ing which in Plato's system plays an all-important role.Teckn6, we are told, consists in the discovery of the realthing, the pragma, or, as we would put'it, true being. 1  Thestudent, however, is still under the impression that Socratesis referring to the actual "positive" laws and enacted ordi-nances of a given politically organized society and hencevolunteers a second definition of law which sees in the lattera dogma poleos," that is to say, the concrete instrumentalityor rule of a given State.this one is soft because it is golden ... Now we ought always to cooperate withthe lead of the best, which is law. For inasmuch as reason is beautiful and gentle,and not violent, her rule of necessity must have ministers in order to help thegolden principle in conquering the other principles. And thus the moral of thetale about our being puppets will not have been lost, and the meaning of theexpression 'superior or inferior to a man's self' will become clearer. And theindividual, attaining to right reason in this matter of pulling, the strings of thepuppet should live according to its rule; while the state, receiving the same fromsome god or from one who has knowledge of these things, should embody it in alaw, to be its guide in its dealings with itself and with other states. In thisfashion virtue and vice will be more clearly distinguished by us. And when theyhave become clearer, education and other institutions will in like manner be-come clearer . . ."10 Minos 313B.11 Minos 314B.12 Minos 314BC.NOTRE DAME LAWYERThis second definition of the student makes it quite clearthat the latter conceives of law only in terms of man-madelaws, and that he believes law to be but the sum total of en-forced human enactments. Socrates, on the other hand, at-tempts to point out that in order to grasp the full significanceof the term "law" one has to go beyond the fact that it alsohappens to be something which is valid because it is or mightbe enforced by the State. 8 Thus he proposes that the truemeaning of the law should be understood in terms and in re-lation to objective value, that is to say, in terms of objectivegood or objective evil. 4 A "true" law, according to Socrates,of necessity must always have something truly and objec-tively good for its object and end. And this objective goodis real and exists in the State. True law, therefore, is actu-ally nothing else than the discovery of something truly goodand really existing; in other words, it must be related to be-ing qua being. Positive law, on the other hand, may be eithergood or bad, useful or harmful for society. Hence it can-not be "true" law in the strict sense of the term, lacking thisnecessary ordination to the absolute and objective good.'"The main argument of Socrates, therefore, is that "true"law is always related to the nature of reality, and that jus-tice signifies harmony with true being.'6 Hence the author-ity of law depends on its relation to being, a statement whichon the main but reiterates a basic Greek assumption that thelaw is the clue to the very nature of things, in other words,13 This is an old problem which had already been discussed rather thorough-ly by the Sophists. The real question with which they were faced was whetherabove and beyond individual opinion there is anything whatever that could becalled absolute right and just.14 Minos 314Dff.15 Minos 315A.16 Among the early Greek thinkers we are able to discern two basic pre-suppositions which are being considered self-evident. The first is concerned withthe validity of the law, the second with the assertion that obedience to the law isof advantage. The naive mind obeys the laws without asking whence they comeor by what they are justified. The laws actually exist; they are here once forall, and the individual has to abide by them. None of the Pre-Sophistic thinkersthought of examining these laws or of asking in what their claim to validity con-sists.THE DIALOGUE MINOSdeclaratory of true being. The truth which law reveals isthe knowledge and understanding of being." In the Minoswe are once more confronted with the same problem. Forif we are told here that true law consists in discovering trueand real being (exeuresis ontos), then this assertion simplyimplies that all true law must be just law. For justice in itsultimate significance is synonymous with true reality andobjective being. This idea of justice is at the basis of allclassical Greek legal thought and legal philosophy.Admittedly, man-made laws change in time and are differ-ent in different places,'8 a fact which is not being denied bySocrates." But, interposes Socrates, the "good" as such isalways the same and, therefore, really "is." And the good,being real, is always the same and, hence, unchangeable. Theman-made law should have for its sole object the "good,"that is to say, that which always is, and not that which isnot, namely evil. By failing to make the real and true goodits object any man-made law misses that which is truly"legal" in the higher sense of true law.2" "Legal," there-17 This idea, which might be called a classical expression of early Greekthought, was first expressed by Parmenides. See Diels, H. Die Fragmente derVorsokratiker, frag. 1,28.18 Minos 315Bff.19 During the period of Sophistic speculation law became a subject of deviousphilosophical discussion. The citizens of republican states became accustomed toreflect and decide upon the grounds and validity of the laws, and by doing sothey actually put themselves and their personal opinions and views above thelaw, at least in their judgments. Besides noting these frequent changes of lawsor legal enactments, attention also became focused on the great varietyof laws exhibited not only in the various legal systems of the different states andnations, but also in the usages found among different peoples. In consequence itwas held that the principle of universal validity for all men, times, and placescould no longer be attributed to the laws, at least the man-made laws.In the face of all these problems the serious question arose whether there isanything whatever that could be called valid everywhere and always, a law, thatis to say, which is completely independent of the differences between peoples, states,and times and thus authoritative for all. The real issue, therefore, was whetherthere is such a thing as a law determined by the unchanging nature and order ofthings (Physis) ; whether there is a law exalted above all mutations and all differ-ences, contrasted by the ever changing features of human legal institutions andthe man-made laws. This contrast between nature and fnstitution, natural lawand positive law is undoubtedly the most characteristic achievement of the So-phistic period.20 Minos 316B.NOTRE DAME LAWYERfore, is that which is right and just in the sense of beingrelated to the innermost nature of being, to the eternal orderof things which stands for eternal justice. True law beingalways based upon that which truly is, is therefore valid forall of mankind.2 ' True law, like true being, is never subjectto change. For the objective good is immutable.Pressed for an answer as to how we are able to arrive atsuch a true law, Socrates can only give an allegorical answerwhich, however, is of deep significance: 22 All true law comesfrom God or, as Heracleitus of Ephesus had put it, "all hu-man laws derive their substance from that one law which isof God." 23 Hence Socrates introduces the mystical person-ality of King Minos of Crete,24 the oldest and most venerablelaw-giver of ancient Greece. This Minos is said to have de-rived his wisdom directly from Zeus with whom, accordingto the testimony of Homer,2" he has had intellectual conver-sation for nine years.26 During these nine years Zeus con-ferred upon him divine wisdom, in other words, that type ofwisdom which is necessary in order to understand the truenature of being and the true essence of true law. Hence21 Minos 316D.22 Minos 319Bff.23 Diels, op. dt., Heracleitus frag. 114.24 See note 6, supra; Obviously, King Minos to whom Socrates is referringhere, is only in name identical with the two historical Creto-Achaean kings men-tioned in note 6.25 Homer, Iliad XIX, 178: "... where the monarch Minos dwelled, he whohad at every nine years' end conversed with Zeus almighty . . ."26 This anonymous author of the Minos correctly translates this Homericpassage as meaning "intellectual intercourse with Zeus" and not, as most peopleinterpreted it, as signifying carousing and merry-making.27 Minos 319 Cf. The idea that the human law-giver has received the lawfrom the gods is a very ancient notion. The Louvre, for instance, possesses asculptural relief of the Babylonian king Hammurabi receiving his famous codeof law from the sun god Marduk (about 2000 B. C.). Another famous exampleis found in Plato's dialogue Gorgias 322C ff.: ". . . the desire of self-preservationgathered men into cities. But when they were .gathered together, having no artof government, they evil intreated one another, and were again in the process ofdissolution and destruction. Zeus feared that the entire human race would be ex-terminated, and so he sent Hermes to them, bringing to them a sense of restraint(aidos) and a feeling for what is right and just (dike) to be the contolling prin-ciples of states . . . Hermes asked Zeus how he should impart this eidos and dikeTHE DIALOGUE MINOSwhen the anonymous author of the Minos quotes the famousline from Hesiod where King Minos is said to have "the scep-ter of Zeus," he merely tries, by the use of allegory, to conveythe notion that King Minos had been endowed with divinewisdom.2" Under the skillful interpretation of Socrates thescepter of Zeus, this age-old symbol of justice, is transformedinto the knowledge and undertanding of that which truly isin an objective sense. And law, true law, is nothing elsethan the eternal truth of that which really is." All knowl-edge and understanding of objective reality, however, alsopre-supposes a knowledge and understanding of that whichis objectively good. But such knowledge is not mere experi-ence or personal opinion; it is teckig the art of right think-ing and correct reasoning which starts from true being andhas as its final object true being. Such knowledge also com-prises the practical realization of the good, a realization, thatis, which must be the practice of true justice and the thingsthat are right. In order to practice true justice in the ad-ministration of the State, the law-giver stands in need of ahigher, a philosophical education.30 And this philosophicaleducation, again, has to be based on a knowledge which in itsultimate foundations is divine. 1Anton-Hermann Chroust... to a favored few only ...or ...to all men? To all, Zeus replied, for Ishould like them all to have a share. For states cannot exist, if a few only sharein the virtues.. .. "28 Minos 320D. Hesiod, who in this differs from Homer, conceives Zeus asbeing the embodiment of justice. All justice is, therefore, directly from Zeus. Inthis fashion justice receives a definite and commanding position in the divineorder of things. Zeus gave justice (ike), that is, a sense of what is rightand just, because it "is the supreme good of life." Hesiod, Works and Days 276 if.29 Minos 321B.80 Minos 321C. This passage reminds us of the famous exhortation of Plato:"Until philosophers are kings, or the kings and princes of this earth have thespirit and power of philosophy, and political greatness and philosophical wisdommeet in one ... cities will never have rest from their evils-no, nor the humanrace . . ." Republic 473C. Compare also ibid. 487E: ". . . cities will not ceasefrom evil until philosophers rule in them . ." ibid. 01E ff.; 540A ff.; 53; 592.81 Minos 322A.

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Anonymous Treatise on Law: The Pseudo-Platonic Dialogue Minos

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