Stuff from Way Back #22: Power Corrupts

Nov11

(This piece must serve for two weeks since I will be out of town. All dates are BC and translations of Thucydides are by Rex Warner. My thanks to Donald Kagan, who taught me this long, long ago.)

Defending the ludicrous attempts to establish democratic governments in Iraq and Afghanistan, a number of US politicians have stated that apart from being the right thing to do (regardless of what the locals think), this policy enhances the prospects for peace because “democracies do not attack their neighbors.” One need not look further than our own recent history to see what nonsense this is: Grenada, Panama, Iraq and drone strikes, which are in fact acts of war. Israel has begun numerous conflicts not entirely justified by a credible threat. And democratic states in classical Greece, including the granddaddy of all democracies, Athens, continually attacked their neighbors.

Indeed, Athens (along with the US) provides a shining example of democracy acting badly. That power is corrupting is a commonplace, and the presidency of Barack Obama appears to be a demonstration of this notion. Prior to being elected President Obama was a progressive, espousing more open government, dismantling the war and terror apparatus of the Bush administration and promising peace. Instead, he is pursuing a concentrated assault on journalists, defending the Constitutionally dubious powers of the Patriot act, aggressively spying on the American people and our allies and killing innocents by the hundreds with his drones. He underlines the idea that no government, whatever its nature, will voluntarily surrender any power. And if subordinating everything to the quest for reelection and trading favors for campaign funds is corruption, the Congress is a cesspool.

In antiquity the ruling elite of the Roman Republic provide a classic example of corruption. Having served the best interests of the state and the Roman people for almost four hundred years, the Senatorial class was corrupted by the powers accumulated in Rome’s wars and especially by the flood of wealth that came in the wake of the conquest of the Greek east. The result was an utterly self-interested Senate and the ultimate collapse of the Republic into military autocracy.

But it is Athens that provides a compelling study in the corrupting influence of power, especially in the pressure cooker of war. The moral collapse of the Athenian people, the real rulers in the radical democracy of the later fifth century, is beautifully detailed by Thucydides in his account of the Peloponnesian War (431-404), the showdown between the Athenian Empire and the Spartan controlled Peloponnesian League. Thucydides is the first modern historian, not only because of his attempt to provide an entirely factual narrative, but also because of his analysis of the broad currents flowing through that narrative. He was himself an Athenian and was present in Athens during the events examined below, giving credibility to the substance of the statements he records.

Athens emerged from the Persian Wars (490, 480-479) immensely powerful, particularly at sea, where her fleet was larger than all the other Greek navies combined. Liberating the Greek cities on the Anatolian coast and preventing a resurgence of Persian power required a permanent Aegean alliance, and in 478 Athens organized the Delian League, a voluntary association of most of the island and coastal cities. Recognizing Athens’ huge military contribution, the member states granted her a dominant role in the League, almost guaranteeing the emergence of Athenian supremacy. The evolution from league to empire began with Athens taking military action to prevent members from leaving the alliance, an understandable measure, and gradually the ship-contributing allies were transformed into tribute paying allies. Within a generation of the creation of the League there were besides Athens only three ship contributing allies left – the wealthy islands of Chios, Lesbos and Samos. The remaining allies all paid tribute and supplied troops, and of these a large number were subject and so more directly controlled. By the fifties Athens had suspended meetings of the League assembly, and in 454 the League treasury was moved from Delos to the Athenian acropolis, where Athena henceforth received a rake of one sixtieth.

The Athenian organization was a light touch compared to the average empire, at least until the pressures of the great war with Sparta. The tribute was reassessed every four years, and the allied state could appeal if it thought the amount was too high. In return for their money the allies got the Athenian fleet, which not only protected them from the Persians and from their own neighbors, but also suppressed the normally endemic piracy, probably the most appreciated benefit of the empire. The obligation to supply troops was a burden, but perhaps better the allied hoplites should be defending and expanding the empire than fighting one another, which is what they would otherwise be doing. Because of the strong feelings the Greeks had about the autonomy of the polis, however, the empire was probably generally resented and Athenian meddling in the internal affairs of the subject allies certainly was, but it could have been worse. After all, Athenian interference was primarily concerned with maintaining democratic governments, which by definition involved the majority of the locals ruling themselves. (At least by the Greek definition, which required direct participation; representative government readily allows the creation of sham democracies.) And in fact, it would be worse: when Sparta took over the empire after Athens’ defeat in 404, she ruled it through oppressive little ten man oligarchies.

Athens had her ups and downs with her allies, but it was the Peloponnesian War of 431-404 that really turned the empire sour. Initially there was little problem, since Pericles pursued a purely defensive strategy, which made very small demands upon the allies, especially in terms of troops. But old Squill Head died in 429, and Athenian policy became increasingly aggressive and expansionist, putting heavier and heavier demands on the allies. For example, in 425, the seventh year of the war, Athens more than doubled the tribute demanded of the allies. The empire became an increasing burden on the allies, wasting their resources and lives in dubious operations and providing no discernible benefits in return. In 412, prompted by Athenian losses in Sicily and Spartan promises of aid, almost all the allies revolted and went over to the enemy camp. In the next few years the energetic Athenians would reconquer most of their former dependents, but a few years after that they would lose the war and with it the empire. Then the allies would get a taste of empire Spartan style.

War brutalizes a society, and Athens’ decaying relationship with her allies in the course of the war fully demonstrates this moral decline, which is neatly reflected in her own changing view of the empire and foreign relations in general. In the famous Funeral Oration given at the end of the first year of the war Pericles alludes to the relatively benign imperialism practiced by Athens: “We make friends by doing good to others, not by receiving good from them…When we do kindnesses to others, we do not do them out of calculations of profit or loss: we do them without afterthought, relying on free liberality.” (Thucydides 2.40.4-5) Well, the reality of the empire was of course far from this ideal, but Athenian imperialism was almost a gentle presence compared to the heavy-handed Spartan brand, which had virtually enslaved the southern part of the Peloponnesus. In any case, it is the ideal we are interested in, how Athens viewed herself and her relations with other states.

Only one year later the tone has already changed. In a speech given by Pericles at the end of the second year of the war the will to power is now clearly apparent:
“The whole world before our eyes can be divided into two parts, the land and the sea, each of which is valuable and useful to man. Of the whole of one of these parts you are in control – not only of the area at present in your power, but elsewhere too, if you want to go further. With your navy as it is today there is no power on earth –not the King of Persia nor any people under the sun – which can stop you from sailing where you wish…And do not imagine that what we are fighting for is simply the question of freedom or slavery; there is also involved the loss of our empire and the dangers arising from the hatred we have incurred while administering it…In fact you now hold your empire down by force: it may have been wrong to take it; it is certainly dangerous to let it go.” (Thucydides 2.62.2, 63.1-2)
After only two years of war the friendly, mutual aid concept of empire expressed in the Funeral Oration has given way to a more realistic appraisal of the empire as a kind of tyranny. But the empire cannot be given up now, and justification of it can be found in the mere fact that it exists. Further, in his description of Athenian naval strength Pericles defines a power that has no limit and suggests that Athenian ambitions might not be contained within the confines of the present empire.

In 428 Mytilene, the chief city on the island of Lesbos, revolted from Athens and was crushed the following year. In a fit of emotion the Athenian assembly voted to put to death the entire male population and enslave the women and children, a rare and extreme form of punishment that was unfortunately becoming less rare as the war progressed. The harshness of the reaction is a vivid sign of the brutalizing effects of the war, but what happened next is also revealing of the changing Athenian attitude towards the empire. The day after the decision was made cooler heads prevailed, and an extraordinary second meeting of the assembly was called to debate the issue again. The demagogue and radical imperialist Cleon (d. 422) argued that the heavy punishment was necessary to set an example and that policy could not take a back seat to irrelevant humanitarian concerns. The opposition, led by the moderate Diodotus, countered with the argument that the slaughter would not serve as a deterrent, but rather would cause those who did revolt to fight to the death, since that would be all they could expect anyway. Moreover, Mytilene was an oligarchy and the people had been compelled to go along with the revolt, so punishing them would only disaffect the democratic factions in other states.

The penalty was repealed and the Mytilenians were saved at the last minute, but look at the arguments delivered in their defense. Nowhere does Diodotus say anything about justice or what is right or what Mytilene deserves. His arguments are based entirely on expediency, on what course of action would be best for imperial Athens, and he comes right out and says so: “But this is not a law court, where we have to consider what is fit and just; it is a political assembly, and the question is how Mytilene can be most useful to Athens.” (Thucydides 3.44.4) Whatever Diodotus may have felt about the inhumanity of the punishment and the plight of the Mytilenians, he understood that the Athenian people would only be moved by a cold appeal to their imperial self-interest. As the war dragged on, Athens’ concept of empire was clearly growing harsher. And Athens was not alone in the growing brutality. In 427 Plataea surrendered to the Spartans after a two year siege, and despite the city’s role in the Hellenic victory of 479, it was razed to the ground. Prompted by the Thebans, the Spartans acted in a particularly nasty fashion. Each defender was asked if had done anything of service to the Spartans and their allies in the war, and when each answered no (what else?), he was executed.

The moral rock bottom came in 416, when the Athenians attacked the tiny island of Melos in the southern Aegean. The Melians had not joined the original Delian League and had managed to escape the attention of the Athenians in the following years. At the outbreak of the war the island was neutral, although her sympathies were with Sparta, since she had been colonized from there. She resisted an Athenian invitation to join the empire and because of this uncooperative stance was in 426 the object of an unsuccessful Athenian attack. Now, ten years later the Athenians extended their invitation again, and once again the Melians refused. This time, however, the Athenians captured the city and killed all the males and enslaved the women and children. Actually, this was the second occasion that such drastic measures were taken; Athens had already inflicted this same terrible fate upon her ally Scione after an unsuccessful revolt in 421. But in the case of Scione the Athenians could at least claim, rightly or wrongly, just desserts for an ingrate ally, whereas Melos quite obviously involved nothing more than naked and brutal aggression.

And indeed the Athenians made no claim that there was anything more. In their dialogue with the Melians before investing the city they boldly state their reasons for pressuring the island: “If we were on friendly terms with you, our subjects would regard that as a sign of weakness in us, whereas your hatred is evidence of our power…So that by conquering you we shall increase not only the size but the security of our empire. We rule the sea and you are islanders, and weaker islanders too than the others; it is therefore particularly important that you should not escape.” (Thucydides 5.95, 97) When the Melians protest that what is happening to them is hardly just, the Athenians reply with one of the most cynical statements of foreign policy principles in history:
“You know as well as we do that, when matters are discussed by practical people, the standard of justice depends on the equality of power to compel and that in fact the strong do what they have the power to do and the weak accept what they have to accept…Our opinion of the gods and our knowledge of men lead us to conclude that it a general and necessary law of nature (physis) to rule wherever one can. This is not a law we made ourselves, nor were we the first to act upon it when it was made. We found it already in existence, and we shall leave it to exist for ever among those who come after us. We are merely acting in accordance with it, and we know that you or anybody else with the same power as ours would be acting in precisely the same way.” (Thucydides 5.89, 105.2)
Such honesty in foreign affairs is certainly refreshing, but it cannot obscure the total moral bankruptcy of Athenian policy. It has come to this for the Athenians – might makes right. They have abandoned the normal standards of civilized behavior and justified their violation of accepted standards of international law (nomos or man made law) by appealing to a brutally defined “natural law” (or god’s law, law of the gods, conscience, higher law), as many a great power would do in the twentieth and now the twenty-first century, precisely as Thucydides predicted.

America of course officially justifies her increasingly abominable behavior on the world stage with an appeal to national security rather than some law of nature, but so pervasive has the security argument become that it takes on the character of a natural law. And there are many conservative Christians who in fact do believe our actions are supported by natural law, in this case the Christian god, who had earlier justified our conquest of the North America. The “war” on terror touches ordinary Americans in only the most peripheral way, yet we are still being brutalized, accepting lower standards of international conduct as acceptable and even normal. Besides, as our leaders say regarding America’s pervasive snooping, everyone does it. No, only the powerful do what they can, while the weak suffer what they must – at least until they become the powerful.

Stuff from Way Back #20: We hold these truths to be self-evident…

Oct12

(Writing about Washington at the moment leads only to bewilderment, disgust, anger and obscenities, so time off for some very relevant history stuff.)

The Greek enlightenment of the sixth century (all dates are BC), which had discovered rationalism, continued into the fifth century and produced a new group of rationalists who were less interested in the nature of the universe than in the nature of man and society. These men, who might be considered the first sociologists or political scientists, are called the sophists (from sophia, “wisdom”).

The term sophist as used by the Greeks referred to the teachers who began appearing in the first half of the fifth century. These were men who for a fee would teach you whatever there was to know, but most especially rhetoric, the art of persuasive speaking. The appearance and multiplication of these teachers is hardly surprising; they served a vital function in a society that had no public education or institutions of learning whatsoever. If you wanted to know something beyond what your parents taught you, you went to a sophist. The subject of rhetoric was particularly in demand, since in an age blessed with the absence of the professional attorney the ability to speak persuasively was utterly important to your ability to defend or prosecute a case in the courts. And if you lived in a democracy like Athens, rhetorical skills were an important tool for exerting influence in the assembly.

So for the Greeks the sophist was a kind of traveling tutor. For the modern historian, however, the sophists are of considerable interest chiefly because of their examination of man and society. These thinkers inherited the skepticism of the Ionian rationalists and applied it to human affairs, ultimately producing disastrous social consequences. The whole structure of law and morality in the polis would be undermined and traditional sources of authority called into question. By the last quarter of the fifth century sophists were openly attacking the polis (city-state), and sophistic ideas were providing justification for the Athenian Empire and contributing to the breakdown of Athenian society. This was serious business.

Central to sophistic thought is the distinction made between nomos and physis, literally the Greek words for “law” and “nature.” For the sophist nomos is man-made law, that is, all the rules made by society, whatever form they take: unwritten customs, decrees of a king, legislated statutes, whatever. It is obviously mutable, changing from place to place and from one time to another. Physis, on the other hand, is understood to be completely unchanging and to consist of universal absolutes imposed by the nature of things, including the nature of human beings, and it is thus contrasted with man-made nomos. Most commonly physis referred to a body of natural law that served as a basis for behavior and morality, a basis rooted in nature rather than a particular human society and thus universally valid and compelling. It is a manifestation, it seems, of the instinctive feeling on the part of all normal humans that there are some things that are always right, like protecting a child, and some that are always wrong, like sleeping with your sister or taking a life without good reason. Today natural law is generally understood to be a body of moral absolutes and is frequently connected to a deity (e.g., “Thou shall not kill.”), but a god is not necessary. Whether you call it natural law or god’s law or the law of the gods or higher law or conscience, it is all the same – physis.

An immediate question arises: What if nomos and physis are in conflict? What do you do if your vision of natural law is contradicted by some man-made law of your society? Antigone faces this problem in Sophocles’ (c. 496-406) play Antigone. King Creon of Thebes has decreed that Antigone’s brother Polyneices may not be given the burial rites the Greeks considered the absolute right of every Greek corpse. Antigone violates this order, which is nomos, and defends her action by appealing to physis, which she defines as “the gods’ unwritten and unfailing laws.” She justifies her violation of man-made law with an appeal to natural law, just as twenty-five hundred years later those who because of the war in Vietnam burned draft files, obstructed the government or in some way broke the law justified their actions with the same appeal. Antigone calls it “the laws of the gods” and Jerry Rubin and Daniel Elsberg called it “conscience” or “higher law,” but they all refer to the same thing – physis.

Antigone and Polyneices

Grouping the sophists according to their views on the nature of the polis and the relationship between law and morality is particularly convenient for examining the evolution of sophistic thought. The Greeks traditionally believed that the polis had a positive moral purpose, that is, the state, through the mechanism of its laws, should produce virtuous citizens. We have some limited experience of this with our laws against prostitution, gambling and other “immoral” activities, but essentially this idea is alien to our concept of the state, which views the law as being morally neutral. We hope our laws coincide with our notions of morality, but they are not the source of those notions; religion is. For the Greeks, however, the state and its laws had a positive moral role, and they consequently accepted a close relationship in society between law and morality.

The first category of sophists accepted this traditional view, despite their general skepticism. Men like Protagoras of Abdera (c. 490-420) recognized the existence of natural law, but felt that it was compatible with the changeable, man-made laws of society. Skeptics that they were, they no longer accepted that the polis had a divine origin, but because they believed nomos and physis to be complementary, they did view the state as natural, a product of physis. They thus accepted the traditional notion that the state had a moral function and that its laws should create virtue.

Others were not so sure, and the second group of sophists asserted that the polis and its laws had no positive moral purpose. Law was simply a body of morally neutral, expedient measures that allowed society to function. It might by chance happen to reflect true morality, which was embodied in natural law, but essentially it was irrelevant to morality. The state was therefore not natural, but rather an artificial creation, a product of nomos. This is in essence the modern western view: the law is a neutral agent, which the society hopes reflects its moral values, which are derived from religion. A representative of this category of sophists is Antiphon (c. 480-411), who felt that the laws of the polis were artificial, established by human convention and thus not as critically important to the individual as natural law was. Laws might be necessary to society and the state, but not to life, which in fact might be hindered by them. True morality was independent of nomos and could be found instead in physis. In a word, man-made law was irrelevant. Antiphon and his friends thus rejected two essential facets of the traditional concept of the polis: that it had a divine or natural basis and that its laws were positive moral agents. For these sophists the polis was an artificial construction, the result of a kind of social compact, and its laws were morally neutral.

The sophists of category two challenged the very nature of the classical polis, but they tolerated its existence. It was left to the final group, the radical sophists, to carry the thinking to the logical extreme and openly and directly attack the polis. These characters felt that the state, as it existed, interfered with and impeded true morality, that the state was in fact immoral. A spokesman for this position is Critias (c. 460-403), leader of the oligarchic Thirty Tyrants, who ruled Athens for a brief period after her defeat by Sparta in 404. According to him, the state was not based upon divine or natural sanction (Group 1 and the traditional view), nor upon a compact (Group 2 and our view), but upon fraud, and law was thus an agent causing men to act immorally. This of course was a very convenient point of view for Critias, whose terror-filled regime openly flouted the laws and traditions of the Athenian polis. Another member of this group, Thrasymachus of Chalcedon (fl. c. 430-400), spells it out exactly: “That is what I mean when I say that right (or justice) is the same thing in all states, namely the interest of the established ruling class; and this ruling class is the strongest element in each state, and so if we argue correctly we see that right (or justice) is always the same, the interest of the stronger party.” (Plato, Republic 339A, trans. by H.P.D. Lee) In other words, might makes right. This is the ultimate destination of sophistic skepticism: ethical nihilism.

Critias

Thrasymachus

Actually, Callicles (historicity disputed), who appears in Plato’s Gorgias, takes the line of thinking a bit further. Thrasymachus says that the acts of certain extraordinary men who have power are beyond accepted standards of justice and are not subject to normal moral judgment; their might makes right. Callicles pulls out all the stops and proclaims that the actions of the superior man in fact constitute a superior form of justice; his might is right. And who are these superior men? Simply put, they are those who are clever and strong enough to seize power and hold on to it. For Callicles it is a fact of physis, a dictate of natural law that these individuals should rule and should enjoy complete satisfaction of all their desires, completely free of the restraints customarily imposed by nomos. This kind of thinking is a moral justification for even the most brutal sort of rule and can lead to disastrous social results, as for example in Germany in the 1930s.

Thus, when the newly discovered skepticism of the sixth century scientists was applied by the sophists to the subject of man and society it led rapidly to the definition and examination of perhaps the most basic social question – the relationship between law and morality. Is morality rooted in man-made law, nomos, as the Greeks traditionally believed? Or are our moral standards to be found in natural law, physis? And if this is so, who is to define physis? Suppose there is conflict between nomos and physis? How should society deal with those individuals whose vision of physis and resulting morality is radically at odds with that of the majority?

The Athenians had to deal with these questions, and so must we. Since the collapse of the classical world the west has derived its morality from a particular understanding of physis, hanging its basic system of moral values from the metaphysical peg of the Judeo-Christian god and attempting to varying degrees to bring nomos into line with these values. This has not always been very successful, especially under the No Fun God of Christianity, since human desires and expediency are in constant conflict with our notions of morality. Further, the moral standards required of individuals seem always to be incompatible with those applied to nations, and human beings are easily led to do as a group things they absolutely shun as individuals. The problem associated with attaching an ethical system to a particular view of natural law of course is getting everyone in the society to accept that view. If an individual does not accept the existence of the Christian god, the moral precepts of that deity can hardly be of any great weight. And even if by some totalitarian miracle the entire community accepts the metaphysical standard, the inherently relative nature of all value judgments will quickly reveal itself. Take what is probably the most basic moral absolute: thou shall not kill. Inasmuch as most human beings will grant that there are circumstances, such as self-defense, that may require one to kill, the prohibition is more accurately stated as thou shall not kill without good reason. But what exactly constitutes a good reason? Killing someone whom you believe is about to attack you? Assassinating a tyrant? The moral absolutes are never so absolute.

And those “self-evident truths” (physis) are never really self-evident to everyone, which leads to the most fundamental problem arising from a consideration of nomos and physis – what if they conflict? What if the morality of the community, as expressed in its laws, and the morality of the individual, which springs from his own mind, do not match? Of course the society must protect its members from physical harm, so that the man whose definition of physis involves god telling him to shoot certain people must be forced to follow the nomos of the community. But what about the most obvious manifestation of the potential nomos–physis conflict, civil disobedience? This is a tough one. Civil disobedience has clearly resulted in great social progress in American society, especially in the area of civil rights, but it must be remembered that a very dangerous principle is being entertained here.

Civil disobedience is the open and nonviolent violation of nomos justified by an appeal to physis and the intention of bettering society. It is at heart a political-social expression of the notion that the end justifies the means, and this is always a dangerous proposition, especially in the absence of any precise definition of valid ends and acceptable means. Since the justifying goal here depends upon the individual’s vision of physis there can be no definition of valid ends, and the door to chaos is open. An illegal demonstration by Blacks in favor of integration and one by the Klan in favor of segregation are in essence the same, since each group will justify its breaking of human law with its particular definition of natural law. (And ironically both groups would see physis embodied in the same Christian god.) Therein lies the problem: physis is defined by the individual, whether he dreams it up himself or takes it ready-made through an inherited religion. Critias and Thrasymachus felt that justice or right was what was in the interest of the strong, whereas singer Joan Baez violated the tax laws because her view of physis indicated that for the strong to dominate the weak was wrong and unjust. Neither vision of natural law is more or less valid than the other. Both are quite correct or quite incorrect, depending upon your point of view. For society to allow any group, no matter how apparently noble its cause, to selectively violate the laws is thus to court disaster.

police response to civil disobedience

What then do you do if according to your values a law or policy is immoral and legal means to change it fail? Only you can decide that, but when you consider that decision remember that you are standing in a line that stretches back to fifth century Athens and men like Critias.

Stuff from Way Back #18: Socrates, O.J., Casey and George

Jul18

(If you enjoy the stuff on Socrates, try the whole picture: Dare to Struggle. The history and Society of the Greeks by Richard M. Berthold.)

George Zimmerman has just been acquitted of murder or manslaughter in his killing of Trayvon Martin, and an outraged public is demanding the federal government try him again on a civil rights charge. (This mechanism was certainly valuable in circumventing blatantly racist courts in the South, but it still smacks of double jeopardy.) The outrage results from the widespread feeling that despite the not guilty verdict Zimmerman committed some crime, inasmuch as a young man doing nothing wrong and minding his own business was shot, regardless of whether he started the fight. The assertion is that this outcome is wrong and unjust, a failure of our system of justice. The same was said regarding the acquittal of Casey Anthony, who many believe did in fact kill her child, and the grandest example is of course O.J. Simpson, who was acquitted despite being obviously guilty.

Dead guy

Vigilante

These outcomes may be considered wrong or unfair, but they are not at all unjust. In these instances the prosecution may be said to have failed, but the system did not. The reason is that justice has nothing to do with fairness, as most people believe. The simple fact is that justice is rooted in the law, not in any vague notions of what is right or fair. The law must be universal, applying to everyone in the society, and it must be relatively precise and well defined. It is produced and established by political mechanisms acceptable by all, at least in a free society, and being a citizen is an implicit acceptance of any law so produced, even if one disagrees with it.

Ideas of right and wrong, that is, one’s understanding of morality, are manifestly not universal, either in interpretation or circumstance. Most humans derive or at least associate their ethics with a deity, and the few that do not accept a god figure it out for themselves, influenced by the circumstances of their lives. Consequently, beyond the basic moral tenets seemingly hard-wired in the human brain (do not murder, do not sleep with your sister, etc.) ideas of right and wrong are going to vary greatly, even among adherents of the same religious tradition. The mechanisms here – god or individual conscience – are not accepted by everyone in the society, and moral conclusions are thus not valid for all and no basis for regulating society.

And so public behavior is regulated by an entirely – at least theoretically – secular and morally neutral apparatus, the justice system. You may feel free to believe that our civil rights come from god (they actually derive from the people; that is what constitutionalism is), but the protection and regulation of those rights has no more to do with deity than it does with magic. The law does not determine what is right or fair; it determines what is legal and acceptable behavior. We hope that our laws reflect our ideas about morality and fairness, but the bottom line is that what is just is not necessarily also what is fair.

The grandest expression of this fundamental aspect of constitutional society, an idea foreign to most people, is the trial and death of Socrates (469-399 BC). He was not executed, as many think, by an Athenian society suddenly become intolerant of free speech, but because of his commitment, even unto death, to justice as he (correctly) understood it. The charges brought against him in 399 were impiety and corruption of the youth, both valid under Athenian law, but the real reasons behind his indictment were political.

Wiseass

Athens’ defeat by Sparta in 404 led to a year and a half of despotic oligarchic rule, the Thirty Tyrants, and in the nervous climate of the restored democracy Socrates suffered from his negative public image – no one likes a wiseass gadfly – and earlier association with such notorious anti-democrats as Critias and Alcibiades. A general amnesty prevented Socrates’ enemies from leveling overt political charges, and instead they sought to drive him into exile by raising these other accusations, taking advantage of a growing popular irritation with criticism of traditional religious ideas. Already in the sixth century the new rationalists had begun assaulting the traditional religion, which because of its extreme anthropomorphism was an easy target; the all too human gods plainly did silly things, and many of the rituals of the civic religion were absurd when viewed objectively. In the fifth century the sophists, the first political/social scientists, continued the attack, and by the second half of the century they had discovered atheism, though it is nowhere directly expressed.

It was difficult, if not impossible, to refute these criticisms, especially with regard to the anthropomorphism, and the frustration of the traditionalists led to growing aggravation and public trials for asebeia, impiety. Traditionally, asebeia had involved overt acts of sacrilege, such as violating sanctuaries or profaning the mysteries, but in fifth century Athens the definition expanded to include less demonstrable offences, such as introducing new gods and not believing in the gods of the city, the charges leveled against Socrates. These accusations do not appear to be true, but Socrates was in many ways a very annoying person, and many were more than ready to accept these distortions of his real beliefs.

To the apparent surprise of his enemies, Socrates did not flee, but stood trial and was convicted by a only a narrow margin of votes (out of 501), demonstrating that in this instance at least the Athenians were not given to a lynch mob mentality. The Athenian court did not have judges, and in a broad category of cases the prosecution, which consisted of the citizens who brought the charges, was entitled to propose a penalty, to which the defense would reply with a counter-penalty, leaving it to the jury to choose in a sort of post-conviction plea bargaining. The prosecution asked for death, expecting the defense to propose a stiff fine (the Greeks did not normally imprison people), which the jury would select as the punishment. But ever the wiseass, Socrates proposed that he pay a ridiculously small fine and receive free board from the state for the rest of his life in order that he could continue enlightening and annoying his fellow Athenians. The jury was not amused with the suggestion of making a mockery of the system and chose death (still by a close margin), but every opportunity was given Socrates to escape into exile, since death was clearly an inappropriately drastic punishment for the crimes for which he was convicted. He insisted, however, that the execution be carried out and drank the poison.

Why? Because unfair though the condemnation might be, Socrates had been tried and convicted justly, that is, according to the laws of Athens, and such was his commitment to the law that he refused to violate it even under such extreme circumstances. Socrates was making, about as dramatically as one can, this essential point about the nature of justice: it is rooted in the law, not the public’s notions of right and wrong. Socrates might be generally accused of a certain intellectual dishonesty in that he used his considerable powers of argument to demonstrate only conclusions compatible with his view of things, but his death is surely one of the noblest examples in history of dying for ones principles.

The acquittals of loathsome characters like Casey Anthony and O.J. Simpson are of course unfair and disgusting, but they are just. They were accused, tried and judged according to the law, and their trials involved no illegalities or misbehavior. It is sad that no one legally bears the responsibility for the death of Trayvon Martin, and it is disturbing that George Zimmerman’s vigilantism has been validated in the eyes of many. But his acquittal was manifestly not a travesty of justice. It in fact demonstrated that the justice system works, determining guilt or innocence of the basis of the law, not public opinion or someone’s definition of right and wrong.