(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.
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.